FABI Construction Company, Inc.

Read the official release (oshrc.gov)

Plain-English summary

A FABI employee was killed when a 10,000-pound concrete knockout slab collapsed during demolition at an Atlantic City construction project. After reviewing the full record, the Commission affirmed the judge's findings that FABI committed multiple serious construction violations, including failures involving its safety program, demolition and fall-protection training, structural-integrity assessment, open edges and holes, and stairways. It also affirmed two other-than-serious floor-cover violations. The Commission upheld total penalties of $31,500.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.20(b)(1), 1926.21(b)(2), 1926.501(a)(2), 1926.501(b)(1), 1926.501(b)(4)(i), 1926.502(i)(3)-(4), 1926.503(a)(1), and 1926.1052(b)(2), (c)(1)
• Outcome: The Commission affirmed all violations before it and upheld total penalties of $31,500.
• Key point: A construction employer must tailor its safety and training programs to the demolition and fall hazards employees actually face, including the changing structural integrity of a surface being demolished.

Full text (OSHRC public release)

FABI Construction Company, Inc., Docket No. 96-0097

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 96-0097

FABI CONSTRUCTION COMPANY, INC.,

Respondent.

DECISION

Before: RAILTON, Chairman; STEPHENS, Commissioner.

BY THE COMMISSION:

Fabi Construction Co., Inc. (“Fabi”) performed demolition and concrete construction
work at the TropWorld West Tower Expansion Project in Atlantic City, New Jersey,
pursuant to a subcontract with general contractor Keating Building Corporation. On June 10,
1995, a Fabi employee was killed when a 10,000-pound concrete slab located on the tenth
floor of a parking garage collapsed as he and a co-worker were attempting to demolish the
slab while standing on its surface. As a result of several subsequent inspections, the
Occupational Safety and Health Administration issued three citations to Fabi alleging
violations of various standards under the Occupational Safety and Health Act of 1970, 29
U.S.C. §§ 651-678 (“the Act”), and proposing a total penalty of $105,000. Administrative
Law Judge Covette Rooney issued a decision on April 6, 1998, in which she affirmed most
of the citation items, affirmed the alleged willful item as serious, and assessed a total penalty
of $31,500.

The Commission directed review of all of the affirmed citation items, including one
item that was cited as a violation of two standards and affirmed only as to one. We have
examined the record in its entirety, considered the arguments of the parties, and conclude that
Judge Rooney’s decision finding that Fabi violated the Act with respect to the citations at
issue on review is supported by the evidence and applicable legal precedent. Accordingly,
we affirm the following violations and penalty amounts, as assessed by the judge whose
decision is attached hereto.

Serious Citation 1, Item 1(a): 29 C.F.R. § 1926.20(b)(1)

Penalty - $5,000

Serious Citation 1, Item 2: 29 C.F.R. § 1926.503(a)(1)

Penalty - $5,000

Serious Citation 2, Item 1: 29 C.F.R. § 1926.21(b)(2)

Penalty - $7,000

Serious Citation 1, Item 3(a): 29 C.F.R. § 1926.501(a)(2)

Penalty - $7,000

Serious Citation 1, Item 4: § 1926.501(b)(1)

Penalty - $2,500

Serious Citation 1, Item 5(a): § 1926.501(b)(4)(i)

Penalty - $2,500  

Serious Citation 1, Item 6(a), § 1926.1052(b)(2) and Item 6(b), § 1926.1052(c)(1)

Penalty - $2,500

Other-Than-Serious Citation 3, Items 1(a), § 1926.502(i)(3) and 1(b), § 1926.502(i)(4)

No penalty

SO ORDERED.

/s/                                                    

W. Scott Railton

Chairman

/s/                                                    

James M. Stephens

Commissioner

Dated: May 30, 2003           

SECRETARY OF LABOR,

Complainant,

v.

DOCKET NO. 96-0097

FABI CONSTRUCTION COMPANY,

Respondent.

Appearances: For Complainant: William Staton, Esq., and Stephen D. Dubnoff, Esq., Office of the Solicitor,
U. S. Department of Labor, New York, NY.; For Respondent: Joseph P. Paranac, Jr., Esq., Jasinski and
Paranac, Ten Park Place, Newark, NJ.

Before: Judge Covette Rooney

DECISION AND ORDER

This proceeding is before the Occupational Safety and Health Review Commission pursuant
to Section 10(c) of the Occupational Safety and Health Act of 1979 (29 U.S.C. §651, et seq. )(“the
Act”). Respondent, Fabi Construction Company (“Fabi”), at all times relevant to this action
maintained a worksite at the TropWorld West Tower Expansion, Brighton & Pacific Avenues,
Atlantic City, NJ., where is was engaged in the business concrete installation and demolition work.
Respondent admits that it an employer engaged in a business affecting commerce and is subject to
the requirements of the Act.

Respondent was a subcontractor on the subject worksite which involved the construction of
a 21-story hotel on top of an existing 10-story parking garage. In December 1994, Respondent was
hired to perform concrete work. Respondent’s laborers also performed demolition work on the
existing parking garage. This work involved the demolition of ramps, stairs, stairway panels,
knockout slabs/panels, and caps on existing columns. All of these structures were made of
reinforced concrete containing steel reinforcing rods or rebar (Tr. 77,82-83, 987-88; Exh. G-4 ).

On June 10, 1995, Respondent’s employees were scheduled to demolish the first elevator
knockout panel on the roof of the parking garage. While two laborers were in the initial stages of
demolition the slab collapsed. One of the two employees was fatally injured. As a result of this
accident, OSHA commenced an investigation on June 10, 1995. The investigation continued until
December 8, 1995. Compliance Safety and Health Officers (“CO”) William DuComb and Dolores
Soss commenced the fatality inspection. During the course of this inspection, on June 14-15, 1995,
CO Bernard DeZalia and CO Peter Kurtz commenced a complaint inspection in response to an
“imminent danger” complaint. Additionally, on July 6, 1995, a second complaint inspection was
conducted by CO Kenneth Steinberg. As a result of these inspections, on December 8, 1995,
Respondent was issued three citations, alleging serious, willful, and other-than-serious violations.
By timely Notice of Contest Respondent brought this proceeding before the Review Commission.
These citations have been the subject of several amendments. The contested items, as amended, with
a proposed penalty of $105,000.00 were the subject of the hearing held before the undersigned. The
hearing was held on September 22 through 26, 1997 and September 29 to October 2, 1997. At the
commencement of this matter, counsel for the Secretary made an unopposed motion that portions
of a deposition of Linda Forsyth, former Area Director of the Marlton Area Office, designated at the
deposition as “sealed”, be sealed. The undersigned granted the Secretary’s motion for the sealing
of the designated portions of the deposition (Tr. 13-14). Counsel for the parties have submitted Post-Hearing Briefs and Reply Briefs. This matter is ready for disposition.

BACKGROUND

During the original construction of the garage, knockout panels had been poured in place
after the surrounding deck had been completed (Tr. 33; Exh G-2). A knock out panel is a temporary
panel that is intended to be removed at a later date for future construction. The knockout panels at
the subject worksite covered shafts in the existing garage which were to be used for the future
construction of elevators and stairwells (Tr. 30). These knockout panels were made of reinforced
concrete. A “bond breaker” made of plastic or some other material, and a water sealant were placed
around the perimeter of the knockout panel in the ½ʺ gap that existed between the panel and the
surrounding deck (Tr. 37, 49, 333, 550, 552, 605). All of the knockout panels contained steel
reinforcing rods or rebar (Tr. 63, 115, 170, 240). The panels were approximately 16 feet long and
9 feet wide and 8 inches thick (Tr. 34). The original structural drawings for the garage, the Walker
Drawings, show that the rebar went continuously through the slab and ended when the slab ended.
i.e., it was not doweled into the floor (Tr. 61, 170, 544)

. The rebars were on 12-inch centers and
those going north to south were 5/8" in diameter, and the rebar going east to west was 1/2 in
diameter (Tr. 175-76). According to the plans the rebar was not doweled into or tied into any other
part of the deck, the panel rested on the lip of the deck(Tr. 41-42, 341).

The record reveals that Fabi’s demolition work commenced in late December 1994. On
February 5, 1995, Fabi demolished three knockout panels on the ground floor of the garage that
covered the elevator pits. These panels were flush to the slab on grade with the surrounding area.
All of the panels on the ground floor were supported from below by resting upon four-inch wide
ledges located on all four sides of the panels and a metal deck below. The panels were broken up
with a jackhammer and the debris fell onto the metal pans below. Prior to the removal of each of
these slabs, a pilot hole was first created to find out the composition of the material, and to see what
was underneath the slab in terms of reinforcement or rebar (Tr. 49,107-110, 320-324). The pilot hole
for each panel revealed that the rebar was in place and the metal pan was underneath(Tr. 321-24).
The employees worked standing on top of the panel (Tr. 111). On February 9, 1995, Fabi
demolished two knockout panels on the second floor. These panels covered elevator shafts and were
resting on parapet walls elevated four feet above the surrounding floor. These panels were also
removed by first creating a pilot hole and the use of a jackhammer. The pilot holes revealed that the
rebar was running properly - north\south and east\west directions. There were also metal pans under
these panels. The removal of these panels revealed that each panel was doweled on one side into that
wall (Tr. 325-328, 330). The structural drawings, i.e., Walker Drawings, did not indicate the
presence of dowels for these panels (Tr. 339).

On the roof of the garage, one stairway knockout panel and two elevator knockout panels
were scheduled for demolition. The Walker Drawing for the roof - S3.10, indicated that the panels
sat on a 4- inch ledge on the east and west ends (Tr. 38; Exh. G-2). The north and south ends sat on
no support (Tr. 33, 39). The stairway panel was the first panel on the roof to be removed. This panel
differed from the previously demolished panels in that it was not supported from below by a metal
deck. In order to prevent debris from falling into the stairway, a deck made of aluminum beams and
plywood was built approximately 3 feet below the bottom of the panel (Tr. 114). The Walker
Drawings indicated that the supporting ledges, i.e., lips, were along the east and west sides of the
panel, which were the longer dimensions of the stairway panel (Tr. 40-41; Exh G-2). During the
course of the demolition of the stairway panel it was discovered that the four of the rebars were
doweled into two sides of the shaft. The dowels were only embedded a couple of inches according
to the Project Superintendent, Ray Apice (Tr. 115). The Walker Drawings did not indicate that these
rebars were doweled into the shaft (Tr. 170, 357, 1040, 1046; Exh. R-30).

On Saturday, June 10, 1995, the first of the elevator knockout panels on the roof was
scheduled to be demolished. This work was being done on a Saturday to accommodate the schedule
of other subcontractors scheduled to work in the area later in the week (Tr. 223). This pane was to
be removed in the same manner as the other knockout panels. The panel was over a shaft 110 feet
above the ground floor. It was resting on four-inch wide ledges along the shorter, east-west
dimensions of the panel (Tr. 38, 41). The ledges were visible from below the panel (Tr. 40). The
plan indicated that the panel contained rebar #5- 5/8”in diameter extending lengthwise in the
north/south direction and was 12 inches apart; then a # 4- 1/2 inch in diameter extending east/west,
was perpendicular to it (Tr. 41; Exh G-2). According to the plan, the rebar was not tied in or going
into other part of the deck. The panel rested on the lip/edge (Tr. 42). There was no metal deck
beneath the bottom of the panel. The day before, the carpenters had built a platform directly below
the slab about 3-4 feet from the bottom of the panel, to keep debris from falling into the shaft (Tr.
239, 492-93).

