L.M.A. Construction Corp.

Plain-English summary

L.M.A. Construction Corp. was the general contractor renovating a church building that also contained retail space in Manhattan. OSHA inspected after an arsonist set fire to a clothing store in the building and blocked its exit; seven store employees died from smoke inhalation. The building's sprinkler water main was shut off without the required notice, and a plywood shed concealed the fire-department connection without a sign marking it. The judge found that LMA's supervisory authority and daily project management made it responsible for detecting and correcting these conditions, including conditions created by subcontractors. He rejected the argument that the violations were de minimis merely because the sprinkler system had other deficiencies. Items 1a, 1c, and 2 were affirmed as serious, item 1b was vacated after withdrawal, and total penalties of $3,000 were assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.150(a)(1); 29 C.F.R. § 1926.150(d)(1)(ii); 29 C.F.R. § 1926.150(a)(4); 29 C.F.R. § 1926.150(d)(2); 29 C.F.R. § 1926.150(a)(2)
• Outcome: Three fire-protection items were affirmed as serious, one withdrawn item was vacated, and $3,000 was assessed.
• Key point: A general contractor with supervisory control must detect and correct fire-protection failures affecting occupied areas, even when subcontractors operate the sprinkler system.

Full text (OSHRC public release)

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC DOCKET NO. 96-0925
:
L.M.A. CONSTRUCTION CORP., :
:
Respondent. :

APPEARANCES:

           Luis A. Micheli, Esquire                Theodore H. Rosenblatt, Esquire
           New York, New York                      New York, New York
           For the Complainant.                    For the Respondent.

Before: Chief Judge Irving Sommer

                                 DECISION AND ORDER

   This proceeding is before the Occupational Safety and Health Review Commission (“the

Commission”) pursuant to section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C.
§ 651 et seq. (“the Act”). The Occupational Safety and Health Administration (“OSHA”) conducted
an inspection of a construction site in Manhattan, New York, after a fire at the site on December 8,
1995, caused the death of seven individuals. As a result of the inspection, Respondent L.M.A.
Construction (“LMA”) was issued a two-item serious citation alleging violations of the fire protection
and prevention standard; items 1a and 1c allege violations of 29 C.F.R. §§ 1926.150(a)(1) and
1926.150(d)(1)(ii), respectively, while item 2 alleges a violation of 29 C.F.R. 1926.150(d)(2), or, in
the alternative, 29 C.F.R. 1926.150(a)(2).1 LMA contested the citation, and a hearing was held on
May 13 and 14, 1997. Both parties have submitted post-hearing briefs.
Background
The construction project was the renovation of a church building owned by the United House
of Prayer (UHOP); the building also housed several retail spaces, but at the time of the fire there were
only two tenants, a clothing store called Freddy’s Fashion Mart (“Freddy’s”) and an adjacent record

   1
   The Secretary’s Complaint withdrew item 1b, which alleged a violation of 29 C.F.R.

1926.150(a)(4), and amended item 2 to allege the alternative violation noted above.
 2

store; Freddy’s, which was about 50 by 100 feet in size, was a first floor and basement space. Among
other things, the project involved the renovation of the sprinkler system, much of which was located
throughout the basement of the building. LMA, the general contractor, subcontracted the
construction work to various other companies, and one of these, Sunset Plumbing & Fire Protection
(“Sunset”), was responsible for the sprinkler system renovation.2 LMA also subcontracted the
supervision of the project to a company named Belize New York (“BNY”), whose owner, Cecil
Usher, the project superintendent, was at the site every day. Usher reported to a Mr. Ciccione, the
project manager, an LMA employee who was also at the site daily, and to James Farrell, LMA’s
president; in addition, LMA had about 12 employees on the job who did labor and clean-up work.
The fatalities on December 8 occurred when an arsonist set fire to Freddy’s and then blocked
the exit to the store by shooting at people as they tried to get out. The police arrived at the scene first
and would not let the New York City Fire Department (“NYFD”) begin putting the fire out until the
arsonist was subdued, and, as a result of the fire, seven employees of Freddy’s died from smoke
inhalation; there were also two carpenters doing some repair work in the basement of Freddy’s, but
these workers escaped from the store despite the blocked exit. The NYFD surveyed the store’s
premises on December 11, 1995, and found that the water main going to the building’s sprinkler
system was shut off, that the “Siamese connection” outside the store that could have been used to
pump water into the sprinkler system was obstructed by a plywood shed and that the connection also
had some cement around its swivel, making it unusable, and that about 20 percent of the sprinkler
piping in the basement was capped off or located above the dropped ceiling. Peter Steinke, the OSHA
compliance officer (“CO”) who inspected the site, initiated his inspection on December 13, 1995;
over the course of the inspection he spoke to Usher, Ciccione, Farrell, and employees of Sunset, and
to the architect of the project, the engineer who designed the sprinkler system, the individual who
tested Freddy’s sprinkler system several months before the fire, and officials of the NYFD and the
New York City Building Department (“NYBD”). Based on the inspection, OSHA cited LMA for not
having a fire protection program for the job, for not keeping the existing sprinkler system in service,
and for obstructing the Siamese connection located outside the store.

