Ruscilli Construction Co., Inc.

Plain-English summary

Ruscilli Construction erected steel for a large warehouse project in Ohio. OSHA issued seven serious citation items involving jobsite inspections, fall protection, compressed-air hoses, and aerial lifts. Judge Ken S. Welsch affirmed the inspection-program item because the designated competent person did not recognize several hazards, the hose item because compressors lacked pressure-reducing devices, and the aerial-lift item because employees stood on basket midrails. He vacated the safety-net item because the Secretary did not prove that employees lacked tie-off protection, and vacated three other fall-protection items for lack of employer knowledge, proof, or an applicable standard. On reconsideration, the judge credited Ruscilli's lack of citations during the prior three years and reduced the three affirmed penalties. The final penalties totaled $7,920.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.20(b)(2), 1926.104(b), 1926.104(d), 1926.105(a), 1926.302(b)(7), 1926.453(b)(2)(iv), and 1926.453(b)(2)(v).
• Outcome: Three serious items affirmed and four vacated; amended penalties totaled $7,920.
• Key point: The affirmed hazards were visible or identified by equipment warnings, while the vacated items failed on proof of noncompliance, knowledge, anchorage capacity, or standard applicability.

Full text (OSHRC public release)

))))))))))))))))))))))))))))))))))))))))))))),
Secretary of Labor, *
Complainant, *
*
v. * OSHRC Docket No. 97-1603
*
Ruscilli Construction Co., Inc., *
Respondent. *
)))))))))))))))))))))))))))))))))))))))))))))-

APPEARANCES

                                      Patrick L. DePace, Esq.                          Patrick H. Boggs, Esq.
                                      Office of the Solicitor                  Lane, Alton & Horst
                                      U. S. Department of Labor                Columbus, Ohio
                                      Cleveland, Ohio                                  For Respondent
                                               For Complainant

Before: Administrative Law Judge Ken S. Welsch

                                                           DECISION AND ORDER
                 Ruscilli Construction Co., Inc., (Ruscilli) contests a seven-item citation issued on

September 8, 1997. The citation resulted from an inspection conducted by Occupational Safety
and Health Administration (OSHA) compliance officer Steven B. Medlock on April 17 and 18,
1997. Medlock conducted the complaint inspection of Ruscilli at a large warehouse project in
Tipp City, Ohio, where Ruscilli was engaged as the steel erection subcontractor.
The citation alleges that Ruscilli committed serious violations of the following standards of
the Occupational Safety and Health Act of 1970 (Act):
Item 1: Section 1926.20(b)(2)--failure to perform frequent and regular inspections of the
job site;
Item 2: Section 1926.105(a)--failure to use safety nets when other methods of fall
protection were impractical;
Item 3: Section 1926.302(b)(7)--failure to have a pressure-reducing device on a
compressed air hose.
Item 4: Section 1926.453(b)(2)(iv)--allowing employees to stand on the midrail of an
aerial lift basket;

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Item 5: Section 1926.453(b)(2)(v)--failure to ensure that employees attached their
lanyards to the inside of the basket of an aerial lift;
Item 6: Section 1926.104(b)1--failure to provide adequate anchorage for personal fall
arrest systems; and
Item 7: Section 1926.104(d)2--failure to rig the fall arrest system so that employees could
not fall more than 6 feet.
Ruscilli stipulated jurisdiction and coverage. A hearing was held on May 12 and 13, 1998.
The parties have filed post-hearing briefs. For several of the alleged violations, Ruscilli argues
that the cited standards do not apply. Ruscilli also asserts the affirmative defenses of
unpreventable employee misconduct, infeasibility, and greater hazard.
For the following reasons Items 1, 3 and 4 are affirmed and Items 2, 5, 6 and 7 are
vacated.

