Revolution Erecting, LLC

Read the official release (oshrc.gov)

Plain-English summary

Revolution Erecting installed precast hollow-core slabs at a residential construction project in Naples, Florida. After the company directed that sixty cement bags be placed on the slabs, part of the structure collapsed and seriously injured two Revolution employees. The judge found that Revolution placed construction loads without obtaining information from a person qualified in structural design that the structure could support them. The judge also found that the precast slabs were not adequately supported because ledger angles and their connections did not conform to the engineering plans, and that Revolution failed to use reasonable diligence to identify those visible conditions. Both violations were affirmed as serious, with penalties of $4,048 each and a total penalty of $8,096.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.701(a), 1926.704(a)
• Outcome: Two serious precast-concrete violations were affirmed, with penalties of $4,048 each.
• Key point: A subcontractor exposing its own employees cannot rely only on higher-tier contractors before loading or installing precast concrete, and must obtain required structural information and inspect for visible support defects.

Full text (OSHRC public release)


Document

Some personal identifiers have been redacted for privacy purposes.

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.
21 - 0142

REVOLUTION ERECTING,
LLC.

and its successors,

Respondent.

APPEARANCES:        

Jeremy K. Fisher, Esquire

Daniel Miller, Esquire

Department of
Labor, Office of the Solicitor,
Atlanta, Georgia

For the Secretary

Angelo M. Filippi, Esquire

Kelley Kronenberg,
Fort Lauderdale, Florida

For Respondent

BEFORE:   

Dennis L. Phillips

Administrative Law Judge

D ECISION AND ORDER

I. Background

This proceeding is before the Occupational
Safety
and
Health
Review Commission (the Commission) pursuant to
§
10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C.
§ 659(c) (the Act). On
July 13, 2020, OSHA’s Compliance Safety and Health Officer (CO)
Michael Marquez 1
and
later in
September
2020, CO Reginald Benson, 2
inspected
a
residential construction
worksite
in
Naples, Florida.

(Tr.
34-35;
Joint
Preh’g
Statement, ¶ D,
1,
4). BCB Homes
(BCB)
was the general contractor at the site.

(Tr. 36-37;
Ex.
C-25). BCB hired
Morca
Construction
Services, Inc. ( Morca
Construction )
and Ott Welding. (Tr.
25- 26, 36-37; Ex. C-25).

Morca
Construction was hired to
pour and
install
concrete columns on the first floor, along with the tie beams 3
to which hollow core slabs 4
were to be attached. Morca
Construction hired American Precast
LLC (American
Precast) ( also known as Mellor & Sons , Inc. (Mellor & Sons) )
to fabricate the hollow core slabs. (Tr. 26, 36-37; Ex. C-25 ).
American Precast and Mellor & Sons fabricated the hollow core slabs offsite. (Tr. 26, 36-37). The owner of American Precast and Mellor & Sons, Victor
Mellor, hired Revolution Erecting, LLC
(Revolution or Respondent) to install the hollow core
slabs. 5 (Tr.
19-20,
36-37,
90-91, 332-34, 342; Ex. C-25).

Ott Welding
was hired to
install steel ledger angles, 6
which supported
the
hollow core slabs.

(Tr.
37-38, 108, 195). American Structural Engineering (ASE)
was
the engineer of record. (Ex. C-37).

At about
2:00 p.m. to 3:30 p.m.,
Saturday,
July 11, 2020, following the installation of the hollow core slabs
and the placement of sixty cement bags on top of the slabs, a collapse occurred
at the worksite
exposing Respondent’s employees to crushing hazards. 7

(Tr.
40-41,
340-41, 358;
Exs.
C-1
through
C-23,
R-D). The
OSHA
inspection was initiated because of the collapse and
resulting
injuries to
two
Respondent’s employees. (Tr. 34-35, 39-41). On July 13, 2020, OSHA CO
Marquez visited the worksite
and conducted an opening conference
as part
of OSHA’s inspection. (Tr.
34-35,
51-52). CO Marquez took many photographs at the worksite. (Tr.
50-52, 61;
Exs.
C-1 through
C-11,
C-17 through C-23).

CO Benson
replaced CO Marquez 8
as the OSHA
CO assigned to the inspection
and a few days before September 14,
2020,
he
visited
the worksite and a
storage facility
where pieces of material that came from the worksite were stored. At the storage site,
CO Benson
took photographs of material that came from the worksite. (Tr. 48-49, 53-54;
Exs. C-12 through C-16).

After the
completion of OSHA’s
inspection, OSHA issued a citation and notification of penalty (Citation) to
Revolution on January 11, 2021, for two serious violations. OSHA asserts that on or about July 11,
2020,
Respondent’s employees were exposed to crushing hazards due to hollow core slabs not being
adequately
supported,
cement bags
being
placed on top of the hollow core, and ledger angles not being installed per the engineer’s plans.

See
Citation. The violations alleged noncompliance with OSHA’s safety regulations
at Subpart Q -
Concrete and Masonry
Construction, 29
C.F.R. § 1926.700
et seq. OSHA
proposed a penalty of $8,096
for the two violations.

On February 9, 2021, Revolution timely contested the Citation. A two-day trial was held in Naples, Florida on October 26,
2021,
and October 27, 2021. Three witnesses testified at the
trial: CO Benson; Dr. Ewing; 9
and Marcos Lopez
(Mr. Lopez),
an
owner of Revolution. 10 (Tr.
33, 332). Post-hearing briefs were filed by both parties, as was a
reply brief
from Respondent.

The key issues
in
dispute are: a)
whether
and when a condition at the worksite presented a hazard;
b)
whether the standards applied to the cited conditions; c)
whether Respondent knew, or with the exercise of reasonable diligence, could have known of the hazardous conditions; and
d) whether
Complainant has met all the elements of its claims in connection with the alleged violations. As set forth below, the Court finds the Secretary
has proven his
prima facie
case and
both items of
the
serious Citation
are
affirmed
and a
total
penalty of
$8,096 is assessed by the Court
for the following reasons.

II. Jurisdiction

Based upon the record,
and the joint prehearing statement,
the Court finds
Respondent, at all relevant times, was engaged in a business affecting commerce and was an employer within the meaning of
sections 3(3) and 3(5) of the Act, 29 U.S.C. §§ 652(3) and (5) .
(Tr. 20-21;
J.
Pre
Hr’g
Statement, ¶ E, at 4;
Answer at
¶
I, at 1;
Resp’t
Findings of Fact and Conclusion of Law (Resp’t
Br.),
at 1). The
Court
finds
the Commission has jurisdiction over the parties and subject matter
jurisdiction
in this case
pursuant to section 10(c) of the
Act.

III.
F indings of Fact

A. Stipulated
F acts

The parties stipulated to the following fact. The location of the incident was 1 Sabre Lane Road, Naples, Florida 34102 (worksite). (Tr.
19-20 ;
J .
P re
Hr’g
S tatement , ¶ D ,
1 , at 4).

B. Respondent

Revolution is
a family-owned construction company with its principal place of business at 1302 Mimosa Avenue, Immokalee, Florida 34142. (Tr.
332 - 33 ). The company provides
construction
services,
including
the installation of h o llow core slabs. (Tr. 36-37, 90-91, 332-33). M r.
Lopez is
an
owner of Revolution. (Tr.
332-33). Revolution has
six
employees, including Mr. Lopez. (Tr. 88-89 , 102 ).

C. The Worksite
and
Accident

Mr. Lopez testified that BCB was in charge of building the home and making sure everything was okay. (Tr. 335).

BCB’s project superintendent was Patrick Nash (Mr. Nash). 11 (Tr. 37).
On July 10, 2020, Revolution began installing some of the hollow core slabs
to construct the second-floor foundation of the structure . 12 (Tr.
35- 36,
91-92 , 33 3 -35 ). Mr. Lopez
determined that some of the slabs failed to meet the prescribed length
and
Mellor & Sons was informed that some of the slabs were not the correct size.

(Tr. 46-47, 91-92).

Additional slabs, of the correct size, were delivered
to the worksite
on July 11, 2020,
and Revolution continued installing them. (Tr. 91-92) . After placing the hollow core slabs atop the ledger angles , Revolution
was to
put a concrete
cement
mix between the slabs to seal the edges for weatherproofing purposes. 13 This was called “[g]routing the cavities in between the hollow-core-slabs.” 14 (Tr. 36, 90 -91 , 205 ). Cement bags 15
were placed on top of the hollow core by Mellor & Sons /American
Precast ’s
on-site crane operator at the direction of Mr. Lopez. 16 (Tr.
40,
93,
339 -40 ; Ex.
R- A, at 3,
Answer to
Interrogatory (Int.) No. 3 ).
Immediately after the cement bags were lowered and placed on the hollow core slabs, the hollow core slabs collapsed
endangering three of Revolution’s workers and seriously injuring two. (Tr. 92).

Manolo and Mr. Lopez were starting to mix cement to fill the grout when the accident occurred. (Tr. 355). Mr. Lopez was located at “C”,
[redacted]
was located at “D”, and Manolo was located at “E” on the photograph at
Exhibit C-17 at the time of the accident. 17 (Tr. 356; Ex. C-17, at C, D, E). Both Mr. Lopez and
[redacted]
fell to the ground from atop the second floor. (Tr. 368).

Both Mr. Lopez and
[redacted]
required hospitalization and surgery
as a result of the hollow core slabs collapsing.
Mr. Lopez was hospitalized
[redacted] . (Tr.
87-88,
339-41,
352-53 , 359 ).
[redacted]
was also hospitalized
[redacted] . (Tr. 359).

D. CO Benson’s
OSHA Inspection   

In September 2020, CO Benson headed to the worksite to con tinue the OSHA
inspection. (Tr. 35-36). CO Benson testified
he was able to determine which employers were involved in the construction of the residential structure. (Tr. 35-38; Ex . C-25).

CO Benson met with
Mr.
Nan n a at a storage facility to take
photographs
of a tie beam used in the construction of the structure. (Tr. 38-39 , 125 ). Photograph s were taken specifically of the
holes in the tie beam where wedge anchors
bolts 18
had been installed. (Tr. 38-39 ;
Exs . C-12 through C-13) .
CO Benson measured
the depth of
two
hole s
in one of the collapsed tie beams at three inches and a quarter. 19 (Tr. 75-7 7 ;
Ex s . C-12
through C-13 ). CO Benson testified that
Ott Welding
was responsible for installing the ledger angles with the
wedge anchor
bolts. (Tr. 86).

He said
the wedge anchors had not been installed correctly or per the manufacturer’s design specifications. 20

(Tr. 39). CO Benson also testified that Ott Welding used “different washers that did not come with the wedge anchor bolts, which the manufacturers say that you need to use th o se specific washers because it’s designed to do what it needs to do.” (Tr.
68,
71,
96-97 , 103 ; Ex. C-6, at B). He said Ott Welding used a larger washer on the hole on the east side of the ledger angle because the washer that came with the bolt would go through the larger hole and not work.

(Tr. 71 -72 ;
Ex s . C-6, at B , C-7
through C-8 ). Dr. Ewing said that washers ensure the bearing capacity
between the nut and the vertical leg of the ledger angle. He said that if the bearing surface is not adequate, connections may prematurely fail. He said that the tolerances around the bolt holes needed to be tight “to make sure that the load transfer between the ledger angle and the tie beam can be completed successfully and safely.” 21
Dr. Ewing testified that
the se
washers installed on the ledger angle were visible prior to the hollow-core slabs being
installed. (Tr. 210-1 2 ; Ex. C-6, at B). CO Benson determined
that
the hollow core slabs fell
because
ledger angles were not correctly installed on the tie beams,
non-compliant wedge anchor
bolts
were
used
to
connect the ledger angles to the tie beams, and
excessive weight of cement bags
was placed a top
the hollow core slabs.

