Florida LeMark Corporation

Plain-English summary

Four people died and others were injured when part of a precast concrete parking garage under construction collapsed. OSHA cited Florida LeMark, the subcontractor responsible for grouting column bases, for leaving two load-bearing columns ungrouted while construction continued. The judge found that LeMark and the industry recognized that loading an ungrouted column could cause structural failure, and that grouting within 48 hours was a feasible, established control. LeMark had constructive knowledge because it knew when columns were erected but had no reliable tracking, inspection, or escalation system to ensure timely grouting. The serious general-duty-clause item and $6,300 penalty were affirmed.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1).
• Outcome: Serious general-duty-clause item affirmed; $6,300 penalty assessed.
• Key point: A subcontractor responsible for a critical structural step must use reasonable tracking and inspection measures to ensure the work is completed before later construction loads create a collapse hazard.

Full text (OSHRC public release)

                      United States of America
      OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                         1924 Building – Room 2R90, 100 Alabama Street SW
                                    Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant,

           v.                                                    OSHRC Docket No. 13-0821

Florida LeMark Corporation,
Respondent.

Appearances:

   Dane L. Steffenson, Esquire, U.S. Department of Labor, Office of the Solicitor, Atlanta, Georgia
           For the Secretary

   Angelo M. Filippi, Esquire, Kelley Kronenberg, P.A., Fort Lauderdale, Florida
          For the Respondent

BEFORE: Administrative Law Judge Heather A. Joys

                                   DECISION AND ORDER

   Florida LeMark Corporation (LeMark) is a construction company incorporated in the

State of Florida. On October 10, 2012, an Occupational Safety and Health Administration
(OSHA) Compliance Safety and Health Officer (CSHO) began an inspection of a construction
site at 3800 N.W. 115th Avenue, in Doral, Florida, on the campus of Miami Dade College at
which LeMark was a subcontractor. The inspection was initiated following an accident that
occurred that day in which a portion of a precast concrete parking garage under construction
collapsed, injuring several individuals - four fatally. As a result of the inspection, the Secretary
issued a serious citation to LeMark on April 9, 2013.
The serious citation alleges LeMark violated the general duty clause set out at § 5(a)(1)
of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651- 678 (2014) (the Act) by
failing to grout certain precast concrete columns of the structure, thereby exposing employees to
the hazards associated with a collapse of the structure. The Secretary proposed as a feasible
means of abatement that LeMark follow the grout application instructions in the erection
drawings which called for grouting as soon as possible or within 48 hours of the column being
erected. The Secretary alleged, at the time of the collapse, the columns had been in place 26
days without having been grouted. The Secretary proposed a penalty of $6,300.00 for this
alleged violation.
LeMark timely contested the citation. It contends the Secretary did not meet his burden
of proof for the alleged general duty clause violation. LeMark argues the Secretary 1 failed to
define the hazard in a manner that gave it fair notice of the condition that constituted a hazard.
LeMark further argues the Secretary failed to meet his burden to establish the cited columns had
not been grouted, thus failing to establish employees were exposed to a hazard of collapse due to
lack of grouting. LeMark goes on to contend even if the Secretary could meet his burden to
prove the cited columns had not been grouted, he failed to establish either it or the industry
recognized the condition as a hazard. Finally, LeMark contends the Secretary failed to establish
LeMark knew of the violative condition.
I held a hearing in this matter on June 3 through June 5, 2014, in Miami, Florida. The
parties filed post-hearing briefs on October 1, 2014. 2
For the reasons discussed below, the citation is affirmed and a penalty of $6,300.00 is
assessed.

                                               Jurisdiction

     At the hearing, the parties stipulated jurisdiction of this action is conferred upon the

Commission pursuant to § 10(c) of the Act (Tr. 11). The parties also stipulated at the hearing
that at all times relevant to this action, LeMark was an employer engaged in a business affecting
interstate commerce within the meaning of § 3(5) of the Act, 29 U.S.C. § 652(5) (Tr. 11). The
parties further stipulated employees performing grouting and secondary pours at the worksite
were employees of LeMark (Tr. 11).

1
In its brief, LeMark repeatedly refers to the Secretary’s arguments as those of the Commission. I interpret this as a
technical oversight and construe references of this type to the Commission as referring to the Secretary.
2
To the extent either party failed to raise any other arguments in its post-hearing brief, such arguments are deemed
abandoned.
2
 Background

   LeMark is a construction company primarily engaged in performing construction of

precast concrete structures. LeMark is incorporated in the State of Florida and is family owned
(Tr. 11). At the time of the inspection, it employed approximately 190 employees (Tr. 11). In
2012, LeMark was one of several companies constructing a six-story, precast garage structure
(the garage project) on the campus of Miami Dade College (the College) in Doral, Florida (Tr.
12). On October 10, 2012, it had at least 10 employees working at the site (Tr. 12).
The College contracted with Ajax Building Corporation (Ajax) to perform overall
construction management of the project (Tr. 39). According to Marc Reeves, director of risk
management for Ajax, Ajax had overall safety responsibility for the worksite (Tr. 39). It
performed site visits, but did not have employees performing construction work on the site (Tr.
41, 78). The contractor responsible for overall construction of the structure was MAR
Contracting, Inc. (MAR) (Tr. 61). MAR’s only onsite work, however, was construction of the
foundation (Tr. 347). The structure was to be constructed of precast concrete members,
consisting of columns, beams, double-tees and wall panels (Tr. 61, 135). The precast concrete
members were supplied by Core Select Structures Miami, Inc. (Coreslab) (Tr. 314). Erection of
the precast members was subcontracted to Solar Erectors (Solar) (Tr. 61, 135). Solar’s
supervisor on site was Robert White (Tr. 239). LeMark was responsible for work done after
these precast members were erected such as grouting, secondary or wash pours, caulking, and
installing certain railings or cables (Tr. 62, 138). LeMark’s work was performed under a
purchase order rather than a subcontract (Tr. 351). LeMark’s supervisor on site daily was David
Rosario (Tr. 12). Juan Patrone also served as a roving supervisor for LeMark and visited the site
one to two times per week (Tr. 353).

