Avcon, Inc., Vasilios Saites, and Nicholas Saites

Read the official release (oshrc.gov)

Plain-English summary

OSHA cited numerous hazards during construction of an eighteen-story concrete building. The Commission dismissed Bill and Nick Saites individually because the Secretary added them after the six-month limitations period and did not show that their original omission resulted from a mistake that would permit relation back. On the merits, the Commission affirmed hazard-communication and safety-program items, affirmed inadequate scaffold access but vacated the scaffold-planking item for insufficient proof, and affirmed twenty-four fall-protection instances. It amended five instances to the more specific leading-edge provision, rejected Avcon's infeasibility defense, and upheld the willful characterization of three grouped fall-protection items. Total penalties were $77,350.

Decision snapshot

• Cited standard(s) on Commission review: 29 C.F.R. § 1910.1200(e)(1); 29 C.F.R. § 1910.1200(h)(1); 29 C.F.R. § 1926.20(b)(1); 29 C.F.R. § 1926.451(b)(1); 29 C.F.R. § 1926.451(e)(1); 29 C.F.R. § 1926.501(b)(1); 29 C.F.R. § 1926.501(b)(2)(i)
• Outcome: The individual respondents were dismissed, one scaffold item was vacated, the remaining reviewed items were affirmed or amended, and $77,350 was assessed.
• Key point: A late amendment adding a new respondent relates back only when that respondent knew or should have known that its original omission resulted from a mistake about the proper party.

Full text (OSHRC public release)

AVCON, INC., VASILIOS SAITES, and NICHOLAS SAITES, Docket No. 98-0755 & 98-1168

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket Nos. 98-0755 and 98-1168

AVCON, INC., VASILIOS SAITES, and
NICHOLAS SAITES

Respondents.

APPEARANCES:

Peter J. Vassalo, Jordana Wilson, and Laura Fargas, Attorneys; Daniel J. Mick, Counsel for
Regional Trial Litigation; Donald G. Shalhoub, Deputy Associate Solicitor; Joseph M.
Woodward, Associate Solicitor; Judith E. Kramer, Acting Solicitor; U.S. Department of Labor,
Washington, DC

For the Complainant

Paul A. Sandars, III; Lum, Danzis, Drasco, Positan & Kleinberg, LLC, Roseland, New Jersey

For the Respondent

DECISION AND ORDER

Before: ROGERS, Chairman; THOMPSON and ATTWOOD, Commissioners.

BY THE COMMISSION:

Avcon Incorporated (“Avcon”) is a New Jersey corporation engaged in the business of
poured-in-place concrete construction. This case involves a worksite in Hackensack, New
Jersey, where Avcon was building an eighteen-story apartment complex called “Excelsior II.”
Following an inspection of the worksite conducted between October 1997 and April 1998, the
Occupational Safety and Health Administration (“OSHA”) issued Avcon one serious citation
and one willful citation alleging multiple violations of the Occupational Safety and Health Act of
1970 (“OSH Act” or “Act”), 29 U.S.C. §§ 651-678, with a total proposed penalty of $134,000
(Docket No. 98-0755).

After a second inspection of the same worksite conducted between
April 1998 and June 1998, OSHA issued Avcon another serious citation with a total proposed
penalty of $6,000 (Docket No. 98-1168). All of the citations were timely contested and the two
matters were consolidated for consideration by Administrative Law Judge Covette Rooney.

On November 20, 1998, the Secretary filed motions to amend her complaints in both
cases seeking to add two individuals as Respondents: Vasilios (“Bill”) Saites, Avcon’s president
and director; and Nicholas (“Nick”) Saites, Bill’s son and an Avcon assistant superintendent.
Thereafter, the Saiteses filed a response to the Secretary’s amendment motions, urging the judge
to deny the motions. The judge granted the Secretary’s motions, and following a hearing on
these matters, issued a decision in which s he affirmed the nine citation items now at issue on
review and assessed a total penalty of $77,800.

In her decision, the judge again rejected claims by the Saiteses that they were not proper
parties to these matters. She found that the record evidence established that the Saiteses
“maintained control over the worksite [,]” and that they were “employers” within the meaning of
section 3(5) of the OSH Act. According to the judge, “Avcon’s corporate form was a mere
formality” and, therefore, it was appropriate to hold the Saiteses individually liable for the
OSHA citations and penalties at issue in both cases. For the following reasons, Bill and Nick
Saites are dismissed from these cases as respondents, all but one of the nine citation items on
review are affirmed, and a total penalty of $77,350 is assessed.

ANALYSIS

I. Secretary’s Motions to Amend

We turn first to the Respondents’ threshold claim on review that the judge erred in
allowing the Secretary to amend her complaints to add the Saiteses as parties to the case more
than six months after the occurrence of the violations, contrary to section 9(c) of the OSH Act.
Section 9(c) states that “[n]o citation may be issued . . . after the expiration of six months
following the occurrence of any violation.” 29 U.S.C. § 658(c). It is undisputed that the
Secretary’s motions to amend were filed approximately ten months from the date of the most
recent violation observed in Docket No. 98-0755, and six months and eight days from the most
recent violation observed in Docket No. 98-1168.

Commission Rule 34 permits the Secretary to amend her citation or proposed penalty in
her complaint. But neither this Rule nor any other Commission Rule provides a mechanism for
the Secretary to amend her complaint once it has been filed and the amendment is sought after
the statute of limitations has expired.

In the absence of a specific Commission Rule, the Federal
Rules of Civil Procedure (“FRCP”) must be applied. See 29 U.S.C. § 661(g); Commission Rule
2, 29 C.F.R. § 2200.2(b) (requiring application of FRCP in the absence of a specific Commission
Rule). Here, the only rule under the FRCP that would allow the Secretary to amend her
complaint more than six months after the occurrence of a violation is FRCP 15(c). See Vergona
Crane Co. , 15 BNA OSHC 1782, 1783-84 n.3, 1991-93 CCH OSHD ¶ 29,774, p. 40,496 n.3
(No. 88-1745, 1992) (“even if Jo-Le-Ron had been the only appropriate entity to cite, an
amendment of the pleadings to name it as employer would be permissible under” Rule 15(c));
see also CMH Co. , 9 BNA OSHC 1048, 1050-55, 1980 CCH OSHD ¶ 24,967, p. 30,821 (No.
78-5954, 1980) (allowing the Secretary “to conform the pleadings to the proof” to substitute a
new party more than six months after the occurrence of a violation by way of a Rule 15(c)
amendment).

At the time the Secretary moved to amend her complaints in this case, FRCP 15(c) set
forth the following requirements for an amendment to a pleading to relate back to the original
pleading date:

(c) Relation Back of Amendments. An amendment of a pleading relates
back to the date of the original pleading when

(1) relation back is permitted by the law that provides the statute of
limitations applicable to the action, or

(2) the claim or defense asserted in the amended pleading arose out of the
conduct, transaction, or occurrence set forth or attempted to be set forth in
the original pleading, or

(3) the amendment changes the party or the naming of the party against
whom a claim is asserted if the foregoing provision (2) is satisfied and,
within the period provided by Rule 4(m) for service of the summons and
complaint, the party to be brought in by amendment (A) has received such
notice of the institution of the action that the party will not be prejudiced in
maintaining a defense on the merits, and (B) knew or should have known
that, but for a mistake concerning the identity of the proper party, the action
would have been brought against the party.

Fed. R. Civ. P. 15(c) (1998) (stylistic revisions made in 2007).

Respondents specifically claim
that the Secretary’s amendments failed to satisfy the requirements of FRCP 15(c)(3).

Based on
our review of the record, we conclude that the Secretary has not met the “knowledge of mistake”
requirement because she failed to show that the Saiteses knew or should have known that but for
a mistake concerning identity they would originally have been cited individually.

The Supreme Court recently addressed this specific requirement in Krupski v. Costa
Crociere , 130 S.Ct. 2485 (2010). There, the Court held that relation back under FRCP 15(c)
depends on what the party to be added knew or should have known, and not on the amending
party’s knowledge or its timeliness in seeking amendment. Id. at 2493-96. The Court instructed,
“[w]hen the original complaint and the plaintiff’s conduct compel the conclusion that the failure
to name the prospective defendant in the original complaint was the result of a fully informed
decision as opposed to a mistake concerning the proper defendant’s identity, the requirements of
Rule 15(c)[] are not met.”  Id. at 2496   Thus, the relevant inquiry here is whether the Saiteses
should have realized that the Secretary’s failure to name them in the original complaints was the
result of a mistake by the Secretary as to the legitimacy of Avcon as the cited employer.   

Here, we see nothing in the original complaints that would have alerted the Saiteses that
the Secretary made a mistake in failing to name them.  There is no language in these documents
that suggests the Secretary was under a misimpression that Avcon was exclusively responsible
for the violations and was issuing the citations to them for that reason. Cf. Krupski , 130 S.Ct. at
2497 (concluding that it was clear from original complaint “that Krupski meant to sue the
company that ‘owned, operated, managed, supervised and controlled’ the ship on which she was
injured [citation omitted] and also indicated (mistakenly) that Costa Cruise performed those
roles . . . .”). Unlike the plaintiff in Krupski , the Secretary initially named Avcon, a party that
was, in fact, legally responsible.   Cf. id. (“because the face of the complaint plainly indicated
such a misunderstanding, respondent’s contention is not persuasive”).

The Secretary also failed to provide any basis in her motions to amend the complaints to
even suggest that the Saiteses should have realized that her failure to cite them initially resulted
from a mistake concerning the identity of the proper party.  Both of the Secretary’s amendment
motions are supported by fundamentally the same affidavit of William G. Staton, an attorney
with the U.S. Department of Labor. This affidavit simply lists a number of Saites-owned
companies that have defaulted on payment of OSHA penalties in connection with more than
thirty prior citations.   Notwithstanding this pattern of default spanning a period of twenty-five
years, the Secretary had never previously cited either one of the Saites individually and there is
no information in the affidavits that would have led the Saiteses to believe that this particular
time was different from any other, i.e. , that the Secretary “mistakenly” failed to cite them for
these particular citations. Given her longstanding consistent behavior, it is more likely the
Saiteses would have concluded that the Secretary intended to continue to cite the corporation.
And as the Secretary has declined our invitation to brief this issue as specifically identified in the
Commission’s briefing notice for this case, we are unaware of any basis to view the issue—for
which she carries the burden—any differently.

Under these circumstances, we conclude that the Secretary has failed to show there was a
reason for the Saiteses to believe that her decision not to initially cite them was a “mistake”
rather than “fully informed.”  See Choice Electric Co. , 14 BNA OSHC 1899, 1900, 1987-90
CCH OSHD ¶ 29,141, p. 38,940 (No. 88-1393, 1990) (“general rule in administrative
proceedings [is] that the moving party has the burden of proof”) (citing Section 7(c),
Administrative Procedure Act, 5 U.S.C. § 556(d)); see also Sarasota Concrete Co. , 9 BNA
OSHC 1608, 1612 and n.9, 1981 CCH OSHD ¶ 25,360, p. 31,531 and n.9 (No. 78-5264, 1981)
(same), aff’d , 693 F.2d 1061 (11th Cir. 1982).  Accordingly, we find that the judge erred in
granting the Secretary’s motions to amend the complaints to add Bill and Nick Saites as parties
more than six months after the occurrence of the violations and dismiss both individuals from
these cases as respondents.

II. Serious Citation 1, Items 1a and 1b: 29 C.F.R. §§ 1910.1200(e)(1), (h)(1) (hazard
communication)

The Secretary cited Avcon for two alleged serious violations of the hazard
communication standard: for failing to “develop, implement, and/or maintain” a written hazard
communication program under 29 C.F.R. § 1910.1200(e)(1) (Item 1a), and for failing to provide
“effective information and training” to its employees regarding the hazardous chemicals at the
worksite under 29 C.F.R. § 1910.1200(h)(1) (Item 1b). The Secretary grouped these items and
proposed a penalty of $900. The judge affirmed the items as alleged and assessed the proposed
penalty.

The hazard communication standard requires an employer to “develop, implement, and
maintain at each workplace[] a written hazard communication program . . . .” 29 C.F.R.
§ 1910.1200(e)(1). The program must include a “list of the hazardous chemicals known to be
present using an identity that is referenced on the appropriate material data safety sheet . . . .”
29 C.F.R. § 1910.1200(e)(1)(i). Employers must also “provide employees with effective
information and training on hazardous chemicals in their work area” and inform them of the
“location and availability of the written hazard communication program, including the required
list(s) of hazardous chemicals . . . .” 29 C.F.R. §§ 1910.1200(h)(1), (h)(2)(iii).

At the outset, we note that Avcon has failed to address the hazard communication
training item (Item 1b) in its briefs to the Commission, even though the company sought review
of the item in its petition for discretionary review and our briefing notice specifically asked the
parties to discuss it. Accordingly, we deem this item abandoned by Avcon. See Midwest
Masonry, Inc. , 19 BNA OSHC 1540, 1543 n.5, 2001 CCH OSHD ¶ 32,428, p. 49,994 n.5 (No.
00-0322, 2001) (employer deemed to have abandoned argument permitted by Commission’s
briefing notice by not addressing it in brief on review); Ragnar Benson, Inc. , 18 BNA
OSHC 1937, 1938, 1999 CCH OSHD ¶ 31,932, p. 47,371 (No. 97-1676, 1999) (“The
Commission need not review an issue abandoned by a party.”).

With respect to the hazard communication program item (Item 1a), the Secretary alleged,
and Avcon does not dispute, that Avcon’s written program lacked a list of the hazardous
chemicals employees used at the worksite.

Instead, Avcon contends that the judge erred in
affirming the item because she “ignored” Avcon’s development and use of a written hazard
communication program. However, it is Avcon that has ignored its own failure to include
gasoline, oxygen, acetylene, and propane on its required list of onsite hazardous chemicals even
though it also does not dispute that these substances are hazardous chemicals that were used by
its employees. Indeed, as Nick Saites acknowledged, the program only “told the employees how
to handle materials, and if there was an accident, what to do.” Although he also testified that
material safety data sheets (“MSDS’s”) were kept in the same binder with Avcon’s hazard
communication program, the cited provision clearly differentiates between the hazardous
chemicals list and the MSDS’s, which are separately required. 29 C.F.R. § 1910.1200(e)(1)(i)
(requiring that the list of hazardous chemicals reference the MSDS’s that identify the chemicals);
see also Atl. Battery , 16 BNA OSHC 2131, 2182, 1993-1995 CCH OSHD ¶ 30,636, p. 42,499
(No. 90-1747, 1994) (noting that the list must include “those chemicals for which the employer
is required to obtain an MSDS”). Under these circumstances, we conclude that Avcon failed to
develop and maintain a written hazard communication program that meets all of the
requirements of the cited standard. See Safeway Store No. 914 , 16 BNA OSHC 1504, 1514-15,
1993-1995 CCH OSHD ¶ 30,300, pp. 41,747-48 (No. 91-373, 1993) (affirming violation of
§ 1910.1200(e)(1) where employer failed to include a hazardous chemical present at its site in its
hazard communication program list and affirming violation of separate MSDS requirement).

Avcon has challenged neither the characterization nor the penalty proposed for the
grouped items. Accordingly, we affirm the items as serious and assess the $900 proposed
penalty.

III. Serious Citation 1, Item 2: 29 C.F.R. § 1926.20(b)(1) (safety program)

In this item, the Secretary alleged that Avcon failed to maintain an adequate accident
prevention program (“safety program”). The Secretary based this item on evidence that Avcon’s
supervisors permitted and participated in conduct that violated various OSHA standards, and on
alleged insufficiencies in Avcon’s written program, including its origin as an OSHA guidance
document that “was in no way tailored or adapted to a company engaged in shoring, form work,
or concrete pouring.” The judge affirmed the violation, finding that management tolerated and
participated in noncompliance with OSHA standards, “which . . . indicated that there was no
program to bring workers into compliance,” and that Avcon’s safety program did not address
measures for detecting and correcting hazards and was not communicated to employees “in a
manner which [would] let the employees know what precautions to take when they encountered
potentially dangerous situations.” She assessed the $3,000 proposed penalty.

The cited standard requires an employer to “initiate and maintain” a safety program for
its employees engaged in construction work. 29 C.F.R. § 1926.20(b)(1). Under the standard,
“an employer may reasonably be expected to conform its safety program to any known duties”
and the “safety program must include those measures for detecting and correcting hazards which
a reasonably prudent employer similarly situated would adopt.” Northwood Stone & Asphalt,
Inc. , 16 BNA OSHC 2097, 2099, 1993-1995 CCH OSHD ¶ 30,583, p. 42,349 (No. 91-3409,
1994) (citation omitted), aff’d without published opinion , 82 F.3d 418 (6th Cir. 1996); R & R
Builders, Inc. , 15 BNA OSHC 1383, 1387, 1991-1993 CCH OSHD ¶ 29,531, p. 39,860 (No.
88-282, 1991). Evidence that an employer allows employees to work in unsafe conditions may
indicate that an employer’s safety program is inadequate under § 1926.20(b)(1). E.L. Davis
Contracting Co. , 16 BNA OSHC 2046, 2048, 1993-1995 CCH OSHD ¶ 30,579, p. 42,338 (No.
92-35, 1994).

On review, Avcon argues that the judge erred in finding that the requirements of the cited
provision were not met, claiming that the substance of its safety program was communicated to
Avcon’s foremen, who in turn discussed the contents with the employees. Avcon misses the
point. First, Avcon fails entirely to address the judge’s finding that its written program, which is
in evidence, was generic and lacked site-specific guidance concerning the actual hazards
employees could encounter on this worksite. Indeed, our review of the written program shows,
for example, that it makes no mention of fall hazards from unprotected sides and edges—a
principal issue at this worksite—and that it requires “ everyone on the job” to wear hard hats “at
all times,” a requirement the evidence shows Avcon routinely ignored. As the judge found,
“[g]eneral instructions, such as ‘be safe’ or ‘think safe,’ fall short of the standard’s
requirements.” See W.G. Fairfield Co ., 19 BNA OSHC 1233, 1237, 2000 CCH OSHD ¶ 32,216,
p. 48,866 (No. 99-0344, 2000) (finding “superficial” treatment of relevant hazard inadequate to
establish compliance with safety program requirement), aff’d, 285 F.3d 499 (6th Cir. 2002).
And, regardless of whether these communications took place, Avcon does not dispute the
judge’s findings that Avcon’s supervisors tolerated and participated in noncompliance with
OSHA standards and Avcon’s own safety rules. Indeed, C ompliance Officer (“CO”) Angelo
Signorile testified that throughout the inspection he observed various Avcon
supervisors—including Bill and Nick Saites, as well as several foremen—in situations where
they were exposed to fall hazards but did not use fall protection. Similarly, OSHA Assistant
Area Director Phil Peist testified that Bill Saites failed to wear a hardhat during the inspection.
Peist also testified that Avcon’s foremen stood by and watched as employees violated OSHA
standards, or committed violations themselves.

We conclude that Avcon supervisors’ personal involvement in such pervasive safety
violations demonstrates a severe weakness in Avcon’s safety program that further supports a
finding that Avcon failed to comply with the cited standard. E.L. Davis , 16 BNA OSHC at
2047-48, 1993-1995 CCH OSHD at pp. 42,337-38 (affirming serious violation of
§ 1926.20(b)(1) where employees, under direct supervision of company owner, worked in
excavation without hardhats or safety shoes); Archer-Western Contractors, Ltd. , 15 BNA
OSHC 1013, 1017, 1991-1993 CCH OSHD ¶ 29,317, p. 39,378 (No. 87-1067, 1991) (“A
supervisor’s involvement in the misconduct is strong evidence that the employer’s safety
program was lax.”), aff’d without published opinion , 978 F.2d 744 (D.C. Cir. 1992).

Avcon has challenged neither the characterization nor the penalty proposed for this
citation item. Accordingly, we affirm the violation as serious and assess the $3,000 proposed
penalty.

IV. Serious Citation 1, Items 8a and 8b: 29 C.F.R. §§ 1926.451(b)(1), (e)(1) (scaffold)

The Secretary cited Avcon for failing to fully plank a scaffold under 29 C.F.R.
§ 1926.451(b)(1) (Item 8a), and for failing to provide the requisite access to that scaffold under
29 C.F.R. § 1926.451(e)(1) (Item 8b). The Secretary grouped these items and proposed a
penalty of $900. The judge affirmed the items as alleged and assessed the proposed penalty.

On review, Avcon argues first that neither of the cited provisions applies because the
equipment in question was not a “scaffold.” Under 29 C.F.R. § 1926.450(a), a “scaffold” is
defined as “any temporary elevated platform (supported or suspended) and its supporting
structure . . . used for supporting employees or materials or both.” 29 C.F.R. § 1926.450(b).
“Platform” is defined as “a work surface elevated above lower levels . . . .” Id. CO Signorile
testified that he observed an Avcon employee working from a single wooden plank that was on
two brackets mounted to a formwork wall, approximately six feet above the floor of an elevator
shaft. Between the formwork and the plank was an approximately 20-inch gap.

While this testimony provides only a rudimentary picture of the equipment and its use,
we find it establishes that the equipment meets the standard’s definition of a “scaffold.” See
Armstrong Steel Erectors, Inc. , 17 BNA OSHC 1385, 1389, 1995-1997 CCH OSHD ¶ 30,909,
p. 43,032 (No. 92-262, 1995) (“[W]hether a surface constitutes a scaffold is a question of fact to
be answered by comparing the definition of a scaffold to the characteristics of the surface in
question.”). This plank qualifies as a scaffold because it was elevated, served as a work surface
for the Avcon employee observed by the CO, and was also temporary, as it was attached to
formwork that was installed for a limited purpose and time period. Id. (finding “painters’ picks”
were both platforms and scaffolds because they were “working spaces for persons, elevated
above the surrounding floor” and “were moved frequently during the job and would be removed
from the worksite when steel erection was completed” ) .

In arguing that CO Signorile’s testimony is insufficient to establish that the plank was a
scaffold, Avcon relies on testimony from Nick Saites that the plank was a “working platform”
rather than a scaffold, “wasn’t six feet off the ground,” and that “it was part of the elevator form
work and the form work had a horizontal member nailed to it and with uprights . . . .” These
points are unavailing. First, Nick Saites did not explain what he meant by a “working platform”;
he only distinguished this scaffold from other types of scaffolds used at the site that were made
with metal pipes, frames, and cross braces. Second, although his testimony does differ from that
of CO Signorile as to the precise height of the plank, Nick Saites indicated only that it was
positioned at an elevation slightly less than 6 feet. Even if his testimony were credited, it fails to
establish that the plank was not “elevated.”

Finally, to the extent the CO testified that the plank
was supported by two brackets mounted to the formwork, his testimony is consistent with the
scaffold standard’s definition of a “form scaffold.”

Nick Saites’s testimony, which was both
that the platform was “part of the elevator form work” and was “a horizontal member nailed to
[the formwork] and with uprights,” lacks sufficient clarity to be considered inconsistent with the
CO’s testimony.

We therefore find that the equipment constitutes a scaffold under the
standard.

Although the Secretary has established the general applicability of the scaffold standard,
she has not shown that the cited planking provision applies as alleged under Item 8a. Section
1926.451(b)(1) requires that “[e]ach platform on all working levels of scaffolds shall be fully
planked or decked between the front uprights and the guardrail supports . . . .” The provision
assesses the “fully planked” criteria with respect to the space “between the front uprights and the
guardrail supports.” Here, the witnesses’ sketchy descriptions of the scaffold—unaccompanied
by photographs or illustrations—fail to demonstrate the existence or location of uprights or
guardrail supports. The CO did not mention uprights at all, Nick Saites only cryptically referred
to them in describing the brackets supporting the scaffold, and neither witness’s testimony
touched on guardrail supports. Without such evidence, we are unable to find that this scaffold
was of the type intended to be covered by the cited provision and, therefore, vacate this item.

As to Item 8b, the cited provision prescribes the required means of employee access
when the scaffold platform is more than two feet above or below a point of access.

29 C.F.R.
§ 1926.451(e)(1). The testimony of both CO Signorile and Nick Saites establishes that the
scaffold was more than two feet above the floor of the elevator shaft. The access requirements
of § 1926.451(e)(1) were therefore applicable. As to whether these requirements were met, the
CO testified that he observed an Avcon employee climbing “steel flanges [on the formwork] . . .
like steps” to get onto the scaffold. These flanges were “approximately a half[-]inch wide” or
less.

Avcon does not contend that it provided any of the means of access specified in the
standard. Rather, it argues that there were no Avcon employees attempting to access the
scaffold, which obviated the need for a ladder or other means of access. Relying on testimony
from Nick Saites, Avcon asserts that, contrary to CO Signorile’s testimony, there was no steel in
the formwork wall except for “snap ties” that go through both the wall and its wooden walers,
holding the wall together during the concrete pour. According to Nick Saites, these snap ties
could not have been used for accessing the scaffold because each is only “an eighth[-]inch
diameter piece of metal.” Based on the judge’s general credibility finding in favor of the CO
and her implicit crediting of his testimony over that of Nick Saites on this issue, we find that the
CO’s testimony is sufficient to establish the violation. We therefore affirm this item.

Avcon challenged neither the characterization nor the penalty for this item. Accordingly,
we affirm Item 8b as serious. Having vacated Item 8a, we find that a reduction of the proposed
penalty amount is appropriate and, therefore, assess a penalty of $450 for this item. See, e.g. ,
Manganas Painting Co. , 21 BNA OSHC 1964, 2000, 2004-2009 CCH OSHD ¶ 32,908,
p. 53,414 (No. 94-0588, 2007) (reducing penalty by pro-rata amount after vacating one item in
each of two grouped items).