(Tr. 39 -40 ).

CO Benson said the cement bags were placed on top of the h o llow core slabs
by Mellor & Sons’ on-site crane at the direction of Mr. Lopez. (Tr. 40-41). CO Benson’s testimony was corroborated by Mr. Lopez. Mr .
Lopez
testified :

Q
So when the accident occurred you had finished installing the core slab in that area?

A Yes.

Q Who called for the cement to be brought up?

A
The cement comes from the same company and is sent with the hollow core. The same company sends it.

Q I understand. At some point though the cement was brought up and it's placed on top of the
hollow core; correct?

A Yes.

Q
Okay. And who was it that called for that cement to be brought up and placed on top of the hollow core?

A I did.

(Tr.
339 ).

CO Benson said as many as 20 to 60 bags 22
of cement were placed on top of the hollow core slabs. (Tr . 39-40). Mr. Lopez testified that each bag of cement weighed 50 pounds. 23 (Tr. 339-40). Dr. Ewing opined that the
second-floor
collapse involved the weight of:

1) the hollow-core slabs, 2) human beings, and 3) cement bags. (Tr. 299-300).

CO Benson said that through the course of his investigation, he determined the hollow
core slabs fell due to incorrect installation of the ledger
angles with the wedge anchors. (Tr. 39-40). CO Benson said that prior to the installation of the hollow core
slabs , there was a design change 24
that resulted in
Mr. Nash making a decision to install
wedge anchors
o n the form s
prior to the concrete pour. (Tr. 39-40, 95-97 , 114 , 131 ). Installing the wedge anchors
prior to the pour did not allow for the proper expansion as the concrete cured around the anchors. 25 (Tr. 95-97, 113-14). CO Benson testified that Dr. Ewing
determined that as the concrete cured the wedge anchors shifted causing the openings of the ledger angles to not fully align with all of the wedge anchor bolts. 26 (Tr. 94-95). CO Benson
further testified that Ott Welding had installed the ledger angles after the concrete pour, and
after there was an effort to align them properly. (Tr. 95-97). This approach necessitated the usage of bolts
that were
non-compliant with the design plans . These bolts were
not
installed per the manufacturer’s
requirements . (Tr.
38-40,
84-86,
94-95;
Ex s . C-37 -38 ).

Dr. Ewing asked for the compressive strength test for the concrete that was used in the tie beam shown at photograph C-1, at B, where the failure occurred. (Tr. 317-18; Ex. C-1, at B). Dr. Ewing testified ,
based upon
interviews with BCB’s
Mr.
Nan n a and concrete compressive strength report s 27
forwarded to him, that the
concrete in the
tie beams involved in
the collapse had not reached the appropriate level
of cure
to support loads. 28 (Tr. 173-75 , 202-05 ;
Exs . C - 39, C-41 ). The concrete compressive strength reports indicated that the pounds per square inch of strength had not been reached prior to the installation of the hollow core slabs. (Tr. 215-17 ; Ex. C-39 ). Dr. Ewing testified that when pouring concrete , sampling molds are taken for later testing. (Tr. 200-01,
215-17). Periodically throughout the concrete curing process, these samples are tested for their strength. (Tr. 215-17). Dr. Ewing stated the reason for these tests is to determine when the formwork 29
supporting the concrete can be stripped away as the concrete reached the desired structural strength. (Tr. 215). Here ,
the
engineer’s concrete drawing package required a structural strength of 75% of the minimum concrete strength of 4,000 psi before the formwork could be removed. (Tr. 203-05, 215-16; Ex. C-37). Dr. Ewing determined the concrete strength had not reached the desired strength in order for the formwork to be removed
or for the hollow core slabs to be installed . (Tr. 215-17). Dr. Ewing testified that the rate of curing for concrete is “dependent on a lot of things” and “specific to the situation.” He said factors that affect the rate at which concrete in a tie beam cures include: 1) size of the tie beam, 2) relative humidity, 3) temperature of concrete when delivered to the worksite, 4) water/cement ratio of the concrete, 5) any kind of mixtures added to the concrete, 6) how the concrete was cured ; e.g. was it wet cured or was it sprayed constantly, and 7) the environment. (Tr. 200).

CO Benson testified that
he worked with Dr. Ewing during his investigation and that
he
and
Dr. Ewing determined:

That the ledger angles were not installed properly, that there was no inspection conducted prior to the hollow-core slabs being placed. On the ledger angles, that the strength
o f the concrete was not at its percentage where it needed to be, and the bolts were installed incorrectly where they were installed before the pour, which the man u facturer states th a t they needed to be installed after the pour to properly align the ledger angles. 30

We also determined that because of the shifting of the wedge anchors after the pour, that the openings of the ledger angles did not align with all the bolts, so they had to make modifications in the
field. And due to the weight of the cement bags, which I believe weighed from
4,500- or 4,800-pounds
additional
weight on top of the hollow core, was the contributing factor of that hollow-core fail, to fall down due to the incorrect installation of the ledger angles.

(Tr. 94-95 , 98 , 182 , 184 ).

Dr. Ewing testified at trial:

Q. Dr. Ewing, did you form an opinion as to the cause of the – the cause of the accident
in this case?

A. Yes, I did. The contributing factors for this incident was the improper selection of the anchor used to connect the ledger – the ledger angle to the tie beam, improper embedment depth of that anchor, improper field cutting of the bolt holes of the ledger angle, the concrete had not reached its design strength yet, and also improper shoring of the ledger angle while concrete was still curing.

(Tr. 193 , 218-19 ).

Dr. Ewing testified that the photograph at
E xhibit C-1 shows at the bottom of a tie beam
(at “B”)
several locations of concrete pullouts
(at “G”)
where anchor bolts inserted through
a ledger anchor shown on the ground (at “J”) had once been. He also said that several shoring pol e s
(sometimes referred to as “posts”), maroon in color,
are shown at “H” ,
as well as a fallen hollow core slab at “E” . (Tr. 197-9 8 ; Ex. C-1).

Dr. Ewing
opined that there was inadequate shoring and
said that:

on the top of the shoring post [at C-1 and C-2] there’s a
horizontal piece of lumber. The horizontal piece of lumber is holding up the tie beam as it cures. And in this
case,
we have ledger angles that were attached to the side of the tie beam and none of this l u mber members extend under those ledger angles. So there’s no way – the
o nly thing that’s connecting the ledger angle to the tie beam are the mechanical anchors every t w o feet. And while the concrete is curing , those mechanical anchors aren’t capable of supporting the applied load.

So if there is proper shoring, this lumber – this lumber member at the top of the shore 31
po s t would either extend under the ledger angle or there’d be a separate shoring system to support the hollow-core slab while the tie beam cures.

(Tr. 201-0 3 ;
Exs . C-1, C-2).

Dr. Ewing testified that the presence of shoring at the worksite indicated that the concrete was not strong enough to support
its own
weight
causing the need to be careful about the load applied and how it is supported because the concrete has not obtained its design strength. (Tr. 203-04 , 225 ).

Dr. Ewing testified “[ i ]f I were to come onto a site and I see shoring posts, that’s going to be the number one question I’m asking is what is the strength of this concrete, when was it poured, and can I get these concrete tests to verify its strengths.” 32 (Tr .
230 , 320 ). He said
he
would
have
like d
“ to get some kind of confirmation from the cylinder test if th a t concrete actually has be e n cured eno u gh to proceed with construction.” (Tr. 219). He said that the presence of shoring or forming was visible
during the installation of hollow-core slabs as shown in the photograph at
E xhibit C-1. (Tr.
193,
204 ; Ex.
C- 1, at H ).

Dr. Ewing further stated if the general contractor said to him that
the
c oncrete
had adequately
cured,
he could not rely on that representation and he would, instead, ask for the concrete strength test reports , especially when you see shoring posts. (Tr. 230 -31 , 244 ).

At trial, Mr. Lopez acknowledged that formwork for “the bottom parts of the tie beams” ;
i.e.,
shoring poles,
was present at the worksite when he started installing hollow core slabs . (Tr. 337). He said that was “pretty normal” for shoring to be there.

(Tr. 337 , 345 ). He
also said he saw ledger angles that looked to be normal. (Tr. 338).

The Citation issued to
Revolution was based on two instances identified as Citation 1 ,
Item 1 and Citation 1 ,
Item 2. (Tr. 97-100 ; Citation ). CO Benson testified that Citation 1 ,
Item 1 was recommended due to Respondent’s decision to put cement bags on top of the h o llow core slabs before an inspection was done of the ledger angles
and
anchor bolts, or a copy of the
concrete
strength report was requested. 33 (Tr.
98). He testified that Citation 1 ,
Item 2 was recommended based on the incorrect installation of the ledger angles with the anchor bolts. (Tr. 99-100 ).

IV.
Secretary’s Burden of Proof

To establish a violation of an OSHA standard, the Secretary must prove:

(1) the cited standard applies; (2) the terms of the standard were violated; (3) one or more 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 Pharm. Prod s .,
No. 78-6247, 1981 WL 18810, at *4 (OSHRC, July 30, 1981),
aff’d in relevant part,
681 F.2d 69 (1st Cir. 1982). The Secretary has the burden of proving his case by a preponderance of the evidence.

V. Multi-Employer Citation Worksite Policy

A.
Respondent does not Contest the Applicability of the Multi-Employer Citation Worksite Policy

In its
Reply
Brief, Respondent states that it “does not contest the
applicability
of this [OSHA’s Multi-Employer Citation] policy.” ( Resp’t
Reply Br.
at
7). Instead,
Respondent argues that under the aforementioned policy, BCB, Ott Welding, and
Morca
Construction should
be cited. 34 ( Resp’t
Reply Br.
at
3, 7-8). Respondent asserts Ott Welding and/or BCB should be cited for the improper selection of the wedge anchors .

It asserts that
Ott Welding or
Morca
Construction were responsible for the improper embedment of the anchors . It further asserts
that
Ott
Welding 35
was responsible for the ledger angles, and BCB was responsible for monitoring the concrete strength and directing the removal of formwork and shoring. 36

( Resp’t
Reply Br.
at 3). The Court need not adjudicate here whether or not BCB, Ott Welding, or
Morca
Construction may have violated the Act. Even if any of them did, it would not excuse Respondent’s obligations to comply with the Act. The Court finds that OSHA’s Multi-Employer Citation Worksite Polic y
is applicable to
Respondent
and its
argument s
t o
the contrary
are
rejected.

B. Respondent was
both
a
Creating and
E xposing
E mployer
for Citation 1, Item 1, and an Exposing Employer for Citation 1, Item 2.

Under OSHA’s multi-employer enforcement policy, a n exposing employer who created the violation may be cited for the violation as a creating employer.

See
OSHA Instruction
Directive Number
CPL 2-0.124,
Multi-Employer Citation Policy , ¶
XB-C
(Dec. 10, 1999)
(CPL 2-0.124) . 37 CPL
2-0.124 , ¶
XC2
also
provides tha t
an
exposing
employer is citable, even if the violation was created by another employer, if it :

“(1) knew of the hazardous condition or failed to exercise reasonable diligence to discover the condition, and (2) failed to take steps consistent
with its authority to protect
its
employees.” 38
Id. ;
S. Pan Serv. Co. , 25
BNA
OSHC 1081, 1085 (No. 08-0866, 2014)
(“an employer whose own employees a r e exposed to a hazard or violative condition – an
‘ exposing employer ’
– has a statutory duty to comply with a particular standard even where it did not create or control the hazard.” )
aff’d , 685 F.
App’x
692 (11 th
Cir. 2017) (unpublished) ;
Capform , Inc. , 16 BNA OSHC 2040, 2042 (No. 91-1613, 1994) (addressing “multi-employer worksite defense” and finding exposing employer responsible for violation it did not create or control because it failed to take “reasonable alternative steps to protect its employees”). Respondent was cited as an exposing employer under
OSHA’s
Multi-Employer Citation Worksite Policy. 39

The Commission’s application of the Multi-Employer Citation Worksite Policy is well established . See
S .
Pan Serv .
v. DOL , 685 F.
App ’ x
692, 695 (11 th
Cir. 2017)
(unpublished) (multi-employer worksite doctrine found applicable in the Eleventh Circuit under the exposing-employer doctrine ) ;
Anning-Johnson Co. , 4 BNA OSHC 1193, 1198-99 (No. 3694, 1976)
(consolidated) . An employer whose own employees are exposed to a hazard, is an exposing employer, has a statutory duty to comply with a standard even if it did not create or control the hazard. See Anning-Johnson Co. , 4 BNA OSHC
at
1198-99.