                                          Background
    Meijer Construction Management hired Steelox Systems, general contractor, to oversee

the construction of a 530,000 square foot warehouse distribution center in Tipp City, Ohio.
Construction on the project began in March, 1997, and was completed in February, 1998. The
center included a single-tiered steel structure which was 1,300 feet long and 700 feet wide, with a
32-foot high wall and a 40-foot high ridge (Tr. 67-68, 85-86, 89-90, 121).
Tim Layfield was Steelox’s steel erection supervisor. He was the only Steelox employee
on the site. Layfield reported to Jim Ohanesian of Meijer. Steelox hired Ruscilli as a
subcontractor to perform the steel erection on the project. Layfield had no supervisory authority
over Ruscilli’s steel erection employees (Tr. 68-69).
Norman Harris was the steel crew foreman for Ruscilli (Tr. 119). Harris supervised two
other Ruscilli foremen, Bob Solomon and Bob Sweetman, who headed separate work crews. All

    1
     The Secretary originally cited Item 6 as a violation of § 1926.502(d)(5). The court

granted the Secretary’s motion to amend the cited standard to § 1926.l04(b).
2
The Secretary originally cited Item 7 as a violation of § 1926.502(d)(16)(iii). The court
granted the Secretary’s motion to amend the cited standard to § 1926.104(d).

                                                2

three foremen had the authority to direct how the work was performed and to reprimand
employees (Tr. 168, 174-175).
Ruscilli supplemented its own workforce on the project with employees hired from
Tradesmen International. Approximately 25 of the steel erection employees on the site were
employed directly by Ruscilli, and another 8 to 12 employees came from Tradesmen International
(Tr. 122, 214-215).
On April 17 and 18, 1997, OSHA compliance officer Medlock conducted a complaint
inspection of the Meijer project (Tr. 254-255). Medlock made a walk-around inspection and
interviewed employees. As a result of Medlock’s observations and interviews, the Secretary
issued the citation in this proceeding.

                                        The Citation
   The Secretary has the burden of proving her case by a preponderance of the evidence.
   In order to establish a violation of an occupational safety or health standard, the
   Secretary has 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).
In order to establish that a violation is “serious” under § 17(k) of the Act, the Secretary
must establish that there is a substantial probability of death or serious physical harm that could
result from the cited condition. In determining substantial probability, the Secretary must show
that an accident is possible and the result of the accident would likely be death or serious physical
harm. The likelihood of the accident is not an issue. Spancrete Northeast, Inc., 15 BNA OSHC
1020, 1024 (No. 89-2253).

                   Item 1: Alleged Serious Violation of § 1926.20(b)(2)
   The Secretary alleges that Ruscilli committed a serious violation of § 1926.20(b)(2),

which provides:

                                              3

Such [accident prevention] programs shall provide for frequent and regular
inspections of the job sites, materials, and equipment to be made by competent
persons designated by the employers.

      Section 1926.32(f) defines “competent person” as “one who is capable of identifying

existing and predictable hazards in the surroundings or working conditions which are unsanitary,
hazardous, or dangerous to employees, and who has authorization to take prompt corrective
measures to eliminate them.”
Ruscilli designated foreman Norman Harris as its competent person on the site (Tr. 122-
123). Harris testified that he was on the site daily and that “[i]nspections are a constant” (Tr.
123). Harris had never received training in the requirements of the OSHA standards, nor had he
received instruction on how to conduct an inspection (Tr. 123, 150).
While the record establishes that Harris made frequent and regular inspections of the
worksite, it also establishes that he was not a competent person within the meaning of §
1926.32(f). Harris was unfamiliar with OSHA’s requirement that the air hoses of pneumatic
power tools be equipped with pressure-reducing devices under § 1926.302(b)(7) (Tr. 134, 161,
304). He also allowed employees to work from the midrail of an aerial lift basket, in
contravention of § 1926.453(b)(2)(iv) (Tr. 304-305). Harris failed to take a frayed sling out of
service, even though he acknowledged that he had observed its condition the day before Medlock
began his inspection (Tr. 303, 306).
Harris was not sufficiently conversant with the requirements of the OSHA standards to be
able to identify conditions that were hazardous to Ruscilli’s employees. Ruscilli was thus in
violation of § 1926.20(b).
A violation of § 1926.20(b) increases the possibility that hazardous conditions will remain
uncorrected. Ruscilli’s employees were working at heights in excess of 30 feet while exposed to
fall hazards. Ruscilli’s employees were also using pneumatic power tools not equipped with
pressure-reducing devices, which could result in the employees being “hose-whipped” should an
air hose fail. Ruscilli was in serious violation of § 1926.20(b)(2).