V. Citation 1, Item 9; Citation 2, Items 2a through 2c: 29 C.F.R. § 1926.501(b)(1)
(fall protection)

Background

For the Excelsior II project, Avcon created three types of formwork into which it poured
the concrete for the building’s floors, supporting columns, and balconies. Vertical wooden
“legs” were erected to support layers of horizontal wooden beams called “stringers” upon which
plywood “decking” was placed. To the already formed interior and exterior columns whose
plywood forms protruded through the decking from the completed floor below, Avcon added
more plywood formwork, then placed rebar horizontally on the decking and vertically inside the
column forms, before pouring concrete onto the decking and into the column forms. Avcon also
formed and poured concrete for the balconies on each floor when that particular floor was being
formed and poured.

This work was performed on a four-day cycle. On the first and second days, Avcon’s
carpenters installed the legs, stringers, decks and column forms, while its ironworkers inserted
the rebar. On day three, Avcon employees poured concrete for 60 percent of the floor, while
other employees continued framing the remaining portion of the floor, and on day four,
employees poured concrete for the remainder of the floor. The employees then stripped the
formwork from the hardened concrete for use on the next level, and installed additional vertical
legs or “reshores” below the newly poured floor to provide support. These reshores were left in
place for 28 days or until three floors were poured, whichever was greater. The concrete
generally achieved 90 percent of its strength during this period.

On review are four citation items (Serious Citation 1, Item 9, and Willful Citation 2,
Items 2a through 2c), each of which allege a violation of 29 C.F.R. § 1926.501(b)(1) based on
Avcon’s failure to provide fall protection for employees erecting and stripping formwork near
the unguarded perimeters of several floors. Under these citation items, the Secretary alleged a
total of 24 violative instances, all of which were affirmed by the judge.

For the following
reasons, we affirm all 24 instances.

Discussion

A. Applicability

The Secretary cited Avcon under each item for failing to provide guardrail systems,
safety net systems, or personal fall arrest systems to “employee[s] on a walking/working surface
. . . with an unprotected side or edge which is 6 feet (1.8 m) or more above a lower level,” as
prescribed by 29 C.F.R. § 1926.501(b)(1). On review, Avcon does not dispute that it failed to
provide the specified fall protection to the employees in question and that it had knowledge of
the alleged conditions. Avcon does, however, challenge the applicability of the “unprotected
side or edge” provision of the standard to the cited conditions. Avcon claims that its employees
were engaged in “leading edge” work and, therefore, a different provision, 29 C.F.R.
§ 1926.501(b)(2)(i), that specifically addresses employees engaged in leading edge work, would
apply.

As defined by the standard, leading edge work occurs at “the edge of a floor, roof, or
formwork for a floor or other walking/working surface (such as the deck) which changes
location as additional floor, roof, decking, or formwork sections are placed, formed or
constructed .” 29 C.F.R. § 1926.500(b) (emphasis added). As discussed below, we conclude that
the unprotected side or edge provision applies to some of the cited instances, and the leading
edge provision applies to the others.

1. Unprotected Side or Edge Instances

Based on our review of the record, we find that in 19 of the 24 cited instances, the
employees at issue were covered by the cited provision, which addresses fall protection from an
unprotected side or edge. Contrary to Avcon’s contention, none of the activities these
employees were engaged in can be considered leading edge work. First, the evidence shows that
the employees referenced in Citation 1, Item 9 (instances a, c, d, h, i, p, q), and in Citation 2,
Item 2a (instances c and e) and Item 2c (instance g), were stripping formwork and removing
excess concrete. Although Avcon maintains that leading edge work is not complete until after
“all formwork and temporary components have been removed,” the judge found this assertion to
be inconsistent with the plain language of the “leading edge” definition set out in § 1926.500(b).
We agree, as the reach of this provision is clear. By definition it is limited to circumstances in
which the walking/working surface “changes location as additional floor, roof, decking, or
formwork sections are placed, formed or constructed.” It does not extend to the formwork
stripping and reshore removal at a completed edge that was underway in the circumstances cited
here. 29 C.F.R. § 1926.500(b); see Unarco Commercial Prods. , 16 BNA OSHC 1499, 1502,
1993-95 CCH ¶ 30,294, p. 41,732 (No. 89-1555, 1993) (stating “the test for the applicability of
any statutory or regulatory provision looks first to the text and structure of the statute or
regulations whose applicability is questioned”) (citations omitted). Thus, we find that the
employees at issue under these instances were not engaged in constructing a leading edge—they
were working at an unprotected edge and, therefore, covered by the cited provision,
§ 1926.501(b)(1).

Second, the evidence shows that the employees referenced in Citation 1, Item 9
(instances b, f, g, and k) were setting up column forms, storing materials, installing steel
stringers for a yet-to-be constructed balcony, and framing a balcony; and the employees in
Citation 2, Item 2a (instance d), Item 2b (instance a), and Item 2c (instance h), were bending
protruding rebar, picking up metal brackets, and picking up stripped lumber and steel brackets.
Although these activities occurred at the edge of either a floor or balcony, none of the employees
were engaged in advancing the edge of the surface on which they were working. Rather, the
record shows that these activities only took place after the surface had been fully poured. See 29
C.F.R. § 1926.500 (noting that “[a] leading edge is considered to be an ‘unprotected side and
edge’ during periods when it is not actively and continuously under construction”). See
generally A.J. McNulty & Co., Inc. , 19 BNA OSHC 1121, 1130, 2000 CCH OSHD ¶ 32,209, p.
48,810 (No. 94-1758, 2000) (finding a leading edge activity only where “a piece [of the leading
edge] is actually being installed”), aff’d , 283 F.3d 328 (D.C. Cir. 2002). Thus, we find that the
employees at issue under these instances were also not constructing a leading edge but rather
were working at an unprotected edge and, therefore, covered by § 1926.501(b)(1).

Finally, the evidence shows that the employees referenced in Citation 1, Item 9 (instance
j), and in Citation 2, Item 2a (instance b), were standing on the seventh floor—a completed
surface—and were engaged in framing work as part of the process of constructing the eighth
floor above them. Although these employees were, in a technical sense, “constructing a leading
edge,” they were not performing their work on the same level as the leading edge. Rather, these
employees were working from the completed floor below “on a walking/working
surface . . . with an unprotected side or edge.” Under these circumstances, their work is covered
by the literal wording of the cited provision, and it would be illogical to apply the leading edge
provision. See Manganas Painting Co. , 21 BNA OSHC at 1977, 2004-09 CCH OSHD at p.
53,394 (noting principle of statutory interpretation that disfavors absurd results) (citation
omitted). Thus, we find that the employees at issue under these instances were covered by the
unprotected side and edge provision, § 1926.501(b)(1).

Accordingly, the conditions alleged in 19 of the 24 instances at issue under these citation
items were properly cited as violations of the unprotected side or edge provision of the fall
protection standard, § 1926.501(b)(1).

2. Leading Edge Instances

We find that the remaining five instances at issue all involve employees who were
engaged in constructing a leading edge. Specifically, the record shows that the employees
referenced in Citation 1, Item 9 (instances m and n), and in Citation 2, Item 2a (instance a) were
framing floor sections, and, in the case of instance n, also “setting up” or forming a balcony.

Because the edge of the floor or formwork changed location as these employees performed their
work, their activities fall within the definition of leading edge work. Similarly, some of the
employees referenced in Citation 1, Item 9 (instances l and o) were framing the floor or the deck
and, therefore, were also performing leading edge activities. Therefore, the fall protection
requirements of § 1926.501(b)(1) cannot apply to these instances. Rather, the nearly identical
fall protection requirements of the leading edge provision, § 1926.501(b)(2)(i), cover these
employees.

For the following reasons, we find it appropriate to amend the pleadings, sua
sponte , to allege under each of these five instances a violation of this more specifically
applicable provision. See N.Y. State Elec. & Gas Corp. v. Sec’y of Labor , 88 F.3d 98, 104 (2d
Cir. 1996) (stating that FRCP 15(b) “requires no motion or formal amendment of the pleadings”)
(citing Howell v. Cataldi , 464 F.2d 272, 275 (3d Cir. 1972)).

The Commission has recognized that amendments, including those made sua sponte ,
“ ‘are routinely permissible where they merely add an alternative legal theory, but do not alter
the essential factual allegations contained in the citation . . . .’ ” N.Y. State Elec. & Gas Corp. ,
17 BNA OSHC 1129, 1132, 1993-95 CCH OSHD ¶ 30,745, p. 42,709 (No. 91-2897, 1995)
(citation omitted), aff’d in pertinent part , 88 F.3d at 104. Amendments under FRCP 15(b)(1)

are allowed “ ‘[e]ven if a party objects to the use of evidence in support of an unpleaded charge
. . . [provided] the objecting party does not suffer prejudice .’ ” Nuprecon LP dba Nuprecon
Acquisition, LP , 22 BNA OSHC 1937, 1938-1939, 2004-09 CCH OSHD ¶ 33,034, p. 54,386
(No. 08-1037, 2009) (emphasis added) (citation omitted); see Morrison-Knudsen Co./Yonkers
Contracting Co. , 16 BNA OSHC 1105, 1113, 1993-95 CCH OSHD ¶ 30,048, p. 41,268 (No.
88-572, 1993) (rejecting employer’s claim that sua sponte amendment to an uncited standard
“deprived the employer of a defense, i.e. , the inapplicability of the cited standard, and thereby
produced prejudice to the employer”); see also A.L. Baumgartner Constr. Inc. , 16 BNA OSHC
1995, 1997, 1994 CCH OSHD ¶ 30,554, p. 42,272 (No. 92-1022, 1994) (upholding post-hearing
sua sponte amendment by the judge where no prejudice shown). In determining whether a party
has been prejudiced, the Commission looks “at whether the party had a fair opportunity to
defend and whether it could have offered any additional evidence if the case was retried.”
Nuprecon , 22 BNA OSHC at 1939, 2004-09 CCH OSHD at p. 54,386 (citations omitted).

Based on our review of the record here, we find that amending to the more specifically
applicable standard would not implicate different facts or prejudice Avcon. The record shows
that the material facts in each instance remain substantially the same. Avcon plainly admitted as
much in its briefs, both before the Commission and the judge, noting that “the cited references
[to the activities in the citations], by their very terms , related to leading edge work . . . .”
(Emphasis added.) Moreover, these are the facts that the parties tried and that Avcon argued all
along supported the applicability of the leading edge standard. The nearly identical requirements
of the unprotected edge standard and the leading edge standard—employees “shall be protected
from falling” by the use of conventional fall protection—further militate against a finding of
prejudice. See Dole v. Arco Chem . Co. , 921 F.2d 484, 488 (3rd. Cir. 1990) (finding no prejudice
where amended complaint “is based upon facts and circumstances which do not differ
significantly from those underlying the Secretary’s original [complaint]” and “[t]he evidence
required to meet [the] new allegations is substantially similar to that which was originally
required”).

And because Avcon would not acquire any new affirmative defenses under the amended
citations, it lost no opportunity to present any defense-related evidence beyond that which it
already introduced. See Morrison-Knudsen, Inc. , 16 BNA OSHC at 1114, 1993 CCH OSHD at
p. 41,269 (finding no prejudice, in part, because the defenses raised in the employer’s post-hearing brief and on review had equal application to the amended citation). Indeed, the primary
defense Avcon raised to the original citations—infeasibility—has equal applicability to the
leading edge standard. Although § 1926.501(b)(1), unlike § 1926.501(b)(2)(i), does not contain
specific language regarding the infeasibility defense, its applicability to Subpart M as a whole is
well-established. See, e.g., A.J. McNulty & Co., Inc. , 19 BNA OSHC at 1129, 2000 CCH OSHD
at p. 48,810.

Accordingly, we amend sua sponte under FRCP 15(b)(1) Citation 1, Item 9 (instances l ,
m, n, and o), and Citation 2, Item 2a (instance a) to allege violations of § 1926.501(b)(2)(i).

B. Infeasibility

On review, Avcon contends that the judge erred in rejecting its affirmative defense of
infeasibility. Before turning to the merits of its defense, we first address Avcon’s challenges to
the judge’s rulings on two discovery requests regarding evidence of infeasibility—one filed by
the Secretary, which the judge granted, and one by Avcon, which she denied. For the following
reasons, we reject Avcon’s challenges and affirm the judge’s rulings.

1. Secretary’s Request for Rebuttal Testimony

On April 7, 1999, the judge issued a scheduling order directing the parties to provide a joint prehearing
statement by May 17, 1999, that included a list of all expert witnesses to be called at the hearing. In response, only
Avcon listed an expert witness, who it identified as Leo DeBobes. During the hearing, which commenced in
May 1999, the Secretary announced for the first time her intention to call an expert witness to
rebut Avcon’s infeasibility defense. Avcon objected to the Secretary’s request and asked to
depose the witness if the judge permitted the testimony. On September 23, 1999, the judge
issued an order: (1) directing the Secretary to disclose the expert witness’s identity if the “expert
is being called solely to rebut testimony offered by [Avcon’s] fact witnesses with regard to its
affirmative defenses”; and (2) permitting Avcon to introduce surrebuttal evidence “[i]f any new
issue is raised during the course of this witness’s testimony.”

The Secretary subsequently
revealed to Avcon the identities of her two rebuttal witnesses, Matthew Burkart and Daniel
Paine, and Avcon deposed both of them on November 9 and 10, 1999. Burkart and Paine,
accepted by the judge as experts, testified at the hearing on December 6 and 8, 1999.

On review, Avcon asserts that the judge’s decision to allow the Secretary’s rebuttal
witnesses to testify impaired its ability to prepare and defend its claim that compliance with the
cited standards was infeasible. This assertion lacks merit. Although Avcon initially objected to
the judge’s decision to allow the Secretary’s rebuttal testimony by claiming prejudice, it did not
request a continuance, which would have remedied any prejudice by providing Avcon the time
needed to further prepare its defense. Because Avcon failed to seek a continuance, its claim of
prejudice is unavailing. See United Cotton Goods, Inc. , 10 BNA OSHC 1389, 1390, 1982 CCH
OSHD ¶ 25,928, p. 32,454 (No. 77-1894, 1982) (finding any prejudice to employer could easily
have been cured by requesting a continuance) (discussing Brown & Root, Inc., Power Plant
Division , 8 BNA OSHC 1055, 1059, 1980 CCH OSHD ¶ 24,275, p. 29,569 (No. 76-3942,
1980)).

We also find no merit in Avcon’s claim that it was deprived of a reasonable opportunity
to present its case because the Secretary’s two rebuttal witnesses were allowed to testify on
issues beyond the scope of Avcon’s defense. As discussed below, the Secretary’s rebuttal
witnesses raised no new issues in their testimony, addressing only issues that had been raised by
Avcon’s own witnesses. Nor has Avcon explained how any resulting prejudice was not cured by
it having been given an opportunity to depose the Secretary’s witnesses nearly a month before
their hearing testimony. “Prejudice arises where the moving party achieves an unfair advantage
or where the opposing party is deprived of a fair opportunity to present evidence.” Bland
Construction Co. , 15 BNA OSHC 1031, 1042-43, 1991 CCH OSHD ¶ 29,325, p. 39,402 (No.
87-922, 1991) (citing Dole v. Arco Chemical Co ., 921 F.2d at 488). Neither of those
circumstances was present here. Avcon’s only specific claim of prejudice—that the judge
allowed the Secretary to introduce exhibits that were not disclosed in pretrial submissions, but
were “handed to [Avcon’s] counsel just prior to disclosure at trial”—also fails because Avcon
not only had advance notice of the Secretary’s theories from earlier depositions, it also had an
opportunity to cross-examine these witnesses regarding the exhibits introduced during their
testimony. See Brown & Root, Inc., Power Plant Division , 8 BNA OSHC at 1059, 1980 CCH
OSHD at p. 29,569 (finding Secretary’s delay in making amendment does not warrant its denial
because opposing party had adequate opportunity to prepare and present its defense) (citations
omitted); cf. Reed Engineering Group Inc. , 21 BNA OSHC 1290, 1291, 2004-09 CCH OSHD
¶ 32,862, p. 53,088 (No. 02-0620, 2005) (remanding case to allow employer additional time to
conduct discovery where Commission found that judge’s granting of Secretary’s amendment
prejudiced employer). Under these circumstances, there is no basis upon which to overturn the
judge’s decision to allow the Secretary’s rebuttal witnesses to testify.

2. Avcon’s Request for Surrebuttal Testimony

In a scheduling order issued to the parties on October 21, 1999, the judge stated that she
would allow surrebuttal testimony only if: (1) the Secretary’s rebuttal witnesses raise new issues
broadening the scope of the case; or (2) any surrebuttal testimony could discredit the Secretary’s
rebuttal testimony. On November 10, 1999, Avcon sent a letter to the judge stating its intent to
offer surrebuttal testimony by Louis Nacamuli, a professional engineer. In a subsequent order,
the judge reiterated that she would only allow surrebuttal testimony if the Secretary’s witnesses
raise new issues and stated her intent to control the remainder of the trial so as not to permit any
new issues. The Secretary then notified the judge by letter that she objected to allowing Avcon
to present surrebuttal testimony. At the hearing, after one of the Secretary’s rebuttal witnesses
testified, Avcon renewed its surrebuttal request by asserting that the witness’s testimony had
raised new issues. The judge disagreed and rejected Avcon’s request.

Avcon now asserts that “justice was not served” by the judge’s denial of its request to
allow surrebuttal testimony because the judge’s rejection of its infeasibility defense was “based
entirely on the [Secretary’s] rebuttal [evidence].” This argument finds no support in the record.
The judge made a specific finding that the testimony of Avcon’s proffered expert,   DeBobes, did
not establish Avcon’s infeasibility defense which, as discussed below, was Avcon’s burden.
Furthermore, the topics on which Avcon requested an opportunity to present surrebuttal were not
“new,” but involved issues that had already been addressed by its witnesses. See Bowman v.
General Motors Corp. , 427 F. Supp. 234, 240 (E.D. Pa. 1977) (finding that a trial judge may
limit rebuttal “testimony to that which is precisely directed to rebutting new matter or new
theories . . . .”). Under these circumstances, there is no basis upon which to overturn the judge’s
decision to disallow surrebuttal testimony.

3. Merits of Infeasibility Defense

Avcon alleges that it was infeasible to provide the required fall protection for each of the
instances listed in Serious Citation 1, Item 9 and Willful Citation 2, Items 2a through 2c for two
main reasons. First, it contends that the use of safety nets and fall arrest and restraint systems
was infeasible because the plans and specifications for the project did not include structural
embedments to allow for the installation of nets, and the form work and plywood decks were not
designed to anchor fall arrest and restraint systems. Second, as a practical matter, Avcon
maintains that embedding anchors in the concrete was not possible because the concrete was not
sufficiently cured to support the use of safety nets, fall arrest or restraint systems.

Avcon
further claims that it could only use guardrail systems in certain areas of the worksite.

Avcon’s arguments implicate two related concepts of infeasibility. The first is the
affirmative defense of infeasibility which, under Commission precedent, requires an employer to
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 or economically
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, 1993-95 CCH OSHD
¶ 30,485, p. 42,109 (No. 91-1167, 1994) (citations omitted).

The second concept of infeasibility implicated here is an exception to the fall protection
requirements of the leading edge standard. Under 29 C.F.R. § 1926.501(b)(2)(i), an employer is
permitted to “develop and implement a fall protection plan which meets the requirements of
paragraph (k) of § 1926.502,” when the employer shows “that it is infeasible or creates a greater
hazard to use” guardrail systems, safety net systems, or personal fall arrest systems.

29 C.F.R.
§ 1926.501(b)(2)(i). For the following reasons, we find that Avcon has not established the
affirmative defense, nor has it proved the applicability of the exception to the leading edge
standard.

To prove infeasibility, Avcon relied solely on the testimony of a number of lay witnesses,
all of whom were its own employees, and on the testimony of DeBobes, the company’s proffered
expert witness. The judge found that Avcon’s employee witnesses were ill-equipped to address
the technical questions surrounding the conditions at the worksite. We agree with her decision
to disregard this testimony. The record shows that the employees were clearly “unfamiliar with
OSHA’s fall protection standards” and their “opinions were offered without any supporting
scientific or professional data or tests.” See Peterson Bros. Steel Erection Co. , 16 BNA OSHC
1196, 1204, 1993-95 CCH OSHD ¶ 30,052, p. 41,304 (No. 90-2304, 1993) (stating that the
Commission “cannot accept unsubstantiated conclusions as proof”), aff’d , 26 F.3d 573 (5th Cir.
1994).

Nor can Avcon rely on the testimony of DeBobes to establish infeasibility. We agree
with the judge’s conclusion that DeBobes “has no specialized knowledge . . . relevant to this
case: the feasibility of fall protection on high-rise concrete construction projects.” Indeed,
DeBobes testified that: (1) he had worked on only one high-rise poured-in-place concrete
construction project—a nuclear plant project that took place from 1977 to 1981; (2) he had never
before designed a fall protection system or assessed the structural integrity of anchorage points
to be used for fall protection on a multi-story poured-in-place concrete structure; and (3) he did
not know the type of concrete Avcon used at the Excelsior II worksite. See generally United
States Steel Corp. v. OSHRC , 537 F.2d 780, 783 (3d Cir. 1976) (“Expert testimony need not be
accepted even if uncontradicted.”). Given these deficiencies, we find that the record supports the
judge’s conclusion that DeBobes’s testimony “does not establish the affirmative defense of
infeasibility and/or impossibility.” Indeed, DeBobes’s testimony would not even make out a
prima facie case of infeasibility, which is Avcon’s burden whether it claims infeasibility as an
affirmative defense to the unprotected side or edge provision, or as an exception to the leading
edge provision of the fall protection standard. A.J. McNulty & Co., Inc ., 19 BNA OSHC at
1129-34, 2000 CCH OSHD at pp. 48,810-15 (imposing burden of proof on employer to establish
infeasibility); Modern Continental/Obayashi v. OSHRC , 196 F.3d 274, 282 (1st Cir. 1999)
(stating that “ ‘where a specific duty standard contains the method by which the work hazard is
to be abated, the burden of proof is on the employer to demonstrate that the remedy contained in
the regulation is infeasible under the particular circumstances’ ”); Kaspar Wire Works, Inc. , 18
BNA OSHC 2178, 2194, 2000 CCH OSHD ¶ 32,134, p. 48,420 (No. 90-2775, 2000) (“The
Commission has repeatedly held . . . that ‘the party claiming the benefit of an exception to the
requirements of a standard has the burden of proof of its claim.’ ”) (citations omitted), aff’d , 268
F.3d 1123 (D.C. Cir. 2001).

Therefore, we conclude that Avcon failed to establish that the use of fall protection at the
Excelsior II worksite was infeasible under either the affirmative defense or the standard’s
exception. Accordingly, we affirm Citation 1, Item 9

and Citation 2, Items 2a through 2c, as
amended supra . C. Willful Characterization

On review, Avcon challenges the judge’s decision to affirm the Secretary’s willful
characterization of Citation 2, Items 2a through 2c. Specifically, Avon contends that the test for
willfulness in the Third Circuit, to which this case could be appealed, places a higher burden of
proof on the Secretary, which the judge did not consider and the Secretary failed to meet. Avcon
also argues that the company simply had a “good faith disagreement with OSHA” regarding the
interpretation and feasibility of the fall protection standard, which essentially negates any finding
of willfulness. We reject both of these arguments and affirm these citation items as willful.

“The hallmark of a willful violation is the employer’s state of mind at the time of the
violation—an ‘intentional, knowing, or voluntary disregard for the requirements of the Act or . .
. plain indifference to employee safety.’ ” Kaspar Wire Works, Inc. , 18 BNA OSHC at 2181,
2000 CCH OSHD at p. 48,406 (citation omitted). “A willful violation is differentiated by
heightened awareness of the illegality of the conduct or conditions and by a state of mind of
conscious disregard or plain indifference . . . .” Hern Iron Works, Inc. , 16 BNA OSHC 1206,
1214, 1993-95 CCH OSHD ¶ 30,046, p. 41,257 (No. 89-433, 1993). This state of mind is
evident where “the employer was actually aware, at the time of the violative act, that the act was
unlawful, or that it possessed a state of mind such that if it were informed of the standard, it
would not care.” AJP Constr. Inc. v. Sec’y of Labor , 357 F.3d 70, 74 (D.C. Cir. 2004) (emphasis
and citations omitted). A willful characterization is not justified, however, if an employer has
“  ‘a good faith, albeit mistaken, belief that particular conduct is permissible.’ ” Manganas
Painting Co. , 21 BNA OSHC at 1991, 2004-09 CCH OSHD at p. 53,406 (citation omitted).

Contrary to Avcon’s assertion, both the Commission and the Third Circuit have held that
the Third Circuit’s definition of “willful” differs little from that used by the Commission and
most other circuits. See George Campbell Painting Corp. , 17 BNA OSHC 1979, 1982, 1995-97
CCH OSHD ¶ 31,293, p. 43,978 (No. 93-984, 1997) (quoting Universal Auto Radiator Manuf.
Co. v. Marshall , 631 F.2d 20, 23 (3d Cir. 1980) (holding that there is little, if any, difference
between the approaches of the Third Circuit and other circuits); see also Frank Irey, Jr., Inc. v.
OSHRC , 519 F.2d 1200, 1207 (3d Cir. 1975) (holding that a willful violation is characterized by
a “deliberate [flouting] of the Act” or by “an obstinate refusal to comply”). Thus, we reject
Avcon’s claim that the Third Circuit’s test for willfulness is inconsistent with the Commission’s
test.

