Hi-Tech Builders, Inc.

Plain-English summary

Hi-Tech Builders erected structural steel at the Guam International Airport while employees repeatedly worked without tying off and without temporary floors or nets below them. OSHA videotaped the conduct from a public parking lot, and Judge Nancy J. Spies rejected Hi-Tech's challenge because the company had no reasonable expectation of privacy in work visible from public areas and showed no prejudice from the inspection procedure. The employees faced exterior falls of about 50 feet and interior falls of about 30 feet, and practical fall-protection methods were available. Project safety officials had warned Hi-Tech management many times over an extended period, stopped work, issued memoranda, and documented recurring violations, but the company did not correct the conduct. The judge affirmed both items as willful and reduced the proposed penalties from $49,000 per item to $30,000 per item because Hi-Tech was a small employer and the violations were similar.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.105(a); 29 C.F.R. § 1926.750(b)(2)(i)
• Outcome: Two willful fall-protection items affirmed; proposed $98,000 total penalty reduced to $60,000.
• Key point: Repeated warnings and visible recurring fall hazards establish willfulness when management promises correction but knowingly allows the same conduct to continue.

Full text (OSHRC public release)

                                                                  

Secretary of Labor,
Complainant,

              v.                                     OSHRC Docket No. 97-1976

Hi-Tech Builders, Inc.,
Respondent.


Appearances:

      Matthew Vadnal, Esquire                        Jae Park, Vice President
             United States Department of Labor                Hi-Tech Builders, Inc.
             Office of the Solicitor                          Agana, Guam
             San Francisco, California                                 For Respondent
                      For Complainant

Before: Administrative Law Judge Nancy J. Spies

                                   DECISION AND ORDER
      Hi-Tech Builders, Inc., contests a two-item citation issued by the Secretary on October 9,

1997. Item 1 of the citation alleges a willful violation of § 1926.105(a) for failure to provide fall
      protection for employees working at heights 25 feet above the surface below. Item 2 alleges a
      willful violation of §1926.750(b)(2)(i) for failure to provide a tightly planked and substantial
      floor below where employees were working.
      Hi-Tech’s vice-president Jae Park represented the company pro se at the hearing held on
      March 20, 22, and 23, 1999. Hi-Tech does not dispute jurisdiction and coverage. Hi-Tech
      argues that the inspection conducted by the Occupational Safety and Health Administration
      (OSHA) was invalid and that evidence gathered during that inspection should not be admitted
      into the record. The Secretary has filed a post-hearing brief. Hi-Tech has declined to file a brief.

        For the reasons set out below, items 1 and 2 of the citation are affirmed.
      
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      Background
      In January 1997, the Occupational Safety and Health Administration (OSHA) began an
      inspection of an expansion and renovation project underway at the Guam International Airport.
      OSHA’s inspection was part of a local emphasis program called PAC Isles (Tr. 22).
      Hi-Tech was performing structural steel erection for the expansion of the airport. The
      prime contractor on the project was Hanjin, with whom OSHA compliance officer Daniel J.
      Mooney held an opening conference on January 24, 1997. Mooney held a closing conference
      with Hanjin on January 29, but he subsequently observed what he believed were ongoing safety
      violations on the construction site. (The construction site was visible from a nearby public
      roadway on which Mooney regularly drove.) Consequently, Mooney continued his inspection of
      the construction project and held another closing conference with Hanjin on February 4, 1997
      (Tr. 23-24).
      On April 21, 1997, before the Secretary had issued any citations to any of the employers
      working on the airport construction project, Mooney was driving on the public roadway next to
      the airport. Mooney noticed that some of the workers (including several Hi-Tech employees)
      were engaged in conduct that he believed was violative of OSHA’s safety standards. On April
      21, 22, and 24, Mooney and fellow OSHA compliance officer Randy White videotaped the
      airport construction site from a public parking lot located 50 to 200 yards away from the site.
      The video camera the compliance officers used was equipped with a zoom lens capable of
      magnifying the objects viewed up to 30 times (Tr. 27). Mooney and White informed Hanjin that
      they were continuing their inspection of the construction site (Tr. 25-26).
      Mooney and White stated that they attempted to meet Hi-Tech’s representatives but could
      not get anyone from Hi-Tech to come to Hanjin’s trailer. The compliance officers went to the
      area of the west wing expansion where the steel erection was taking place. They met with Andy
      Kim, Hi-Tech’s president, and with Hi-Tech employee Richard Lobo. Kim identified himself as
      Hi-Tech’s on-site supervisor. The compliance officers showed Kim and Lobo their credentials
      and explained the purpose of their investigation (Tr. 79-80, 125). Mooney testified that Hi-Tech
      was not unionized so there was no employee representative with whom he and White could meet