As in
Southern Pan Services , Respondent ’s own employees were exposed to a hazard
here.
T hree
Revolution employees
had just finished installing hollow core slabs
and placing
sixty cement
bags on top of the slabs
when the worksite structure collapsed
on July 11, 2020 . (Tr. 40-41, 339-41, 352-53;
Exs . C-1, C-23, R-D). Mr. Lopez testified the concrete slabs had
fallen on himself and
[redacted]
severely injuring them both. (Tr. 339-41, 352-53).
Three
employees , including
[redacted] ,
were exposed to the violative condition s described in the Citation . As
an exposing employer, Revolution was required to “do what [was] ‘realistic’ under the circumstances to protect its employees from the hazard to which a particular standard is addressed,
…. ”
Anning-Johnson Co. , 4 BNA OSHC at 1199 ;
see also
Capform , Inc. , 16 BNA OSHC
at
2042 .

Respondent argues its efforts were “realistic under the circumstances .”
( Resp’t
Reply Br .
at 4-5). Photograph C-1 shows maroon colored shoring poles supporting a tie beam following the floor collapse
and on the tie beam behind where the failure occurred. Shoring poles were used to support the weight of the tie beam during its curing process. (Tr. 197-99, 320;
Exs. C-1, at H, C-2). Shoring poles are used to hold up the concrete in tie beams while the concrete is
curing and
developing strength so that a tie beam does not collapse under its own weight. CO Benson testified that shoring supports the cement structure that is being poured and being cured to keep it and maintain it from collapsing until
it is
at its full capacity where they then can remove the shoring poles. (Tr. 64-65, 199). Dr. Ewing testified that the American Concrete Institute (ACI) has several manuals that are used for designing concrete structures. (Tr.
158-59). Dr. Ewing testified that here the structural engineer specified that forms on the concrete can be removed at 75 percent of the 28-day minimum strength of 4,000
psi,
i.e.,
at 3,000 psi. 40

Dr.
Ewing stated that these were
the
required strengths
of the concrete.

(Tr. 199-201, 214-216, 295;
Exs. C-37, C-39). He said that the

“strength of the bolted connection is a function directly proportional to the concrete strength. As you lower the concrete strength, the connection loses its
capacity,
and it gets weaker. So it’s important for the concrete
to reach its designed strength so the connection connect as intended by the structural engineer.” (Tr. 214).

Dr. Ewing opined that on July 11, 2020 the concrete strength was approximately 2,600 psi at the time of the incident, so it had not reached the desired strength yet for the forms to be removed per the construction documents. (Tr. 215-16, 295-296; Ex. C-39).

He
said,
“until the concrete has been shown to reach 75 percent strength, you are not allowed to remove the formwork or the shoring supporting, that green concrete or
that
concrete that’s still curing.” (Tr. 296; Ex. C-37).

Consequently, he concluded:

the structure’s stability is compromised because the concrete is not strong enough to transmit the load from the ledger angle into the concrete beam. So you’re going to have the failure condition right there in that load path. So the load from the hollow-core slab would not be able to complete its intended load path by the structural engineer from where it’s resting down to the foundation, and you would get a failure there at the connection of the concrete.

(Tr. 216).

Dr. Ewing testified that after one bolt failed the weight previously on that bolt was thereafter carried by additional bolts resulting in an “unzipping effect” across the ledger angle causing
all the bolts
that were two feet apart along the tie beam
to fail and the ledger angle
to fall
to the ground. (Tr. 286). Dr. Ewing saw the failure pattern in
photographs of
the tie beam. He said he could not tell which bolt failed first, but he can say “the series of bolts did fail.” (Tr. 286-87, 291-94, 298;
Exs. C-1, at G, I, J, C-4, at A).

Dr. Ewing opined that the failure occurred at the ledger angle that was bolted into the tie beam that was located on the photograph at
Exhibit C-1, at “G”. 41

(Tr. 291; Ex. C-1, at G).

The photograph at
Exhibit C-2 also shows two shoring poles with lumber above them supporting a concrete structure. (Tr. 66, 199; Ex. C-2). Similarly, the photograph at
Exhibit C-3 shows shoring poles leaning in on a tie beam. (Tr. 66; Ex. C-3). The photograph at
Exhibit C-9 shows shoring poles supporting at least a
portion
of lumber under a
tie beam at A and B. (Tr. 72, 231-33; Ex. C-9, at A,
B, D). The photographs at
Exhibits C-11, C-21 through C-23 also show shoring polls. (Tr. 72-74, 83-84;
Exs. C-11, C-21 through C-23).

Mr. Lopez testified that
American Precast scheduled Respondent, along with American
Precast’s
crane operator and driver, to work at the site on Friday, July 10, 2020. (Tr. 336 , 348 ; Ex. R-A, at 3,
Answer to
Int. 3 ). After he arrived at the worksite
at about 2:00 p.m. ,
Mr. Lopez
walked around for about ten minutes because
as he said
he was
“ in charge. ”

(Tr. 349-50 , 357 ). He
noticed nothing
unusual
regarding the shoring of the tie beams o r
the ledger angles . He looked to see that all of the bolts were on the ledger angles, but
did not determine whether the correct bolts had been used
because “that’s not my job .” (Tr. 349-52).

Mr. Lopez
testified that
at about 2:00 p.m.
he asked Mr. Nash
at the worksite
“if everything was ready in order for us [Respondent] to begin
to
work
.…” Mr. Lopez said Mr. Nash said, “Yes.” (Tr. 336 , 344-45 , 36 3-6 4 ). [redacted] , Manolo, and Daniel Leal, a hollow core slab installer, were with Mr. Lopez at the worksite.

(Tr. 357-58). Mr. Lopez then installed five or six hollow-core slabs 42
and departed the worksite at about
5:00
p.m.
to 6:00 p.m. 43 (Tr. 336 , 345 , 357 ).

Respondent argues that Mr. Lopez
relied on Mr. Nash ’s brief , affirmative response
that the site was ready for him to install the hollow core. 44 ( Resp’t
Reply Br .
at 4-5 ).

However,
Mr. Lopez
never inquired as to whether the concrete had properly cured ,
had the proper compressive strength , or could handle the weight of
the large number of
cement bags
that were to be
put on
the hollow core slabs . (Tr.
345-47, 350-51 , 366 ).
Mr. Lopez also
did not ask anyone if the design plans
for
the building had been changed . (Tr. 345-46). Mr. Lopez testified that he spoke with
BCB and American Precast
contractors
at
the worksite
on July 10, 2020 , but was unaware of, and never inquired, if any of them had experience in structural design. (Tr. 342 -43 ).
Mr. Lopez never asked to speak with a structural engineer .

He said
that
it was
“ not
part of
[ his ]
job.” (Tr. 345).

He also never spoke with Ott Welding or
Morca
Construction. (Tr. 345).
He testified that in his 15 years of experience
installing hollow-core
and working with cement , 45
he had never spoken to a structural engineer regarding a project .

(Tr.

333,
351).

Mr. Lopez said that he had installed concrete hollow core slabs many times before. (Tr. 336-37).

Respondent failed to take reasonable alternative steps to protect its employees.
The Secretary has the burden of identifying the measures the employer can reasonably take to protect its employees. S. Pan Serv. Co. , 25
BNA
OSHC
at
1086 ;
S. Pan Serv. Co ., 26 BNA OSH C
1005, 1009
( No.
08-0866, 2016)
(ALJ ’s decision on remand ) . The Secretary has done so here. Respondent
never inquired whether the concrete had properly cured, had the proper compressive strength, or could handle the weight of the cement bags being
placed on top of
the hollow core slabs . (Tr. 345-47, 350-51 ). Mr. Lopez did not consult with any individual with qualification s
in structural design before
installing the hollow core slabs and
directing the cement bags to be placed atop the hollow core slabs. ( Sec’y Br.
a t 5-6). Mr. Lopez testified that
he
never reviewed any compressive strength reports
or
design
plans or
spoke with a structural engineer. 46 (Tr. 344-46, 350). Mr. Lopez had access to these reports and plans, but never reviewed them because he said it was not part of his job. (Tr. 86-87, 92-93, 344-46, 350).

Every employer has a primary responsibility for the safety of its own employees. See
Grossman Steel & Alum inum
Corp. , 4 BNA OSHC 1185, 1189
( No. 12775, 1975).
( Simply because a subcontractor cannot himself abate a hazardous condition does not mean it is powerless to protect its employees. ).
Here, Respondent failed to protect its employees and failed to take any alternative actions to protect them. Under applicable Commission precedent, Revolution was an exposing employer. It was an exposing employer
in both instances of the
Citation
due to two of its employees having been exposed to ,
and injured by ,
the violative conditions
at
the worksite. (Tr. 40-41, 339-41, 352-53).

VI.
Citation 1, Item 1

The Secretary alleges that Respondent violated 29 C.F.R. §
1926.701(a), which reads:

Construction loads . No construction loads shall be placed on a concrete structure or portion of a concrete structure unless the employer determines, based on information received from a person who is qualified in structural design, that the structure or portion of the structure is capable of supporting the loads.

The Citation alleges:

On or about 07/11/2020, at 1 Sabre Lane, in the city of Naples, FL, employees were exposed to crushing hazards when the employer did not ensure that the hollow core slabs were capable to support workers installing the slabs and a pallet of cement bags that was stored on top of the hollow core.

A. The Standard Applies

Commission precedent dictates “the focus of the Secretary’s burden of proving that the cited standard applies pertains to the cited conditions, not the particular cited employer.” Arcon , Inc.,
20 BNA OSHC 1760, 1763 (No. 99-1707,
2004) (“In order to establish a violation, the Secretary must show that the standards applied to the cited conditions.”)
aff’d , 142 F.
App’x
662 (4th
Cir. 2005) (unpublished).

The Secretary
has met his burden here. See
S .
Pan Serv .
v. DOL , 685 F.
App ’ x
at
695 ( 11th Circuit affirming the Commission’s decision to apply 29 C.F.R. §   1926.701(a) to “exposing employer.” ) ;
KS Energy Servs., Inc.,
22 BNA OSHC 1261, 1267 (No. 06-1416, 2008) (finding “the cited ... provision was applicable to the conditions in KS Energy’s traffic control zone”).

Revolution is a construction company that was providing construction
and masonry
services, including the installation of hollow core slabs, when the violation occurred. (Tr. 36-37, 90-91, 332-33). It is undisputed that Respondent was hired to perform construction
and masonry
services in installing hollow core slabs on the worksite. (Tr. 36-37, 90-91, 332-33). The construction services Revolution performed fall under the purview
of
Part 1926, Subpart
Q, Section
700
–
Concrete and Masonry Construction. The scope of the aforementioned Subpart sets forth requirements to “protect all construction employees from the hazards associated with concrete and masonry construction operations performed in workplaces.…” 29 C.F.R. §1926.700(a).