Turning to the judge’s analysis, we find that the evidence supports her characterization of
these items as willful. As the judge found, Avcon had a heightened awareness of OSHA’s standards
requiring fall protection. This awareness was based on (1) discussions that CO

Signorile had with  

the Saiteses and other supervisory personnel, and (2) both Bill and Nick

Saites’s awareness of OSHA’s fall protection requirements from earlier OSHA inspections of
other Saites-owned companies’ worksites. Indeed, the record shows that during the

first few days of his inspection of the Excelsior II worksite in October 1997, CO S ignorile
personally explained the requirements of OSHA’s fall protection standard to the Saiteses and other Avcon
supervisors—Dominic Paniscotti and Bob Gallagher, who were foremen, Frank Cataliato, the carpenter shop
steward, and Frank Georgiana, the general carpenter foreman at the worksite. See Pentecost Contracting Corp. , 17
BNA OSHC 1953, 1955, 1995-97 CCH OSHD ¶ 31,289, p. 43,964-65 (No. 92-3788, 1997) (finding Secretary
established heightened awareness by CO’s testimony that he reviewed the excavation standards with employer’s
supervisors). In fact, during an early conversation with Nick Saites, CO Signorile provided him with a copy of the
fall protection standard, its preamble, and handouts pertaining to fall protection equipment. At that time, Nick Saites
admitted that he was familiar with the need for employees to be tied off. And Signorile testified that during a
subsequent conversation, foreman Gallagher admitted that he and other employees were not wearing fall protection
and that he should have told the employees to wear fall protection.  

The record also demonstrates that the Saiteses were well aware of the fall protection standard’s
requirements based on their prior work experience and previous interactions with OSHA. See
MJP Constr. Co. , 19 BNA OSHC 1638, 1648, 2001 CCH OSHD ¶ 32,484, p. 50,308 (No. 98-0502, 2001) (finding
supervisors are chargeable with knowledge of the standard’s requirements based on their prior work experience,
wherever that experience originates), aff’d , 56 F. App’x 1 (D.C. Cir. 2003) (unpublished). OSHA Assistant Area
Director Peist testified that in 1986, he discussed fall protection with Nick Saites during his inspection of Cornicon,
a Saites-owned company. And CO Brian Donnelly stated that he had similar discussions with the Saiteses during his
December 1990 inspection of Saites-owned Astro Concrete’s worksite. Both Cornicon and Astro Concrete were
cited for serious violations of the fall protection requirements under 29 C.F.R. §§ 1926.105(a) and 1926.500(d)(1)
(1979).

A s CO Signorile testified, despite this heightened awareness,

Avcon management and supervisory personnel consciously disregarded OSHA’s fall protection requirements on the
three dates referenced under these citation items when both of the Saiteses as well as Avcon supervisors either
observed, or themselves participated in, numerous fall protection violations . See Calang Corp. , 14 BNA OSHC
1789, 1791, 1793-94, 1987-90 CCH OSHD ¶ 29,080, p. 38,871 (No. 85-0319, 1990) (finding violation willful when
employer “ignore[d] OSHA’s requirements after the inspector correctly explained them to him”) (citing Donovan v.
Williams Enterprises, Inc. , 744 F.2d 170, 180 (D.C. Cir. 1984) (finding employer’s failure to heed CO’s “warnings
and advice” establishes “ ‘intentional disregard of’ and ‘plain indifference to’ OSHA’s [requirements]”)). This
knowledge, conduct, and inaction on the part of Avcon’s management is imputable to Avcon. See Conie Constr.
Co. , 16 BNA OSHC 1870, 1872, 1993-95 CCH OSHD ¶ 30,474, p. 42,090 (No. 92-0264, 1994) (imputing
foreman’s knowledge of the violative condition to the company), aff’d , 73 F.3d 382 (D.C. Cir. 1995); Pride Oil Well
Serv. , 15 BNA OSHC 1809, 1814, 1991-93 CCH OSHD ¶ 29,807, p. 40,583 (No. 87-692, 1992) (“The actual or
constructive knowledge of the employer’s foreman or supervisor can be imputed to the employer.”).

Finally, Avcon’s contention that its failure to provide fall protection for its workers was
based on a mere misunderstanding with OSHA finds no support in this record. The standards
cited here required Avcon to provide fall protection to its employees, many of whom were
working at heights above 60 feet. The only exception to this requirement—a showing that the
use of such protection was infeasible—was not established here. Not only did Avcon fail to
prove infeasibility, the record shows that it did not make a good faith attempt to provide an
alternative method of protecting its employees against falls based on its alleged belief that fall
protection was not feasible. Indeed, despite the life-threatening injuries that its employees would
almost certainly have sustained if they had fallen from the heights that existed at this worksite,
Avcon failed to take any serious steps toward compliance. It did not preplan for the use of fall
protection, or consult with a professional engineer or any other knowledgeable person regarding
safety options, other than inquiring into the cost of safety nets. Nor did Avcon seek permission
from the project engineer on this site to embed anchorages or other fall protection equipment. In
light of this, we cannot find that Avcon’s alleged belief, that fall protection was infeasible, was
held in good faith. Indeed, this evidence further supports our conclusion that Avcon had a
cavalier attitude towards employee safety. See Valdak , 17 BNA OSHC 1135, 1139, 1993-95
CCH OSHD ¶ 30,759, p. 42,741 (No. 93-0239, 1995), aff’d , 73 F.3d 1466 (8th Cir. 1996). For
all of these reasons, we affirm the judge’s characterization of Items 2a through 2c as willful.

D. Penalties

Avcon has not challenged the penalty amounts proposed by the Secretary for Serious
Citation 1, Item 9 and Willful Citation 2, Items 2a through 2c. Based on our review of the
record and the penalty factors set forth under § 17(j) of the Act, 29 U.S.C. § 666(j), we find that
the $3,000 proposed penalty for Serious Citation 1, Item 9, and the $70,000 proposed grouped
penalty for Willful Citation 2, Items 2a through 2c, are appropriate here. See generally KS
Energy Servs. Inc. , 22 BNA OSHC 1261, 1268 n.11, 2004-09 CCH OSHD ¶ 32,958, p. 53,925
n.11 (No. 06-1416, 2008) (assessing proposed penalty amount where issue not in dispute on
review).

CONCLUSIONS OF LAW

The judge’s ruling granting the Secretary’s motions to amend the complaints to add Bill
and Nick Saites as parties more than six months after the occurrence of the violations is vacated,
and these two individuals are dismissed from the case as respondents. We affirm the judge’s
rulings on two motions regarding rebuttal and surrebuttal testimony, and affirm her rejection of
Avcon’s alleged infeasibility defense regarding the fall protection violations. In addition, we
amend Citation 1, Item 9 (instances l , m, n, and o), and Citation 2, Item 2a (instance a) to allege
violations of 29 C.F.R. § 1926.501(b)(2)(i). Finally, we conclude that Avcon committed willful
violations of 29 C.F.R. §§ 1926.501(b)(1), (b)(2)(i), and serious violations of 29 C.F.R.
§§ 1910.1200(e)(1), (h)(1), 1926.20(b)(1), 1926.451(e)(1), and 1926.501(b)(1), (b)(2)(i).

ORDER

We affirm Serious Citation 1, Items 1a and 1b, 2, 8b, and 9, and we vacate Item 8a. We
also affirm Willful Citation 2, Items 2a through 2c. We assess a total penalty of $77,350, as
follows: Serious Citation 1, Items 1a and 1b - $900 (grouped); Item 2 - $3,000; Item 8b - $450;
and Item 9 - $3,000; Willful Citation 2, Items 2a through 2c - $70,000 (grouped).

SO ORDERED.

/s/_____

Thomasina V. Rogers

Chairman                                                         

/s/_____

Horace A. Thompson III

Commissioner

/s/_____

Cynthia L. Attwood

Dated: April 5, 2011                                                   Commissioner

SECRETARY OF LABOR,

Complainant,

v.

DOCKET NOS. 98-0755 and 98-1168

AVCON, INC., VASILIOS
SAITES, and NICHOLAS SAITES,

Respondents.

Appearances

William J. Staton, Esq.                 Paul A. Sandars, III, Esq.

Noelle Fischer, Esq.                      Lum, Danzis, Drasco, Positan &                                                  Office of the Solicitor         Kleinberg, LLC

U.S. Department of Labor 103 Eisenhower Parkway

New York, New York Roseland, New Jersey 07068

Before: Judge Covette Rooney

DECISION AND ORDER

This proceeding is before the Occupational Safety and Health Review
Commission (“the Commission”) pursuant to section 10(c) of the Occupational Safety
and Health Act of 1970, 29 U.S.C. § 651 et seq . (“the Act”). The respondent corporation,
Avcon Inc, (Avcon) admits that it is an employer engaged in business affecting commerce
and that it is subject to the requirements of the Act. At all times relevant to this action,
Avcon maintained a worksite at Prospect Avenue in Hackensack, New Jersey. This
worksite was an eighteen story, poured-in-place, reinforced concrete structure.

As the result of an inspection at Avcon’s worksite on April 7, 1998, the
Occupational Safety and Health Administration (OSHA) issued the respondent
corporation one citation alleging sixteen serious violations and one citation alleging four
willful violations (Docket No. 98-0755). The total proposed penalty for the citations was
$134,00.00. As the result of a second OSHA inspection at the same construction worksite,
on June 23, 1998 Avcon was issued one citation alleging four serious violations (Docket
No. 98-1168). The total proposed penalty for these violations was $6,000.00.

Avcon timely contested all citations and the proposed penalties. On July 10,
1998, the Secretary filed her complaint in Docket No. 98-0755, and on August 26, 1998
she filed her complaint in Docket No. 98-1168 . Avcon filed its answers on September 3,
1998 and October 19, 1998, respectively. On November 20, 1998, the Secretary moved to
amend both complaints to add Vasilios Saites and Nicholas Saites as individual
respondents. On December 21, 1998, Respondents filed a motion in opposition to this
amendment. By order dated December 22, 1998, I granted the Secretary’s motion. On
January 28, 1999, Respondents’ filed an answer to the amended complaint.

The hearing in this matter was held in New York, New York on May 24-28,
June 1-4, July 20-23, September 13-17, October 18-19, November 1-5, and December 6-8, 1999. On May 26, 1999, the parties stipulated that Avcon employed less than 100
employees, and the Secretary amended the penalty proposed in Docket No. 98-0755 to
reflect a 10% additional reduction for size (Tr. 437, 441-42). Accordingly, the total
amended proposed penalty in Docket No. 98-0755 is $121,800, of which $102,000 is
proposed for the alleged willful violations. Additionally, on September 13, 1999, the
Secretary moved without objection to withdraw Citation 1, Item 6 in Docket No. 98-0755
(Tr. 2410). This Motion was granted. Both parties have submitted post-hearing briefs and
reply briefs.

Background

The record shows that Vasilios (“Bill”) Saites and his son Nicholas
(“Nick”) Saites have extensive experience in the concrete industry. They have each
owned and/or worked with several reinforced concrete high rise construction companies,
all of which were incorporated in New Jersey. Bill is presently the president, sole officer,
and director of Altor, Inc. (Altor) and Avcon. Both companies build reinforced concrete
high-rise structures, and were subcontractors on the Excelsior Two worksite. Nick has
degrees in civil engineering and law. He is licensed as an attorney in New Jersey, and
represents the shareholders of both Altor and Avcon. Both Bill and Nick were on the
subject worksite on a regular basis (Tr. 25-28, 30-39,109-113, 289-90, 4118-24, 4139,
4151). Nick held the position of Assistant Superintendent for Avcon (Tr. 110). Although
Bill was usually present at the Avcon worksite, during December 1997 he was not on site
because he was in the hospital with pneumonia (Tr. 109, 280).

Bill is also the former president of two other reinforced concrete high rise
construction companies, Astro Concrete, Inc. (Astro), where he worked between 1961
and 1983, and WNS Construction, Co. (WNS), where he worked in 1982 and 1983. As a
student, Nick worked part-time, or during the summer, for these corporations. In 1982 or
1983, WNS filed for bankruptcy. In 1983, Bill sold to Astro to Nick. To this date, Nick
remains owner and president of Astro. Between 1985 and 1991, Bill worked as a project
superintendent, and also as an estimator, for Astro. In 1985 or 1986, Nick started a new
concrete construction company, Cornicon, Inc.(Cornicon), of which he was the president,
sole officer, director, and a shareholder. Cornicon stayed in business only until 1987. Bill
worked at Cornicon in a supervisory position. The principal place of business of Avcon,
Altor, and Astro, and the former place of business of WNS and Cornicon, is 193 Calvin
Street, Westwood, New Jersey. This is also Nick’s home address. (Tr.26-34, 38-53, 58,
123-25, 4124-25, 4118-20; Ex. C-4 and C-5)

The Excelsior Two Project

Excelsior Two is an eighteen story apartment building located near
Excelsior One, another apartment building. A restaurant separates the two buildings.
Excelsior Two has a swimming pool and health club below it, and a four-story parking
garage in the back (Tr. 72). In 1987, Astro, which was then owned by Nick Saites, began
construction of Excelsior Two. Bill Saites was a supervisor for Astro at the time (Tr. 46-47, 254-55). The general contractor for the Excelsior Two construction was Tenwood
Construction (Tenwood), a company that Bill Saites had worked with on many occasions
(Tr. 260-61). After completion of the foundation work on Excelsior Two, funding was
lost and the project was discontinued for approximately ten years (Tr. 46-47, 71, 255). In
1997, the building owner obtained funding for completion of the project through the U.S.
Department of Housing and Urban Development (HUD). Tenwood was again hired as
general contractor (Tr. 46-47).

After Tenwood resumed duties on the Excelsior Two project in 1997, its
president, James Canino, contacted Bill Saites regarding the reinforced concrete work (Tr.
43, 255). At that time, Bill was president of Altor. Bill had known Mr. Canino for almost
thirty years as a result of doing business together (Tr. 255-56, 259). Their discussions
regarding the Excelsior Two project concerned primarily the price for the reinforced
concrete work (Tr. 256-57). Nick Saites read the proposed contract, discussed the contract
price with his father, and made amendments to it (Tr. 38, 40, 42-44).

Nick and his father also discussed the fact that minority participation would
be needed on this project because it had been financed by the Department of Housing and
Urban Development. Subsequent to that conversation, In January 1997, Avcon was
incorporated. It qualified as a minority contractor because Bill’s wife, Cornelia, owned
51% of Avcon stock. (Tr.46, 288) Nick testified that the incorporation of Avcon came
about as the result of several concerns, one being the need for participation by a minority
contractor. Another concern was limiting personal liability, including potential OSHA
liability. This concern affected the allocation of Avcon stock. Nick explained:

In this business there is a lot of individual liability, this is a
perfect example. If OSHA were to obtain a judgment against
my father, they would be able to take the shares of Avcon and
if Avcon had been owed any money they would be able to
levy on those receivables, so it's generally a good idea in this
business if you work in this business not to own the shares of
the company (Tr. 48).

Bill is not a shareholder of Altor (Tr. 305). Nick is not a shareholder of Altor or
Avcon (Tr. 204).

On August 8, 1997, Altor entered into a subcontract with Tenwood to
perform reinforced concrete work on the Excelsior Two project. (Ex. C- 4). On August
18, 1997, Altor subcontracted all labor and the use of a crane to Avcon. However, Altor
retained responsibility for materials. Nick reviewed both contracts, and Bill executed the
contracts for both parties in his capacity as president of both Altor and Avcon. (Tr. 38, 40,
45; Ex. C-5).

As noted above, the principal place of business of Altor and Avcon is Nick
Saites’ residence. Both companies are operated out of one large room in the basement of
Nick’s home. One full-time office employee works for both companies and is paid by
both companies. Altor pays her salary and back-charges Avcon for any work she
performs for that company. Other than one part-time worker, the remaining office
workers are family members who work for Altor and whose salaries are paid by Altor (Tr.
53-57). Only Bill can sign checks for Altor or Avcon. However, a stamp with his
signature can be used (Tr. 57-58). Cornelia, the majority shareholder of Avcon, performs
office work (Tr. 292), but is not authorized to sign checks (Tr. 294).

Nick testified that both he and his father are paid minimal salaries in
connection with the Excelsior Two project. Nick is paid $300 per week, and Bill $100.
Nick acknowledged that one reason for such low salaries is to maintain cash flow in the
company. (Tr. 123-25). A journeyman carpenter on the Excelsior Two project is paid
$24.00 per hour, or approximately $960.00 per week (Tr. 126). Nick Saites was not paid
for the legal services he provided to Altor or Avcon (Tr. 232). However, he testified that
he is hoping to receive some form of additional compensation for his work at the site
from both Altor and Avcon (Tr. 135-36). Bill Saites testified that "whatever [money] is
left" from the Excelsior Two project "I'm going to get" (Tr. 275-76).

In August 1997, Bill began to recruit foremen for the Excelsior Two
project. He called Frank Georgiana and asked him to come and run the job as general
carpenter foreman. (Tr. 2938, 3080-82, 3084). Bill and Frank had known each other
since 1964, and Frank had worked as a general carpenter foreman for WNS and Astro
(Tr. 268-69, 3055, 4136). Bill also contacted Robert Carbone, who he had known for 20
years, to join the Excelsior Two project as ironworker foreman (Tr. 268, 3392, 4136).
Carbone had worked for Astro, WNS, and Cornicon (Tr. 3264-64). Bill then hired Jim
Cavalier as laborer foreman, and Jerry O’Brien as cement finishing foreman. Bill had
worked with them before, and had known Cavalier for fifteen years and O’Brien for 30
years. (Tr. 270-71, 4136) Employees for the Excelsior Two project were hired from a
union hall (Tr. 65). The employees' wages were established by union contract (Tr. 304).
Each trade had at least one foreman and a shop steward (Tr. 108-09). Avcon paid the
salaries of the employees and their union benefits with checks signed by Bill Saites (Tr.
192, 303).

Avcon’s Construction Process

Each floor of Excelsior Two is 306 feet 6 inches long and 80 feet wide, or
approximately 24,000 square feet, with balconies protruding on all four sides of the
building (Tr. 2095, 2100). Floors three through seventeen of the structure are identical,
except that the third floor has no balconies (Tr. 2083, 2095). The height of each of these
"typical" floors is eight feet one inch (Tr. 2094, 2104).

Excelsior Two was constructed with steel reinforced concrete. This type of
construction involves pouring concrete into wooden form work, which is then removed,
or "stripped," from that level, dismantled, and lifted to another level, after which the
process is repeated. Vertical 4" x 4" wooden poles, or "legs," are erected, which support
layers of perpendicular, horizontal wooden beams called "low stringers," "high stringers,"
and "ribs." (Tr. 2083-84, 2087-91, 2104) This method of construction has been in use for
approximately 40 years. (Tr. 2935-36, 3065-66)

Exhibit R-108 depicts a cross-section of the form work that was employed
on the Excelsior Two project. Each leg is four feet on center (or one leg per sixteen
square feet), thus requiring the installation of more than 1,000 legs per floor during the
erection of the deck and the form work below the deck (Tr. 2095, 2098). Exhibit R-108
shows that 4' x 8' sheets of 5/8" plywood were laid out horizontally on top of the ribs to
form the "deck" (Tr. 2084). Below the plywood deck, 145 interior and exterior columns
were formed with plywood (Tr. 2100, 2103, 2109; Ex. R-109). The plywood had column
holes cut in it through which the columns protruded (Tr. 2065). Two-thirds of the
columns were located directly at the perimeter of the building (Tr. 2103, 2118).
Reinforcing steel, or rebar, was placed vertically inside the column forms and
horizontally on the deck before concrete was poured. The concrete was poured on the
deck and into the column forms below at the same time. (Tr. 2105).

At the Excelsior Two project, concrete was poured on a "four day cycle."
This meant that every four days the concrete work for an entire floor would be completed.
(Tr. 2061, 2081). On the first and second days of the cycle, carpenters installed the legs,
stringers, column forms, and deck, while ironworkers installed the rebar. On the third day
of the cycle, 60% of the concrete was poured. On the fourth day, the remaining 40% of
the concrete was poured. The same cycle was repeated for each floor (Tr. 2081-82).

After the concrete cured, carpenters stripped the wooden form work from
the concrete surfaces - both from the vertical columns and from the deck - and removed
all legs, stringers and ribs below the deck. (Tr. 2118-19) The stripped lumber was
stacked by laborers in bays along one side of the building to be hoisted by crane to the
next level to be re-installed again. (Tr. 2118-19, 2127) After the stripping operation was
completed, additional vertical legs, called "reshores,” were erected below the newly
poured deck. Reshores were left in place under each of the last three poured decks for
twenty-eight days to distribute the weight of the concrete during curing. Concrete
generally achieves 90% of its strength in 28 days (Tr. 2119, 4156, 4473). Some reshores
were located along the perimeters of the building (Tr. 2121; Ex. C-65).

When concrete needed to be poured at the Excelsior Two worksite, it was
delivered to the deck in a bucket that was hoisted by a tower crane (Tr. 2131). The same
tower crane also delivered wood, reinforcing steel, clamps and other materials to the deck
(Tr. 855-57). Buckets of concrete were received by laborers who released concrete from
the bottom of the bucket and spread it on the deck (Tr. 2131). Ironworkers received
bundles of reinforcing steel, sometimes in double loads, i.e., one bundle attached to a
lower hook and another bundle directly over it attached to an upper hook (Tr. 2680-82).
The operator of the tower crane received his directions from a signalman on the deck with
whom he was in contact through a walkie-talkie (Tr. 2127).

DISCUSSION

A. Were Vasilos and Nicholas Saites properly cited as employers?

In examining this issue it is important to look at the congressional purpose
and policy stated in the Act, which was “to assure as far as possible every working man
and woman in the Nation safe and healthful working conditions and to preserve our
human resources.” 29 U.S.C. §651(b). In order to carry out this purpose Congress has
imposed upon employers the duty to furnish “each of his employees employment and a
place of employment which are free from recognized hazards that are causing or are
likely to cause death or serious physical harm to his employees.” 29 U.S.C. §655(a)(1).
Furthermore, the enforcement scheme under the Act and the assessment of penalties is
directed at employers. 29 U.S.C. §§652(b)(2), 655(a) and 666. Only an employer can be
found responsible for violations that affect the safety and health of its “employees,” i.e.,
those with whom a party has an employment relationship. Van Buren-Madawaska Corp.,
13 BNA OSHC 2157, 2158 (No. 87-214, 1989). The Review Commission and the courts
have recognized that officers and directors of a corporate entity may be “employers”
within the meaning of the Act, along with the corporate entity itself. The existence of a
corporate entity does not shield its officers and directors from personal liability where
they exercise full control over the working conditions of the corporation’s employees and
have the authority to abate violations of the Act.

The Act defines the term “employer” as a person engaged in a business
affecting commerce who has employees and the term “person” as “one or more
individuals, partnerships, associations, corporations, business trusts, legal representatives,
or any organized group of person.” 29 U.S.C. §§652(4) and (5). The Review
Commission in Griffin & Brand of McAllen, Inc. , 6 BNA OSHC 1702, 1702 (No. 14801,
1978) recognized that the term “employer” is a term of art contained in remedial
legislation and, as such, is to be defined according to the statutory context in which it is
found and the practical realities of the employment relationship being scrutinized. To
effectuate the purpose of the Act, in considering whether an employment relationship
exists, the Review Commission has placed primary reliance upon who has control over
the work environment such that abatement of the hazards can be obtained. Abbonizio
Contractors, Inc. , 16 BNA OSHA 2125, 2126 (No. 91-2929, 1994); Vergona Crane Co.,
15 BNA OSHC 1728, 1784 (No. 88-1745, 1992); Loomis Cabinet Co., 15 BNA OSHC
1782, 1784 (88-1745 , 1992); Van Buren-Madawaska Corp. , supra; MLB Industries, Inc.,
12 BNA 1525, 1527 (No. 83-321, 1985). In making such a determination, the Review
Commission has applied an “economic realities test.” This test involves consideration of
the following questions: (1) whom do the workers consider their employer; (2) who pays
the workers' wages; (3) who has the responsibility to control the workers; (4) does the
alleged employer have the power to control the workers; (5) does the alleged employer
have the power to fire, hire, or modify the employment condition of the workers; (6) does
the workers' ability to increase their income depend on efficiency rather than initiative,
judgment, and foresight; and (7) how are the workers' wages established. Griffin & Brand
of McAllen, Inc. , at 1703

Under this economic realities test, no single factor determines
whether an employment relationship exists. Van Buren, supra at 2161.

The issue of control over the corporation and its operations by a corporate
officer and director has been addressed by several district courts in the context of criminal
proceedings arising under the Act. In United States v. Pinkston-Holler, Inc., 76-33-CR6
(D. Kan. Aug.16,1976), an unofficially reported case at 4 BNA OSHA, 1697, 1699, a
defendant, vice-president of the defendant corporation, sought to dismiss an information
filed against him on the grounds that § 666(e)

prescribes penalties only for “employers”
who violated the Act. He contended that he only conducted business for the defendant
corporation and did not employ anyone in his own right. The court recognized that it was
first necessary to find that the corporate official was an “employer” within the meaning of
the Act before applying the criminal sanctions of § 666(e). Again, in U. S. v. Cusack,
806 F. Supp. 47, 51 (D. NJ. 1992), the court was confronted with the issue of whether a
corporate officer or director could be an “employer” within the meaning of the criminal
sanctions provision of the Act, § 666(e). The court found that, although the defendant’s
business was incorporated, he ran this business as a sole proprietorship. The court
concluded that:

[A]n officer’s or director’s role in a corporate entity
(particularly a small one) may be so pervasive and total that
the officer or director is in fact the corporation and is
therefore an employer under §666(e). To conclude that such a
person cannot be held liable under OSHA’S criminal
provisions would strip §666(e) of much of its force when
applied to closely held corporations where, as in the present
case, the owner and principal officer is also the person
actively supervising the work in which OSHA regulations
were violated. In such a case it would seem that Congress’
intent is implemented by recognizing the reality of the
situation and treating the officer and director as the
employer.

