Nova Group/Tutor-Saliba, A Joint Venture

Plain-English summary

Nova stacked 55,000-pound concrete pilings in a temporary storage area on uneven pavement using inadequate and inconsistent dunnage. Two pilings rolled and pinned an employee, causing serious injuries that included a partial leg amputation. The Commission rejected Nova's claims that the judge's evidentiary rulings, hearing difficulty, or alleged bias denied it a fair hearing. It found the record supported applicability, noncompliance, employee exposure, and employer knowledge. The serious violation and $3,500 penalty were affirmed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.250(a)(1)
• Outcome: The serious improper-stacking violation and $3,500 penalty were affirmed.
• Key point: General claims of unfairness do not warrant rehearing when the record shows impartial proceedings, supportable evidentiary rulings, and proof of every violation element.

Full text (OSHRC public release)

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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. 10-0264

Nova
Group/Tutor-Saliba, a Joint Venture ,

Respondent,

ON BRIEFS:

Louise McGauley Betts, Attorney; Heather R. Phillips,
Counsel for Appellate Litigation; Joseph M. Woodward, Associate Solicitor; M.
Patricia Smith, Solicitor of Labor, Washington, DC

����������� For the Complainant

Robert D. Peterson, Esq., Robert D. Peterson Law
Corporation, Rocklin, CA

For
the Respondent

DECISION

Before:
ROGERS, Chairman; ATTWOOD, Commissioner.

BY THE
COMMISSION:

Nova Group/Tutor-Saliba, a Joint Venture (�Nova�) manufactured concrete
and metal cylindrical poles, referred to as �pilings,� at a worksite located at
the Puget Sound Naval Shipyard in Bremerton, Washington. � After a piling was formed and cured in a
casting bed, Nova used a crane to move the piling to a temporary storage area
for inspection and any necessary repairs. �
On November 23, 2009, Nova�s crane operator removed a piling from the
casting bed and placed it on top of four other pilings. � Shortly thereafter, two pilings rolled,
pinning a Nova employee against the casting bed and causing serious injuries. ���

As a result of the accident, the Occupational Safety and Health
Administration (�OSHA�) conducted an inspection of the Bremerton worksite and
subsequently issued Nova a citation under the Occupational Safety and Health
Act of 1970, 29 U.S.C. �� 651-678, alleging a serious violation of 29 C.F.R. � 1926.250(a)(1),
for the improper stacking of concrete pilings. [1] � Nova timely contested the citation and, after
a hearing, Administrative Law Judge Sidney J. Goldstein issued a decision
affirming the citation and assessing the proposed penalty of $3,500. [2]

On review, Nova
does not directly challenge the judge�s factual findings or legal
conclusions. � Rather, it contends that it
did not receive a fair hearing because, it claims, the judge inappropriately
ruled on several of its objections, and either did not hear or did not
sufficiently understand the proceedings. �
As a result, Nova requests that the case be remanded for reassignment to
a new judge and set for rehearing. � The
Secretary responds that Nova�s request is untimely and meritless, and that the
judge�s decision is well supported by the record. � For the reasons that follow, we deny Nova�s
request and affirm the judge�s decision.

DISCUSSION

The concerns Nova has raised here warrant close scrutiny. � Indeed, the Commission takes allegations
regarding judicial bias or qualification seriously. � See 5
U.S.C. � 556(b) (decision makers must preside in an �impartial manner�). � Although Nova did not raise its fairness
challenge within the timeframe provided by the Commission�s rules, [3]
we have carefully reviewed the hearing record in light of Nova�s claims and
find that it has failed to identify any legal error in the judge�s
rulings. � In addition, the record reveals
no lack of impartiality, and shows that the judge understood the evidence
presented and rendered a reasoned decision. ���

