LJC Dismantling Corp.

Plain-English summary

LJC Dismantling employees took apart a rooftop water tank while another employee worked below on a scaffold. A cut metal tank strap swung around, struck the scaffold worker, and caused him to fall to the roof. The Commission vacated an improper-planking item because the scaffold existed only briefly and the Secretary did not prove that a supervisor saw or should have discovered its incomplete decking. It affirmed the overhead-hazard item because LJC knew tank dismantling and the adjacent scaffold work would continue but failed to coordinate the operations or protect the worker below. A retraining item was vacated because the accident and earlier events did not establish that the workers lacked the skill or understanding required for scaffold work. The Commission assessed a $3,000 penalty for the affirmed serious item.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.451(b)(1); 29 C.F.R. § 1926.451(h)(1); 29 C.F.R. § 1926.454(c)
• Outcome: Scaffold-planking and retraining items vacated; overhead-hazard item affirmed as serious; $3,000 penalty assessed.
• Key point: The employer should have anticipated and coordinated overlapping dismantling and scaffold work, even though it lacked actual knowledge that a strap would be cut that day.

Full text (OSHRC public release)

LJC Dismantling Corp., Docket No. 08-1318

Walter, J. David
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EN-US
X-NONE
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United States of America

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. 08-1318

LJC DISMANTLING CORP.,

Respondent.

ON
BRIEFS:

Heather
Phillips, Counsel for Appellate Litigation; Joseph M. Woodward, Associate
Solicitor for Occupational Safety and Health; M. Patricia Smith, Solicitor of
Labor; U.S. Department of Labor, Washington, DC

For the
Complainant

Thomas
Bianco, Esq.; Meltzer, Lippe, Goldstein & Breitstone, Mineola, NY

For the Respondent

DECISION

Before: ROGERS, Chairman;
ATTWOOD, Commissioner.

BY THE COMMISSION:

Following
an inspection, the Occupational Safety and Health Administration issued LJC
Dismantling Corporation a nine-item citation alleging serious violations of the
Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678,
with a total proposed penalty of $16,800. The Secretary withdrew one of the
citation items, and Administrative Law Judge Dennis L. Phillips issued a
decision affirming the remaining eight items. At issue on review are three of
the affirmed items—Citation 1, Items 5, 7 and 8—all of which
involve an LJC employee’s use of a scaffold, from which he fell when
struck from overhead by a falling object. For the reasons discussed below, we
vacate Items 5 and 8, and affirm Item 7.

Background

As
part of a multi-building dismantling project in New York City, LJC employees
were taking apart a large rooftop water tank that rested on an elevated
platform. The tank was made of wooden boards, joined in a tongue and groove
manner, and horizontally bound with several metal straps. Dismantling the tank
involved cutting the straps and prying apart the boards. As one group of
workers dismantled the tank, another employee (Employee A) worked on removing a
small house-like structure near the base of the tank’s platform. On the
day of the accident, Employee A built a small scaffold so that he could
reach the upper portion of the structure. Shortly after climbing onto his
scaffold, he felt something strike him in the neck and back shoulder, and he
fell off the scaffold to the roof. A co-worker told Employee A that someone had
cut one of the tank’s straps, causing it to swing around the tank and hit
him.

DISCUSSION

Item 5

• Improper Scaffold Planking

Under
this item, the Secretary alleges a violation of 29 C.F.R. §
1926.451(b)(1), which requires scaffolds to be “fully planked or decked
between the front uprights and the guardrail supports.” Employee A
acknowledged at the hearing that he did not fully plank the scaffold from which
he was working on the day of the accident. The judge concluded that the Secretary met his burden of proving
knowledge. On review, we consider whether LJC knew or should have known that
the scaffold’s planking was deficient. See e.g., Kerns Bros.
Tree Serv ., 18 BNA OSHC 2064, 2067, 2000 CCH OSHD ¶ 32,053, p.
48,003 (No. 96-1719, 2000) (Secretary bears burden of establishing “that
the employer had actual or constructive knowledge of the cited
conditions”).

LJC argues that its supervisors were unaware of the violative
condition and did not have reason to know that Employee A would plank the
scaffold incorrectly. The Secretary responds that LJC’s foreman testified
that he saw the non-compliant scaffold and, even if he did not, it was in plain
view and LJC failed to exercise reasonable diligence to discover the violation.
We find that the record does not establish the Secretary’s assertions.

To establish
actual knowledge, the Secretary relies on testimony from the foreman, who
described being on the roof only once before the accident—at the
beginning of the work day. The foreman testified that, when he saw Employee A
at that time, he “was on scaffold”:

Q: Was he
on a – [w]hen you saw him, was he on a scaffold, or was he on –

A: No.
He working on – [h]e wasn’t on roof. He was on scaffold, because
– [t]hat scaffold was necessary.

But this testimony
was immediately followed by a confusing colloquy about why the scaffold was
necessary, in which the foreman stated that Employee A could not reach high
enough to do his work because “[h]e’s standing on roof.” In
addition, other evidence indicates that Employee A had not finished
building or started using the scaffold until after the foreman had left the
roof. As the record shows, the accident occurred about two hours after the
workday began, when the foreman was on another floor, and Employee A testified
that he had been on the scaffold for just a brief time before the accident. See Gary Concrete Prods., Inc ., 15 BNA OSHC 1051,
1052-53, 1991 CCH OSHD ¶ 29,344, p. 39,451 (No. 86-1087, 1991) (finding
employer lacked actual knowledge where supervisor left work area prior to
employee exposure to violative condition). In short, the foreman’s
testimony is unclear, appears to conflict with other evidence, and was not
clarified by the Secretary in further questioning. Thus, we find this testimony
insufficient to establish actual knowledge of the violative condition. Cf.
Thomas Indus. Coatings, Inc ., 23 BNA OSHC 2082, 2085-86, 2009-2012 CCH
OSHD ¶ 33,200, p. 55,700 (No. 06-1542, 2012) (declining to find actual
knowledge where foreman only suspected a violation) .

With respect
to constructive knowledge, we agree with the judge’s finding that LJC
instructed Employee A to work near the water tank and knew he would need a
scaffold to complete the assigned tasks. But the Secretary must also
demonstrate that LJC, knowing Employee A would construct and use a scaffold,
failed to exercise reasonable diligence to prevent and discover the
non-compliant planking. See, e.g., N.Y. State Elec. & Gas Corp. v.
Sec’y of Labor , 88 F.3d 98, 105 (2d Cir. 1996) citing Pride
Oil Well Serv. , 15 BNA OSHC 1809, 1814, 1992 CCH OSHD ¶ 29,807, p.
40,584 (No. 87-692, 1992) (“Reasonable diligence involves several
factors, including an employer’s obligation to inspect the work area, to
anticipate hazards to which employees may be exposed, and to take measures to
prevent the occurrence.”) (internal quotation marks and citation
omitted). In this regard, we find the record lacking.

First, the
Secretary asserts that under Simplex Time Recorder Co. v. Sec’y of
Labor , 766 F.2d 575 (D.C. Cir. 1985), he satisfied his burden by showing
that the condition was in plain view and visible from a distance. However, in Simplex ,
the court found constructive knowledge where the non-compliant conditions and
everyday practices of the employees were readily visible “ and
indisputably should have been known to management.” 766 F.2d at 589
(emphasis added). Although in the instant case the 36-inch gap from the
planking to the uprights was in plain view, the record does not establish that
this condition existed while the foreman or any other LJC supervisor was in the
area prior to the accident. Employee A completed his scaffold, climbed up, and
was struck before he even finished making preparations to do his work. At that
time, about two hours after the beginning of the work day, the foreman and
superintendent—who were the only LJC supervisors on the
project—were on another floor and unable to see the scaffold. And as
discussed below, the Secretary has failed to establish a lack of reasonable
diligence by LJC in not discovering or preventing the condition, i.e. ,
that the condition “should have been known to [LJC].” Id. In
these circumstances, we find that there is insufficient evidence to show that
the condition was present for a long enough time that the employer should have
known about it. See Major Constr. Corp., Inc ., 20 BNA OSHC 2109, 2111,
2004-2009 CCH OSHD ¶ 32,860, p. 53,042 (No. 99-0943, 2005) (constructive
knowledge not established where violation might only have been capable of being
observed for a short period); see also Cranesville Block Co. , 23 BNA
OSHC 1977, 1986, 2009-2012 CCH OSHD ¶ 33,227, p. 56,017 (No. 08-0316,
2012) (consolidated) (knowledge not established where violative condition was
in plain view but evidence did not establish how long it existed or that
supervisors were in area); Williams Enters., Inc. , 10 BNA OSHC 1260,
1263, 1982 CCH OSHD ¶ 25,830, p. 32,306 (No. 16184, 1981) (knowledge not
established absent evidence that violative condition existed “for a
sufficient period of time that [the employer] should have discovered
it”).