                           Construction of the Garage Project
   There was little factual dispute as to the process by which the garage project was to be

constructed. The concrete footers or foundation for the structure were poured onsite (Tr. 41,
137). All the remaining parts of the structure (with the exception of the elevator towers) were
cast off site, trucked in, and then erected onsite (Tr. 41, 149). These included the supporting
columns, as well as the double-tees which form the floors of the various parking levels.

                                             3

Supporting columns measured 24 inches by 42 inches and were placed on the footers by crane.
These columns had metal base plates cast into them during the casting process (Tr. 319, 324).
A column was secured to a footer by four anchor bolts attached to the metal base plate (Tr. 243,
319). When placed, the column also sat on a shim stack creating a gap between the base of the
column and the footer (Tr. 97, 324).
Once erected, secured, plumb, and braced, the column was released from the crane (Tr.
150, 165-70). At this point, the gap between the base plate and the footer was ready to be
grouted (Tr. 150). LeMark employees were responsible for grouting this gap (Tr. 353-54). Most
columns consisted of two sections (Tr. 265; Exh. C-4 p. 13). If a second section of the column
was erected, the joint was also subsequently grouted or “dry packed” by LeMark employees (Tr.
266). According to Richard Burke, vice president and general manager for Solar, it would not
place the second section of a column until the lower section of the column had been grouted (Tr.
174).
The upper portion of a column contained corbels at each floor level (Exh. C-4 p. 13).
Double-tees rested on the corbels to make the floor (Exh. C-4 p. 10). A floor consisted of seven
pieces (Tr. 264). According to Mr. White, it was not atypical for the crews to work 12 to 14
hour days on the project (Tr. 263). He testified in a typical day, 25 to 30 pieces could be erected
with one to two of those being columns (Tr. 263). He testified a column took, on average, 30 to
45 minutes to erect (Tr. 244). The grouting process took less than 30 minutes to complete.
Grouting is the process by which the space between the base plates of the column and the
footer is filled with grout material (Tr. 325). Grout is a stronger material than the precast
concrete of the column itself (Tr. 483; Exh. C-4 p. 14). The grout serves two purposes - to fill
the void between the column and the footer and to distribute the load placed on the column
across the entire area of the column and off the smaller area of the anchor bolts and shim stack
(Tr. 115, 139, 373; Exhs. C-4 p. 58; R-10). According to Theodore Wolfsthal, general manager
of Coreslab, all of its shim stacks had the same design and could support only the column’s
deadweight, i.e., the weight of the column itself (Tr. 341). It was largely undisputed a load
should not be placed on the column until the grout is in place because failing to do so could

                                              4

result in structural failure (Tr. 140, 168, 266, 275, 318-19, 481). 3
The erection drawings for this project contain notes that call for a column to be grouted
within 48 hours of being erected (Exh. C-5; Tr. 316). A column is considered “erected” when
the column is in position, aligned, level and braced if necessary (Tr. 317-18). In conjunction
with the erection drawings, Solar had a site-specific manual titled “Erection Procedures.” (Tr.
147; Exh. C-6). This manual required grouting be performed in a timely manner or as soon as
possible unless otherwise specified in the erection drawings (Exh. C-6 p. 3). Moreover, any
deviation from that procedure required approval by the precast engineer (Exh. C-6 p. 3).
According to Wolfsthal, who was involved in development of the notes to the erection drawings,
the rule was intended to ensure the column would not be loaded without the greater weight
bearing capacity afforded by the grout because within the normal course of construction, a
column would not be loaded within 48 hours of erection (Tr. 141, 318; Exh. C-4 p. 52). This
assessment was made by The Consulting Engineering Group, Inc. (CEG), an engineering firm
hired by Coreslab to design the precast members and prepare erection drawings (Tr. 315; Exh. C-
4 p. 50).
The parties stipulated LeMark employees grouted when directed to do so by Solar
Erectors and this was accomplished by Mr. White verbally advising LeMark employees when
and where to place the grout (Tr. 12, 591). According to Mr. White, two LeMark employees
would work along with his erection crew (Tr. 240). Neither had supervisory authority (Tr. 272).
Once erected and plumb, a column was ready to be grouted and he would direct those LeMark
employees working with his crew to grout the column (Tr. 241, 256).

                                    Reports for the Garage Project
     Several documents were completed daily by employees of the various contractors to

show progress on the job. Mr. White, or another Solar supervisor, made a daily written report