I.                   
Judge�s Evidentiary Rulings and Understanding of
the Evidence

Nova challenges several of the judge�s evidentiary rulings, most of which
relate to objections it raised during the direct examination of the compliance
officer (�CO�) and Nova�s crane operator. � As to the former, Nova questions the judge�s
decision to overrule its hearsay objection to the Secretary asking the CO what
employees told him about how the accident occurred. � But as noted by the Secretary�s counsel
during the hearing, such statements are admissions by a party opponent, and
therefore are admissible. � Fed. R. Evid.
801(d)(2); MVM Contracting Corp ., 23
BNA OSHC 1164, 1166, 2010 CCH OSHD � 33,073, p. 54,655 (No. 07-1350, 2010); Regina Constr. Co ., 15 BNA OSHC 1044,
1047, 1991-93 CCH OSHD � 29,354, p. 39,467 (No. 87-1309, 1991). � There is also no merit to Nova�s argument
that this testimony was cumulative, as there was no prior testimony detailing
what the supervisor told the CO. � See Fed. R. Evid. 401, 403.

With regard to the crane operator�s testimony, Nova points to the judge�s
rejection of two relevancy objections: one relating to a question regarding
changes to workplace procedures after the accident [4]
and the other concerning a supervisor�s statements about production. � However, Nova does not describe how the
challenged testimony resulted in prejudice and we find none, particularly as
the judge did not rely on this testimony in his opinion. � See Woolston
Constr. Co., Inc ., 15 BNA OSHC 1114,
1119, 1991-93 CCH OSHD � 29,394, p. 39,569 (No. 88-1877, 1991) (finding
no error when judge did not rely on witness�s testimony), aff�d without published opinion, No. 91-1413, 1992 WL 117669 [15
BNA OSHC 1634] (D.C. Cir. May 22, 1992) . � Further, as both questions were
appropriately framed to elicit potentially relevant testimony, the judge�s
rulings do not warrant rehearing. � See 5 U.S.C. � 556(d) (�Any oral or
documentary evidence may be received . . . .�).

In another instance, Nova�s counsel moved to strike a statement by the
crane operator as not responsive to the question asked. � The
judge did not rule directly on that objection; instead, he directed the
Secretary�s counsel to �rephrase� the question, which counsel did. � Nova does not contend that the question
itself was inappropriate, that the witness�s statement was unduly prejudicial,
or that it was not relevant to the subject matter of the hearing. � Further, by not objecting to the reformulated
question, Nova waived the issue. [5] � See
Power Fuels, Inc. , 14 BNA OSHC 2209, 2214, 1991-93 CCH OSHD � 29,304, p.
39,347 (No. 85-166, 1991); MVM
Contracting Corp ., 23 BNA OSHC at 1166, 2010 CCH OSHD at p. 54,655. �

Nova also argues that the judge erred by allowing the Secretary�s counsel
to ask the crane operator leading questions. �
But all four times that Nova objected to leading questions,
the Secretary�s counsel, either on his own or at the direction of the judge,
rephrased the question to address the issue. �
Nova did not object to the rephrased questions and has failed to
identify how any of them resulted in prejudice. � See
United States v. Brown , 720 F.2d 1059, 1076 (9th Cir. 1983, amended Apr.
10, 1984) (holding court did not abuse discretion in allowing leading
questions); Lanzo Constr. Co ., 20 BNA
OSHC 1641, 1647 n.7, 2002-04 CCH OSHD � 32,732, p. 51914 n.7 (No. 97-1821,
2004) (noting Commission may assess diminished weight to responses to leading
questions), aff�d without published
opinion, No. 04-11965, 2005 WL 2649122 [21 BNA OSHC 1432] (11th Cir. Oct.
18, 2005).

Nova�s remaining evidentiary challenges relate to the judge�s handling of
some of the Secretary�s exhibits�DVDs and a large worksite illustration. � Nova objected to two DVDs depicting the
worksite on three grounds: relevancy, concerns about the Commission�s ability
to review the DVDs, and the fact that filming occurred the day after the
accident. � We find Nova�s objections
unavailing. � The DVDs have assisted in
our understanding of the CO�s testimony, and we discern no error in their
admission. � Fed. R. Evid. 401; 5 U.S.C.
� 556(d); Commission Rule 70, 29 C.F.R. � 2200.70 (admission and
handling of exhibits). � By adequately
identifying the scenes the CO referenced, along with providing copies of the
DVDs to the court reporter, the Secretary�s counsel effectively preserved the
DVDs for review. � With respect to Nova�s
concerns about the timing of the filming, according to the CO�s undisputed
testimony, the U.S. Navy�as property owner�took steps to secure the worksite so
that it remained in the same condition at the time of the filming as it was
right after the accident. ��

Lastly, Nova contends that the judge should have rejected the Secretary�s
request to admit for illustrative purposes a large, but relatively simplistic,
illustration showing how Nova�s employees stacked the pilings. � However, Nova�s counsel did not object when
the Secretary�s counsel first marked the exhibit nor did he object when the
Secretary�s counsel moved its admission. �
See Power Fuels, 14 BNA OSHC
at 2214, 1991-93 CCH OSHD at p. 39,341. �
Further, Nova fails to explain how the admission of this exhibit
affected a substantial right. � Fed. R.
Evid. 103(a); Williams Enters., 13
BNA OSHC at 1250-51, 1986-87 CCH OSHD at pp. 36,582-83. � In any event, the exhibit was relevant to the
subject matter of the hearing, and counsel presented it in accordance with
Commission procedure. � See Fed. R. Evid. 401; 5 U.S.C.
� 556(d); Commission Rule 51, 29 C.F.R. � 2200.51 (prehearing conferences
and orders); Commission Rule 70, 29 C.F.R. � 2200.70 (exhibits). [6]

Besides its evidentiary challenges, Nova also claims that the judge
failed to hear and/or understand the evidence presented at the hearing. � The record reflects that the judge
specifically acknowledged from the outset that he has difficulty hearing and
asked participants to speak loudly enough so that he could hear them. � Occasionally, he needed counsel to clarify
their objections or requests, seemingly because he had not heard what was
said. � Still, after reviewing the
transcript, we are unable to conclude, as Nova suggests, that the judge did not
sufficiently understand the testimony and evidence presented. � Moreover, Nova does not explain how the
judge�s alleged misunderstandings led to erroneous factual or legal
conclusions, or an abuse of discretion. �
For these reasons, we hold that Nova has not identified any erroneous
evidentiary rulings or provided sufficient other justification for its
rehearing request.

II.                
Judge�s Decision �

Without referring to any specific facts, Nova claims
that �the evidence that would be admissible in this case does not support the
judge�s findings of fact or conclusions of law� that it violated
� 1926.250(a)(1). [7] � Aside from this general contention, Nova
points to no evidence that was erroneously excluded and, as discussed above, we
find that the judge only relied upon admissible evidence in his opinion. �

Moreover, we find that the judge�s decision is well
supported by the evidence. � The record
shows that Nova directed employees to place the pilings in a temporary storage
area so uneven that the crane operator described it as having �waves.� � In an attempt to compensate for this uneven
surface, workers set down pieces of lumber, known as �dunnage.� � Yet Nova�s own post-accident investigation
indicates that the quantity and quality of the dunnage were insufficient to
prevent the pilings from sliding, falling, or collapsing. � See Gary
Concrete Prods., Inc. , 15 BNA OSHC 1051, 1052, 1991-93 CCH OSHD � 29,344,
pp. 39,449-50 (No. 86-1087, 1991) (affirming a serious violation for the
improper stacking of concrete piles). � At
least two of Nova�s employees working in the temporary storage area were
exposed to this violative condition. � See Fabricated Metal Prods. Inc., 18 BNA
OSHC 1072, 1073-74, 1995-97 CCH OSHD � 31,463, p. 44,505 (No. 93-1853,
1997). � And Nova had knowledge of the
violative condition because its foreman supervised the procedure on the day of
the accident, and his knowledge is imputable to Nova. � N&N
Contractors, Inc ., 18 BNA OSHC 2121, 2122-23, 2000 CCH OSHD � 32,101, p.
48,238 (No. 96-0606, 2000) (�The actual or constructive knowledge of a foreman
or supervisor can be imputed to the employer.�), aff�d, 255 F.3d 122 (4th Cir. 2001). [8] � ��

Conclusion

For the foregoing reasons,
we find that a rehearing in this case is not warranted and, therefore, deny
Nova�s request for remand and reassignment. �
Accordingly, we affirm the judge�s decision. ������

SO ORDERED.