Additionally, the district court in Cusack cited with approval the holdings and
dicta in U.S. v. Doig , 950 F.2d 411 (7th Cir. 1991) and U.S. v. Shear , 962 F.2d 488 (5th
Cir. 1992), two cases in which company supervisors were unsuccessfully indicted under
18 U.S.C. § 2(a) for allegedly aiding and abetting criminal violations of the Act pursuant
to § 666(e). Although each court concluded that Congress did not intend to impose such
liability on corporate employees under the aiding and abetting statute, each court also
stated in dicta that a corporate officer or director could be an "employer" for purposes of
violations pursuant to § 666(e).

In the context of civil enforcement proceedings, Chairman Cleary in Life
Science, supra , similarly emphasized the importance of construing the employment
relationship at issue in a manner which would effectuate the remedial purposes of the Act.
Chairman Cleary made the following observation:

Under these circumstances, it would be
inadequate to look only to the corporate
principal Life Science. We must also look
directly to the executive officers and directors
whose direction and influence over employees
and their working conditions were as great as
the titular employer. If they could not be held
directly accountable for their actions in this
case, the primary statutory relief -- the
protection of the lives and health of the working
men and women of the Nation -- would be
frustrated [citation omitted].

In the present case, Respondents argue that there was not one person in
control at the Excelsior Two worksite, and that the foremen and shop stewards controlled
the work and abatement issues (Respondents’ Post Trial Brief, p. 42, Tr. 2021). In support
of this argument, Respondents adduced much testimony to show that union foremen and
shop stewards handled the day to day activities on the worksite without having to consult
with either Bill or Nick before taking any action. For example, employees were hired out
of the union hall by business agents responding to requests from shop stewards and/or
foremen; union employees only took direction from other union employees; union
employees could only be fired by the shop steward and foremen; and foremen ordered
materials for the worksite and provided directions.to employees (Tr. 197, 211-12,
2842876, 2942, 2949,2955,3061, 3078, 3206-07, 3271-74, 3285, 3321-22, 3328, 3464-65,
3526-27, 3528, 3530-31, 3556, 3796, 4180). Nick and Bill, as nonunion employees, could
not give directions or orders to union employees. If they wanted something to be done,
they had to go to the general foreman for the trade (Tr. 2022).

I find that this evidence does not shield the Respondents from liability. The
Commission has found that it is not unusual for a company to delegate to supervisory
employees the authority to hire and fire employees. Therefore the authority of the
operators to hire and fire does not conclusively establish that the workers considered the
supervisors to be their employers. Van Buren at 2159.

In this case, the record establishes that both Bill and Nick maintained
control over the worksite. Employees, including supervisors, viewed them as in charge.
Bill and Nick testified that they were at the worksite just about everyday (Tr. 109-10,
279). Bill personally obtained the subcontracts and negotiated their prices with Nick’s
assistance. (Tr. 38, 97)

The project superintendent for the general contractor, Joseph Greco,
coordinated and supervised the Excelsior Two construction activities with Bill and Nick
(Tr. 73-75). In his testimony, Greco acknowledged that he was not aware of the existence
of Avcon during the construction. He was under the impression that Astro - a company
with which he knew Bill and Nicks were affiliated - was doing the work at Excelsior Two
(Tr. 87-88). Once the Excelsior Two project was about to begin, Bill started hiring
foremen for the job. Bill directed these foremen to go out and get men for the project (Tr.
2939, 3069-71, 3082-86, 3392, 4136-37). The foremen and shop stewards worked with a
business agent at the union hall to staff the jobs. The nature of the Excelsior Two project
was such that the work was repetitive, and once the foremen were made aware of the
sequence of work it was unnecessary for them to report to Bill on a daily basis. Bill
testified that he instructed Georgiana to make everyone aware of the safety program, and
that he relied upon the foremen to supervise their respective crews and institute the safety
program (Tr. 211-12, 237-37, 311-14). Georgiana testified that Nick gave him the safety
program and told him to keep a copy and make a copy for the shop steward (Tr. 3245).
Nick and Bill ordered materials such as lumber, harnesses, brooms, shovels, and concrete.
The foremen discussed their needs for material with Nick (Tr. 146-50, 156, 284-85, 1207,
1295). There were occasions Nick and the foremen discussed overtime work or stopping
work early because of the weather (Tr. 152, 155).

The record reflects that, although employees testified that they were hired
out of the union halls, they also viewed Bill and Nick as in control of the worksite. The
general carpenter foreman, Georgiana, acknowledged that someone from Avcon had the
authority to fire him (Tr. 3093). When the shop steward, Frank Cataliato, first came onto
the site, he met with Bill and Nick (Tr. 3792, 3799, 3848-49). Another employee,
ironworker Nicholas Aemisego, testified that he viewed Bill as the “overseer” for Avcon.
He observed him on the worksite talking to people (Tr. 3607, 3626). One employee,
William Kelly, testified that he believed that Nick and Bill were in charge. At the
beginning of the job, in August, Bill gave out assignments in the absence of a foreman.
Kelly said that Bill would answer questions about assignments, and if Bill had any special
requests he would make them known to him (Tr. 1489-90). Kelly stated that as the job
progressed Bill bounced around and he saw less of him, but he could still hear him
because Bill always had a bull horn (Tr. 1491). He said that Bill was on the job every
day, except when he was out in December. Bill was there when employees arrived for and
left work (Tr. 1492). It is also undisputed that Bill signed all the pay checks on the site
(Tr. 57, 287, 1205, 1224, 2939, 3077, 3795, 3807-08, 4131).

Bill monitored the employees from a number of locations. Bill was on the
ground, as well as on the structure, overseeing and directing the work in the company of
the foremen (Tr. 1100; Ex. C-101). For example, during one OSHA inspection Bill was
observed on the jobsite with a bull horn talking to employees and assisting employees in
retrieving materials which had been hoisted onto the deck (Tr. 856, 1101; Ex. C-101).
Employees testified that Bill used the bull horn to coordinate activities with the crane
operator and to communicate with anyone on the worksite (Tr. 3480). He would also use
the bull horn to call attention to something he did not like (Tr. 1491). Bill testified that he
was at the job sometimes every day, sometimes three to four times a week, sometimes
two times a week (Tr. 4139). He believed that some of his men thought he was a
nuisance because he was picky. He would look around to make sure that things were
right. He testified that the men would say “the Boss is here.” He viewed himself as the
boss of Avcon, the person who was running the company (Tr. 4139).

Although there is no doubt that, if an OSHA compliance officer had
insisted that a foreman abate a hazard during the inspection, the abatement would have
been done, the record indicates that it was Bill and Nick with whom abatement issues
were discussed (Tr. 3229,3284-85, 3322, 3819-20). During the instant inspections the
compliance officers discussed abatement issues with Bill and Nick (Tr. 482). Bill
acknowledged during the hearing that the primary responsibility for job site safety was
his (Tr. 281). Signorile testified that during the inspection he observed Nick directing
employees to abate conditions which had been observed during the inspection. Nick also
yelled at employees in an effort to have them remove themselves from hazardous
conditions (Tr. 1244-45, 1865-66, 1876, 1880). During the inspection, Nick and the
general contractor’s superintendent, Salvatore Maino, discussed who was going to install
the cable protection to abate the cited conditions (Tr. 1006,1872). Signorile said that
during the inspection Dominic Paniscotti told him that Nick had given him instructions
for a specific assignment (Tr. 1292). Frank Georgiana testified that Bill and Nick told
him that they were making certain changes because the OSHA inspector had requested
that they be made (Tr. 3148-49). Frank Cataliato testified that when he first started work
he had received safety literature from Nick. (Tr. 3837) Carbone testified that he would
have directed any questions about the safety program to either Bill or Nick (Tr. 3400).
Nick testified that he had directed the workers to tie off to “whatever” because the
compliance officer wanted them tied off, and he was trying to comply with the
compliance officer’s wishes (Tr. 2157).

Nick and Bill acknowledged control over the worksite. Nick acknowledged
that he was “the second in command after his father”(Tr. 2877). Nick stated that it was his
impression that both he and his father could hire and fire someone if they desired (Tr.
123), although he qualified this statement by stating that in order to fire someone a final
check had to be issued, which only his father had authority to issue (Tr. 247-50). Nick
testified that with respect to the sites he is on, h e hires, or the company hires, competent
people. He also makes sure that all necessary safety equipment is provided, and that he,
the foremen and his father repeatedly tell the men to observe safety rules and be safe (Tr.
2039). Nick acknowledged that, when his father was out ill for the month of December
1997, he was the person in charge. He also acknowledged that he coordinated matters
involving other trades, and coordinated matters such as pours, arrangements for cement,
and steel inspectors with the superintendent for the general contractor (Tr. 126-27).

I further find that the Act does not define the term “employer” so as to
restrict that term to one “employer per worksite” for purposes of effectuating the
provisions of the Act.

In considering Nick’s involvement I believe that the entire
picture must be examined. In Labadie Coal Co. v. Black, 672 F.2d 92 (D.C. Cir. 1982) the
court was presented with the question of whether the corporation was in fact the alter ego
or business conduit, of the person in control. The court recognized that

In many instances, the person "controlling" a close
corporation is also the sole, or at least a dominant,
shareholder. In other cases, the controlling person may seek
to avoid personal liability by not formally becoming a
shareholder in the corporation. The question is one of control,
not merely paper ownership.

** The fact that the stock may be in [the] wife's name rather
than in his may be of little consequence in the court's
consideration of the entire picture [footnote omitted].

Id at 97.

In this case, although Nick was not an owner, he was a dominant figure
in the corporation. He is “one of two individuals” who controlled the worksite, and as
such was an “employer” within the meaning of the Act.

Additionally, Respondent argues that the Secretary cannot assert personal
liability against Bill and Nick based upon traditional methods of veil piercing. This
argument is without merit. The alter ego concept has been defined as a “tool of equity that
is appropriately utilized ‘when the court must prevent fraud, illegality or injustice, or
when recognition of the corporate entity would defeat public policy or shield someone
from liability for a crime.’” Kaplan v. First Options of Chicago, Inc. , 19 F.3d 1503, 1521
(3rd Cir. 1994). The Third Circuit, in which the present case also arises, has recognized
that the corporate form may be disregarded whenever justice or public policy demands.
“Whenever one in control of a corporation uses that control, or uses the corporate assets,
to further his or her own personal interests, the fiction of the separate entity may be
properly disregarded.” Ragan v. Tri-County Excavating, Inc., 62 F.3d 501, 508 (3d Cir.
1995), quoting Ashley v. Ashley, 482. Pa. 228, 393 A.2d 637, 641 (Pa. 1978).

The Third Circuit has also held that federal law, not state law, governs in
matters involving the rights of the United States arising under nationwide federal
programs. United States v. Kimbell Foods, Inc. , 440 U.S. 715, 726-27 (1979); Clearfield
Trust Co. v. United States , 318 U.S. 363, 366 (1943); N.L.R.B. v. Greater Kansas City
Roofing , 2 F.3d 1047, 1051 (10th Cir. 1993); Board of Trustees of the Mill Cabinet
Pension Trust Fund for Northern California v. Valley Cabinet & Mfg. Co. , 877 F.2d 769,
771 (9th Cir. 1989); United States v. Pisani, 646 F.2d 83, 85-86 (3rd Cir. 1981).
Accordingly, federal common law alter ego questions should be decided according to the
policy of the applicable federal statute. In Pisani, supra, the Third Circuit examined this
issue in a matter where the government brought an action pursuant to a federal statute
(Medicare program) against a physician to recover Medicare overpayments made to a
physician’s solely owned corporation. In affirming the judgment against the physician,
the court held that where a federal statute was the source of the government’s right to
recover, federal law, rather than state law, controlled the issue. The court held that in a
matter involving a governmental program a uniform federal rule was needed since state
law could frustrate specific objectives of the program. Pisani at 83.

The Pisani court helped fashion a federal rule for piercing the corporate
veil, recognizing that it would be undesirable to let the rights of the Unites States change
whenever state courts issued new decisions on piercing the corporate veil. The Pisani
court and other courts have articulated various factors to help determine whether a
corporate veil should be pierced . The factors noted by the courts are the failure to
observe corporate formalities, nonpayment of dividends, the insolvency of the debtor
corporation at the time of incorporation, siphoning of funds of the corporation by the
dominant stockholder, non-functioning of other officers or directors, the absence of
corporate records, the fact that the corporation has been merely a facade for the
operations of the dominant stockholder, and, in some cases, whether the corporation has
been grossly undercapitalized. The courts have added that the situation “must present an
element of injustice or fundamental unfairness.” Pisani, at 83, 88 (3d Cir. 1981), quoting
DeWitt Trucks Brokers, 540 F.2d 681, 686-87 (4th Cir. 1976). See also Kaplan v. First
Options of Chicago, Inc., 19 F. 3d 1503, 1521 (3rd Cir. 1994), aff’d, 514 U.S. 938 (1995).
Additionally, the courts have also held that the application of the rule does not depend
upon a finding of bad faith, fraud, or intent. Id. ; See also Labadie Coal Company at 100
(D.C. Cir. 1982).

There is also a line of cases which hold that, when a violation of a federal
statute is at issue, as opposed to common law contract or tort controversy, individual
liability must be assessed in light of the purposes of the public policies underlying the
statute. Interests which are identified and protected by federal law should not be thwarted
by each state’s protective concern for local corporate enterprises. Federal policies are not
to be defeated by deference to state limitations on corporate liability and reliance on the
impenetrability of the corporate veil. The Supreme Court has provided some guidance on
the issue of corporate veil piercing, and has indicated that the corporate form may not
defeat overriding federal legislative polices. See First National City Bank v. Banco Para
el Comercio Exterior de Cuba , 462 U.S. 611, 630 (1962); Bangor Punta Operations, Inc.
v. Bangor & Aroostook R.R., 417 U.S. 703, 713 (1974)(“[T]he corporate form may be
disregarded in the interest of justice when it is used to defeat an overriding public
policy.”) The Third Circuit in Pisani also followed this theory of piercing the corporate
veil in order to prevent circumvention of a statute or avoidance of a clear legislative
purpose. supra at 88.

Other courts have had the opportunity to examine the issue of corporate veil
piercing with regard to administrative enforcement actions. These courts have also
applied the federal veil-piercing rule, and have held that the application of the rule does
not depend upon a finding of bad faith, fraud, or intent. Thomas v. Peacock, 39 F.3d 493
(4th Cir. 1994) (ERISA suit filed against corporation and officer and shareholder of
corporation based upon federal veil-piercing ) ; N.L.R.B. v. Greater Kansas City Roofing,
supra. (enforcement of order sought seeking to hold individual shareholder as well as
successor corporation liable for unfair labor practice judgement) ; Pel-Star Energy, Inc. v.
Unites States Department of Energy, Inc. v. United States Department of Energy, et al,
890 F.Supp. 532 (W.D. La.1995) (review of Federal Energy Regulatory Commission
order finding owner personally liable by piercing the corporate veil); William Valentine
and Sons, Inc ., 1989 WL 260666 , 46 F.E.R.C.¶ 61,252 (F.E.R.C., 1989), 1989 FERC
LEXIS 454 (enforcement action under the Department of Energy Organization Act,
where the three individuals were found jointly and severally liable for violations
committed by a corporate entity on which they served in various corporate capacities as
owners, directors and shareholders).

Guided by the principles set forth in Pisani and the other cases cited above ,
I find that Avcon was so closely tied to the personal interests of Bill and Nick Saites that
its corporate form may be properly disregarded. The record establishes that Avcon merely
facilitated the business affairs of Bill and Nick. Avcon did not exist but for the will of
these two individuals. From the beginning, Avcon was merely a "payroll company" (Tr.
288) without a personality distinct from that of Bill and Nick.

In addition, I find that recognition of the corporate entity as the sole
employer would defeat public policy: specifically, the assurance of a safe working place
for all employees. I believe it is necessary to pierce the corporate veil in order to prevent
the avoidance of the clear legislative intent of the Act.

The Secretary’s arguments regarding piercing the corporate veil, set forth in
her Post Hearing Brief (pp. 32-34), are well founded. At the time Bill Saites was first
contacted by James Canino of Tenwood Construction regarding the Excelsior Two
project, Avcon did not exist. Nick testified that Avcon was subsequently formed for
several reasons: (1) to create a minority-owned company for purposes of obtaining HUD
financing, (2) to generally avoid certain liability, and (3) because he believed that his
mother would outlive his father. To accomplish the first objective, 51% of Avcon's stock
was placed with Bill Saites' wife, and he retained the remaining 49%. With respect to the
second objective, Nick Saites testified that the succession of corporate entities owned by
him and his father, and the absence of stock ownership by individuals generally, would
effectively limit personal and corporate liability, including OSHA liability (Tr. 47-48,
178-79). Nick Saites also testified that "Avcon really had no money," and, therefore, a
new corporation, Avcrete, Inc. (Avcrete), was formed "six months ago." (Tr. 176-79).
Regarding the reasons for forming Avcrete, Nick Saites testified as follows (Tr. 178-79):

You have to remember when OSHA fines you
$150,000 on a case, you can't take the risk that
on the next job you're going to make some
money and then OSHA is going to come and
they're going to take all your money.

Other evidence supports a finding that the companies formed by Bill and
Nick Saites merely advanced their personal interests. Bill and Nick had been doing
business together for many years. Their business relationships fell into a pattern. When
Bill owned Astro, Nick worked for his father (Tr. 30). When Nick purchased Astro, Bill
worked for his son (Tr. 31). Bill also worked as a supervisor for Cornicon after Nick
formed the company in 1985 or 1986 (Tr. 34). Bill assumed the presidency of Avcon in
1997, and Nick became his "assistant superintendent" (Tr. 110). Bill testified that his son
also “bestowed” upon him the title of president of Altor, and that he reported only to
Nick, who was lawyer for Altor (Tr. 290, 294). I also find it significant that Bill did not
know if his wife had ever seen the contract between Altor and Avcon before he executed
the contract as president of both companies, and that his wife, the majority shareholder of
Avcon, was not paid a salary and had no authority to sign checks (Tr. 289, 295). These
factors provide further support for my finding that Avcon’s corporate form was a mere
formality.

As stated above, recognizing Avcon as the sole employer would frustrate at
least one objective of the Act: holding responsible the entity or individuals in control of
the health and safety of employees on a worksite. Although their actions do not appear to
have been fraudulent, Bill and Nick Saites deliberately attempted to avoid liabilities such
as the OSHA citations and penalties at issue in this case. For this reason, I believe that it
is appropriate to hold them individually liable for the violations.

The Secretary’s Burden of Proof

The Secretary has the burden proving her case by a preponderance of the
evidence. See, e.g., Astra Pharmaceutical Prods. , 9 BNA OSHC 2126, 2131 (No. 78-6247, 1981), vac'd in part on other grounds , 681 F.2d 69 (1st Cir. 1982). The
Commission has defined "preponderance of the [*25] evidence" as "that quantum of
evidence which is sufficient to convince the trier of fact that the facts asserted by a
proponent are more probably true than false." Ultimate Distrib. Systems, Inc ., 11 OSHC
1569, 1570 (1982).

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 for the Secretary to establish employee exposure to a hazard, she
must show that it is reasonably predictable by operational necessity or otherwise
(including inadvertence), that employees have been, are, or will be in the zone of
danger.” Fabricated Metal Prods., 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997);
Miniature Nut and Screw Corp., 17 BNA OSHC 1557, 1560 (No 93-2535, 1996) (access
to the condition may be shown by establishing that, during the course of their normal
work duties, employees might be in the ‘zone of danger’ posed by the condition) The
zone of danger is “that area surrounding the violative condition that presents the danger to
employees which the standard is intended to prevent.” RGM Constr. Co., 17 BNA OSHC
1229, 1234(No. 91-2107, 1995). It is sufficient for the Secretary to prove access to the
zone of danger, rather than actual exposure to the immediate risk of injury or death .
Donovan v. Adams Steel Erection, Inc. , 766 F.2d 804 , 811-812 (3rd Cir. 1985); Phoenix
Roofing, Inc. 17 BNA OSHC 1076, 1079 (No. 90-2148, 1995) (exposure to a violative
condition may be established either by showing actual exposure or that access to the
hazard was reasonably predictable.)

Review Commission precedent holds that the Secretary can satisfy the
burden of knowledge of the violative condition by establishing that the employer knew, or
with the exercise of reasonable diligence could have known, of the presence of the
violative condition. The actual or constructive knowledge of the employer’s foreman or
supervisor can be imputed to the employer. Jersey Steel Erectors , 16 BNA OSHA 1162,
1164 (No. 90-1307, 1993) and cases cited therein. Once the Secretary has made a prima
facie showing that the employer knew or, with the exercise of reasonable diligence, could
have known of the violative condition, the employer can seek to establish as an
affirmative defense that it had a thorough safety program which was adequately
communicated and enforced, and that the violative conduct of the employee was
idiosyncratic and unforeseeable. Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1537 (No.
86-360, 1992).

Docket 98-0755: Inspection No. 301057311

Citation 1, Item 9 and Citation 2, Items 2a-c: Fall Protection

29 C.F.R. § 1926.501(b)(1) : Each employee on a
walking/working surface (horizontal and vertical surface)
with an unprotected side or edge which is 6 feet (1.8 m) or
more above a lower level shall be protected from falling by
the use of guardrail systems, safety net systems, or personal
fall arrest systems.

As a result of the OSHA inspections at respondents' worksite, respondents
were issued a total of four (4) citation items alleging serious violations and willful
violations of the fall protection standard. Citation 1, Item 9 sets forth a total of seventeen
(17) serious instances of employees working without fall protection while erecting form
work, stripping form work, walking, and performing other duties in close proximity to the
unprotected building perimeter. The alleged violations occurred on elevations ranging
from the main lobby to the eleventh floor on dates between October 9, 1997 through
December 15, 1997. Citation 2, Items 2a-2c set forth a total of eight (8) serious and
willful instances of employees working without fall protection while engaged in erecting
form work, stripping form work, and performing other duties in close proximity to the
unprotected building perimeter. The alleged violations occurred on elevations ranging
from the sixth floor to the thirteenth floor on dates between November 24, 1997 through
January 7, 1998.

Applicability of standard

Respondents assert that the majority of the cited activity was leading edge
work (except for instances (d), (e), and (f)), and thus, the cited standard is inapplicable.
(Respondents’ Post Trial Brief, p. 60) Respondents contend that the installation of form
work or plywood decking is leading edge work, as is the removal or stripping of the
sections. Respondent argues that the leading edge concept would also apply to the
creation of form work on balconies, as well as the removal of form work on balconies.
Respondents assert that this concept was confirmed by their expert, Mr. DeBobes who
testified that, "leading edge work is completed . . . after all of the forms and all of the
temporary components have been removed" (Tr.3971). Mr. DeBobes testified that leading
edge includes not only the framing of the deck, but also the pouring of concrete, the
stripping of forms and the installation and removal of reshores. (Tr. 3964-71, 4047).

The term “leading edge” is defined within the fall protection standard as
“the edge of a floor, roof, or form work for a floor or other walking/working surface (such
as the deck) which changes location as additional floor, roof, decking, or form work
sections are placed, formed, or constructed.” 29 C.F.R. § 1926.500(b). Leading edges that
are not actively and continuously under construction are considered to be “unprotected
sides and edges.” Each employee who is constructing a leading edge six feet or more
above lower levels must be protected from falling by conventional fall protection:
guardrail systems, safety net systems, or personal fall arrest systems. 29 C.F.R. §
1926.501(b)(2). The leading edge standard presumes that it is feasible and will not create
a greater hazard to implement at least one of the three specified conventional fall
protection systems. If an employer does not implement one of these systems, it has the
burden of establishing that it is appropriate to implement a fall protection plan which
complies with §1926.502(k)

.

I reject the Respondents’ attempt to expand the term “leading edge”
beyond its plain meaning. I find that the terms set forth in the definition of leading edge
(except with respect to a roof) refer to the lower base of the yet-to-be-completed area (i.e.,
the floor and walking/working surface), and that the “edge” refers to the line where that
area begins or ends. In the instant matter, the leading edge work involved the progressing
of the plywood deck for each level - laying the deck and erecting the structure upon
which the plywood deck rested. The leading edge changed each time an additional section
of plywood deck was set in place. Once the plywood was placed, any further activity in
the area became work at an unprotected side and edge, and remained such until an
additional plywood section was added to the deck. My review of the instant matter
indicates that no citations were issued for a lack of protection on leading edges.

Rather,
the citations were properly issued for failure to provide adequate fall protection on
unprotected sides and edges.

I also find that each citation was issued for work on unprotected sides or
edges which were six feet or more above the lower levels. In fact, the evidence shows that
Respondents’ employees worked at unprotected heights of up 115 feet. The Respondents
did not dispute testimony that such falls would likely result in serious injuries or death
(Tr. 894, 899, 914, 984, 992, 1003, 1007, 1013, 1017, 1021, 1028, 1029, 1032, 1037,
1039, 1042, 1046,1047-48).