Second, the
Secretary alleges, with little elaboration, that LJC failed to take adequate
measures to prevent the occurrence of violations—that it “failed to
fulfill” its obligations to inspect for existing or potential hazards and
give appropriate instructions. We find the evidence does not support these
allegations, and that the Secretary, therefore, has failed to establish a lack
of reasonable diligence by LJC. As for inspections, the record establishes that
LJC’s superintendent inspected the worksite multiple times a day and
directed the shop steward to check that employees were “being
safe.” The Secretary argues that such inspections were inadequate but
does not identify what would have been appropriate under the circumstances,
especially considering the brief amount of time the violative condition
existed. See Trinity Marine Nashville, Inc. , 19 BNA OSHC 1015,
1017, 2000 CCH OSHD ¶ 32,158, p. 48,527 (No. 98-0144, 2000) (no
constructive knowledge where employer conducted inspections and “the
Secretary has not suggested any reasonable additional measures that [the
employer] could have taken to detect the [violative condition]”), rev’d
on other grounds , 275 F.3d 423 (5th Cir. 2001); Tex. A.C.A., Inc .,
17 BNA OSHC 1048, 1050, 1993-1995 CCH OSHD ¶ 30,652, p. 42,525-526 (No.
91-3467, 1995) (no constructive knowledge of scaffold violation based on
inadequate inspections where Secretary failed to demonstrate inspections were
not reasonably diligent). Moreover, there is no evidence showing that
Employee A had ever previously violated safety requirements. Compare N.
Y. State Elec. & Gas, Corp ., 19 BNA OSHC 1227, 1231, 2000 CCH OSHD
¶ 32,217, p. 48,847 (No. 91-2897, 2000) (Commission finding no
constructive knowledge where there were no circumstances alerting the employer
to a need for more intensive monitoring) with N & N Contractors,
Inc. , 18 BNA OSHC 2121, 2124, 2000 CCH OSHD ¶ 32,101, p. 48,329
(No. 96-0606, 2000) (constructive knowledge where employer knew that employees
routinely violated its work rule), aff’d , 255 F.3d 122 (4th Cir.
2001).

As for instructions,
LJC’s superintendent hired Employee A knowing he had extensive training
and experience, including two courses specifically addressing scaffolds, as
well as annual renewal training. The superintendent also went through
LJC’s safety policies with Employee A and had him review a copy of its
safety plan, which requires “scaffold planking” to be inspected
daily. Apart from a general assertion that LJC did not give “appropriate
instructions,” the Secretary faults LJC for failing to prove that it had
“every reason to believe that [Employee A] was properly trained.”

We agree
that the adequacy of Employee A’s prior training is relevant to assessing
whether LJC’s instructions were sufficient. See Gary Concrete, 15
BNA OSHC at 1054-55, 1991 CCH OSHD at p. 39,451 (adequacy of instructions,
training and supervision assessed in light of employee’s work history and
extent of judgment involved in assigned task). But to the extent the Secretary
is asserting that LJC should have discounted Employee A’s prior scaffold
training (along with his extensive construction experience) and given more
specific instructions, it is the Secretary’s burden to identify and
establish that LJC should have been aware at the time that Employee A’s
training was deficient, and what additional instructions would have been
necessary under those circumstances. See N.Y. State Elec. & Gas, 88 F.3d at 108 (Secretary has
burden of proving inadequacy of safety program where that is asserted basis for
constructive knowledge); Precision Concrete Constr ., 19 BNA OSHC 1404,
1407, 2001 CCH OSHD ¶ 32,331, p. 49,552 (No. 99-0707, 2001)
(Secretary has burden of identifying what reasonable diligence required) .
The record, however, contains no such assertions or evidence. And, as noted
above, there is no evidence that LJC had previously experienced any problems
with Employee A’s compliance with safety requirements, including those
related to scaffolds. Thus, the record fails to demonstrate that the company
should have anticipated that the cited provision would be violated in these
circumstances.

Accordingly,
we find that the Secretary has not established knowledge of the violative
condition and therefore vacate Item 5.

Item 7 - Overhead Hazards

Under this
item, the Secretary alleges a violation of 29 C.F.R. § 1926.451(h)(1),
which requires employees working on a scaffold to be protected from falling hand
tools, debris, and other small objects. The judge determined that workers cut
one of the metal straps holding the tank together while Employee A was on his
scaffold, exposing him to a hazard to which the cited standard applies. He then
concluded that LJC had knowledge of the violation because it failed to exercise
reasonable diligence to protect Employee A from overhead hazards associated
with the tank dismantling work.

On
review, LJC does not deny that on the day of the accident, a tank strap was
cut, the cutting process created a falling object hazard, and Employee A worked without overhead protection while on his
scaffold. Rather, it argues that it lacked knowledge of the violative condition
because it was unaware that the tank workers were cutting straps that day. The
Secretary responds that LJC nonetheless had constructive knowledge because it
should have been aware Employee A would be subjected to the overhead hazard
posed by the cutting of the straps while he performed his assigned work.

We
agree with the Secretary. Even if LJC lacked actual knowledge that straps were
being cut that day, it knew that the tank workers were to
continue the tank dismantling process, and that there were straps remaining
that would have to be cut to complete that process. And LJC does not deny that it knew Employee A was to work adjacent to
(and at a level below) the base of the water tank—an area that, as the
compliance officer described, was one of “competing operations” at
the time of the accident. While Employee A had training about overhead hazards,
he could not see from his position on the scaffold that the workers were
cutting a strap, nor could they see him. See Ormet Corp ., 14 BNA OSHC
2134, 2137-38, 1991-1993 CCH OSHD ¶ 29,254, p. 39,201 (No. 85-531,
1991) (finding knowledge where it was reasonably foreseeable that employee
could have been injured by crane load approaching employee’s work area); see
also Halmar Corp. , 18 BNA OSHC 1014, 1016, 1995-1997 CCH OSHD ¶
31,419, p. 44,410 (No. 94-2043, 1997) (had employer exercised reasonable
diligence, it would have anticipated that crane might contact power lines), aff’d,
without reported opinion, 152 F.3d 918 (Table) (2d Cir. 1998). Despite
this, LJC failed to implement any instructions or other measures to either
coordinate this work or otherwise provide protection from the overhead hazard.
This was in contrast to the previous day, when LJC did take preventive steps:
as Employee A testified, on that day, “[w]hen they were about to cut the
straps on the tower [the superintendent] ordered everybody out of the area so
that nobody would get hurt in case the straps fly.” LJC thus failed to
exercise reasonable diligence to prevent the violation. See
Phoenix Roofing, Inc. , 17 BNA OSHC 1076, 1079, 1995 CCH OSHD ¶
30,699, p. 42,606 (No. 90-2148, 1995) (finding failure to instruct employees to
avoid dangerous condition evidence of lack of reasonable diligence), aff’d,
without reported opinion , 79 F.3d 1146 (Table) (5th Cir. 1996); Deep
South Crane & Rigging Co. , 23 BNA OSHC 2099, 2102-03, 2012 CCH OSHD
¶ 33,232, p. 56,804 (No. 09-0240, 2012) (violation foreseeable where
employer gave insufficient instructions), aff’d, 24 BNA OSHC 1089
(5th Cir. 2013). We therefore affirm Item 7.

LJC does not
challenge the characterization or penalty of this citation item on review. The
judge characterized the violation as serious and assessed the Secretary’s
proposed penalty of $3,000. We find no reason to disturb his findings or the
assessed penalty amount. See, e.g., KS Energy Servs., Inc. , 22 BNA OSHC
1261, 1268 n.11, 2004-2009 CCH OSHD ¶ 32,958, p. 53,925 n.11
(No. 06-1416, 2008) (affirming alleged characterization and assessing proposed
penalty where characterization and penalty were not in dispute), aff’d ,
703 F.3d 367 (7th Cir. 2012). Accordingly, we affirm the violation as serious
and assess the proposed penalty of $3,000.

Item 8 -
Retraining

Under this
item, the Secretary alleges that, “on or about” May 8,
2008—the day after the accident—LJC failed to retrain employees on
overhead hazards in violation of 29 C.F.R. § 1926.454(c). This
provision requires retraining when “the employer has reason to believe
that an employee lacks the skill or understanding needed for safe work
involving the erection, use or dismantling of scaffolds.” The judge found
that LJC had reason to believe from the actions of the tank workers, who cut
the metal straps, and of Employee A, who was working within reach of the straps
on the day of the accident, that these employees needed retraining. As it is
undisputed that no retraining was provided subsequent to the accident, he
affirmed the violation. On review, LJC asserts that this was error because the
tank workers did not use a scaffold on the day of the accident and thus the
retraining requirement is inapplicable to them, and Employee A’s mere
presence beneath the tank dismantling operation on that day did not suggest a
need for retraining as he was unaware that straps were going to be cut then.

We find that
the Secretary failed to prove LJC violated the provision because the record
does not show that the actions of either the tank workers or Employee A signaled a need for retraining. The Secretary relies on testimony
from the shop steward, who asserted that, “right from when [the tank
workers] began [cutting]” the straps—which he indicated was
“several days” before the accident—he complained to the
foreman about the overhead hazard. But the cited requirement addresses such a hazard only if it pertains
to “work involving” scaffolds, and the shop steward also testified
that the tank workers were not using a scaffold. The record also fails to establish that Employee A or any other worker
in the area was erecting, dismantling, or using a scaffold at that point. Moreover, Employee A, the foreman, and the superintendent all
testified that before LJC first started cutting straps—which, in contrast
with the shop steward, they indicated was on the day prior to the
accident—LJC cleared the area below. Consequently, we find the weight of
the evidence to be inconsistent with the shop steward’s testimony.