Penalty

                                               4

The Commission is the final arbiter of penalties in all contested cases. Under § 17(j) of the
Act, in determining the appropriate penalty, the Commission is required to find and give “due
consideration” to (1) the size of the employer’s business, (2) the gravity of the violation, (3) the
good faith of the employer, and (4) the history of previous violations. The gravity of the violation
is the principal factor to be considered.
Ruscilli had approximately 200 employees at the time of the OSHA inspection (Tr. 308).
The Secretary had cited Ruscilli within the three years prior to the citation in the instant case
(Exh. J-11; Tr. 309-310). The Secretary adduced no evidence of bad faith on the part of Ruscilli.
The gravity of the violation is high. Failure to detect and correct a number of safety violations
exposed employees to several hazards, including falling from a height of over 30 feet. It is
determined that a penalty of $4,000 is appropriate.

                    Item 2: Alleged Serious Violation of § 1926.105(a)
    Section 105(a) provides:
    Safety nets shall be provided when workplaces are more than 25 feet above the
    ground or water surface, or other surfaces where the use of ladders, scaffolds,
    catch platforms, temporary floors, safety lines, or safety belts is impractical.

    The Review Commission has held that the hazards of falling to the exterior of a building

during steel erection are regulated by § 1926.105(a). Peterson Brothers Steel Erection Co., 16
BNA OSHC 1196, 1198 (No. 90-2304, 1993). There is no dispute that § 1926.105(a) applies to
this case.
The standard requires the use of one of the listed devices. The Secretary establishes a
prima facie case upon showing that the employees were exposed to falls in excess of 25 feet and
that none of the protective measures was used. Century Steel Erectors, Inc. v. Dole, 888 F.2d
1399, 1402-1403 (D.C. Cir. 1993).
Ruscilli argues that the Secretary failed to prove that the Respondent was in
noncompliance with the cited standard. The Secretary bases the citation on Medlock’s
observation during the inspection of two ironworkers who were working atop the 32-foot high
structure. Medlock believes that the ironworkers were not using any form of fall protection.

                                              5

Ruscilli had a 100% tie off policy for employees working at elevated heights (Tr. 129).
Ruscilli implemented a fall protection system using a trolley and cable system in the shape of the
letter “H.” Ruscilli installed a cable perpendicular to the bar joist at each frame, with a transverse
cable connecting to each. Ruscilli anchored the cables so the cable to which the employees tied
off rests near their feet, directly on top of the steel itself (Tr. 183, 188, 190-194).
Ruscilli asserts that it was feasible to tie off as a method of fall protection, and that it
chose that method of complying with § 1926.105(a). After some resistance, Medlock reluctantly
conceded in his testimony that it was feasible for employees to tie off (Tr. 324-333). Alan Simon,
one of the ironworkers that Medlock believes was not tied off, testified that Ruscilli had a 100%
tie off policy and that he personally tied off approximately 95% of the time. He stated that it was
not possible to tie off for the 3 to 5 seconds it takes to transfer from the basket of an aerial lift to
the steel (Tr. 9-10). Jimmy Allen, the other ironworker that Medlock observed, also testified that
he tied off approximately 95% of the time he was on the steel (Tr. 50).
Medlock testified that he observed Simon and Allen working on the steel. Using
binoculars, Medlock concluded that the ironworkers were not tied off (Tr. 260). Medlock took a
series of photographs of the employees on the steel (Exh. J-26). Despite a close examination of
these photographs, the court was unable to determine whether the employees were tied off at the
time the photographs were taken.
Steelox supervisor Layfield was with Medlock when Medlock noticed the ironworkers.
Layfield estimates that he and Medlock were approximately a quarter of a mile away from the
ironworkers (Tr. 82). (Medlock testified that the distance was not that far (Tr. 322).) Layfield
could not determine from that vantage point whether the employees were or were not tied off.
Layfield got into his truck and drove over to the structure on which the employees were working.
Layfield testified that when he got closer, he saw that Allen and Simon were, in fact, tied off (Tr.
82).
The Secretary has the burden of proving that Ruscilli was not in compliance with the cited
standard. The testimony of Medlock conflicts with that of Layfield. Medlock stated that the
ironworkers were not tied off. However, the photographs which he took to corroborate this point
are inconclusive. Layfield testified that initially he was unable to tell whether or not the