3
Marcus Rodriquez, one of the owners of LeMark, testified at the hearing. He was the only witness to testify there
would be no risk of failure if a column was loaded without having been grouted (Tr. 373, 378). He specifically
testified he had heard an engineer make a statement that a different garage could “stand for an undetermined amount
of time with no grout.” (Tr. 373). I find this testimony lacks probative value. In addition to being self-serving, it
was based on unreliable hearsay. Specifically, Mr. Rodriquez testified he heard this statement made by an unnamed
engineer at an unspecified meeting and in reference to another project. Moreover, it is in direct contradiction of the
more reliable testimony of Mr. Wolfsthal that Coreslab’s shim stacks are designed to hold only the deadweight of
the column and a building is “never” built “on shims.” (Tr. 341). As such, I give Mr. Rodriquez’s testimony on
this issue no weight.
5
(Tr. 283). These reports indicated the work performed, the number of employees on the job, and
the weather conditions (Exhs. C-12, C-13). Mr. White testified he created these throughout the
day (Tr. 290). After he completed the reports, Mr. White placed them in “the general
contractor’s box” (Tr. 290). LeMark also had its supervisors create a daily report (Tr. 362).
However, these reports only specified who was working on a particular day for LeMark and only
contained a generalized description of the work performed (Tr. 364; Exh. C-8).
The Florida building code requires projects over a specified size (either physical size or
building occupancy) must be inspected by a “special inspector” to ensure “compliance with the
permitted documents.” Florida Stat. Annot. § 553.79(5)(a). Under this provision of the building
code, the owner of the building is to select and pay the cost of the special inspector. Section
553.79(5)(b). The garage project fell within the requirements of this portion of the building code
and, consequently, the College contracted with MEP Structural Engineering and Inspection, Inc.
(MEP) to conduct the duties of the special inspector (Tr. 63-67, 190-95). The special inspector’s
inspection was initiated by a request from Ajax, either on a “request to inspect” form or orally
via phone (Tr. 197-99, 223). Most requests on the project were phoned in (Tr. 199). Mr.
Rosario also testified once grouting was completed, he would inspect it and then notify the
special inspector who would then inspect it as well (Tr. 590).
According to Otto Letzelter, director of engineering for MEP, the special inspectors
employed by MEP on the garage project completed handwritten reports of their inspections (Tr.
196). In addition, the special inspectors made notations on permits and plans and took
photographs of finished work (Tr. 196). The reports completed by the special inspectors
indicated which columns were inspected by the special inspector and the stage in the process at
which he or she had made the inspection (Tr. 204-06; Exh. C-9). MEP used code numbers for
different types of inspections – code 110 indicated inspection of erection of precast elements
only and code 101 indicated inspection of the grout (Tr. 206-07). If grout was not in place at the
time of the inspection, the report so indicated (Tr. 206; Exh. C-9).

                                 The October 10, 2012, Accident
    On October 10, 2012, a portion of the garage structure collapsed. 4 At the time of the

4
Other than the October 10, 2012, collapse, the only other incident of note in the record is one in which a crane
boom struck column B2 on October 8, 2012 (Tr. 248; Exh. C-4 p. 29). Following this incident, the job was shut
6
collapse, approximately 98 percent of the project was completed and erection was ongoing in
bays 2 and 3 (Tr. 42-43). According to uncontested testimony, approximately 15 to 20 percent
of the erected garage collapsed due to “catastrophic failure” of one of the precast members (Tr.
42-43). The record contains photographs of the area of collapse both before and after the
accident (Exhs. C-1, C-4 pp. 17-20). Four individuals working on the site died in the collapse
and several others received injuries (Tr. 57). At the time of the collapse, several LeMark
employees, including Mr. Rosario, were working in the elevator tower near the area that
collapsed (Tr. 579-82). Although the elevator tower remained intact, one of LeMark’s
employees working in that area did sustain a broken leg (Tr. 588).

                                      The OSHA Investigation
    OSHA became aware of the accident that same day via a news report (Exh. J-1 p. 9 5).

The OSHA area director for the Fort Lauderdale, Florida office assigned Francisco Garcia to be
the lead investigator for a team of three compliance safety and health officers investigating the
accident. At the time, CSHO Garcia had been a CSHO for approximately two years (Exh. J-1 p.
5).
CSHO Garcia arrived at the site at 1:00 pm on October 10, 2012 (Exh. J-1 p. 10). The
accident had occurred several hours earlier – around 11:30 am. Initially, CSHO Garcia was not
allowed inside an area controlled by emergency personnel near the collapse (Exh. J-1 p. 11).
Emergency personnel maintained control of the area for nine days until all of the victims were
recovered (Exh. J-1 p. 12). During those nine days, CSHO Garcia was able to observe rubble
and debris being removed from the area both by hand and machinery (Exh. J-1 p. 12). Once
allowed in the controlled area, CSHO Garcia took photographs (Exh. J-1 p. 34). He did not
conduct any independent engineering study nor make any analysis of the material in the area of
the collapse (Exh. J-1 p. 34, 56).
Mohammad Ayub of OSHA’s Directorate of Construction also conducted an