The Secretary
also argues that a need to retrain was manifested by the accident
itself—that the tank workers cut a strap even though Employee A was
working below, and Employee A worked on a scaffold even though dismantling
operations were taking place above. But the record does not establish whether
the tank workers were even aware that Employee A was on his scaffold when they
cut the strap. And Employee A testified that he could not see what the tank
workers were doing when they cut the strap, was unaware that they would be
cutting straps, and if he had known he would have avoided the area—as he
had done the day before when he was instructed to stay clear of the area when
straps were to be cut. In sum, the evidence does not establish that LJC had “reason to
believe” that the tank workers or Employee A needed retraining. Compare
Gen. Motors Corp ., 22 BNA OSHC 1019, 1037, 2004-2009 CCH OSHD
¶ 32,928, p. 53,612 (No. 91-2834E, 2007) (consolidated) (finding
similar retraining requirement in lockout/tagout standard violated where
supervisors had observed employees failing to follow required safety
procedures).

Accordingly,
we find that the Secretary failed to establish a violation of the standard and
therefore vacate Item 8.

ORDER

We
vacate Citation 1, Items 5 and 8, and affirm Item 7, assessing a penalty of
$3,000.

SO ORDERED.

/s/ 

Thomasina
V. Rogers

Chairman

/s/ 

Cynthia
L. Attwood

Dated: March 28,
2014                                              Commissioner

SECRETARY OF
LABOR,                           :

:

Complainant,                          :

:

v.                                                         :                      OSHRC
DOCKET NO. 08-1318

:

LJC DISMANTLING
CORP.,                       :

:

Respondent.                            :

Appearances:              Daniel
Hennefeld,
Esquire                 Thomas
Bianco, Esquire

U.S.
Department of
Labor                  Metzer,
Lippe, Goldstein & Breitstone

New York,
New
York                        Minealoa,
New York

For the
Complainant.                          For
the Respondent.

Before:                        Dennis
L. Phillips

Administrative Law Judge

DECISION
AND ORDER

This proceeding
is before the Occupational Safety and Health Review Commission ( A the Commission @ ) under section 10(c) of the
Occupational Safety and Health Act of 1970, 29 U.S.C. ' 651 et seq . ( A the
Act @ ). The Occupational
Safety and Health Administration ( A OSHA @ ) inspected a work site of
Respondent, LJC Dismantling Corp. ( A Respondent @ or A LJC @ ),
on May 8, 2008. The work site was located in New York, New York. OSHA conducted
the inspection after learning of an accident that had occurred at the site on
May 7, 2008. As a result of the inspection, on August 5, 2008, OSHA issued a
citation to LJC alleging various serious violations of the Act. LJC contested
the citation, and the hearing in this matter took place on June 9 and 10, 2009,
in New York, New York. Both parties have filed post-hearing briefs. The
Secretary has filed a reply brief.

BACKGROUND

LJC is a
building demolition and dismantling contractor operating in the greater New
York City metropolitan area. In early 2008, a demolition project began in New
York City that involved four connected buildings that had been the site of the
Sony Music Company ( A the
project @ ) at 460 West 54 th
Street, New York, New York (the A work
site @ , A job site @ or A site @ ). The first part of the project
consisted of asbestos abatement by another company. Then, after electric, gas
and water service was disconnected, LJC began its dismantling work. The main building, which had four stories, had a steel tower with a
water tank on its roof. The tower and tank together were about 30 feet high.
The tower = s base was about
25 feet square, and the water tank = s
diameter was about 20 feet. The water tank was made of wood pieces fitted
together, and a number of steel straps encircled the tank. The steel straps
were approximately 1 inch thick and 45 feet long.

On May 6,
2008, Eric Roberts, a construction laborer and LJC employee, spent six to seven
hours working on dismantling the machine room. The machine room (also referred to as the A mechanical room @ )
was also on the roof of the main building, and it was adjacent to and below the
water tank. Mr. Roberts = work
that day involved using a torch cutter to burn through and remove parts of the
machine room, including beams. Late in the day on May 6, 2008, three other LJC
employees, a fire watcher, burner and helper, began removing the steel straps
from the water tank by burning through them with a torch cutter. Because it
could not be predicted where or how the straps might fall, Brian Wilhelm, LJC = s superintendent on the project,
told employees to clear the area below the water tower before the strap removal
work began. Yellow caution tape was also put up around that part of the roof to
prevent any persons, who were not LJC employees, from entering that area. The
LJC employees who were removing the straps from the water tank left two of them
in place in order to keep the tank intact. (Tr. 21-41, 57-60, 71, 151, 185,
225-26, 346-49, 375-81, 386, 401-05; Exhibits (Exh) J-I, p. 5, 12-16).

On May 7,
2008, Mr. Roberts continued his work of the day before. Since the beams that he
had to cut that day were higher up, he set up a scaffold to reach those beams.
The scaffold he put up was a 6-foot-high pipe scaffold, with cross-bracing,
that was 8 feet long and 5 feet wide. The steel tower interfered with planking
the scaffold correctly, so Mr. Roberts used only three sheet rock planks, each
of which was 9 inches wide, to plank the scaffold. Before he started his
burning work, Mr. Roberts saw that LJC employees were removing wood pieces from
the water tank and lowering them to the roof with rope. He did not see anyone cutting or burning the metal straps, and, as no
warnings had been given about clearing the area, he did not believe that any
straps would be removed that day. Between 9 and 9:30 a.m., Mr. Roberts was on
the scaffold and in the process of heating a beam he planned to cut when he
felt something strike him. He grabbed the scaffold with his hand and then fell
off the scaffold and onto the roof. He blacked out for a few seconds and then
felt someone touch him and ask him if he was all right. Mr. Roberts opened his
eyes and saw Gershan Williams. He asked what had happened, and Mr. Williams
said that a strap had been cut and it had swung around and hit him. Emergency
help was summoned, and an ambulance arrived shortly to take Mr. Roberts to the
hospital. Ernesto Castillo, the union steward, accompanied Mr. Roberts to the
hospital. Although Mr. Roberts suffered a blunt force trauma from being struck
on the neck and shoulder, for which he received physical therapy, he was
released from the hospital the day after the accident. He was off work for
about six weeks following the accident, after which he resumed working on the
project. Mr. Wilhelm wrote up reports of the accident on the same day it
occurred. (Tr. 24-26, 38-43, 46, 50-52, 55-56, 61-65, 71-72, 129, 187, 350,
395-97, 405-11; Exhs. 22-23).

OSHA
Compliance Officer ( A CO @ ) Peter Steinke arrived at the
site at 12:30 p.m. on May 8, 2008. He met with Mr. Wilhelm and held an opening
conference. The New York City Department of Buildings had stopped the job due
to the accident. LJC was the only contractor at the site. Mr. Wilhelm told him
that LJC had a skeleton crew making corrections and A buttoning up @
the site. The CO and Mr. Wilhelm viewed the scene of the accident and then
walked through the rest of the site. The CO spoke to Mr. Castillo and other
employees who were at the site. He also spoke to Mr. Roberts by telephone on
May 8, 2008. The CO saw a number of conditions he considered violations. One
was a sprinkler connection that was covered with plywood. Other conditions were
temporary light bulbs without protective cages, damaged electrical cords, a
scaffold without a mid-rail, and a jackhammer machine that had been used on the
roof of another building without a curb or A stop-log. @ CO Steinke concluded that Mr.
Roberts had not fully planked the scaffold he was on and had not been protected
from objects falling from above. He also concluded that employees should have
been retrained in the OSHA standard requiring protection from overhead hazards.
After the inspection, which took two to three hours, the CO held a closing
conference with Mr. Wilhelm and Wojtek Tudek, LJC = s
main foreman at the site. The citation was issued on August 5, 2008. (Tr. 68, 150-56, 161-63, 166-67, 170-72, 174-81, 183-89, 192-96,
211-12, 346).

JURISDICTION

The parties
have stipulated that LJC, at all relevant times, was engaged in construction
work at the site. They have also stipulated that LJC was engaged in a business
affecting commerce within the meaning of sections 3(3) and 3(5) of the Act and
that LJC was an employer within the meaning of section 3(5) of the Act. The
parties further have stipulated that the Commission has jurisdiction of this
matter under section 10(c) of the Act. I find, therefore, that the Commission
has jurisdiction of the parties and the subject matter in this case. See
Exh. J-I, p. 6.

THE
SECRETARY = S
BURDEN OF PROOF

To prove a
violation of an OSHA standard, the Secretary must show by a preponderance of
the evidence that (1) the cited standard applies, (2) there was a failure to
comply with the cited standard, (3) employees had access to the violative
condition, and (4) the employer knew or could have known of the condition with
the exercise of reasonable diligence. Astra Pharmaceutical Prod. , 9 BNA
OSHC 2126, 2129 (No. 78-6247, 1981). The Secretary contends she has met her
burden of proof as to all of the cited conditions. LJC contends the Secretary
has not proved any of the alleged violations. Alternatively, LJC contends that
any violations that existed were not serious.

Citation
1, Item 1a

Item 1a
alleges a violation of 29 C.F.R. '
1926.150(a)(2), which states that A Access
to all available firefighting equipment shall be maintained at all times. @ This item was issued because
the building = s fire
sprinkler inlet pipes, called A Siamese
connections, @ were covered
by plywood at the sidewalk in front of the building. CO Steinke testified that
he saw this condition as he arrived at the site. A blue plywood fence surrounded the site, and a green piece of
plywood, about 2 feet square, covered the Siamese connections. The CO
identified Exhibit A-1 as his photograph of the condition. He said the plywood
prevented the fire department from readily accessing the connections and that
any delay in access was a hazard for the employees at the site and the firemen
themselves. He also said that the sign stating A Siamese
Sprinkler Connection @ above
the green plywood cover did not change the fact that the connections were not
readily accessible. The CO noted that when he arrived, he saw employees prying
off the cover with a crowbar. The cover was nailed down. The CO further noted
that when he asked about the condition, Mr. Wilhelm told him that when the fire
department or building department had been at the site the day before it had
cited LJC for the cover and asked LJC to remove it. (Tr. 155-58, 215, 242-45,
248, 332).