The
cited standard at 29 C.F.R. § 1926.701(a) applies to Respondent. It is undisputed that
Respondent
had been hired
to install hollow core
concrete
slabs at the worksite. (Tr. 19-20, 36-37,
39,
90-91, 333-34; J PS , ¶ D,
1,
at 4; Ex. C-25). The worksite was a residential structure consisting of mostly concrete
construction , about 8,000 square feet in size . (Tr. 35,
194 ,
333-34).

The structure was supported by “a combination of concrete masonry, regular cast-in plates concrete, and then also several types of precast planks were used as well.”

(Tr. 194). After
installing
all of
the
hollow core
slabs
on ledger angles
in the area marked with “F” on the photograph at
E xhibit C-17 , Respondent admits to directing cement bags be placed on top of the slabs . (Tr. 36,
40-41,
91-92 , 339-4 1, 348-49 , 367-68; Ex. C-17, at F ).
The
resulting
collapse
of the concrete structure seriously injured two of Respondent’s employees. (Tr.
40,
339-41,
352-53).

The Court finds that the evidence establishes that the cited standard applies to Respondent and shows that Respondent was both a creating and exposing employer
as to Citation 1, Item 1.

B.
Respondent Failed to Comply with the Standard

On July 11, 2020, Respondent installed hollow core slabs
and was about to
put a
cement
mix between the slabs at the worksite. (Tr. 36, 90-92). At the direction of Mr. Lopez,
the Court has found that 60
cement bags
weighing
about
87
pounds
were
then placed on top of the hollow
core
slabs. (Tr. 40, 339-40, 366). 47 The hollow core slabs
collapsed shortly thereafter
injuring
two of
Respondent’s employees. (Tr. 340-41,
Exs. C-1, C-23, R-D).

Respondent failed to take reasonable steps to discover the hazardous condition and protect its employees .

At no time before placing cement bags on top of the hollow core slabs and subsequent collapse did Respondent determine, from a person who is qualified in structural design, that the structure was capable of supporting loads. He never spoke with a structural engineer. Mr. Lopez
testified that he did not ask anyone if the design plans of the building had been changed or if any of the contractors had experience in structural design. Mr. Lopez admitted he never asked to speak with a structural engineer before instructing
the
cement bags be placed on the
hollow core slabs .

He
never inquired whether the concrete had properly cured, had the proper compressive strength, or could handle the weight of the cement bags. Mr. Lopez never asked anybody if it was okay to put the weight of the cement bags on top of the hollow core slabs. He never asked if the ledger angles had been properly connected to the tie beams. Respondent failed to review any of the available construction plans, engineering reports, or concrete compressive strength reports before directing cement bags be placed on the hollow core slabs. 48 (Tr. 40, 339-40, 342-47, 350-51, 366;
see also
fn
6, herein).

Respondent argues that it was relying on the other
higher tier
contactors to ensure that the concrete had been poured,
set correctly,
and was ready for hollow core slabs to be placed. 49 (Tr.
92;
Resp’t
Br. at 13-16). Respondent’s reliance
on other contractors
is misplaced. With respect to this standard,
Respondent is both a creating and
exposing employer. It
has the
primary responsibility for the safety of its own employees. See
Grossman Steel & Alum inum
Corp. , 4 BNA OSHC
at
1189 ;
Capform , Inc. , 16 BNA OSHC
at
2042 .

29 C.F.R. § 1926.701(a)
calls for no construction loads to be placed on a concrete structure until information is received from a “person who is qualified in structural design” that the structure is capable of holding such loads. 29 C.F.R. § 1926.701(a) . Here, fa iling to inquire
whether the concrete structure , including ledger angles,
was capable of supporting the
hollow core slabs and
cement bags, based on information from an individual qualified in structural design, is a
violation
of
29 C.F.R. § 1926.701(a) .

The
Court finds that
Respondent violated the standard.

C.
Respondent’s
Employees
W ere Exposed to the Hazard

The Commission’s test for hazard exposure requires the Secretary to “show that it is reasonably predictable either by operational necessity or otherwise (including inadvertence), that employees have been, are, or will be in the zone of danger.”

Delek
Ref in ., Ltd. , 25 BNA OSHC 1365, 1376 (No. 08-1386, 2015)
aff’d in relevant part , 845 F.3d 170 (5th
Cir. 2016);
Gilles & Cotting , 3 BNA OSHC 2002 (No. 504, 1976). 50

The zone of danger is the “area surrounding the violative condition that presents the
danger to employees.”

Boh
Bros. Constr . Co., LLC, 24 BNA OSHC 1067, 1085 (No. 09-1072, 2013) ( citing
RGM Constr. Co. , 17 BNA OSHC 1229, 1234 (No. 91-2107, 1995)). The zone of danger is determined by the hazard presented by the violative condition and is normally the area surrounding the violative condition that presents the danger to employees which the standard is intended to prevent. Id.,
at 1234;
Gilles
& Cotting, Inc ., 3 BNA OSHC at 2003.

Respondent’s
employees were directly exposed to a hazardous condition when
hollow core slabs were set upon ledger angles that were improperly bolted into tie beams made up of cement that was not sufficiently
cured,
and
cement bags were placed on the concrete hollow core slabs without first determining if the structure was capable of supporting the bags. (Tr. 40-41, 339-41;
Exs. C-1, C-23, R-D). The Commission
has
long held that exposure is met by an employee’s mere access to a hazardous situation.

Id. Here,
it is undisputed Respondent’s employees had access to and
installed hollow core slabs
that had cement bags placed on top. (Tr. 40-41, 339-41;
Exs. C-1,
C-3, at A,
C-23, R-D).

Further, it is undisputed that two of Respondent’s employees
were severely injured when the worksite structure collapsed. (Tr.
40,
352-53). The victims’ actual exposure to
the hazardous condition
and
resulting
injuries also establishes exposure. See S & G Packaging, Co., LLC
, 19 BNA OSHC 1503, 1506 (No. 98-1107, 2001) (injuries establish actual exposure to the violative condition). The is no real dispute that employees were exposed to the hazardous conditions. (Sec’y Br. at 8).

The Court finds that
Respondent’s employees were exposed to a hazardous condition.

D.
Respondent Had Knowledge of the Hazard

To
prove a violation the Secretary
must show that the cited
“employer either knew or, with the exercise of reasonable diligence, could have known of the presence of the violative
condition." Pride Oil Well Serv., 15 BNA OSHC
1809,
1814
(No. 87-692, 1992). An employer is required to make a reasonable effort to anticipate the particular hazards to which its employees may be exposed during the course of their scheduled work. Automatic Sprinkler Corp. of Am. , 8 BNA OSHC 1384, 1387 (No. 76-5089, 1980). When determining whether an employer has been reasonably diligent, the Commission considers “several factors, including the employer’s obligation to have adequate work rules and training programs, to adequately supervise employees, to anticipate hazards to which employees may be exposed, and to take measures to prevent the occurrence of violations.” Precision Concrete Constr. , 19 BNA OSHC 1404, 1407
(No. 99-0707, 2001).

An employer’s awareness of the violation may be shown through actual or constructive knowledge of said violation. It is not necessary to show the employer knew or understood the condition was hazardous. Phoenix Roofing, Inc. , 17 BNA OSHC
1076,
1079-1080 ( No. 90-2148, 1995).

“[An] employer’s duty is to take
reasonably
diligent measures to inspect its worksite and discover hazardous conditions; so long as the employer does so, it is not in violation simply because it has not detected or become aware of every instance of a hazard.” Ragnar Benson, Inc. ,
18 BNA OSHC 1937, 1940 (No. 97-1676
1999). An employer is not automatically aware of a hazard in plain view, especially if not observed by a supervisory employee. Cent. soya de P. R., Inc . v. Sec’y of Labor , 653 F.2d 38, 39 (1st Cir. 1981);
Cranesville
Block Co., Inc./Clark Div . , No. 08-0316, 2012 WL 2365498, at *10 (OSHRC June 12, 2012)
(consolidated). The actual or constructive knowledge of a foreman or supervisor can
generally
be imputed to the employer. Tampa Shipyards,
15 BNA OSHC 1533, 1537 (No. 86-368, 1992) (consolidated.)
(citing
A.P.
O'Horo
Co ., 14 BNA OSHC 2004, 2007 (No. 85-369, 1991);
N&N Contractors, Inc ., 18 BNA OSHC 2121, 2123 (No. 96-0606, 2000)
aff’d , 255 F.3d
122 (4th
Cir. 2001);

The Secretary contends that t he
“ evidence in this case establishes that Respondent had both actual and constructive knowledge of the hazards due to the company’s decision to not comply with the standard. ” (Sec’y Br.
a t 9). The Court agrees
that Respondent had actual knowledge of the
crushing
hazard associated with Citation
1 , Item 1. 51

One of Respondent’s owners , Mr. Lopez,
knew , and therefore Respondent knew,
it was placing construction loads; i.e. hollow core slabs and cement bags, on a concrete structure without first determining, based on information received from a qualified person in structural design,
that the structure was capable of supporting the loads.
Mr. Lopez proceeded with the installation of hollow core slabs starting on July 10, 2020, and he continued until he
w as done doing so on July 11, 2020 knowing he had not spoken with a qualified person in structural design that the concrete structure was capable of supporting the hollow core slabs and the cement bags. See Payne & Howard Glass Co. , No. 81-1466, 1983 WL 23745, at 7 ( OSHRCALJ , May 19, 1983) (imputing knowledge to
R espondent when
R espondent’s foreman was at the worksite and all of the facts giving rise to the violative condition were readily discoverable by sight if due diligence had been exercised );
K M Eng ’g
Co. ,
N o. 15699, 1976 WL 22000, at
6 ( O S HRC ALJ ,
July
13, 1976) (finding that a defective and excessively worn boom block shackle on a
sideboom
tractor could have been discovered by
R espondent in the exercise of due diligence).

When the Secretary shows that a supervisor had actual knowledge of the violation, such knowledge is generally imputed to the employer.

See G a.
Elec. Co. v. Marshall , 595
F.2d 309, 321 (5th Cir.1979);
N . Y .
State Elec. & Gas Corp. , 88 F.3d
98,
105
(2d Cir. 1996);
Access Equip. Sys., Inc. , 18 BNA OSHC
1718 ,
1726
(No.95-1449, 1999).

But see
ComTran
Grp., Inc.
v. U.S.
Dep’t
of Labor,
722 F.3d 1304, 1316 (11th
Cir. 2013)
(“employer knowledge must be established, not vicariously through the violator’s knowledge, but by either the employer’s actual knowledge, or by constructive knowledge based on the fact that the employer could, under the circumstances of the case, foresee the unsafe conduct of the supervisor.’’). As
an
owner
and the person
“ in-charge”
of Revolution working on the actual worksite, Mr. Lopez’s knowledge is imputed to Respondent. (Tr. 349-50, 357). See
Tampa Shipyards,
15 BNA OSHC
at
1537.
Mr. Lopez knew his lack of qualifications in structural
design,
and he knew he had never
spoken to a structural engineer regarding a project
in his fifteen years of experience installing hollow-core slabs and working with cement . (Tr.

333,
351).

It was readily foreseeable that he would not do so here at the worksite.

The
Court finds that the
evidence
shows
Respondent had
actual
knowledge of the violative conditions
associated with Citation
1, Item 1. The Secretary has proven all elements of his
prima facie
case.

VII. Citation 1, Item 2

The Secretary alleges that Respondent violated 29 C.F.R. § 1926.704(a), which reads:

Requirements for precast
c oncrete. 52
Precast concrete wall units, structural framing, and tilt-up wall panels shall be adequately supported to prevent overturning and to prevent collapse until permanent connections are completed.

The Citation alleges:

On or about 07/11/2020, at 1 Sabre Lane, in the city of Naples, FL, employees were exposed to crushing hazards due to the hollow core slabs not being adequately supported where the ledger angles were not installed per engineer's plans compromising the structural integrity of the beams.