down for some period of time (Tr. 248). The record is not clear on how long work was ceased. However, it is
undisputed that by October 10, 2012, work had commenced (Tr. 249).
5
The parties stipulated CSHO Garcia, who was deployed to Guatemala at the time of the hearing, was unavailable to
testify in person and submitted his testimony via excerpts from his deposition testimony pursuant to Commission
Rule 2200.56(f). The deposition was marked and admitted as Exhibit J-1. Only those portions highlighted have
been admitted into the record. The hearing transcript contains rulings on the parties’ objections (Tr. 27-38).
7
investigation of the accident. Mr. Ayub is a forensic structural engineer licensed as a
professional engineer in Maryland and Virginia (Tr. 474). He was qualified as an expert in the
field of forensic structural engineering (Tr. 470). Mr. Ayub has worked with the OSHA
Directorate of Construction for 22 years, having investigated 79 structural collapses,
approximately 12 of which involved precast concrete structures (Tr. 471-72).
Mr. Ayub’s investigation consisted of a review of the construction plans, a “structural
analysis,” a review of the methods used to construct the structure, and forensic engineering (Exh.
C-4 p. 7). Mr. Ayub and his team spent several days at the site after being allowed to enter the
controlled area. He admitted much of the debris had been removed from the site prior to his
beginning his investigation (Tr. 481). Mr. Ayub’s investigation revealed at the time of the
collapse, erection of the sixth floor between columns A2 and A3 6 was ongoing (Exh. C-4 p. 6).
Photographs taken after the accident show the greatest damage was to column B3, one of the
supporting members of bays 2 and 3 (Exh. C-4 p. 36 figures 43 and 44). As photographs in Mr.
Ayub’s report show, the lower portion of column B3 appears to have disintegrated (Id.). Mr.
Ayub testified the upper portion of column B3 and its base plates and anchor bolts were still
onsite when he was given access to the area. He testified he was able to examine them at that
time (Tr. 476-78).
Mr. Ayub concluded, based on his examination, column B3 had not been grouted (Tr.
475). He testified he spent two days doing “nothing but to examine the base of column B3.” (Tr.
475). Among his methods of examination, Mr. Ayub compared columns with less damage that
had remnants of grout to the remains of column B3, including the base plate of column B3 (Tr.
487-501).
Mr. Ayub also examined the area around column A3.3 and concluded it had not been
grouted (Tr. 475). Column A3.3 was intact when Mr. Ayub examined it (Exh. C-4 p. 41).
Because of its proximity and condition to column A3, which had been grouted, Mr. Ayub was
able to conclude column A3.3 had not been grouted based on comparison of the two (Exh. C-4
pp. 41-42).
According to records provided to OSHA during its investigation, column B3 had been
erected on September 13, 2012 (Exh. C-9 p. 6). There is no corresponding record for column

6
Each column had a unique letter and number assigned to it denoting its location by bay.
8
A3.3 in the record. Mr. Ayub’s review of the special inspector’s inspection reports revealed no
inspection report for the grout at the lower portion of columns B3 or A3.3 (Exh. C-4 p. 49).
Further, no report of inspection of grout for 16 other columns were found (Id.). Mr. Letzelter of
MEP testified MEP reviewed its files and found no reports of inspections for grouting of column
B3 (Tr. 212, 236-37).
At the conclusion of the investigation, CSHO Garcia recommended LeMark be issued a
citation under the general duty clause for failure to ensure that columns B3 and A3.3 had been
grouted. His recommendation was based on the findings of Mr. Ayub.

                                               The Citation

     The citation alleges a serious violation of the general duty clause, § 5(a)(1) of the Act.

Section 5(a)(1) requires each employer to “furnish to each of his employees employment and a
place of employment which are free from recognized hazards that are causing or are likely to
cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a)(1). The citation
alleges a violation of § 5(a)(1) as follows:
The employer did not furnish employment and a place of employment which were
free from recognized hazards that were causing or likely to cause death or serious
physical harm to employees when they were exposed to struck-by and caught-in-
between hazards:
On or about 10/10/2012, at the above addressed jobsite, employees were exposed
to the hazard of being struck-by and caught-in-between collapsing pre-cast
structural members due to not performing grouting of the bases of columns B-3
and A-3.3. 7

7
At the hearing, the Secretary moved to amend the citation to allege the hazard was created by the LeMark’s failure
to “properly” grout the cited columns. The Secretary asserted this amendment did not alter his theory of the
violation. Rather, the Secretary was moving to amend the citation in an “abundance of caution” to prevent any
confusion that the existence of grout anywhere in the area of the cited columns might constitute “grouting.” The
Secretary further stipulated the amendment in no way altered its theory of the violation to allege, for example, that
the grout placed under the columns was not properly mixed or an inadequate amount had been used, conceding this
would constitute a change in theory of which LeMark would not have had proper notice. LeMark objected on the
grounds that if the amendment did not change the theory of the violation, it was unnecessary and, if not, it did not
have proper notice. I denied the Secretary’s motion on the grounds the original citation needed no clarification, i.e.,
the Court’s understanding of the original allegations was consistent with the Secretary’s “clarification,” and to allow
the amendment could serve to broaden the allegations beyond that for which the LeMark had adequate notice (Tr.
302-311).

                                                       9

As a feasible means of abatement, OSHA proposed:
Among other methods, one feasible and acceptable abatement method to correct
this hazard is to follow the grout application instructions as per Coreslab Erection
drawings E0.0 General Notes, Section 3.4 Grout and Solar Erector’s erection
procedure in the column section, item #4.

                                     DISCUSSION

                            Elements of a § 5(a)(1) Violation
   Section 5(a)(1) of the Act mandates that each employer “furnish to each of his
   employees employment and a place of employment which are free from
   recognized hazards that are causing or are likely to cause death or serious physical
   harm to his employees.” 29 U.S.C. § 654(a)(1). To establish a violation of the
   general duty clause, the Secretary must show that: (1) a condition or activity in
   the workplace presented a hazard; (2) the employer or its industry recognized the
   hazard; (3) the hazard was likely to cause death or serious physical harm; and (4)
   a feasible means existed to eliminate or materially reduce the hazard. Pegasus
   Tower, 21 BNA OSHC 1190, 1191, 2005 CCH OSHD ¶ 32,861, p. 53,077 (No.
   01-0547, 2005).

Erickson Air-Crane, Inc., 2012 WL 762001 at *2 (No. 07-0645, 2012).
In addition to the above-quoted elements of a § 5(a)(1) violation, the Secretary must also
establish the employer had either actual or constructive knowledge of the hazardous condition.
Deep South Crane & Rigging Co., 23 BNA OSHC 2099 (No. 09-0240, 2012), aff’d Deep South
Crane & Rigging Co. v. Seth D. Harris, 24 BNA OSHD 1089 (5th Cir. 2013).