A sheer wall was along the east side of the panel (Tr. 227). Along the south and west
sides of the panel, a 30- to 36-inch crawl space existed below the interstitial floor that would support
the new hotel under construction (Tr. 227, 235: Exh G-6). The north side was the only open access
to the panel (Tr. 230; Exh G-6).

THE FATALITY

Respondent’s labor foreman, Charles “Bobby” Cincotti, and two laborers, Thomas Kane and
Frank Caucci were assigned to do the demolition that day. Mr. Kane had not been previously
involved in the removal of any other knockout panel at the site (Tr. 221). Mr. Caucci had been hired
the week before and he was paired with Mr. Kane for on-the -job training in what was referred to as
a “partner deal” (Tr. 224). Upon their arrival on the job, between 6:30 A.M. and 7:00 A.M., Messrs.
Kane and Caucci first went into a shop with Mr. Cincotti to discuss what they were going to need
and to gathered the equipment needed for the job (Tr. 225). Once they got to the roof and were
actually at the slab area, they discussed how they would begin the slab removal - where they would
start, the direction that they would go in, and how to remove and where to put the wasted concrete.
They discussed opening up a pilot hole in the left-hand corner to expose the rebar to see if it was on
the keyway (lip or ledge); or if it was doweled, where the rods would be tied into the existing
concrete around the knockout panel (Tr. 226-28). The purpose of the pilot hole was to expose the
rebar that was supposed to be in the slab, and determine how far apart the rebar was and to find the
location of the keyway (Tr. 231). They began to chip a hole with a sledge hammer through it. Mr.
Kane, while standing on top of the panel, began jack hammering a pilot hole in the southeast corner.
Mr. Caucci would periodically step onto the panel to strike the area with a sledgehammer. Mr.
Cincotti was there in the beginning - he was not there when the hole was open. Once they hit the
hole open, the head of the hammer broke off and Mr. Kane sent Mr. Caucci down to the shop to
repair it (Tr. 233). Fabi Superintendent, Troy Bleven, came over about 8:30 A.M. to make sure they
had everything they needed for the job. At that point, they had the hole opened up about 4 inches
(Tr. 232). After about 15-20 minutes, Mr. Bleven left to help Mr. Caucci in repairing the
sledgehammer. Mr. Kane made a 1 by 2 foot hole, and at that time he saw two rods going into the
south end of the wall. There was no movement in the rods when jack hammering around them, so
he assumed that they were tied in (Tr. 240). He then started moving along the east side of the panel
going north, to find the first cross bar (Tr. 241). The hole was approximately 2 feet by 4 feet when
he the ran into another rod, about 2 feet back from the south end, which was not tied in. By this time
Mr. Caucci had returned. Mr. Kane relayed his observations to him, and said “[l]et’s keep an eye
on things and I will continue to work back that way and see where the next rod falls” (Tr. 241,245,
253). He then continued along the east wall to see if the next rod was tied in. As he was jack
hammering, he observed two to three stress cracks developing in the panel which extended west
from the opening he had created. The longest crack was about 5 feet(Tr. 243- 244). After they
cleaned up the area of debris, Mr. Kane asked Mr. Caucci to take a little more concrete out with the
hammer along the south edge so that he could get the rods exposed and determine if they were
doweled in. At the point, Mr. Caucci hit the pilot hole in the southeast corner, and the northwest
corner of the slab lifted. The entire slab moved and fell down the open shaft (Tr. 245-49). Mr. Kane
was able to grab a knee-wall on the floor below. Mr. Caucci fell to his death (Tr. 249).

THE SECRETARY’S BURDEN OF PROOF

The Secretary has the burden proving her case by a preponderance of the evidence. In order
to establish of violation of an occupational safety or health standard, the Secretary had the burden
of proving: (a) the applicability of the cited standard, (b) the employer’s noncompliance with the
standard’s terms, (c) employee access to the violative conditions, and (d) the employer’s actual or
constructive knowledge of the violation ( i.e. the employer either knew, or with the exercise of
reasonable diligence could have known, of the violative conditions).

Atlantic Battery Co. , 16 BNA OSHC 2131, 2138 (No, 90-1747, 1994).

The undersigned finds that Fabi’s demolition operations were subject to the requirements of
the construction standards. A review of the record reveals that all of the cited violative conditions
were conditions which the cited standards were effectuated to prevent. Accordingly, the cited
standards are applicable.

JUNE 10, 1995 FATALITY

SERIOUS VIOLATIONS

CITATION 1, ITEM 1a

§1926.20(b)(1) “Accident prevention responsibilities”: It shall be the responsibility of the employer
to initiate and maintain such programs as may be necessary to comply with this part.

a) TropWorld West Tower Expansion (Transportation Center Garage) Brighton &
Pacific Aves., Atlantic City, N.J.

This standard requires employers to initiate and maintain programs as necessary to comply
with the Section 1926 construction standards. It is the Secretary’s position that although the
respondent did maintain a written safety at the TropWorld site, the program was generic and not
site-specific. The program did not contain any information about demolition and demolition was not
addressed at safety meetings conducted by the general contractor (Tr. 780). The Secretary also
argues that all of Respondent’s employees had not viewed the demolition video that had been
shown, and those employees who viewed the video demonstrated little, if any, knowledge of
demolition requirements (Secretary’s Post-Hearing Brief, p. 36-37).

Respondent contends that the record establishes that it maintained a detailed written safety
and health program on site, and it was accessible to all employees, and had been fully implemented
through employee orientations, weekly and daily safety meetings, safety inspections and employee
training. Furthermore, Respondent contends it provided safety training on site, which included
lectures, discussions, videos, handouts and one-on-one instruction. It maintains its program
extensively covered fall hazards, excavations, hazard communication, airborne contaminants, and
other hazards employees might encounter on the TropWorld job.

Review Commission precedent established that under this standard, “an employer may
reasonably be expected to conform its safety program to any known duties and that a safety program
must included those measures for detecting and correcting hazards which a reasonably prudent
employer similarly situated would adopt” Northwood Stone & Asphalt, Inc., 16 BNA OSHC 20097,
2099 (Docket No. 91-3409); J. A. Jones Co., 15 BNA OSHC 2201, 1106 (No. 87-2059, 1993). The
undersigned finds that a review of the written program reveals no a section specifically addressing
“demolition”, an activity which took place on this worksite and which is addressed in the
construction standards(Exh. R-2). Furthermore, a review of the myriad of topics discussed at tool
box meetings contained in Respondent’s Weekly Jobsite Safety Meeting Reports did not include the
topic of demolition and its associated hazards (Exh. R-1). The record is also void of any evidence
that Mr. Kane and Mr. Caucci participated in any tool box meetings which addressed the topic of
demolition. The record does contain evidence that a demolition video was shown to employees,
however, it was not shown to all employees involved in demolition. The record contains unrefuted
evidence that the demolition video, which Respondent presented to its employees, was shown in late
winter/early spring, and those hired thereafter did not view the video. Accordingly, Mr. Kane who
started on the job in May 1995, and Mr. Caucci who had been on the job for four days prior to June
10, did not view this video. Furthermore, Mr. Bleven’s testimony with regard to the orientation for
new hires and the written safety program revealed that new hires were presented with “brief
guidelines of it”, and were told that the program was available for discussion and for their review
(Tr. 375). The undersigned finds that this testimony does not demonstrate that the contents of the
written safety program were effectively communicated to employees and certainly does not establish
that demolition and its hazards were communicated. The undersigned finds that a reasonably prudent
employer engaged in demolition would certainly ensure that its program included the demolitions
requirements contained in Part 1926. Additionally, a review of the testimony of the Safety Director,
Kim Kules’ is unpersuasive in defending this violation. The undersigned finds that her testimony
fails to establish that she had any meaningful involvement in ensuring the program conformed to the
duties and hazards associated with demolition (Tr. 402-23). The undersigned found it odd that she
could not independently recall the specifics on the topic of demolition and identified no specific
measures for detecting and correcting demolition hazards (Tr. 430-32).

Furthermore, the inadequate initiation and maintenance of the safety program was also
evident from the testimony of the employees at trial. Frances Palmieri, a carpenter hired around May
or June, testified that he had seen no videos about safety and did not know the safety director (Tr.
484). Mr. Kane testified that the only video he had ever seen was one on fall protection (Tr. 871).
Dennis DiAngelis, a carpenter foreman, testified that he had viewed two safety videos - fall
protection and demolition. However, he could not recall if he had seen the video before or after the
accident. He could not recall if the video contained information concerning an engineering survey
(Tr. 889-90). Douglass Garner, a laborer, testified that he had seen the demolition early in the job.
He could not recall if OSHA was mentioned in the video and he was not familiar with the OSHA
demolition standards. He also testified that he may not have been paying attention during the video
(Tr. 900-01). John Shepard, a laborer foreman, testified he recalled that when he first started at Fabi

• the safety manual was pointed out to him and he was told that it was kept in the shanty (Tr. 904).
  He testified that he was given basic instruction on demolition- safety equipment and working with
  someone, however, he was not involved in any demolition work at TropWorld.

The undersigned finds that the preponderance of evidence established noncompliance with
the cited standard. Fabi failed to fully implement and maintain a safety program with specific
instructions about what precautions to take when performing demolition. The undersigned also finds
that all employees involved in demolition were exposed to the hazards created by inadequate
demolition training. The evidence and testimony reflect that Fabi had knowledge of its obligation
to provide demolition training to its employee - it showed a demolition video to some of its
employees. Fabi failed to exercise reasonable diligence in the initiation and maintenance of its
safety program.

Classification

The undersigned finds that a preponderance of the evidence establishes serious violations.
In order to prove a serious violation, the Secretary must show that there is a substantial probability
that death or serious physical harm could result from the condition in question. 29 U.S.C.§ 666(k).
The undersigned finds that the evidence in this case shows that falls resulting in death due could
result from the cited violation. Accordingly, the Complainant properly classified these violations as
serious.

Penalty

Once a contested case is before the Review Commission, the amount of the penalties
proposed by the Secretary in the Citation and Notification of Proposed Penalties is merely a
proposal. What constitutes an appropriate penalty is a determination which the Review Commission
as the final arbiter of penalties must make. In determining appropriate penalties “due consideration”
must be give to the four criteria under Section 17(j) of the Act, 29 C.F.A., §666(j). These “penalty
factors” are: the size of the employer’s business, the gravity of the violation, the employer’s good
faith and its prior history. J.A. Jones Construction Co. , 15 BNA OSHA 2201, 2213-14 (No. 87-2059,
1993).

The record establishes that the gravity of the subject violation was high. The severity of
injury was high due to the omission of demolition activities from Respondent’s safety program. The
greater probability of the occurrence of death or serious injury serious injury was evident by the
accident. These findings resulted in a gravity-based penalty of $5,000.00. The Secretary did not
apply any adjustment factors to this penalty. The Secretary presented unrebutted testimony that the
Respondent had a history of violations within the past 3 years. No good faith was applied because
of the high gravity of the violation. No adjustment was applied for size because the total number
of employees was between 100 and 250 (Tr. 432, 633). The undersigned finds that based upon the
aforementioned factors the Secretary’s proposed penalty is appropriate

CITATION 1, ITEM 2

§1926.503 (a) (1) "Training Program.": The employer shall provide a training program for each
employee who might be exposed to fall hazards. The program shall enable each employee to
recognize the hazards of falling and shall train each employee in the procedures to be followed in
order to minimize these hazards.

a) TropWorld West Tower Expansion (Transportation Center Garage), Brighton &
Pacific Aves., Atlantic City, NJ. Employees demolishing concrete knockout panel
for the service elevator shaft were not trained in fall protection procedures. On or
about 6/10/95.

b) Employees throughout the site were not provided with a comprehensive fall
protection training program meeting the requirements of this standard.