A. The Standard Applies

As previously addressed,
the
hazards associated with concrete and masonry construction operations
and
the construction services Respondent performed fall under the purview of Part 1926,
Subpart Q, Section 700. The
standard cited at Citation 1, Item 2 is
29 C.F.R. § 1926.704(a), Requirements for precast concrete.

The standard requires
precast
concrete
units and structural framing, including hollow core slabs,
to be adequately supported to prevent the possibility of collapse until permanent connections have been made. It is undisputed that Respondent had been hired
to install hollow core concrete slabs at the worksite. (Tr. 19-20, 36-37, 39, 90-91, 333-34; J PS , ¶ D,
1,
at 4;
Ex s . C-25 , R-D, at 6,
⁋
A ). Precast
concrete
hollow core
slabs
had just been installed at the worksite
to construct the second-floor foundation of the structure
at the time of the incident . (Tr. 35-36, 333-34). After
Respondent installed
t he concrete
hollow core
slabs, Respondent ’s Mr. Lopez
admits to directing cement bags be placed on top of the
hollow core
slabs. (Tr. 36, 40-41, 91-92, 339-40).

The Court finds that the precast concrete hollow core slabs were not adequately supported to prevent collapse when the accident occurred
where ledger angles were not properly installed
in tie beams whose structural integrity was compromised.

The
Court finds that the
evidence establishes that the cited standard applies to Respondent.

See Dillingham Constr. Pac. Basin LTD,
19 BNA OSHC 1069, 1070-71 (No. 99-0787, 2000)
(ALJ)
(29 C.F.R. § 1926.704(a) standard applies to
prime
contractor who was responsible for the installation of precast concrete
members,
i.e. beams, that fell because they were not adequately supported
by welding the components together
to prevent collapse.).

B.
Respondent Failed to Comply with the Standard

On
July 11,
2020, Respondent finished
installing
hollow core slabs
on the concrete
structure
at the worksite. (Tr. 36, 90-92). At the direction of Mr. Lopez,
sixty
87-pound cement bags were then placed on top of the hollow core slabs. (Tr. 40, 339-40). The flooring then
collapsed
injuring
two of
Respondent’s employees
due to the
hollow core slabs not being adequately supported. (Tr. 340-41;
Exs. C-1, C-23, R-D).

CO Benson
testified that the hollow core slabs fell due
in part
to
the
incorrect installation of the ledger angles. (Tr. 39-40). CO Benson and Dr. Ewing described a litany of irregularities that occurred when the ledger angles were installed at the worksite by contractors other than Respondent that reduced the strength of the connections between ledger angles and tie beams. (Tr. 182;
see
fn
6). CO
Benson
testified
that prior to installation of the hollow core
slabs, there was a design change 53
which
resulted in the wedge anchors,
which
were to hold up the ledger angles,
being installed prior to the concrete pour. 54 (Tr. 94-98,
102,
113-14, 184;
see
fn.
6, herein). Thereafter, while attempting to align the holes of the ledger angles with the wedge anchor
bolts that were installed in the tie beams, it was discovered that the
holes
were not properly aligned.

CO Benson further
said,
“so they
[not Respondent]
made some adjustments with the holes and used different washers that did not come with the bolts.”

The washers that they
[not including Respondent]
used were wrong for the bolts.

(Tr.
68, 71, 94-98,
103,
182, 184; Ex. C-6, at B). A contractor, other than Respondent, also made unallowed enlarged slotted holes in the ledger angles. ( s ee
fn
21, herein). A contractor, other than Respondent, used
incorrectly sized and irregular
bolts to connect the ledger angles to the tie
beams. (Tr. 85-86;
see
fns
6, 19, herein).

Ott Welding used expansion anchors and not mechanical screws as required. ( see
fn
6, herein). A contractor, other than Respondent, inadequately shored the ledger angles. (Tr. 193, 201-02, 218-19;
Exs. C-1, C-2). All of these
irregularities
were visible to, and discoverable by,
Respondent
when Mr. Lopez walked around the worksite before beginning to install the hollow core slabs. (Tr. 193, 204,
210-14, 283, 302;
Exs. C-1, at H, C-6, at B, C-16, at A).

CO Benson and Dr. Ewing also testified
that the hollow core slabs fell due in part to the
concrete in the tie beams and elsewhere not
having fully
cured. The concrete had only been poured on July 7, 2020, just a few days before the accident. (Tr. 215-17). All of these
irregularities
should have given Respondent pause to not proceed to install the hollow core slabs and place cement bags on top of them
on July 11, 2020.

The Court finds that the precast concrete hollow core slabs were not adequately supported to prevent collapse where ledger angles were not properly installed in tie beams whose structural integrity was compromised.

The Commission
has consistently held an employer
whose own employees are exposed to a hazard,
can be cited
even if it did not create or control the hazard. See Anning-Johnson Co.,
4 BNA OSHC
at
1198-99 ; S .
Pan Serv .
v. DOL,
685 F.
App’x
at
695;
OSHA Instruction CPL 2-00.124,
at ⁋ XC2.

As previously discussed, Respondent failed to exercise reasonable diligence to discover the condition
of the ledger angles at the worksite
and failed to take steps within its power to protect its employees.

The Court finds that
29 C.F.R. § 1926.704(a) applies
and
Respondent violated
it.

C.
Respondent Exposed its Own Employees t o the Hazard
at Citation 1, Item 2

The
discussion and rationale previously addressed
at Section VIC,
herein,
likewise
apply
to employee exposure to a hazardous condition here
with regard to Citation 1, Item 2
and is incorporated herein. Respondent’s employees were directly exposed to hazardous conditions
where
precast concrete hollow core slabs were not adequately supported to prevent collapse where ledger angles were not properly installed
in, and connected
to,
tie beams .

(Tr.
40-41, 339-41;
Exs. C-1
to
C-23;
R-D;
see
fns. 6, 19-21, 54,
herein). The record shows that both Mr. Lopez and
[redacted]
were severely injured from the worksite collapse. (Tr.
40,
339-41, 352-53). Manolo was
also working at the worksite when the accident occurred. These three
Respondent employees were exposed to
the
hazardous conditions.

The Court finds that
Respondent exposed
three of its
employees
to the hazard and it was an Exposing Employer
when it did so at the worksite on July 10-11, 2020.

D. Respondent Had
Constructive
Knowledge of the Hazard
at Citation 1, Item 2

The Secretary contends that Respondent failed to exercise reasonable diligence to discover and to prevent violative conditions and that Respondent therefore had constructive knowledge of those conditions.
An employer will be deemed to have constructive knowledge of a violation that is in plain view.

Kokosing Constr .
Co. ,
17 BNA OSHC 1869, 1871 ( No. 92-2596, 1996 ) .

The Tenth Circuit has held that constructive employer knowledge exists when “[a] diligent foreman checking the safety of his workers should have discovered” the hazard.

Austin Bld g.
Co. v. Occupational Safety and Health Review Comm’n , 647 F.2d 1063, 1068 (10th Cir. 1981).

This consideration of “reasonable diligence” includes an examination of 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 OSHC 1230, 1233 (No. 76- 4627, 1981).

Under Commission precedent, “reasonable steps to monitor compliance with safety requirements are part of an
effective safety program.” S w.
Bell Tel .
Co. , 19 BNA OSHC 1097, 1099 (No. 98-1748, 2000),
aff’d without published opinion , 277 F.3d 1374 (5th Cir. 2001). This “reasonable diligence” cannot simply rely on the assumption that an employee will alert the employer to hazards if he observes
them .
“Reasonable diligence implies effort, attention, and action; not mere reliance upon another to make violations known.”

N & N Contractors, Inc. , 18 BNA OSHC
at
2124.

Here ,
the
floor
structure collapsed after
the weigh t of
hollow core slabs
and 60 cement bags
were set upon
ledger angles
at the direction of Mr. Lopez
that were not properly connected to
tie beams . 55

The tie beams were made
of cement that had not sufficiently cured to achieve required strength .
Respondent takes issue with Dr. Ewing’s opinion that the comprehensive strength reports for the tie beams involved in the collapse indicated that the
hollow core
slabs should not have been placed on the ledger angles. 56 ( Resp’t
Reply Br. at 2). The concrete was poured for the tie beams in the area of the collapse on July 7, 2020; only 4 days before the failure occurred. The structural notes required the concrete to cure over a period of 28 days before loads are placed upon the structures made out of concrete. The strength requirement was prescribed as
the 28-day minimum strength of 4,000 psi . Using both compressive strength reports, Dr. Ewing opined that the concrete had only reached
2, 600 psi
as of July 11, 2020. The Court finds that the
concrete in the area
where
the
ledger angle connected to the
tie beam
a ttained a strength of only 2, 6 00 psi
as of the date and time of the accident and was not sufficient ly
cured to support
the weight of
hollow core slabs and
60
cement bags. ( Exs . C-37, C-39). T he structural notes state form work supporting structural concrete (beams and slabs) may not be removed until the concrete has attained 75% of the 28-day design minimum strength.

Determination of the in place concrete strength shall be determined by laboratory testing of concrete cylinders. Here, the concrete cylinders showed that form work supporting the
tie
beams and
hollow core
slabs should not have been removed on or before July 11, 2020. The structural notes g o
on to say that “concrete shall be placed and cured to ACI standards and specifications. ” Dr. Ewing opined that the concrete had not been sufficiently cured at the time of the accident and the evidence shows that Dr. Ewing’s opinion is well supported. The Court also finds that Dr. Ewing’s opinion that the ledger angles were improperly affixed to the tie beam that collapsed is also well supported and Respondent’s argument to the contrary is rejected. 57
(See
Resp’t
Reply Br. at 2).

Respondent e xposed its employees to
numerous
violative conditions
described above in Section VIIB that it did not create or control that relate to ledger angles that were not installed per engineer’s plans. Respondent
failed
to exercise reasonable diligence to discover these
violative
conditions
and take steps within its power to protect its employees
from these violative conditions. Ignorance is sometimes bliss, but not in this case, and not in the context of the Act.

An employer attempting to re-direct its own legal obligations under the Act to protect its
own
workers onto other higher tier contractors
does so at its own risk. 58

Mr. Lopez testified that he counted the bolts in the ledger angles to ensure that they were all there before proceeding with the installation of the hollow core slabs. When doing so, with the exercise of due diligence, he should have seen that there were varying sizes and shapes of bolts and washers on the ledger angles. He should have seen that there were field cut slotted holes in the ledger angles that could cause inadequate load transfer. (Tr.
213). He should have seen that the ledger angles were not affixed flush
and properly aligned
with
the tie beams. He should have seen that anchor bolts had been sawed off
because they were sticking too far out. 59 (Tr. 283). Dr. Ewing testified that
“[y]ou
would be able to see that the bolts were not as described or required in the construction documents.” He said one would have seen threaded rods and a nut; and not a bolt as required by the construction drawings. 60 (Tr. 302-03).

During OSHA’s investigation, Mr. Lopez told CO Benson that he does not check to see if the bolts or angle clips are installed correctly because he relies on the contractor who contracted with his company. (Ex.
R-D, at 7, ⁋F).

With shore posts still in place and the concrete not sufficiently cured, Mr. Lopez
should have realized that
all of
these
identifiable
conditions weakened the effectiveness of the ledger angles to hold the hollow core slabs
and cement bags. The Secretary argues the partially
stripped formwork indicated that the concrete had not reached the proper strength. (Sec’y Br. at 10-11). Dr. Ewing testified that partially stripped formwork would indicate the concrete had not reached its design strength. He said the removal of formwork only indicated that the concrete member itself can support its own weight. He also said that the Structural Notes do not say a contractor is ready to place loads on the concrete when the formwork is removed. (Tr. 218-19, 296;
Exs. C-9, C-37). Mr. Lopez testified that he did not ask
anyone
why the formwork was still there and perceived it as normal to still be there. (Tr. 345-47).