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employees were tied off, and that he needed to get closer to find out. Layfield’s testimony is
credited over Medlock’s in this instance. Layfield undertook an additional step that resulted in his
having a better view of the ironworkers. Medlock was unable to see the employees’lanyards
from where he was standing. Ruscilli’s particular system of fall protection resulted in the lanyards
being attached at floor level instead of extending horizontally from the safety harnesses of the
employees. This would have increased the difficulty of seeing the lanyards.
The Secretary has not shown that Ruscilli was in noncompliance with § 1926.105(a). The
Secretary has failed to establish a violation of that standard.

                  Item 3: Alleged Serious Violation of § 1926.302(b)(7)
   The Secretary alleges that Ruscilli violated § 1926.302(b)(7), which provides:
   All hoses exceeding ½-inch inside diameter shall have a safety device at the source
   of supply or branch line to reduce pressure in case of hose failure.

   Ruscilli was using two Ingersoll-Rand air compressors to power pneumatic impact

wrenches through ¾-inch inside diameter hoses at the Meijer site (Exhs. J-26Q, J-26T, J-26U; Tr.
300-301). A pressure-reducing device attaches to the air compressor between the service point
(where the compressed air comes out) and the hose, to prevent “hose-whip” in the event of line
failure or disconnection. If the hose or line fails, the pressure-reducing device eliminates the
pressure to the hose, preventing “hose-whip.” The compressors that Ruscilli’s employees were
using were not equipped with a pressure-reducing device (Tr. 301-303). Medlock observed
Ruscilli employee Ed Simons using a wrench powered by one of the air compressors (Tr. 277).
Ruscilli obtained the air compressors through a rental company. One compressor was
rented, and the other one was purchased on a rent-to-own plan with the same rental company (Tr.
217-218). Ruscilli concedes that the hoses did not have the required pressure-reducing devices,
but argues that it relied upon the rental company to ensure that any equipment Ruscilli rented
from it complied with the applicable OSHA standards (Tr. 462). This argument is rejected.
Ruscilli was responsible for complying with the OSHA standards applicable to any equipment to
which its employees had access. Furthermore, the compressors were marked with warning labels
that read (Exh. J-26X, Tr. 302):

                                               7

Unrestricted air flow through a hose end can result in a whipping action which can
cause severe injury or death. Always attach a safety flow restrictor to each hose at
the source of supply or branch line in accordance with OSHA regulation 29 C.F.R.
Section 1926.302(b).

      The Secretary has established that Ruscilli violated § 1926.302(b)(7). Ruscilli’s

employees had access to and used wrenches attached by ¾-inch inside diameter hoses to
compressors that were not equipped with the required pressure-reducing device. Ruscilli should
have known of this violation with the exercise of reasonable diligence. The compressors were
labeled with a warning that specifically referred to the cited standard.
The hazard created by Ruscilli’s violation was that employees could be seriously injured
by “hose-whip” should the line fail (Tr. 302). The violation was serious.