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      (Tr. 131). White stated that when he and Mooney went out to the site, Hi-Tech’s employees “all
      disappeared” (Tr. 421).
      As a result of Mooney and White’s inspection, the Secretary issued the citation in the
      instant case to Hi-Tech on October 9, 1997.
      The Validity of OSHA’s Investigation
      Hi-Tech charges that OSHA violated §§ 8(a) and (e) of the Act. Hi-Tech argues that the
      compliance officers conducted most of their investigation of Hi-Tech’s worksite, including all of
      the videotaping, before holding the opening conference with Kim and Lobo.
      Section 8(a) provides:
      In order to carry out the purposes of this Act, the Secretary, upon presenting
      appropriate credentials to the owner, operator, or agent in charge is authorized--
      (1) to enter without delay and at reasonable times any factory, plant,
      establishment, construction site, or other area, workplace or environment where
      work is performed by an employee of an employer; and
      (2) to inspect and investigate during regular working hours and at other
      reasonable times, and within reasonable limits and in a reasonable manner, any
      such place of employment and all pertinent conditions, structures, machines,
      apparatus, devices, equipment, and materials therein, and to question privately any
      such employer, owner, operator, agent or employee.

      Section 8(e) provides:
      Subject to regulations issued by the Secretary, a representative of the employer
      and a representative authorized by his employees shall be given an opportunity to
      accompany the Secretary or his authorized representative during the physical
      inspection of any workplace under subsection (a) for the purpose of aiding such
      inspection. Where there is no authorized employee representative, the Secretary
      or his authorized representative shall consult with a reasonable number of
      employees concerning matters of health and safety in the workplace.

      Hi-Tech basis its argument that OSHA’s inspection is invalid on two claims: first, that
      Mooney and White impermissibly videotaped its worksite before holding an opening conference
      with Hi-Tech and without Hi-Tech’s knowledge; and, second, that Mooney and White did not
      afford Hi-Tech the opportunity of accompanying them during their walk-around inspection.
      Hi-Tech relies on L. R. Willson & Sons, Inc., for support. In Willson, the employer
      moved to suppress a videotape taken off-site before the compliance officer presented his

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      credentials to the employer, claiming that the compliance officer violated §§8 (a) and (e) by
      videotaping first. The undersigned denied the employer’s motion. The Review Commission
      affirmed that decision in L. R. Willson & Sons, Inc., 17 BNA OSHC 2059 (No. 94-1546, 1997).
      The Fourth Circuit Court of Appeals affirmed the Review Commission’s ruling that the
      videotape was admissible, but reversed and remanded the Commission’s decision with regard to
      the burden of proof on the unpreventable employee misconduct defense. L. R. Willson & Sons,
      Inc., 134 F. 3d 1235 (4th Cir. 1998).1
      In Willson, Joseph Dear, then Assistant Secretary of Labor for OSHA, observed from his
      hotel window employees working without fall protection at a construction site across the street
      from the hotel where he was staying. Dear telephoned an OSHA compliance officer, Ronald
      Anderson, and described to him what he had just seen.
      Anderson came to make an inspection of the site. However, rather than going
      immediately to the Willson site, Anderson obtained permission from the Peabody
      Hotel to videotape the activities on the site from the hotel’s roof. For
      approximately 50 minutes, Anderson videotaped the activities at the site, which
      included two employees working at a height of about 80 feet without adequate
      safety cables, through a “16” power camera lens. Anderson then went to the site,
      presented his credentials, and was allowed to interview the two employees he had
      observed.