Mr. Wilhelm
testified he had employees put the cover over the connections because, during
his daily morning inspections of the site, he had found that people were
accessing the opening where the connections were to sleep and to store items.
He also testified he instructed his laborers how to cover the opening and
watched as they did so. Nails were put in only the top two corners, and the
nails were not driven in all the way, such that the cover could be removed by
prying it up at the bottom. Mr. Wilhelm agreed that the fire department had
been at the site the day of the accident. He denied that LJC had been told to
remove the cover. (Tr. 411-415).

The parties
have stipulated that the Siamese connections at the site were covered with
plywood that LJC had placed the plywood over the connections, and that a sign
above the plywood cover stated A Siamese
Sprinkler Connection. @ See
Exh. J-I, p. 5, &&
5-7. Given these stipulations and the testimony above, the Secretary has met
all elements of her burden of proof, except for whether the plywood cover over
the connections violated the terms of the standard. I find that it did. As the
Secretary points out, a similar situation existed in Bechtel Power Co. ,
7 BNA OSHC 1361, 1366 (No. 13832, 1979) ( A Bechtel @ ). The Commission there affirmed
an alleged violation of 29 C.F.R. '
1926.150(a)(2), as access to a fire extinguisher was A obstructed @
by panels and pipes leaning against it. Based on the facts of this case and Bechtel ,
I conclude the plywood cover over the connections violated the standard. My
conclusion is supported by the CO = s
testimony that Mr. Wilhelm told him that the fire department had cited LJC for
the cover and had asked LJC to remove it. (Tr. 157). Mr. Wilhelm denied this
was so, but the Court credits the CO = s
testimony. If the opening was the nuisance Mr. Wilhelm indicated it was, he
most likely would not have removed the cover unless a government official
required him to do so. (Tr. 412). Item 1 is affirmed.

In assessing
penalties, the Commission is required to give due consideration to the gravity
of the violation and to the size, history and good faith of the employer. See
section 17(j) of the Act. The CO testified that this item was a serious violation
because it was a fire hazard that could have caused serious injury, burns or
smoke inhalation. The hazard had high severity, but low probability. The
proposed penalty, after LJC received a 40 percent credit due to its small size,
was $1,500.00. LJC received no credit for history, as it had an OSHA violation
in the previous three years, or for good faith, as it had no records showing it
had safety inspections or safety training at the site. (Tr. 158-61; Exhibit 24). Based on the CO = s
testimony, Item 1a is affirmed as a serious violation. I find the proposed
penalty appropriate. A penalty of $1,500.00 is assessed.

Citation
1, Item 3

Item 3
alleges a violation of 29 C.F.R. '
1926.405(a)(2)(ii)(E), which provides in relevant part that A All lamps for general
illumination shall be protected from accidental contact or breakage. @ This item was issued as there
were temporary light bulbs at the site that were not protected. CO Steinke
testified that he saw at least ten temporary light bulbs in hallways and
stairwells in the main building that did not have protective covers or cages.
He testified that none of the bulbs that he saw in the stairway were covered.
He identified Exhibits 2 and 3 as his photographs of two such bulbs in the
stairwells that led to the roof and Exhibits 6 and 7 as his photographs of
three more such bulbs in hallways, one of which was near the entrance. The CO said employees carrying items like pipes in the hallways and
stairwells could have struck the unprotected bulbs and broken them, creating
shattered glass and electric shock hazards. (Tr. 161-65, 253-56).

The CO
agreed that he did not see all the temporary lighting in the building and that
he saw no broken bulbs. He also agreed that he did not know how long the bulbs
had been uncovered and if employees had been carrying items through areas with
uncovered bulbs. He further agreed that some of the bulbs were above head
level. The CO noted, however, that Mr. Wilhelm told him that employees had been
carrying out building contents, including windows, during the previous week. He
did not recall Mr. Wilhelm saying that he tried to correct the condition
regularly or that the bulbs were recently unprotected. He did recall Mr.
Wilhelm saying that some of the cages he had did not fit the bulbs. (Tr.
253-62, 332-33).

Mr. Wilhelm
testified that he began each workday by walking through the site and correcting
any safety hazards he saw. This included putting covers or cages on light
bulbs. He noted that the box shown in Exhibit 7 contained covers that he could
use for any bulbs lacking covers. He also noted that there were probably 300 to
400 lights in the main building and that, when the OSHA inspection took place,
he had not seen the bulbs that were missing covers. Mr. Wilhelm further
testified that LJC employees did not carry items down hallways or stairwells,
except for equipment such as small hand tools. He explained that there was a
designated dumping area for debris from the demolition work at the back of the
building on each floor. (Tr. 387-88, 415-419, 448-49, 454).

The parties
have stipulated that at least four temporary light bulbs at the site were not
protected by a cage or similar device. They have also stipulated that the four temporary light bulbs were
installed by LJC. See Exh. J-I, p. 5, &&
8-9. In view of these stipulations and the testimony above, the Secretary has
shown the standard applies and that its terms were violated. As to employee
access to the hazard and LJC = s
knowledge of the violation, the testimony of the CO conflicts with that of Mr.
Wilhelm. I observed the demeanor of these witnesses as they testified,
including their facial expressions and body language. I found the CO to be a
credible and convincing witness, and, while Mr. Wilhelm was credible in some
respects, I found certain aspects of his testimony unreliable. The Court will
thus credit the CO = s
testimony over that of Mr. Wilhelm to the extent their testimony differs. I
credit the CO = s testimony
that Mr. Wilhelm told him that employees had been carrying out contents of the
building, including windows, during the week before the inspection. I also
credit his testimony that Mr. Wilhelm said nothing about attempting to correct
the condition regularly or the bulbs being recently unprotected. Finally, I
credit the CO = s testimony
that Mr. Wilhelm told him that some of the covers he had did not fit the bulbs.
(Tr. 255-62, 332-33). Based on this evidence, the Secretary has shown employee
access to the cited condition. She has also shown that LJC either knew or
should have known of the violation. Item 3 is affirmed.

CO Steinke
testified that this item was classified as serious, despite its low gravity and
lesser probability, because if a bulb broke and shattered an employee could get
glass in his eyes. The CO further testified that the proposed penalty for this
item was $900.00. (Tr. 164-66, 253). In light of the record, this item is
affirmed as a serious violation. I find the proposed penalty to be appropriate.
A penalty of $900.00 is assessed for this item.

Citation
1, Item 4

Item 4
alleges two instances of violation of 29 C.F.R. '
1926.416(e)(1), which provides that A Worn
or frayed electric cords or cables shall not be used. @ Item 4a was issued as there was a damaged
extension cord at the site. CO Steinke testified that on the ground floor, near
the entrance of the building, there was an orange extension cord hanging about
5 feet from the floor. The CO identified Exhibits 7 and 8 as his photographs of
the cord, Exhibit 8 being a closeup. He said the cord was tied into a kind of A figure 8 @ knot. He circled the cord on Exhibit 7 and its
damaged portion on Exhibit 8. The CO noted that the cord = s insulation was torn and its wiring exposed. He
stated that there was copper showing where the cord was nicked. He also stated
that the ground wire was visible. He also noted that he tested the cord with a
Santronics current AC Tester, which has a tip that lights up if a cord is live.
He touched the sensor to the exposed wiring, the tip lit up, and he
showed it to Mr. Wilhelm. The CO said employees walking through the doorway
shown in Exhibit 7 could have contacted the cord and been shocked. He also said
LJC should have removed the cord. (Tr. 166-70, 281-82, 333-34).

Mr. Wilhelm
testified that Exhibit 7 showed a hallway and a doorway that led to the
three-story building and auditorium at the site. He said this location was
where Sony shot movies and that the whole area was covered with wires, cables,
cords and other equipment. He also said the area was de-energized, that the
cords in Exhibit 7 were not LJC = s,
and that the only way to have powered the cords was through LJC = s temporary electrical source.
Mr. Wilhelm had no reason to think the cords were energized. He never plugged
them into LJC = s temporary
source. No one from LJC would have done so. He looked at the temporary
electrical source every day. Mr. Wilhelm recalled the CO testing the cord with
a sensor, but he did not see it light up and the CO never said anything to him
about the cord. Mr. Wilhelm stated he had not seen the hazard depicted in
Exhibit 8. (Tr. 420-24, 452).

The parties
have stipulated that an extension cord near the entrance of the work site was
damaged with torn insulation. See Exh. J-I, p. 5, & 10. This stipulation and
the CO = s testimony
establish that the standard applies, that its terms were violated, and that
employees had access to the cited condition. Although Mr. Wilhelm = s testimony was contrary to that
of the CO in regard to this item, the credibility of these two witnesses was
determined in the discussion relating to Item 3, supra . The CO = s testimony is thus credited
over that of Mr. Wilhelm.