    2
   Although the original contract for the project had been between UHOP and The Lema

Organization, LMA took over the contract in August 1995. See R-9.
 3

                                  The Relevant Testimony
   Peter Steinke testified that while the renovation project largely excluded Freddy’s he learned

pursuant to his inspection that there was some minor alteration to the sprinkler pipes in the basement
of the store; he additionally learned the carpenters doing the repairs were employed by a company
named Landmark, a subcontractor of LMA, and that the repairs were being done due to a sprinkler
system pipe that had been run up to the cited Siamese connection. Steinke said he obtained copies
of the project plans from the architect, that C-1, R-1 and R-2 were part of the plans, and that the
plans showed the sprinkler system pipe that was put in Freddy’s. He identified C-2 as photos of the
plywood shed covering the Siamese connection, noting the shed was to keep people from entering
the building through an opening next to the door in C-2 where a hallway and staircase were going in
and that the failure to post a sign denoting the connection was the problem, not the shed; he also
noted that LMA had to know where the connection was due to the work at the site and its location
outside the building. (Tr. 7-10; 15-24; 37-41; 47-50; 58-76; 86-89; 102-03; 107; 123-24; 128).
CO Steinke further testified that he obtained C-4, the NYFD survey done after the fire, C-5,
a June 1995 letter written by the person who tested the sprinkler system, and C-6, a May 1995 NYFD
report, all of which stated that the water main to the system was shut off; moreover, Anthony St.
Lucas, an employee of Sunset, told the CO he had turned off the water main several times in the
weeks preceding the fire as well as on December 8, and although Russell Alexander, Sunset’s owner,
told the CO that the NYFD had been notified Steinke learned from the NYFD that no notification had
occurred.3 Steinke said turning off the water main to do the necessary work was reasonable as long
as it was turned back on at the end of the day and the occupants and the NYFD were given the 72-
hour notice set out in C-1; he also said the work could have been done by isolating the affected part
of the system and then reconnecting it, and noted that St. Lucas was not even aware that the system
went into Freddy’s. The CO pointed out that C-1 additionally required the old system to be
maintained until the new one was operational, and that Farrell told him he had informed “everyone”
in a job site meeting early on that the water main was to be kept open and the system maintained. The

   3
    Alexander also produced a handwritten note dated five months earlier which stated that

Sunset had notified the NYFD it would be shutting off the water main; however, Alexander would
not give Steinke the name of the person who wrote the note. (Tr. 97-100).
 4

CO further pointed out that Freddy’s did not have a certificate of occupancy, that LMA did not have
a permit for the project, and that although he asked Usher, Ciccione and LMA’s prior attorney for
a site safety plan he never got one. (Tr. 15-16; 24-40; 50-57; 89-102; 107-23; 129-30; 134-35).
Michael Salamone, an engineer with the firm that the architect of the project hired to provide
mechanical and electrical design services, testified that his firm had prepared C-1, the written
specifications for the sprinkler system for the project, and R-1 and R-2, the sprinkler system drawings
for the building’s basement. He said the written specifications took into account the fact that the
building was partly occupied and required that the work be done in accordance with the National Fire
Code and the New York City Building Code; specifically, the existing sprinkler system was to be kept
operational until the replacement system was operational, shut-downs of the system required written
72-hour notice to the NYFD and NYBD, and the contractor was to protect the existing service in the
occupied outlets and to repair any damage caused by the construction work.4 Salamone also said that
the sprinkler system design specifications involved the whole building to some extent or another, that
it included installing new piping as well as tying into existing piping, and that the left sides of R-1 and
R-2 differed in that R-1 showed the existing sprinklers with some modifications while R-2 showed
the existing piping with minor modifications; he noted that Freddy’s was in the lower left corner of
the drawings, both of which showed a pipe at about the middle of the building that led up to an
existing first-floor fire department connection. (Tr. 136-56).
Louis Cendagorta, the NYFD’s deputy chief inspector, testified that he had performed the
December 11, 1995, survey of the store’s sprinkler system, that he had found it unserviceable, and
that C-4 was his report of the survey. He also testified that NYFD inspectors had made three prior
visits to the store and found violations; visits in late 1994 and early 1995 revealed a problem with the
check valve behind the Siamese connection, such that the required five-year test of the system could
not be done, and a visit on May 12, 1995, revealed that the system was out of service because the
water main was closed. Cendagorta said the May 12 visit further revealed that 70 percent of the
building was under renovation and that this visit resulted in a violation to provide documentation
showing that an NYBD permit had been secured for the project. (Tr. 157-88; C-6; R-4-5).