Penalty
The gravity of the violation was moderate. The testimony given regarding “hose-
whipping” did not indicate that it typically resulted in grievous injuries (Tr. 341-342). It is
determined that a penalty of $2,800 is appropriate.

                  Item 4: Alleged Serious Violation of § 1926.453(b)(2)(iv)
      Section 1926.453(b)(2)(iv) provides:
      Employees shall always stand firmly on the floor of the basket, and shall not sit or
      climb on the edge of the basket or use planks, ladders, or other devices for a work
      position.

      Ruscilli routinely allowed its employees to stand on the midrail of the aerial lift basket

while performing their work (Exhs. J-26F, J-26L, J-26M-J-26P; Tr. 72, 293-294). Employees
worked from the midrail in full view of everyone on the site, including Ruscilli’s three foremen
(Tr. 298). Ruscilli was aware that § 1926.453(b)(2)(iv) prohibited this activity. Ruscilli has a
work rule that also prohibited it (Tr. 201).
Ruscilli does not dispute that it was in violation of § 1926.453(b)(2)(iv), but asserts the
affirmative defense of infeasibility.

                                                 8

To establish the affirmative defense of infeasibility, an employer must show that
(1) the means of compliance prescribed by the applicable standard would have
been infeasible, in that (a) its implementation would have been technologically or
economically infeasible or (b) necessary work operations would have been
technologically infeasible after its implementation, and (2) there would have been
no feasible alternative means of protection.

V.I.P. Structures, Inc., 16 BNA OSHC 1873, 1874 (No. 91-1167).
Ruscilli has failed to establish this defense. It does not argue that compliance with the
standard was economically infeasible, and it has not shown that compliance was technologically
infeasible in either its implementation or in performing necessary work operations.
Ruscilli claims that its employees needed to stand on the midrail on an aerial basket to
perform two specific tasks. The first was the installation of bar joists on the large I-beams. The
second was welding the flange bracing. As Ruscilli admits in its post-hearing brief (Ruscilli’s
brief, p. 25):
Technically, a worker engaged in the welding of flange bracing could do so by
sitting on top of the I-beam, tying off to the I-beam and then bending down and
performing the welding below his waist. . . . The same is also true of those
workers in setting bar joists on I-beams.

    Ruscilli’s argument is not that compliance with the cited standard was technologically

infeasible but that it would have created a greater hazard. The greater hazard defense is separate
from the infeasibility defense.
To establish a greater hazard defense the employer must show that (l) the hazard
created by complying with the cited provision would be greater than those due not
to complying, (2) other methods of protecting its employees from the hazards were
used or were not available, and (3) a variance is not available or that application
for a variance is inappropriate.

State Sheet Metal Co., 16 BNA OSHC 1155 (No. 90-1620, 1993).
Ruscilli must fail in this defense because it presented no evidence of either the application
for a variance or the inappropriateness of applying for a variance.
The Secretary has established that Ruscilli was in violation of § 1926.453(b)(2)(iv).
Compliance with the standard was feasible. The hazard presented by the employees standing on
the midrail while tied off is that they could fall the length of their lanyards, resulting in minor

                                                9

fractures. Medlock observed one employee standing on the midrail who was not tied off, creating
the hazard of death or serious physical injury (Tr. 297). The violation was serious.
The gravity of the violation was high. One employee stood on the midrail while not tied
off. The employees who were tied off stood on the midrail with Ruscilli’s condonation. A
penalty of $2,000 is appropriate.

                Item 5: Alleged Serious Violation of § 1926.453(b)(2)(v)
   The Secretary alleges that Ruscilli violated § 1926.453(b)(2)(v), which provides:
   A body belt shall be worn and a lanyard attached to the boom or basket when
   working from an aerial lift.