Ernesto
Castillo was the union shop steward who worked for LJC on the Sony project. He stated that work safety is one of the main reasons unions send a
shop steward to a project. Mr. Castillo testified that his number one job as
the steward is to make sure that workers are safe. He also testified about the
cords at the site. Mr. Castillo said there were many orange extension cords on
the project, and he recognized the cord in Exhibit 7 as one of those used at
the site. He testified that the cord had A the
potential to be able to hurt people. @
Mr. Castillo testified that when he reported the defective cord to an LJC
foreman, either Mr. Tudek or a man identified as A Richard, @ he was told by both to go ahead
and use the cord anyway. The exposed extension cord was plugged in over water. He testified
that no one was aware when electricity was running because there was no
electrician on site to take charge of the connection. He also said that both
Mr. Wilhelm and an LJC foreman had told him to use the cord shown in Exhibit 7,
despite its damaged condition. (Tr. 78-89, 112, 124-126, 132, 140, 170).

LJC disputes
this testimony, asserting Mr. Castillo was a biased witness. R. Brief, pp. 7-10. Mr. Castillo testified, however, that he had
nothing in particular against LJC, especially since it had A given [him] a lot of work. @ (Tr. 131). Mr. Roberts also
testified that he did not believe that Mr. Castillo was hostile to LJC. (Tr.
53-54). I observed Mr. Castillo = s
demeanor as he testified, and I found him to be a sincere and reliable witness.
Although LJC points to a number of claimed inconsistencies in his testimony, I
do not find the examples LJC has pointed out to be of any great moment. R.
Brief, pp. 8-10. Mr. Castillo = s
testimony is credited. I also find that the orange extension cord was damaged,
live with exposed electric, and used near the building = s entrance on May 8, 2008 by Respondent. The
Secretary has shown the element of knowledge. Item 4a is affirmed.

Item 4b was
issued due to a welding machine at the site that had a damaged power cord. CO
Steinke testified that there was a repair shop on the ground floor at the site.
In the repair shop, he saw a welding machine with a damaged power cord. He
identified Exhibit 9 as his photograph of the machine, and he circled the cord = s damaged area. The CO said the
cord had already been repaired once, in that there was a spliced area on the
end that was a different color than the rest of the cord. He also said the
spliced area had pulled apart, leaving the inner wires with just a little
insulation on them. The CO noted that the machine was useable in that
condition. If the cord ripped further, however, anyone using the machine could
receive an electric shock when welding where there was water on the floor. (Tr.
170-73, 336).

The parties have
stipulated that the cord on the welding machine in the repair shop was damaged
with cuts to the outer insulation. See Exh. J-I, p. 5, & 11. This stipulation,
together with the CO = s
testimony, establishes that the standard applies and that the cord = s condition violated the terms
of the standard. As to employee access, the CO agreed that he did not see the
machine being used and that no one told him it had been used in that condition.
He agreed that the proper way to abate the use of the welding machine was to
take it out of service. The CO testified that he did not know the welding
machine was out of service. He conceded that if he had been told that the
welding machine was in the repair shop to be repaired that A might change things. @ (Tr. 264-65). He also admitted
that no one told him that the welding machine had been used since the prior
repair had come undone. The CO further admitted that Mr. Wilhelm did not tell
him the welding machine was in the repair shop not to be repaired. He conceded
that Mr. Wilhelm did not tell him that the welding machine was being used in an
unrepaired condition. The CO believed the machine was not out of service
because no one told him it was in the repair shop to be repaired. He also
believed it could have been used to repair other equipment in the shop. He
conceded that all he said to Mr. Wilhelm was that the cord needed to be fixed.
Mr. Wilhelm agreed to do so. (Tr. 172-73, 263-66, 337).

Mr. Wilhelm
testified that the CO did not ask about the machine being used with the damaged
cord. He also testified that he himself had not seen it used in that condition.
Mr. Wilhelm surmised that since the welding machine was in the repair room, the
mechanic was going to repair it. (Tr. 424-25). The repair shop was locked with
the welding machine in it. Only the repair shop mechanic had access to the
welding machine. (Tr. 450). Respondent had no reason to believe that its
employees would have access to the welding machine, which was kept in an area
secured A with a chain and
lock. @ In fact, it was
reasonable for LJC to predict that its employees would not have access to the
welding machine secured in the repair shop. (Tr. 450). See Kokosing Constr.
Co., Inc. , 17 BNA OSHC 1869, 1870 (No. 92-2596, 1996)(Access to unguarded
rebars exists if there is A reasonable
predictability @ that
employees A will be, are, or
have been in @ the A zone of danger. @ )( A Kokosing @ )(citing Capform, Inc.,
16 BNA OSHC 2040, 2041 (No. 91-1613, 1994). In view of the evidence, I find
that the Secretary has not shown that employees had access to the cited
condition. I also find that she has not shown the knowledge element. Item 4b is
vacated.

The CO
testified that Item 4a was classified as serious as the electrical shock hazard
could have caused serious injury. The condition had high gravity but lesser
probability. (Tr. 173). This item is affirmed as serious, and the proposed
penalty of $1,500.00 is assessed.

Citation
1, Item 5

Item 5
alleges a violation of 29 C.F.R. '
1926.451(b)(1), which states as follows:

Each platform on all working levels of scaffolds shall
be fully planked or decked between the front uprights and the guardrail
supports....

Section
1926.451(b)(1)(I)-(ii) states what is required for a scaffold platform to be A fully planked @ under the standard, as follows:

(I) Each platform unit (e.g., scaffold plank,
fabricated plank, fabricated deck, or fabricated platform) shall be installed
so that the space between adjacent units and the space between the platform and
the uprights is no more than 1 inch (2.5 cm) wide, except where the employer
can demonstrate that a wider space is necessary....

(ii) Where the employer makes the demonstration
provided for in paragraph (b)(1)(I) of this section, the platform shall be
planked or decked as fully as possible and the remaining open space between the
platform and the uprights shall not exceed 9 2
inches (24.1cm).

This item
was issued because Mr. Roberts used only three planks for a platform when he
set up the scaffold he used at the site. Mr. Roberts testified he used three
planks, each of which was 9 inches wide, as the adjacent steel tower interfered
with planking the scaffold correctly. Mr. Roberts also testified the scaffold
was 5 feet, or 60 inches, wide. (Tr. 38-39, 46). CO Steinke testified that six
planks were needed to cover the scaffold = s
width. (Tr. 174-75). Based on the testimony of Mr. Roberts and the CO, the
scaffold was only half planked, leaving an open space of approximately 2.5 feet
through which Mr. Roberts could have fallen.

The parties
have stipulated that the scaffold platform at the site was planked such that
the space between adjacent planks of the platform was more than 1 inch wide. See
Exh. J-I, p. 6, & 18. I
find that the cited standard applies and that LJC was in violation of the
standard = s terms. I also
find that Mr. Roberts =
explanation for why he used only three planks does not meet the exception set
out in section 1926.451(b)(1)(i), i.e. , that of demonstrating that a
wider space was necessary. Even if his explanation did meet the exception, the
remaining open space was over twice the 9 2
inches allowed in section 1926.451(b)(1)(ii). As to access to the hazard, the
Court finds that Mr. Roberts was exposed to falling through the 2.5-foot space
that was created by the three-plank platform.

The
remaining element of the Secretary = s
burden is that of employer knowledge. LJC contends that it had no knowledge of
the condition because neither Messrs. Wilhelm nor Tudek had instructed Mr.
Roberts to build the scaffold or knew that he was building one. Messrs. Wilhelm
and Tudek both testified that they did not see the accident, ran up to the roof
as soon as they learned of it, and saw Mr. Roberts laying under the scaffold on
the roof. (Tr. 349, 352-53, 367, 370, 394-97). They also testified they did not
see Mr. Roberts building the scaffold. (Tr. 370-72, 406). Mr. Tudek, however, said he had been up on the roof
earlier that day and had seen Mr. Roberts working then. (Tr. 370). He also said
that he discussed with employees every morning what they would be doing that
day. (Tr. 351, 358). Mr. Tudek = s
testimony makes it clear that he knew where Mr. Roberts had been working and
the work he had been doing the day before and day of the accident. (Tr. 356-67,
370). In addition, Mr. Roberts testified that it was Mr. Wilhelm who told him,
the day before the accident, to A take
apart what [he] could take apart @
of the machine room. (Tr. 34-35).

Based on the
record, I find that LJC had either actual or constructive knowledge of the work
Mr. Roberts was doing and his use of the scaffold on the day of the accident. In so finding, I have noted the testimony of Messrs. Tudek and Wilhelm
that they did not see a torch in the area of the scaffold when they went up to
the roof after the accident. (Tr. 371-72, 398). This testimony would appear to
be an attempt to show that Mr. Roberts was still building the scaffold and had
not yet started his cutting or burning work when the accident occurred. Mr.
Roberts, however, testified that he was heating the metal of a beam he was
planning to cut when the accident took place. (Tr. 24-25, 55-56). His testimony
is consistent with the reports Mr. Wilhelm prepared after the accident. (Tr. 410-11).
Those reports state that Mr. Roberts was using a torch to cut and burn steel
beams from a 6-foot-high scaffold on the roof level. See Exhibits 22-23.
I conclude that the Secretary has met her burden of proving the alleged
violation.

LJC next
suggests that Roberts = use
of only three planks was a result of isolated employee misconduct. R. Brief at
pp. 5, 28. The Commission has long held that, to prove the affirmative defense
of unpreventable employee misconduct, the employer must show that: (1) it has
established work rules designed to prevent the violation, (2) it has adequately
communicated the rules to its employees, (3) it has taken steps to discover
violations, and (4) it has effectively enforced the rules when violations were
detected. Jensen Constr. Co. , 7 BNA OSHC 1477, 1479 (No. 76-1538, 1979).
LJC has not met its burden of proving that the violation was caused by
unpreventable employee misconduct.