    4
      Salamone stated that the purpose of the notice was to provide for other fire protection, such

as a fire watch, as well as a specific time frame for the system to be off. (Tr. 144).
 5

    George Prodromakis, the contractor UHOP’s property management plumber hired to test the

sprinkler system in Freddy’s in April 1995, testified he made three visits to the site. On his first visit
he checked the system and noted the work he needed to do before he could test it; he also noted the
water main to the system was shut off and told Cecil Usher, the job site superintendent, that it had
to be kept open as the store was occupied. On his second visit he did the required work, which
included fixing the check valve; he again noted the water main was shut off and again told Usher it
had to be kept open. On his third visit on May 12, 1995, Prodromakis tested the system in the
presence of NYFD officials; however, while the system passed the test, the NYFD would not sign
off on it due to the water main being continually shut off and the fact that there was a construction
project and no permit had been issued. Prodromakis said that C-5 was his letter in this regard to the
property management plumber, that a copy of C-5 went to Usher, and that although a sprinkler
system in an occupied building can be turned off during construction if done by a licensed contractor
after notice to the NYFD it must be turned back on at the end of the day. Prodromakis also said the
Siamese connection outside Freddy’s was not covered up when he was there and that one of the items
he corrected was to put up a sign above the connection indicating its presence. (Tr. 188-211).
James Farrell testified that LMA was provided the project drawings and specifications upon
taking over the job but that C-1 and R-1 had not been among those documents. He said that LMA
had received R-2, that the work in R-2 involved turning the existing sprinkler heads from an up to
a down position in the basement of that part of the building used by UHOP, and that no such work
took place in the retail spaces; he also said that the only work LMA did in Freddy’s was to run a pipe
across and up through the store’s basement ceiling to the first floor to a new staircase next to
Freddy’s that exited to the street, that the shed was erected to keep people from coming onto the site
while the staircase was being built, and that that work was completed before the fire, after which he
had asked Usher more than once to remove the shed. Farrell did not know who had erected the shed,
although he believed one of his subcontractors had, and he recalled no sign on the shed to denote the
connection behind it. He indicated that LMA was doing no work at the time of the fire that would
have required the shed to remain in place, that the carpenters in Freddy’s on December 8 had been
hired by BNY independently of its agreement with LMA, and that he had heard of Landmark but had
not authorized it to do any work for LMA at the site. (Tr. 212-19; 229-33; 237-38; 252-57).
 6

    Farrell testified that R-3 was the site safety program, that R-3 was given to Usher and the