Mr. Lopez admits he never reviewed any design plans or compressive strength reports, and only looked at blueprints of the hollow core slabs. (Tr. 344, 350). He further testified that he never asked to speak with a structural engineer because it was not his job. (Tr. 345-46). Mr. Lopez told CO Benson that it was not his responsibility to review any engineering plans. (Tr. 92). Mr. Lopez never asked to see any structural or design drawings of the concrete structure. (Tr. 344-46). Mr. Lopez did not take reasonable steps to determine if the design plans of the building had been changed. (Tr. 344-46). He testified that he did not ask anyone if the design plans had been changed because it was not his responsibility to. (Tr. 345-46).

The record reveals Respondent could have known of the presence of the violative condition s
with the exercise of reasonable diligence. Mr. Lopez spent
only
a bout ten minutes
walking around the site before commencing work.

(Tr. 350-51). H e never
asked anyone, including BCB, whether
the concrete had properly cured, had the proper compressive strength, or could handle the weight of the cement bags. (Tr. 345-47, 350-51 ; Ex. C-3, at A ).
He did not ask
if anyone on the worksite had structural design knowledge . (Tr.
342-43,
345-46). Following through with any of the aforementioned actions would have been reasonable under the circumstances.

When the Secretary shows that a supervisor had constructive knowledge of the violation, such knowledge is generally imputed to the employer. See Ga. Elec. Co. v. Marshall , 595 F.2d at 321;
N.Y. State Elec. & Gas Corp. , 88 F.3d at 105;
Access Equip. Sys., Inc. , 18 BNA OSHC
1726.
As
an
owner of Revolution working on the actual worksite, Mr. Lopez’s
constructive
knowledge is imputed to Respondent. See
Tampa Shipyards,
15 BNA OSHC
at
1537.

The evidence
shows
that the structural integrity of the tie beams was compromised because the ledger angles were not installed per the engineer’s plans. Respondent had
constructive
knowledge of the violative conditions
that led to the failure of the ledger angles and the ensuring collapse of the hollow core slabs. Constructive knowledge of the violative condition is established. The Secretary has proven all elements of his
prima facie
case.

VIII. Citation 1, Items 1 and 2 ,
were Properly Classified as Serious and the Penalty Assessed is Appropriate

Section 17(j) of the Act, 29 U.S.C. 666(j), requires the Commission
to consider four factors in
assessing
penalties: the gravity of the violation and the employer’s good faith, history, and size. The Act does not prescribe how or what weight to apply to the factors. Atlas Roofing Co. v. OSHRC , 518 F.2d 990, 1001 (5th Cir. 1975),
aff’d , 430 U.S. 442 (1977) (OSHA penalties are meant to “inflect pocketbook deterrence”). Penalty assessment requires application of administrative discretion. D.S. Grading Co., Inc. v. Sec’y of Labor , 899 F.3d 1145, 1148 (11th Cir. 1990). The gravity of the violation is generally afforded greater weight in assessing an appropriate penalty. Trinity Indus.
Inc. , 15 BNA OSHC 1481, 1489
(No. 88-2691, 1992). A violation’s gravity is determined by weighing the number of employees exposed, the duration of their hazard exposure, preventative measures taken against injury, and the possibility that an injury would occur. J. A. Jones Constr. Co. , 15 BNA OSHC 2201, 2214
(No. 87-2059, 1993);
Kus-Tum Builders, Inc. , 10 BNA OSHC 1128, 1132 (No. 76-2644, 1981).

Under section 17(k) of the Act, 29 U.S.C. § 666(k), a serious violation exists where there is substantial probability that death or serious harm could result from a condition that exists in a place of employment. The Secretary need not show there was a substantial probability an accident would occur, only that if an accident did occur, death or serious physical harm could result. Wal-Mart Stores, Inc.,
v. Sec’y of Labor , 406 F.3d 731, 735 (D.C. Cir. 2005);
Brock v. L.R. Willson & Sons, Inc. , 773 F.2d 1377, 1388 (D.C. Cir. 1985);
Mosser Constr., Inc. , 23 BNA OSHC 1044, 1046 (No. 08-0631, 2010).

In determining whether a hazard is “causing or likely to cause death or serious physical harm,” the Commission does not look to the likelihood of an accident or injury occurring, but, instead, looks to whether, if an accident occurs, the results are likely to cause death or serious harm. See Babcock
& Wilcox Co. v. OSHRC , 622 F.2d
1160,
1164
(3d
Cir.
1980)
(Secretary must show that the hazard causes or is likely to cause death or serious injury to an employee);
Beverly
Enter s . Inc. , 19 BNA OSHC
1161,
1188
(No. 91-3144, 2000)
(consolidated)
(Secretary must show that recognized hazard “causing” or is “likely to cause”
“death or serious physical harm.”);
Waldon
Healthcare Ctr. , 16 BNA OSHC
1052,
1060
(No. 89-2804)((criteria “is not the likelihood of an accident
or injury, but whether, if an accident occurs, the results are likely to cause death or serious harm.”).

Here, the record
shows
that potentially hazardous conditions existed at the worksite and resulted in serious harm to
two of
Respondent’s employees. Respondent’s failure to comply with 29 C.F.R. §
1926.701(a) on July 11, 2020, at the worksite in Naples, Florida
exposed employees to crushing hazards and serious physical injury. The evidence in this case establishes that there was a high probability of
death or serious bodily harm if an accident
occurred. (Tr. 34-35, 39-41, 340-41, 352-53;
Exs. C-1, C-23, R-D). Mr. Lopez testified both he and
[redacted]
required
hospitalization and
surgery
for broken bones
after
the hollow core slabs fell on them. (Tr.
352-53). When asked why a serious citation was recommended, CO Benson said it was due to employees actually being injured and sustaining very serious injuries. (Tr.
40,
101). When
asked what the most serious injury would be from a collapse of hollow core slabs, CO Benson said “[d]eath.” (Tr. 101).

The gravity-based penalty proposed for Citation 1, Item 1 was $13,494. The violation was assigned
a high severity, greater probability, and high gravity. (Tr. 101-02; Ex. R-D at 1). The item was assigned high severity because workers were exposed
to
crushing hazards that could cause irreversible injury and/or death. (Tr. 101-02; Ex. R-D at 1). It was assigned a greater
probability. (Ex. R-D,
at 1). The Secretary reduced the proposed gravity-based penalty by 70% due to the company’s size. (Tr. 101-02; Ex. R-D at 1). The Secretary did not give any reductions for good faith or history. (Tr. 100-02; Ex. R-D at 1). CO Benson testified that no good faith reduction was provided because Respondent lacked any safety and health program. (Tr. 101). The calculated penalty, taking into consideration the reduction for Respondent’s size, for Citation 1, Item 1 is $4,048. (Tr. 100;
Ex. R-D at
2). Respondent makes no argument for a penalty reduction.

The gravity-based penalty proposed for Citation 1, Item 2 was $13,494. The violation was assigned a high severity, greater probability, and high gravity. The item was assigned high severity because workers were exposed
to
crushing hazards that could cause
death or multiple fractures resulting in permanent disability. (Tr.
102; Ex. R-D at
5).

The Secretary reduced the proposed gravity-based penalty by 70% due to
Respondent only employing
six people. (Tr.
88,
102; Ex. R-D at
5). The Secretary did not give any reductions for good faith or history
due to
Respondent’s lack of any safety and health program. (Tr. 100-02; Ex. R-D at
5). The calculated penalty for Citation 1, Item 2, after the reduction, is $4,048. (Tr. 102;
Ex. R-D at 6). Respondent
again
made
no argument for a penalty reduction.

The Court finds
that
the proposed penalties for both items
are
appropriate and assesses
them
as proposed.

IX. Respondent’s Defenses Fail

Respondent pleaded numerous defenses
in its Answer. 61 Many of these defenses were not raised further at trial or in its Post-Trial and Reply Briefs. Affirmative defenses not raised at the trial are deemed waived and abandoned by Respondent. Corbesco , Inc. v. Dole,
926 F.2d 422, 429 (5th Cir. 1991) (Affirmative defenses not argued waived);
Ga.-Pac. Corp.,
15 BNA OSHC 1127, 1130 (No. 89-2713,
1991) (“Commission declines to reach issues on which the aggrieved party indicates no interest.”). The Court finds all of these defenses are rejected because they either lack merit or have been abandoned, or both.

X. Conclusion

Revolution
was
a
creating and
exposing
employer
as to Citation 1, Item 1. It was
an exposing employer as to Citation 1, Item 2
as it failed to exercise reasonable diligence to discover the violative conditions and failed to take steps consistent with its authority to protect its employees. As discussed above,
the elements of applicability, employee exposure, violation
and knowledge
of the cited conditions
are proved
as to both items.

XI. Findings of Fact and Conclusions of Law

All findings of fact and conclusions of law relevant and necessary to a determination of the contested issues have been made above. See
Fed. R. Civ. P. 52(a). All proposed findings of fact and conclusions of law inconsistent with this decision are denied.

XII. O rder

Based upon the foregoing findings of fact and conclusions of law,
IT IS
ORDERED that:

Citation 1, Item 1, alleging a Serious violation of
29 C.F.R. § 1926.701(a),
is
AFFIRMED and the Court assesses a penalty in the amount of
$4,048; and

IT IS FURTHER ORDERED that: Citation 1, Item 2, alleging a Serious violation of 29 C.F.R. § 1926.704(a), is AFFIRMED and the Court assesses a penalty in the amount of $4,048.

SO ORDERED.

/s/               

The Honorable Dennis L. Phillips

U.S. OSHRC Judge

Dated:
September 26, 2022

Washington, D.C.

"

1
CO Marquez is no longer employed at OSHA. (Tr. 50).

2
CO Benson has been an OSHA CO for approximately 16 years. (Tr. 33-34). He has conducted more than 700 OSHA inspections at construction work sites. (Tr.
34).

3
The photograph at
Exhibit C-6 shows a tie beam at “D”. (Tr. 70; Ex. C-6, at D). CO Benson testified that Mr.
Phil
Nanna
(sometimes spelled “Nana”),
a safety consultant for BCB,
told him that the
segment of the tie beam he photographed at the storage facility in
September
2020
“was taken
from the tie beam that the ledger angle was affixed to that had collapsed.” (Tr. 124).

4
Dr.
Bryan
Ewing, the Secretary’s expert,
testified that hollow core slabs are typically precast, four-foot-wide planks, with several voids within the depth of the slabs. He testified that each hollow-core slab weighed 6,536 pounds. He said they are horizontal structural members typically used for roofs or floors.

(Tr. 194-95, 239).

The photograph at
Exhibit C-9 shows hollow core slabs
laying
atop concrete at the west [left] side of the photograph
and in the background two hollow core slabs are shown leaning on a tie beam. (Tr. 72; Ex. C-9). CO Benson testified that hollow-core slabs range from about 29 to 30 feet in length. He said they are “usually more than nine feet or more up.”

(Tr. 67, 94;
Exs. C-1, at E, C-3).

5
CO Benson testified that Revolution’s job at the worksite was to, using a crane, install the hollow core slabs by laying them down one by one next to each other and insuring they fit. Revolution was also to put cement between the slabs to enjoin the slabs
and make sure there were no openings between them for water proofing purpose. (Tr. 90-91).

6
A
ledger angle was a
L-shaped steel section
with holes and
a 90-degree angle.

Here,
the vertical leg of the
ledger
angle was anchored into concrete
using
“expansion anchors”, where the drawings called for the use of mechanical screw bolts, that were
inserted before the concrete had cured.

Dr. Ewing said doing so can lead to micro cracks within the concrete and premature failure of the
tie
beam.