           Whether an Activity or Condition at the Site Constituted a Hazard
   The Commission has held that as part of his burden of proving a § 5(a)(1) violation, the

Secretary “must define the cited hazard in a manner that gives the employer fair notice of its
obligations under the Act by specifying conditions or practices over which the employer can
reasonably be expected to exercise control.” Otis Elevator Co., 21 BNA OSHC 2205, 2206 (No.
03-1344, 2007).
The Secretary defined the hazard in this case as “struck-by and caught-in-between
collapsing pre-cast structural members due to not performing grouting of the bases of columns
B-3 and A-3.3.” Numerous witnesses testified the process of grouting involves placing grout
material between the column base and the footer in order to distribute the load of the column,

                                            10

and any additional load placed on the column, across the entire base of the column. There was
no factual dispute on this issue. Moreover, the credible evidence establishes failure to perform
this process could result in collapse of the column. It was also undisputed grouting was done
exclusively by LeMark. Thus, the description in the citation adequately informed LeMark of the
conditions over which it exercised control alleged to be dangerous.
LeMark contends the evidence is inconclusive as to the exact point at which the load
placed on the ungrouted column was sufficient to cause the collapse. Therefore, LeMark argues,
the Secretary has failed to meet his burden to define the conditions creating the hazard. I
disagree. First, it is well recognized the Act is “designed to encourage abatement of hazardous
conditions themselves,[] rather than to fix blame after the fact for a particular injury…” Chaplin
Petroleum Co. v. OSHRC, 593 F.2d 637, 642 (5th Cir, 1979). Therefore, the Secretary’s burden
is to establish the cited conditions posed a hazard to employees, regardless of whether these
conditions were the cause of or resulted in an injury. Indeed, the purpose of the Act is to prevent
the first injury. Mineral Industries & Heavy Constr. Co. V. OSHRC, 639 F.2d 1289, 1294 (5th
Cir. 1981). The preponderance of the credible evidence establishes failure to place grout under
load bearing precast concrete columns could result in collapse of the column. In fact, each
witness familiar with the process explained the very purpose of the grout is to provide the
necessary load bearing capacity.
The Commission has held the Secretary has the obligation to define the hazard in terms
of the preventable consequences of the work operation, not by the method of abatement. Otis
Elevator, 21 BNA OSHC at 2208, citing Morrison-Knudsen Co./Yonkers Contracting Co., 16
BNA OSHC 1105, 1121-22 (No. 88-572, 1993); see also Arcadian Corporation, 20 BNA
OSHC 2001, 2009 (No. 93-0628, 2004). Put another way, the Secretary must define the hazard
“in terms of the physical agents that could injure employees rather than the means of abatement.”
Arcadian Corporation, 20 BNA OSHC at 2009, quoting Chevron Oil Co., 11 BNA OSHC 1329,
1331 n. 6 (No. 10799, 1983). The adequacy of LeMark’s work practice to reduce the risk of or
prevent the occurrence of the hazard, i.e., ensuring a column is grouted within a certain
timeframe or before a specified load is added, is a separate issue from the definition of the hazard
and to be addressed in an analysis of the Secretary’s burden to establish the existence of feasible
means of abatement. Id. citing Wiley Organics, Inc., 17 BNA OSHC 1587, 1592-93 (No. 91-
11
3275, 1996) aff’d without published opinion 124 F.3d 201 (6th Cir., 1997). Here the Secretary
has defined the hazard as being struck-by or caught-in-between the collapsing structure due to
failure to grout supporting columns. I find the Secretary has met his burden.
Having defined the hazard, the Secretary must also show the existence of the hazard at
the worksite. In this case, the Secretary has the burden to show the cited columns were not
grouted. I find the preponderance of the evidence establishes that columns B3 and A3.3 were not
grouted as alleged. Based upon his investigation, Mr. Ayub concluded columns B3 and A3.3
had not been grouted (Tr. 475; Exh. C-4 p. 49). He testified he did a thorough search for any
signs of grout and found none (Tr. 475-77). Although his investigation was performed after the
cleanup of the area was largely complete, he did compare conditions under those columns that
had been grouted and the cited columns (Tr. 504; Exh. C-4 pp. 31-32, 34, 36, 40-42). The
conditions were dissimilar enough for him to conclude that columns B3 and A3.3 had not been
grouted (Tr. 504; Exh. C-4 p. 41).
I do not find it fatal to Mr. Ayub’s conclusion that OSHA did not perform laboratory
testing of the material under column B3. It is undisputed the grout is a different color than the
precast concrete, both when wet and dry (Tr. 162, 360). It is of a different material. Therefore,
Mr. Ayub would have been able to make that assessment by visual inspection (Tr. 476; Exh. C-4
p. 40). 8 Mr. Ayub has considerable expertise in forensic structural engineering, having
investigated approximately 79 structural collapses (Tr. 471). No witness with similar expertise,
or who performed a similar evaluation, testified in contradiction of Mr. Ayub. I credit Mr.
Ayub’s testimony.
Moreover, there is no other credible evidence that contradicts Mr. Ayub’s conclusions
and testimony. No witness was called to state either column had been grouted. Mr. Rosario and
Mr. White testified “as far as [he] knew,” LeMark employees grouted every column Mr. White
told them to grout (Tr. 273). Mr. Rosario admitted, however he had no list of elements that had
been grouted on any given day (Tr. 597). Nor did any daily reports indicate where grouting had
been performed. Thus, Mr. Rosario could not definitively testify columns B3 or A3.3 had been
grouted. Mr. White’s testimony was similar. LeMark did not call any of its employees onsite
8
I am not persuaded by LeMark’s argument suggesting Mr. Ayub conceded there was material depicted in Exhibit
C-2 that could have been grout. Rather, Mr. Ayub testified he had seen grout under other columns and it did not
look like the material in the photograph (Tr. 570).
12
engaged in grouting operations to testify the cited columns had been grouted. LeMark’s failure
to call such witnesses who would be under its control raises an inference their testimony would
not support its position. Capeway Roofing Systems, Inc., 20 BNA OSHC 1331 (No. 00-1968,
2003) (citations omitted); see also Regina Contr. Co., 15 BNA OSHC 1044, 1049 ((No. 87-1309,
1991).
MEP’s special inspector records show the special inspector inspected column B3 on
September 13, 2012 (Tr. 206-07; Exh. C-9, p. 6). According to this report, grout was to be
inspected at a later date (Exh. C-9, p. 6). There is no indication, either through documentary
evidence or testimony, a request had been made to inspect the grout on columns B3 or A3.3 or
that such an inspection had been performed (Tr. 212, 236-37).
The only evidence contradicting Mr. Ayub’s testimony is unreliable hearsay statements
testified to by Mr. Reeves. Mr. Reeves testified testing done by Ajax’s engineer revealed the
presence of some grout (Tr. 109-10). Mr. Reeves did not reveal the name or qualifications of
that engineer, the nature of the testing performed, nor the specifics of the engineer’s conclusion.
Moreover, he repeatedly stated the report was not finalized (Tr. 109-10, 114). I found Mr.
Reeves to be a reluctant witness, often hesitant before providing an answer. Given the unreliable
nature of the testimony and the witness’ demeanor, I do not credit Mr. Reeves’s testimony on
this matter.
Based upon the foregoing, I find the Secretary has met his burden to establish the
existence of hazard at LeMark’s worksite over which it exercised control.

