National Engineering and Contracting, Inc. (ALJ decision, May 23, 1994)

Plain-English summary

National was the general contractor and Tri-State its steel-erection subcontractor on rehabilitation of Cleveland's Main Avenue Bridge. A Tri-State foreman fell 80 feet and died when a deck pan dropped during a nonroutine operation; a second ironworker survived by grabbing a structural member. The judge found that the foreman had received a safe plan but did not follow it, that the rest of his crew lacked required hazard instructions, and that practical safety belts and lanyards were not used. Across the project, ironworkers regularly ignored the companies' 100 percent tie-off rule with the knowledge of supervisors and foremen, while no effective discipline was imposed until after the accident. Employees also were not trained to use retractable lanyards safely. Portions of the instruction and connector allegations were vacated or dismissed, but the remaining serious and willful items were affirmed. National was assessed $57,000 and Tri-State $34,200, for combined penalties of $91,200.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.21(b)(2), 1926.105(a), and 1926.28(a).
• Outcome: Mixed. Portions of the allegations were vacated or dismissed; the remaining serious and willful fall-protection violations were affirmed with total penalties of $91,200.
• Key point: Announcing a tie-off rule is insufficient when supervisors tolerate routine violations, and knowing failure to enforce practical fall protection can support willful classification.

Full text (OSHRC public release)

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 1365 PEACHTREE STREET, N.E., SUITE 240 ATLANTA, GEORGIA 30309-3119

PHONE: FAX
COM (404) 347-4197
COM (404) 347-0113
FTS (404) 347-0113

SECRETARY OF LABOR,
Complainant,

v. OSHRC Docket Nos. l
.

NATIONAL ENGINEERING AND 00 924550 4%92-1551
CONTRACI’ING COMPANY,, INC.,
l
a

Respondent,
l
0 (Consolidated)
0
TRI-STATE STEEL CONSTRUCI’ION CO.,
;
Respondent,
l
0

and

I R ON
WORKERS’ LOCAL NO. 17,
Authorized Employee
Representative.

APPEiARANCES:

JaniceThompson,Esquire
F. BenjaminRick, III, Esquire
Office of the Solicitor
Cleveland, Ohio
U. S. Department of Labor
For Respondent
Cleveland, Ohio
For Complainant

Before: Administrative Law Judge Edwin G. Salyers

In 1990 National Engineering and Contracting Company, Inc. (National), was awarded the prime contract for rehabilitation of the Main Avenue Bridge located in Cleveland, Ohio. This bridge is over a mile in length and runs east to west over the Cuyahoga River. The height of the bridge over land and water surfaces ranged from 40 to 110 feet (Tr. 74). me contract required total reconstruction of the bridge, including the repair and/or replacement of defective structural members and the demolition and replacement of the deck. Initially, the cost was predicted to be about 45 million dollars, but the final cost approximated 64 man dollars due in large part to the need to replace more structural members than was originally contemplated. Work began in early 1991 and was to be completed by June 1993 (Tr. 1185). The contract contained an incentive and disincentive clause which provided monetary rewards for early completion and penalties for failure to complete the contract on time (Exh. C-30; Tr. 1031). The work was actually completed in October 1992, weu in advance of the imposed deadline. The contract also included a provision requiring the general contractor and all subcontractors to comply with the Occupational Safety and Health Act (the Act) (29 U.S.C. 8 651, et sq.).
One of the steel erection subcontractors on the job was T&State Steel Construction Co., Inc. (T&State), a wholly owned subsidiary of National (Tr. 12,41-42,100!5). Under its contract T&State performed the rod placement and structural steel work west of Pier 11 and the placement of all deck pans for the bridge (Tr. 41). The management of both companies are intertwined, with National playing the dominate role as the general contractor.
On February 18, 1992, two ironworkers employed by Tri-State, Louis Petrella and Richard Clark, were involved in an accident while attempting to lower a deck pan on the bridge. Petrella, a T&State foreman, was cutting a support weld on the pan when the pan gave way, causing him to fall 80 feet to his death. Clark, who was assisting Petrella, also fell . through the hole but managed to sutie by grabbing a structural member under the pan. This accident precipitated an investigation of respondents’ operations conducted by the Occupational safety and Health Administration (OSHA) under the provisions of the Act and the standards promulgated by the Secretary.
Upon learning of the accident through media reports, the OSHA Cleveland area director dispatched Compliance Officers Edward Dill and Frank Coffelt to the scene. Upon arrival, they presented their credentials and were informed by William Bunner, the safety director for both National and T&State, that an inspection would not be permitted without . a warrant. Dill and Coffelt proceeded to obtain a warrant which was sented on respondents

2 the following day. Althougghrespondents attempted to impose certain restrictions on the Secretary’s inspection, this matter was ultimately resolved and the Secretary’s inspection was allowed to proceed?
& a result of the Secretary’s inspection, both respondents were issued identical
citations except that proposed penalties for TMtate were reduced due to its smaller size. Serious Citation No. 1 charges respondents in each case with a violation of 29 C.F.R. 0 1926.21(b)(2), for alleged failure to adequately instruct Petrella and Clark in the recognition and avoidance of unsafe conditions prior to their performing the non-routine operation of lowering the deck pans; and violations of 29 C.F.R. $8 1926.105(a) and 1926.28(a),2 for failure to provide appropriate fall protection in connection with the deck pan operation. WillM Citation No. 2 charges respondents with violations of 29 C.F.R. 5 1926.21(b)(2), for alleged failure to adequately instruct workers engaged throughout the worksite in the recognition and avoidance of fall hazards; and 29 C.F.R. Q 1926.105(a), for alleged failure to provide proper fall protection devices to employees working more than 25 feet above ground or water surfaces. The Secretary proposes aggregate penalties of $77,000 in the case of National (Docket No. 92-1550) and $46,200 in the case of Tri-State (Docket No. 924551). The cases were consolidated for the purpose of hearing, briefing and decision.

SERIOUS CITATION NO. 1

Item l(a)

This item charges respondents as follows:

1 The Secretaryamends that respondents’ insistence upon a warrantreflects an obstructionist approach to the Secretary’s inspcctioaand demonstratesrespondents’ bad f&h (Secretary% Brie& pgs. 1345). The Secretarymaintainsrespondentswere precluded by their contractual obligations from asserting Fourth Amendment rights, citing McLaughlin v. Kings Island, 849 E2d 990 (6th Cir. 1988). This judge disagrees and believes the Secretaqfs reliance upon Kegs Island is misplaced. The Secretary must recognize an employer’s constitutional right to request a warrant whenever the employer or its attorney deems this necessary. Mmhall u. Barlow’s, Inc, 436 U.S. 307,98 S. Ct. 1816 (Sup. Ct. 1978).

2 This charge was added as an alternative when the Secretary filed his complaints.

3
 29 CFR 1926.21(b)(2):3 The employer did not instruct each employee in the recognition and avoidance of unsafe condition(s) and the regulation(s) applicable to his work environment to control or eliminate any hazard(s) or other exposure to illness or injury:

On or before 2/18/92, two (2) employees were working at the Main Avenue Bridge site, Span 10, Beam J, engaged in the non-routine task of lowering a section of deck pans. Inadequate instructions were given to the employees as to the safe method(s) of performing this work, to include:

(1) The need for fall protection due to the nature of the work which invoked the employees cutting away the securing welds to the deck pan assembly.

(2) Proper employee positioning during the lowering operation.

(3) The need for angle clips, used as hangers, to be of sufficient size to insure their contact with the ladder angle when the Geck pan assembly was “dropped.”

The key players involved in this charge are Ed Kersman, National’s job superintendent; Simon Brandt, National’s carpenter foreman; tiuis
Petrel& Tristate’s ironworker foreman; and Tri-State ironworkers Richard Clark, Mark Johnson and Ken Light, who assisted Petrella in the pan drop operation. The evidence reflects that none of the ironworkers, including Petrella, had previously engaged in this “non-routine” task.
Sometime in early February 1992, Kersman was made aware of a problem where a series of deck pans had been set at the wrong height near one of the expansion joints on the bridge (Tr. 1079). This situation required these pans be lowered approximately 1% inches to the proper grade level (Tr. 1078). On the evening before the accident, Kersman consulted with Brandt, who had previous experience in pan drop operations, and discussed a safe method for accomplishing this task (Tr. 1080-1081). Both were aware that performing the drop would entail cutting the permanent welds supporting the pans which would de-stabilize the pans and expose employees to a potential fall hazard. While the record is

3 Section 1926.21(b)(2) provides:

(2) The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to hiswork environmentto controlor eliminateaq hazards or other exposure to illness or injury.

4 confusing concerning the details of Kersman’s plan, it was ultimately decided that the potential fall hazard would be addressed by using 7-foot support angles4 placed at 4-foot . interv& across the top of the pan and extending over the ladders and/or stringers on either side. These support angles would then prevent the pan from falling when the permanent welds were cut (Tr. 1084-1085)’ The use of these support angles was essential to provide protection to the pan drop crew.
It was Kersman’s testimony that on the morning of the accident, sometime between 7:30 a.m. and 8:30 a.m., he met with Brandt and Petrella to outline his plan. Kersman explained to Petrella how to weld the support angles onto the deck pans all the way across the bay, emphasizing to Petrella that support angles had to be long enough to extend over the stringers on either side of the pan and spaced at 4-foot intervals before cutting the permanent welds (Tr. 1093). Kersman questioned Petrella to be certain his instructions were understood, and Petrella replied that “he thought so.” In response to this nebtilous answer, Kersman informed Petrella he would go through the procedures &gain to be sure Petrels fully understood what was expected but was assured by Petrella that he understood the instructions (Tr. 1094). This conversation was the last contact Kersman had with PetreUa since Kersman did not visit the site where the deck pans were lowered until after the accident occurred at approximately 2:00 p.m. (Tr. 1095).
Brandt also testified concerning the events leading up to the accident and his discussions with both Kersman and PetrelIa concerning the pan drop operation (Tr. 1720). He agreed with Kersman that the use of the 7-f& support angles was essential to protect employees when the welds were cut6 (Tr. 1721). Brandt was present for a short time on the morning of the accident when Kersman outlined the plan to Petrella but did not hear enough of the corfversation to know if Kersman went “through the whole process” (Tr.

4 In the record this device is variously referred to as “angles, “ “leveling angles,” etc, Hereafter, the amt will use the term “support angles” when referring to this dewice.

s See also Exhibit R-59, a videotape prepared by respondents solely as an aid to the court.

6 Brandt had cut several of these 7-foot angles the day before the accident in anticipation that carpenters and not ironworkers would perform the deck pan drop.

5
1749). Brandt met with Petrella at the pan drop site around 930 a.m. on the day of the accident and ‘krtnt over the whole process with him “ (Tr. 1731). Brandt spec&a~ directed Petrek’s attention to the 7-foot support angles which were present at the site and ady&d him, “That’s what you weld across here, and you weld one back here before you start mting” (Tr. 1732). At that time Brandt asked Petrella if he understood what had to be done, and Petrella advised that he did (Tr. 1734). Between 9:30 a.m. to 10:00 a.m., Brandt again returned to the area and noted that Petrella was not welding the support angles across the pan. Brandt reiterated his previous advice that the support angles must be used because “We don’t want no accidents. We don’t want nothing down on the street” (Tr. 1734) and advised Petrella, “Lou, you’re not doing it as the plan was c&cussed,” to which Petrella replied, “Hell, the Goddamn catwalk is down there. It will catch you” @r. 1736). Despite the clear indication that Petrella was not following Kersman’s plan, Brandt took no further action because he had “no jurisdiction over LOUPetrella”’ (Tr. 1737), nor did he report this situation to a higher authority (Tr. 1738).
It is clear beyond question that Petrella did not follow Kersman’s plan. CompliaMx Officer Dill, together with others who examined the pan after the accident, v&&d
that support angles were not used.
The method actually used is described in the testimony of ironworkers Clark and Johnson who assisted in dropping the pans. Neither of these workers had previously performed this type of work and received their instructions ~KXIIPetrella (Tr. 600). Four 900 angle clips were welded to each side of the pan. These clips were approximately 2 inches by 2 inches and were supposed to catch the pan at the targeted level when the permanent welds were cut to drop the pan (Tr. 601-604). When Petrella first outlined the

7 The record do not disclose why Brandt visited the pan drop site on the day of the accident and fbund it neceswy to explain the planto Petrella in such detail, nor does it disclose why Brandt returneda second time and admonished Petrella for not following the plan. Sincie Kersman was Brand0 supervisor and immhml Brandt in developing the plan due to his previous experience, it is reasonable to infer that Brandt was directed by Kersman to oversee the pan drop and insure the plan was followed. Under this circumstance, Brandt’s assertion that he lacked “jurisdiction over Petretla” is questionable. Likewise, Brandt’s assertion that he lacked jurisdiction because Petrella was a member of a different union does not serve to absolve respondents of their corporate responsibilities for maintaining a safe workplace. At the very least, Brandt should have reported this circumstance to higher authority.