The ledger angle supported the hollow core slab on the vertical leg of the angle. The weight of the hollow core slabs is transferred to the foundation through the slabs resting on the ledger angle, up through the ledger angle and through anchor bolts, through connections to the tie beam to the supporting columns, and from the columns to the foundation.

(Tr. 65-73, 195-96, 204-09, 218;
Exs.
C-4, at A,
C-6, at A,
C-10, at A,
C-18, at A, C-20, at A;
Resp’t
Br.
at 3).

Dr. Ewing testified that ledger angles were
also
anchored into tie beams before the concrete had reached its design strength. (Tr. 205). A ledger angle that fell down with a hollow core slab is shown on the ground at
the
photograph
contained
at
Exhibit
C-10, at A. (Tr. 73; Ex. C-10, at A). The photograph at
Exhibit C-16
shows a
ledger angle with a hole that had been enlarged to allow a bolt to pass through.

Dr. Ewing testified that irregular bolt hole sizes cause loads to be unevenly distributed on individual bolts. (Tr.
76-77, 209-10, 287-88; Ex. C-16, at A). Dr. Ewing testified that the hole for the bolt needed to be one sixteenth of an inch larger than the diameter of the bolt. (Tr. 287-88). One of the ledger angles on a tie beam that collapsed supported by shoring poles is shown on the ground at the worksite. (Tr. 79-80; Ex.
C-17, at A and B). The photograph at
Exhibit C-18 shows a ledger angle on the ground and cement bags under a collapsed hollow core slab. (Tr. 80; Ex. C-18, at A). The holes in the ledger angle
were to align with the bolts that were
inserted
inside the
wood foundation
(also referred to as forms)
which
supported the
tie beam
prior to concrete being poured. (Tr. 81).

Dr. Ewing testified that the photograph at
Exhibit C-18 shows the continued practice of making field cut holes in a ledger angle
located at the worksite. (Tr. 212; Ex. C-18).

7
Mr. Lopez s aid the accident occurred after he finished installing the core slabs.

(Tr. 355, 364 , 367 ).
The Court finds that the accident occurred after sixty cement bags had been placed on top of the hollow core slabs.

8
C O Benson conferred with
CO
Marquez concerning
CO
Marquez ’s
initial findings and
photograph s. (Tr. 34-35).

9
The parties stipulated that Dr. Ewing was qualified to testify
as
an expert in structural engineering.

(Tr. 163-64, 191). The
Court also found Dr. Ewing to be
qualified to
testify as an expert witness in structural engineering. (Tr. 191). Dr. Ewing is a structural engineer with the
OSHA Office of
Construction within the Department of Labor. (Tr. 152-53). He has been a structural engineer with OSHA for approximately 6 years. (Tr. 153). Dr. Ewing
has a Bachelor of Science
in Civil Engineering with structural emphasis,
a
Master of Science
in Civil Engineering with structural emphasis, and
a
Doctor of Philosophy in
Civil
Engineering
focused on unbonded
post-tension and clay brick masonry
from
North Carolina State University. (Tr. 161-62; Ex. C-41 at 1). Prior to working for OSHA, he worked in antiterrorism and force protection design for Baker
Risk Engineering. (Tr. 156). Dr. Ewing
assists in accident investigations, forensic engineering, rule-making, and general engineering questions. (Tr. 153). He has assisted in over
fifty
OSHA investigations with the majority of investigations involving the failure of concrete structures. (Tr. 153). Dr. Ewing
is licensed as a professional engineer in the State of California. (Tr. 157; Ex. C-41
at 1). Additionally,
Dr. Ewing
sits on the American Society of Civil Engineers committee and serves as the OSHA liaison to the committee. (Tr. 158). At the
trial, Respondent objected
to the admissibility of
his
expert report,
Exhibit C-41,
on the basis of hearsay
and presented
two cases after the
trial
to support his
objection. (Tr. 219-22). Expert reports often contain inadmissible hearsay. While Rule 703 of the Federal Rules of Evidence authorize experts to proffer opinions based on inadmissible facts or data, the inadmissible information contained in the expert reports is not thereafter automatically admissible. See
Fed. R. Evid. 703. However, a court may decide to admit the materials upon which experts rely “to assist the factfinder in assessing the basis of the expert’s testimony.” United States of Am .
v. Philip Morris USA Inc. ,
No. 99-2496 (PLF),
2021 WL 4318113,
at *2 (D.C. Cir.
Sept. 23,
2021). Where, as here, the judge sits as the trier of fact, the typical concerns contemplated by rules of inadmissibility are diminished because “it is presumed that the judge will understand
the limited reason for the disclosure of the underlying inadmissible information and will not rely on that information for any improper purpose.” Williams v. Ill .,
567 U.S. 50, 69-70 (2012). Here, the Court
was
inclined to admit the expert report
at trial
for purposes of aiding
it
in
assessing the
basis
of
Dr. Ewing’s
testimony
relating to the
technical and complex issues
in
this case. The Court is capable of not relying on inadmissible information within the report for improper purposes.

Dr. Ewing’s expert report at
Exhibit C-41
was
admitted. (Tr.
224).

10
Mr. Lopez testified at the
trial
with a Spanish language interpreter. He said that
neither
he
nor
[redacted], or a
third employee, Manolo
(no last name given),
who were at the worksite
on July 11, 2020,
ever received any formal training or schooling in structural design. Marcos Lopez is referred to herein as Mr. Lopez and
[redacted]
is referred to herein as
[redacted]. Mr. Lopez
did not have any certification in structural design.
(Tr. 325-32, 343-44, 354).

11
Mr. Nash is not a structural engineer. (Tr. 304). Mr. Lopez never asked Mr. Nash if he had any training in structural design. (Tr. 343).

12
Mr. Lopez told CO Benson that “once Victor Mellor calls him to tell him to come meet him at the site, that’s when he knows that it’s time to install the hollow core slabs.” (Tr. 93, 99).

13
The building design also called for another two inches of topping slab to be poured over the entire floor, but this had not yet occurred before the floor collapsed. (Tr.
92-93, 205,
340-41, 352-53 ;
Exs . C-1, C-23, R-D).

14
Dr. Ewing estimated the grouting would take Respondent two or three days to do it by hand. Mr. Lopez planned to start grouting on July 11, 2020. (Tr. 205-06, 340).

15
The photograph at
Exhibit C-3, at A, shows a row of cement bags laying on top of a fallen hollow-core slab. (Tr. 66-67; Ex. C-3, at A). The photograph at
Exhibit C-10, at B, shows a row of
about
10 to 11
cement bags,
which
were on top of a hollow core slab before it collapsed,
laying on top of hollow-core slabs that had fallen to the ground. (Tr. 72-73; Ex. C-10, at B). The photograph at
Exhibit C-11 also shows cement bags at “A” on the ground. (Tr. 73-74; Ex. C-11, at A).

16
Dr. Ewing testified that Respondent needed “to know the strength of the concrete prior to loading or subjecting the concrete to construction loads.” (Tr. 299).

17
Manolo was about 10 to 15 feet from Mr. Lopez when the accident occurred. Manolo was not injured.
(Tr. 355).

18
A wedge anchor bolt is also commonly referred to as a “bolt” (Tr. 69).

19
CO
Benson
testified that his investigation revealed that the bolts delivered to the worksite were not the correct size. (Tr. 85-86). Dr. Ewing
testified that the drawing package from the engineer specified that a six-inch bolt be used and that this did not occur. (Tr. 205-07; Ex. C-39).

CO Benson testified that the manufacturer dictated that the bolts were to be inserted around six to
six- and one-half
inches. (Tr. 75-77, 103). A
purchase order
provided to CO Benson by Ott Welding
showed that it ordered 80 wedge anchor bolts that were 3/4x6-1/4 inches in size from TCS on March 27, 2020.

Dr. Ewing testified that five and three-quarters inch bolts were
found at the worksite. He was told these were possibly used to connect the ledger angles
to the tie beams. He said these bolts were not allowed to be used in concrete in the fashion used. (Tr. 85-86, 104, 267-71;
Ex.
C-38). CO Benson testified that the
hole
measurements “showed that the hole was not deep enough
inside the tie beam to meet the manufacturer’s
specification of the anchor bolt.” Dr. Ewing testified that the bolts needed to be embedded about five and a half inches into the side of the tie beam. He said that photographs taken by CO Benson showed that the depth of the holes for the bolts were measured at three and a quarter to three and a half inches. Dr. Ewing said that the lesser embedment “would
weaken a
connection for sure because the connection is a function of the embedment.”

(Tr. 77, 206-07;
Exs. C-12 through C-13).

CO Benson
said the failure to properly embed the wedge anchors bolts “would be one of the contributing factors to make an assessment to recommend” the issuance of a citation for a violation of 28 C.F.R. §1926.704(a)
[Citation 1, Item 2]. CO Benson further testified that he would recommend the issuance of a citation for a violation of that standard if it was the only issue. (Tr. 129-130). He said that the failure to properly embed the anchors was a contributing factor in creating a struck-by hazard. (Tr. 127).

20
CO Benson testified that Mr. Nanna told him that the section of the tie beam at the storage facility “was taken from the tie beam that the ledger angle was affixed to that had collapsed.” (Tr. 124). CO Benson testified that wedge anchors were installed
by Ott Welding
in the tie beam section
stored in the storage facility prior to concrete being poured and that contributed to the creation of a hazard. (Tr. 132-33). He stated that he believed that had Ott Welding followed the manufacturer’s
recommendations regarding the installation of the wedge anchors “that would have given the structural stability to the wedge angles which then would have supported the hollow core.” (Tr. 132-33).

21
Dr. Ewing said that the construction drawings did not call for “slotted holes”
which allow tie beams to slide back and forth
and could cause inadequate load transfer. He said these cut holes within the ledger angle were visible before hollow-core slabs were installed. (Tr. 212-14; Ex. C-16, at A).

22
CO Benson said the crane operator told him that he had lifted 60 cement bags atop the hollow core slabs. The Court finds that 60 cement bags were atop the hollow core slabs when the accident occurred. (Tr. 40).

23
CO Benson testified that he had been told that the bags weighed between 84 to 98 pounds
each. (Tr. 40). He said he believed that
the cement bags placed “4,500 or 4,800 pounds” of additional weight on top of the hollow core slabs. (Tr. 94-95). Dr. Ewing described the bags as “80-pound
bags of cement.” (Tr. 204; Ex. C-20). The Court finds that the cement bags weighed an average of 87 pounds calculated by
the
average
of
80, 84, and 98 lbs. = 262
lbs. /3 = 87 lbs. Accordingly, the Court finds that the cement bags placed 5,220 pounds of added weight atop the hollow core slabs at the time of the accident.

24
CO Benson testified
at trial
that someone decided to use wedge anchor bolts instead of another type of anchor. (Tr. 123).

25
CO Benson testified that he
was
not able to determine who installed the wedge anchor bolts
prior to the pour. But
he did say Revolution did not do it. (Tr. 110-11, 131). He also said
that at his pre-trial deposition he agreed
with counsel
that “[t]here would be no way for me [counsel] to
when I’m [counsel] installing the hollow core to determine whether or not the bolts were sufficiently embedded into the tie beam.” (Tr. 126-27).

26
Wedge anchor bolts are used “to attach the ledger angle onto the tie beam.” (Tr. 68, 82-83, 218;
Exs. C-5, C-6, at B, C-21).

The photograph at
Exhibit C-21 shows
holes
at the bottom of
a tie beam that were there from anchor bolts that
fell down from the tie beams that had earlier been
installed inside
the tie beam
to affix the ledger angle. (Tr. 82-83; Ex. C-21).