The record also establishes that management and supervisory employees
had knowledge of the violative conditions. The record discloses that the violations were
in plain view and occurred in the presence of management and supervisory personnel,
who in many instances were exposed to the same hazards ( Tr.882, 887-88, 890, 894-95,
899, 905-07, 915, 978, 1011, 1016, 1023, 1037). The record shows that it was common
practice for supervisory personnel to allow employees to work without fall protection (Tr.
1011, 2151, 3109, 3285, 3288, 3523 -24, 3569, 3878, 3892, 4250). During the course of
the trial supervisors readily acknowledged that no nets were used on the project and that
employees did not wear personal protective equipment (Tr. 952-53, 3285, 3405, 3565).
This knowledge of the supervisory employees is imputed to the Respondents.

In addition, I find no reason to excuse the Respondents from the acts of its
supervisory employees. These acts occurred in plain view of Respondents without any
objection. The record does not reflect that the cited conditions were contrary to any
consistently enforced company policy. In fact, it is Respondents’ position that the manner
in which the employees were observed working was consistent with an unwritten
company policy on working near edges (Tr. 2166-2208, 4151-52, 4176-78). I find no
evidence that at the time of the inspection Respondents had in good faith promulgated any
work rule or safety program addressing fall protection. Additionally, the record reflects
that the foremen and sub-foremen were not trained in safety matters and were not familiar
with safety requirements for fall protection (Tr. 3115-21, 3159, 3196, 3240, 3370-33,
3405). Furthermore, the record contains no evidence that Respondents took any steps to
discover safety violations.

Next, I will address the specific violations of the fall protection standard. I
find that the Secretary has proven by a preponderance of evidence that the cited standard

was violated and that Respondents’ employees were exposed to the cited
conditions in each of the instances discussed below.

Before I address the specific violations of the fall protection standard,
however, I note that at trial Respondents attempted to discredit compliance officer
Signorile’s testimony regarding his observations at the Excelsior Two worksite.
Nonetheless, I find that Signorile’s testimony is credible. Many of Signorile’s
observations were made during the course of a walkaround in the presence of the
individual Respondents and supervisory personnel. Signorile testified to the events of the
inspection and the statements which Respondents and their agents made during the course
of the inspection. Respondent did not refute this testimony. Instead, Respondents merely
elicited testimony which was aimed at critiquing and/or providing a different
interpretation of what the photo or video tapes depicted. Additionally, a good portion of
this testimony was adduced and crafted to support the theory that a fall protection plan
existed at the time of the inspection (Tr. 2166-2240, 3169- 97. 3757- 71, 3881-82,4203-05). Most of this testimony was not based upon observations that were actually made at
the time the photograph or video tape was actually recorded, but was instead based on
what the witness believed the photo depicted when he viewed the photo at trial. Because
the record shows that a fall protection plan had not been established at the time of the
inspection and that no employees were aware of the requirements for such a plan, I give
very little weight to this testimony.

I find that Signorile’s testimony is entitled to significant weight for a
number of other reasons. In many instances, Signorile’s testimony was corroborated by
the statements of other compliance officers (Tr. 480-83, 688. 693, 4397-99, 4577-99,
4584-85, 4587). Signorile also identified photographs which documented areas where he
had observed violative conditions. He explained that some photographs did not depict
actual exposure to violative conditions because employees walked away when they saw
him (Tr. 1002, 1004, 1006, 1020, 1025, 1032). Some of Signorile’s observations were
also corroborated by a video tape which was recorded by compliance officer Brown. The
conditions recorded on video tape were confirmed by on-site visits and interviews, or the
video tape was shown to Respondents and supervisory personnel, who confirmed the
observations of the compliance officers (Tr. 745-773, 774, 849,980, 988, 1002, 1010,
1014-15, 1016, 1017-18, 1024, 1025, 1031-32, 1045, 1048). During these interviews
Respondents never denied what Signorile and the other compliance officers said they had
observed, and never mentioned a fall protection plan.

I will now address the specific violations of the fall protection standard.

Instance (a): Second Floor, South/West Corner, Column #24:
Two employees were stripping the wood frame off of column
24, near the open edge of the floor, on or about 10/9/97.

On the first day of his inspection, October 9, 1997, Signorile observed two
employees stripping the wood frame off column 24 near the open edge of the floor. These
employees did not have belts or harnesses. Signorile testified that he pointed this
condition out to Nick as they were walking outside the general contractor’s trailer. Nick
and the shop steward, Cataliato, identified the workers as Avcon employees. Signorile
testified that the employees were within a foot of the edge, and about 12 feet above
ground level (Tr. 978-79; Ex. C-60).

Instance (b): Main Lobby, West Area, column 37: One
employee setting up forms for the columns was standing on
steel flanges of the frame and was not protected from falling,
on or about 10/9/97.

On October 9, 1997, an employee was observed setting up clamps by
column #37 while standing and climbing on the steel flanges. Although he wore a
harness, he was not tied off to anything (Tr. 986). During the inspection, Cataliato yelled
at him to tie off, and the employee tied to a ring of the steel flange on which he was
standing. Nick and Signorile disagreed over whether the employee should tie off to the
steel flange. Signorile believed that if the steel flange came down, the employee would
also. The fall distance was 10 feet (Tr. 987-88, 991, 2167; Ex. C-61).

Instance (c): Second Floor, North/West Corner, Column #49:
Two employees, working near the edge of the floor, were not
protected from falling while stripping the column, on or about
10/14/97.

On October 14, 1997, Signorile observed two employees stripping a column
in the northwest corner of the building without any fall protection (guard rails, safety net
systems, or personal protective equipment). The fall distance was approximately 12 feet.
Cataliato verified that the employees were working for him. Furthermore, Signorile
testified that, on the first day of his inspection, he had observed one of the employees
(Rob Benoit, who was wearing a red shirt) stripping a column without fall protection. Ex.
C-62, a photo taken from ground level, depicts the two employees and the column they
were observed stripping (Tr. 1000-02).

Instance (d): Entire Second Floor: perimeter protection was
not provided along the open floor edge, exposing employees
to falls of approximately 12 feet, on or about 10/14/97.

On October 14, 1997, Signorile noticed that the entire second floor lacked
perimeter protection, such as wire cable or wood railings, along the open floor edge. This
condition exposed employees to a potential twelve foot fall. Signorile observed
employees stripping and walking by the edge of the floor without any fall protection. The
shop steward, Cataliato, told him that the employees worked for Avcon (Tr. 1004-07).
Nick said that the general contractor was responsible for perimeter protection, but
admitted that he personally observed Avcon employees walking at the edge without any
fall protection (Tr. 1006-07).

Instance (e): Entire Third Floor: Perimeter protection was not
provided along the open floor edge, exposing employees to a
fall of approximately 24 feet, on or about 10/14/97.

On the same day, the entire third floor lacked fall protection along the edge.
Signorile testified that he had observed this condition on video, but could not recall
seeing any employees working on the third floor (Tr. 1009). Given that Signorile was
unable to point to any employee exposure, this item is vacated.

Instance (f): Second Floor, East Area: Perimeter floor
protection had been removed from the edge of the floor, on or
about 10/21/97.

On October 21, 1997, Signorile observed that the perimeter protection had
been removed on the entire east side of the floor. He observed two employees, one the
stripper foreman and the other an Avcon employee, bringing stripped material to the edge
of the floor. The material would later be picked up by a crane. The two employees wore
no belts or harnesses, and they were right at the edge of the floor. The shop steward,
Cataliato, was with Signorile. Signorile asked the stripper foreman if this was the normal
procedure of work -- stripping the material and bringing it to the edge of the floor and
storing it. The stripper foreman said yes. Signorile asked Cataliato and the foreman if
they tied off when they brought material to the edge of the floor or picked up a load from
the crane, and they both replied “certainly.” When Signorile asked the foreman why he
was not wearing a belt, the foreman responded that he had forgotten to put it on. The
employees were exposed to falls of 20-24 feet (Tr. 1010-13).

Instance (g): Third Floor East: Two employees working on
installing stringers for a balcony, on or about 10/21/97.

On October 21, 1997, Signorile observed two employees in the third floor
east area who were exposed to falls. These employees were installing steel stringers for
the balcony area, and were the same employees mentioned in Instance C above. Shop
steward Cataliato was with Signorile and identified the employees. While Signorile talked
to Cataliato the two employees walked away, but not before Signorile took a photo. One
employee had his back toward the open side and was about 1 foot away from the opening.
The other employee was 5-6 feet away from the open side. They were both kneeling as
they performed their jobs. The fall distance was 30 to 35 feet. On that same day,
Georgiana was monitoring this floor. Signorile brought this condition to Georgiana’s
attention, and inquired as to why the employees were not tied off. Georgiana replied that
he had not seen any employees (Tr. 1014-17; Ex. C-63) . Signorile testified that he had
observed these employees in this area for approximately 3-4 minutes before he took the
photo (Tr. 1017-18).

Instance (h): Third Floor, East and West Area: Cable
perimeter protection had been removed from the edge of the
floor, on or about 10/29/97.

On October 29, 1997, while on the ground level, Signorile observed
employees working in the west area of the third floor. Perimeter protection had been
removed from both the east and west sides of the third floor. Signorile learned that the
cable perimeter protection had been removed when material had been stripped and
employees forgot to put the perimeter cable back. Cataliato told Signorile that early in the
morning he had told Nick and Bill to replace the cable protection, and they had told him
that they would put it back (Tr. 1019-1020; Ex. C-64). Prior to taking a photograph of the
condition, Signorile had observed employees stripping material approximately 1 foot
from the edge of the floor. The fall hazard in this area was 30-35 feet. Signorile later
learned from Cataliato and Greco that these employees worked for Avcon (Tr. 1020-22).

Instance (i): Fourth Floor, West Area: Cable perimeter
protection had been removed from the edge of the floor, on or
about 10/29/97

On October 29, 1997, Signorile observed two to three employees walking
and stripping on the fourth floor without any fall protection. They were working
approximately 1 foot from the edge of the floor and were exposed to approximately a
thirty foot fall hazard. Signorile learned from Bill that the cable protection had been
removed from the edge of the floor in order to strip the floors. Cataliato told Signorile
that he had mentioned this condition to Bill and Nick, who said that they would have the
cable protection reinstalled. Cataliato informed Signorile that the employees working on
the fourth floor were Avcon employees (Tr. 1022-25; Ex. C-65- employees had been
observed in area to the left of photo).

Instance (j): Seventh Floor, Column #27, South/West
Corner: Three employees framing the eighth floor from the
seventh floor were not protected from falling, on or about
11/17/97.

On November 17, 1997, Signorile observed three employees framing the
8th floor from the 7th floor, at column #27, without any fall protection. They were at the
edge of the floor exposed to a seventy to eighty foot fall. Greco and Cataliato identified
these persons as Avcon employees. Signorile testified that Greco had remarked early that
morning that both he and Cataliato mentioned to these three individuals to tie off (Tr.
1028-29, 1082; Ex. C-101).

Instance (k): Seventh Floor, West Side Balcony: Three
employees framing the balcony were not protected from
falling, on or about 11/18/97.

While on the ground, Signorile observed three employees framing the
balcony on the 7th floor without fall protection. Cataliato and Greco identified them as
Avcon employees. Prior to taking the photograph of the condition, Signorile saw the
employees working at the edge and exposed to a fall hazard of 70 to 75 feet. (By the
time he took the photo, the employees had moved away.) (Tr. 1030-32: Ex. C-67).

Instance (l): Eleventh Floor, South/West Corner: Two
employees framing and one employee marking the floor were
not protected from falling, on or about 12/8/97.

On December 8, 1997, Signorile approached the site with compliance
officers Peist and Brown. From the car they observed employees working at the edge of
the 11th floor without any fall protection. One employee was marking something on the
deck, and the others were framing, nailing something down right at the edge of the 11th
floor (Tr. 1035). Nick later verified that these were employees of his company (Tr.
1036). The employees were exposed to a fall hazard of 110-115 feet. This condition was
captured on video (Tr. 1037, 1082-83; Ex. C-101 ).

Instance (m): Eleventh Floor, Northwest Corner: An
employee framing the floor was not protected from falling, on
or about 12/11/97.

On December 11, 1997, Compliance Officers Signorile, Peist, Brown and
Triscritti were approaching the jobsite, and from inside a car they observed an employee
framing the floor. Later, they learned the name of the employee from Dominic Paniscotti.
The employee was Jeff Georgiana, who was the son of Frank Georgiana, the general
foreman on the job. The employee had no protection, and it was snowing that day He
was right at the edge, exposed to a fall of 110-115 feet (Tr. 1038-39).

Instance (n): North Side, 11 th Floor Balcony: One employee
setting up a deck balcony with his back toward Prospect Ave.
was not provided with fall protection, on or about 12/11/98.

On December 11, 1998, from the car, Signorile observed an employee
performing framing activities on the deck balcony on the eleventh floor with his back
toward the edge of the deck. The employee was exposed to a fall hazard of 110-115 feet.
Signorile, who was with his supervisor, Peist, went to the site, met with Nick, and told
him about the exposure. Nick told them that he could not believe it, because employees
had been given belts. So Nick went back to the area where the employee had been seen
with Signorile and Peist. The employee was working with his back toward them, at the
edge of the balcony. Signorile, Nick, and Peist walked to the area where they had seen the
employee. The employee was still there, with his back toward them at the edge of the
balcony. Nick could not tell Signorile and Peist why the employee was not wearing a belt,
and he expressed shock at the employee’s action. Nick shouted to the employee to get off
the balcony and get a belt (Tr. 1038-40).

Instance (o): Eleventh Floor, South/East Area, South/West
Area, South Area: Employees building columns, framing the
deck and marking out the deck, were not protected from
falling, on or about 12/15/97.

The video tape of December 15, 1997 showed employees walking and
performing various tasks at the edge of the south, southeast and southwest areas of the
11th floor. Employees were marking the deck, working on columns, and walking along
the sides of the 11th floor. No fall protection was in use, although one employee was
observed wearing a belt and lanyard. The fall distance was more than 100 feet to the
ground level . Nick was subsequently shown the video, and he identified the employees as
Avcon employees. The video also depicted three employees performing work at the outer
edge of the deck as they put on safety harnesses and attached their lanyards to reinforcing
steel after OSHA personnel entered the site (Tr. 1043-46;1083-89; Ex. C-101 ).

Instance (p): Tenth Floor, South/East Area: One employee
stripping the balcony was not protected from falling, on or
about 12/15/97.

On December 15, 1997, Signorile observed an employee engaged in
stripping activity at the edge of the balcony on the tenth floor. No fall protection was
present, and the employee was exposed to a 100 foot fall hazard. Nick saw the video and
identified the worker as an Avcon.employee (Tr. 1047; Ex. C-101- 05:11.16.25-05:11.49.17).

Instance (q): Ninth Floor, South/East Corner: One employee
stripping the balcony was not protected from falling, on or
about 12/15/97.

Upon viewing the video, Signorile observed an employee stripping and
bending rebar at the edge of the balcony on ninth floor southeast corner. The employee
wore no belt or harness and was not otherwise protected from falling over 100 feet below.
Nick was shown the video and verified that the employee worked for Avcon (Tr. 1047-48, 1090-91; Ex. C-101 ).

Classification and Penalty

Section 17(k) of the Act, 29 U.S.C. §666(k), provides that a violation is
“serious” if there is “a substantial probability that death or serious physical harm could
result” from the violation. In order to establish that a violation is serious, the Secretary
need not establish that an accident is likely to occur, but must show that an accident is
possible and it is probable that death or serious physical harm could result. Flintco Inc.,
16 BNA OSHA 1404, 1405 (No 92-1396, 1993). In the present case, the citation for
violating the fall protection standard was appropriately classified as serious because
employees could have fallen more than 100 feet and suffered multiple injuries or death.

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

The gravity of the violation in the present case was considered high because
of the nature of the expected injuries, and the probability of injury greater because
employees were standing right at the edge of floors without fall protection (Tr.985). The
gravity based penalty was adjusted to reflect the Respondent corporation’s size, with a
20% reduction for this factor (Tr. 440, 985). No adjustment was allowed for good faith or
history because of the presence of willful violations and Respondents’ history of prior
final orders (Tr. 443-44)

. Given these factors, I find that a penalty in the amount of
$3,000.00 is appropriate for Citation 1, Item 9.

Citation 2 Item 2a

Instance (a): Eighth Floor: Employees framing the floor were
not protected from falling, on or about 11/24/97.

On November 24, 1997, through his binoculars Signorile observed
approximately eleven employees, including the carpenter foreman, Dominic Paniscotti,
framing and marking the 8th floor. The employees were not wearing belts or harnesses
and were exposed to falls of seventy feet (Tr. 882-84;1104-05; Ex. C-101).

Instance (b): Seventh Floor, Employees framing the eighth
floor from the seventh floor were not protected from falling,
on or about 11/24/97.

On November 24, 1997, Signorile observed through his binoculars five
employees framing the 8th floor from the 7th floor without any fall protection. These
employees were one to two feet from the edge and the fall distance was 70 to 75 feet.
When shown the video, Nick identified these employees as Avcon employees (Tr. 888-89;1101-02, 1105-06; Ex. C-101). Foremen were in the vicinity of the exposed workers
(Tr. 895).

Instance (c) : Seventh Floor, South/West Corner: Employees
stripping the floor were not protected from falling, on or
about 11/24/97.

On November 11, 1997, two employees, one the carpenter foreman,
Dominic Paniscotti, were observed on the 7th floor southwest corner, stripping at the
edge without fall protection. They were stripping a column and the bottom of the ceiling
above. This activity was videotaped (Tr. 889-91,1106; Ex. C-101).

Instance (d): Sixth Floor Balcony, West Side Area: One
employee bending steel rebars was not protected from
falling, on or about 11/24/97.

Signorile observed on video tape that on November 24, 1997 one employee
was one to two feet from edge of the sixth floor balcony, west area. He was using a pipe
to bend steel rebars that were protruding. (Tr. 891-92; 1107; Ex. C-101) Bill identified
the worker as his employee. The employee was wearing a harness, but he was not tied off.
(Tr. 892)

Instance (e): Seventh Floor, West Side Area: Two employees
stripping and/ or removing excess concrete were not protected
from falling, on or about 11/24/97.

Signorile observed on video tape that on November 24, 1997, on the 7th
floor, two (2) employees were using a hammer to remove excess concrete from the edge
of the floor. They were leaning or kneeling over to the edge to remove the excess
concrete, and were exposed to a seventy foot fall hazard. This violation was taking place
in the presence of Bill Saites, the carpenter foreman, Georgiana, and the shop steward,
Cataliato (Tr. 893-94;1097-1100; Ex. C-101, C-103).

Citation 2 Item 2b

Instance (a): Ninth Floor, West Side: An
employee was picking up metal brackets and
was not protected from falling, on or about
12/8/97.

On December 8, 1997, while interviewing Bill on the 9th floor of the
building Signorile and Peist observed a worker picking up metal brackets about one to
two feet from the edge of the floor. As he traveled about 10 feet along the edge, he was
exposed to a 90-95 foot fall. Bill identified the worker as his employee (Tr. 897-98).
They discussed this condition with Bill, who said that he did not believe the employee
needed to be tied off because he was not at the edge (Tr. 899).

Citation 2 Item 2c

Instance (a): Tenth Floor, East Side: Three employees were
stripping wood forms and were not protected from falling, on
or about 1/7/98.

Signorile observed on video tape three employees stripping the tenth floor,
east side on January 7, 1998. They were at the edge of the floor, and there was a single
cable wire along the edge. The cable had more than three inches of slack , and there was
no mid-rail. The employees crawled under the wire to work at the edge, and at times an
employee leaned over the cable protection. No fall protection was in use, and the fall
hazard was more than 100 feet. Georgiana, the foreman, acknowledged in the video he
was directing the work and sometimes assisting the Avcon employees (Tr. 900-03, 1108-09; Ex. C-101).

Instance (b): Thirteenth Floor, South Side Area: Three
employees working near the edge of the floor were picking up
stripped lumber and steel brackets and were not protected
from falling, on or about 1/7/98.

On January 7, 1998, while approaching the jobsite, Signorile observed
through his binoculars three employees leaning over and picking up stripped lumber and
steel brackets near the edge of the floor . There was no fall protection, and the employees
were exposed to a 130 foot fall hazard. Signorile recognized one of the employees as Bob
Gallagher, a foreman whom he had met at the beginning of the inspection. When
interviewed later, Gallagher acknowledged that he and two other employees were
cleaning up the floor, and that they were not wearing fall protection. Gallagher said that
he should have told the employees to wear fall protection (Tr. 903-07, 909-13; Ex. C-73).

Willfulness

A violation is willful if committed with intentional disregard for the
requirements of the Act or with plain indifference to employee safety. Williams Enterp.,
Inc., 13 BNA OSHC 1249, 1256 (No. 85-355, 1987). Thus, the focal point of a willful
classification is the employer’s state of mind when the violation was committed . Brock v.
Morello Bros. Constr., 809 F.2d 161, 164 (1 st Cir. 1987); Monfort of Colorado, Inc., 14
BNA OSHC 2055, 2062 (No. 87-1220, 1991). The Secretary must show that the
employer had a “heightened awareness” of the illegality of the conduct at issue. E.g.,
Pentecost Contrac. Corp. 17 BNA OSHC 1953, 1955 (No. 92-3788, 1997); Williams
Enterp., Inc., at 1256-57. An employer who knows an employee is exposed to a hazard
and fails to correct or eliminate the hazardous exposure commits a willful violation if the
employer knows of the legal duty to act, because an employer’s failure to act in the face
of a known duty demonstrates the knowing disregard that characterizes willfulness. See
Sal Masonry Contrac., Inc., 15 BNA OSHC 1609, 1613 (No. 87-2007, 1992); accord A.
Schonbek & Co., 9 BNA OSHC 1189, 1191 (No. 76-3980, 1980), aff’d, 646 F.2d 799,
800 (2d Cir. 1981); Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1541, (No. 86-360,
1992).            Alternatively, the Secretary can establish willfulness by showing that the
employer had a state of mind such that, if informed of the duty to act, it would not have
cared. Morello, 809 F.2d at 164. The state of mind of a supervisory employee - his or her
knowledge and conduct - may be imputed to the employer for purposes of finding that the
violation was willful. Continental Roof Sys., Inc., 18 BNA OSHC 1070, 1071(No.
95-1716, 1997); Conie Constr., Inc., 16 BNA OSHC 1870, 1872 (92-264, 1994), aff’d, 73
F.3d 382 (D.C. Cir. 1995). The Third Circuit, the jurisdiction in which the present case
arises, has held that a willful violation is characterized by an “obstinate refusal to
comply” with safety and health requirements. This test “differs little from” the
Commission and majority-circuit test. Universal Auto Radiator Mfg. Co. v. Marshall, 631
F.2d 20, 23 (3d Cir. 1980) (quoting Babcock & Wilcox v. OSHRC, 622 F.2d 1160, 1167-68 (3d Cir. 1980)).

Respondents argue that the record does not show “heightened awareness” or
a “deliberate flaunting of the Act.” (Respondents’ Post-Trial Brief, p. 97) However, I
find that at the time these violations were observed, Respondents had heightened
awareness that the cited conduct was illegal. Respondents and their supervisory personnel
were aware of OSHA standards requiring fall protection. There had been prior citations or
other warnings regarding the need for fall protection on similar jobsites. Despite
Respondents’ knowledge of OSHA’s fall protection standards, no meaningful safety
program exited at the Excelsior Two jobsite which addressed these issues. The record
indicates that on the first day of the inspection, October 9, Nick was present during the
walkaround when two employees were observed stripping the column of the second floor
without protection. Signorile brought this to the attention of Nick, and the employees
were told to walk away and get some belts (Tr. 839). At that time Signorile discussed
with Nick the choices the company had with regard to various conventional fall
protection systems. Nick informed him that he was familiar with employees tying off (Tr.
885-86). Furthermore, on the first or second day of the inspection, in order to apprise
Nick of the changes in OSHA’s fall protection standards, Signorile provided Nick with a
copy of OSHA’s fall protection standard with its preamble. At that time Signorile
reviewed the requirements of the standard with Nick (Tr. 4610-12; Ex. C-116). He also
provided Nick with several handouts which pertained to available options for protecting
workers on the top deck (lifeline systems and net systems) , and which addressed Nick’s
concerns about the infeasibility of protecting these workers. Signorile explained that the
standard contained several options with respect to fall protection (Tr. 4612-15; Exs. C-117 and 118). During the course of his inspection, Signorile had similar conversations
with Bill, the foremen, and shop stewards (Tr. 886-87). Despite this information,
Respondents and supervisory personnel continued to permit employees to work in the
same manner which Signorile had informed them was in violation of the requirements of
the standard.

I also find that Respondents’ previous contacts with OSHA provided some
knowledge of OSHA’s fall protection requirements. Companies owned and/or operated
by Bill and Nick Saites had been cited for fall protection violations on several previous
construction projects. Under the ownership and presidency of Bill Saites, Astro was
issued three (3) serious citations, one (1) repeated citation, and three (3) willful citations
for failing to guard open-sided floors in accordance with 29 C.F.R. § 1926.500(d)(1).
These citations were issued between May 30, 1974 and June 11, 1980.

In addition,
Astro Concrete was issued one serious citation on October 11, 1974 for violating the
standard in 29 C.F.R. 1926.105(a) by failing to provide safety nets or other fall protection
for workplaces more than 25 feet above ground.

I also note that, after Astro was sold to Nick in 1983, this company was
issued one (1) serious citation pursuant to 1926.500(d)(1)

, and two (2) serious citations
pursuant to 1926.105(a).