                Whether the Activity or Condition was a Recognized Hazard
     A recognized hazard is a practice, procedure or condition under the employer’s control

that is known to be hazardous by the cited employer or the employer’s industry. Pelron Corp., 12
BNA OSHC 1833, 1835 (No. 82-388, 1986). I find the preponderance of the evidence
establishes the hazard of structural collapse due to failure to grout supporting columns was
recognized by LeMark and by the precast concrete construction industry.
The erection drawings for the garage project contain instructions calling for grouting to
be performed within 48 hours of the erection of a column (Exh. C-5). Mr. Wolfsthal testified
these instructions were developed 20 years ago and have been used on many similar projects (Tr.

                                             13

315-16). 9 He went on to testify the purpose of the instruction is to ensure “not too many pieces
get loaded on the column without it being grouted.” (Tr. 318). Solar’s manual for the job also
specified grouting was to be performed as soon as possible “unless otherwise noted in the
erection drawings.” (Exh. C-6 p. 3). LeMark familiarized its supervisors with these documents
(Tr. 389-90). Mr. Rodriguez admitted he was familiar with the above-referenced site specific
documents, as well as the requirement in general, testifying the requirement to grout within 48
hours was “a standard note that’s in every precast garage.” (Tr. 374, 397-81). LeMark’s
supervisor on site, Mr. Rosario also admitted he was aware of the requirement to grout within 48
hours of the column being erected, having been given the erection drawings (Tr. 592, 598).
Moreover, he admitted he knew a column could tilt if it was loaded prior to being grouted (Tr.
596). 10 Based upon this evidence, I find LeMark was aware of the hazard posed by failing to
grout a supporting column.
Every witness with experience in construction of precast concrete structures, with the
exception of Mr. Rodriguez and Mr. Rosario, testified loading a column prior to grouting could
result in structural failure (Tr. 140, 168, 266, 275, 318-19, 481). Although reluctant, Mr.
Rodriguez did concede grout provides stability to the structure (Tr. 376) and, as previously
noted, Mr. Rosario admitted he was aware a column could tilt if loaded prior to being grouted
(Tr. 596). I find most persuasive the testimony of Coreslab’s representative, Mr. Wolfsthal. He
testified such buildings are never built on shims alone, but are designed such that grouting is to
follow shortly after the column is erected (Tr. 481), suggesting to proceed otherwise would be
contrary to accepted practice in the industry.
In addition, the record contains a document published by the Precast/Prestressed Concrete
Institute (PCI), a trade group of the precast concrete construction industry, titled “Precast
Prestressed Concrete Parking Structures: Recommended Practices for Design and Construction”
(Exh. R-10). The document was identified by Mr. Burke of Solar as a reference for design of

9
Mr. Rodriquez further testified the rule is consistently violated (Tr. 374-75). I note Mr. Rodriguez was the only
witness to testify the rule is consistently violated. LeMark had ample opportunity to ask other witnesses familiar
with the industry to corroborate this statement but failed to do so. Therefore, I give it no weight.
10
I found Mr. Rosario to be a somewhat reluctant witness. However, I also note Mr. Rosario did not speak English
as a first language and was, understandably, upset by and reluctant to discuss the events he witnessed.
Notwithstanding these considerations, I found Mr. Rosario appeared rehearsed to provide the same answer
repeatedly and was evasive when answering questions he had previously answered in deposition (Tr. 593-96).
14
precast concrete garages (Tr. 182). In this document, it is noted grout is used for load
transferring and column base plates should be grouted before loading with decking (Exh. R-10
pp. 115-16). In two other locations, the document more generally refers to grouting “directly
behind erection” (Exh. R-10 p. 110) or as proceeding “as members are erected.” (Exh. R-10 p.
113). I find this industry document establishes recognition in the industry of the need for
grouting prior to the loading of supporting members.
Based upon the foregoing, I find the preponderance of the evidence establishes both
LeMark and the precast concrete construction industry recognized the hazard of collapse due to
failure to grout a supporting column prior to loading.

  Whether the Hazard Caused or was Likely to Cause Death or Serious Physical Harm
   There is no question, and the facts of this case demonstrate, the hazard cited in this case

caused death. That is, collapse of the precast members could result in employee death. This is
true regardless of whether the collapse in this instance was the direct result of the failure to
grout. The inquiry is neither whether collapse is likely nor whether this particular violation
caused this particular collapse. Safeway Inc. v. OSHRC, 382 F.3d 1189, 1195 n.5 (10th Cir. 2004)
citing Dye Construction v. OSHRC, 698 F.2d 423, 426 (10th Cir. 1983). Rather, the salient
inquiry is whether the hazard of collapse could cause death, of which there is no factual dispute.

     Whether Feasible Means Existed to Eliminate or Materially Reduce the Hazard
   Having established LeMark and the precast concrete industry recognize a hazard exists if

structural members are not grouted prior to being loaded, the issue then is whether feasible
means of abatement exists to eliminate or materially reduce the hazard. Another way to frame
the issue is: What could LeMark do to ensure columns are not loaded prior to being grouted?
The Secretary asserts LeMark could materially reduce the hazard by ensuring supporting
columns were grouted within 48 hours of the column being erected. The evidence discussed
herein establishes the industry has long recognized implementing this 48 hour rule accounts for
normal timing of the construction process and is recognized as significantly reducing the
likelihood that a supporting member would be loaded beyond the capacity of the shim stacks and
anchor bolts prior to being grouted. Therefore, compliance with this rule would materially
reduce the hazard.

                                             15

However, the Secretary has not met his burden by simply showing such a rule would
reduce the hazard. Rather, the Secretary must also demonstrate methods of communication and
enforcement of that rule exist, other than those implemented by LeMark that would materially
reduce the hazard. See Chaplin, 593 F.2d 637, 641 (5th Cir. 1979). At the outset, the Secretary
must show the methods undertaken by LeMark to address the hazard were inadequate. He must
then establish a reasonable safety expert, familiar with the industry, would include in a safety
program other methods of communication and enforcement. I find the Secretary has met his
burden.
Mr. Rodriguez testified LeMark had no rule or procedure for tracking and determining
grouting had been done (Tr. 365, 381). Rather, Mr. Rodriguez testified LeMark relied on reports
from either Solar or the special inspector to bring to LeMark’s attention any deficiencies in the
grouting (Tr. 368-69). Despite this, Mr. Rodriguez admitted he was aware of no one from
LeMark reviewing the reports of either Solar or the special inspector (Tr. 369). Nor did LeMark
train its employees what to do should an ungrouted column stand for more than 48 hours without
being grouted (Tr. 380-81). Moreover, Mr. Rodriquez admitted it is recognized in the
construction industry to inspect grout prior to loading a colunm (Tr. 362). The evidence
establishes LeMark did not undertake adequate measures to ensure these inspections were
completed and, consequently, grouting had been done. I also find the testimony establishes the
industry recognizes the need for such measures, most significantly the need to inspect areas that
were to have been or had been grouted (Tr. 274; 361-62).
I am unpersuaded by LeMark’s argument that because it required direction from the
erector to grout a supporting member, it had no obligation to ensure grouting was performed.
The issue is whether LeMark was ensuring timely grouting. Mr. Rosario admitted it was his
responsibility to see that grouting was completed in 48 hours of a column being erected (Tr.
596). He testified if he observed ungrouted column he could inform the erector (Tr. 597). He
could also remove his employees from the area until the column was grouted. Thus, the fact
LeMark’s employees could not grout a column until the erector directed them to do so did not
prevent LeMark from protecting its employees.

                                             16

Whether LeMark had Knowledge of the Violative Condition
An essential requirement for meeting the Secretary’s burden of proof is establishing the
employer had knowledge of the hazard. “As part of the Secretary’s prima facie case, [he] must
show that the employer had actual knowledge of the violation or could have discovered it with
the exercise of reasonable diligence.” Otis Elevator Co., 21 BNA OSHC at 2207. The Secretary
concedes LeMark did not have actual knowledge of the cited condition. 11 Therefore, the
Secretary must establish LeMark had constructive knowledge of the condition, i.e., it could have
discovered the condition with the exercise of reasonable diligence.
The record establishes column B3 was erected on September 13, 2012 (Exh. C-9 p. 6). It
is not clear on this record when column A3.3 was erected, but it was erected and loaded by at
least October 10, 2012. There is no evidence in the record that either was grouted prior to the
October 10, 2012 accident. Therefore, at least column B3 stood ungrouted for more than 20
days. LeMark’s employees worked in and around the columns during this time period (Tr. 265-
66). Moreover, LeMark knew which elements were being erected each day. Mr. White testified
he met with Mr. Rosario daily to discuss the day’s work and there was never an occasion on
which Mr. Rosario was unaware of columns being erected (Tr. 255-56). In addition, Mr. Rosario
was given the drawings of the project so that he would “know what elements are to be grouted.”
(Tr. 390). Finally, LeMark had three individuals onsite with supervisory authority either daily or
on a regular basis (Tr. 577-78, 586).
As discussed herein, the evidence establishes LeMark conducted no routine inspections
of the work its employees performed. Rather, LeMark relied on Solar and the special inspector
to conduct such inspections. However, a review of the inspection records of both shows
significant gaps, most notably a lack of any report of inspections of grout for columns B3 and
A3.3. Although Mr. Rosario testified LeMark inspected the work area for safety, he conceded he
had no list of what such inspection was to address (Tr. 597). “Reasonable diligence” includes
the 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.” Frank Swidzinski Co., 9 BNA