The Secretary argues that there were two instances of the cited violation: the failure to
provide fall protection training to employees engaged in demolition operations, and the failure to
provide such training to employees in general at the work site (Secretary’s Post-Trail Brief, p. 37).
CO Dolores Soss testified that during the interviews of Labor Foreman Cincotti and Carpenter
Foreman McCarron, neither recalled having been given a copy of the fall protection standard (Tr.
799). The Secretary argues that Mr. Cincotti supervised laborers who were directly involved with
demolition operations; and Mr. McCarron supervised carpenters who were not involved in
demolition, however, they were involved in stripping forms near building perimeters and floor
openings(Secretary’s Post-Trail Brief, p. 38). CO Soss also testified that there were no documents
or information that Mr. Kane or Mr. Caucci had received fall protection training (Tr. 801).

The Respondent asserts that fall protection training was provided at a number of forums.
Respondent argues that it provided: (1) handouts on fall protection were distributed and discussed
at weekly safety meetings; (2) verbal and written instructions on the use of safety belts, safety nets,
lanyards, body harnesses and guardrail systems; (3) orientation sessions with new hires where
instructions on the use of fall protection equipment such as safety harnesses; (4) provided one-on-one on the job fall protection training for new employees; (1) presented a video on fall protection;
( conducted daily safety meetings where site-specific fall protection training was presented; and (7)
had its foreman regularly demonstrate the proper use of fall protection equipment.

The introductory text to this section states that this section supplements and clarifies the
requirements of §1926.21 regarding the hazards addressed in subpart M. Paragraph (a) requires
employers to provide a training program for each employee exposed to fall hazards so that each
employee can recognize fall hazards and know how to avoid them. This section identifies
components of the requisite training, but does not specify the details of the training program. When
promulgating this section, OSHA recognized that much of the information covered by training would
be site-specific, so the Agency framed this provision in performance-oriented terms. 59 Fed. Reg.
40672, 40720-22 (1994).

The Secretary presented the testimony of Frances Palmieri, a carpenter hired around June
1, 1995, and Eugene Kabbeko, carpenter and shop steward hired in February 1995. Both testified
that they had not seen any video on safety (Tr. 464, 485). Mr. Palmeri, who is no longer employed
with Fabi, testified that there were weekly safety meetings that were for the most part conducted by
Eugene Kabbeko(Tr. 483). He testified that there was perimeter protection on the edge of the
building which was put there to keep one away from the edge of the building (Tr. 494). Mr. Kabbeko
testified that he had built perimeter protection on the site, and the message which was always relayed
to the men was that if you saw an unsafe area, before you work make its safe (Tr. 478). A review
of their testimony and the topics discussed at Respondent’s weekly safety meeting (Exh. R-2) reveals
that fall protection was discussed in terms of floor openings and the types of all protection to be
used.   Respondent also presented the testimony of several employees, hired on various dates. The
undersigned having observed their demeanor at trial, finds that their testimony was very credible and
reliable. These witnesses provided very equivocal and forthcoming responses to questions.
Douglass Gardner testified that he was one of the first laborers hired on the job. He testified that fall
protection - the different types of fall protection and where you would hook up the cables and fall
protection around elevator shafts - was discussed. Cincotti was his foreman, and he met with the
crew every morning to assign the job and told them what they needed to do the job. For example,
if your were working high he would tell them to grab a safety harness. He had seen Cincotti
demonstrate use of safety equipment to employees on more than one occasion (Tr. 897). He further
testified that when employees came on the job, either Kane or Cincotti would show them how to use
safety equipment (Tr. 896). He testified that he had seen the fall protection video early in the job
(Tr. 898). On cross examination, he testified that he did not know the fall protection standard, and
he did not recall if it was addressed in the video (Tr. 901). John Shepard, a laborer foreman, began
working at Trop World April 1995. He testified that there were tool box safety talks every Friday,
and safety harnesses was one of the topics (Tr. 904-05). The discussion included making sure they
were hooked up at the edge of the building. He testified that he would talk to his crew every day
about safety and tell them what they had to do that day. He talked to them about making sure that
they were hooked off when they were at the edge of the building. He did not review the specifics
of the OSHA fall protection with his crew (Tr. 910-11). Matt Zappone (son of the owner) began
work at TropWorld in the spring of 1995, testified that fall protection was one of the topics discussed
at tool box meetings, and that he had been provided with a full body harness which had been
assigned to him his first day of work (Tr. 963, 965). He also testified that he had seen a video on
fall protection during the early stages of the project (Tr. 968).

Mr. Kane testified in both the Secretary’s case and the Respondent’s case. He testified that
he began working at TropWorld in May 1995, and that there were other laborers hired after May
1995 (Tr. 865). He testified that they learned to use equipment on the site during early-morning
meetings -“if they had never used anything before or they had not done this work before, they were
instructed by the foreman as to what they would need safety wise and equipment wise” (Tr. 869).
He had seen Cincottti demonstrate to employees the use of safety equipment, such as ear plugs, tying
off, etc. He testified that Cincotti showed him how to use a harness (Tr. 869). He also testified that
he had seen a video on fall protection on the TropWorld site, and that all employees were required
to attend this presentation (Tr. 871,875). Dennis DiAngelis, a carpenter foreman on TropWorld
started in mid-April 1995, testified that there were toolbox meetings once a week and among the
topics discussed were safety belts and lanyards (Tr. 880-882). He testified that he met with workers
every morning to tell them what they would be doing that day and he gave the crew instructions on
safety equipment and its use for the job. He also stated that when a new man came on the job, he
would physically help him try on the belts if he was not familiar with belts (Tr. 883). He viewed a
safety video on fall protection at which all trades including Fabi were present (Tr. 884-85). He
further testified that his men wore safety belts and life lines which were mandatory when they
stripped the reshore forms on the edge of the floors (Tr. 885). Safety Director Kules testified that she
presented a video on fall protection prior to the accident (Tr. 429). Troy Bleven testified that on two
occasions, she had shown videos (Tr. 373). He also testified that new hires were given orientation
which included a review of the written safety program which included fall protection (Tr. 373; Exh
R-2).

The undersigned finds that there were Fabi employees who were provided training with
regard to floor hole openings, perimeter protection, and personal protective equipment during
various phases of the job. However, a review of the aforementioned testimony does not demonstrate
that Fabi instructed all of their employees in the recognition and avoidance of fall hazards while
engaged in demolition, a component of their work activity. It is not clear from the record that the
fall protection or demolition videos specifically addressed these issues, however, it is clear that all
employees did not benefit from the video-either they had not been hired at the time they were shown,
or if present, did not appear to comprehend their contents. Furthermore, the testimony of Messrs.
Kane and Cincotti describing the activities and instructions provided prior to demolition activities
on June 10, contains no evidence that employees were provided any training which specifically
addressed the procedures to be followed in order minimize fall hazards while engaged in demolition
activities (Tr. 223-28, 282-84). The undersigned finds that Fabi did not instruct their employees in
the recognition and avoidance of fall hazards relating to their working environment. Accordingly,
the undersigned finds that the Secretary has proven by a preponderance of evidence that there was
noncompliance with this standard. The record establishes that an accident occurred on June 10
which exposed Messrs. Kane and Caucci to fall hazards while engaged in demolition activities. The
record establishes that Respondent had knowledge of this violation. Fabi addressed fall protection
during various aspects of its safety program and had they exercised reasonable diligence would have
implemented adequate training programs regarding recognition and avoidance of fall hazards during
demolition.

Classification

The undersigned finds that a preponderance of the evidence establishes serious violations.
The undersigned finds that the evidence in this case shows that death or serious physical harm due
to the failure to each employee in the recognition and avoidance of unsafe conditions during
demolition work. In this case Mr. Kane fell and Mr. Caucci fell to his death as a result of this
violation.  

Penalty

The record establishes that the gravity of the subject violation was high. The high severity
of injury was death, and the occurrence of the falling and death of an employee established a finding
of a greater probability. Again, no adjustment factors were applied to the Secretary’s gravity-based.
In light of the fact that Fabi did provide some fall protection training applicable to the work area,
e.g., perimeter protection, the undersigned believes that the maximum penalty for a serious violation
is not warranted here, and as with the previous violation a penalty in the amount of $5,000.00 would
be appropriate in order to achieve a deterrent effect.

CITATION 1, ITEM 3a

§1926.501(a)(2) "General.": The employer shall determine if the walking/working surfaces on which
its employees are to work have the strength and structural integrity to support employees safely.
Employees shall be allowed to work on those surfaces only when the surfaces have the requisite
strength and structural integrity.

a) TropWorld West Tower Expansion (Transportation Center Garage), Interstitial
Level/Roof Level)Brighton & Pacific Aves., Atlantic City, NJ. - Employees (2) were
standing and working on a concrete knockout panel/slab (for the service elevator
shaft) that they were demolishing. That slab broke apart and collapsed while the
employees were standing on it, on or about 6/10/95.

It is the Secretary’s position that Fabi did nothing to confirm that its employees could safely
stand and work on the knockout panel while they proceeded to hammer a sizeable opening into the
panel that caused its structural integrity to rapidly deteriorate (Secretary’s Post -Trial Brief, p. 21).
The Secretary argues that Fabi made no reasonable inquiries and took no measures to determine
whether the slab would have the strength and structural integrity to safely support its employees
while they worked. Fabi should have contacted one of the consultant’s available at the work site
regarding the effect that the jack hammering would have on the structural integrity of the slab, as
well as the effect of creating a substantial opening in the slab and/or cutting pieces from the slab
(Secretary’s Reply-Brief, p. 20-21).

Respondent asserts that Fabi went far beyond the requirement of the standard by conducting
numerous inspections, reviewing structural plans and creating pilot holes (Respondent’s Reply Brief,
p. 38). Respondent relies upon the daily visual inspections made by Mr. Bleven and his discussions
with employees, as well as Mr. Cincotti’s visual inspection prior to the commencement of
demolition. Respondent also relies upon the pre-demolition inspections of Mr. Bleven and the
engineer- in- charge, Borys Hayda - both noted no problems with the slab. Respondent also asserts
that Mr. Bleven’s review of the structural drawings prior to demolition met the requirement of the
standard.

The standard imposes an obligation on employers to inspect and make a determination as
to the strength and structural integrity of the walking/working surfaces in the workplace. A
walking/working surface is defined at s 1926.500(b) as any surface on which employees walk or
work including floors, roofs, ramps, and form work and concrete reinforcing steel. The record
reveals that the employees were assigned to create a pilot hole upon the working surface - the slab.
Mr. Kane testified that it was his intention to jackhammer away a 2 foot wide channel down the
length of the slab from the east side. Once the area was open and he could see what was exposed,
he intended to use planks to put down and work off (Tr. 259-60). At the time of the accident, the
hole was 2 feet by 3 feet and expanding in a northerly direction. The undersigned finds that this
standard obliged Fabi to make a determination as to what the effect the pilot hole would have upon
the strength and structural integrity of the slab. The record is clear that no such inquiries were made
prior to the assignment.

The undersigned finds that the Secretary presented evidence from several witnesses which
supports a finding that the strength and structural integrity of the slab was not maintained as the pilot
hole was created.