L. R. Willson & Sons, 134 F. 3d at 1237.
In affirming the admissibility of the videotape, the Court of Appeals stated:
Although surveillance is a type of search that can invoke Fourth Amendment
protections if performed unreasonably, we hold that Anderson’s long distance
observations were not unreasonable. . . . Although, as Willson points out in its
brief, the roof of the Peabody Hotel was not completely open to the public, and
Anderson did employ a high powered lens in shooting the videotape, the crucial
aspect of the situation seems to be that Willson left the construction site open to
observation from vantages outside its control. As the inquiry should focus on
what sort of “expectation of privacy” Willson had, we believe that a sustained
view from a hotel across the street is difficult to classify as an unreasonable
intrusion into Willson’s “private space.”

1
Park, a non-lawyer, cites the Willson case in support of his position because of dicta in the decision in which the
Review Commission expresses disapproval of the compliance officer’s videotaping for 45 minutes while allowing
employees to remain exposed to potentially fatal fall hazards. The Review Commission urges the Secretary "to take
steps to prevent it in the future." L. R. Willson, 17 BNA OSHC at 2062.

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Id. at 1238.
With regard to the off-site videotapes violating § 8(a)(1), the court of appeals stated that
the Review Commission reads § 8(a)(1) “as focusing on the entrance onto a worksite, and thus
concluded that it does not apply to ‘off-site’ observations such as the one in this case. . . .
Nothing in the statute or its legislative history indicates that § 8(a)(1)’s requirements apply to
nontrespassory observations of worksites.” Id.
In the present case, the compliance officers were in a public parking lot, which was more
accessible to the general public than the top of the Peabody Hotel in Willson. A case more
apposite to the situation here is GEM Industrial, Inc., 17 BNA OSHC 1184 (No. 93-1122, 1995).
In GEM, the employer’s construction site was visible from the main road. The
compliance officer turned onto an industrial parkway and parked in a parking lot for the
completed, occupied building next to GEM’s worksite. From his car the compliance officer took
several photographs. The compliance officer then proceeded to the worksite and presented his
credentials to the employer’s foreman. Approximately 10 to 15 minutes elapsed between the
time of the compliance officer’s arrival at the parking lot and his presentation of credentials.
GEM argued that the compliance officer violated §§ 8(a) and (e) and moved to suppress the
photographs taken by the compliance officer. The administrative law judge granted GEM’s
motion and suppressed the photographs. The Review Commission reversed the administrative
law judge’s ruling, finding that the employer had no reasonable expectation of privacy:
The CO observed the violative conditions from his car parked in the parking lot of
a completed building next to GEM’s site, a lot in which any member of the public
could park to conduct business in the occupied building. The road that he took
into the industrial park was not closed off. There was a sign identifying the park,
but there is nothing in the record to indicate that it was intended to exclude the
public.

Id., 17 BNA OSHC at 1186-1187.
The case law is clear that an employer has no reasonable expectation of privacy in a
construction worksite that is visible from areas to which the public has access. Hi-Tech could
not reasonably expect that its steel erection at the Guam International Airport would remain

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private when it was visible from both the public roadway and from a public parking lot located
nearby. OSHA’s compliance officers did not violate § 8(a).
Hi-Tech also argues that the compliance officers violated § 8(e) by not offering its
representatives the opportunity to accompany them on their walk-around inspection of Hi-Tech’s
worksite. Hi-Tech’s development of this theory is somewhat sketchy. Hi-Tech acknowledges
that Mooney and White met with Hi-Tech president Andy Kim and that they presented their
credentials to him in an opening conference. Hi-Tech’s argument appears to be that the
compliance officers delayed the opening conference until they had conducted most of their
investigation, and that president Kim did not understand English well enough to comprehend his
rights under the Act.
Mooney and White explained that when they first arrived at the construction site, they
were unable to summon anyone from Hi-Tech to the prime contractor’s trailer. They chose to go
to the area where Hi-Tech was erecting structural steel. There is no evidence that they purposely
delayed holding the opening conference. Kim testified at the hearing. While it was clear that he
is not fluent in English, the undersigned observed that he was able to understand English and to
communicate what he wanted understood.
The compliance officers spoke to Kim about the alleged violations. It is unclear from the
record whether the compliance officers formally offered Kim an opportunity to accompany them
on their inspection. Kim was not questioned on this point by either the Secretary or Hi-Tech.
Mooney’s testimony on this point is somewhat vague (Tr. 136):
Well, the walk-around conversation, basically, consisted of that we
observed several hazards, which we described. Some of them we did not cite.
We said that we needed to obtain some measurements so we could
determine the fall heights.
And we showed--we tried to show some of the video, but it was bright out,
you couldn’t see the screen.
And we said that we were later going to have a closing conference and go
over the hazards we videotaped from off site at the closing conference.
So the conversation was probably a few minutes, at the most.