/s/____

Thomasina
V. Rogers

Chairman

�����������������������������������������������������������

/s/____

Cynthia
L. Attwood

Dated: � May 14, 2012 ������������������������������������������������ Commissioner

Some personal identifiers
have been redacted for privacy purposes

UNITED STATES OF AMERICA ��

OCCUPATIONAL SAFETY AND HEALTH REVIEW
COMMISSION

��������������������������������������

���������������������������������������������������������

Secretary of Labor,

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����������������������������������
Complainant,

�������������

���������������������������������������������
v. ���

Nova Group /Tutor-Saliba, a Joint
Venture, ��

���������������������������������������

��������� ������������������������� Respondent.

DOCKET NO. 10-0264

�

���������� Appearances:

��������������� Matthew Vadnal, Esq., Office of
the Solicitor, U.S.
Department of Labor, Seattle ,
Washington

������������������������������� For Complainant

��������������� Robert D. Peterson, Esq., Rocklin , California

������������������������������� For Respondent

Before: � Administrative Law Judge Sidney J. Goldstein

DECISION AND ORDER

Procedural History

����������� This
proceeding is before the Occupational Safety and Health Review Commission (�the
Commission�) pursuant to Section 10(c) of the Occupational Safety and Health
Act of 1970, 29 U.S.C. �651 et seq .
(�the Act�). � The Occupational Safety and
Health Administration (�OSHA�) conducted an inspection of a Nova
Group/Tutor-Saliba, a Joint Venture, (�Respondent�) worksite on Puget Sound
Naval Shipyard in Bremerton ,
Washington on November 24,
2009. � As a result of the inspection,
OSHA issued a Citation and Notification
of Penalty to Respondent alleging one serious violation of the Act with a
proposed penalty of $3,500.00. �
Respondent timely contested the citation and an administrative trial was
conducted on July 20, 2010 in Seattle ,
Washington . � Both parties submitted a post-trial brief and
the case is ready for disposition.

����������� �

Jurisdiction

Jurisdiction of this action is conferred upon the Occupational
Safety and Health Review Commission pursuant to Section 10(c) of the Act. � The record establishes that at all times
relevant to this action, Respondent was an employer engaged in a business
affecting interstate commerce within the meaning of Section 3(5) of the Act, 29
U.S.C. �652(5). (Tr. 9). � Sl ingluff
v. OSHRC , 425 F.3d 861 (10 th Cir. 2005). � Furthermore, because California manages its own OSHA state plan,
it is important to note that Respondent was a Federal contractor engaged in
construction on a Federal military installation under Federal OSHA
jurisdiction. � (Tr. 17, 112-113,
179-180).

Applicable Law

To establish a prima facie violation of the Act, the
Secretary must prove by a preponderance of the evidence that: (1) the cited
standard applies to the condition; (2) the terms of the standard were violated;
(3) one or more of the employees had access to the cited condition; and (4) the
employer knew, or with the exercise of reasonable diligence could have known,
of the violative condition. Astra Pharmaceutical Prod ucts , 9 BNA OSHC 2126, 1981 CCH OSHD  25,578 (No. 78-6247, 1981).

����������� A violation is �serious� if there is a substantial
probability that death or serious physical harm could result from the violative
condition. � 29 U.S.C. 666(k). � Complainant need not show that there is a
substantial probability that an accident will occur; she need only show that if
an accident occurred, serious physical harm would result. � If the possible injury addressed by the
regulation is death or serious physical harm, a violation of the regulation is
serious. Phelps Dodge Corp . v. OSHRC,
725 F.2d 1237, 1240 (9th Cir. 1984); Dec-Tam
Corp ., 15 BNA OSHC 2072, 1993 CCH OSHD  29,942 (No. 88-0523, 1993).

Factual Stipulations

����������� 1. � The alleged violation
occurred on November 23, 2009;

����������� 2. � Respondent
consented to the OSHA search of Respondent�s worksite and OSHA�s investigation
following the accident;

����������� 3. � The proposed
penalty of $3,500.00 was computed in accordance with Federal policy and procedures
and was properly calculated for the alleged violation;

����������� 4. � Respondent�s
employees were working at the following site on the Puget Sound Naval Shipyard
on November 23, 2009: Z-lot, B-447
Farragut Avenue , Bremerton , Washington 98124 ;

����������� 5. � Respondent was
engaged in a business affecting interstate commerce. (Tr. 6-9).

Additional Factual Findings

����������� Four witnesses testified at the
hearing: (1) Selves Smith, a Mi-Jack Crane Operator employed by Respondent; (2)
{redacted}, a Laborer employed by Respondent; (3) Ed Delach, an OSHA Compliance
Safety and Health Officer; and (4) Gary Sager, a Casting Yard Superintendent
employed by Respondent (Tr. 13, 99, 110, 165). �
Based on their testimony and discussion of evidentiary exhibits, the
court makes the following factual findings:

����������� On November 23, 2009, Respondent was
a Federal contractor which maintained a work site on Puget Sound Naval
Shipyard, manufacturing concrete and steel piles used in the construction of a
new Navy pier. (Tr. 113, 115, 153; Ex. G-1A, G-2). � The worksite at issue was known as the
�Z-Lot� and was the location at which Respondent manufactured and stored the
piles until they were needed in the pier construction process. � (Tr. 18-21). �
The piles, sometimes called pilings, were two feet wide octagonal
concrete and metal cylindrical poles that varied in length. (Tr. 18-19,
149-150; Ex. G-2, G-3, G-4). � The average
weight of each piling was 55,000 pounds. (Tr. 19). �

����������� Respondent�s work process, as
illustrated in a drawing of Z-Lot, was for piles to first be formed and cured
in a 400 foot-long casting bed. (Tr. 64; Ex. G-1A). � Once cured, a Mi-Jack crane, which straddles
the casting bed, would pick up a pile and set it immediately to the side in a
temporary storage area. (Tr. 20, 70-72; Ex. G-1A, G-6). � At that location, Respondent�s employees
patched any visible deficiencies on each piling, like air bubbles or areas in
which concrete had crumbled off. � (Tr.
169, 171). � Once the cosmetic
deficiencies were addressed, the piles were moved a few feet away and stacked
in the more permanent storage area until needed at the location of the pier
construction. (Tr. 45-46, 138; Ex. G-1A, G-2, G-3, G-6, G-7).

����������� This process typically involved two
employees: the Mi-Jack Crane Operator and a Rigger. (Tr. 26). The Mi-Jack Crane
Operator remained in the crane, picking up and setting down piles as directed
by the Rigger. (Tr. 42, 50). � The Rigger
was responsible for hooking the crane slings and hooks to lifting eyes on each
pile, placing dunnage (wood) in the area where the pile was going to be placed,
and removing the crane slings and hooks once a pile was positioned by the
crane. � (Tr. 27, 30-31, 86; Ex.
G-6). � The dunnage placed under each pile
to secure it from movement consisted of various pieces of lumber ranging from
plywood, to 2x4�s, to 6x6�s. (Tr. 22-24, 33, 182; Ex. G-9, G-24, G-25). � �������������������������������������������������������������������������������������

����������� On the date of the accident, Selves
Smith was the Mi-Jack Crane Operator and Justin Fryar was the Rigger. (Tr.
26-27, 169-170). � A Laborer, {redacted},
was also working in the area assisting the Rigger. (Tr. 100, 102). Although
Gary Sager was the Z-Lot Superintendent, he was gone that day and Larry Tinney
was acting as the Z-Lot supervisor in his place. (Tr. 37, 76, 107). � About 2-3 weeks before the accident, Mr.
Sager had implemented a change in the way piles were to be placed in the
temporary storage area. (Tr. 37-38, 102-103, 173). The new procedure was to set
the piles on the asphalt next to the casting bed four-piles-wide, and then
start an upper row on top of those beginning with the fifth pile. (Tr. 41, 115,
172). � Respondent had double-stacked
piles on occasion in the past, but the primary method used prior to the
accident consisted of setting two piles side-by-side, moving down the casting
bed, and then setting two more piles side-by-side. (Tr. 89, 172). The procedure
was changed because the piles being poured at the time were too long to set
them all on the ground at one level next to each other; it was easier to start
stacking them vertically on top of one another. (Tr. 57). � Every pile lift required a supervisor to be
present. (Tr. 36).

����������� The asphalt area next to the casting
bed on which the piles were initially stored was not level. � (Tr. 89). �
It was described as having �waves.� (Tr. 89). � In contrast, the permanent storage area only
a few feet away had been specifically constructed by Respondent when this
project began to ensure that the piles in the permanent storage area would be
sitting on a level concrete surface. (Tr. 90, 136; Ex. G-24, G-25). � Respondent also used significantly more and
better quality dunnage to secure the piles in the permanent storage area than
in the initial temporary storage area. (Tr. 126-127, 136; Ex. G-24, G-25). � When placing the dunnage in the temporary
storage area before a pile was set down, Rigger Justin Fryar did not use any
kind of leveling tool to ensure that the 55,000 pound piles would be sitting
level once they were released by the crane. �
(Tr. 24, 104). � He just �eyeballed
it.� (Tr. 24, 104).

����������� This was the process Mr. Selves, Mr.
Fryar, and {redacted} were following, under the supervision of Larry Tinney,
when the accident happened. � Justin Fryar
and {redacted} had placed four pieces of dunnage on top of the four piles
already set down in the temporary storage area so that the second row of piles
could be placed on top of them. (Tr. 41, 49-50). � Mr. Fryar than called Mr. Selves on the radio
and signaled for him to lift and place the fifth pile on top of the four
previously placed piles. (Tr. 42, 50, 73, 79). �
After the fifth pile was set on top of the previous four, {redacted}
began walking over to work on rigging the next pile when the upper pile that
had just been set down, and one of the lower piles, began to roll. (Tr. 50, 77,
105-106). � {redacted} was pinned between
the piling and the casting bed, resulting in multiple injuries including the
partial amputation of one of {redacted} legs. (Tr. 51-52, 106).

����������� After the accident, it was clear
that some of the pieces of dunnage used to secure the piles were cracked,
broken, or partially crushed under the weight of the piles. (Tr. 129-133; Ex.
G-24, G-25). � Respondent�s post-accident
investigation concluded that the collapse of the piles resulted from three
factors: (1) the lack of formal, standardized inspection criteria for dunnage,
(2) the lack of a consistent practice of ensuring adequate dunnage beyond the
resting, bottom horizontal surface of the pile, and (3) the use of the softer
wood as leveling dunnage. � (Tr. 185; Ex.
G-26). Respondent�s Job Hazard Analysis had identified a hazard from stacked
piles falling or collapsing and recommended the use of good, quality dunnage.
(Tr. 140; Ex. G-10). � After learning
about the incident from a news report, OSHA sent CSHO Ed Delach to the worksite
to conduct an investigation the following day, which resulted in the issuance
of the alleged violation in this case. (Tr. 110-112).

Discussion

Citation 1 Item 1

����������� The
Secretary alleged in Citation 1 Item 1 that:

29 C.F.R.
�1926.250(a)(1): Materials stored in tiers were not stacked, racked, blocked,
interlocked, or otherwise secured to prevent sliding, falling, or collapsing.
(a) Casting yard Z-Lot, concrete piles approximately 90 foot in length and
weighing approximately 55,000 lbs, were stacked in a temporary storage area in
a manner which allowed them to collapse. �

����������� The
cited standard provides:

(a) General. (1) All
materials stored in tiers shall be stacked, racked, blocked, interlocked, or
otherwise secured to prevent sliding, falling or collapse.

����������� Respondent was engaged in the
construction of a new pier using the piles it created at the nearby Z-Lot. � In the process of preparing the piles for use
in the construction of the pier, Respondent�s crane operator was stacking piles
next to one another in rows of four, and then on top of one another, in a
second row of four. � It was during the
placement of a pile in the upper row that the collapse occurred. � Respondent disputes that this process
constituted storing materials in tiers. �
�Tier� is defined as �one of a series of rows placed one above another.�
Webster�s New Riverside University
Dictionary, 1984 . � Therefore, the
court finds that Respondent was storing material in tiers. � The cited standard applies to the condition.

����������� The piles being stacked in the
initial temporary storage area were secured with smaller and fewer pieces of
dunnage than the nearby permanent storage area, on an unlevel surface, where
the Rigger merely �eyeballed� whether he thought the 55,000 pound piles were
sitting level. �� The size, weight, and
shape of the piles were exactly the same at the temporary storage area vs. the
nearby permanent storage area, except for some minor cosmetic repairs. � There was no logical reason presented at
trial to explain why virtually identical piles in the unlevel temporary storage
area would require less and smaller pieces of dunnage than they did in the
permanent storage area just a few feet away. �
It is also entirely inconsistent with the requirements of the cited
regulation to have one employee �eyeball� whether multiple piles, weighing
55,000 pounds each, stacked one on top of another, were sitting level. � Respondent failed to stack the piles in a
manner that would prevent sliding, falling, or collapsing. � The terms of the cited standard were
violated.

Two of Respondent�s employees, the Rigger and the Laborer
who was injured, were exposed to this violative condition because they were
walking and working in the area of the stacked piles. (Tr. 51, 151). Fabricated
Metal Products , 18 BNA OSHC 1072, 1995-1997 CCH OSHD  31,463 (No. 93-1853, 1997). � To establish employer knowledge, an employer
does not have to possess knowledge that a condition violated the Act, just
knowledge that the condition existed. � Shaw Construction, Inc ., 6 BNA OSHC
1341, 1978 CCH OSHD  22,524 (No. 3324, 1978). �
Respondent�s supervisors specifically directed its employees to store
the piles in this manner. � The court
finds that Supervisors Gary Sager and Larry Tinney knew that these 55,000 pound
piles were being placed on an unlevel surface, stacked one on top of another
vertically, without a clear system for determining whether the dunnage being
used was adequate, or whether the piles were being stacked in a level
manner. � Such an imprecise method of
stacking multiple 55,000 pound piles on top of one another could, and did,
result in a collapse. � Mr. Sager�s and
Mr. Tinney�s knowledge of these conditions is imputed to Respondent. � A.P. O  Horo Co ., 14 BNA OSHC 2004, 1991 CCH OSHD  29,223 (No. 85-0369, 1991). � Lastly, the violation was properly
characterized as serious because stacking 55,000 pound piles in such a manner
could have, and unfortunately did, result in permanently disabling injuries to
one of Respondent�s employees. (Tr. 156). �
Whiting-Turner Contracting Co . , 13 BNA OSHC 2155, 1989 CCH OSHD  28,501 (No. 87-1238, 1989). � Accordingly, Citation 1 Item 1 will be
AFFIRMED. ��

Affirmative Defenses

����������� Respondent
did not argue any affirmative defenses in its post-hearing brief.

Penalty

����������� In
calculating the appropriate penalty for affirmed violations, Section 17(j) of
the Act requires the Commission to give  due consideration  to four criteria: (1) the size of the
employer's business, (2) the gravity of the violation, (3) the good faith of
the employer, and (4) the employer's prior history of violations. 29 U.S.C.  666(j) . �
Gravity is the primary consideration and is determined by the number of
employees exposed, the duration of the exposure, the precautions taken against
injury, and the likelihood of an actual injury. J.A. Jones Construction Co . , 15 BNA OSHC 2201, 1993 CCH OSHD  29,964 (No. 87-2059, 1993). The parties
stipulated that the proposed penalty of $3,500.00 was computed in accordance
with Federal policy and procedures and properly calculated for the alleged violation. � Accordingly, based on the penalty stipulation
and the totality of the factual circumstances discussed above, the court will
not alter the proposed penalty amount.

ORDER

����������� Based
upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that
Citation 1 Item 1 is hereby AFFIRMED and a penalty of $3,500.00 is ASSESSED.