The structural engineering on site, Mr. Hayda testified that in order for the slab
to hold the weight it was constructed to hold (100 pounds per square foot), it must be in one piece.
He stated that once you start cutting pieces off of it , it loses strength (Tr. 56, 66). Mr. Kane testified
that as he was jack hammering, the concrete was cracking and 2 or 3 stress cracks appeared (Tr.
244). Mohammad Ayub, Chief of Engineering for OSHA testified that rebar is put in concrete so
that it can take the load. He testified that the concrete and rebar work together and if one is removed,
then the integrity of the concrete is gone and it is no longer a reinforced concrete slab (Tr. 589-90).
He stated that if a 2 by 3 feet or 2 by 4 feet hole is created, you destroy the integrity of the slab
because you break the concrete. Cracks propagate from that hole and you have no control of the
size, length and manner in which that crack propagates. Thus, you have lost t he load capacity and
the slab’s integrity has been compromised (Tr. 591). Accordingly, the record supports a finding that
as the pilot hole was created, the strength and structural integrity was not maintained, and as the
pilot hole created it became no longer suitable as a walking/working surface. Peterson Construction
Co., 17 BNA OSHC 2177 (No. 95-1275)(ALJ). In view of the above, the undersigned finds the
Secretary has established by a preponderance of evidence noncompliance with the cited standard.
The occurrence of the subject accident establishes employee exposure to the hazards created by the
failure to determine whether the walking/working surface had the strength and structural integrity
to safely support employees. The undersigned also finds that Respondent failed to exercise
reasonable diligence in determining what effect, if any, the jack hammering and the creation of a
hole would have on the strength and structural integrity of the slab. It’s visual review of the slab and
its structural drawings only revealed the integrity of the slab undisturbed.

Classification

The undersigned finds that a preponderance of the evidence establishes a serious violation.
The undersigned finds that the evidence in this case shows that death or serious physical harm due
to the failure to comply with the cited standard. In this case Mr. Kane fell and Mr. Caucci fell to his
death as a result of this violation.  

Penalty

The record establishes that the gravity of the subject violation was high. The high severity
of injury was death, and the occurrence of the falling and death of an employee established a finding
of a greater probability. Again, no adjustment factors were applied to the Secretary’s gravity-based.
The undersigned believes that the maximum penalty for a serious violation is warranted.. A penalty
in the amount of $7,000.00 would be appropriate in order to achieve a deterrent effect.

CITATION 1 , ITEM 3b

§1926.850 (a) “Demolition”: Prior to permitting employees to start demolition operations, an
engineering survey shall be made, by a competent person, of the structure to determine the condition
of the framing, floors, and walls, and possibility of unplanned collapse of any portion of the
structure. Any adjacent structure where employees may be exposed shall also be similarly checked.
The employer shall have in writing evidence that such a survey has been performed.

a) TropWorld West Tower Expansion (Transportation Center Garage), Interstitial
Level/Roof Level)Brighton & Pacific Aves., Atlantic City, NJ. - Service elevator
roof slab. On or about June 10, 1995.

The Secretary charges that the Respondent failed to perform an appropriate engineering
survey with respect to the knockout panel that was the subject of the collapse on June 10, or any
other knockout panel on the worksite. The Secretary contends that Respondent failed to ascertain
the pertinent facts with respect to the knockout panels(Secretary’s Post-Trial Brief, p. 15, 19).
Additionally, the Secretary charges that Troy Bleven was not competent to perform an engineering
survey of the knockout panel and failed to present any written evidence that an appropriate pre-demolition survey had been performed (Secretary’s Reply Brief, p. 3). CO William DuComb
testified that while being interviewed the night of the accident, Mr. Bleven admitted that no survey
had been performed by him prior to the demolition of the slab(Tr. 733). CO Delores Soss testified
that during the December 7, 1995 administrative deposition of Mr. Blevin, she asked him if he had
performed a demolition survey. He responded that he had looked at the demolition plans, that he
had physically looked at the slab, and that he had not looked at the Walker Drawing - S3.10 - Exh
G-2 (Tr. 804-05).

The Respondent contends that Mr. Bleven had engaged in extensive pre-demolition survey
activities, and drawn up a demolition plan. Mr. Bleven testified that prior to June 10, he had
reviewed the OSHA demolition standards. He testified that his understanding of OSHA ‘s demolition
standard was that “ you review a set of demolition plans”, and that the purpose of an engineering
survey is to check the integrity of the structure. He testified that prior the accident, he had reviewed
the plans (Tr. 341-43). He also testified that he was familiar with the term “engineering survey” -
which required one to “physically review” what was going to be demolished. He testified that one
would also review demolition plans, have a discussion with others, and report his findings in a log
book. He testified that he had done this on this panel and all the demolition on this project (Tr. 343-44). Mr. Bleven also testified that the purpose of an engineering survey is to check the integrity of
the structure- to look for hazards such as cracks, and anything that could fall from above or below
(Tr. 367-68). He testified that prior to work commencing, he reviewed demolition plans and
structural plans (Tr. 318). He testified that the purpose of the structural drawing review is to
determine what was in the slab. These drawings revealed to him how the slabs were recessed into
the floor and reinforced (Tr. 319). He further testified that he had reviewed the structural drawings
,Exh. G-2, S3-10, with Mr. Cincotti prior to the start of the job. He discussed his observations with
regard to the slab sitting on a “chair or seat” and that rebar should be running continuously across
in both directions . They had a discussed the fact that where the plan showed it is not doweled in,
it had been doweled in (Tr. 319-20, 348, 355). He also discussed his observations with Ray Apice
(Tr. 318, 355). He also testified that the procedure followed involve the shooting of a pilot hole to
see what reinforcement was in the slab(Tr. 319).

The Respondent produced Mr. Bleven’s survey - his “personal estimating sheet” covering
the full scope of work to be done, including estimates of the time and number of laborers needed to
do each part of the job (Exh. R-14). He testified that his document contained his “vision of what the
job was going to entail” (Tr. 996). This document had been drafted approximately two months
before the commencement of demolition (Tr. 992). This plan was created while he physically
walked the entire TropWorld site and visualizing the areas that he was going to work on in
accordance to the demolition plans he had received (Tr. 988). As he walked through, he made a
series of notes, observations, and took pictures of the work to be done. His notes contained a
reference to the applicable demolition plan, e.g., Plan A-105, the number of laborers, equipment and
time for the work. This estimate included the removal of the elevator knockout panels (Tr. 989-91;
Exh R-14, p.3 refers to Exh. G-1). He testified that he determined manual labor would be the safest
method of demolition (Tr. 992). He acknowledged that this document was also prepared for
purposes of the bid that was submitted by Fabi (Tr. 905). With respect to the knockouts for the
elevators, he testified that he looked at them from the roof and from below. He noted that they
appeared in good shape (Tr. 997). His photographs consisted of views of the parking garage as it
existed prior to demolition, and views as the job progressed (Tr. 998-1018 ; Exh. R-15-26) . He
further testified that as part of his survey he reviewed the demolition plans and the Walker Drawings.
He recalled having reviewed them in December 1994 (Tr. 1019-20, 1041; Exh. R-27, 28). He
testified that prior to demolition of the slabs on the ground floor, he reviewed the demolition plans,
Exhs. G-1 and G-2, as well as a plan showings a series of slab profiles - Exh . R-3. He also visually
inspected the slabs which appeared to be in good shape (Tr. 1025-26; Exh R-29). Upon the plan,
he made handwritten notations as the work proceeded and he had discussions with the general
contractor and his men (Tr. 1030-31). He testified that prior to the demolition of the second floor
slabs, he visually inspected them and they appeared structurally sound (Tr. 1034). He again made
notations upon the applicable demolition plan as the work progressed and to show workers how to
proceed (Tr. 1037-40; Exh R-30). He testified that he walked underneath the slabs to review them
(Tr. 1041). He again had discussions with his men and the general contractor (Tr. 1042-43). He
testified that prior to the demolition of the roof slabs he did a physical survey to inspect the condition
from below and above (Tr. 1043). His inspection of the stairway slab and two elevator slabs
indicated that they were structurally sound. He stated that he saw no cracks in the elevator slabs and
they appeared structurally sound (Tr. 1043-44). He stated that he examined these slabs several times
prior to June 10. He again stated that he had reviewed Exh. G-2, at the beginning of the job, as well
as when the demolition was “going on”, prior to June 10 (Tr. 1044-45). The demolition plan for
the roof - A 105, contained his handwritten notes (Exh. R-31). He made notations of the four rebar
in the stairway slab that were doweled in, and the rebar found on the knockout next to the service
elevator, and other smaller knockouts which had rebar continuously doweled in (Tr. 1046-48). He
noted discrepancies/changes upon his plans as the work progressed (Tr. 1049-50)

The record reveals that at a December 7, 1995 administrative deposition, Mr. Bleven was
asked why an engineering survey had not been done prior to the accident. His response was that
no survey had been taken prior to the accident because they had taken out numerous slabs with no
problems, and he also stated that he did not recall if an engineering survey had been done (Tr. 344-46, 1135). At trial, Mr. Bleven explained that it was his belief at that the time of the deposition, he
believed that he was being asked about an engineering having been supplied to him from the outside
(Tr. 347). Mr. Bleven further explained that at the time of his deposition, when he heard the term
“engineering survey” he thought he was being asked about a survey from an engineer (Tr. 1137-38).
At trial, he testified that he now understood the term “engineering survey”, which was what he had
been doing all along - physically inspecting the integrity of the work area (Tr. 1138).

The Secretary presented the expert testimony of Donald Orr, who has worked in the
demolition industry for 45 years as a laborer, foreman, superintendent, company president and past
president of the National Association of Demolition Contractors (“NADC”) (Tr. 514-17, 520, -523-24). He served on the NADC Committee that assisted OSHA in developing the demolition standards
(Tr. 523). He has been involved with the demolition of all types of structures including the
demolition of over 100 knockout panels that varied in size from 1-foot to 30-feet in length (Tr. 516,
519, 525). In the performance of this demolition work, he had conducted engineering surveys (Tr.
536). Mr. Orr testified that an engineering survey requires one to initially review the blueprints to
determine the job to be done, and to visually examine the work to ascertain if any hazards would be
encountered (Tr. 536-37). He stated that he would first look at the plans and determine if what he
visually inspected were the same. He also noted that if any discrepancies were observed, as part of
his survey, he would refer to “as built” drawings if such drawings were available, and in their
absence, he would consult an architect, He explained that on a construction job“as built drawings”
are prepared whenever there is a deviation from the original plans (Tr. 538-39). If he was unable to
consult an architect, he would conduct his own test to resolve the discrepancy. He testified that after
performing his test to resolve the discrepancy he would communicate the results to personal who
were supervising the operation (Tr. 542). He further testified that industry practice would require a
separate engineering survey for each panel to be demolished (Tr. 547). He reviewed Exh. G-2,
S3.10, and stated that it did not indicate the use of dowels for the rebar. He acknowledged that Exh.
G-1, A-105, indicated what had to be removed (Tr. 543-45). He testified that he would have
reviewed the prints to determine how the slabs were put into the “hatch”and then went into the field
and viewed the slab from the top and bottom. In this case he would have assumed that the plans
were correct with respect to the lack of dowels because of what the plans indicated (Tr. 546).