   The Review Commission has held that a compliance officer’s failure to comply with

§ 8(e) does not necessarily invalidate the citations. “The extent of the efforts required on the part

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of the inspector to satisfy section 8(e) will depend upon the circumstances of the particular case.”
Concrete Construction Co., 15 BNA OSHC 1614, 1618 (No. 89-2019, 1992). Furthermore, the
Commission held that, even if a showing is made that the employer was not afforded an
opportunity to accompany a compliance officer, vacation of the citation is not appropriate where
the employer’s “preparation or presentation of its defense is not prejudiced.” Concrete
Construction, 15 BNA OSHC at 1618.
Nothing in the record indicates either that Hi-Tech was not afforded an opportunity to
accompany the compliance officers on their walk-around, or that Hi-Tech’s defense was in any
way compromised by not having a representative accompany the compliance officers during their
inspection. There is no basis to dismiss the case or to surpress the evidence from Mooney’s and
White’s inspection based on a violation of either §§ 8(a) or 8(e).
Citation No.1
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. 86-521, 1991).

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Item 1: Alleged Willful Violation of § 1926.105(a)
The Secretary alleges that Hi-Tech committed a willful violation of §1926.105(a), which
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). Because of the type of fall hazard involved, §
1926.105(a) is applicable to the steel erection work being performed by Hi-Tech at the Guam
International Airport expansion. Employees worked more than 25 feet above the ground level
and were exposed to exterior falls.
Section 1926.105(a) 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).
The videotape taken by the compliance officers shows Hi-Tech employees working at
heights of approximately 50 feet. The method of fall protection used by the employees was
safety lines, belts, and lanyards. In many instances shown in the videotape, the employees failed
to tie off. These instances were frequent and were in plain view. Hi-Tech’s president was on the
site. Hi-Tech had constructive, if not actual, knowledge that its employees were failing to tie off
(Exhs. C-1, C-2 through C-12; Tr. 55).
“To establish a violation of § 1926.105(a) for failing to require a listed fall protection
device other than a safety net, the Secretary must also show that the device was practical in the
cited employer’s circumstances.” George Campbell Painting Corporation, 1999 OSHRC
No. 29, p. 11 (No. 94-3121, 1999). The use of safety belts and lanyards by Hi-Tech’s employees
was practical. White testified that attaching temporary columns or “stanchions” to the beam and
then stretching a lifeline between them as a tie off point before lifting the beam into place was

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one practical means of abatement (Tr. 466-467). Vice-president Park testified that the use of
safety belts, lanyards, and lifelines was practical and feasible (Tr. 540).
The Secretary has established that Hi-Tech violated § 1926.105(a).
Item 2: Alleged Willful Violation of § 1926.750(b)(2)(i)
Section 1926.750(b)(2)(i) provides:
Where skeleton steel erection is being done, a tightly planked and substantial floor
shall be maintained within two stories or 30 feet, whichever is less, below and
directly under that portion of each tier of beams on which any work is being
performed, except when gathering and stacking temporary floor planks on a lower
floor, in preparation for transferring such planks for use on an upper floor. Where
such a floor is not practicable, paragraph (b)(1)(ii) of this section applies.

    Section 1926.750(b)(1)(ii) provides:
    On buildings or structures not adaptable to temporary floors, and where scaffolds
    are not used, safety nets shall be installed and maintained whenever the potential
    fall distance exceeds two stories or 25 feet. The nets shall be hung with sufficient
    clearance to prevent contacts with the surface of the structures below.