First, while
LJC had a safety plan for the project that addressed some aspects of scaffold
safety, the plan did not cover the issue of fully planking a scaffold. See
Exhibit E, pp. 21, 36, 39. Second, Mr. Roberts testified that he never received
any instructions from LJC about scaffold platform planking. He also testified
that he recalled no discussion of scaffold safety during the only toolbox
safety meeting that was held at the site while he was there. (Tr. 46-47).
Third, although Mr. Wilhelm testified that he conducted toolbox meetings and
safety inspections at the site, the record shows that LJC had no documentation
of such meetings or inspections when the Secretary requested them during
discovery. See footnote 8, supra . Fourth, Mr. Roberts testified
that LJC neither retrained him nor disciplined him in any way after the
accident. (Tr. 43-44). LJC = s
claimed defense is rejected, and this item is affirmed.

LJC disputes
the serious classification of this item, pointing out that CO Steinke stated in
his notes that Mr. Roberts A was
not seriously injured. @ See
Exhibit I, p. I-11. Mr. Roberts also indicated that he was not seriously
injured. (Tr. 42-43). The CO, however, testified the classification was proper
because Mr. Roberts could have been seriously injured from falling off a
6-foot-high scaffold. He also testified that the severity of the violation was
high and the probability greater due to the size of the opening and the fact
that Mr. Roberts was wearing a helmet and holding a torch and it would not have
been easy for him to watch his footing as he was working. (Tr. 175-76). The
Court agrees with the CO = s
testimony about the serious classification. The Court also agrees that the
proposed penalty of $3,000.00 is appropriate for this item. (Tr. 176-77). This
item is affirmed as serious, and the proposed penalty of $3,000.00 is assessed.

Citation
1, Item 6

Item 6
alleges a violation of 29 C.F.R. '
1926.451(g)(1). That standard provides that:

Each employee on a scaffold more than 10 feet (3.1 m)
above a lower level shall be protected from falling to that lower level.
Paragraphs (g)(1)(i) through (vii) of this section establish the types of fall
protection to be provided to the employees on each type of scaffold.

This item
was issued because scaffolding that was set up around the main building did not
have mid-rails meeting the standard. CO Steinke testified that roof-level
scaffolding on the perimeter of the building did not have mid-rails that were
20 to 30 inches above the scaffold = s
work platform. He identified Exhibit 11 as his photograph of that scaffolding.
He marked a A B @ and an A A @
on Exhibit 11 to show, in turn, the cross-point of the cross-bracing and the
guardrail that ran along the scaffold = s
exterior just under the cross-point. The CO determined the bottom of A A @
was 36 inches above the platform and that A B @ was about 46 inches above the
platform. He noted that although A B @ was a compliant top rail, it
was not a compliant mid-rail since it was 42 inches above the platform. He also
testified that A A @ was not a compliant mid-rail as
it was more than 30 inches above the platform. He noted that while the
scaffolding = s exterior had
debris netting, that was to prevent objects from falling off the scaffolding.
The CO said the netting was not a substitute for a mid-rail since it was
attached to the scaffold = s
uprights and not to the work platform. The CO also said that not having a
proper mid-rail left a 36-inch space through which employees could fall, and
the distance to the ground level below was 35 feet. (Tr. 177-82, 299-308, 338-39).

The parties
have stipulated that the scaffold on the top perimeter of the building did not
have a guardrail that was 30 inches or less above the scaffold = s work platform. They have also
stipulated that the crossing point of the scaffold = s cross-bracing was over 30 inches above the work
platform. See Exh. J-I, p. 5, &&
13-14. Based on the stipulations and the CO = s
testimony, I find the Secretary has proved the alleged violation. As she notes,
the cited scaffold was pipe frame scaffolding and was not covered by paragraphs
(g)(1)(i) through (vi). The scaffold was thus subject to the guardrail system
requirements of 29 C.F.R. '
1926.451(g)(4). See 29 C.F.R. '
1926.451(g)(1)(vii). As she also notes, the term A guardrail
system @ is defined as A a vertical barrier, consisting
of, but not limited to, toprails, midrails, and posts, erected to prevent
employees from falling off a scaffold platform or walkway to lower levels. @ See 29 C.F.R. ' 1926.450(b). The standard
requires that A [w]hen
midrails are used, they shall be installed at a height approximately midway
between the top edge of the guardrail system and the platform surface. @ See 29 C.F.R. ' 1926.451(g)(4)(iv). See also
S. Brief, pp. 15-17.

The CO = s testimony establishes that
while either the cross-bracing or the guardrail just under the cross-bracing
cross-point met the requirements for a top rail, neither was a compliant
mid-rail. (Tr. 178-79, 310-13). Paragraph (g)(4)(xv) states as follows:

Crossbracing is acceptable in place of a midrail when
the crossing point of two braces is between 20 inches (0.5 m) and 30 inches
(0.8 m) above the work platform or as a toprail when the crossing point of two
braces is between 38 inches (0.97 m) and 48 inches (1.3 m) above the work
platform.

Respondent has argued that
the debris mesh netting along the cited scaffold constituted a compliant
midrail and/or guardrail system. As the CO explained, the purpose of that mesh
netting is to prevent small objects, such as debris, from being blown or
falling off of the scaffold onto the sidewalk below. It does not provide fall
protection for employees. (Tr. 338). The CO testified that the netting was
attached only to the uprights of the scaffold, not to the guardrails or along
the length of the scaffold platform. (Tr. 180-181). The CO = s testimony as to the attachment
points of the netting was unrebutted. The CO testified that because the netting was not attached at all to
the guardrails, or along the length of the scaffold platform, the netting did
not form an effective barrier that would prevent a person from rolling over the
edge of the scaffold. (Tr. 180-181, 333, 338-339). The Court finds that the
mesh netting at the job site was inadequate to serve as fall protection in
compliance with the OSHA scaffold standard. The Court also finds that the mesh
netting was not a compliant guardrail. The debris netting here did not constitute a compliant midrail and/or
guardrail system.

The
Secretary has shown that the cited standard applies and that its terms were not
met. She has also shown that employees were exposed to the cited hazard. Mr.
Wilhelm told the CO that work had been done on the scaffolding depicted in
Exhibit 10, which shows the roof-level perimeter scaffolding from the other
direction than that in Exhibit 11. (Tr. 182). The CO testified that the fall
distance from the scaffold platform to the ground below was 35 feet. (Tr. 180).
Finally, the Secretary has shown that LJC had knowledge of the cited condition.
Mr. Wilhelm testified that he oversaw the scaffolding = s erection, which LJC subcontracted to Skyline
Scaffold. (Tr. 297, 379). This item is affirmed.

CO Steinke
testified this item was a serious violation due to the fall distance involved.
He rated the condition as having high gravity and lesser probability. (Tr.
183). I agree with the CO = s
classification of this item, and Item 6 is affirmed as a serious violation. I
also agree with the proposed penalty for this item and find it appropriate.
(Tr. 184). A penalty of $1,500.00 is assessed.

Citation
1, Item 7

Item 7
alleges a violation of 29 C.F.R. '
1926.451(h)(1), which states that:

In addition to wearing hardhats each employee on a
scaffold shall be provided with additional protection from falling hand tools,
debris, and other small objects through the installation of toeboards, screens,
or guardrail systems, or though the erection of debris nets, catch platforms,
or canopy structures that contain or deflect the falling objects. When the
falling objects are too large, heavy or massive to be contained or deflected by
any of the above-listed measures, the employer shall place such potential
falling objects away from the edge of the surface from which they could fall
and shall secure those materials as necessary to prevent their falling.

This item
was issued because Mr. Roberts was exposed to being struck by metal straps
falling from the roof-top water tank as he worked on the welded frame pipe
scaffold. Mr. Roberts testified that he was beginning to perform work from the
6-foot-high scaffold he had set up next to the base of the water tank tower
when the accident occurred. He also testified that, at that same time, other
LJC employees were working on demolition of the water tank. (Tr. 24-28, 39-40). The Secretary asserts the standard applied and
that LJC was required to protect Mr. Roberts from objects falling from the
water tank, including the straps holding the tank together. The CO testified
that LJC should not have allowed Mr. Roberts to work on the scaffold in close
proximity to the water tank where dismantling work was being done without any
overhead protection because of the straps. The Secretary also asserts that Mr.
Roberts was struck by one of the straps. S. Brief, pp. 18-21. LJC disputes this
assertion, arguing that the Secretary has not shown this occurred. R. Brief,
pp. 31-32. I agree with the Secretary.