Mr. Hayda, the structural consultant on site, testified that Exh. G-1(A-105) was the
demolition plan prepared by the architect showing the demolition required (Tr. 25). It indicates the
removal of various items on the roof and nothing more (Tr. 26, 28). He testified that if someone
looked at this document they would know what to knockout but not how to knock it out (Tr. 29).
Mr. Hayda went on to testify that Exh. G-2 ( S3.10) was the original structural drawing for the
garage. This drawing specified the extent of demolition required for the future project, i.e., the
instant project, and explains how the knockout panels were first constructed. (Tr. 32-33). It shows
the ledge on the two ends that was four inches wide, the size of the slabs, the other two sides which
had sealant - detail 2, the rebar measurements, it shows that the rebar was not tied in - it just rested
on the ledge (Tr. 32-42). He stated that the purpose of these plans is to find out if there is anything
different that he might have to do as the result of what his visual inspection revealed.

The undersigned finds that an examination of the aforementioned testimony, as well as her
observation of Mr. Belevn’s demeanor during his testimony, establishes that Mr. Bleven had
conducted a pre-demolition survey. The fact that the written survey was used for bid purposes does
not negate this finding. The testimony he provided at the hearing established that his examination
and review of the demolition plans, which included Exh. G-1 and G-2, along with his visual
examination establishes that he performed the survey to determine the condition of the slabs and his
inspection included the use of structural plans which the experts in this matter testified were critical
for a meaningful survey. His method of visual observations combined with his review of the
demolition plans and structural plans were sufficient to met the intent of the standard, and followed
the procedures which the Secretary’s witnesses testified should be followed. The undersigned also
finds that his survey took into the consideration of the possibility of unplanned collapse - his
inspections led him to believe that manual demolition was the safest method to accomplish the
project. Additionally, as he became aware of the fact that the rebar was doweled in several areas, he
made such notations upon the plans indicated otherwise. He discussed his findings with Mr.
Cincotti. In light of the fact that his testimony was truthful and reliable, the undersigned finds his
explanation as to his belief of what the compliance officer was asking at the administrative
deposition concerning the “engineering survey” was credible.

The undersigned also finds that the record establishes that Mr. Bleven was competent to
perform the survey.

His nineteen years experience in the field of construction has included several
demolition projects - 14 years with his father’s construction company, and 5 years with Fabi. He
described several “big” jobs with Fabi, and testified that he had been Superintendent on all jobs
except two, where he was Assistant Project Manager and Assistant Superintendent (Tr.302). He
described approximately six to eight projects on which he had worked during his five year
employment history with Fabi which involved demolition (Tr. 302,977). These projects involved
manual demolition of reinforced concrete structures such as, the demolition of an emergency ward
and a radiology ward, removal of oil tanks, 14-foot thick and 10-foot wide footers, doorways and
walls, cutting into a floor and opening it up for elevators, massive columns, boardwalk ramps and
stairs, and bridge slabs (Tr. 303-04, 977-87). He also described involvement with 3-4 bridges,
wherein the bridge slabs had been demolished jack hammering and removing concrete from around
the rebar. These slabs were 10 feet by 45 feet, and 9 inches thick, and 30 - 40 guys would work on
a single slab (Tr. 378-80, 984-85). These slabs sat on concrete beams and were not doweled in. He
also had demolished concrete slabs on encased concrete columns at different levels on a job for his
father. These slabs were 12 by 25 feet and 9 inches thick and sat on concrete columns like a pedestal
(Tr. 380-81, 386). He testified that the demolition on this project was similar to the TropWorld
project in that they started with a jackhammer to expose rebar. He noted that these panels were not
doweled in (Tr. 335, 383-86).

In light of the above, the undersigned finds that the Secretary has not proven by a
preponderance of evidence that a pre-demolition survey had not been performed. Accordingly, this
violation is Vacated.

WILLFUL

CITATION 2, ITEM 1  

§1926.21(b) (2) The employer shall instruct each employee in the recognition and avoidance of
unsafe conditions and the regulations applicable to his work environment to control or eliminate any
hazards or other exposure to illness or injury.

a) TropWorld West Tower Expansion (Transportation Center Garage), Brighton &
Pacific Aves., Atlantic City, NJ - Employees were not trained in site specific hazards,
and applicable regulations.

It is the Secretary’s position that Respondent’s laborers, as well as its management personnel,
had not been properly instructed as to the recognition and avoidance of unsafe conditions during the
demolition operation on June 10. Furthermore, Mr. Kane had not been involved with the demolition
of any of the previous knockout panels on the TropWorld site and Mr. Caucci had only been on the
worksite for four workdays. Caucci’ name did not appear on any of the sign-in sheets for site safety
meetings, and other than the orientation which consisted of finding out his past experience when he
was initially hired, the record contains no evidence of any specific safety training or attendance at
any tool box talks (Exh. R-1). On June 10, Caucci was assigned to work with Kane pursuant to the
one-on-one on- the- job training Fabi provided its new employees. Additionally, the record reveals
that neither of these employees were employed at TropWorld in late winter/early spring 1995, when
the demolition video was shown.

The record establishes that the employees received the following instruction prior to the
removal of the knockout panel on June 10. Mr. Kane testified that in accordance with normal
procedure the first thing that occurred on June 10, was that Cincotti talked to him about safety
equipment and manpower for the job that day (Tr. 223-24). He had not worked with Frank Caucci
before in “partner deal” and he knew he had been hired the week before (Tr. 224). Once they got
to the roof and were actually at the slab area, they discussed how they would remove the slab(Tr.
226). He, Cincotti and Caucci discussed how they would begin the slab removal, where they would
start the direction that they would go in and how to remove - where they were going to put the
wasted concrete, how they were going to take it down the dumpster on the garage roof , etc. This
was the first knockout panel he had been involved with at the site. They discussed opening up a pilot
hole to see what type of tie-in or rebar - to see if it was doweled and where the rods would be tied
into the existing concrete around the knockout panel (Tr. 227-28). No other instructions given to
him at that time (Tr. 228). He testified that on the morning of the accident once he observed that
the first rods in the east/west direction were not tied in as he had believed they would be, and he told
Frank. He told him “[L]et’s keep an eye on things and I will continue to work back that way and see
where the next rod falls” (Tr. 241-42).

Mr. Cincotti testified that on the morning of June 10, he discussed with Kane and Caucci how
what they were going to do the job (Tr. 280). He described to them the way they were going to shoot
the pilot hole and work back (Tr. 281). He told them to shoot the pilot hole, look for rebar, if
anything did not look ,where it should be, you stop the job. And we call it a day. Until we could
discuss it.” (Tr. 282).

The Review Commission in Superior Custom Cabinet Company, Inc., 18 BNA OSHC 1019,
1020-21(No. 94-200, 1997) recently reviewed the subject standard and held that

“Section 1926.21(b)(2) requires instructions to employees on (1) how to recognize and

avoid unsafe conditions they may encounter on the job, and (2) the regulations applicable

to those hazardous conditions. Concrete Construction Co ., 15 BNA OSHC 1614, 1619,

(No. 89-2019, 1992)[citation omitted]. . . An employer's instructions are adequate under section
1926.21(b) if they are ‘specific enough to advise employees of the hazards associated with their work
and the ways to avoid them’ and are modeled on the applicable standards. El Paso Crane & Rigging
Co ., 16 BNA OSHC 1419,1425 n. 6 & 7.” The Commission also recognized that rules that give
employees too much discretion in identifying unsafe

conditions have been found too general to be effective. See, e.g., Bechtel Power Corp. , 10

BNA OSHC 2003, 2008 (No. 77-3222, 1982)(instructions to report "any unsafe practice"); J.K.
Butler Builders, Inc ., 5 BNA OSHC 1075,1076 (No. 12354, 1977) (warning to "avoid unsafe areas").

The undersigned finds that a review of the testimony provided by the employees involved
in the demolition and Commission precedent establishes Fabi’s noncompliance with the cited
standard. Their testimony reveals that the instruction provided did not specify what unsafe
conditions they may encounter on the job and how to recognize unsafe conditions. Mr. Cincotti’s
instruction that “if anything did not look, where it should be” provides no advice as to what
condition he was referring and provides no guidance or precautions as to what conditions would be
hazardous. This instruction provided no measures for detecting and correcting hazards, and gives
the employees the discretion to determine what was unsafe. This instruction contained no training
in how to recognize when “it might not look, where it should be” and how to handle that and prevent
an unplanned collapse. Supervisory personnel must advise employees, especially new employees,
of the hazards associated with the actual dangerous conduct in which they are presently engaging.
R & R Builders, Inc. , 15 BNA OSHC 1383, 1390, citing National Industrial Constructors, Inc. V.
OSHRC , 583 f.2D 1048, 1056 [6 OSHC 1914] (8th Cir. 1978).

The Respondent argues that Mr. Kane had 20 years of experience in demolishing reinforced
concrete (Respondent’s Reply-Brief, p. 4). In Ford Development Corporation, 15 BNA OSHC
2003, 2009(No. 90-1505) the Commission relying upon Commission precedent held that while this
standard does not limit the employer in the method by which it may impart the necessary training,
an employer that places too much trust in the quality of experience and training an employee has
already acquired elsewhere runs the risk of violating the standard. The record reveals that Mr.
Kane’s only recollection of previous experience with regard to a knockout panel involved the
removal of a hatch grate. This removal was done by shoring it up from below and then cutting
panels of it out - one chunk at a time. The record reveals that the roof was concrete and they cut
through rebars (Tr. 206). The undersigned finds that this experience was limited in quantity and
scope and Respondent’s reliance upon this experience did not negate its obligation to properly train
Mr. Kane on the instant job. As indicated by his testimony, although he did not like the fact that
the first set of rods in the east/west direction were not tied in, his experience did not lead him to
discuss this finding with someone from management prior to continuing with the jack hammering.
Additionally, he acknowledged that he had never been told by anyone at Fabi what to do if he saw
that a rod was not doweled in or saw something that he would not have expected to see (Tr. 254).

Furthermore, the undersigned finds that Fabi’s instructions did not meet the other prong of
the two-part test for adequate instructions under section 1926.21(b)(2) - instructions should be
modeled on applicable regulations. Respondent presented no evidence which established that its
instructions imparted to Messrs. Kane and Caucci were modeled after any applicable regulations.

In light of the above the, the undersigned finds that the standard applies to the cited working
condition , the Secretary has established noncompliance with the cited standard, and that Messrs.
Kane and Caucci were exposed to the violative condition. The record establishes that Fabi did not
exercise reasonable diligence in training its employees about the recognition of unsafe conditions
and preventative measures associated with demolition, and the regulations applicable to this work
Classification

Willful violations require a "heightened awareness" of the relevant standard or duty that
demonstrates a voluntary or conscious disregard for the Act's requirements or a plain indifference
to employee safety. Williams Enterp., Inc. , 13 BNA OSHC 1249, 1256-7, (No. 85-355, 1987).
Williams further provides:

A violation is not willful if the employer had a good faith

opinion that the violative conditions conformed to the

requirements of the cited standard. However, the test of an

employer's good faith for these purposes is an objective one

-- whether the employer's belief concerning a factual matter or

concerning the interpretation of a standard was reasonable under the

circumstances.