These citations were issued between December 20, 1989 and
December 27, 1990. Three of the settlement agreements entered into by Astro were
signed by Nick (Ex. C-36, C-37, C-39). During the December 1990 inspection, there were
discussions with Bill and Nick regarding fall protection systems (Tr. 716-719)

Finally, when Nick owned Cornicon, this company was issued one (1)
serious citation and one (1) willful citation pursuant to 1926.500(d)(1) between January
10, 1986 and April 29, 1986.

As a result of the serious citation issued January 10, 1986,
Peist had a discussion with Nick about OSH standards were and what OSHA was looking
for with regard to fall protection. Cornicon was also issued one (1) serious citation and
one (1) one willful citation for violations of 1926.105(a) between April 29, 1986 and
February 2, 1987.

In addition, when Bill Saites owned WNS Construction, the company
was issued two (2) serious citations pursuant to 1926.500(d)(1) between June 14, 1982
and August 11, 1982.

All of the above-mentioned citations became final orders of the
Review Commission (Tr. 358, 362, 367).

Despite their extensive history of OSHA citations and knowledge of OSHA
requirements, respondents made no plans or preparations for the use of fall protection at
the Excelsior Two site, nor did they enforce any procedures whatsoever for the use of fall
protection. Respondents did not contact a professional engineer or other knowledgeable
professional or supplier in the fall protection business (Tr. 301, 4253-56, 2605-06).
Respondents did not review any literature regarding available fall protection equipment
(Tr. 301, 166-68). Respondents did not seek permission from the project engineer to
embed anchorages or other fall protection equipment into the concrete as it was poured
(Tr. 4261-4264). Furthermore, the record establishes that the Respondents inquired about
the price of nets as a means of fall protection with regard to this project at the beginning
of the job. Respondents found the cost of nets high, and then took no other action with
regard to fall protection on the site (Tr. 297-300).

Additionally, when Signorile visited the site on October 14, 1998, several
months into construction activities, he discovered that respondents had made no
arrangements with the general contractor for the installation of perimeter cable on floors
where Respondents' employees were exposed to fall hazards (Tr. 80-81, 1005-06). Nick
Saites maintained that Avcon was not contractually responsible for the perimeter
protection (Tr. 1005). However, the superintendent of the general contractor, Sal
Manino, did not know which company was responsible for perimeter protection and
indicated that he would "check with his office." When Signorile returned to the site
several days later, he was informed that Tenwood and Avcon had agreed that Tenwood
would purchase the perimeter cable, and Avcon employees would install it (Tr. 1006).
When Signorile visited the site two weeks later, on October 29, he observed that the third
and fourth floors of the building lacked perimeter protection even though Respondents'
employees were engaged in stripping activities on those floors and were exposed to fall
hazards. The shop steward informed Mr. Signorile that he had made a request to Nick
Saites earlier in the day to replace the perimeter protection on those floors; however, the
protection was not restored before the employees began working (Tr. 1018-19, 1023).
The failure to even consider the general issue of perimeter protection in advance of the
work activities -- and the failure to include such provisions in the contract -- demonstrates
a callous disregard for the requirements of the Act. The record also establishes that
guardrails were removed from column rebar in order to frame columns, and that entire
floors of the structure were without perimeter guarding even though future work would be
performed on these floors. (Tr. 2530, 2533)

Although safety belts were present at the site, they were kept in a gang box,
and employees brought their own belts to the job (Tr. 2148). Belts were not required on
the job, and the use of safety belts and lanyards was left completely to the discretion of
each employee. If the employee "found" an attachment point in his work area, he could
choose to use fall protection. However, respondents had never devised any plans to
provide adequate attachment points (Tr. 2591-97, 4249-50). Accordingly, employees
were never required to use fall protection -- even under the close supervision of
management. Indeed, management officials themselves were observed performing work
at the edge of the building without fall protection (Tr. 890, 895, 1016, 1893-94).
Management officials were also observed supervising employees who were crawling
under perimeter cables (Ex. C-101 - 07:18.59.19-07:19.27.18). Employees were routinely
assigned to perform tasks at the edge of the building which would expose them to falls in
excess of 100 feet, without any procedures in place to provide fall protection. Employees
who elected not to use fall protection were not disciplined. Management officials who
elected not to use fall protection were also not disciplined (Tr. 2949-51). It is abundantly
clear that Respondents did not require fall protection at this worksite.

William P. Kelly was a carpenter for Respondents at the Excelsior Two
project for almost the entire duration of the job (Tr. 1484-86). Kelly had been a union
carpenter for twenty years and had worked on a wide variety of construction projects,
including high-rise buildings (Tr. 1513-14). Kelly had never seen safety belts at the
Excelsior Two site until a worker fell 25 feet while framing a concrete beam early in the
job (Tr. 1495-96, 1499). Belts were handed out after the accident, but their use was never
enforced (Tr. 1499-1500). Belts were worn only when OSHA personnel were on-site (Tr.
1499). Bill Saites would warn everyone to put on their safety belts and to put up
guardrails because "OSHA's here" (Tr. 1499, 1503). After OSHA personnel exited the
site, guardrails were sometimes dismantled and the lumber was used for construction
purposes (Tr. 1503). When OSHA inspectors were not on-site, nothing was said about
the use of belts and their use was left up to the employee (Tr. 1500). Also, foremen were
well aware that employees worked without fall protection (Tr. 1501). Kelly worked
without fall protection, under the direct supervision of a foreman, while standing one foot
from the edge of the building on the fourteenth or fifteenth floor (Tr. 1517). I find that
this conduct demonstrates a conscious disregard of the terms of the standard, and also
shows disregard for the advice of compliance officers.

I further find that the willfulness of the violations is demonstrated by
Respondents’ failure to provide any form of fall protection for their employees during the
course of this inspection - except when forced to do so by the presence of OSHA
compliance officers (Tr. 1499, 3107, 3110, 3149-51, 3321-22, 3475-76, 3598-99,
4187;Ex. C-101 - 05:33.55.19 - 05:34.03.17; 103 - 04:29:38.20).

Classification and Penalty

The citations were properly classified as serious because an employee could
have fallen more than 100 feet and suffered multiple injuries or death. The gravity of
these violations was high. The severity of the violation was high because falls from the
cited heights could have lead to death. The probability was greater because the employees
were working right at the edge of the floors (Tr. 894-95, 916) . In light of the gravity and
willful nature of these violations, I find that no adjustment for size, history (the Saites’
had a history of fall protection citations at prior jobsites) or good faith should be made
(Tr. 443-45). I believe that the proposed penalty of $70,000.00 is necessary to deter
future violations, and is consistent with the statutory criteria.

AFFIRMATIVE DEFENSES

In defense of these items, Respondents claim infeasibility of compliance.
This defense requires the employer to show that the means of compliance set out in the
standard was technolmust show that it was
impossible to comply with the standard, or that compliance would have precluded
performing the work, and that no alternative protective means were available. E & R
Erectors, Inc. v. Secretary of Labor , 107 F.3d 157, 163 (3d Cir. 1997)

It is Respondents’ position that, at the time of inspection, nets were not
possible because concrete curing time precluded the embedding of anchorages capable of
maintaining the pour cycle. Respondents also argue that the plans and specifications on
which Avcon bid did not contain structural embedding for fall protection nets. Finally,
they claim that fall arrest/fall restraint systems were infeasible because the form work was
not designed to anchor these devices and because anchorage strength and the curing time
of concrete columns on the stripping floors were insufficient. Respondents presented lay
testimony and expert testimony in support of their assertion that it was infeasible to
provide conventional fall protection on the Excelsior Two jobsite.

After reviewing the record, I reject Respondents’ infeasibility defense. As
noted by the Secretary, there was no preplanning on the part of Respondents, no inquiry
into available fall protection equipment, no consultation with qualified persons, and no
development of a construction sequence which would accommodate available fall
protection equipment. (Secretary’s Post-Hearing Brief, p.63). The record shows that
during the planning of this job Respondents ignored their obligation to provide fall
protection, and made no attempt to comply with the fall protection standards. There was
not even a clear understanding between Respondents and the general contractor as to who
would provide guardrails on the site (Tr. 84, 1005). Prior to the start of this job,
Respondents did not conduct any research to find out if fall protection standards had
changed since their last construction job, in 1991 (Tr. 2550). Respondents acknowledge
that there was some discussion about the costs of nets. However, no other inquiries were
made (Tr. 2568-70, 4274-79). Respondents made no efforts to seek any other equipment
for fall protection. The Commission has held that “we expect employers to exercise
some creativity in seeking to achieve compliance.” Gregory & Cook Inc., 17 BNA OSHC
1189, 1191 (No. 92-1891, 1995); Pitt -Des Moines, Inc. , 16 BNA OSHC 1429, 1433 (No.
90-1349, 1993) (“The Commission has long recognized that standards will in some
instances, require some creativity on the part of employers to achieve compliance.”) I find
that Respondents made no effort to achieve compliance with the fall protection standards.
The record demonstrates that Respondents simply ignored their obligation to provide fall
protection when planning work at the Excelsior Two site.

Respondents attempted to support their lack of action by eliciting testimony
from lay witnesses which indicated that the methods involved in Respondents’ type of
work had not changed since the 1960's, and that there were no available methods of fall
protection (Tr. 2935-38, 2952-53, 2957, 3016, 3057-58, 3062, 3130, 3280, 3790).
Respondents' lay witnesses testified, on the basis of their construction experience, that
wooden form work (i.e., column forms, legs, stringers, ribs) could not provide an
adequate anchorage point for a personal fall arrest system.

They testified that safety
nets could not be used in their "four-day pouring cycle" because supporting base plates
could not be installed in the concrete floors until the concrete had cured for 28 days.
Respondents' witnesses also testified that guardrails attached to column rebar must be
removed when the column is framed, and that guardrails cannot otherwise be installed.

I am unable to give weight to the testimony of Respondents’ lay witnesses.
The witnesses’ opinions were offered without any supporting scientific or professional
data or tests (Tr. 3121-23, 3308, 3405, 3520, 3523, 3565, 3700, 3748-50, 3858-59). Also,
these witnesses were unfamiliar with OSHA’s fall protection standards (Tr. 3115-17,
3121, 3240, 3370-7, 3405, 3407-09, 3497, 3502-03, 3572-73, 3590-92, 3597, 3636-37,
3693, 3747-48, 3833-34, 3837, 3853-55). I find that the Secretary’s expert rebuttal
witnesses refuted each of the contentions of Respondents’ witnesses. See discussion infra .
I also find that, because the language of the fall protection standards is precise,
Respondents’ attempt to use its witnesses testimony as evidence of industry custom and
practice is of no consequence. See Superior Rigging & Erecting, Docket No 96-0126
(April 5, 2000) and cases cited therein (industry custom and practice are not relevant
where the language of a standard, as defined by its legislative history, is clear and
unambiguous).

EVALUATION OF EXPERT WITNESS TESTIMONY

In evaluating any witness testimony Fed. R. Evid. 104(a) requires that I
make a preliminary determination concerning the qualification of a person to be a
witness, and the admissibility of evidence. When presented with the proffer of expert
testimony before admitting or excluding such testimony a preliminary determination
governed by Fed. R. Evid. 702 must be made. This rule contains three major
requirements: (1) the proffered witness must qualify as an expert by knowledge, skill,
experience, training, or education; (2) the expert must testify to scientific, technical or
specialized knowledge; and (3) the expert’s testimony must assist the trier of fact

This
preliminary task ensures that the expert testimony meets a minimum threshold resting on
a reliable foundation and is relevant. In Daubert v. Merrell Dow Pharmaceuticals, Inc. ,
509 U.S. 579, 595, 113 S. Ct. 2786, 2795-96 (1993), the Supreme Court provided a
framework for judges to use when deciding whether to admit expert testimony pursuant to
Rule 702. The “Daubert test” established a gatekeeping role for trial judges that requires
them to determine the relevance and reliability of scientific expert testimony before
allowing its admission. Id. at 597

. The Supreme Court confirmed in Kumbo Tire Co. v.
Carmichael , 526 U.S. 137 , 119 S.Ct 1167 (1999) , that the Daubert inquiry is not limited
to scientific experts, held that courts have an obligation to fulfill their Daubert
gatekeeping responsibilities with regard to all expert testimony whether based on
scientific or nonscientific knowledge. ( See also In re Paoli Railroad Yard PCB
Litigation, 35 F.3d 717 (3d Cir. 1994), cert. denied, 115 S. Ct. 1253 (1995).

Respondents have also attempted to show the infeasibility of fall protection
through the testimony of Leo DeBobes, an expert witness . DeBobes is a certified safety
professional who is involved in the recognition, identification, and control of safety
hazards. DeBobes has a Bachelor of Science degree from the New York Institute of
Technology, and a Masters degree in Occupational Safety and Health from New York
University (1985). He is also a certified hazard control manager. DeBobes is certified by
New York as a workplace loss prevention consultant. He is a member of American
Society of Safety Engineers, the American Industrial Hygiene Association, and the
National Safety Council He has received an award from the American Society of Safety
Engineers (Tr. 3917-18). DeBobes began working in construction safety in 1977. He
initially worked as a safety inspector, moved up to senior inspector, and eventualy
supervised a group of inspectors at the Shore Nuclear Power Station - probably the largest
construction project on Long Island. From there, he began work as a safety administrator
for Estee Lauder. He then went to United Technologies Corp., becoming the manager of
occupational safety and health engineering, a job in which he was responsible for multiple
facilities. DeBobes subsequently worked as project engineer responsible for construction
safety at Brook Haven National Laboratory. He later was Assistant Director, and then
Director, of Environmental Health and Safety for the State University of New York at
Stony Brook. DeBobes then served as head of Brook Haven National Laboratory’s
environment, safety and health program (Tr. 3918-19). As a consultant, DeBobes has
worked primarily for attorneys, performing forensic work. DeBobes returned to Stony
Brook this past April, and is now on special assignment at Stony Brook with
responsibility for a number of areas (Tr. 3917-20, 3938-39).

Although DeBobes possesses general expertise in professional safety, he
has no specialized knowledge in that aspect of professional safety relevant to this case:
the feasibility of fall protection on high-rise concrete construction projects. Thus, I find
that his testimony is entitled to little weight. DeBobes’ experience on poured-in-place,
high-rise construction projects is limited to one project during the years 1977-81 (Tr.
3929-31, 4038).

DeBobes acknowledged that he has never designed a fall protection
system or a personal fall arrest system for a multi-story, poured-in-place structure, or
assessed the structural integrity of anchorage (Tr. 3938-39). DeBobes also said that he has
never talked to anyone who has designed anchor points for harnesses or belts for high-rise, poured-in-place concrete structures (Tr. 4037). Finally, although DeBobes testified
that he has read professional journals which address fall protection on high-rise, poured-in-place concrete structures, he was not able to recall the names of any of these journals
(Tr. 3932). I find that DeBobes’ lack of knowledge regarding the evaluation of fall
protection systems on high-rise structures is critical, and greatly reduces the weight of his
testimony.       I also find that DeBobes’ testimony regarding the feasibility of fall
protection systems at the Excelsior Two worksite is entitled to little weight for a number
of other reasons. DeBobes acknowledged that the only safety professional with whom he
has discussed any of his opinions regarding fall protection on poured-in-place, high-rise
concrete construction is Joe Rufulo, an in-court advisor to Respondents. DeBobes
testified that he had also talked to a second individual, whom he could not identify. This
person had been referred to him by Mr. Rufulo and Respondents’ counsel. He testified
that this person gave him no real information with regard to any of his inquiries (Tr.
3929- 36). I find that DeBobes’ discussions with Rufalo and the unnamed individual
were, at most, Respondents’ attempts to educate DeBobes in the area of fall protection on
high-rise buildings, and that these discussions do not strengthen his testimony.

I also note that DeBobes’ opinions were not based upon any professional
studies of or personal experience with reinforced concrete high-rise construction.
DeBobes acknowledged that his opinion regarding the feasibility of nets at the Excelsior
Two worksite had nothing to do with discussions he had with anyone in the business of
installing or moving nets (Tr. 4080-81). He also testified that he had relied upon ANSI
(American National Standards Institute) standard A10.9 in formulating his opinions, and
testified regarding his interpretation of this standard (Tr.3958, 3989, 4024). However,
DeBobes did not discuss his interpretation with anyone knowledgeable about the
standard.

DeBobes also testified regarding his interpretation of several other OSHA
standards (Tr. 3070-72, 3978, 4000). Again, DeBobes never discussed his interpretations
with anyone from OSHA, or with any other safety professional. He also acknowledged
that he knew of no literature which supported his interpretations (Tr. 3935-36, 4041,
4038, 4051, 4079).

Finally, I note that much of DeBobes’ testimony was not even relevant. The
issue here is whether fall protection was feasible. DeBobes’ testimony consisted for the
most part of his interpretations of various OSHA terms, such as “leading edge” and
“anchorage points.” This testimony was not relevant, and would have been properly
excluded.

Although I find that even DeBobes’ uncontradicted testimony does not
establish the affirmative defense of infeasibility and/or impossibility, I think it is
important to comment upon the testimony of the expert witnesses whom the Secretary
introduced on rebuttal. This testimony was very credible, and provides further support for
my finding that Respondents have not established an infeasibility defense.

Matthew J. Burkart, a professional engineer, and Daniel Paine, a fall
protection consultant with forty years of experience in the business, provided expert
testimony regarding the feasibility of conventional fall protection at the Excelsior Two
project. I find that the testimony of both Burkart and Paine is reliable and relevant.

Burkart is a consulting engineer whose firm has been providing engineering services in
various capacities since 1975.

Burkart has a degree in civil engineering and previously
worked as a union carpenter with reinforced concrete form work (Tr. 4444, 4447). His
college course work in engineering included nine to twelve semester hours devoted to
reinforced concrete (Tr. 4450). Burkart's consulting firm is engaged in, among other
things, construction management services which include "manag[ing] the entire
construction site, from working with the owner in the design phase through the
management construction and final completion." (Tr. 4446-47) His company has
provided consulting services for companies performing reinforced concrete construction
(Tr. 4448-50). Most recently, his company designed a fall protection system on a
reinforced concrete structure.

Almost all of the reinforced concrete structures that he
has seen or worked on as an engineer have been multi-storied (Tr. 4462-63). Burkart's
firm also provides safety training to contractors, and Burkart has lectured at technical and
professional seminars around the world on the subject of construction safety (Tr. 4446,
4452). Burkart has served on ANSI committees and is a member of the American
Concrete Institute and other professional organizations (Tr. 4450-51).

Burkart has taught
a fall protection seminar and has advised contractors on fall protection systems (Tr. 4448-49, 4456).

Burkart testified that concrete generally achieves 90% of its ultimate
strength in 28 days; however, contractors do not have to wait 28 days before anchorages
or straps can be imbedded in the concrete (i.e., for personal fall arrest systems) or before
base plates can be installed to support safety net systems (Tr. 4483-84). The
manufacturer of the base plates, straps or anchorages will specify the degree of strength
required by the concrete to support the devices, and that required strength may be
achieved within several days (Tr. 4482).

If the required strength cannot be achieved
within the time frame desired by the contractor, the contractor can accelerate the curing
time of the concrete by modifying the composition of the concrete (i.e., the ratio of
cement, sand, gravel and water) or by placing additives in the concrete mix (Tr. 4474-76,
4478-79; Ex. C-112). Alternatively, the contractor could use larger base plates or
anchorages which would distribute support for the intended load over a larger area, which
would require a lower compressive strength in the concrete and reduce the curing time
(Tr. 4482-84).

Burkart also testified that contractors are required to design form work to
withstand all anticipated vertical and lateral loads (Tr. 4486-88).

The desired support
for lateral loads can be achieved through diagonal bracing within the shoring system (i.e.,
along the wood vertical shores or legs) (Tr. 4488-89, 4507-08). By increasing the size or
number of diagonal braces, the lateral load-bearing capability of the form work would
increase by distributing the load throughout the structure (Tr. 4489).

Finally, Burkart testified that a guardrail system could have been installed
on the plywood deck at the Excelsior Two Project by extending the stringers beyond the
spandrel beam and attaching metal brackets to support uprights to which the guardrails
would be affixed (Tr. 4494-95). Mr. Burkart has observed the installation of such
guardrail systems in conjunction with the building of the plywood deck (Tr. 4493-94).
The employees engaged in the installation of the guardrail system could be protected by a
"fall restraint system" consisting of a fixed line attached to a lanyard which would limit
the distance that an employee could travel and prevent the employee from falling from the
edge of the structure during erection of the guardrails (Tr. 4491-92, 4495-96). The fall
restraint system could be anchored to various structures (i.e., the plywood deck itself, a
stringer, a plate, etc.) because "it does not develop significant loads because you're not
allowing the person to fall"(Tr. 4496-97).

Given this additional testimony, I find that
any of the fall protection systems referenced in 29 C.F.R. § 1926.501 could have been
successfully engineered and applied at the Excelsior Two project.

As noted above, Daniel Paine also testified as an expert witness. Paine is
the president of a construction safety consulting firm which specializes in the
development of fall protection systems in "every conceivable kind of construction project,
from bridges, dams, high-rise buildings, concrete buildings, structural steel buildings . . .
[j]ust about everything you can think of." (Tr. 4660-61; Ex. C-119). Paine has given
testimony on fall protection in the development of Subpart R (Steel Erection) and Subpart
M (Fall Protection), and has personally served as an expert witness in civil litigation
related to fall protection issues (Tr. 4661-65). For 24 years Paine was the president of
Safety and Industrial Net Company (SINCO), a designer and manufacturer of fall
protection equipment (Tr. 4665). SINCO marketed "different kinds of fall arrest
equipment, fall restraint equipment, guardrail equipment, and safety net equipment." (Tr.
4667). In connection with his consulting work, Paine has visited "hundreds" of poured-in-place, high-rise concrete buildings (Tr. 4672). Paine chaired or was a member of the
ANSI A-10 committees which produced the construction industry fall protection
standards (Tr. 4675-76).

Paine testified that the use of fall protection equipment on construction sites
is a matter for "pre-planning." (Tr. 4693) Before deciding which fall protection systems it
wants to use, the contractor must evaluate factors such as the equipment to be used, the
construction sequence, the curing times of concrete, and the form work (Tr. 4693-94). In
general, contractors use a combination of fall protection systems rather than a single
system (Tr. 4694). In Paine's experience, alternatives to conventional fall protection
methods have only been used where bona fide "leading edge work" was being performed
and employees were only exposed to less substantial interior falls. Id .

Paine also testified regarding the availability of pre-engineered fall
protection systems and systems which require the contractor and/or its professional
engineer to design the equipment to be used (Tr. 4696-99; Ex. C-120). According to
Paine, "pre-engineered systems" have been tested by the manufacturer to meet specified
criteria and only require the contractor's installation in accordance with the manufacturer's
instructions (Tr. 4696-97). Pre-engineered systems exist for fall arrest, fall restraint, and
guardrails. One of these systems is a tie-off system called "Safety Strap," in which a strap
can be nailed through a plywood deck into a stringer with a three-inch double-headed
nail, or imbedded into concrete as it is poured (Tr. 4697-98, 4701-04).

In addition, Paine testified as to the feasibility of safety net systems. He
said that base plates can be installed in a structure which support a "post holder" - poles
and cables to which the nets are attached (Tr. 4714-16). The base plates can be poured
into the concrete, or bolted to the concrete (Tr. 4715). Paine testified that there are "lots of
different choices" regarding the installation of posts to support safety nets, including a
"clip-on method" and attachment to columns. Id . Safety nets could protect three floors of
a structure at once, including a deck (Tr. 4719-23).

Base plates could be poured into the
concrete every three floors, and the concrete would have 12 days of curing time before
the nets would be moved up again (Tr. 4720, 4722-24, 4727-28, 4734). Using this
procedure on actual worksites, Paine has found that safety nets installed in this fashion
pass the "drop ball test" and that the concrete has achieved a compressive strength of at
least 3,000 psi within a four-day pouring cycle - more than adequate to support base
plates (Tr. 4725-26, 4729-34).

Paine concluded that all of the fall protection options outlined in 29 C.F.R.
§ 1926.501 were feasible at the Excelsior Two worksite. In his opinion, it would also
have been feasible to have "retro fit[ted]" fall protection devices on the structure as it
existed at the start of the OSHA inspection, even in the absence of any "pre-planning" on
the part of the Respondents (Tr. 4747-48).

For the reasons discussed supra , Respondents also cannot establish the
affirmative defense of "greater hazard." To establish this defense, Respondents must
show: (1) that the hazards created by complying with the standard are greater than those
of noncompliance, (2) other methods of protecting their employees from hazards were
unavailable, and (3) a variance is unavailable or that application for a variance is
inappropriate. Spancrete Northeast,Inc., 15 BNA OSHC 1020, 1022 (No. 86-521, 1991).
Here, the record does not show that Respondents applied for a variance or that applying
for a variance was inappropriate. Additionally, Respondents have made none of the other
showings. As noted by the Secretary, Respondents’ claim that the hazards of complying
with the standard would have been greater than those on noncompliance assumes that
lanyards would have been strewn haphazardly across the floor, causing tripping hazards,
and affixed to structures which would be incapable of supporting the worker if he fell.
Such conditions could only exist, however, where, as here, the use of fall protection was
never incorporated into job-planning in the first place. I also note that, even in the
absence of personal fall arrest systems or safety harnesses, Respondents still had a duty
under the standard to provide either guardrail systems or safety net systems, which it
failed to do. The Secretary's experts established that numerous fall protection devices,
and combinations thereof, could have been safely installed at the worksite to protect
workers from fatal falls, and that the use of such equipment would not have exposed
workers to hazards.

Citation 2 Item 1

29 C.F.R. § 1926.100(a) Employees working in areas where there is a possible
danger of head injury from impact, or from falling or flying objects, or from electrical
shock and burns, shall be protected by protective helmets.

Instance (a): Fourth Floor, South/East Area:
Eight employees were not wearing head
protection while a crane bucket was passing
overhead, on or about 10/21/97.

Compliance Officer Signorile testified that on October 21, 1997, he
observed a bucket of concrete being lowered onto the top deck. He observed eight
employees not wearing head protection while a bucket of concrete passed fifteen to
twenty feet overhead. The employees were under the bucket waiting to receive the load of
concrete. Signorile was concerned that if the door of the bucket opened, the cement would
fall on top of their heads, causing serious injury. He was also concerned with the
movement of the bucket because, as it was being lowered, it could have struck the
employees. When Signorile called Nick’s attention to the lack of head protection, Nick
said that he provides hats to the workers but the hats fall off the workers’ heads and, in
any event, they do not like to wear them (Tr. 849, 1761; Ex. C-72).

Instance (b) Seventh Floor, West Side Balcony:
Three employees were not wearing head
protection while framing the balcony and crane
loads were passing overhead, on or about
11/18/97.

Signorile testified that, while outside the general contractor’s trailer on
November 18, 1997, he observed a crane load of wooded form work, plywood, and wood
posts go from the east side of the building (where the crane was located) across the entire
top deck to the where three employees were framing the balcony on the west side of the
building. The load swung over the heads of these three individuals as it was being
delivered to an adjacent area (Tr. 853, 1772). Signorile pointed out this condition to Joe
Greco, Tenwood’s Superintendent, and Frank Cataliato, shop steward, who both said that
early in the day they had told these three individuals to tie off and wear their hard hats.
The employees were working on the balcony, which was six to eight feet below the top
deck. The crane passed over them a couple of times as it was maneuvering to unload the
material. Signorile believed that if the sling of the crane gave way, the material would
drop on the employees’ heads and cause serious injury (Tr. 854-55).

Instance (c): Seventh Floor, East Side Area:
Employees were not wearing head protection
while steel material was being unloaded from a
crane, on or about 11/24/97.

Signorile testified that on November 24, 1997 he observed, on video tape,
employees not wearing head protection while working under loads of steel material (steel
rebars and steel clamps ) being delivered by crane. Bill Saites, who wore a cloth cap and
no hard hat, was directly under the load (Tr. 855). As he viewed the videotape, Signorile
counted four employees without head protection. He showed Bill the video, and Bill
identified the employees as Avcon employees. In response to Signorile’s question
regarding his lack of head protection, Bill said “don’t worry about my head, worry about
yours.”(Tr. 855-56). Signorile noted that if the sling carrying the materials gave way, Bill
and the employees would likely suffer serious injuries because they were right under the
loads (Tr. 857, 1100-02; Ex. C-101).

Instance (d): Eighth Floor, East Side Area:
Employees framing the floor were not wearing
head protection while loads of steel and wood
were being unloaded from a crane, on or about
11/24/97.

On November 24, 1997, Signorile observed on video tape loads of steel
rebar, wood posts, and plywood were being delivered by crane to the center of the eighth
floor. Four (4) employees were framing that floor and unloading the material. These
employees were exposed to the loads, which swung over their heads as they were lowered
onto the floor. One of the exposed employees was the carpenter foreman, Dominic
Paniscotti (Tr. 857-59,1103-05; Ex. 101). Foremen identified the other employees as
Avcon employees (Tr. 872)

Instance (e): Tenth Floor, East Side: An
employee was not wearing head protection
when stripping form work above his head, on
about 1/7/98.

Signorile observed on video tape an employee at the edge of the floor not
wearing head protection while stripping form work. There was also some stripping
activity directly above this employee’s head, which created a risk that he would be struck
by debris, nails, wood material, hammers, crowbars, or even a sledgehammer (Tr.
870 ,1107-09; Ex. C-101). Georgiana, the general foreman, was standing beside the
employee. Georgiana later identified the employee as an Avcon employee (Tr. 868-69,
1104, 1107; Ex. C-101).

Instance (f): Twelfth Floor, East Side: An
employee was not wearing head protection
when stripping form work above his head, on or
about 1/7/98.

Signorile observed on video tape two employees stripping the bottom of the
13th floor using sledge hammers or crow bars . The material that was being removed
consisted of wood poles and plywood, and some of this material contained nails. One of
the employees wore no head protection. Georgiana later identified this individual as an
Avcon employee (Tr. 871-72, 1792-94, 1104, Ex. C-101).        

With regard to each of the instances just described, I find that the cited
standard applies because Respondents were involved in construction. Respondents
contend that the Secretary’s photographs and video tapes did not show actual overhead
exposure in any of the cited instances. (Respondents’ Post-Trial Brief, pp.108-113).
However, in Adams Steel Erection, Inc. , 766 F.2d 804, 12 BNA OSHC 1393, 1398 (3d.
Cir., 1985), the court examined the plain language and purpose of this standard. The
Third Circuit, relying upon the legislative history of the Act, recognized that “death and
disability prevention is the primary intent” of the Act. (citations omitted). The Third
Circuit continued: “requiring that the Secretary observe an employee being directly
exposed to a hazard, such as falling objects, is regressive; it offers protection too late to
prevent injury.”The Third Circuit articulated a test that requires proof of an “access to
zone of danger,”

rather than an “actual exposure” test. Thus, the Secretary need only
prove that employees have access to an area of potential danger . Id. at 1399.

As noted above, the standard requires hard hats to guard against possible
impact, including falling objects. I find that in each of the cited instances, the employees
were exposed to possible impact or falling objects. For example, certain employees could
have been hit by buckets of wet cement. Other employees could have been hit by the
crane bucket, which could have swung into the side of someone’s head (Tr. 476-68).
Nails and parts of wood could have fallen on employees who were stripping above their
heads. Employees who were on the deck while various materials were being moved, such
as rebar, could have been hit by these materials. Finally, employees who were charged
with unhooking loads could have been hit by a swinging hook. Given these instances of
employee exposure to possible impact or falling objects, I find that the Secretary has
established violations of the standard. I also find that the Secretary has established that
Respondents knew of the violative conditions, because all of the cited instances were
obvious and discernible by mere observation. Further, the violations were appropriately
classified as serious, given that the injuries which might have resulted from these
violations were concussions and severe lacerations (Tr. 874-76).

Willfulness

The Secretary argues that the violations were willful because Respondents
knew of the requirements of the standard and were aware of the cited conditions and
failed to correct or eliminate employee exposure. The Secretary contends that Bill and
Nick were familiar with the regulation, noting that their other companies had been
previously cited under the same standards. The previous citations had been settled, and
final orders had been entered (Tr. 358, 362-63, 366-69, 372, 375, 378-81, 383-84).
Additionally, the Secretary points to the fact that management was not wearing head
protection (Tr. 876). This violation continued during the inspection, and persisted despite
the fact that a sign had been posted at the entrance of the jobsite indicating that a hard hat
was required on the jobsite. Another sign was present at the entrance to the building
which was being constructed (Tr. 877-79; Ex. C-86).

The record indicates that Respondents had a company policy which
required that hard hats be worn at all times while on the jobsite. Management constantly
enforced this rule through oral reprimands, and even fired one employee for violating the
rule (Tr.2240-42, 2950, 3021-22, 3095, 3322-23, 3798, 3815). A supply of hard hats was
kept on the job, and sometimes employees were given more than one hat because hard
hats were always falling off. Although Bill may have yelled for everyone to put on their
hard hats upon OSHA’s arrival, the video taped evidence recorded while OSHA was
offsite demonstrates that hard hats were routinely used on the jobsite (Tr.1499-50; Ex. C-101). Although I find that Bill’s interpretation of what constituted an overhead hazard for
employees unloading material from the sling hooks of the crane was erroneous, I also find
that his actions did not show an obstinate refusal to comply with the standard or a plain
indifference to employee safety (Tr. 4182-83, 4208-13).

My finding is also supported by Nick’s testimony, in which he described
how materials are landed on the deck and explained how the signal man warns workers
that the concrete bucket is coming and that they should get out of the way (Tr. 2132,
2692-96). I note that the foreman observed without a hard hat was engaged in activity
similar to that described by Nick (Tr. 1103-04; Ex. C-101). The evidence also indicates
that management was constantly monitoring for hard hats which may have fallen off as a
result of the employees’ frequent bending (Tr. 2948-49, 3102-03, 3094, 3473, 3601,
3683, 3815, 3864).

Based on the video and photographic evidence, and the testimony of
Respondents’ witnesses, I find that Respondents made a good faith effort to comply with
the standard, albeit not entirely effective or complete effort.

I therefore find that these
violative conditions were not caused by plain indifference to, or intentional disregard of,
employee safety. Neither were they the result of an obstinate refusal to comply with
safety and health requirements. In conclusion, I find that the Secretary has not
established by a preponderance of the evidence that the violations were willful.

Penalty

I find that a penalty in the amount of $5,600.00 is appropriate. This penalty
is based upon the fact that the maximum penalty for a serious penalty is $7,000.00. I
believe that the gravity of this violation reflects that the severity was moderate: injuries
requiring hospitalization could be expected; but the probability of an event was low
because of the manner in which employees worked, especially given the precautions that
were taken as loads were brought up on the deck. This penalty has been adjusted for size.
There is no adjustment for history because Respondents had previously been issued
similar citations (Tr. 485)

. With regard to good faith, none was credited because
management was involved in the violations.

Citation 1, Item 1a

2 9 C.F.R. § 1910.1200(e)(1): Employers shall develop, implement, and maintain
at each workplace, a written hazard communication program which at least describes how
the criteria specified in paragraphs (f), (g), and (h) of this section for labels and other
forms of warning, material safety data sheets, and employee information and training will
be met (Construction Reference §1926.59):

Jobsite: Employees were handling hazardous chemicals
including, but not limited to, gasoline, oxygen, acetylene and
propane. The employer did not have a written hazardous
communication program specific to this company, and they
did not implement employee training. This violation occurred
on or about 10/9/97.

Signorile testified that on his first day of the inspection he asked Nick for
their written hazard communication program. Nick did not produce a program until a
week or two later (Tr. 917). Signorile evaluated this program and found it was
inadequate. The program he was given was under the company name Astro, and it did
not have a list of all of the chemicals which Avcon had on site. Oxygen, acetylene,
propane, and gasoline were present at the Excelsior Two site, and none of these chemicals
were listed in the program which Nick gave him (Tr. 918, 1326-27, 1329-30). It is
undisputed that Respondents’ employees used gasoline, oxygen and acetylene and
propane (Tr. 1329, 2322). Nick’s statements concerning the existence of a hazard
communication program indicate that through the exercise of reasonable diligence the
deficiencies in this program could have been discovered (Tr. 2322-23). I find that the
Secretary has met her burden of proof. The Respondents have not produced any evidence
to rebut the Secretary’s case. (Tr. 2322-23)

Citation 1, Item 1b

29 C.F.R. § 1910.1200(h)(1): Employers shall provide employees with effective
information and training on hazardous chemicals in their work area at the time of their
initial assignment, and whenever a new physical or health hazard the employees have not
previously been trained about is introduced into their work area. Information and training
may be designed to cover categories of hazards (e.g., flammability, carcinogenicity) or
specific chemicals. Chemical-specific information must always be available through
labels and material safety data sheets.

Jobsite: Employees were handling hazardous chemicals including, but not                        limited to, gasoline, oxygen, acetylene and propane, and they had not been                        provided the required information and training, on or about 10/9/97.

Signorile observed employees in the area where oxygen and acetylene
cylinders were stored. B ased upon his interviews with employees , including an
ironworker and a shop steward, he determined that there had been no training for the
chemicals. Nick also stated that they had not done any training on-site (Tr. 921, 1329-30,
1344, 1347-48). Nick’s statements show that Respondents were aware of this condition
(Tr. 1330). I find that the Secretary has met her burden of proof. The Respondents have
not produced any evidence to rebut the Secretary’s case (Tr. 2322-23) .

Classification and Penalty

Items 1a and 1b were grouped and classified as serious because the lack of
information in Respondents’ program could have resulted in employee exposure to an
unsafe condition. First and second degree burns would likely have resulted had there been
an explosion involving chemicals (Tr. 919, 921-22). The proposed penalty reflects a low
gravity violation. Severity was low because no hospitalization was expected from the
expected injuries. There was a lesser probability of the occurrence of an event. The
proposed penalty reflects as adjustment for size.

In light of these factors, I find that the
proposed penalty of $900.00 is appropriate.

Citation 1 Item 2

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

Throughout Jobsite: An adequate safety and health program
was not initiated and maintained by the employer. This was
evidenced by the lack of use of fall arrest and head protection
by employees, including management; improperly guarded
floor holes; unsecured ladders; improperly stored compressed
gases; and poor housekeeping; on or about 10/9/97.

The Secretary determined that Respondents did not have an accident
prevention program, noting deficiencies such as the lack of a fall protection program and
the lack of hard hats. Management was observed watching employees violate OSHA
standards and took no action. Management employees were also observed exposing
themselves to fall hazards and not wearing hard hats, which further indicated that there
was no program to bring workers into compliance with fall protection standards (Tr. 450-51, 923).        Respondents contend that they had a safety program which was provided to
and discussed with all foremen. Respondents contend that the shop stewards discussed
aspects of the safety program with employees daily, and on a one-to-one basis (Tr. 2327;
Ex. C-6)

.

“The Commission has held that, under § 1925.20(b)(1), an employer may
reasonably be expected to conform its safety program to known duties and that a safety
program must include those measures for detecting and correcting hazards which a
reasonably prudent employer similarly situated would adopt.” Northwood Stone &
Asphalt, Inc., 16 OSHC BNA 2097, 2099 (No. 91-3409, 1994), citing J. A. Jones Constr.
Co., supra. at 2206. In the present case, the evidence shows that Respondents’ program
failed to meet these requirements. Respondents’ claim that it had an adequate safety
program run by knowledgeable supervisory personnel is without merit. The record
indicates that Respondents’ program was not communicated to employees in a manner
which let the employees know what precautions to take when they encountered
potentially dangerous situations. General instructions, such as “be safe”or “think safe,”
fall short of the standard’s requirements (Tr. 2946-47, 3118, 3245, 3397-3403, 3446,
3497).

I note that, although the evidence relied on by the Secretary concerns
alleged violations of other, specific standards, this does not preclude a citation under
§ 1926.20(b)(1). J. A. Jones Constr. Co. , at 2207-08. The fact that the Secretary has
demonstrated that the violations occurred is sufficient to support the citation.

Classification and Penalty

The violation was appropriately classified as serious because injuries
ranging from multiple injuries to death could have been expected if an employee fell off a
building or was struck in the head. The proposed penalty reflects a high gravity violation.
The severity was high because the expected injuries were serious; the probability was
great considering all the hazards on site: the lack of fall protection, hazardous materials,
compressed gases, and the lack of hard hats (Tr. 925). Given these factors, I find that the
proposed penalty of $ 3,000.00 is appropriate.

Citation 1 Item 3

29 C.F.R. § 1926.25(a) During the course of construction, alteration, or repairs,
form and scrap lumber with protruding nails, and all other debris, shall be kept cleared
from work areas, passageways, and stairs, in and around buildings or other structures.

Respondents claim that this standard is inapplicable because the wooden
form work was “work in progress.” Respondents allege that the cited material was
temporarily resting on the floor before it was picked up, de-nailed, and stacked for future
use. Respondents direct my attention to Webster’s Seventh New Collegiate Dictionary,
which defines the term “debris” as “ruins.” (Respondents’ Post-Trial Brief, p. 114; Tr.
2334-39, 2346-48, 2358).

§ 1926.25(a) is concerned with housekeeping on construction sites, and
requires that form and scrap lumber with protruding nails, and other debris, be kept
cleared in work areas, as well as in walkways. In Capform, Inc. 16 BNA OSHC 2040
(No. 91-1613, 1994), citing precedent set forth in Gallo Mechanical Contractors, 9 BNA
OSHC 1178, 1180 (No.76-4371, 1980), the Commission found that the relevant standard
applied to a condition similar to that involved in the present case (In Capform , reusable
lumber that was lying about was found to be "debris" ). In Gallo the Commission
examined the meaning of "debris," and held that the "[h]azards of tripping and falling,
possibly resulting in sprains, fractures, and even concussions, can occur if matter is
scattered about working or walking areas. . . . Accordingly, "debris" within the meaning
of section 1926.25(a) includes material that is scattered about working or walking areas.
Whether the material has been used in the past or can or will be used in the future is
irrelevant.” Id. at 1180 (Emphasis added) .

Given these cases, I find that Respondents’ wooden form work can be
considered “debris” within the meaning of § 1926.25(a). I also find that Respondents
violated § 1926.25(a) by failing to clear wooden form work from the Excelsior Two site.
My findings are supported by photographic evidence and the compliance officer's
testimony, both of which indicate that wood was scattered about areas in which
employees worked or walked, exposing these employees to the hazards of tripping and
falling. I note that Respondents do not deny knowledge of the cited conditions, which
were readily apparent during inspections of the jobsite.

Next, I will specifically address each of the instances in which Respondents
were found to have violated § 1926.25(a).

Instance (a) Ground Level and Second Floor: Wood debris
was scattered on the floor and walkways creating a tripping
hazard, on or about 10/9/97.

Signorile testified that he observed plywood, wood post plywood with nails,
and aluminum posts at the ground level. These items were in the vicinity of a ladder just
outside the general contractor’s trailer, a ladder which the employees used to go to the
second floor. On the second floor, a stripping floor, there was similar debris scattered
throughout areas where employees were walking and working. There was no clear
walkway or work area on that floor (Tr. 926-27, 929, 931; Ex. C-55: ground level - ladder
was a few feet away from the right side of the photo).

Instance (b) Third Floor, North/East Area: Wood debris was
scattered over the floor and walkways creating a tripping
hazard, on or about 10/21/97.

Signorile observed debris, wood debris, poles, and plywood in the walkway
and work areas of the third floor. One employee was observed cutting forms for the
building, and there was debris - numerous small pieces - in the area where he was
working. Another employee was observed walking in this area. The shop steward and
foreman identified the employees as Avcon employees (Tr. 933-36, 1399; Ex. C-56 and
C-57). Two other employees were observed working in an area full of debris, in this case
wood posts and plywood. The shop steward identified them as Avcon employees (Tr.
936, 1400; Ex. C-57).

Instance (c) Eighth Floor, West Area by elevator shaft: Wood
debris was scattered over the floor and walkways creating a
tripping hazard, on or about 12/8/97.

Signorile and Peist testified that in the area by the elevator shaft they saw
wooden debris - wood material, wood, posters, plywood, and nails and poles - scattered
over the floor and walkways, creating a tripping hazard (Tr. 453, 939; 1073 1409; Ex. C-101). They observed employees stripping some areas, and some employees were using
ladders in the elevator shaft to go to the floor above. There was no walkway clear of
debris, and employees had to climb over the debris (Tr. 453). Further, there was no other
stairway or ladder way through which employees had access to this floor (Tr. 454). Bill
Saites was observed walking over the debris, wood posts, and plywood when he came
over to speak to the compliance officers. Bill identified the employees working in the
eighth floor, west area as Avcon employees (Tr. 940, 1075-76; Ex. C-101).

Instance (d): Thirteenth Floor, East Area: Wood debris was
scattered all over the floor creating a tripping hazard, on or
about 1/7/98.

Lorraine Cianfrone, an Avcon carpenter, was observed covering holes on
the thirteenth floor on January 7, 1998. Wooden debris was scattered over the floor where
she was working, creating a tripping hazard (Tr. 942-43, 1410-12, 1428; Ex. C-73).

Classification and Penalty

The citation was classified as serious because the employees had to step
over debris, and could have tripped and fallen. Because the form work contained
protruding nails, the employees could have suffered cuts, bruises, or lacerations. (Tr. 930,
938, 941, 943). The penalty for these items was grouped. The gravity of the violation was
low. The severity was low because the injuries would not have required hospitalization,
and the probability of an incident was lesser (Tr. 932). In light of these factors, I find that
the proposed penalty of $900.00 is appropriate.

Citation 1 Item 4

29 C.F.R. § 1926.28(a): The employer is responsible for requiring the wearing of
appropriate personal protective equipment in all operations where there is an exposure to
hazardous conditions or where this part indicates the need for using such equipment to
reduce the hazards to the employees.

12 th Floor, East Side Area: Two employees were not wearing
eye protection as required by 29 C.F.R. § 1926.102(a) while
stripping floors, on or about 1/7/98.

Two employees were observed on video stripping the twelfth floor ceiling
on January 7, 1998. The employees were using a sledgehammer or crowbar to bring down
debris, wood, posts, and nails. They wore no eye protection, and thus were at risk for
debris falling into their eyes (Tr. 944, 1077-78; Ex. C-101). Assistant Area Director Peist
testified that eye protection was required because there was a “possibility of material
entering the eye” (Tr. 486).

Respondents contend that their safety program did not require eye
protection for this type of operation, and that in their industry goggles are not required for
stripping. Additionally, they contend that because the stripping bar was more than four
feet long and the wood being stripped was at least four feet away from the employee,
there was a safe distance between the employee and the falling debris (Tr. 2374-81; Ex.
C-6).

Under § 1926.28(a), the Secretary has the burden of showing that a
hazardous condition was present and that another standard put the employer on notice that
personal protective equipment would reduce the risk to employees. L.E. Myers Co., High
Voltage Sys. Div., 12 BNA OSHC 1609, 1619, (No. 82-1137, 1986), aff’d in relevant
part , 818 F. 2d 1270, 1275 [13 BNA OSHC 1289], cert. denied, 484 U.S. 989 13 BNA
OSHC 1531. At issue here is whether the Secretary has established that
Respondents’ employees were exposed to a hazardous condition because they did not
wear safety goggles when they stripped materials from overhead. In determining whether
Respondents should have been aware of the existence of a hazard requiring it to use
protective equipment, Commission precedent requires us to look at the “well-established
principle that a broad regulation must be interpreted in light of the conduct to which it is
being applied, and external, objective criteria, including the knowledge and perceptions of
a reasonable person, may be used to give meaning to such a regulation in a particular
situation (citations omitted). The Secretary must show more than the mere possibility of
or a potential for injury, but a ‘significant risk of harm.’ (citation omitted). Significant
risk may be shown by evidence of injury rates, expert and lay opinion testimony,
evidence of industry custom and practice (citation omitted).” Andrew Catapano
Enterprises, Inc., 17 BNA OSHC 1776, 1782 (No. 90-0050, et al, 1996).

I find that the Secretary has not shown what a reasonable person familiar
with industry practices would have done in this situation, and that she has not met her
burden of proving that Respondents’ employees were exposed to “significant risk of
harm.” I specifically find that Peist’s testimony regarding the need for eye protection does
not, in itself, meet this burden of proof. In addition, my review of the video of this
condition does not persuade me that the Secretary has met her burden of proof.
Accordingly, this item is vacated.

Citation 1 Item 5

29 C.F.R. § 1926.153(j) Storage of LPG containers. Storage of LPG (liquefied
petroleum gas) within buildings is prohibited.

Eleventh Floor, Center/East Side: Ten containers of liquefied
petroleum gas (LPG) were stored inside the building, on or
about 1/7/98.

Signorile testified that the LPG containers were in the center and east areas
of the 11th floor. The containers were not in use when he observed them, but they had
been used. (Tr. 948). Signorile learned that there was LPG in the containers from Bill.
Bill indicated that they had used the containers a couple of weeks earlier, when they had
poured the concrete, because it was cold and they needed to use the propane to dry the
floor after the concrete had been poured. The containers were there in case they had to
use them again (Tr. 949). Signorile observed a few employees in the area cleaning the
floor. These employees were five to six feet toward the west side of the building (Tr.
949).

The cited standard prohibits LPG cylinders within “buildings.” The term
“buildings” is not defined within the standard. Thus, the plain meaning of the term within
the standard must be examined. Merriam-Webster’s Online Collegiate Dictionary (2000)
defines the term “building” as “a usually roofed and walled structure built for permanent
use (as for a dwelling).” I find that, given this definition, the cited standard is
inapplicable to the cited structure, which contained no walls or roof at the time the alleged
violation was observed. The unrefuted evidence establishes that there were only floors
and columns present (Tr. 2382). Accordingly, this item is vacated.

Citation 1 Item 7

29 C.F.R. § 1926.350(a)(10): Oxygen cylinders in storage shall be separated from
fuel-gas cylinders or combustible materials (especially oil or grease), a minimum distance
of 20 feet (6.1 m) or by a noncombustible barrier at least 5 feet (1.5 m) high having a
fire-resistance rating of at least one-half hour.

Parking Lot: Nine oxygen and three acetylene cylinders were
stored together, on or about 10/9/97.

During his walkaround with Nick and Manino of Tenwood on the first day,
Signorile came across oxygen and acetylene cylinders that were stored together in a
parking lot. T here was neither a noncombustible barrier nor a minimum distance of
twenty feet between the oxygen cylinders and the acetylene cylinders. Signorile testified
that one of the cylinders appeared to have been used, possibly that same day. The
cylinders had gas in them (Tr. 965-68).