�����������

Date: November 29, 2010 ������������������������������������������ ______

Denver , Colorado ������������������������������������������������������ SIDNEY J. GOLDSTEIN

����������������������������������������������������������������������������������� Judge,
OSHRC

[1]
OSHA has jurisdiction over this worksite as Nova was a private contractor
engaged in construction at a naval base located in a state-plan state. � See
29 C.F.R. � 1952.122(a)(7). � Nova
also consented to the inspection and has not contested OSHA�s jurisdiction over
this matter.

[2] Judge
Goldstein has since retired from the Commission and currently serves as a
senior judge on a limited appointment.

[3]
As the Secretary argues, Nova�s rehearing request is untimely. � Under Commission Rule 68(b), a party seeking to disqualify a judge is
required to submit an affidavit to the judge that details the grounds for such
an action and to do so before the judge files his or her decision. � 29 C.F.R. ������� � 2200.68(b). � Here, Nova�s claims fall within the
ambit of this rule, but it failed to comply with the rule�s explicit timing
requirements by waiting until after the judge issued his opinion to challenge
his qualification and seek reassignment. �
Id. � See RGM Constr. Co. , 17 BNA OSHC 1229, 1231, 1993-95
CCH OSHD � 30,309, p. 41,767 (No. 91-2107, 1995); see also Marcus v. Dir., Office of Workers� Comp. Programs, U.S. Dep�t
of Labor , 548 F.2d 1044, 1050-51 (D.C. Cir. 1976) (finding petitioner�s
post-decision judicial bias claim untimely, court explained that �[i]t will not
do for a claimant to suppress his misgivings while waiting anxiously to see
whether the decision goes in his favor�); Gibson
v. Fed. Trade Comm�n , 682 F.2d 554, 566 (5th Cir. 1982) (finding policies
supporting timely request to disqualify judges �equally applicable to
administrative law judges�). � Although
Nova asks for its request to be considered �consistent with the intent of the
existing rules,� as evident from our discussion of the merits of its claims infra , it has identified no �good cause�
for waiving the timing requirement. � See Commission Rule 107, 29 C.F.R. �
2200.107 (setting forth procedure for waiver of Commission rules). ���

[4] Nova does not invoke Fed. R. Evid. 407, which
limits the admission of subsequent remedial measures. � Moreover, at the time the objection was
raised, it was unclear if Nova intended to contest the feasibility of stacking
the pilings in a different manner.

[5]
Nova also points to the judge�s failure to rule on its objection to the
Secretary asking why the crane operator left his job. � But before the witness could answer and
before the judge could rule, counsel withdrew the question, rendering Nova�s
objection moot. � Fed. R. Evid. 103(a); Williams Enters., Inc. , 13 BNA OSHC
1249, 1250 n.1, 1986-87 CCH OSHD � 27,893, p. 36,582 n.1 (No. 85-355, 1987)
(discussing harmless error).

[6] Nova also notes that the Secretary did not
provide a copy of this exhibit prior to the hearing. � However, parties are generally not required
to exchange exhibits before their presentation and there was no pre‑trial
order requiring the parties to do so here. �
See Commission Rules 51, 70,
29 C.F.R. �� 2200.51, 2200.70.

[7]
Section 1926.250(a)(1) provides that �[a] ll
materials stored in tiers shall be stacked, racked, blocked, interlocked, or
otherwise secured to prevent sliding, falling or collapse.� � The Secretary alleges that Nova
violated � 1926.250(a)(1) because �concrete [pilings] approximately 90 [feet]
in length and weighing approximately 55,000 lbs. were stacked in a temporary
storage area in a manner which allowed them to collapse.�

[8]
We also find no reason to set aside the serious characterization of this
violation or the assessed penalty amount. �
Nova permitted its employees to stack 55,000-pound concrete pilings on
an uneven surface with inadequate dunnage, leading to serious injuries,
including the partial amputation of the injured employee�s leg. � 29
U.S.C. � 666(k) (defining serious violation as one in which �there is a
substantial probability that death or serious physical harm could result�). � In addition, Nova stipulated that the
proposed penalty of $3,500 was properly calculated, and does not contest its
appropriateness on review. � 29 U.S.C. �
666(j) (providing that Commission�s penalty assessment include consideration of
its �appropriateness�).