6 plan, Clark had reservations about its safety and expressed his views to Petrella who advised him, “That’s the way he [Ed Kersman] wanted it done” (Tr. 605607).
One pan was dropped SUUZCSS~using Petrella’s method (Tr. 610411). However, when the second drop was attempted, the clips did not catch when the permanent welds were cut causing the pan to fall and resulting in the accident (Tr. 616).
Jobon confirmed he received his instructions from Petrella and did not question them (Tr. 724-725). He described the clip which was utilized as “Gshaped” with the “leg 0ftheL.. . probably + of an inch and the back part of it probably 3 inches high and I think it was a 2-inch wide slip” (Tr. 724). He observed Simon Brandt in the area when the first pan was lowered and believed Brandt observed this operation since “he was right there. He couldn’t help but view it” (Tr. 729-730). Neither Clark nor Johnson confirmed the method used by Petrella included the use of 7-foot support angles to prevent destabilization of the pan when the permanent welds were cut. It is concluded the small clips used by Pet&a were insufficient to prevent destabilization of the pan during the drop operation and that reliance upon this method was inherently dangerous. It is further found that a reason&b prudent employer would have recognized the need for fall protection when employees were engaged in such a dangerous procedure.
At trial and in their posthearing brief& the parties devote substantial attention to a
crediiility question concerning Kersman’s instructions to PetreIIa. The Secretary maintains Kersman’s instructions to Petrella did not include the use of support angles and that Petrella literally followed the instructions given by Kersman and used the small clips instead of the more substantial support angles (Secretary’s Brief, pg. 19). The Secretary urges the testimony of Kersman and Brandt is overcome by that of ironworker Clark to the effect that Petrella informed him [Clark] he [Petrella] was following Kersman’s instructions (Tr. 605, 607) and also in similar testimony by ironworker Johnson (Tr. 723). The court has considered the Secretary’s argument but finds it unconvincing. Even if the ironworkers’ statements are accepted, this hearsay evidence establishes only that Clark and Johnson were told by Petrella that he was following Kersman’s instructions. It does not establish that Petrella was, in fact, following Kersman’s instructions, nor does it overcome the direct testimony of Kersman and Brandt to the contrary. The court has also considered the

7
Secretary’s contentions (Secretary’s Brief, pgs. 17-23) that Kersman gave inconsistent statements to Dill during the inspection and to the Secretary during his pretrial depositions, ’ but finds the conclusions drawn by the Secretary amount to nothing more than speculation.
The crediile evidence supports, and this court finds that, Kersman’s instructions to Petrella included the use of support angles during the pan drop operation. It is further found that these devices, if actually used, would have effectively protected the pan drop crew from a fall hazard.8 Having won this battle, however, does not mean respondents win the war.
The court notes the cited standard mandates an employer VaaU instruct each employee in the recognition and avoidance of unsafe conditions.” (Emphasis added) While the evidence establishes that Petrella was given adequate instructions by Kersman and Brandt in the recognition and avoidance of hazards, it does not support a finding that Petrella repeated these instructions to the remainder of his crew (Clark Johnson and Iight). On the contrary, these employees were given no instructions by anyone concerning the recognition and avoidance of hazards (Tr. 600,. 604).
Even when these ironworkers expressed safety concerns to Petrella, they were ignored or given false assurances, This circumstance, standing alone, is sufficient to sustain a charge under the cited standard
In their posthearing brieE, respondents cite the case of Lhcrvo Engineers & Consnuctors,11 BNA OSHC 2010, 1984 CCH OSHD 129,930 (No. 81-748, MM), as controlling for their argument that the cited standard imposes only a duty to instruct and not a duty to insure the instructions are followed. In Dravo,the evidence showed the employer had given adequate instructions to its employees concerning the danger of a swinging counterweight in the work area but took no measures to insure those instructions were followed The evidence further reflected that company supervisors were aware employees were disregarding the instructions to stay clear of the counterweight but took no steps to stop the hazardous practice. The Commission nonetheless held that 6 1926.21(b)(2) imposes only a duty to instruct and not the additional duty to enforce the instructions.
The Commission declined “to rewrite the standard to impose a duty not otherwise required.”

8 This point was amceded by the Secretary during the hearing (Tr. 1645).

8
Id at 34,507. Commissioner Cleary wrote a strong dissent in &ZVOin which he interprets the standard to require an employer not only to give adequate instructions but also to tie effe&ve steps to insure that the instructions are followed. Cleary noted that the majority’s interpretation improperly shifts responsl%ilityfor safety and health from the employer to the employee.’ Id at 34,509.
In my event, the Dravocase is distinguishable fkom the facts of the cases at bar since, as noted above, three of the four employees engaged in the pan drop operation were given no instructions in the recognition and avoidance of unsafe conditions, a primary requirement of the standard.
Respondents argue the evidence fails to show they had knowledge of the unsafe conditions at the pan drop site. This approach ignores well-established precedent and flunky a reality test.
In A. I? O’Horo Co., Inc., 14 BNA OSHC 2004, 1991 CCH OSHD f 29,223 (N0.
85-369, MU), the Commission considered the knowledge question as follows:
In order to satisfy her burden of establishing knowledge, the Secretary must prove that a cited employer either knew, or, with the exercise of reasonable diligence, could have known of the presence of the violative condition. uiritcd StatesSteel Cop., 12 BNA OSHC 1692,1699,1986-87 CCEI OSHD 127,517, p. 35,671 (No. 79-1998, 1986). The actual or constructive knowledge of an employer’s foreman can be imputed to the employer. Dun-Pm Engincerrd Form Co., 12 BNA OSHC 1962, 1965, 1986-87 CCH OSHD 127,651, p.
36,033 (No. 82-928, 1986). An employee who has been delegated authority over other employees, even if only temporarily, is considered to be a supervisor for the purposes of imputing knowledge to kn employer. Paul Betty,d/b/a BettyBrothers,9 BNA OSHC 1379, 1381432, 1981 CCH OSHD 125,219, p. 31,150 (No. 764271, 1981); Georgia Ekctrk Co., 5 BNA OSHC 1112, 1115, 1977-78 CCH OSHD q 21,613, p. 25,951 (No. 9339, 1977), affd, 595 F.2d 309 (5th Cir. 1979).

9 The undersigned takes this opportunity to express his personal opinion that kzvo is out of step with recent trends in Commission decisions. It nullifies the effectiveness of 3 1926.21(b)(2) by allowing emplayers to give mere “lip service” to the important need to inform employees of the hazards which may be encowrtered on the job and the steps necessary to avoid these hazards. The recent case of &SSZUVConactc Constc Cu, 15 BNA OSHC 2011, 1992 CCH OSHD ll29,902 (No. 90-2668,1992), reflects a more reasonable approach to this important standard and may signal an intention of the Commission to overturn tkavo and its harsh consequences. It is urged to do so in this case.

9 h the cases at bar, the corporate respondents had constructiw knowledge of the uIlsafe conditions which e&ted at the pan drop site through the imputed knowledge of two foremen. This circumstance fully satisfies the knowledge element of proof.
Respondents argue they have established .a defense of unpreventable employee

misconduct. This defense was also discussed in O’Horo, sups:
Once the Secretary has made a prima facie showing of employer knowledge through its supetiory employee, the employer can rebut this showing by establishing that the failure of the supervisory employee to follow proper procedures was unpreventable. In particular, the employer must establish that it had work rules that effectively implemented the requirements of the cited standard, and that these work rules were adequately communicated and effectively enforced. E.g.,’HoE. Wiese,Inc., 10 BNA OSHC 1499, 1505,1982 CCH OSHD II 25,985, p. 32,614 (Nos. 78204 & 78-205, 1982); afd pw c&tam, 705 F.2d 449 (5th Cir. 1983); see Bmk v. L E. Mjms Co., 818 F.2d 1270, 1277 (6th Cir. 1987), cert denied, 108 S.Ct. 479 (No. 87-246, 1987). Ii& at OSHD II 39,129.

Respondents made no showing that Petrella’s failure to follow instnrctions was unpreventable or that the instructions he received from Kersman were adequately communicated to the pan drop crew and effectively enforced.
Respondents assert in their second amended answers and in their brief (Respondents’ Brief, pgs. 25-30) the defense of foreman misconduct relying upon Conrolidati Fterightwtrys Cop., 15 BNA OSHC 1317, 1986 CCH OSHD V 28,335 (No. 86-351, 1986). In that case, the Secretary charged the employer with a violation of 8 1910.132(a) based upon a failure of the company’s foreman to require employees cleaning up a spill of hazardous chemicals to wear appropriate personal protective equipment. The Commission afEmed a violation of the cited standard. and denied the company’s defense of foreman misconduct on grounds that the employer failed to prove “it took all necessary precautions to prevent the violations, including adequate instructions and supervision of its supervisor.” Ii OSHC at 1321. Consolidated lends no support to respondents’ claim of foreman misconduct in the cases at bar. Instead, it reinforces the Secretary’s position that Petrella’s deviant and dangerous behavior was known to respondents through foreman Brandt in advance of the accident, but respondents took no precautions to prevent the accident or to “supervise the supervisor.”

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 Serious Citation No. 1, item l(a), is affirmed. Appropriate penalties will be ud

The Safetv Net Question

Both respondents are charged with violations of 8 1926.105(a)‘* for their alleged failure to provide fall protection to employees working “on or before 2/18/‘92”at heights in excess of 25 feet. Serious Citation No. 1, item l(b), relates to employees engaged in the pm drop operation. Willful Citation No. 2, item l(b), relates to ironworkers engaged throughout the project in “bolting up, connecting, installing ladders, installing leveling ar@es, etc.” Before reaching the specifics of each citation item, it is necessary to consider the current state of the law as it relates to 3 1926.105(a).
In their respective briefs, the parties cite several of the many cases that have considered the complex problems of using nets to protect employees who must work on

. bridges or in steel erection at heights exceeding 25 feet. L R JViion 6 SW, Ii,
685 F.2d

664 (D.C. Cir. 1982) (“Willson I”); L. R JViillson &Sons, Inc., 773 F.2d 1377 (DC. Cir. 1985) (“Willson III”); and CenturySteel Erectors,Inc., 888 F.2d 1399 @.C Cir. 1989).
In three recent cases decided on the same day, l1 the Review Commission considered the perplexing history of the safety net standard and attempted to restore order in the face of chaos. Falcon Steel Co., 16 BNA OSHC 1179, 1990 CCH OSHD 129,055 (Nos.
89-2883 & 89.3444, 1990); PetersonBmthemSteelErectibnCo., 16 BNA OSHC 1196,1993 CCH OSHD 1 30,052 (No. 90-2304,1993); and StateSheetMetalCo., 16 BNA OSHC 1155, 1993 CCH OSHD 130,042 (Nos. 90-1620 & 90-2894, 1993). In each case, workers were engaged at heights in excess of 25 feet but were not continuously protected by safety nets

lo Section lZ6JOS@) provides:

(a) S&&y nets shall be provided when workplaces are more than 25 feet abow the ground or water surf&x, or other surfaces where the use of ladders, sca!Tokis, catch platforms, temporary floors, safety lines, or safety belts is impractical.
l1 Since these cases were decided after the parties submitted posthearing brie& the parties ham submitted supplemental brie& concerning their significance to the cases at bar (Judges Exhs. J-70, J-71). These supplemental brie& have been read and considered by the court except for AppenU A attached to the Secretary’ssupplemental brief (See Exh. J-69, order dated March 23, 1994).

11 or any of the other devices specified in the safety net standard. In each case, the Review Commission, after considering many of the same arguments raised by the parties in the cases at bar, concluded that an employer engaging employees at heights in excess of 25 feet t)uITt use some means of fall protection. An employer is free to choose the method of protection, but this choice must include either nets or one or more of the other methods specified in the standard. The Commission recognizes that nets are expensive and may be impractical for other reasons. In State Sheet Metal Co., supm, the Commission made it clear, however, that employers engaging employees at heights in excess of 25 feet cannot ignore the mandate of the standard to provide some form of protection at all times:
We want to make it clear that we are not saying State or other members of its industry must use nets; all we are holding is that the standard requires that some form of fall protection be used.

Because of the wording of section 1926.105(a), it has often been misunderstood. Under the terms of that standard, nets are the least-preferred means of protecting employees. If one of the other methods speciEed can be used, it should be used. We are familiar from past cases with various methods of protection that might be effective to protect the employees laying the roof decking. In some cases, employers have erected static lines to which a lanyard connected to a safety belt can be attached. In places where the ground was level enough, a catch platform on a mobile scaffold has been used Given the evidence in the record as to the time and expense involved in erecting safety nets, we assume that State and its competitors will use their ingenuity to End methods of compliance other than nets.

We want to emphasize that State is being found in violation for using 1~) fkll protection at all and that State could have avoided being found in violation by using any effective means of protection. Nets are merely one means of complying with section 1926.105(a), and the least-favored means at that. Id at 1161 OSHC.

Similar conclusions were reached by the Commission in Falcon SteeZ[‘ld at 11881and PetersonBrothers [M at 119849). It is also apparent from these decisions that the net

12 questionneed not be reached if the evidence establishes that other methods enumerated h the standard are practical and in use. Falcon Steel [Id at 11!20]12 The clear message delivered by the Commission in Falcon, Petersonand State S/&t Metal is one of common sense. When an employer requires employees to work in excess of 25 feet above ground level, special precautions must be taken.
Section 1926.105(a) mandates employees working at such heights must be protected from fall hazards by some means. An employer may select any practical means to accomplish this end but cannot simply ignore the problem or leave this selection up to the independent discretion of employees.
In the cases at bar, the parties devoted substantial time and effort to establishing their respective positions concerning the feasibility or infeas~%ilityof using nets. As previously noted, current Commission precedent makes it unnecessary to pursue this point
if some other means specified in the standard is practical. In view of the ultimate conclusions reached in these cases, the net question is a “non-issue.” It is, however, necessaq to consider the testimony of experts called in the cases as it relates to the practicality of using other means of fall protection.
Three expert witnesses (two called by the Secretary and one by respondents) gave testimony concerning the use of nets on the project and/or the practicality of using other devices. All three ultimately agreed that the use of nets at the Main Avenue Bridge was neither feasrble nor practical. They also agreed the use of the other devices specified in the standard, including belts and lanyards, were practical in these cases.
Joseph Biggers, an estimator for Senco Construction Services, whose company made an unsuccessful bid to furnish nets for the project at a cost of $840,000, believed, as a general proposition, that nets could have been installed (Tr. 347-369). On cross-examination, however, he conceded that employees engaged in the pan drop operation could not be protected by nets because of the existence of a catwalk below the main truss which would prevent a net placed above or below the catwalk from serving its intended purpose of

l2 The Commission also made it dear that the “substantial portion of the work&y testn or the “not actual@ used test” applies only in those cases where the net issue is reached. Falcon, supra, at 1191-92

13 protecting employees from falls (Tr. 44~442,460462) (Se Respondents’ Briet; P&S.31-35 for a detailed explanation of the catwalk problem). He further conceded in the matter of other ironworkers that his initial assessment of the situation did not take into account the substantial amount of “hot work” required for removal of pork chops and other structural members on the bridge. This circumstance would cause the nets to burn on a regular basis and would present “a difficult question to answer” (Tr. 407-415, 452-454). He final@ concluded the use of “static lines, tieoffs, and other methods of protection” would be more appropriate than nets to protect workers engaged at the Main Avenue Bridge (Tr. 448-449).
Joseph Turner, assistant chief of construction, U. S. Army Corps of Engineers, Huntington Division, agreed with the Secretary that employees working above 25 feet must be protected in some fashion and that the policy of the Corps is to protect such employees “one hundred percent” (Tr. 513). His past experience in using nets, however, related solely to the placement of nets on two new bridges which did not require “rehabilitation” or significant amounts of “hot work” above the nets. Turner did not appear to be comfortable with the use of nets where they were exposed to substantial amounts. of “hot wurk” vr. 484- 489,494-499,524-527). In short, Turner’s testimony concerning the use of nets on projects requiring extensive “hot work” was unconvincing and inconclusive. Turner agreed with respondents that the use of nets to protect the employees engaged in the pan drop operation was inappropriate because of the “catwalk problem” (Tr. 530-531). He also believed other forms of fall protection, “scaffolding, man baskets with tie 06 safety belts and lanyards, and work platforms” were more appropriate than the use of nets on the worksite in question (Tr. 499-500).
Steven Miller, respondents’ expert and president of Miller Safety Consulting Co. (Tx.
1294), embraced respondents’ theory that nets were not “at all practical, and whenever there is any means of alternative fall protection, I pursue that” (Tr. 1304). He was also in agreement with the other experts that nets were inappropriate for use in the pan drop procedure due to the “catwalk problem” (Tr. 131901324)and agreed with the proposition that nets were not appropriate for use at this site due to the “debris and hot work” problems (Tr. 1328-1331).

14
Upon consideration of the expert testimony, it is concluded the use of nets under the circumstances of these cases would have been both impractical and infeasible. The proper
‘, focus of these cases is upon the practicality of using other methods of fall protection specifiedin tie cited standard and, in particular, the use of safety belts and lanyards.

Serious Citation No. 1

This item charges both respondents with a violation of 0 1926.105(a) and, in the alternative, with a violation of $, 1928(a)13for their alleged failure to provide any means of fall protection to employees engaged in the pan drop operation. For reasons previously given, the court does not consider the use of nets appropriate to protect these employees due to the “catwalk problem,” nor is it necessary, under current Commission precedent, to consider the use of nets if other devices are “practical.” Based upon the evidence of record, the court is convinced the pan drop crew could have been protected by the use of safety belts and lanyards, a method which was botb practical and readily available to respondents’ employees.14 The facts concerning the pan drop operation have been recited and need not be repeated. It is clear that these employees were working at heights in excess of 25 feet but were not, at the time of the accident, protected by any means of fall protection.
Respondents concede in their posthearing brief “that neither Petrella nor Clark were wearing and/or using safety belts and lanyards at the time of the accident ‘%ut maintain these employees were protected by “a catch platform located immediateb bebw the work area” (RespondentCBriec pgs. 15-16). In support of this contention, respondents refer to

l3 Section 1%8(a) providedes:

(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to empl-

I4 It is undisputed in the record that respondents fumished all employees withsafetybeltsand lanyards and encouraged their use when working above 6 feet. a number of photographic exhibits (Ed. R-8, R-12, R-14, R-15, R-18, etc.) which purport to show a platform underneath the deck. This circumstance proves nothing in the absence of other evidence which shows some connection between the exposed employees and the use of these platforms as a means of fall protection. Respondents concede “there is no evidence as to why the platforms were located in this area.” Id In truth, these devices were not “catch platforms” for use as fall protection but “debris platforms” used by the laborers to collect scrap resulting from demolition of the deck. There is simply no evidence to support a conclusion these platforms were either intended for use by the pan drop crew or actually used as a means of fall protection. The presence of these platforms in the area of the pan drop was mere happenstance and bore no relationship to protecting the pan drop crew from fall hazards.
Equally without merit is respondents’ contention that the steel deck pans &vobed in the pan drop operation served as temporary floors. This argument is valid only upon a showing that Kersman’s plan was carefully followed, in which event the pans muld have remained stable when cut from the permanent welds, and the crew performirrg the drop would experience no exposure to a fall hazard. This argument, while reflecting the exercise of ingenuity by respondents’ counsel, cannot pass a reality test in view of the facts disclosed in the record.
To prove a violation of a standard under 9 5(a)(2) of the Act, the Secretary must establish the following elements:
(1) The standard applies to the working conditions cited, (2) the terms of the standard were not met, (3) employees had access to the violatie conditions, and (4) the employer knew of the violative conditions or could have known with the exercise of reasonable diligence. Ki& Constr. M~JLCorp., 15 BNA OSHC 1870, 1992 CCH OSHD ll29,829 (No. 88-1167, 1992); ktm Phmaceutical hds., Inc., 9 BNA OSHC 2126, 1981 CCH OSHD 125,578 (No. 78-6247, Ml), afd, 681 F.2d 69 [lo OSHC 1671 (1st Cir. 1982).

The first three elements are not a matter of controversy between the parties. Item 4, the knowledge element, has been previously considered, sups, together with respondents’ defenses based upon employee and foreman misconduct in connection with Serious Citation No. 1, item l(a), and need not be repeated.

16 me principal issue for resolution of this particular item is whether the record establishes that safety belts were “practical” for use by the pan drop crew As was the w h Falcon stee& ~RZ, the Secretary in this case relies heavily upon the compliance officer’s testimony to support his contention of practicality. Dill testified “the most logical” means of protecting these employees “would have been to have [them] tied off. There were places where [they] could have been tied off’ (Tr. 869-870). While Dill’s testimony on the point was sparse and could have been further developed by the Secretary, it went unchallenged by respondents. ls Dill is an experienced compliance officer who has worked for the agency , since its inception, received training at the OSHA Institute including training in fall protection, and has made numerous inspections of construction sites (Tr. 78&782). His opinion is entitled to “probative weight” and must prevail in the absence of challenge. (See Falcon Steel, Id at 1190).
Aside Tom the compliance officer’s testimony, however, other evidence in the case supports a conclusion that safety belts were practical. It is undisputed that rcspo~dents furnished all employees safety belts and lanyards (Tr. 868) and encouraged their use to protect against falls when no other devices were available. The use of safety belts and lanyards was respondents’ method of choice for fall protection.
From this circumstance it is logically inferred that respondents considered the use of safety belts and lanyards to be “practical” in a general sense. In the absence of a showing by respondents of special circumstances which would make their use “impractical,” it is concluded the use of belts was “practical” in the case of the pan drop operation. Ample evidence was developed during the course of the hearing to support a conclusion these employees could have tied off to permanent structures at the worksite or to “rat lines” which ran down the main trusses.
In addition to the compliance officer’s opinion, all three experts were in agreement that the use of safety belts was a practical means of providing fall protection to members

ls Respondents offered no proof that belts were impractical or inappropriate for use by the pan drop crew.

17
of the pan drop mx Accordingly, the Secretary has carried his burden of proof and

Serious Citation NO. 1, item l(b), is affirrned.‘6

SERIOUS CITATION NO. 1

Classification and Penalties

Section 17(k) of the Act provides a violation is serious if there is a substantial probability that death or serious physical harm could result.
AS construed by the Commission, this provision “does not mean that the occurrence of an accident must be a substantially probable result of the violative condition but rather that a serious injury is the likely result should an accident occur. Super Excavators, Inc., 15 BNA OSHC 1313, 1315, 1991 CCH OSHD ll29,498 at 39,804 (No. 89-2253,199l). Under the facts of this case, the Secretary has appropriately classified the violations as serious.
Section 17(j) of the Act provides that the Commission shall assess an appropriate penalty for each violation giving due consideration to the size of the employer, the gravity of the violation, the good faith of the employer, and the employer’s history of previous violations. These factors have been considered by the Secretary (Tr. 872) and by the court. It is concluded the Secretary’s proposed penalties are appropriate and will be imposed as follows:
(1) In Docket No. 92-1550 (National), an aggregate penalty of $7,000.
(2) In Docket No. 92-1551 (‘H-State), an aggregate penalty of $4,200.

WILLFUL CITAmON NO. 2

Item l(a)

This item charges respondents as follows:
29 CFR 1926.21(b)(2): The employer did not instruct each employee ti the recognition and avoidance of unsafe condition(s) and the regulation(s) applicable to his work environment to control or eliminate any hazard(s) or other exposure to illness or injury.

l6 In view of the conclusion reached, it is unnecessary to consider the alternate charge under 8 192628(a).

18
 On or before 2/18/92, employees working at the Main Avenue Bridge site, were not properly instructed on fall protection. Although the company’s stated position was to require employees to tie-off whenever working at &v&m exceeding six (6) feet where fall hazards existed, supervisory personnel and ironworkers acknowledged the infeasibility of tie-off in certain situations, e.g., connecting, transporting materials relating to bolting-up, installing ladders, and moving from point-to-point. Furthermore, ironworkers were instructed and/or permitted to utilize safety blocks (“snatch blocks”), retractable lifelines, that were connected to horizontal static lifelines thereby allowing the worker to travel up to 26 feet (20’ retractable line plus 6’ lanyard) from the point of connection and fall a like distance. This usage is contrary to manufacturers ‘specificationswhere such retractable devices are to be installed above the worker and used within 30 degrees of the vertical to eliminate a pendulum effect occurring after a fall.

It is noted at the outset that respondents had a safety program” administered by
a full-time safety director, William Bunner? This program included week@ tool bax. meetings with employees conducted by foremen in which safety was m Each employee was furnished a safety belt and lanyard at the time of employment and was told to use these devices whenever exposed to a fall hazard in excess of 6 feet. Other safety devices provided at the worksite included rat lines (wire cable strung at a height of 42 inches between stanchions at intervals of 20 feet), which ran east to west on the main trusses and served as a tie-off point for employees moving over the trusses, retractable lanyards, which were used by employees moving north or south to work on the stringers, pork chops, facie beams and saddle scaffolds, which were used by employees bolting up or detailing the floor beams, pork chops and facie beams. It is clear in the record that respondents’ announced policy (as expressed by Bunner and others) required all employees to be protected at all times by some form of fall protection. It is equally clear this policy was not followed in practice by a significant number of ironworkers before the accident and that respondents’

l7 The written program was referred to in the record but was not offered into evidence.

l8 Builder assisted respondents’ counsel throughout the trial andwasdesignatedas a witnesson respondents’ witness list. He was not, however, called to testify.

19 management personnel were aware of this fact but took no effective steps to insure the policy WIIS followed.
This problem is discussed in the testimony of John Deluca, National’s tie-president ad general field superintendent, who worked with BUMCXto develop a fall protection program for the project (Tr. 2041). They considered the use of nets but rejected that method due to the “hot work and debris” problem (Tr. 2041-2045) and decided to use other means (Tr. 2046). A key element of their plan was “100% tie off’ when workers were not otherwise protected. In December 1991, Deluca was told by Bunner “that our foremen and their people, the ironworkers, for all practical purposes were not tying off on the project. They weren’t following our safety procedures” (Tr. 2051). De&a and Bunner went to the worksite and discussed the problem with the foremen and their supervisors. The trade primarily invoked was the ironworkers who maintained “their trade did not require tying off at all times” (Tr. 2052). This problem was temporarily resolved by instructing the foremen and their supervisors to follow the tie-off rule “at all times” but exempting the co~ectors from the rule when the steel “was being swung in” (Tr. 2053). A second co&ontation with the ironworkers occurred in late January 1991 when the ironworkers walked off the job in protest to their perception that respondents “were trying to work too safely” (Tr. 2053). Deluca and Bunner again discussed this matter with the involved foremen, their supen&xs, and Ted Sheppard, president of Tri-State, and reiterated the company policy that everyone would tie off at all times (Tr. 2055).
Kersman also confirmed the company policy requiring 100 percent tied when
employees were not otherwise protected (Tr. 1045). He testified this policy was communicated to employees through their foremen who had the primary respobility for etiorcement of the rule. Whenever he observed employees who were not tied off, he would “remind the foreman that they had to be tied off’ and the foreman would “normally” correct the problem (Tr. 1034). He acknowledged the resistance of ironworkers to the tie-off rule and attributed this to their “macho image” (Tr. 1037). Persuasion was the method used to obtain compliance, but this method was ineffective since respondents had no disciplinary program (except verbal warnings) to aid in the enforcement of the rule (Tr. 1037). Kersman testified his only recourse was to fire the violators, a method he did not

20 choose to follow (Tr. 1038). Kersman reiterated on cross-examination that the U)o percent tie&f policy applied to all operations on the bridge, but “there were ironworkers that did not foUowthe policy at times” (Tr. 1208). He also conceded respondents had no disciplinary program except verbal warnings which were not documented. IrL Robert Schumacher, the union steward for Tri-State ironworkers, was on the jobsite during the pertinent period (Tr. 49). Because of his union duties, he was aware of the everyday activities throughout the worksite (Tr. 5143). He confirmed that ironworkers and their supervisors were instructed by Bunner to follow the company rule requiring 100 percent tie-off when not protected from fall hazards by some other means (Tr. 128). It was Schumacher’s opinion, shared by other ironworkers and their supemisors, that 100 percent tie-off was impractical and would slow up the work (Tr. 129).lg He did not dispute, however, the tie-off rule was company policy or that employees were instructed to follow the rule. He was firm in his testimony that the rule was regularly violated by ironworkers, estimating that the detail crew alone violated the rule 50 percent of the time while in Ml view of their foremen and supenrisors (Tr. 165-166). He also confirmed IK) one was disciplined for violating the rule until after the accident (Tr. 166).
Based upon the evidence of record, the court makes the following finding:
(1) Respondents had knowledge of the fall hazards expected to be encountered in rehabilitating the Main Avenue Bridge and were aware of their obligation to instruct employees in the recognition and avoidance of these hazards.
(2) Respondents’ fall protection plan for the project included the use of various devices, e.8, catch platforms, saddle scaffolds, work platforms, etc., whenever appropriate. Respondents recognized, however, the use of these devices would not protect employees from fall hazards at all times.

lg Schumacher disclosed a practice where employees were warned in advance of Buaner’svisitsso whenhe showed up, “everybody would be tied off’(Tr. 130). The same subterfugewasusedwhenOSHAinspectors visited the site. IrL

21
 (3) Safety Director Bunner, after consultation with top management, devised a pot, which required respondents’ employees working on the bridge to be tied off 100 percent of the time when not otherwise protected from falls.
(4) This policy was communicated by Bunner to respondents’ supervisors and foremen who relayed these instructions directly to employees.
(5) Respondents provided employees with safety belts and lanyards which could be used for tying off to permanent structures at the work station or could be hooked to rat lines running east to west while traveling the main trusses of the bridge. Respondents provided some retractable lanyards (snatch blocks) which could be attached to the rat lines and used for fall protection when moving in a north/south direction over the floor beams.
(6) While employees were instructed by respondents to tie off at all times, sign&ant numbers (especially ironworkers) regularly violated the rule, and this circumstance was known by foremen, supervisors and top officials of both companies.
(7) No effective measures were taken by respondents to rectify this condition until after the accident occurred.
In their brief, respondents again cite Dmvo, sups, in support of their position that
this item should be vacated. Unlike the situation with the pan drop crew where the evidence disclosed respondents’ failure to give any instruction to three of the four crew members, no such distinction is available here. The picture emerging from this record is one in which employees were repeatedly told by the safety director, their supervisors and their foremen that they must tie off 100 percent whenever they were not otherwise protected. These instructions were ignored by numerous employees with the complicity of their supervisors, and the dangerous practice continued since no effective discipline was imposed? The facts of this case are a textbook example of the results which can be expected if the Dmvo decision is allowed to stand. The undersigned respectfully renews the suggestion that Duw

2oThere is a strong suggestion in the record that everyone in respondents’ organization Born top management down to foremen and workers were motivated to short-cut safety due to the pressurescreated by the “incentivedisincentive” clause in the contract. Kersman denied this (Tr. 1031~1032),and the point was not fully developed in the record. While the court makes no findings in this regard, this theory, if true, would explain many of the unanswered questions in the case.

22 be reversed. Until this occurs, however, this Court is bound to fohw Dmo. That portion of UIillful Citation No. 2, item l(a), which relates to respondents’ failure to give tie-off instructions is vacated and this circumstance will be considered in assessing appropriate penalties.
The remaining matter for consideration is the Secretary’s contention that employees were not instructed in the proper use of retractable lanyards (“snatch blocks”), a device connected to the rat lines on the main trusses to protect workers traveling in a north/south direction over the floor beams to their work stations on the outer edges of the beams.
The manufacturer’s instruction manual concerning the use of these devices was received into evidence as Exhibits C-24 and C-32. This manual reflects the need to instruct employees in the proper use of the device and recommends it be attached above the head of its user to prevent a possible “pendulum effect” in the event of a fall. It is undisputed in the record that these devices were used in the horizontal position, ie., tied off to the rat lines installed on the main trusses. Even respondents’ expert on the subject agreed the use of “snatch blocks” in the horizontal mode was not safe (Tr. 1685). It-is noted, however, that the Secretary’s expert, Joseph Turner, testified snatch blocks were an acceptable means of fall protection when used properly and were in general use at TVA projects (Tr. 500-501). Based upon the evidence, it is concluded an employer choosing to use snatch blocks is required to instruct employees in their proper use, including the proper placement of these devices to avoid the “pendulum effect.” It is clear in the record that respondents did not instruct employees in the proper use of retractable lanyards. This fact is verified in the testimony of Schumacher, Muscavic, Clark, Johnson and Dunham (Tr. 126,301,591,6%, 714,1412). In view of this conclusion, item l(a) of Willfkl Citation No. 2 will be affirmed as it relates to a failure to instruct employees in the safe use of retractable lanyards.

WILLFUL CITATION NO. 2

This item charges respondents with a willful violation as follows:

23
 29 CFR 1926.105(a): Safety nets were not provided when workplaces were more than 25 feet above the ground or water surface, or other surface(s) where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts was impractical:

On or before 2/18/92, employees working at the. Main Avenue Bridge site performing such tasks as: bolting up, connecting, installing ladders, installing leveling angles, etc., were not protected at all times Erom fall hazards exceeding 25’by the use of fall protection such as: safety belts/lanyards, catch platforms and/or nets. Safety belts and lanyards were available, however, their use was deemed infeasIble during certain phases of these jobs. NO alternative protection was provided;’ Furthermore, when tie-off was used, it was sometimes used in conjunction with retractable lifelines (“snatch blocks”), connected to horizontal lifelines. As used, the retractable lifeline extended the horizontal distance a worker could travel up to 20”, thereby creating the pos&ility of a pendulum effect in the event of a fall.

As previously discussed, it is unnecessary to reach the net issue if the evidence reflects employees could have been protected by the use of other devices identified in the standard. There is no dispute respondents used a variety of devices (e.g., saddle ~Molds, work platforms, catch platforms, snatch blocks, belts and lanyards) to protect employees fium falls. The Secretary maintains, and the evidence confirms, employees engaged in bolting up, installing ladders and leveling angles, and in moving point-to-point over the beams and trusses,z1 were not protected by any of these devices on numerous occasions md for significant periods. 22 The key element of respondents’ fall protection plan was the “100

*l In their brief, respondents object to any consideration of the “point-to-point” issue on grounds that this activity m not spe&ally teftrenced in the Secretary’s citation (Respondents’ Briet, p@ 55-56). Respondents acknowledgethe Secretary’s use of the term “etC’ in the citation but argue that respondents were providedinsulIidentnotice of the issue and have been prejudiced in their defense, This argumentis rejected. The “point-to-point” issue was specifically referenced by the Secretary in connectionwiththe charges brought under lMlKialCitation No. 2, item l(a). The issue was addressed by both parties in their presentation of the evidence. Acaxdingiy, the issue was tried by actual or implied consent, respondents had sufkient time to develop a defense during the nineday trial, and no prejudice has been shown.

22 The Secretary also urges that connectors were not tied off while moving in the steel, and the record confirms this Wt. Respondents argue, however, that industry custom and practice recognin an exception for wnnectors based upon their need to be unrestrained during the operation (Respondents’ Briec p&s.5940). Respondents further argue the Secretary has acquiesced in the practice and introduced several OSHAopinion (continu&..)
.
24 percent tie-off rule,” which rule was ignored by many of respondents’ supervisors, foremen and employees despite the repeated efforts of the safety director to enforce the rule. )[n essence, respondents allowed “the tail to wag the dog.” III view of what has been previously discussed, it is unnecessary to dwell at length upon the practicality of using safety belts and lanyards. This was the method of choice selected by respondents’ management for use when employees were not otherwise protected. It was a method recognized as practical by Compliance Officer Dill and the three experts appearing in the case, all of whom testified the method was in general use throughout the industry. Except for ironworkers, \the method was actually followed by most of respondents’ employees when their foremen and supervisors insisted the policy be followed.” The court finds as a fact that the use of safety belts and lanyards was a practical means d protecting employees from fall hazards encountered on the project.
It is further found as fact:
(1) Many of respondents’ employees engaged in bolting up, installing ladders and leveling angles, and in moving point-to-point along the main trusses and floor beams of the bridge, were not tied off for significant periods while performing these tasks exposing them to fall hazards.” (2) The corporate respondents had knowledge of these violations through the imputed knowledge of their supervisors and foremen.
(3) Respondents did not establish defenses of either unpreventable empluyee or foreman misconduct for the reasons discussed in connection with Serious Citation No. 1,

letters to this eff&ct(B&s. R43, R-49, R-SO),together with the testimony of James Vaughan, a tinner area director for OSHA in Columbus (Tr. 1482-1609). In view of the unsettled nature of the Secretary’sposition, the court will dis~m the charges as they relate to connectors while moving in steel. The ultimate issue can be determined on the basis of other evidence in the case.

23 See testimony of Brandt, carpenter foreman, whose crew was always hooked to rat lines (Tr. 17O147O4)and had no problem following the companies’ tie-off policy (Tr. 17074711). See also testimonyof James Phillips, T&State ironworker foreman, who enforced the tie-off rule and insured the rule was followed by his crew (Tr. 18054806).

24 The record is replete with examples of violations. See Appendix A attached to the secretary’s posthearing brief which verifies, by transcript reference, the numerous incidents of violations.

25 item l(a), ie., the respondents failed to show the violationswere unpreventable; the work des were “adequately communicated and effectively enforced;” or that its “supen&ors were adequately supenbed.”

WILLFUL CITATION NO. 2

Classification and Penalties

In Falcon Steetz supra, the Commission, quoting O’Hom, sups, described a willful violation as one “committed with intentional, knowing or voluntary disregard for the requirements of the Act, or with .plain indifference to employee safety.” It further noted:
A willful violation is differentiated from others by an employer’s heightened awareness of the illegality of the conduct or conditions and by a state of mind, ie., conscious disregard or plain indifference for the safety and health of employees. Logically, then, a willful charge is not justified if an employer b made a good faith effort to comply with a standard or eliminate a hazard, even though the employer’s efforts are not entirely effixtive or complete.
WU1iizm.s Enterp., Inc., 13 BNA OSHC 1249, 125637, 1986-87 CCH OSHD 1 27,893, p. 36,589 (No. 85-355, 1987). The test of good faith for these purposes is an objective one-whether the employer’s belief concerning a factual matter or concerning the interpretation of a rule was reasonable under the circumstances.

It is concluded f!rom the record that respondents’ top management, mid-line supervisors, and front-line foremen were aware of the fall hazards presented when employees were engaged in the activities described in the Secretary’s citations. They were fully aware of the tie-off rule devised by respondents’ safety director to protect these
. employees and knew this rule was not followed in practice by a significant number of employees. Despite repeated warnings from the safety director that the rule was being ignored, respondents assumed an attitude of indifference and took no effective steps to enforce the rule until after the accident occurred. Th[isconstitutes willfbl conduct, and the Secretary’s charges are affirmed as willful.

25The court notes the Commission found in Falcon the violations regarding ironworkers’ failure to use belts was “serious” .rather than ‘willful” under the facts of that case. The Commission explained, however, upon a showing of obstinate indifference to employee safety, a willful violation would be affirmed 16 OSHC at 1195. This court believes such a showing has been made in this case.

26
The court has considered but rejects respondents’ contention that they acted in good faith. The only person on respondents’ management team who showed any genuine concern for employee safety was the safety director who. did not receive adequate support or authority from respondents to insure the safety rules were followed.
The corporate respondents’ conduct can only be characterized as one of “obstinate indifference” to employee safety.
Under current statutory criteria, employers who willfully violate theActcmbe assessed up to $70,000 for each infraction.26 In these cases, the Secretary has proposed aggregate penalties for items l(a) and l(b) totaling $70,000 in the case of National and $42,000 in the case of Tri-State. While the record in this case justifies substantial penalties, the court concludes the Secretary’s proposals are excessive.
As noted above with regard to item l(a), the Secretary, in view of DEW, sup’4, did not sustain his failure-to-instruct charge except as it relates to employees who were not instructed in the proper use of retractable lanyards. This circumstance must be taken into account and requires an appropriate penalty reduction.
The Secretary allowed Tri-State a 40 percent reduction due to its small size but allowed no other reductions to either respondent based upon good faith, gravity of the violation, or previous history. This court is in general agreement with the Secretary% assessment. For reasons already expressed, a reduction based upon good faith is out of the question in this case. The grayity factor must be rated high due to the number of employees exposed and the consequences which would result from a fall in excess of 25 feet. Likewise, the record reflects National, the parent company of T&State, was previously cited for violations of 0 1926.21(b)(2) and 8 1926.105(a), which citations were affirmed by the Commission in 1987 and 1988 (E&s. C-39, C-40). The 5 1926.105(a) violation affirmed in 1987 was classified as willful and carried a penalty of $9,000 (Exh. C-39).

26 See 29 U.S.C. 3 666(a)and (c), as amended, Pub. L 101-508, Title III, Section 3101, 104 Stat. 1388-29 WV*

27 h view of the foregoing, aggregate penaltiesin the fdbing anmuHs are considered appropriate:
In Docket No. 924550 - $5o,ooo
In Docket No. 924551 - $30,000

FINTXNGS OF FACI’ AND
CONCLUSIONS OF LAW

The foregoing constitutes the court’s findings of fact and conclusions of law as required by Rule 52(a) of the Federal Rules of Civil Procedure.

It is hereby ORDERED:
(1) Serious Citation No. 1, items l(a) and l(b), are affirmed and aggregate penakies are assessed as follows:
In Docket No. 92-1550 - $ 7,000
In Docket No. 924551 - $ 4,200
(2) Willful Citation No. 2, items l(a) and l(b), are affirmed and aggregate penalties are assessed as follows:
In Docket No. 924550 - $5o,ooo
In Docket No. 924551 - $34ooo

EDWIN G. SALYERS -~~
Judge
0

Date: April 14, 1994

28