OSHA has determined that § 1926.350(a)(10) applies when cylinders are
“in storage,” i.e., when it is reasonably anticipated that gas will not be drawn from the
cylinder within the next twenty-four hours. Whether it is reasonably anticipated that gas
will be drawn within that time frame depends on whether specific welding or cutting
work is planned for that period and the number of gas cylinders expected to be required to
do that work. (See OSHA Standards Interpretation and Compliance Letter , dated
December 31, 1998, titled “Definition of ‘in storage’ and clarification of the requirements
for intermittent use of gas cylinders.”) Although an agency’s interpretation of its own
regulation is entitled to substantial deference so long as it is reasonable, Martin v. OSHRC
(CFI Steel Corp.) 499 U.S. 144 [14 OSHC BNA 2097] (1991), in this case the Secretary
has not produced any evidence regarding Respondents’ intended use of the cylinders
within the relevant twenty-four hour period. I therefore find that the Secretary has not
met her burden of proof, and vacate the citation.

Citation 1 Item 8a

29 C.F.R. § 1926.451(b)(1): Each platform on all working levels of scaffolds shall
be fully planked or decked between the front uprights and the guardrail supports as
follows:

(i) Each platform unit (e.g., scaffold plank, fabricated plank, fabricated deck, or
fabricated platform) shall be installed so that the space between adjacent units and the
space between the platform and the uprights is no more than 1 inch (2.5 cm) wide, except
where the employer can demonstrate that a wider space is necessary (for example, to fit
around uprights when side brackets are used to extend the width of the platform).

(ii) Where the employer makes the demonstration provided for in paragraph
(b)(1)(I) of this section, the platform shall be planked or decked as fully as possible and
the remaining open space between the platform and the uprights shall not exceed 9 ½
inches (24.1 cm).

Second Floor, Elevator Shaft: An employee was working
from a scaffold platform, approximately six feet and five
inches high, that was not fully planked, on or about 10/9/97.

Signorile testified that on October 9, 1997 he observed an employee in the
elevator shaft standing on a platform that was not fully planked. There were two brackets
mounted on the form wall that the employee was building, and on these two brackets was
the one plank on which the employee was working. There was a twenty inch space
between the front of the plank and the wall that was being formed. The plank was six feet
and three-quarters of an inch above the plywood (which acted as a floor) that was
covering the elevator shaft. The platform should have been extended with another plank
back to the wall. Signorile interviewed the employee, who said that he worked for Avcon
(Tr. 971- 972).

The cited standard is applicable.

It is undisputed that the platform was not
fully planked and that the employee was exposed to fall created by the twenty inch
opening. This condition was in plain view, and with the exercise of reasonable diligence
Respondents could have known of the violative condition. The Secretary has proven this
violation by a preponderance of the evidence.

Citation 1 Item 8b

29 C.F.R. § 1926.451(e)(1): When scaffold platforms are more than 2 feet (0.6 m)
above or below a point of access, portable ladders, hook-on ladders, attachable ladders,
stair towers (scaffold stairways/towers), stairway-type ladders (such as ladder stands),
ramps, walkways, integral prefabricated scaffold access, or direct access from another
scaffold, structure, personnel hoist, or similar surface shall be used. Cross braces shall not
be used as a means of access.

Second Floor, Elevator Shaft: A ladder or its equivalent was not provided
for       employee access to the scaffold platform, on or about 10/9/97.

This violation pertains to the same scaffold which was the subject of item
8a. Signorile testified that there were one-half inch wide steel flanges attached to the wall
which the employee was using like steps to get onto the single planked platform on which
he was working (Tr. 974). There was no other means of access to the scaffold platform,
and the employee could have slipped because there was not enough footing to hold him
(Tr. 975). This condition was obvious, and with the exercise of reasonable diligence
Respondents could have known of it. The Secretary has proven this violation by a
preponderance of the evidence.

Classification and Penalty

These items were appropriately classified as serious because an employee
could have fallen into the space between the wall and the plank on which he was
standing. Such an accident would have resulted in serious physical harm. The penalty
reflected a low gravity violation. The severity was low because the expected injuries were
lacerations and cuts requiring no hospitalization; the probability was lesser because the
unlikely possibility of a fall (Tr. 973, 976). Given these factors, I find that the proposed
penalty of $900.00 is appropriate.

Citation 1 Item 10

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

I find that, with respect to each of the cited instances, Avcon employees
were exposed to a fall of six feet or more. These conditions were obvious, and with the
exercise of reasonable diligence Respondents could have known of the violative
conditions.

Instance (a) Second Floor, Ladder Way: Employees were
using ladders that were adjacent to a floor hole that was not
properly guarded, on or about 10/29/97.

Signorile testified that Avcon employees, and other employees, were using
the ladder in the second floor ladder way which was adjacent to a floor hole that was not
properly guarded. Employees could have fallen through this hole while ascending or
descending the ladder. The fall distance from landing to landing was about nine feet. This
was the only way to access the upper floors. Ex. C-69 depicts Bill Saites coming down
the ladder way from the third floor to the second floor. The floor hole opening is on the
right side of the photo (Tr.1049-50). Signorile had advised Bill numerous times to cover
part of the floor hole opening, or put a standard railing around the opening (Tr. 1051).

Instance (b) : Seventh Floor, Elevator Shaft: The open sides
of an elevator shaft were not properly guarded, on or about
11/24/97.

Signorile observed this condition while viewing the video. On the seventh
floor, the open sides of the elevator shaft were not protected in any manner. Employees
used the ladder in the shaft to reach the seventh floor. Signorile also observed on video an
employee at the edge of the elevator shaft. Bill later identified the employee as an Avcon
employee (Tr. 1053). The elevator shaft was approximately twenty feet long and ten feet
wide. There was a nine foot drop from the seventh floor to the lower level (Tr.
1054 ,1091-92; Ex. C-101 ).

Instance (c): Eighth Floor, East Side; Employees
constructing the eighth floor deck were not protected from
falling through six uncovered floor holes, on or about
11/24/97.

Signorile observed this condition while viewing the video. Employees were
framing the eighth floor, and they were walking past openings which measured two feet
by two feet. There was a nine foot drop to the floor below (Tr. 1054-55, 1092-93; Ex. C-101 ). Dominic Paniscotti, the carpenter foreman, was also working on this floor. Bill
Saites was on the seventh floor, in plain view of all workers.

Instance (d): Tenth through Fourteenth Floors: Ladder ways
had holes that were not properly guarded, on or about 1/7/98.

Signorile testified that the ladder ways had floor hole openings that were
not properly guarded. Employees used these ladders to get to and from the floor on
which they worked. There was no other access route to these floors. Employees could
have fallen through the floor hole openings (Tr. 1055-58; Ex. C-70- floor opening of the
ladder way on the tenth floor, Ex. C-71- floor opening of the ladder way on the thirteenth
floor).

Classification and Penalty

These violations were properly classified as serious because employees
could have fallen through the openings and suffered fractures and lacerations. The gravity
of the violation was high. The severity was high because injuries resulting in fractures
and lacerations were expected from such falls. The probability for falls was greater due
to the fact that these ladder ways were the only means of moving from floor to floor
(Tr.1052, 1054, 1055 1058). For these reasons, I find that the proposed penalty of
$3,000.00 is appropriate.

Citation 1 Item 11

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

Second Floor, Elevator Shaft: Plywood covers for the elevator floor
openings were           not secured, on or about 10/9/97.

Signorile testified that the employee who was at the elevator shaft on the
scaffolding (Items 8a and 8b above) was working over a piece of plywood laid over
timbers. The plywood was eight feet long by four feet wide, and it was not secure. When
Signorile brought this condition to Nick’s attention, he had the Avcon employees nail
down the plywood. Signorile believed that if the employee had fallen off of the single
plank that he was standing on, the plywood would have opened up and the employee
would have fallen through (Tr. 1058-59). However, Respondent presented unrebutted

testimony that the plank was on top of four by fours which spanned the shaft (Tr.
2448). Respondent also presented unrebutted testimony that the plywood had been
secured by nails, and that Avcon employees inserted additional nails only because
Signorile did not believe that the plywood was secure enough. I find that the record does
not contain evidence sufficient to meet the Secretary’s burden of proof (Tr. 1058-59,
1721-23, 2446-47). I specifically find that the evidence does not support Signorile’s
conclusion that the plywood plank was not adequately secured. Accordingly, this item is
vacated.

Citation 1 Item 12

29 C.F.R. § 1926.701(b): All protruding reinforcing steel, onto and into which
employees could fall, shall be guarded to eliminate the hazard of impalement.

Instance (a): Column 28: Employees were exposed to falling
onto vertical protruding rebars while going up or down a
wood ladder from the first to the second floor, on or about
10/9/97.

Signorile testified that on his first day of inspection he noticed that
employees were exposed to falls onto vertical protruding rebars when going up or down a
wooden ladder from the first to the second floor (Tr. 1060). On that day, the ladder was
the only way to move between floors. The protruding rebars were about thirty inches high
and about three feet from the bottom of the ladder (Tr. 1061-62; Ex. C-55). The Review
Commission has held that, “[a]ccess to unguarded rebars exists if there is a ‘reasonable
predictability’ that employees ‘will be, are, or have been in’ the ‘zone of danger.’”
Kokosing Construction Co., Inc., 17 BNA OSHC 1869, 1870 (No. 92-2596, 1996), citing
Capform, Inc. 16 BNA OSHC 2020, 2041 (No. 91-1613, 1994). I find that the
photographs and testimony adequately establish that employees had access to the danger
of unguarded rebars. The conspicuous location of the unguarded rebars warrants a finding
that Respondents had constructive knowledge of their presence . Respondents could have
ascertained the existence of the cited condition through the exercise of reasonable care.

Instance (b): Seventh Floor, West Area: Two employees
hammering excess concrete were exposed to protruding
rebars, on or about 11/24/97.

Two employees were observed on video hammering excess concrete on the
seventh floor, with protruding rebars right in front of them. The two employees were
walking, kneeling down, and leaning over the rebars to remove the excess concrete. Bill
identified the employees as Avcon employees. They were exposed to the hazard of
impalement, which could have resulted had they fallen on top of the rebars ( Tr.1064,
1097-99; Ex. C-101). The record establishes employee access to the unguarded rebars.
The fact that the rebars were conspicuously located and readily observable warrants a
finding that Respondents had constructive knowledge of their presence . Respondents
could have ascertained the existence of the cited condition through the exercise of
reasonable care.

Classification and Penalty

The citation was classified as serious because employees could have fallen
on top of the steel rebars and been impaled, resulting in death or multiple injuries. The
penalty proposed for these grouped items reveals that the gravity was medium. The
severity was high because of the nature of the expected injuries: death or hospitalization
for multiple injuries. The probability was lesser because it was not likely that an
employee would have fallen (Tr. 1062, 1064). For these reasons, I find that the proposed
penalty of $1,500.00 is appropriate.

Citation 1 Item 13

29 C.F.R. § 1926.1052(c)(12): Unprotected sides and edges of stairway landings
shall be provided with guardrail systems. Guardrail system criteria are contained in
subpart M of this part.

Ground Level, Inside Building, stairs leading from the upper level to the
lower level of the parking lot: One open side of the stairs was not provided with a guardrail, on or about 10/9/97.

Signorile testified that while he was talking to Frank Cataliato, he observed
an employee, who Cataliato identified as Avcon’s crane operator, use these stairs. One
side of the stairs was open. It is undisputed that the stairs did not have a guard rail and
that, as a result, employees were exposed to a fall hazard on that side. Cataliato told
Signorile that employees used the stairs to go to the parking lot (Tr. 1065, 1741 2454-55).
The conspicuous nature of the violative condition, along with Cataliato’s statement,
establishes employer knowledge. I find that the Secretary has met her burden of
establishing the violation.

I also find that the violation was serious. If an employee fell from the open
side of the stairs, he would have fallen nine to ten feet and most likely would have
sustained multiple injuries. The penalty for the violation reflects the fact that the hazard
severity was medium, because hospitalization would be expected from such a fall. The
probability was lesser because it was not likely such a fall would occur (Tr. 1066).
Considering these factors and the remaining statutory criteria, I find that the proposed
penalty of $1,200.00 is appropriate.

Citation 1 Item 14

29 C.F.R. § 1926.1053(b)(1): When portable ladders are used for access to an
upper landing surface, the ladder side rails shall extend at least 3 feet (.9 m) above the
upper landing surface to which the ladder is used to gain access; or, when such an
extension is not possible because of the ladder's length, then the ladder shall be secured at
its top to a rigid support that will not deflect, and a grasping device, such as a grabrail,
shall be provided to assist employees in mounting and dismounting the ladder. In no case
shall the extension be such that ladder deflection under a load would, by itself, cause the
ladder to slip off its support.

This standard re quires that siderails of portable ladders extend at least three
feet above the upper level or surface to which the ladder is used to gain access. The
requirement further provides an alternative to extending the ladder in this matter by
stating that when such extensions are not possible because of the ladder length, the ladder
shall be secured at the top to a rigid, nondeflecting support, and employees shall be
provided with a grasping device such as a grabrail.

Instance (a): Ground Level, West Side: Two wood ladders,
were not secured, on or about 10/09/97.

Signorile testified that the ladder was not secured because it did not extend
three feet above the landing area where one would step off onto the second floor. The
ladder was on the west side of the job, and Signorile observed Avcon employees using
this ladder (Tr. 1067, 1743). The employees could have fallen while descending the
ladder, or the ladder could have moved. The conspicuous location and the readily
observable nature of the violative condition warrant a finding of constructive knowledge .
Respondents could have ascertained the existence of the cited condition through the
exercise of reasonable care. The Secretary has met her burden of proof in this instance.

Instance (b) : Second Floor, Elevator Shaft: One wood ladder
was not secured, on or about 10/09/97.

Signorile testified that this ladder extended from inside the elevator shaft to
the third floor, where employees were framing the floor (Tr. 1069, 1745). He testified that
the side rails extended three feet above the landing, and that ladder was not secured (Tr.
1070-71). Nick testified that the ladder was nailed at the top to some form work, but
added that Signorile did not believe it was secure enough and wanted strapping placed
around it (Tr. 2456).

My review of the record reveals that the cited ladder met the
requirements of the standard. The standard provides that where a three foot extension is
not possible, the ladder can be secured at its top to a rigid support that will not deflect.
See 55 FR 47660, 47677 (1990). Thus, this instance is vacated.

Classification and Penalty

Instance (a) was appropriately classified as serious. The ladder’s condition
could have caused an employee to lose his or her balance. Also, the unsecured ladder
could have swayed. There was debris underneath the ladder, and if an employee fell he or
she would have fallen onto the debris and received multiple injuries. (Tr. 1068) The
penalty of the violation reflects that the severity of the violation was medium, because
hospitalization would have been expected from such a fall, and the probability lesser,
because it was not likely such a fall would occur (Tr. 1069). In light of these factors and
the remaining statutory criteria, I find that the proposed penalty of $1,200.00 is
appropriate.

Docket No. 98-1168, Inspection No. 301950952

Citation 1 Item 1

29 C.F.R. § 1926.350(a)(9): Compressed gas cylinders shall be secured in an
upright position at all times except, if necessary, for short periods of time while cylinders
are actually being hoisted or carried.

Rear of the building: the five oxygen cylinders and two acetylene fuel gas
cylinders        which were stored together were not secured to prevent displacement, on or
about   5/12/98.

Compliance Officer Donnelly testified that the five gas cylinders and two
acetylene cylinders were stored together and not secured. In this condition, the cylinders
could have been knocked over, causing the valve stem to break. If this happened, the
cylinders could have exploded or been propelled forth “like a torpedo” (Tr. 1905-06; Ex.
C-89) . The cylinders were in the center of the yard area, in the vicinity of the trailer which
was used to change in and store tools. The jobsite toilet was also in the area. There were
also rebars stored behind the cylinders. Donnelly observed approximately nine employees
walking back and forth to the trailer, using the toilet, and retrieving steel from behind the
cylinders. There were also employees working in a nearby excavation site (Tr. 1907-09;
Ex. C-89). Nick was working within a few feet of the unsecured cylinders. The
conspicuous location and readily observable nature of the violative condition warrant a
finding of constructive knowledge . Respondents could have ascertained the existence of
the cited condition through the exercise of reasonable care.

Respondent does not dispute the applicability of the standard, nor the
identification of the cylinders. It is Respondents’ position that the cylinders were awaiting
pick up and were secured with a wire. Respondents argue that the compliance officer was
never observed measuring the contents of the cylinders (Tr. 2465-66; Respondents’ Post
Trial Brief, pp. 138-39). However, on rebuttal the Secretary presented an enlarged photo
of Ex. C-89, which did not depict any wire (Tr. 4415, Ex. C-107). Additionally, Donnelly
testified on rebuttal that during the inspection he moved a couple of the cylinders and saw
nothing securing them. He also looked at the gas gauge to determine that gas was in the
cylinders (Tr. 4419). In light of this photographic evidence and testimony, I find that the
Secretary has met her burden of proof.

This violation was appropriately classified as serious because employees
could have incurred injuries such as fractures and minor burns if the cylinders exploded or
were propelled forth. The penalty reflects that the gravity of the violation was low. The
severity of the violation was low because hospitalization would not be expected as a result
of any injuries; and the probability was lesser because it was unlikely that the cylinders
would have been knocked over (Tr. 1912). Given these factors and the remaining statutory
criteria, I find that the proposed penalty of $900.00 is appropriate (Tr. 1913).

Citation 1 Item 2

29 C.F.R. § 1926.350(a)(10): Oxygen cylinders in storage shall be separated from
fuel-gas cylinders or combustible materials (especially oil or grease), a minimum distance
of 20 feet (6.1 m) or by a noncombustible barrier at least 5 feet (1.5 m) high having a fire-resistance rating of at least one-half hour.

Rear of building: five oxygen cylinders and two acetylene fuel gas cylinders
were stored together, on or about 5/12/98.

Donnelly testified that this violation referred to the cylinders described in
item 1. Nick testified that these cylinders were not stored because they were awaiting pick
up (Tr. 2467). Although the Respondents do not state at what time the pick up was to
occur, I find that the Secretary has not produced any evidence with regard to the intended
use of these cylinders within the following twenty-four hour period. Thus, the Secretary
has not proven the applicability of this standard. I therefore vacate the citation.

Citation 1 Item 3

29 C.F.R. § 1926.652(a)(1) : Each employee in an excavation shall be protected
from cave-ins by an adequate protective system designed in accordance with paragraph (b)
or (c) of this section except when:

(I) Excavations are made entirely in stable rock; or

(ii) Excavations are less than 5 feet (1.52 m) in depth and examination of
the ground by a competent person provides no indication of a potential cave-in.

Rear of Building, Excavations C18-21: The employees working in the
excavations    were not protected from the hazard of a cave-in by the use of shoring,
sloping, or                 other protective systems, on or about 5/12/98.

It is undisputed that two Avcon employees were working in an excavation
tying steel bands to the rebar. The excavation was more than eleven feet deep, without any
protective system in use . To the right of the excavation was a bulldozer, and to the left
was an excavator (Tr. 1919-20, 1922-23, 1937-38, 1940; Ex. C-89A, C-89B, C-89C). Both
Nick and Georgiana were in the immediate vicinity of the excavation (Tr. 1940-41).
Donnelly, after talking to the excavator operator and determining where the soil from the
excavation had been taken, took a soil sample from the spoil pile (Tr. 1930, 1962-63). The
soil analysis showed that the excavation contained Type C soil, the least stable classified
soil. This type of soil requires a slope of thirty four degrees (Tr. 1607-08, 1614; Ex. C-92).
Although respondents attempted to show that the soil sample was not representative, the
excavation itself contained fill material which constituted, at best, Type B soil. According
to the Secretary's expert, Dr. Peck, this type soil would still require a protective system. Id.
Dr. Peck also testified that the presence of water in the excavation and the evidence of
truck traffic near the excavation would have an adverse effect on the stability of the soil
(Tr. 1619, 1646-47).

Given the fact that the excavation was conspicuous and readily observable,
and the fact that supervisory personnel were in its vicinity, I find that Respondents had
knowledge of the violative condition. Respondents could have ascertained the existence of
the cited condition through the exercise of reasonable care.

The violation was appropriately classified as serious because the employees
were exposed to a cave-in hazard which could have resulted in fatal injuries (Tr. 1946).
The penalty relects a high gravity violation. The severity was high because of the types of
injuries expected from a cave-in; and the probability was greater because of the presence
of the heavy equipment which subjected the area to vibrations affecting the stability of the
trench (Tr. 1946). Given these factors, I find that the proposed penalty of $3,000.00 is
appropriate (Tr. 1947-48).

Citation 1 Item 4

29 C.F.R. § 1926.1052(c)(1): Stairways having four or more risers or rising more
than 30 inches (76 cm), whichever is less, shall be equipped with:

(I) At least one handrail; and

(ii) One stairrail system along each unprotected side or edge.

First floor to the roof: Throughout the building stairrails and/or handrails
were not provided to protect employees from a fall hazard while working on or walking on
the stairs, on or about 4/28, 4/29, and 5/1/98.

During the course of his inspection, which began on April 18, 1998,
Donnelly observed two Avcon employees working on the stairways of the eighteenth
floor. These employees were flash patching the walls where there were no stairrails. The
employees were also using the stairs to exit the building. Generally, there was one handrail
on the descending side (right hand side) of the stairs and no handrail on the other side.
Donnelly also observed an Avcon employee using the unprotected stairway from the
second to the third floor (Tr. 1949, 1953-57, 4419-20, Ex. C-90, C-90a). This condition
exposed the employee to a fall hazard, and would have exposed other employees to the
same hazard when they bent down to flash patch or walked up and down the landings or
stairways (Tr. 1952; 1955-56). Falls on the upper floors would have been five feet because
there was a landing in the middle. On the first and second floors, which were not typical
floors (they were mezzanine and lobby areas), the fall would have been fifteen feet. (Tr.
1950-51) The fact that the stairways were conspicuously located and readily observable
warrants a finding of knowledge . Respondents could have ascertained the existence of the
cited condition through the exercise of reasonable care. The Secretary has met her burden
of proof.

The violation was appropriately classified as serious because fractures would
be expected if someone had fallen. The penalty reflects that the severity was medium
because injuries resulting in some hospitalization would be expected; and the probability
was lesser (Tr. 1959). In light these factors and the remaining statutory criteria, I find that
the proposed penalty of $1,200.00 is appropriate. (Tr. 1959)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

All findings of fact and conclusions of law relevant and necessary to a
determination of the contested issues have been found specially and appear in the decision
above. (See Rule 52(a) of the Federal Rules of Civil Procedure.)

Order

Docket No. 98-0755

1. Citation 1, Items 1(a) and 1(b) alleging violations of 29 C.F.R. §
   1910.1200(e)(1) and 29 C.F.R. § 1910.1200(h)(1) are Affirmed as Serious violations with
   a penalty of $900.00.

2. Citation 1, Item 2 alleging a violation of 29 C.F.R. § 1926. 20(b)(1) is Affirmed
   as a Serious violation with a penalty of $3,000.00.

3. Citation 1, Item 3 alleging a violation of 29 C.F.R. § 1926.25(a) is Affirmed as
   a Serious violation with a penalty of $900.00.

4. Citation 1, Item 4 is Vacated.

5. Citation 1, Item 5 is Vacated.

6. Citation 1, Item 6 has been Withdrawn by the Secretary.

7. Citation 1, Item 7 is Vacated.

8. Citation 1, Items 8 (a) and 8(b) alleging violations of 29 C.F.R. §
   1926.451(b)(1) and 29 C.F.R. § 1926.451(e)(1) are Affirmed as Serious violations with a
   penalty of $900.00.

9. Citation 1, Item 9 alleging a violation of 29 C.F.R. § 1926.501(b)(1), instances
   (a) thru(d) and (f) thru (q) are Affirmed as Serious violations with a penalty of $3,000.00.
   Instance(d) is Vacated.

10. Citation 1, Item 10 alleging a violation of 29 C.F.R. § 1926.501(b)(4)(I) is
    Affirmed as a Serious violation with a penalty of $3,000.00

11. Citation 1, Item 11 is Vacated.

12. Citation 1, Item 12 29 C.F.R. § 1926.701(b) is Affirmed as a Serious violation
    with a penalty of $1,500.00

13. Citation 1, Item 13 alleging a violation of 29 C.F.R. § 1926.501(b)(4)(I) is
    Affirmed as a Serious violation with a penalty of $1,200.00.

14. Citation 1, Item 14, Instance (a), alleging a violation of 29 C.F.R. §
    1926.1053(b)(1), is Affirmed as a Serious violation with a penalty of $1,200.00. Citation
    1, Item 14, Instance (b) is Vacated.

15. Citation 2, Item 1 alleging a violation of 29 C.F.R. § 1926.100(a) is Affirmed
    as a Serious violation with a penalty of $5,600.00.

16. Citation 2, Items 2(a), 2(b), and 2(c) alleging violations of 29 C.F.R. §
    1926.501(b)(1) are Affirmed as Willful violation with a penalty of $70,000.00.

Docket No. 98-1168

1. Citation 1, Item 1 alleging a violation of 29 C.F.R. § 1926.350(a)(9) is Affirmed
   as a Serious violation with a penalty of $900.00.

2. Citation 1, Item 2 is Vacated.

3. Citation 1, Item 3 alleging a violation of 29 C.F.R. § 1926.652(a)(1) is Affirmed
   as a Serious violation with a penalty of $3,000.00.

4. Citation 1, Item 4 alleging a violation of 29 C.F.R. § 1926.1052(c)(1) is
   Affirmed as a Serious violation with a penalty of $1,200.00.

/s/

Covette Rooney

Judge, OSHRC

Dated: August 25, 2000

Washington, D.C.