27
Dr. Ewing’s expert report states that he reviewed the compressive
strength report dated July 13, 2020. (Ex. 41, at 2, ¶5). At trial,
and without any compressive
strength report
before him,
Dr. Ewing testified that “if he remembered correctly” he received only the compressive
strength report dated July 7, 2020
(Ex. C-39 at 1). The Court finds that Dr. Ewing
also
had and reviewed the compressive strength report dated July 13,
2020
(Ex. C-39 at 2),
when he prepared his expert report
dated August 16, 2021. Dr. Ewing testified that his expert report is “based upon the compressive strength reports.”

(Tr. 172-74;
Exs. 39, 41, at 2¶5). The Court finds that Dr. Ewing received both compressive
strength reports found at
Exhibit 39. (Tr. 275-76; Ex. C-39).

28
CO Benson also testified that after considering the compressive strength report he too “came to the conclusion that the concrete was not at its full strength at the time of the removal of the forms, and they are not at the full strength at the time of the accident.” (Tr.
86-87; Ex. 40). He testified that he learned from Dr. Ewing’s report that the weight placed on top of the ledger angles was too much for the ledger angles to carry. (Tr. 137).

29
29 C.F.R. § 1926.700(b)(2) defines “Formwork” as “the total system of support for freshly placed or partially cured concrete, including the mold or sheeting (form) that is in contact with the concrete as well as all supporting members including shores,
reshores, hardware, braces, and related hardware.”

30
Dr. Ewing testified at trial that he had testified at his deposition that the manner the wedge anchor bolts were installed resulted in a reduction in the strength of the connection
between the ledger angle and the tie beam. (Tr. 182).

31
29 C.F.R. § 1926.700(b)(7) defines “Shore” as “a supporting member
that resists a compressive force imposed by a load.”

32
Mr. Lopez did not know when any of the tie beams had been poured. (Tr. 347).

33
CO Benson testified that he did not determine whether or not anybody had the concrete strength report at the time of the accident
because he was not the compliance officer then.

But he said,
“Somebody had it.”
(Tr. 144; Ex. 39).

Mr. Lopez never requested to see any compressive strength report.

(Tr. 344).

34
OSHA issued Mellor & Sons a Citation and Notification of Penalty under the multi-employer citation policy. (Ex. R-A. at 3, Answer to Int. 3).

35
CO Benson testified that OSHA issued a hazard alert letter to Ott Welding relating to 29 C.F.R. § 1926.704(a). (Tr. 131-32).

36
Dr. Ewing stated “shoring” is what they reference to the post,
calling them shoring posts. “Formwork” is what is used to support the concrete as it is being cast. (Tr. 216-17, 225-27).

37
Here, Respondent was both
a
Creating and Exposing Employer
as to Citation
1, Item 1 that
prematurely
installed the hollow core slabs and
directed the placement of 60 bags of cement atop the hollow core slabs
without first determining, based on information received from a qualified person in structural design, that the structure was capable of supporting the load, thereby exposing its employees to crushing hazards.

Respondent had the authority to allow the concrete more time to cure before it began installing the hollow core slabs and placing the cement bags on top of them.

38
Here, Respondent was also an Exposing Employer
as to Citation 1, Item 2
because it failed to exercise reasonable diligence to discover
that the hollow core slabs were not adequately supported where ledger angles were not installed per the engineer’s plans; thereby compromising the structural integrity of the tie beams upon which the hollow core slabs were seated. Respondent had the authority to allow the concrete more time to cure before it began installing the hollow core slabs
on the ledger angles. Respondent also failed to take adequate steps consistent with its authority to protect its employees.

39
See
Exhibit R-A, at 3, Answer to Int. 3.

40
Specifically, the Structural Notes for the project stated:

FORMWORK AND SHORING :

Form work supporting structural concrete (beams, slabs, etc.) may not be removed until the concrete has attained 75% of the
28-day
design minimum strengths. Determination of the in place concrete strength shall be determined by laboratory testing of concrete cylinders.
…

CONCRETE :

All concrete shall be placed in accordance with the American
Concrete Institute “Building Code Requirements for Structural
Concrete” (ACI-318).

The following minimum design stresses shall be met:

CAST IN PLACE CONCRETE :

…

Beams, Elevated Slabs ………….f’c

4000 psi

The concrete stresses
listed above are based on a 28 day compressive strength as determined by laboratory testing of concrete cylinders.

…

Concrete shall be placed and cured to ACI standards and specifications.

(Tr. 200-02; Ex. C-37).

41
Dr. Ewing testified that the concrete for the failed tie beam was poured on July 7, 2020. (Tr. 297-98, 311-12; Ex. C-39
at 2). The Court relies on Dr. Ewing’s
testimony
that he was told during interviews that the concrete for the tie beams located where the failure occurred was poured on July 7, 2020 notwithstanding
Respondent’s
argument that it may have been poured on June 29, 2020. (Tr. 297-98, 311-12; Ex. C-39 at 2;
Resp’t
Br. at 15).

42
Mr. Lopez later stated that he put two hollow core slabs on Friday. (Tr. 360).

43
Respondent returned on Saturday, at about 9:00 to 10:00 a.m.
because some of the hollow core slabs were too short and had to be re-ordered. (Tr. 347-48, 358). Mr. Nash was not at the worksite on Saturday, July 11, 2020. (Tr. 350).

44
CO Benson testified that during his
pre-trial
deposition,
he
agreed
with Respondent’s counsel
that Mr. Nash had told him that concrete had been poured for
three
days, had apparently already cured,
and
was not a concern. (Tr. 122). At trial, CO Benson testified that Mr. Nash never told him that he [Nash] had told Mr. Lopez that the concrete had cured and was ready to go. (Tr. 148).

45
Before that, Mr. Lopez poured concrete slabs and installed tile flooring and carpentry. (Tr. 333).

46
Mr. Lopez testified:

Q. Did you ever review any compressive strength reports?

A. No, because that’s not part of what that pertains to what I
do. That’s something that they do.

Q. And who do you mean by “they”?

A. The people in charge of the building.

Q. Did you request any compressive strength reports?

A, No, because that’s not part of my thing. I go in and I ask if it is ready.

(Tr. 344).

47
Mr. Lopez testified that Respondent placed five or six
50-pound
cement bags on top of the hollow core slabs. (Tr. 339-40).
The Court rejects this testimony
as to weight and quantity
as unsupported
by other more persuasive evidence.

48
Respondent argues that Respondent “reviewed the drawings for the installation of the hollow core.”

(Resp’t
Reply Br.
at 3). The testimony Respondent cites to does not support
its
position. Mr. Lopez testified
as follows:

Q When you were hired by American Precast, did you
ask to see any structural drawings of the building?

A No, not a design. The only thing that they sent to me are the blueprints for the hollow core.

(Tr. 344).

Mr. Lopez
never says
he reviewed
any
structural
drawings for the
building being constructed. (Tr. 344).

49
CO Benson testified that
Mr. Lopez told him:

Q. And do you recall him [Lopez] telling you [Benson] anything about any preparations or inspections he [Lopez] had made before beginning the work?

A. He said that that’s not what he does, that he doesn’t do that inspection, that when they call the company up to deliver the slabs, he’s relying on them to make sure that everything is okay.

(Tr. 92, 147-48).

50
In
Gilles & Cotting, Inc .,
the Commission rejected the “actual exposure” test, which required evidence that someone observed the violative conduct, in favor of the concept of “access”, which focuses on the possibility of exposure under the conditions. See Gilles & Cotting, Inc ., 3 BNA OSHC at 2002 (holding “that a rule of access based on reasonable predictability is more likely to further the purposes of the Act than is a rule requiring proof of actual exposure”).

51
Alternatively, to any extent required, the Court also finds that Respondent had constructive knowledge of the violative condition
and hazard. The Court finds Respondent
failed to exercise reasonable diligence to discover the
violative
condition and failed to take steps consistent with its authority to protect
its
employees .

52
29 C.F.R. § 1926.700(b)(5) defines “Precast concrete” as “concrete members (such as walls, panels, slabs, columns, and beams) which have been formed, cast, and cured prior to final placement in a structure.”

53
Respondent argues that BCB’s Mr. Nash’s determination to install the wedge anchors before the pour absolves

Respondent of any liability. Respondent contends that OSHA should have cited BCB and/or Ott Welding because BCB was responsible for the design changes that allegedly created the hazard and Ott Welding because it was responsible for the installation of the wedge anchors. ( Resp’t
Br. at 6-7). These arguments are without merit.

54
CO Benson stated that installing the wedge anchor bolts in the tie beams prior to the pour did not allow the bolts to expand as the concrete cured around them, which can also lead to cracking in the surrounding concrete. (Tr. 96-97, 113-14).

55
In its Reply Brief, Respondent asserts that Mr. Lopez did not direct the cement bags be placed atop the hollow core slabs. Respondent argues such an accusation is “pure speculation, unsupported by any facts adduced at trial.” (Resp’t
Reply Br. at 1). Respondent is wrong. Mr. Lopez testified:

Q. Okay. And who was it that called for that called for that cement to be brought up and placed on top of the hollow core?

A. I did.

(Tr. 339).

56
According to the Secretary, Respondent had access to compressive strength reports, but did not access them. (Tr. 86-87, 92-93). Mr. Lopez testified that he never reviewed any compressive strength reports because it was not part of his job. (Tr.
92,
344-45). The Secretary claims, and the Court agrees,
a review of the compressive strength reports would have shown the concrete was not at full strength at the time of the accident. (Tr. 86-87; Sec’y Br. at 4).

57
The Court does agree with Respondent that
Mr. Lopez
would not have been able to
personally
determine
precisely
how far the wedge anchors were embedded
in the tie beams
on July 10, 2020 during his walk-around the worksite.

(Resp’t
Reply Br. at 8).

58
Respondent’s arguments that BCB,
Morca
Construction, and Ott Welding created factors that contributed to the floor collapse does not absolve Respondent from its own responsibility and
liability under the Act. ( Resp’t
Reply Br. at 3). The Court is finding Respondent violated the
two standards based upon its own action or inaction. Respondent may have looked at a drawing for the installation of hollow core; but chose to ignore, not seek, or consider practically everything else that was pertinent to the job. Respondent did not do what was “realistic” under the circumstances. See
S. Pan Serv.
v . DOL, 685 Fed. Appx.
at
695 . There were plenty of available indicia that should have given Respondent pause in starting to install hollow core when Mr. Lopez arrived at the worksite. The cement was relatively newly poured just 3 days before, shore poles were in place at many places, compressive strength reports should have been considered to ascertain what strength
h ad been achieved by July 10, 2020, anchor bolts had been sawed off, washers varied, and holes cut into the ledger angles were visible .

(Tr. 193, 204,
210-14, 283, 302;
Exs . C-1, at H, C-6, at B, C-16, at A ). Respondent ignored all of these.

59
Although Mr. Lopez did not know how far the anchor bolts had been embedded into the tie beams,
he should have seen enough indicators to prompt him to ask BCB and/or Ott Welding whether the anchor bolts had been adequately embedded. Instead of doing so, he ignored all the warning signs and did nothing.

(Tr. 150 , 284, 303-05 ) .

60
Dr. Ewing testified that
contractor s [ including BC B
and Ott Welding ]
are
not able to deviate from the structural drawings just because they believe there’s a safety factor and change the design of the concrete. (Tr. 302).

61
Respondent
asserted
ten
defenses ,
i.e.,
( 1) standards
do
not apply,
( 2) Secretary cannot show Respondent failed to comply with standards,
( 3) isolated instance of employee misconduct of which Respondent had no knowledge or could not have reasonably foreseen,
( 4) lack of employer knowledge,
( 5) Respondent had work rules that were adequately communicated and Employer took steps to discover violations,
( 6) “Respondent did not participate in, have knowledge of or caused the alleged hazards,”
( 7)
Unpreventable or unforeseeable employee misconduct,
( 8) greater hazard defense,
( 9) compliance functionally impossible, and
( 10) means of compliance unfeasible.

(Answer at 2-4).