11
Mr. White testified much of the time after it was erected, column B3 was under water (Tr. 273). He did not say
the same of column A3.3. I found Mr. White less than fully credible on this issue. No other witness, most notably
Mr. Rosario, corroborated this statement and documentary evidence fails to support it (See Exhs. C-1, C-2, C-4, and
C-6).
17
OSHC 1230, 1233 (No. 76-4627, 1981). The Commission has held that “[r]easonable steps to
monitor compliance with safety requirements are part of an effective safety program.”
Southwestern Bell Tel. Co., 19 BNA OSHC 1097, 1099 (No. 98-1748, 2000 (citations omitted),
aff’d without published opinion, 277 F.3d 1374 (5th Cir. 2001). I find the evidence establishes
LeMark failed to take any such steps, and constructive knowledge is established.
LeMark’s reliance on the Eleventh Circuit’s holding in ComTran Group v. U.S. Dept. of
Labor, 722 F.3d 1304 (11th Cir. 2013) is misplaced. 12 In ComTran, the Eleventh Circuit held
knowledge by a supervisory employee of his own unsafe conduct cannot be imputed to the
employer where that conduct was not foreseeable, but the Secretary can meet her burden to
establish constructive knowledge of a supervisory employee’s own misconduct through a
showing the employers’ safety policy, training, and discipline were so lax that the misconduct
was foreseeable. The Eleventh Circuit held, however, its decision in ComTran did not apply to
the ordinary case in which constructive knowledge is established because the supervisory
employee should have known through reasonable diligence of the exposure of his subordinates to
the hazardous conditions. ComTran, 722 F.3d at 1308 n. 2.
Respondent’s reliance on ComTran ignores its inapplicability to the facts of the instant
case. At issue in ComTran were two violations of specific safety standards addressing trench
safety. The supervisory employee in ComTran not only created the hazard addressed by the
standard (dug the trench), but was also the exposed employee. Id. at 1309. The Secretary
attempted to impute knowledge to the employer through the actual knowledge of the supervisor
of his own misconduct. In the instant case, it was the two employees working alongside the
erection contractor who created the hazard by failing to grout the columns, not knowing
misconduct on Mr. Rosario’s part. I have found Respondent had constructive knowledge of the
hazard created by the non-supervisory employees because Mr. Rosario should have known
through reasonable diligence of the exposure of his subordinates to the hazardous conditions.
Thus, the case falls outside of the standard set out in ComTran as the Eleventh Circuit explicitly
stated. ComTran, 722 F.3d at 1308 n. 2.

12
LeMark also relies on Stewart Electric Co., Inc., 2013 WL 7172422 (No. 13-0850, 2013), an unreviewed ALJ
decision. Such unreviewed ALJ decisions are not binding. Moreover, I find it inapplicable for the same reasons the
Eleventh Circuit’s decision in ComTran is inapplicable.
18
 Penalty Determination

   The Secretary proposed a penalty of $6,300.00 in this case. The Commission, in

assessing an appropriate penalty, must give due consideration to the gravity of the violation and
to the size, history and good faith of the employer. See § 17(j) of the Act. The Commission is
the final arbiter of penalties. Hern Iron Works, Inc., 16 BNA OSHC 1619, 1622, (No. 88-1962,
1994), aff’d, 937 F.2d 612 (9th Cir. 1991) (table); see Valdak Corp., 17 BNA OSHC 1135, 1138
(No. 93-0239, 1995) (“The [OSH] Act places limits for penalty amounts but places no
restrictions on the Commission’s authority to raise or lower penalties within those limits.”), aff’d,
73 F.3d 1466 (8th Cir. 1996). In assessing a penalty, the Commission gives due consideration to
all of the statutory factors with the gravity of the violation being the most significant. OSH Act
§ 17(j), 29 U.S.C. § 666(j); Capform Inc., 19 BNA OSHC 1374, 1378 (No. 99-0322, 2001),
aff’d, 34 F. App’x 152 (5th Cir. 2002) (unpublished). “Gravity is a principal factor in a penalty
determination and is based on the number of employees exposed, duration of exposure,
likelihood of injury, and precautions taken against injury.” Siemens Energy and Automation,
Inc., 20 BNA OSHC 2196, 2201 (No. 00-1052, 2005).
As to the gravity of the violations, CSHO Garcia testified the violations were rated as
high in severity and high probability because of the significance of the possible injury and
because employees were exposed to the hazard of structural collapse for the 20-day period
during which column B3 was ungrouted while construction commenced (Exh. J-1 p. 113).
CSHO Garcia also testified that a reduction of 10% was given for LeMark’s size but that no
reductions or increases were given for either LeMark’s history of violations or good faith (Exh.
J-1 p. 114). I agree both the gravity of the violation and the probability of injury are high, taking
into consideration the potential for injury and the duration of the exposure. I also agree no
reduction in penalty for good faith is appropriate. The record contains scant evidence of any
safety program for its worksite or safety training provided by Respondent. Considering all of the
statutory factors, it is determined that a penalty of $6,300.00 is appropriate.

                                              19

FINDINGS OF FACT AND CONCLUSIONS OF LAW

    The foregoing decision constitutes the findings of fact and conclusions of law in

accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

                                          ORDER

    Based upon the foregoing decision, it is ORDERED that:
    Citation 1, Item 1, alleging a violation of § 5(a)(1) is affirmed, and a penalty of

$6,300.00 is assessed.
/s/
______
Date: November 3, 2014 HEATHER A. JOYS
Administrative Law Judge
Atlanta, Georgia

                                              20