13 BNA OSHC at 1259.

The Secretary argues that in the instant matter the totality of the circumstances demonstrate
that respondent was plainly indifferent to the safety of its employees. The Secretary argues that the
Respondent failed to acquaint its employees with the regulations applicable to the demolition
operation on June 10; it failed to perform an appropriate engineering survey of the knockout panel
in question; it failed to determine whether the walking/working surface had the strength and
structural integrity to safely support the employees; it failed to address demolition activities in its
written safety program contributed to the totality of the circumstances (Secretary’s Post-Trial Brief,
p. 34). In support of this argument the Secretary cites the Review Commission’s decision in
Anderson Excavating & Wrecking Co., 17 BNA OSHC 1890 (No. 92-3684, 1997), aff’d 131 F.3d
1254(8th Cir., 1997)[18 BNA OSHC 1113]. In Anderson , a demolition contractor was cited for a
willful violation of OSHA’S fall protection standard [§1926.105(a)], and serious violations of the
training standard [§1926.21(b)(2)] and the safety program [§1926.20(b)(2)]. The Commission found
that Anderson did not act with malice or clear intent to violate the fall protection standard. However,
a “totality of the circumstances”consisting of multiple factors - particularly, Anderson’s failure to
provide the training and equipment that were predicates for compliance with the cited fall protection
standard, established that Anderson was so indifferent to employee safety. The Commission found
that respondent’s employees were working at a height of 35 feet above ground without fall protection
despite the company’s knowledge of the fall protection requirements, that the safety program
contained only vague advice about fall protection instead of the requisite specifics, and that the
company only issued cursory instructions to employees regarding fall protection. Accordingly, the
Commission found that by “substituting weak admonitions for safety training and hazard recognition
and not even providing fall protection equipment, Anderson failed to give its employees the
opportunity to protect themselves. This failure coupled with the involvement of supervisory
personnel in the violation and Anderson’s apparent failure to take remedial steps after its recent
receipt of two other OSHA citations for violations of the same standard at other worksites, compel
a finding of willfulness in this case. 17 BNA OSHC at 1892. The Secretary argues that like the
employees in Anderson , Messrs. Kane and Caucci had not been given enough information to protect
there own safety, and that Respondent acted with plain indifference to employee safety.

The undersigned finds that the Secretary has not established a willful violation. The evidence
does not establish that Fabi acted with malice or clear intent to violate this standard. Additionally,
totality of the circumstances does not indicate that Fabi was so indifferent to employee safety. The
record establishes that at the time these employees were directed t o demolish this knockout panel,
five other knockout panels had been demolished by the same procedures which they were instructed
to use. Mr. Cincotti had directed or observed the removal of these knockout panels (Tr. 267, 273,
277). The method of creating a pilot hole to determine the presence of rebar , and the use of a
jackhammer , and the use of planking to create a safe work area as they removed concrete and
eventually cut the rebar of the panel away. This procedure had been discussed among Cincotti,
Apice, Bleven and McCarron (Tr. 251-52, 269 272). Mr. Cincotti had made a visual inspection of
the knockout panel and based the experience with the other knockout panels he fully expected this
panel to have been doweled into the surrounding deck. The record also reveals that Superintendent
Bleven also advised Mr. Cincotti to stay with the procedure that they had been following all along
which included making a pilot hole. He had discussed with Mr. Cincotti to expect the rebar to have
been doweled in , although the structural plans indicated otherwise (Tr. 348-49). Mr. Cincotti’s
instruction to Mr. Kane conveyed this belief (Tr. 251, 287). Prior to the job, he discussed the
method to be employed in the removal of the panel. During this discussion, Kane and Cincotti were
provided planking, a saw, dust masks, safety glasses, ear plugs, and a hose. (Tr. 226). The purpose
of making the pilot hole was to see if the rebar was doweled in. Mr. Cincotti gave the warning that
if things did not look where it should be to stop the job. This instruction was given with the
expectation that the rebar was doweled in based upon the removal of the other knockout panels. The
undersigned finds that under the circumstances presented by the removal of the other panels, the
Respondent had a good faith belief that the panel could be removed safely with these instructions,
albeit they were inadequate. The undersigned finds that the record does not support a finding that
the Respondent demonstrated a plain indifference to employee safety.

The undersigned finds that a preponderance of the evidence establishes a serious violation.
The undersigned finds that the evidence in this case shows that death or serious physical harm due
to the failure to each employee in the recognition and avoidance of unsafe conditions during
demolition work. In this case Mr. Kane fell and Mr. Caucci fell to his death as a result of this
violation.  

Penalty

The record establishes that the gravity of the subject violation was high. The high severity
of injury was death and the occurrence of the falling and death of an employee established a finding
of a greater probability. Again, no adjustment factors were applied to the Secretary’s gravity-based
penalty. In light of the aforementioned finding a penalty of $7,000.00 would be appropriate in order
to achieve a deterrent effect.

June 14, 1995 Imminent Danger Complaint Inspection

SERIOUS

CITATION 1, ITEM 4

§1926. 501 (b) (1) "Unprotected sides and edges." Each employee on a walking/working surface
(horizontal and vertical surface) with an unprotected side or edge which is 6 feet (1.8 m) or more
above a lower level shall be protected from falling by the use of guardrail systems, safety net
systems, or personal fall arrest systems.

a) TropWorld West Tower Expansion (Transportation Center Garage), 36th Floor,
Brighton & Pacific Aves., Atlantic City, NJ - Employees (4) stripping reshore forms
were exposed to a fall hazard along a 28' section on each side of the structure. Fall
potential to east side was (6) stories, approximately 54'. The fall potential on the
west side was (16) stories, approximately 150'. On or about June 14, 1995.

b) TropWorld West Tower Expansion (Transportation Center Garage), 39th Floor,
Northeast corner, Brighton & Pacific Aves., Atlantic City, NJ. - Employees were
working (9) floors above the adjacent roof top was exposed to a fall hazard where
a 65" gap existed in the guardrail system. Fall potential was approximately 72'. On
or about June 14, 1995.

On June 14, 1995, CO Bernard DeZalia responded to a formal complaint regarding fall
protection. He testified that upon his arrival at the worksite, he looked up at the structure with
binoculars to see what was going on. He observed a gentleman at the top of the structure between
a gap in the perimeter fencing and pointed that out to the other compliance officer (Tr. 614-15).
They spent 15 minutes videotaping and then went to the office where he spoke with Superintendent
Ray Apice, Assistant Superintendent Mr. Tessing, Troy Bleven, and Eugene Kabbeko, carpenter
steward (Tr. 618). He gave them a copy of the complaint and they proceeded to the top of the
structure -39th floor, to commence complaint inspection (Tr. 619). At that time, Carpenter Foreman,
Mike McCarron joined them as well as one other Keating employee. They proceeded to look at that
floor and they went to the 38th and 37th to 30th floor (Tr. 619-20). He recommended two instances
of the instant violation - one, for employees stripping reshore forms, and the second, on the northeast
corner of the 39th floor an employee standing near a 65" gap in the guardrail system (Tr. 622).

Instance a : CO DeZalia testified that there were four gentlemen working on the 36th floor
stripping reshoring forms. These employees wore no fall protection and were working in close
proximity to an elevator shaft and the unguarded perimeter of the building. The potential fall
distance through the elevator shaft to the floor below was 10 feet. The potential fall distance from
the perimeter of the building was 6 stories (Tr. 623-26; Exh. G-10). He testified that he pointed out
this condition to Mr. Apice, who immediately pulled the men off the job(Tr. 625). He determined
that theses employees worked for Fabi because one of the employees (not depicted in the photo he
took) identified himself as a Fabi employee and told him that he was part of that crew that was
involved in the stripping operation(Tr. 630, 687, 688). At the time CO DeZalia arrived on the floor,
the employees were walking away from the edge of the building and were 10-15 feet way from the
edge (Tr. 689).

Mr. Bleven testified that his men had started stripping reshore forms on the 36th floor on
June 14th, and by the time CO DeZalia arrived on the floor they were just stacking so that a crane
could remove the materials from the area (Tr. 1106-08). He identified two of the employees in Exh.
G-10 as Fabi employees, and he estimated that they were at least 16-21 feet from the edge of the
building and 14 feet from the elevator shaft (Tr. 1110). He testified that when they started removing
the shoring that morning, they wore safety equipment. However, they wore none at the time the
photograph was taken because they were done stripping and were stacking - the edge was no longer
their work area (Tr. 1112).

The record discloses no dispute to the fact that the cited areas were unprotected sides/edges
and the cited areas were not protected by use of a guardrail system, safety net system, or personal
fall protection as required by the standard. The Secretary has also proven employee exposure by a
preponderance of evidence. The testimony and photographic evidence establish that Fabi’s
employees had access to the unprotected edges of the floor and elevator shaft. There was nothing in
the photograph or the testimony presented by the Secretary or the Respondent which indicates that
Fabi’s employees, depicted in the photograph - Exh G-10 - were in any way protected from or
prohibited from the unprotected edges. The fact that they were not engaged in the work of stripping
floors does not negate the exposure they had access to while stacking materials. During their
stacking duties they had access to the unprotected edges. Furthermore, the Secretary presented
unrefuted testimony that these employees were walking away from the edges upon the arrival of the
OSHA inspector. Thus, it one could reasonably assume that immediately prior to his arrival they
were closer to the edges than depicted in Exh. G-10 as they performed their assigned duties (Tr.
689). In RGM Construction Co. , 17 BNA OSHC 1229, 1234 (No. 91-2107, 1995), the Review
Commission set forth precedent which has established that “[t]he Secretary may prove employee
exposure to a hazard by showing that during the course of [employees’] assigned duties, their
personal comfort activities on the job, or their normal ingress-egress to and from their assigned
workplaces, employees have been in a zone of danger or that it is reasonably predictable that they
will be a zone of danger. Kaspar Electroplating Corp. , 16 BNA OSHC 1517, 1521 (No. 90-2866,
1993); Armour Food Co. , 14 BNA OSHC 1817, 1824 (No. 86-247, 1990). The zone of danger is
determined by the hazard presented by the violative condition and is normally that area surrounding
the violative condition that presents the danger to employees which the standard is intended to
prevent. Gilles & Cotting, Inc., 3 BNA OSHC 2002, 2003 (No. 504, 1976).

The record also establishes that Respondent had knowledge of the requirement for protection
around unprotected edges. Mr. Bleven testified that there was a cable strung from column line to
column line onto which Fabi employees attached retractable lines from their harnesses ( which they
were not wearing at the time the violation was observed). He testified that they had used them first
thing that morning (Tr. 1112). The undersigned also finds that had Fabi exercised reasonable
diligence, the instant violative condition would have been anticipated. Thus, employer knowledge
has been established.

Instance b: CO DeZalia recommended the second instance because of his observation of a
gentleman on the 39th floor, standing in a 65" gap of the perimeter protection exposed to a 10 story
fall hazard to the top of an existing structure. His photograph of this violation was taken from the
ground (Tr. 627; Exh. G-11) 7). He testified that the gentlemen wore a white hat, red shirt, and
carried a radio (Tr. 629). When he arrived on the 39th floor, the steward, Mr. Kabbeko later
identified the individual to him (Tr. 628). The gentleman walked right past the inspection party,
while they were on the 39th floor. He asked the steward to identify him. Mr. Kabbeko identified the
gentleman as Michael McCarron. CO DeZalia testified that he was able to determine which
gentleman it because he had not seen anyone with similar clothing during his inspection and he wore
a white foreman’s hat (Tr. 629, 679).             The Respondent presented an enlarged photograph of
Exh. G-11. This enlarged photograph Exh. R-8 presented contradictory evidence with respect to the
color of the hard hat worn by the observed employee - the employee was not wearing a white hard
hat, his hard hat was yellow. Exh. R-8 shows that the employees on the floor below were also
wearing yellow hard hats. These employees worked for another subcontractor, Calvie Electric, they
were performing work on the 38th floor. CO DeZalia acknowledged that it appears in Exh. R-8 that
the employee on the 39th floor was helping the person depicted on the 38th floor. He acknowledged
that he was not aware that Calvie Electric was on site (Tr. 691-92). He also acknowledged that
although Mr. McCarron accompanied him on the inspection he never asked him if he was the
employee whom he had observed (Tr. 712-713).