   Medlock observed Ruscilli employee Frank Olton working from the midrail on an aerial

lift, which was elevated approximately 40 feet. Olton was wearing a full-body harness but he was
not tied off with a lanyard (Exhs. J-26F, J-26L; Tr. 293, 356). Ruscilli does not dispute that its
employee was exposed to the hazard of falling 40 feet due to noncompliance with
§ 1926.453(b)(2)(v), but contends that it had no actual or constructive knowledge of this
condition.
The testimony of Medlock supports Ruscilli’s contention. Medlock testified that when he
observed Olton, he did not see supervisory personnel from Ruscilli in the area. Medlock
estimated that the nearest management personnel was probably 500 feet away (Tr. 356). When
asked how Ruscilli had knowledge of Olton’s action, Medlock replied, “They had management
somewhere in that area. It’s possible that they could have knowledge that the condition existed”
(Tr. 358). When pressed as to how a supervisor who was at least 500 feet away could know that
an employee was not tied off 40 feet in the air, Medlock responded, “It’s possible, but I doubt
that they could see him from that distance” (Tr. 358).
The Secretary has failed to establish that Ruscilli violated § 1926.453(b)(2)(v). She has
not shown that Ruscilli had actual knowledge of the violation, and she has not argued that Ruscilli
had constructive knowledge. Because it is concluded that the Secretary failed to establish a prima

                                             10

facie case for this item, it is not necessary to address Ruscilli’s affirmative defense of
unpreventable employee misconduct. Item 5 is vacated.

                    Item 6: Alleged Serious Violation of § 1926.104(b)
    The Secretary alleges that Ruscilli committed a violation of § 1926.104(b), which

provides:
Lifelines shall be secured above the point of operation to an anchorage or
structural member capable of supporting a minimum dead weight of 5,400 pounds.

    The Secretary cited Ruscilli under § 1926.104(b) not because of the location of the lifeline

but because, she alleges, the anchorage was not designed to support a minimum dead weight of
5,400 pounds. A crucial element of the Secretary’s burden of proof for this item is that Ruscilli’s
anchorage cannot, in fact, support a minimum dead weight of 5,400 pounds. The Secretary failed
to adduce any evidence of the dead-weight capacity of the anchorage points.
Ruscilli general superintendent Steven Rippel designed Ruscilli’s fall protection system in
1991, in conjunction with a safety consultant company and Blaaco Equipment, Ruscilli’s
equipment supplier. Ruscilli uses 5/16-inch “quick links,” purchased from Blaaco, to anchor each
corner of the system. Detail A of Exhibit J-17 is a diagram of an anchorage point with a quick
link. The quick links have a working load limit of 1,780 pounds. The breaking strength of the
quick link is between 6,200 and 8,800 pounds (Exh. J-10; Tr. 183-188, 190-194, 364).
The Secretary asserts that the working load limit of a quick link (1,780 pounds) is virtually
the equivalent of its minimum dead weight. The Secretary’s assertion is based on Medlock’s
testimony regarding the relationship between the working load limit and the minimum dead weight
(Tr. 368):
There is no good definition for what dead weight is. Dead weight is the weight of
something just hanging there. Working load is as close to dead weight or the
definition of that as you can get. They’re not exactly the same, but that’s as close
as you can get to them. It’s not an actual load and it’s not a breaking strength.

    Medlock concedes that this correlation between minimum dead weight and working load

lift is not found in the OSHA standards (Tr. 368). The Secretary references no cases, and none

                                              11

are found that support the Secretary’s position. Medlock acknowledges that he did not know the
dead- weight capacity of the quick links (Tr. 368-369).
The record fails to show the minimum dead-weight capacity of the quick links or
corroborate Medlock’s claim that the working load limit equates more or less to the minimum
dead-weight capacity. Item 6 is vacated.

                    Item 7: Alleged Serious Violation of 1926.104(d)
   The Secretary alleges that Ruscilli violated § 1926.104(d), which provides:
   Safety belt lanyard shall be a minimum of ½-inch nylon, or equivalent, with a
   maximum length to provide for a fall of no greater than 6 feet. The rope shall have
   a nominal breaking strength of 5,400 pounds.