First, Mr.
Roberts testified that Mr. Williams told him, when he came to and asked what
had happened, that a strap had been cut and it swung down and hit him. (Tr.
41-42, 233, 237-38). Mr. Williams had previously been Mr. Roberts = burning partner and served as a
reference when Mr. Roberts was hired by LJC. When the accident occurred, he was
one of the employees working on dismantling the tank. (Tr. 58, 61, 71-72, 396,
447-48). As the Secretary notes, in the heat of the moment, Mr. Williams was
most likely telling Mr. Roberts the truth. Mr. Wilhelm testified that when he got to the roof and asked what had
happened, Mr. Roberts told him A he
felt a strap hit [him]. @ (Tr.
395). This response was most likely based on what Mr. Williams had said, as Mr.
Roberts agreed he did not actually know what hit him. (Tr. 63). Mr. Wilhelm
investigated the accident and prepared two handwritten reports that very same
day. One was an internal A Accident
Report, @ and the other was
a report required by the State of New York Workers = Compensation Board. Both reports stated that a
steel band from the water tower fell and struck Mr. Roberts on the neck and
shoulder. (Tr. 410-11; C-22-23). Mr. Wilhelm testified that a strap could not have struck Mr. Roberts
because he had told the employees not to cut any straps that day. (Tr. 439-40, 446-47). This testimony is unpersuasive based on his
prior testimony that he intended to have the bands cut before the wood was
taken out. (Tr. 404). The Court finds the reports to be the more reliable
evidence as to the cause of the accident. Mr. Wilhelm admitted that he tried to
insure that the information he provided on reports to government agencies and
accident reports to LJC were accurate and truthful. He also conceded that he
made no attempt to later correct either report. (Tr. 433-38).

Secondly,
Mr. Castillo testified that when Mr. Robert = s
accident was first reported to him right after it happened, he was told that a
piece of metal had knocked Mr. Robert = s
down. (Tr. 90-91). Mr. Castillo stated that he found Mr. Roberts unconscious at
the base of the water tower. He stated that Mr. Roberts would have been killed
if he had been on the other side of the water tower because he would have
fallen directly down. (Tr. 93).

A third
reason for finding that a strap hit Mr. Roberts is the photographic evidence in
the record. Both the CO and Mr. Roberts identified cut straps hanging down from
the tank, as shown in Exhibits 15-16, that were near the area where Mr. Roberts
was working. (Tr. 29, 188-90). Mr. Wilhelm testified, in addition, that on the day
before the accident two straps were left on the tank to keep it intact. Mr.
Wilhelm testified that he intended to have these two straps cut before wood was
removed from the tank. He also stated that LJC was going to remove the wood on
May 7, 2008. (Tr. 404-05, 438-39). Exhibit 13, depicting the water tank the day
after the accident, appears to show only one strap still in place, at the point
marked A A. @ (Tr. 60-61). As the Secretary
notes, no straps would have been removed after the accident, as the job was
shut down. The CO testified that when he visited the accident site on May 8,
2008, it looked to him like a tank strap had sprung around and hit Mr. Roberts.
One of the straps was thus removed the day of the accident. The Secretary
concludes that this strap was the one that struck Mr. Roberts. The CO stated
that if a strap had sprung out it could easily have whipped around and reached
Mr. Roberts. (Tr. 188-90). The Court agrees with the Secretary = s conclusion.

A fourth
reason for finding that a strap caused the accident is the testimony indicating
it could not be predicted how a cut strap would fall. Mr. Roberts testified a
strap could A fly any which
way @ when cut. (Tr. 27, 33,
35). Mr. Wilhelm testified that when a strap was cut there was a possibility
that A it would go somewhere
you don = t want it to go. @ (Tr. 403). Mr. Castillo
testified that a cut strap A would
release with an incredible amount of force. @
(Tr. 97-98). Mr. Wilhelm agreed that the straps, when being cut, were a falling
object hazard to anyone working below the water tank. (Tr. 442).

Fifth, OSHA = s Inspection Narrative prepared
by the CO, dated July 31, 2008, states at the Accident Investigation Summary
& Findings that:

Accident: LJC demolition
(Burner) employee was struck on the back of the neck by a falling object while
a team of co workers was working approx 20 feet higher nearby on the top of the
water tower structure. He was knocked from his position to the ground and
received contusions, 911 was called, he was taken to the hopsital treated and
released. He is an experienced burner employee, was wearing a hardhat, was
struck on the upper back and back of his neck, apparently (he didn = t see what hit him) by one of
the steel rods that were being cut off the water tank above him. The other crew
was cutting the rods at the time of the accident. (Photos 431, 432) show the
rods hanging from the water tank that were cut.

(Tr. 208-11, 227-28, 231-37;
Exhibits 15, H, p. H-2). I find the Inspection Narrative to be factually
correct and an accurate description of Mr. Roberts = accident.

The parties
have stipulated that LJC employees removed straps of metal from the water tank
and allowed them to fall to the ground below. The parties further stipulated
that Mr. Roberts worked at the site without overhead protection from objects
falling from above. See Exh. J-I, pp. 5-6, && 16, 19. In light of these stipulations
and the evidence set out above, the Court finds the cited standard applied,
that its terms were not met, and that Mr. Roberts was exposed to the cited
hazard.

In regard to
knowledge, LJC plainly knew the cited condition was a hazard. The day before
the accident, Mr. Wilhelm told employees to clear the area below the water
tower before the strap removal work began. Yellow caution tape was also put up
around that part of the roof to prevent any unauthorized persons from entering
that area. (Tr. 27, 32-38, 41, 403-04). No such precautions were taken the day
of the accident. Mr. Wilhelm = s testimony
that he told employees to not cut any straps on May 7, 2008 has been rejected.
(Tr. 39-41, 443-44). The discussion relating to Item 5, supra ,
establishes that LJC knew or should have known where Mr. Roberts was working on
the day of the accident. Mr. Castillo, furthermore, testified that he had told
Foreman Tudek before the accident that how LJC was doing the strap removal work
was dangerous. Mr. Castillo also testified that several days before the accident he
warned LJC employees not to work underneath the water tower because A one of the pieces of metal is
going to come flying off. @ (Tr. 99). He advised LJC employees working at the water tower to talk
to the foreman and tell him A this
is too dangerous. @ The
workers told Mr. Castillo that, if they said something to the foreman, the
foreman would send them home. (Tr. 100). Mr. Castillo testified that he told Messrs. Tudek and Richey at the
work site before Mr. Robert = s
accident that he had seen an accident before on a tank with a K-Span where long
metal pieces were burnt during demolition. (Tr. 95-97). Mr. Tudek told Mr.
Castillo to A get out of
here @ and A mind [his] own business @ after Mr. Castillo asked him
why he had cut the straps into small pieces. (Tr. 94-98). Mr. Castillo also
testified that he spoke many times with the union area agent, John, and told
him how the workers were cutting the water tank was unsafe. (Tr. 114, 133). I
find Mr. Castillo = s
testimony to be entirely credible. Mr. Tudek = s
testimony that Mr. Castillo never complained to him about safety issues relating
to the cutting of steel bands is rejected as not credible. (Tr.351-52).

Respondent
had knowledge that its employee was not protected from falling object hazards
on May 7, 2008 on the job site. Both Messrs. Wilhelm and Tudek had knowledge
that Mr. Roberts was not protected from the falling object hazards related to
the water tank demolition. Respondent either knew, or should have known, of the
condition through the exercise of reasonable diligence. Respondent did not
exercise reasonable diligence with respect to this issue.Respondent = s supervisors had actual
knowledge of the work plans and instructions that they conveyed to the
employees and the work that was to be performed by the employees on May 7,
2008. The supervisors knew that the water tank crew could be demolishing the
tank at the same time that Mr. Roberts would be working on a scaffold right
next to the tank tower. Respondent had a duty to protect Mr. Roberts from
falling object hazards resulting from that scenario. Mr. Roberts testified that
the day before the accident, when water tank demolition had already begun, Mr.
Wilhelm directed him to cut (by burning) the steel on the mechanical room
located (at Point C in Exhibit 14) adjacent to the water tank tower. (Tr. 29,
33-34). Mr. Wilhelm saw Mr. Roberts performing that work the day before the
accident. (Tr. 35). Mr. Roberts did not finish that work the day before the
accident, and so he continued it on the day of the accident. (Tr. 39). Because
the mechanical room = s steel
beams that Mr. Roberts were directed to cut included overhead beams (Tr. 25,
38-39; Exh. 16 (Point A)), Mr. Wilhelm knew or should have known that Mr.
Roberts would need to use a scaffold to reach the upper beams. Respondent = s supervisors also knew that a
steel strap could be removed from the water tank in the process of the tank
demolition on the day of the accident. As Mr. Wilhelm testified, on the day
before the accident, two steel straps were left in place on the water tank.
(Tr. 404). He also stated that he intended to have the remaining steel straps
cut before all of the wood was removed from the tank. Id . Mr. Tudek
testified that on the day of the accident he did not tell any employees not to
cut the straps. Based on their knowledge of the work plans and activities, Respondent = s supervisors had actual
knowledge of the violative condition. Alternatively, the supervisors clearly
had at least constructive knowledge of the condition through LJC = s failure to exercise reasonable
diligence in that the condition was in plain view and Mr. Roberts was on his
scaffold next to the water tank tower, without any overhead protection, while
other employees were demolishing the water tank. 36 See Kokosing, supra, at 1871. Respondent failed to adequately
supervise its employees and enforce safety rules on May 7, 2008 at the work
site. At the time of the accident, LJC = s
supervisors were not present on the roof to exercise oversight when Mr. Roberts
was working below the water tank while the tank was being demolished. (Tr. 349,
367, 394). Respondent = s
supervisors did not take steps or give instructions on the day of the accident
to prevent employees from working in the area below the water tank while the
tank was being demolished. Mr. Wilhelm testified that there was no barricade,
caution tape, or anything else to keep employees from working in that area on
the day of the accident (Tr. 443). 37 Both Messrs. Tudek and Mr. Wilhelm testified that on that day they did
not tell Mr. Roberts or any other employees not to work in that area.
(Tr. 367, 444). Respondent = s
supervisors not only failed to provide adequate instructions and preventive
measures. They also allowed employees to work below the water tank, and
disregarded relevant employee safety concerns before the accident. Respondent = s lack of reasonable diligence
is demonstrated by the general laxity of its safety program, including lack of
discipline, instruction, and compliance. (Tr. 368-369, 452). See also discussion
set forth in Item 5, supra . The circumstances of the case show a lack of
reasonable diligence, and thus constructive knowledge, on the part of Respondent.