subcontractors at the first job site meeting, and that everyone was told to follow it; he further testified
that he became aware prior to December 1995 that the existing sprinkler system in Freddy’s was not
being maintained, and that the violations were such that the store should not have been occupied.
Farrell said he brought the violations to the attention of the owners’ representatives at the weekly
meetings held at the site and was told they would be taken care of; when this did not happen he
advised the representatives that he would take care of the matter if they could not, and the fire took
place before the violations were resolved. Farrell also said he did not know who had installed the
sprinkler system in Freddy’s but that that entity had not filed for a permit, that turning the water main
off and on was not a reasonable way to do the job as only the owner had such authority, and that he
had raised this issue at job site meetings. However, Farrell then went on to state that Sunset’s owner
Russell Alexander had told him that he had informed the NYFD that the water main to the sprinkler
system would be turned off on certain days, that the NYFD had advised Alexander to ensure the
system was on at night, and that Alexander had a letter to this effect. (Tr. 226-29; 235-40; 250-51).
Jurisdiction
As a preliminary matter, LMA contends that the Secretary failed to show that it is engaged
in a business affecting commerce. However, Commission precedent is well settled that there is an
interstate market in construction materials and services and that construction work therefore affects
interstate commerce, even if the project is small and the company’s activities and purchases are purely
local. See Clarence M. Jones d/b/a C. Jones Co., 11 BNA OSHC 1529, 1531 (No. 77-3676, 1983),
and cases cited therein. It is clear from the record that LMA is a New York corporation engaged in
construction. See Complaint and Answer. It is also clear that LMA entered into a contract with
UHOP with respect to the subject project, and that while LMA hired subcontractors to perform the
actual construction work it oversaw the project, had ultimate responsibility for the job, and had a
clean-up crew at the site. Finally, it is clear that LMA has an office staff and that it uses materials,
supplies and the U.S. Postal Service to carry out its work. (Tr. 213-15; 220-25; 234; 242-46; 249-50;
R-9). I find, accordingly, that LMA is engaged in a business affecting commerce.
In a related argument, LMA contends that it was not an employer within the meaning of the
Act because the space Freddy’s occupied was not part of the job and there was no relationship
 7

between LMA and the employees in the store when the fire occurred. I disagree. First, the testimony
set out above, including that of Farrell, shows that there was some minor piping work performed in
the store’s basement pursuant to the contract. Second, the CO’s testimony that the carpenters in the
basement on December 8 were making repairs because of that piping work is supported by C-1, the
written job specifications, in view of specification 45, which states as follows:
Work in cellar and ground floor will take place in occupied retail outlets. Contractor
is to protect existing service, products and conditions. Remove debris caused by
construction. Remove and replace ceiling pads as necessary. Patch damaged walls,
floors and ceilings to match existing. Pay for any damaged products.
Although Farrell testified that LMA had never received C-1, CO Steinke testified that the
architect of the project told him LMA had received the project plans, including C-1. (Tr. 86-88). The
CO’s testimony is bolstered by a memo attached to the end of R-9, LMA’s contract with UHOP; the
memo, which is signed by Farrell and dated August 7, 1995, advises the subcontractors that all
contracts related to the job have been assigned to LMA and that “[t]here are no changes in payments
or scope of work.” Moreover, the CO’s testimony that the carpenters doing the repair work on
December 8 were those of Landmark, a subcontractor of LMA, was credible, convincing and based
on what he learned during his inspection. (Tr. 69-75). It is therefore credited over Farrell’s testimony
that LMA had not authorized Landmark to perform any work at the site.
In addition to the above, LMA was required by specification 41 on C-1 to “[m]aintain existing
[fire protection] systems in operation until replacement systems are installed and operational.” Based
on this specification and number 45 above, and the fact that it was the general contractor of the
project, LMA was responsible for ensuring that the sprinkler system in Freddy’s remained operational
for the protection of the occupants of the store as well as the project employees. See Grossman Steel
& Aluminum Corp., 4 BNA OSHC 1185 (No. 12775, 1976); Anning-Johnson Co., 4 BNA OSHC
1193 (Nos. 3694 & 4409, 1976). I conclude that LMA was an employer at the site within the
meaning of the Act and that the Commission has jurisdiction in this matter.

                                     Citation 1 - Item 1a
   This item alleges a violation of 29 C.F.R. 1926.150(a)(1), which requires the employer to

develop a fire protection program to be followed throughout all phases of the construction work.
 8