    It is undisputed that § 1926.750(b)(2)(i), which is intended to prevent falls to the interior

of a building, applies to Hi-Tech’s worksite. Noncompliance with the cited standard is
established by evidence that none of the protective measures mentioned in the standard was used.
El Paso Crane & Rigging, Inc., 16 BNA OSHC 1419 (No. 90-1106, 1993).
Hi-Tech provided neither temporary floors nor safety nets below and directly under where
its employees were performing work. The employees were exposed to a 30-foot fall to the
interior of the building. The employees were in plain view of Hi-Tech president Kim, who was
on the site.
Although infeasibility was not pled, the issue was raised and tried at the hearing. Hi-Tech
argues that during the steel erection phase of the project, use of temporary flooring or safety nets
would prevent the use of guy wires necessary to secure the columns and plumb the building (Tr.
399-400, 510-511). However, Mooney testified credibly that the use of fall protection was
feasible. Temporary flooring could have been used by installing additional girders and installing
metal decking around the guy wires and tack welding or overlapping the decking (Tr. 86-87).
Interior nets could have been linked together and attached to wire ropes strung around the

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columns (Tr. 88). Aerial lifts, which are available on Guam, could have been used to lift the
employees to the area where the work was being performed (Tr. 90-91).
The Secretary has established that Hi-Tech violated § 1926.750(b)(2)(i).
Willful Classification
The Secretary classified items 1 and 2 as willful violations.
A violation is willful if committed with intentional, knowing or voluntary
disregard for the requirements of the Act or with plain indifference to employee
safety. . . . A willful violation is differentiated from a nonwillful violation by a
heightened awareness, a conscious disregard or plain indifference to employee
safety. . . . A willful charge is not justified if an employer has made a good faith
effort to comply with a standard or to eliminate a hazard, even though the
employer’s efforts are not entirely effective or complete.

Valdak Corp., 17 BNA OSHC 1135, 1136 (No. 93-239, 1995) (citations omitted).
Bruce Williams was hired by Hanjin to be the safety and security officer on the airport
project (Tr. 204). In late 1995 or early 1996, Hi-Tech began work on the project. Williams had
almost daily contact with Hi-Tech president Kim and vice-president Park (Tr. 210-211).
Williams stated that he had “a continuous problem with Hi-Tech Builders” because its employees
would not use fall protection. According to Williams, “Many times they either didn’t have the
safety belt and were not hooked up to the safety line, and/or the safety line was not in place”
(Tr. 215).
Williams pointed out Hi-Tech’s safety violations to Kim and Park “many times”
(Tr. 218). Park would tell Williams that he would take care of the problem, but, as Williams
testified, “[E]ventually that became a problem with what he was saying and what was being
done’” (Tr. 220).
Williams wrote several memoranda to Hi-Tech with copies to the project’s management
warning that the company was jeopardizing their workers’ safety. One of the memoranda, dated
April 22, 1996, states in part (Exh. C-21, pp. 3-4):
Hi-Tech or High Risk?
Technology has made great leaps in the work place [and] equipment and you
should take advantage of this to protect your men and your company. I
recommend a competent safety manager on this project to handle the following:

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--Training: I’ve cited the same violations so many times that I’m dizzy!
Document your training and remove the repeat offenders as liabilities.
--(Over the weekend): You erected the curtain wall frame without:
(1) approved sketch of hanging scaffold
(2) installing mid-rail
(3) men were climbing down the crane’s main line without a safety line.
(4) men were climbing the columns without life[lines].
--Today: During present erection at E-17, zone 4:
(1) men working at edge, outside barricade, without safety belts or harness.
(2) at apron level, zone 1, a cage was being worked on that is a
“condemned” cage from Samsung. DO NOT USE! CUT IT UP FOR
SCRAP!
--Tomorrow? The same? or worse? Do you care?
I do! As of today, Hi-Tech has been put on the “Hazardous List.”
Hanjin management has been notified! Their decision is forthcoming.

   On April 22, 1996, Williams halted Hi-Tech’s work because its employees were working

outside a barricade without safety belts or safety lines (Exh. C-21; Tr. 222-223, 227). Williams
had to tell Hi-Tech employees to tie off at least five times (Tr. 243). Williams recommended at
one safety meeting that one of Hi-Tech’s employees be terminated because Williams had caught
him twice when he was not tied off. Park told Williams that he wanted to keep the employee on
the job (Tr. 245).
From August 1996 to August 1998, Carlos Buhain was the Safety Administrator for
Hanjin (Tr. 341). Beginning in March 1997, approximately one month before the OSHA
inspection, Buhain kept a log book in which he documented several Hi-Tech safety violations
(Exh. C-26).
Felix Mansapit worked as a safety inspector on the airport project for the entirety of the
project (Tr. 285-286). He stated that Hi-Tech’s fall protection program was “very poor”
(Tr. 295). When asked on how many occasions he observed Hi-Tech employees working
without fall protection, Mansapit replied, “Oh, gosh. I really couldn’t put a number on that.
Maybe daily. Daily. Gosh, I would say numerous. I don’t know how you would tag a number
on numerous, but, you know, numerous occasions” (Tr. 296). Mansapit repeatedly told Park
about the ongoing problems with Hi-Tech’s workers. Park responded that he knew more about