Mr. Bleven confirmed that Calvie employees wore yellow hard hats. He also testified that
he had no men working in the area of the cited violation - on the western side of the 39th floor. He
testified that Fabi had poured concrete over three -quarters of the floor the day before. That area
commenced from the western end of the floor going east. On June 14th, his crew was preparing the
remainder of the floor for pouring - the eastern end. His crew was erecting the balance of the filigree
on June 14th on the eastern end (Tr. 1072-77). To corroborate Mr. Bleven’s testimony, Respondent
presented evidence from Mr. Apice’s daily report for June 14 indicated that Calvie was on the 39th
floor as well as Fabi (Tr. 940-42; Exh. R-12.

The Secretary argues that in spite of the aforementioned testimony, one of Fabi’s employees
may have temporarily donned a yellow hard hat for some reason (Secretary’s Post-Trial Brief, p 44).
However, the undersigned finds that the weight of the evidence does not establish employee
exposure. The Mr. Kabbecko’s identification of Mr. McCarron does not establish the identity of the
employee actually observed prior to going onto the worksite. He was not present when the
observation was made, and could only identify the employee, CO DeZalia assumed had been on the
39th floor. At the time of the issuance of the violation it was assumed the exposed employee wore
a white hard hat. Exh. R-8 establishes that the hat was yellow and not white. The Secretary has not
proven by a preponderance of evidence that Respondent’s employee was exposed to the cited
violation. Accordingly, this violation is Vacated.

Classification

The undersigned finds that a preponderance of the evidence establishes a serious violation
in Instance a. The undersigned finds that the evidence in this case shows that death or serious
physical harm as a result of their proximity to unprotected edges and the fall potential of the cited
areas.

Penalty

CO DeZalia determined that the gravity reflected a high severity and greater probability. He
found that in both instances, employees would die falling from the height and the probability of
falling was immediate because employees were adjacent to the edge rather than on the floor (Tr.
631). The undersigned finds that in view of the fact the instance where the employee was observed
on the edge of the building, Instance b has been deleted, - the probability of falling was not
immediate. Additionally, there is testimony that when employees were right at the edge stripping
forms they wore personal protective equipment. Accordingly, the undersigned finds the probability
of falling was lesser and a gravity based penalty of $2,500.00. The undersigned finds no adjustment
for good faith in view of the failure to properly maintain its health and safety program, and failure
to adequately train employees. Again, no adjustment factors for size or history are appropriate. In
light of the aforementioned finding a penalty of $2,500.00 would be appropriate.

CITATION 1 , ITEM 5a

§ 1926.501 (b) (4) (I) Each employee on walking/working surfaces shall be protected from falling
through holes (including skylights) more than 6 feet (1.8 m) above lower levels, by personal fall
arrest systems, covers, or guardrail systems erected around such holes.

a) TropWorld West Tower Expansion (Transportation Center Garage), Brighton &
Pacific Aves., Atlantic City, NJ.- Employees working on the 34th through 41st floor
(amended to 34th through 39th floor) were exposed to numerous instances of
unprotected floor holes. On or about June 14, 1995.

CO DeZalia testified that at the time of the inspection he observed open floor holes of
various sizes (Tr. 634). He testified that there was also the opening in which a gentleman had come
up in order to work on the floor which was approximately 3 feet by 4 feet. There was also two open
elevator shafts. There was also a pipe run open on the top floor which measured 15 inches by 8 feet
and was not protected on one side. He stated that these were all on the 39th floor (Tr. 635). He
testified that Exh G-12 depicts one of the elevator shaft openings (Tr. 636). The fall distance to the
floor was 10 feet (Tr. 636). Exh. G-13 depicts is the second elevator shaft. The fall distance again
was 10 feet (Tr. 637). There were about 10-15 feet between the two shafts. He testified that
numerous employees were going moving about the 39th floor who would have been exposed to these
holes(Tr. 644). He testified that the employees were involved in carpentry work, such as going to
get tools and lumber. He testified that they walked within 3-5 feet of these holes (Tr. 645). He was
informed by Mr. Kabbeko that all of the employees on that floor were employed by Fabi (Tr. 644).

Respondent contends that within the two elevator shafts there was peri-form scaffolding -
a self-contained form system consisting of a solid platform attached to an accordion-like mechanism
which enables the platform to be moved up and down (Tr 1092-93). Mr. Bleven testified that the
presence of the peri-form limited the fall distance to 4 feet in one shaft and 5 feet to 5 feet 6" in the
other shaft (Tr. 1095, 1102-03). The Secretary presented no evidence to rebut Mr. Bleven’s
testimony. CO DeZalia testified that although he did not remember seeing the peri-form scaffolding
in the shafts, he did see it on the site (Tr. 704-05, 708). Accordingly, the Secretary has not
established by a preponderance of evidence noncompliance with the cited standard with regard to
the elevator shafts.

CO DeZalia also testified that a shaft way was being used as an access way. Ladders had
been placed in the access way. They were not adequately guarded on one side, exposing employees
to a potential fall distance of 10 feet to the floor below (Tr. 638-39, 641; Exh. G-14). The ladder
depicted in the photo was on the 38th floor, however, the ladder way went from the 34th to the 39th
floors. CO DeZalia testified that Mr. Kabbeko informed him that Fabi employees used the ladder
in combination with the stairway. He also observed several men, whom Mr. Kabbeko informed him
worked for Fabi, come out of the ladder way from the 38th floor onto the 39th floor.(Tr. 642, 696-98). He testified that there was an elevator that went to the 35th floor, however, the ladder ways
would have to be used for the higher level floors (Tr. 643). Thus, the exposure existed from the 34th
to the 39th floors (Tr. 647). He acknowledged that Fabi employees were working on the 36th and
39th floors (Tr. 699)

The undersigned finds that the Secretary has established the existence of falling hazard created by
the unprotected ladder way. Furthermore, Respondent presented no evidence that the condition did
not exist.

Respondent contends that there was no employee exposure. Respondent argues that the
Secretary’s assertion of employee exposure is “mere speculation”. Mr. Bleven testified that Fabi
employees did not use the cited ladder ways (Tr. 1080). He testified that at the time of the
inspection, Fabi employees were only located on the eastern side of the 38th and 39th floor where
they were setting filigree. The cited ladder way was located in the western quadrant of the 38th and
39th floors. He testified that Fabi employees had erected and used another ladder way on the eastern
portion of the floor where they were working (Tr. 1080-83; Exh. R-34). CO DeZalia admittedly
based his identification of the employees seen coming out of the ladder way on the 39th floor, on
information Mr. Kabbeko supplied to him. He conducted no personal interview of the employees (Tr.
696-698).

Respondent argues that Mr. Kabbeko’s testimony revealed a deep-seated animosity and
obvious bias toward Fabi. The record reveals that during his employment there had been a number
of disagreements with Fabi management. Mr. Bleven testified that Kabbeko had been fired by Fabi
for refusing to install safety protection at TropWorld. The undersigned also notes that during the
trial Mr. Kabbeko expressed an obvious displeasure at Mr. Bleven’s presence in the courtroom
during his testimony (Tr. 463). The undersigned having observed his demeanor at trial, recognizes
that he was upset with Mr. Bleven’s presence in the courtroom. However, the undersigned finds that
in light of the fact his firing occurred after the inspection, the undersigned does not automatically
discredit his identification of Fabi employees during the inspection.

The undersigned finds that the record establishes employee exposure to the ladder ways. The
record discloses that the cited ladder way on the 39th floor was located at Exh. R-34-T-83 right side
(Tr.1079). The parallel location of the 36th floor, Exh R-35 - T-83 right side was in the proximity
of the violation depicted in Exh G-10, where an employee engaged in stacking forms identified
himself as a Fabi employee. The drawing indicates that employees would have had access to the
cited ladder way on the 36th floor, thus, it was reasonably predictable they would be in the zone of
danger of the unguarded ladder way.. Additionally, although Fabi had erected a second ladder way
on the 39th floor, the undersigned does not discredit Mr. Kabbeko’s identification of the employees
observed coming from the cited ladder way. Additionally, although the ladder way was on the
western side of the 39th floor, the undersigned finds that it was accessible for use by all employees,
and thus, it was reasonably predictable that they would be in the zone of danger of the unguarded
ladder way on the 39th floor. There is no evidence that Fabi did not authorize use or prohibited its
employees from using this ladder way.

The undersigned finds that with the exercise of reasonable diligence Fabi could have known
of the presence of the violative condition. Furthermore, the violation was in plain view and
supervisory personnel were present throughout the work operation. American Airlines, Inc. , 17 BNA
OSHC 1552, 1555 (Nos. 93-1817 and 1965), 1996).

Classification

CO DeZalia recommended a serious classification because if some fell 10 feet they could
end up with bruises to contusions to broken bones or even die (Tr. 646). The undersigned finds that
a preponderance of the evidence establishes a serious violation.

Penalty

CO DeZalia determined that the gravity reflected a high severity because the injuries could
be severe or lead to death, and a greater probability because of the proximity of the holes presenting
a possible tripping hazard (Tr. 647). In light of the above findings the undersigned finds that the
probability was lesser. Fabi employees were only working on the 36th and 39th floors and they had
erected a second ladder way on the 39th floor. A gravity based penalty of $2,500.00 is assessed.
The undersigned finds no adjustment for good faith in view of the failure to properly maintain its
health and safety program, and failure to adequately train employees. Again, no adjustment factors
for size or history are appropriate. In light of the aforementioned finding a penalty of $2,5000.00
would be appropriate. This penalty is appropriate without the grouping of Item 5b, infra.

CITATION 1, ITEM 5b

§1926.501 (b) (4) (ii)    Each employee on a walking/working surface shall be protected from tripping
in or stepping into or through holes (including skylights) by covers.

a) TropWorld West Tower Expansion (Transportation Center Garage), 39th Floor,
Northwest corner, Brighton & Pacific Aves., Atlantic City, NJ.- Floor holes (2)
measuring 15" x 5.5" were not covered. On or about June 14, 1995.

b) TropWorld West Tower Expansion (Transportation Center Garage), 39th Floor,
Southeast corner, Brighton & Pacific Aves., Atlantic City, NJ.- Floor holes (2)
measuring 15" x 5.5" were not covered. On or about June 14, 1995.

c) TropWorld West Tower Expansion (Transportation Center Garage), 39th Floor,
South corner, Brighton & Pacific Aves., Atlantic City, NJ.- Floor holes (2) measuring
8' x 15" was not covered. On or about June 14, 1995.

CO DeZalia testified that these three violative conditions all on the 39th floor presented a
tripping hazard. He observed two small shaft holes of 5" by 15" wide, one set in the northeast corner
and one set on the southwest corner (Tr. 648-49; Exh. G-15, northwest corner). There was also a
hole that was 15" by 8 foot long and was open to one side - guarding was on one side of the hole (Tr.
649, 652; Exh. G-16). With regard to the holes in the northeast corner, he testified that he observed
no one in the area, however, he testified that carpentry work was going on throughout the floor and
there was a possibility that any employee could walk in there and trip(Tr. 650-51). He testified that
he observed two or three employees performing carpentry work within 5 to 10 feet of the holes
depicted in Exh G-16 (Tr. 652). He did not have any photographs of the holes cited in the southeast
corner. However, he testified that they were identical to the holes in Exh. G-15. He testified that
the same employees working near Exh. G-16 were working the set of holes in the southeast corner
(Tr. 655). However, when asked to describe the carpentry type activity he had observed, he
responded that there were “ a lot of guys milling around handling a lot of stuff, but he couldn’t tell
[us] what they were doing” (Tr. 710).