LMA contends that R-3 was its fire protection program and that it provided R-3 to its subcontractors
and told them to follow it. R-3, entitled “LMA Construction Company Site Safety Program,” is an
undated 11-page document with various attachments. However, CO Steinke noted that the only part
of R-3 having to do with fire protection was on page 5, wherein the “site safety manager” was to
ensure that certain fire protection measures were in effect. (Tr. 92-93). Further, while Usher told
Steinke there was a site safety program, after which the CO asked Usher, Ciccione and LMA’s former
counsel for a copy, he was never provided one.5 (Tr. 90-94).
Regardless, the more important issue is what fire protection measures were in effect at the
site. The record establishes that the water main going to the sprinkler system for the entire building
was shut off the day of the fire, that it had also been turned off several times in the weeks preceding
the fire, and that Anthony St. Lucas, a Sunset employee, was the person who had shut off the water
main. (Tr. 32-36; 97-98; 118-20). The record also establishes that C-1 required written 72-hour
notice to the NYFD before shutting off the water main and that no such notice took place; although
Russell Alexander told the CO that Sunset had notified the NYFD that it would be turning the water
main off, and Farrell testified that Alexander had told him the same thing, CO Steinke’s testimony that
he had verified with the NYFD that no notice was provided is credited as being the reliable evidence
on this point. (Tr. 97-100). Finally, the record establishes that the Siamese connection outside of
Freddy’s that could have been used by the NYFD to pump water into the store’s sprinkler system was
covered up by a shed and that there was no sign to indicate that the connection was behind the shed.
(Tr. 22; 37-39; 128; C-4).
Based on the above, the fire protection measures at the site were inadequate. LMA’s specific
contentions as to the water main and the Siamese connection are set out below in item 1c and item
2 and are rejected for the reasons stated therein. Also rejected is LMA’s assertion that it had no
knowledge of these conditions because they were due to the actions of other employers. As the
Secretary points out, the Commission has held the general contractor liable for violations of other
employers where it could reasonably be expected to prevent or detect and abate the violations due
to its supervisory authority and control over the site. See Blount Int’l, Ltd., 15 BNA OSHC 1897,

   5
    LMA did not move to have R-3 received in evidence. (Tr. 104).

9

1899 (No., 1992). See also Grossman Steel & Aluminum Corp., 4 BNA OSHC 1185 (No. 12775,
1976); Anning-Johnson Co., 4 BNA OSHC 1193 (Nos. 3694 & 4409, 1976). LMA, the general
contractor, subcontracted with Cecil Usher, the owner of BNY, to be the project superintendent, and
Usher’s duties included being at the site every day, coordinating the work and supervising the
employees, and conducting safety checks. Usher reported to Mr. Ciccione, the project manager, an
LMA employee who was also at the site daily, and to James Farrell, LMA’s president, and Farrell met
with Usher and Ciccione every week for a report on the project’s progress. (Tr. 46-47; 224-25; 233-
34; 249-50; 254). Under the circumstances of this case, and as more fully discussed infra, the water
main being turned off without notice and the obstruction of the Siamese connection were conditions
LMA could reasonably have prevented or detected and abated due to its supervisory authority and
control over the site. LMA was therefore in violation of the cited standard. The characterization of
the violation and the penalty for this item are set out following items 1c and 2.
Citation 1 - Item 1c
This item alleges a violation of 29 C.F.R. 1926.150(d)(1)(ii), which requires that existing
automatic sprinkler installations be retained in service as long as reasonable and that operation of
sprinkler control valves be permitted only by properly authorized persons. LMA contends that turning
off the water main during the day and then turning it on again at the end of the day was reasonable.
CO Steinke agreed that turning off the water main during the day was reasonable as long as the notice
required by C-1 was given.6 (Tr. 36; 118). However, the record shows, based on my findings supra,
that the required notice was not provided and that the water main had been turned off without notice
on the day of the fire as well as several times in the weeks before the fire. LMA contends that it had
no knowledge of these circumstances because Sunset, its subcontractor, advised it the NYFD had
been notified. Regardless, LMA was in violation of the standard. As found above, LMA could
reasonably have prevented or detected and abated the cited condition due to its supervisory authority
and control over the site. Moreover, Cecil Usher knew that the water main was being turned off at
the site without the required notice before LMA took over the project, in light of the testimony of
George Prodromakis and C-5, and, as LMA’s project superintendent, Usher should have known that

   6
      Specification 42 of C-1 states that “[w]ritten requests for approval for planned shutdown

... of building ... systems ... shall be made 72 hours prior to start of the requested shutdown period.”
 10