   The transverse cable, or trolley line, located atop one section of the steel was slack (Exh.

J-26H; Tr. 25-26). The Secretary contends that the cable allowed for a fall of more than 6 feet
for any employee who tied off to it. Ruscilli concedes that the cable was too slack but claims that
the cable was not being used and was going to be moved over to the next bay (Tr. 16-17).
It is puzzling that both parties analyze this standard with regard to the transverse cable.
Section 1926.104(d) unambiguously refers only to lanyards. “Lanyard” is defined in §
1926.107(b) as “a rope, suitable for supporting one person. One end is fastened to a safety belt or
harness and the other is secured to a substantial object or a safety line.” The cable at issue is a
safety line to which lanyards are attached. The cited standard is not applicable to the cable. Item
7 is vacated.

                 FINDINGS OF FACT AND CONCLUSIONS OF LAW
   The foregoing decision constitutes the findings of fact and conclusions of law in

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

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




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(1) Item 1, violation of § 1926.20(b)(2), is affirmed and a penalty of $4,000 is
assessed;
(2) Item 2, violation of § 1926.105(a), is vacated.
(3) Item 3, violation of § 1926.302(b)(7), is affirmed and a penalty of $2,800 is
assessed;
(4) Item 4, violation of § 1926.453(b)(2)(iv), is affirmed and a penalty of $2,000 is
assessed;
(5) Item 5, violation of § 1926.453(b)(2)(v), is vacated;
(6) Item 6, violation of § 1926.104(b), is vacated; and
(7) Item 7, violation of § 1926.104(d), is vacated.

                                        KEN S. WELSCH
                                        Judge

Date: February 2, 1999

                                          13

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Secretary of Labor,
Complainant,
v OSHRC Docket No. 97-1603
Ruscilli Construction Co., Inc.,
Respondent.

                                 Order Amending Decision
  Ruscilli Construction Co., Inc., moves for reconsideration of the calculation of the penalty

amount for affirmed Items 1, 3 and 4 of the citation in the captioned case.

    In calculating the penalties, one of the factors the court relied upon was the compliance

officer’s initial testimony that the Secretary had cited Ruscilli within the three-year period prior to
the citation at issue. As Ruscilli points out in its motion, the compliance officer conceded upon
cross-examination that the Secretary had not, in fact, cited Ruscilli during that period (Tr. 388-
390).

    As the Secretary points out in her opposition to Ruscilli’s motion to reconsider, this court

is not bound by OSHA’s internal guidelines that consider only the previous three years for the
purposes of history. However, the court did rely on Ruscilli’s lack of citations during this period
in calculating the penalties. Therefore, it is appropriate to reconsider the penalties, taking into
account Ruscilli’s lack of citations in the three years prior to the instant citation.

    Ruscilli also moves for reconsideration of its good faith as a factor in calculating the

penalty. This factor was duly considered in determining the penalty initially and will not be
reconsidered.

    Accordingly, it is ORDERED that the penalty amounts for the affirmed items be adjusted

as follows:
Item 1: The penalty is adjusted to $3,600.
Item 3: The penalty is adjusted to $2,520.
Item 4: The penalty is adjusted to $1,800.

   SO ORDERED.

Date February 16, 1999 Judge Ken S. Welsch
100 Alabama Street, S.W., Room 2R90
Atlanta, GA 30303-3104
Phone (404)562-1640 Fax (404)562-1650
This notice has been sent to:

For the Secretary of Labor: For the Employer:

Office of the Solicitor Patrick H. Boggs, Esq.
U. S. Department of Labor Lane, Alton & Horst
881 Federal Office Building 175 S. Third St., Suite 700
1240 East Ninth Street Columbus, OH 43215-5100
Cleveland, OH 44199
Attn: Patrick L. DePace, Esq.