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the OSHA construction standards than most people and that he would take care of the problems
(Tr. 298-299).
In April 1996, Mansapit wrote three letters to Hanjin listing Hi-Tech’s safety violations
and recommending that special measures be taken to improve Hi-Tech’s safety performance.
The first letter, dated April 22, 1996, states in part:
Your subcontractor HiTech is rapidly becoming a high risk and possible
expensive liability on this project, with their personnel not using fall protection on
heights in excess of 25 ft. In addition, unless they can see your safety officer, all
fall protection is disregarded totally.

    The Secretary contends that Hi-Tech’s well-documented history of notices that its

employees were routinely failing to use fall protection establishes that items 1 and 2 are willful.
[W]hether a willful violation exists depends upon the employer’s state of mind
with respect to the requirements imposed by a standard. . . . [A]n employer who
has notice of the requirements of a standard and is aware of a condition which
violates that standard but fails to correct or eliminate employee exposure to the
violation demonstrates knowing disregard for purposes of establishing willfulness.

Aviation Constructors, Inc., 1999 OSHRC No. 27, p. 7 (No. 96-0593, 1999).
The facts fully warrant a willful classification in this case. Hi-Tech was repeatedly
notified by a number of safety personnel over a period of several months that its employees were
not tying off or using any other means of fall protection while working at heights of 50 feet to the
exterior, and 30 feet to the interior, of the structure. Kim and Park refused to take any corrective
action. Park either told whomever notified him of the violative conduct that he would take care
of it, and then ignored it; or he would arrogantly assert that he knew more about OSHA safety
standards than they did. The record establishes that on numerous occasions Hi-Tech was warned
that its employees were exposing themselves to fall hazards. The safety personnel sent memos,
held meetings, and threatened corrective action against Hi-Tech, yet Hi-Tech refused to enforce
OSHA’s standards.
As Hi-Tech’s managing partner, Mr. Park refused to accept the advice of anyone with
safety responsibility on the worksite. He dissected and re-interpreted every safety requirement so
that the company could work exactly as it wished; and it wished not to be bothered with safety

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restrictions. Hi-Tech has amply demonstrated its intentional and knowing disregard for the
requirements of the Act, as well as its plain indifference to employee safety.
Items 1 and 2 of the violation are classified as willful.
Penalty Determination
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.
Although there was some evidence that Hi-Tech had 22 employees at the time of the
inspection, Park testified that the company actually had less than 10 employees. Park’s estimate
will be accepted for purposes of the penalty determination (Tr. 559-561). Hi-Tech had
previously been cited for violations of the fall protection standards (Tr. 428-429). Few are
arguably less deserving of a good faith credit than is Hi-Tech in these circumstances.
The gravity of the violations is high. The employees were exposed to 30- and 50-foot
falls which would most likely have resulted in death. Employees were in immediate proximity to
the hazard as they walked narrow girders and climbed over obstructions. Mooney and White
observed four or five employees exposed on April 21; and during a 5-minute span on April 24,
they saw another four or five employees who were exposed to fall hazards in separate instances
(Tr. 92).
The Secretary proposed a penalty of $49,000.00 for each of the items, for a total penalty
of $98,000.00. While the undersigned agrees that a high penalty is warranted based on the bad
faith and the high gravity of the violations, she is also mindful of the small size of the employer
and the similarity between the fall protection violations cited as items 1 and 2. Accordingly, it is
determined that the appropriate penalty for item 1 is $30,000.00, and for item 2 is $30,000.00.
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).

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ORDER
Based upon the foregoing decision, it is hereby ORDERED that:
(1) Item 1 of the citation, alleging a willful violation of § 1926.105(a), is affirmed and
a penalty of $30,000.00 is assessed; and
(2) Item 2 of the citation, alleging a willful violation of § 1926.750(b)(2)(i), is
affirmed and a penalty of $30,000.00 is assessed.

                                                NANCY J. SPIES
                                                Judge

Date: October 28, 1999

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