I find that the Secretary has
demonstrated the knowledge element.

The
CO testified that this item was classified as serious because the condition
could have caused serious injury. He also testified that this item had high
severity and greater probability, due to the number of straps and the
possibility of being struck by one, which in fact happened. (Tr. 191). I agree
with the serious classification, and I find the proposed penalty of $3,000.00
to be appropriate. (Tr. 192). Item 7 is therefore affirmed as serious and the
proposed penalty is assessed.

Citation
1, Item 8

Item 8
alleges a violation of 29 C.F.R. '
1926.454(c). That standard provides as follows:

When the employer has reason to believe that an
employee lacks the skill or understanding needed for safe work involving the
erection, use or dismantling of scaffolds, the employer shall retrain each such
employee so that the requisite proficiency is regained.

This item
was issued because LJC did not retrain its employees in safe scaffold use in
regard to falling object hazards. CO Steinke testified that part of the problem
at the site was the lack of training. He said the employees dismantling the
tank should not have cut any straps when they were aware that Mr. Roberts was
working below. Mr. Roberts, similarly, should have known not to work below the
dismantling work. The CO knew that employees were trained through their union,
but he believed they needed more training on the hazard of the straps on the
tank and how to control that hazard. He also believed LJC should have known
that employees needed retraining because the hazard was obvious and because of
Mr. Castillo = s complaints
to the foreman. (Tr. 190-95, 314-18).

Mr. Wilhelm
testified that he had seen nothing before the accident to make him think that
employees needed retraining. He noted that the employees who were dismantling
the water tank were A some
of the best guys [h]e had @
and that Gershan Williams had been doing dismantling work for 25 years. (Tr.
431-32). The accident, however, should have alerted Mr. Wilhelm to the need for
retraining. Mr. Roberts testified that he received neither retraining nor any
disciplinary action after the accident. (Tr. 43-44). He was also unaware of any
workers at the work site being disciplined by LJC for any safety issues. Mr.
Castillo, in addition, testified that he had spoken to Mr. Tudek before the
accident occurred. He told Mr. Tudek that the manner in which LJC was performing
the strap removal was dangerous. Mr. Tudek told him to A mind [his] own business. @ (Tr. 94-98). I also agree with the CO = s testimony that the hazard was
obvious. The employees doing the dismantling should have known to not cut a
strap when Mr. Roberts was working below, and Mr. Roberts should have known not
to work beneath the dismantling work. LJC thus had reason to know both before
and after the accident that employees required retraining.

Based on the
foregoing and my conclusions in Item 7 above, I find retraining was required
and that LJC violated the cited standard. I have considered Mr. Roberts = testimony that he had been
trained through his union, including in scaffold safety, had yearly renewal
training, and believed his training was adequate. I have also considered his
testimony that he believed he was a safe worker and that if he had seen someone
cutting up above he would have gotten out of the way. (Tr. 49-50, 61-64, 71).
This testimony does not refute the evidence that LJC had reason to know that
retraining was required. It is clear from the record that failing to train the
employees as required could have caused serious injury. This item is affirmed
as a serious violation. CO Steinke testified that this item had high gravity
but lesser probability and that the proposed penalty was $1,500.00. (Tr.
194-95). The proposed penalty is appropriate. It is therefore assessed.

Citation
1, Item 9a

Item 9a
alleges a violation of 29 C.F.R. '
1926.856(b), which states that A Floor
openings shall have curbs or stop-logs to prevent equipment from running over
the edge. @ This item was
issued because a Takeuchi jackhammer machine was being used to open the roof of
the auditorium building at the site without a curb or stop-log being utilized.
CO Steinke testified he was on the roof of the main building when he observed
the Takeuchi machine on the nearby roof of the auditorium. He identified
Exhibit 21 as his photograph of the machine and an opening along one edge of
that roof. The opening was about 10 feet wide and almost the full length of the
edge, which was about 60 feet. The CO noted there was no curb or stop-log to
prevent the operator, who sits in the machine, from inadvertently running the
machine into the opening. He also noted a curb could be something like a
12-inch timber that would block the machine. CO Steinke said no one was
operating the machine that day and that he was not able to see how it moved.
(Tr. 195-97, 324-25, 340-41).

Mr. Wilhelm
testified he was familiar with the Takeuchi machine and had seen it operate. He
also testified that the arm on the cab, shown in Exhibit 21, was about 8 feet
long when fully extended. The machine was hydraulic, and its hammering action
caused it to rock back and forth. To prevent that, and to keep the machine from
moving, the operator normally put down the stabilizer blade. Mr. Wilhelm noted
the process started with two to three men ripping back the roofing material.
That crew then left the roof and the machine operator would begin his work. The
operator would open up one bay, stop, and then move down the line to the next
bay. Mr. Wilhelm said the operator always stayed 8 to 10 feet from the opening
with the blade down. He also said that the machine could not move at all when
the stabilizer blade was down in place. He stated that when the machine moved,
the blade was up. (Tr. 429-31, 451).

The parties
have stipulated that LJC operated a jackhammer at the edge of the roof at the
work site. See J-1, p. 6, &

21. Mr. Castillo testified that there was no parapet wall or protection atop
    the building roof. (Tr. 127). LJC asserts the stabilizer blade was the
    equivalent of a curb or stop-log. R. Brief, p. 35. 38 he Secretary asserts the stabilizer blade did not provide the same protection
    because the operator had to engage it, unlike a curb or stop-log. She also
    asserts that the blade did not provide complete protection since it had to be
    up for the machine to move. S. Brief, pp. 26-28. The Court agrees with the
    Secretary. Mr. Wilhelm = s
    testimony shows that the operator had to engage the stabilizer blade. It also
    shows the machine could not move unless the blade was in the A up @
    position. (Tr. 429-30, 451). The blade on the Takeuchi machine is used to A stabilize the machine @ to prevent it from A rocking @ while the machine = s
    hammer is operating. (Tr. 429-430). The blade serves as a stabilizer, not a
    barrier like a curb or stop-log. 39 he blade provided no protection while the machine was in
    motion, when the risk of running over the edge may be highest. Again, even
    assuming arguendo that the blade provided partial protection against the
    hazard of running over the edge, A [p]artial
    protection is not adequate when the required method of abatement can be
    accomplished. @ Boonville
    Division of Ethan Allen, Inc ., 6 BNA OSHC 2169, 2171 (No. 76-2419, 1978). Respondent
    offered no evidence that the required method of abatement B curbs or stop-logs at the floor
    openings B could not be
    accomplished at the work site.

As the CO
testified, an operator who did not realize how close he was to an opening or
was not paying attention could run the machine into the opening. (Tr. 195-96).
The Secretary has met her burden of proving the alleged violation. This item is
affirmed.

CO Steinke
testified that this item was serious, as the operator was exposed to falling
through the 40-foot-high auditorium roof. 40 e rated the severity as high and the probability as greater because
there were four buildings, each with a large roof. (Tr. 198). I agree with the
CO = s testimony that the
violation was serious. I also agree that the proposed penalty of $3,000.00 is
appropriate. (Tr. 199). Item 9a is affirmed as a serious violation, and a
penalty of $3,000.00 is assessed.

FINDINGS
OF FACT AND CONCLUSIONS OF LAW

The
foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Federal Rule of Civil Procedure 52(a).

ORDER

Based upon
the foregoing findings of fact and conclusions of law, it is ordered that:

1. Serious
   Citation 1, Item 1a, alleging a violation of 29 C.F.R. ' 1926.150(a)(2), is affirmed, and a penalty of
   $1,500.00 is assessed.

2. Serious
   Citation 1, Item 3, alleging a violation of 29 C.F.R. ' 1926.405(a)(2)(ii)(E), is affirmed, and a penalty
   of $900.00 is assessed.

3. Serious
   Citation 1, Item 4a, alleging a violation of 29 C.F.R. ' 1926.416(e)(1), is affirmed, and a penalty of
   $1,500.00 is assessed.

4. Serious
   Citation 1, Item 4b, alleging a violation of 29 C.F.R. ' 1926.416(e)(1), is vacated.

5. Serious
   Citation 1, Item 5, alleging a violation of 29 C.F.R. ' 1926.451(b)(1), is affirmed, and a penalty of
   $3,000.00 is assessed.

6. Serious
   Citation 1, Item 6, alleging a violation of 29 C.F.R. ' 1926.451(g)(1), is affirmed, and a penalty of
   $1,500.00 is assessed.

7. Serious
   Citation 1, Item 7, alleging a violation of 29 C.F.R. ' 1926.451(h)(1), is affirmed, and a penalty of
   $3,000.00 is assessed.

8. Serious
   Citation 1, Item 8, alleging a violation of 29 C.F.R. ' 1926.454(c), is affirmed, and a penalty of
   $1,500.00 is assessed.

9. Serious
   Citation 1, Item 9a, alleging a violation of 29 CF.R. ' 1926.856(b), is affirmed, and a penalty of
   $3,000.00 is assessed.

__/s/_______

The Honorable Dennis L.
Phillips

U.S.OSHRC
JUDGE

Date:   3/25/2010

Washington, D.C.