Respondent contends that it did not create or control the cited hazards, and that its employees
were not working anywhere near the holes (Respondent’s Post-Trial Brief, p. 61). Mr. Bleven
presented unrefuted testimony that on June 13, 1995, Fabi had covered and secured the holes in
preparation for the pouring of the floor. The holes were all located on the western side of the 39th
floor (Tr. 1083-86). He testified that in accordance with the normal progression of work, Fabi
moved away from the area where the holes were to the eastern side of the floor to allow the floor to
cure, and to allow subcontractors to install gas lines and ductwork (Tr. 1085, 1088-89). He testified
that at the time Fabi moved out the cited holes were covered and secured (Tr. 1084-86, 1089). Mr.
Apice’s records of the work being performed on June 14th corroborate the fact that the installation
of sleeves was being done by another subcontractor on the 39th floor (Tr. 939-40; Exh R-12).

The undersigned finds that the Secretary has not proven by a preponderance of the evidence
that Fabi was responsible for the cited noncompliance. Mr. Bleven provided unrefuted evidence that
Fabi had covered and secured these holes in the normal progression of work (Tr. 1084-87). The
undersigned finds that the Secretary also has not established by a preponderance of employee
exposure. The undersigned’s review of Exh R-34- which shows the location of the holes, and Mr.
Bleven’s testimony indicates Respondent’s employees had no reason to travel by these holes during
the course of their work on June 14. These holes were not located by any access way or work area.
Accordingly, the cited violation is Vacated.

CITATION 1, ITEM 6a

§1926.1052 (b) (2) Except during stairway construction, foot traffic is prohibited on skeleton metal
stairs where permanent treads and/or landings are to be installed at a later date, unless the stairs are
fitted with secured temporary treads and landings long enough to cover the entire tread and/or
landing area.

a) TropWorld West Tower Expansion (Transportation Center Garage), 35th Floor,
Brighton & Pacific Aves., Atlantic City, NJ. - From the 31st through the 35th floors
employees were observed utilizing stairs where the treads and landings were not
filled with concrete or another solid material, thus exposing the employees to a
tripping hazard. The approximate fall potential to the outside was between 9' and 45'.
On or about June 14, 1995.

CITATION 1, ITEM 6b

§1926 1052 (c) (1) Stairways having four or more risers or rising more than 30 inches (76 cm),
whichever is less, shall be equipped with: (I) -- At least one handrail; and (ii) One stairrail system
along each unprotected side or edge.

a) TropWorld West Tower Expansion (Transportation Center Garage), 31st - 35th
Floor, Brighton & Pacific Aves., Atlantic City, NJ. - Employees were observed
using stairs that were not equipped with handrails on either side of the staircaseing.
The fall potential to the landing and/or from the landing to the floor below was
approximately 4.5' while the fall potential to the outside was approximately between
9' and 45'.

CO DeZalia testified that he cited Item 6(a) because the stairs that were being used to gain
access to the upper floors - 31st to 35th floors - were skeletal metal pan stairs in which the pans had
not been filled, and the stair landings had not been filled with concrete. The stairways handrails(Tr.
658; Exhs. G-17, G-18, and G-19). He testified that the fact that the pan had not been filled at the
landing presented a tripping hazard at the lip. The pans should be filled with something - wood or
Styrofoam - so as not to create a tripping hazard until cement is poured (Tr. 661-662). He cited Item
6(b) because the cited stairs lacked handrails to prevent employees from falling to the outside of the
structure or onto landings (Tr. 664). CO DeZalia testified that he observed no barriers to these
stairways. He testified that he observed two individuals access the stairs in one instance, and Mr.
Kabbeko identified the individuals as Fabi employees. He was also told by one of the carpenters on
the job - Mr. Lebator- that employees had used the stairways to access from the upper floors down
to the bottom (Tr. 663). He testified that he had seen the two employees on the stairway between
the 34th and 35th floors, and once they headed in the opposite direction from him once they reached
the 35th floor. He acknowledged that Fabi employees were working on the 36th and 39th floors,
however, he maintained that the use of the stairs was easier than using the ladder way or waiting for
the elevator on the outside of the structure (Tr. 700).

Respondent does not dispute the existence of the cited conditions. Respondent maintains that
the Secretary cannot prove employee exposure because its employees did not use these stairs. Mr.
Bleven testified that Fabi employees were working on the 36th and 39th floors, and thus, would not
have used the stairway which only extended to the 35th floor. (Tr. 1114-15). He testified that during
the early morning on June 14th Fabi employees gained access to their work area by the use of a hoist
which placed the workers on the 39th floor and which was used latter in the afternoon to bring them
down from their work areas (Tr. 1118-19).

The record establishes that another subcontractor installed the stairway (Tr. 936). The
record is void of any evidence which demonstrates that there was any type of barrier around said
stairs to prevent their use by all subcontractors on the site. The undersigned finds that preponderance
of evidence establishes that Fabi employees had access to the zone of danger created by this violative
condition. Respondent argues in its Post-Trial Brief that employees were restricted to areas only
accessed by the use of a hoist, which Mr. Bleven testified took employees to the 39th floor. In spite
of this argument, CO DeZalia observed Fabi employees using these stairs. His conclusions as to
Fabi employee’s use of the stairs were confirmed not only by Mr. Kabbeko but also by another
carpenter on site. Additionally, the record is void of any evidence that Respondent took any action
to restrict Fabi employees from using the stairs. The hoist was only an alternative means to the 39th
floor.. Review Commission precedent requires an employer who did not create or control the
violative condition to establish that alternative measures were used or unavailable. Capform, Inc. ,
16 BNA OSHC 2040, 2041 (No. 91-1613, 1994)(multi-employer work site defense). Accordingly,
the undersigned finds that the Secretary has met her burden of proof with regard to noncompliance
and employee exposure with regard to Items 6a and 6b.

The undersigned finds that with the exercise of reasonable diligence Fabi could have known
of the presence of the violative condition. Furthermore, the violation was in plain view and
supervisory personnel were present throughout the work operation.

Classification

CO DeZalia recommended a serious classification because an employee could fall to the
floor below or to the landing which was a 4½ foot fall to a landing or 10 foot fall to the next floor
determined employees used these steps. The undersigned finds that a preponderance of the evidence
establishes a serious violation.

Penalty

These items were appropriately grouped because they involve similar or related hazards. CO
DeZalia determined that the gravity reflected a high severity because the potential to fall either off
the stairs or to the outside of the structure which would mean death because of the height, and a
greater probability because of the number of Fabi employees on site that day(Tr. 664-66). The
undersigned finds that the record establishes a lesser probability - there were other means, such as
the hoist, to reach the upper floors. Thus, a gravity based penalty of $2,500.00 is assessed. The
undersigned finds no adjustment for good faith in view of the failure to properly maintain its health
and safety program, and failure to adequately train employees. Again, no adjustment factors for size
or history are appropriate. In light of the aforementioned finding a penalty of $2,5000.00 would be
appropriate.

Complaint Inspection (2nd) JULY 6, 1995

OTHER-THAN-SERIOUS

CITATION 3, ITEM 1a

§1926.502 (I) (3)(I)(3) All covers shall be secured when installed so as to prevent accidental
displacement by the wind, equipment, or employees.

a) TropWorld West Tower Expansion (Transportation Center Garage), Brighton &
Pacific Aves., Atlantic City, NJ. - 41st floor at the temporary passenger elevator. On
or about July 6, 1995.

CITATION 3, ITEM 1b

§1926.504 (I)(4) All covers shall be color coded or they shall be marked with the word "HOLE" or
"COVER" to provide warning of the hazard.

a) TropWorld West Tower Expansion (Transportation Center Garage), Brighton &
Pacific Aves., Atlantic City, NJ. - 41st floor, outside the temporary passenger
elevator: There was a floor hole approximately 3 feet by 3 feet that was covered by
a wooden cover. On or about July 6, 1995.

CO Steinburg visited jobsite on July 6, 1995. He testified that as he waited on the 41st floor
for the elevator, he observed an unsecured and unmarked hole cover a couple of feet from the
elevator. He kicked the cover and it moved. He discovered that there was a hole under the covers.
There was no marking on the plywood cover, measuring 3 feet by 3 feet, to indicate there was a hole.
The elevator could have been used by all personnel on the job. He determined that this condition
presented a tripping hazard where one could have scraped a knee to falling through hole (Tr. 759-60). The fall distance was to next floor 10-12 feet (Tr. 760). He recommended no penalty for this
violation.

Mr. Bleven testified that there were two holes measuring 5 inches by 14 inches near the
elevator on the 41st floor. There was no other elevator on site (Tr. 1120; Exh. R-36). Mr. Bleven
testified that he had employees working on the 41st floor that day working, who could have used a
ladder or the elevator to have accessed that the floor (Tr. 1121, 1133).

The undersigned finds that it is undisputed that the unsecured and unmarked cover existed
on the 41st floor. The record establishes that the elevator which was in proximity to the cited area,
was used by Respondent’s employees as a means of access to the 41st floor. Thus, Respondent’s
employees were exposed to the cited condition. The undersigned finds that these violations had a
direct and immediate relationship to safety and health, however, they did not present the probability
of death or serious injury. Accordingly, these violations were appropriately classified as other-than-serious. The undersigned finds that there was a lesser probability of the occurrence of an injury in
view of the location of the violation, and thus, a penalty of $0.00 is appropriate.

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 found specially and appear in the decision above. See Rule 52(a) of the
Federal Rules of Civil Procedure.

ORDER

Based upon the foregoing decision, it is hereby ORDERED that:

Citation 1, Item 1a, alleging a serious violation of §1926.20(b)(1), is AFFIRMED with a penalty of
$5,000.00.

Citation 1, Item 2, alleging a serious violation of §1926.503(a)(1), is AFFIRMED with a penalty of
$5,000.00.

Citation 1, Item 3a , alleging a serious violation of §1926.501(a)(2), alleging a serious violation of
§1926.501(a)(2) is AFFIRMED with a penalty of $7,000.00.

Citation 1, Item 3b, alleging a serious violation of §1926.850(a) is VACATED.

Citation 2, Item 1, alleging a willful violations of §1926.21(b)(2), is AFFIRMED as a SERIOUS
violation with a penalty of $7,000.00.

Citation 1, Item 4, Instance a, alleging a serious violation of §1926.501(b)(1), is AFFIRMED with
a penalty of $2,500.00. Instance b is VACATED.

Citation 1, Item 5a, alleging a serious violation of §1926.501(b)(4)(I), is AFFIRMED with a penalty
of $2,500.00.

Citation 1, Item 5b, alleging a serious violation of §1926.501(b)(4)(ii) is VACATED.

Citation 1, Item 6a, alleging a serious violation of §1926.1052(b)(2) and Item 6b alleging a serious
violation of §1926.1052(c)(1) are AFFIRMED with a grouped penalty of $2,500.00.

Citation 3, Item 1a, alleging an other-than-serious violation of §1926.502(I)(3) and Item 1b alleging
an other-than-serious violation of §1926.502(I)(4) are AFFIRMED with a penalty of $0.00.

/s/

Covette Rooney

Judge, OSHRC

Dated: April 6, 1998

Washington, D.C.