the practice was continuing and taken steps to resolve it. Additionally, that Farrell himself knew of
the practice is indicated by his own testimony that he was aware of the sprinkler system violations in
Freddy’s before December of 1995 and that they were discussed in site meetings. (Tr. 226-29; 239-
40). LMA’s final contention, that only the owner had the authority to turn the water main off and on,
is of no avail, as LMA could simply have secured the owner’s permission before giving the required
72-hour notice. This item is affirmed.
Citation 1 - Item 2
Item 2 alleges a violation of 29 C.F.R. 1926.150(d)(2), or, in the alternative, 29 C.F.R.
1926.150(a)(2). These standards require, respectively, that Siamese fire department connections be
conspicuously marked and that access to all available firefighting equipment be maintained at all
times. LMA contends it had no knowledge the connection was behind the shed. This contention is
based on the CO’s testimony that the connection was inaccurately shown on the plans and that it was
actually on the other side of the store; Salamone, on the other hand, indicated his belief the drawings
were accurate. (Tr. 62-64; 152-53). Regardless, the CO testified that LMA had to have known the
connection’s location due to its work at the site, i.e., the pipe Sunset had run up through Freddy’s
basement ceiling to the connection. (Tr. 47; 60-62; 65-67; 72; 123). CO Steinke’s testimony is
supported by that of Salamone and of Farrell himself, who both indicated that the pipe that was put
in the store’s basement went up to the connection. (Tr. 150-51; 229-30). Further, the CO testified,
in effect, that the connection’s location outside the store was obvious, and I agree with his conclusion
that LMA had to have known about the connection’s location behind the shed.7 (Tr. 123).
LMA also contends that the shed was erected in part to protect workers from demonstrators,
and that it had attempted to have the shed removed before the fire occurred. Farrell testified there had
been violent demonstrations outside the store due to a dispute between Freddy’s and the adjacent
record store, and that the shed had also served to protect the workers from the demonstrators; he
further testified that the stairway work which required the shed to be there was finished before the
fire, and that although he told Usher to remove the shed because it was collecting graffiti and

   7
     That LMA knew or should have known of the connection is also supported by R-3, which

states on page 5 that “Siamese hose connections shall be kept free from obstruction and shall be
marked by a sign reading ‘Standpipe Siamese Connection’ and by a red light.”
 11

becoming unsightly Usher had not done so. (Tr. 229-32; 252-57). CO Steinke agreed that there had
been demonstrations, but testified that the purpose of the shed was to keep people from entering the
building through an opening next to the door in C-2 where a hallway and staircase were going in. (Tr.
37-39; 65-69; 106-07). Farrell’s testimony is not credited in light of that of the CO, and LMA’s
suggestion that Usher’s failure to remove the shed was misconduct is rejected. The CO testified that
the failure to post a sign indicating the connection was the problem, not the shed, and it is undisputed
that no sign was posted. (Tr. 38; 68-69; 128). LMA was therefore in violation of 29 C.F.R.
1926.150(d)(2), which, in my view, is the more applicable standard to the cited condition.
Characterization of the Violations and Penalty Assessment
LMA contends the violations were de minimis because even if the water main had been on
and the Siamese connection uncovered the sprinkler system in Freddy’s would not have worked,
based on C-4, the NYFD survey. However, C-4 states only that even if the system had been working
it would not have provided “adequate and proper fire protection for the entire basement area because
of the ... capped sprinkler piping and sprinkler heads above ceiling,” which does not persuade me of
LMA’s contention. Moreover, CO Steinke and Louis Cendagorta, the NYFD’s deputy chief
inspector, also disagreed with LMA’s contention. (Tr. 110-13; 186-87). In any case, a violation is
properly characterized as serious if there is a substantial probability that it could result in death or
serious physical harm. See section 17(k) of the Act. The violations were therefore serious.
The CO testified that the proposed penalty of $5,000.00 each for citation items 1 and 2 was
reduced by 60 percent upon consideration of the employer’s small size and lack of history of previous
violations. The CO also testified that no further reductions were given because of the high gravity of
the violations, that the resulting penalty was $1,500.00 for each item, and that the withdrawal of item
1b did not affect the penalty amount because subitems 1a through 1c had been grouped for penalty
purposes. (Tr. 130-33). On the basis of this testimony, a penalty of $1,500.00 each is assessed for
item 1 and item 2.

                                     Conclusions of Law

12

    1. Respondent L.M.A. Construction Corporation is engaged in a business affecting commerce

and has employees within the meaning of section 3(5) of the Act. The Commission has jurisdiction
of the parties and of the subject matter of the proceeding.
2. Respondent was in serious violation of 29 C.F.R. §§ 1926.150(a)(1), 1926.150(d)(1(ii) and
1926.150(d)(2).
3. Respondent was not in violation of 29 C.F.R. §§ 1926.150(a)(2) and 1926.150(a)(4).
Order
On the basis of the foregoing Findings of Fact and Conclusions of Law, it is ordered that:
1. Items 1a and 1c are affirmed as serious violations, and a total penalty of $1,500.00 for these
items is assessed.
2. Item 1b is vacated.
3. Item 2 is affirmed as a serious violation, and a penalty of $1,500.00 is assessed.

                                                     Irving Sommer
                                                     Chief Judge

Date: