Major Construction Corp., Inc. and Michael J. Polites

Read the official release (oshrc.gov)

Plain-English summary

Major Construction was the concrete subcontractor on a 32-story structure where OSHA documented extensive fall-protection and related violations, including violations after an imminent-danger notice was posted. The Commission largely upheld the judge's findings on feasibility, employer responsibility, duplication, willfulness, and the challenged serious items. It reversed the judge's regrouping of the willful fall violations and restored the Secretary's four-item grouping based on common abatement methods, locations, and timing, assessing the proposed $200,000 for those items. It vacated an electrical-panel item because the record did not show how long the panel had been open, so constructive knowledge was not established. It also retained the grouped guardrail violations but reduced their penalty from $7,000 to the Secretary's proposed $4,200. The final assessed penalty was $223,200.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.95(a); 29 C.F.R. § 1926.405(b)(1); 29 C.F.R. § 1926.501(b)(1); 29 C.F.R. § 1926.501(b)(2)(i); 29 C.F.R. § 1926.501(b)(2)(ii); 29 C.F.R. § 1926.501(b)(3); 29 C.F.R. § 1926.501(b)(4); 29 C.F.R. § 1926.502(b)(1); 29 C.F.R. § 1926.502(b)(2); 29 C.F.R. § 1926.701(b); 29 C.F.R. § 1926.703(a)(2)
• Outcome: Most serious and willful items were affirmed, one electrical item was vacated, and penalties were adjusted to a $223,200 total.
• Key point: Related violations may be grouped by overlapping abatement, while constructive knowledge still requires evidence showing how long a condition existed.

Full text (OSHRC public release)

Major Construction Corp., and Michael J. polites., Docket No. 99-0943

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 99-0943

MAJOR CONSTRUCTION CORP., INC.AND MICHAEL J. POLITES,

Respondent.

DECISION

Before: RAILTON, Chairman; STEPHENS and ROGERS, Commissioners.

BY THE COMMISSION:

Major Construction Corp., Inc. (“Major”) was the concrete subcontractor hired by
30 River Court East Construction Corp., to construct a 32-story reinforced concrete
structure in Jersey City, New Jersey. Following an inspection of the job site, the
Occupational Safety and Health Administration (“OSHA”) issued willful, serious and
other-than-serious citations alleging multiple violations of various standards under the
Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (“the Act”). A
penalty of $244,900 was proposed. Administrative Law Judge Marvin Bober affirmed
most of the citations and assessed a total penalty of $283,500, $38,600 more than that
proposed by the Secretary.

The Commission requested briefs on the following issues:

(1)Did the judge err in rejecting Major Construction Corp., Inc.’s allegation that
compliance with the fall protection standards cited under Items 3 and 4 of
Serious Citation 1, and Items 1a, 2a, 3a, 1b, 2b, 2c, 3b, 3c, 3d, and 4 of Willful
Citation 2, was infeasible?

(2)Did the judge err in finding that Major Construction Corp., Inc. had either
employed the employees exposed to the fall protection hazards or was
otherwise properly cited for those hazards alleged under Items 3 and 4 of
Serious Citation 1, and Items 1a, 2a, 3a, 1b, 2b, 2c, 3b, 3c, 3d, and 4 of Willful
Citation 2?

(3)Did the judge err in finding that Items 3 and 4 of Serious Citation 1, were not
duplicative of Items 2b and 3b, and Item 4, respectively, of Willful Citation 2?

(4)Did the judge err in regrouping the violations alleged under Willful Citation 2?

(5)Did the judge err in characterizing the violations alleged under Willful Citation
2 as willful?

(6)Did the judge err in affirming Items 1(b), 2, 5a, 5b, 13, and 14 of Serious
Citation 1?

We have examined the record in its entirety and considered the arguments of the parties.
We conclude that with three exceptions discussed below, the evidence and applicable
legal precedent support the judge’s findings and conclusions with regard to the issues in
the briefing notice.

Willful Citation 2: Grouping of Violations and Penalty Assessment

Citation 2 contained four items, each of which the Secretary characterized as
willful. For three of these items, the Secretary grouped willful violations of two or more
fall protection standards based on whether the violations occurred before the posting of an
imminent danger notice on the worksite and whether one method of fall protection, safety
nets, could protect employees on more than one floor. The judge, however, found that the
Secretary’s method of citing the violations was at odds with Commission precedent. He
regrouped the items in Citation 2 according to the specific fall protection standards the
Secretary had cited. He affirmed five separate fall protection items instead of the four
items alleged by the Secretary. As a result the judge assessed a penalty of $56,000 over
that proposed by the Secretary.

The judge misapprehended the Secretary’s citation methodology. The Secretary
cited by grouping citations according to the abatement methods required by the different
standards. The Commission has also grouped violations in situations involving
overlapping or duplicative abatement. See Dec Tam Corp. , 15 BNA OSHC 2072, 1991-93 CCH OSHD ¶ 29,942 (No. 88-523, 1993), citing H.H. Hall Constr. Co. , 10 BNA
OSHC 1042, 1981 CCH OSHD ¶ 25,712 (No. 76-4765, 1981); Wright & Lopez, Inc. , 10
BNA OSHC 1108, 1981 CCH OSHD ¶ 25,728 (No. 76-256, 1981), citing H.H. Hall
Constr. Co. The judge apparently failed to recognize that the Secretary also cited
multiple instances of violation of the same standard based on different times or different
places of occurrence. The Commission has found this method of citation permissible as
well. MJP Constr. Co. , 19 BNA OSHC 1638, 1647, 2001 CCH OSHD ¶ 32,484, p.
50,306 (No. 98-0502, 2001). Accordingly, we affirm the citations as issued by the
Secretary. We note that on review Major does not argue that the penalty factors of
section 17(j) of the Act were misapplied. Accordingly, we assess the penalties as
proposed by the Secretary.

Serious Citation 1, Item 2

In this item, the Secretary alleged that an electrical panel was left open with live
parts exposed, in violation of 29 C.F.R. § 1926.405(b)(1).

The judge affirmed the
violation, finding that Major had constructive knowledge of the violative condition because it
controlled the area and the open panel was obvious in nature.

Major argues that the electric
panel was not open long enough for it to have constructive knowledge of the violation. We find
that the judge erred. To establish knowledge, the Secretary must prove that the employer knew
or, with the exercise of reasonable diligence, could have known of the presence of the violative
conditions. Gary Concrete Prods, Inc. , 15 BNA OSHC 1051, 1052, 1991-93 CCH OSHD
¶ 29,344, p. 39,449 (No. 86-1087, 1991). Here, there is no evidence of how long the
violative condition existed. We are unable, therefore, to evaluate whether Major could
have known of the condition if it had been reasonably diligent. Kaspar Wire Works, Inc. ,
18 BNA OSHC 2178, 2196, 2000 CCH OSHD ¶ 32,134, p. 48,422 (No. 90-2775, 2000)
(in the absence of evidence indicating how long the violative conditions had been in
existence, knowledge is not established), aff'd , 268 F.3d 1123 (D.C. Cir. 2001).
Accordingly, we vacate Citation 1, Item 2, for the Secretary’s failure to establish
constructive knowledge.

Serious Citation 1, Items 5a and 5b

In this item, the Secretary proposed a single penalty for Major’s numerous failures
to provide adequate top and midrails in violation of 29 C.F.R. §§ 1926.502(b)(1) and
1926.502(b)(2). We find no error in the judge’s affirmance of both items. We conclude,
however, that the judge based his decision to assess a penalty of $7,000 rather than the
$4,200 proposed by the Secretary on the incorrect belief that the Secretary had only
intended the $4,200 amount to apply to Item 5a. The record is clear, however, that
$7,000 was the initial penalty amount considered by the Secretary for Items 5a and 5b
combined before she reduced it to $4,200, as proposed in the citation, based on Major’s
size. Therefore, we assess the Secretary’s proposed penalty of $4,200 for grouped Items
5a and 5b of Citation 1.

Order

Accordingly, we affirm the judge’s decision and the penalties he assessed with
three exceptions. In Willful Citation 2, we affirm the items as cited by the Secretary and
assess the total proposed penalty of $200,000. In Serious Citation 1, Items 5a and 5b, we
assess the proposed penalty of $4,200. We vacate Serious Citation 1, Item 2. Accordingly,
the total penalty assessed is $223,200.

SO ORDERED.

/s/__________

W. Scott Railton

Chairman

/s/__________

James M. Stephens

Commissioner

/s/__________

Thomasina V. Rogers

Commissioner

Dated:      January 26, 2005

SECRETARY OF LABOR,

Complainant,

- against -

OSHRC Docket No.: 99-0943

MAJOR CONSTRUCTION CORP., and

M.J. POLITES,

Respondents.

DECISION AND ORDER

APPEARANCES:

Susan B. Jacobs, Esquire                                              Wayne E. Pinkstone, Esquire

Stephen D. Dubnoff, Esquire                                       Messrs. Jasinski and Paranac

U.S. Department of Labor                                            Newark, NJ

For Complainants                                                        For Respondents

BEFORE:        G. MARVIN BOBER

PROCEDURAL HISTORY

This case arises under the Occupational Safety and Health Act of 1970, 29 U.S.C.A. Sections
651-678 (1970) (“the Act”) to review three citations issued by the Secretary of Labor pursuant to
Section 9(a) of the Act and the penalties proposed pursuant to Section 10(a) of the Act.
Respondent Major Construction Corp., (“Major”), was the concrete contractor for a 32 story,
cast in place, reinforced structure built beginning in September,1998 in Jersey City, New Jersey,
(the “job site”). Respondent Michael J. Polites, (“Polites”), undisputably the president and a 4%
shareholder of Major, was also cited in his individual capacity.

The three citations, (classified as serious, wilful and other) were issued on April 24, 1999,
following a three-month investigation conducted by the Department of Labor Occupational
Safety and Health Administration (“OSHA”) beginning on November 3, 1998. An imminent
danger notice was posted during the course of the investigation, on January 12, 1999, although
no further efforts were made for injunctive relief when the work progress was not altered.

In 14 items, Citation One charges Major and Polites for serious violations of 29 C.F.R. Sections
1926.95(a), 1926.405(b)(1), 1926.501(b)(2)(I), 1926.501(b)(4), 1926.502(b)(1), 1926.502(b)(2),
1926.502(g)(1), 1926.502(h)(1), 1926.502(h)(3), 1926.502(k)(9), 1926.502(k)(3),
1926.502(K)(4), 1926.502(k)(7), 1926.503(a)(1), 1926.701(b), and 1926.703(a)(2). In four
items, Citation Two charges Major and Polites for wilful violations of 29 C.F.R. 1926. 501(b)(1),
1926.501(b)(3), 1926.501(b)(1). Citation three, classified as “other,” charges Major and Polites
for a violation of 29 C.F.R. 1926.1053 (b)(4).

Polites submitted a motion for summary judgment on August 7, 2000, asserting that he should
not have been named in his individual capacity. The motion was denied, by order dated August
9, 2000, as material questions of fact relating to Polites’ control required stay of any such
determination until the conclusion of the administrative trial. Respondent’s subsequent petition
for interlocutory appeal from this order was denied. The issue, nonetheless, was preserved for
trial and is decided in accordance with this decision and order.

The trial was conducted over a three week period beginning August 14, 2000. Post-trial briefs
were fully submitted on January 17, 2001. Respondent’s reply submission, in letter format, was
received on February 8, 2001, and Complainant’s sur-reply submission in letter format was
received on February 23, 2001. On March 1, 2001, Respondent served a sur-reply letter to
Complainant’s sur-reply submission. The matter is now ready for disposition.

Jurisdiction

Respondent Major’s Answer admits that Major uses supplies and goods which are delivered
across state lines. This Court therefore determines that Major is an employer engaged in
interstate commerce within the meaning of section 3(5) of the Act, 29 U.S.C. Section 652(5).
The Occupational Safety and Health Review Commission (“The Commission”) has jurisdiction
over the case.

Stipulated Facts

None.

Background

30 River Court is a 32 story reinforced, cast in place, concrete structure. The construction on the
project commenced in September 1998, (Tr. 1109-1110). The General Contractor, 30 River
Court East Construction Corporation, retained Major as the concrete contractor for the job.
Major’s work included erection and demolition of the concrete forms. ( See, Complainant’s
Exhibit 4, Schedule 1, “The subcontractor shall furnish all material, labor and equipment to
perform all concrete work...”). The process of construction involved the erection of wooden
forms, into which concrete would be poured. After Major constructed the forms, but before the
pour, the ironworkers installed reinforcing steel bars, (“rebar”). (Tr. 1167). The day following
each deck’s pour, Major removed, or “stripped” the forms from the concrete, clamped the
newly formed concrete columns, and braced the remaining concrete floor. (Tr. 1154-1157,
1166). The stripped forms were then hoisted to the upper deck by a separate contractor, and
Major would erect the next floor on the recently poured concrete deck. Major maintained two
sets of forms at the job, and was thus able to strip the forms from one level the same day
concrete was poured two levels above. In this manner, Major was able to construct one floor
every two days. ( Tr. 1088-1090). During the course of the trial, Major’s shop steward and
carpentry foreman, Tony Buttino, (“Buttino”)

, prepared a diagram depicting Majors’ work
progress for this job site. The diagram, admitted as Exhibit 19 incidentally also depicts the deck
areas which Major ultimately designated as controlled access zones, and therefore, were under
Major’s control.

The wooden forms were made up of legs which rested on the concrete deck, at four foot
intervals, (Tr. 1159), stringers, (16 foot long four by fours), which ran horizontally on top of the
legs, and ribs, (14 to 16 foot long three by fours), which rested on top of the stringers. (Tr.
1093). Sheets of four by eight plywood were then placed on top of the ribs to create the new
deck. (Tr. 1158). Apparently, cement cure testing was performed at the site, ( Page 57, lines 1-
11, transcript from the continued deposition of Polites, admitted into the record as C-29, and
identified as Exhibit 4 of Complainant’s binder 2), although there is no evidence that Major
performed its own tests, or referred to these tests, before proceeding in each instance to strip the
supporting forms from the concrete.

OSHA’s Assistant Director for Safety Compliance for the area, Louis Ricca, (“AD Ricca”),
testified that he first met Polites in the mid 1980s when AD Ricca was inspecting a construction
site Polites was involved in.( Tr. 974-975). AD Ricca testified that he discussed the OSHA
requirements for fall protection with Polites during this inspection (Tr. 975). AD Ricca also
testified that he discussed OSHA’s fall protection requirements with a man named Joseph
Rufalo, (“Rufalo”) in 1986 or 1987, during an investigation of the construction of a different
building in the same complex, wherein M.J.P. was the concrete contractor, and for which Buttino
was the concrete supervisor (Tr. 975-978). Major retained Rufalo as a safety consultant for
work on 30 River Court job. (Tr. 759).

Of note, Politis Construction Co., Inc., a now defunct corporation for which Respondent Michael
Polites was the president and sole shareholder, was specifically made aware of standards
involving 29 CFR 1926.501(b)(1), (unprotected edges), 29 CFR 1926.501(b)(2), (failure to
provide fall protection at leading edges), and 20 CFR 503 (a)(1), (failure to provide appropriate
training programs for employees exposed to fall hazards). This occurred during and following a
1997 OSHA investigation of a poured in place concrete structure for which Politis Construction
Co. Inc. was the concrete forms contractor. ( Exhibit C-13 , Tr. 1044-1050).

OSHA Inspection

OSHA Compliance Officer Richard Torre, (“CO Torre”), testified that he noticed multiple fall
hazards occurring at the subject job site while he happened to be passing by it on November 3,
1998. This began the OSHA investigation. (Tr. 21). According to CO Torre’s trial testimony,
while he was still on the ground, he was able to observe and videotape employees working at
the edge of the hoist barrier without fall protection, two employees working on the fifth floor
clamping, without fall protection, and employees working on a top deck, also without fall
protection. (Tr. 49-50). CO Torre testified that Polites was present at the job site and was
speaking on his cell phone while looking at the employees working on the building. (Tr. 49-50,
Tr. 138).

CO Torre then continued his inspection on the structure. He ascertained that each floor of the
building was nine feet, one inch high. (Tr 57). According to his testimony, he observed and
videotaped employees on the fourth floor, working in a hoist area within two feet from the edge
of the building, who were not protected with personal fall arrest systems, or guardrail systems.
(Tr. 75). He also testified that there were numerous floor holes on the fourth and sixth decks
which were not protected, (Tr. 54, Tr. 79-80), employees working by open floor holes on the
third deck, not covered by fall protection, (Tr. 77-78), and “multiple floor holes, on the third
floor hoist area, ...which (were) unprotected.” (Tr. 87-88). CO Torre also testified that a Major
employee arrived and began to build a guardrail around one of the open holes, while CO Torre
was present. (Tr. 188-189). CO Torre ascertained that all workers performing concrete form
related work were Major employees. (Tr. 58).

CO Torre also testified that ironworkers were seen laying rebar on the sixth and fifth floors, on
this first day, with no fall protection. (Tr. 71-74). CO Torre recommended issuance of a
violation for these instances to Major, even though the individuals exposed were not directly
Major employees. CO Torre testified that he believed that Major assumed the responsibility of
constructing guardrails based on its contract for the job. (Tr. 74).

CO Torre also videotaped ironworkers at the job site exposed to rebar protruding through an
open floor hole. (Tr. 81-82). He recommended that a citation be issued to Major because he
believed that the ironworkers were subcontractors of Major. (Tr. 82). CO Torre admitted,
however, that ironworkers were responsible for placing the rebar at this site, and for capping
the rebar, if they were working near it. (Tr. 204-205).

CO Torre returned to the site on November 4, 1998 with OSHA Compliance Officers Brian
Donnelly, (“CO Donnelly”) and Rich Brown, (“CO Brown”), (Tr. 90). The three officers
discussed the situation with a representative of 30 River Court, David Jenkins, (“Jenkins”), and
Rufalo. CO Torre testified that abatement recommendations were made to Rufalo and Jenkins
during this meeting. (Tr. 90-91). CO Donnelly specifically testified that he discussed the use of
safety nets and catch platforms with Rufalo. (Tr. 217, 226). CO Torre also testified that he
noticed additional violations on November 4, 1998, which were recorded on videotape, such as
an employee performing form work at the edge of the building without fall protection. (Tr. 94) .

CO Donnelly, also, later discussed the issue of fall protection with Don Lee, ( aka Dong Lee,
“the current superintendent of Major”, Tr. 46), and explained the requirements and the use of
guardrails on the deck, including guardrail brackets, as well as the use of safety nets and other
means of abatement. (Tr. 214-216, 226). CO Torre returned to the site on November 10, 1998
with OSHA Compliance Officer Gary Jensen, (“CO Jensen”), but they observed only minimal
activity on the top deck, and did not observe any apparent violations. (Tr. 245).

CO Torre returned to the job site on November 16, 1998, accompanied by Jenkins. (Tr. 96). CO
Torre testified that he observed further fall related violations while he was still on the ground
floor, such as an unprotected employee installing reshoring six inches from the edge of the
building on the eighth floor, (Tr. 96), and an unprotected employee stripping the exterior form
away from the column. (Tr. 101). Additionally, he testified that he saw employees on the
seventh floor working near open floor and stairway holes. (Tr. 103, Tr. 202-203). On his way to
the top deck, Torre saw employees stripping the outside column without fall protection, (Tr.
106), and an open stairway hole. (Tr. 107). Notably, Torre observed catch platforms in use on
the top deck, protecting employees who were erecting columns. However, Torre testified that the
catch platforms were insufficient in that the plywood was not, “run out enough to the
guardrails”. (Tr. 106-107). Finally, CO Torre testified that he also observed unprotected
employees cleaning up and stacking plywood in a hoist area within a few feet of a stairway hole,
on November 16, 1998. (Tr. 103-104).

CO Jensen reported additional violations on January 6, 1999, when he observed and videotaped
employees working at and over the edge on the 25th and 26th floors without fall protection. (Tr.
246). Specifically, CO Jensen testified that there was no guardrail on the finished 26th floor,
even though a stripping operation was ongoing. (Tr. 249-250). CO Jensen testified to telling
Buttino that the two employees working near the edge of the building, (one removing clamps
from a column and the other reaching over the edge of an unguarded floor, removing lumbar),
needed a fall protection system, which could be safety nets, a personal fall arrest system, or
guardrail systems. (Tr. 250-251). He also testified that he specifically suggested safety nets as
an appropriate fall protection system. (Tr. 262).

Additional fall hazards were reportedly observed and videotaped by CO Jensen on January 6,
1999. These include an employee removing lumber on the 25th floor, at the edge, with no fall
protection, (Tr. 256), an employee holding a reassure without proper fall protection, (Tr. 257),
and an employee assisting another employee remove a column clamp at the edge without fall
protection on the 26th floor, (Tr. 259 - 261).

CO Jensen continued the inspection on January 7, 1999, accompanied by Compliance Officer Ed
Norton, (“CO Norton”). (Tr. 264). CO Jensen testified that he observed two workers performing
leading edge work with no fall protection, even though they were only “a couple of feet” from
the edge of the building. (Tr. 264). From the top deck on that day, CO Jensen observed an open
and unguarded floor hole elevator shaft, and protruding, unguarded rebar. He also reported what
he identified as an inadequate guardrail system, in that it was too low, was missing adequate
mid-rail protection, and had inadequate top rail protection. (Tr. 265, 266 272, 283). He
observed and videotaped two unprotected employees placing plywood at the perimeter edge,
creating the last step in leading edge work, on the 27th deck. (Tr. 268) CO Jensen testified that
he told Phil Miller, whom he identified as Major’s carpentry foreman, that fall protection was
required for employees doing leading edge work. He suggested a fall arrest system, safety net, or
a guardrail system. (Tr. 287-288). He also advised Miller that the top deck guardrail was
inadequate, specifically telling him what the OSHA standards require in this regard. (Tr. 286).

Apparently on the same day, CO Jensen observed and videotaped employees preparing to rake
out recently poured concrete on the 27th floor, protected by a guardrail with a top rail only as
high as the employee’s knee. (Tr. 274-276). Several employees, he testified, came right to the
edge. (Tr. 277). The employees were not tied off, and there was no safety net. (Tr. 278).

On January 8, 1999, CO Norton returned to the job site, alone. (Tr. 744). According to his
testimony, he observed open-sided floor hazards on the 25th and 26th floors, before he entered
the site. (Tr. 744). Specifically, he testified to observing a worker at the southwest corner of the
25th floor working at a column without fall protection, even though the area was already
stripped and they were right at the edge. (Tr. 746-749). He also testified that he saw an
individual on the 26th floor working with plastic around the perimeter, within two to three feet
of the edge, with no guard rail nor other form of fall protection. (Tr. 749-751). CO Norton
admitted, however, that installing and removing plastic is ordinarily the general contractor’s
work, not Major’s (Tr. 750-751).

CO Jensen and CO Norton returned to the site on January 11, 1999. (Tr. 752). CO Norton
testified that he observed several unprotected employees walking through an area on the
stripping deck, within three to four feet from the edge of the building. On that date, the stripping
deck was located on the 28 th floor. (Tr. 753-755). CO Jensen testified that he videotaped
employees on the 28th floor, removing concrete forms with no fall protection system. (Tr. 293).
According to his continued testimony, CO Jensen saw a guardrail installer actually build a guard
rail behind an exposed employee on the 28th floor, (Tr. 295), another employee performing
concrete forms related work, near the edge of the 27th floor, with no fall protection, (Tr. 298-300) , and employees performing concrete forms related work, exposed to three unprotected
floor openings of an elevator shaft, and to unguarded rebar. (Tr. 307-308, Tr. 310-312).
According to CO Jensen’s testimony, he also witnessed additional instances of violations
involving a failure to protect workers performing leading edge work on this date, such as an
unprotected employee adjusting ribs by the perimeter of the building, within one or two feet of
the edge. (Tr. 300-302).

CO Jensen and CO Norton testified that they again expressed their concerns about the lack of
fall protection and unguarded sides with Buttino on January 11, 1999.. ( Tr. 313, 756). CO
Jensen also discussed Major’s failure to cap or guard against the exposed the rebar. (Tr. 312).
According to CO Jensen’s testimony, his observations caused him to contact his supervisors with
respect to a “potential imminent danger” situation. (Tr. 302). He and CO Norton thereupon
advised Major personnel that they were considering posting an imminent danger notice on the
site. A meeting was scheduled for January 12, 1999 to discuss the perceived hazards. (Tr. 302).

CO Jensen testified that none of Respondent’s employees initially attended the January 12, 1999
meeting, although Rufalo arrived late and participated, (Tr 318-319), acting as Major’s
representative at the meeting. (Tr 759). Compliance officers from OSHA and representatives
for 30 River Court were present and discussed the perceived violations, and potential abatement
methods. (Tr. 319). A request for a fall protection plan was made during the meeting, and CO
Norton asked Jenkins directly if he ever received a fall protection plan from Major. No plan
was provided. Ultimately, no agreement was reached and OSHA posted an imminent danger
notice on the site. (Tr. 320-321).

The Notice of Imminent Danger states as follows:

Employees are not being protected against falls from

upper levels while engaged in the following activities

at the structure’s exterior edges: 1. Erection of forms,

deck, stops and guardrails. 2. Stripping of forms and

shoring supports. 3. Placing of forms and shoring

supports in the hoist areas.  

( C-10). CO Jensen testified that he and CO Norton posted the notice at the personnel hoist, on
the outside of the hoist and near the entry way to the ladder the men were using to ascend and
descend the structure. (Tr. 323-324). CO Norton testified that a copy was also handed directly to
Rufalo. (Tr. 760).

CO Jensen stated that the endangerment posting did not cause Major to cease operations. He
therefore continued his inspection, observing and videotaping a number of additional violations.
According to his testimony, the additional violations included employees exposed to additional
instances of unguarded floor holes, (Tr 328-330), employees exposed to inadequate guardrail
protection on the 27th or 28th floor, (Tr. 331), employees exposed to inadequate top rail
protection on the 28th floor, (Tr. 331-333), and employees performing leading edge work on
the 29th floor, without fall protection. (Tr. 334-335). He testified that he also observed
employees using powered equipment, such as a circular saw, without appropriate eye protection.
(Tr. 326).

AD Ricca testified that he was on the job site on only one day, January 12, 1999. (Tr. 978). He
testified that he had a lengthy meeting in the trailer about the feasibility of providing protection,
and that he explained to Rufalo his belief about the various available abatement methods. (Tr.
979). CO Norton continued the inspection on January 13, 1999 on which date he discussed the
imminent danger situation with Buttino. (Tr. 763). There was no leading edge work underway,
and guardrails were in place. (Tr 764).

The inspection continued on January 19, 1999. CO Jensen testified that his continuing inspection
on that day revealed a number of further violations, more, even, than ever before. (Tr. 338).
According to his testimony, these included employees working near an unprotected edge, on the
27th floor, (Tr. 341-343), an unprotected employee performing leading edge work within one
foot of the edge, on the 30th deck, (Tr. 344- 346), unprotected employees in a hoist area within
five or six feet of the edge on the 27th floor, (Tr. 347-350), employees near open floor holes, (Tr.
350-352), employees exposed to unguarded rebar, (Tr. 362-363), and employees using power
activated tools, such as a “hilty gun” and circular saws, without appropriate eye protection. (Tr.
355-357). CO Jensen testified that he also observed and videotaped employees ascending and
descending a ladder near an open, live electrical panel. (Tr 360-362). CO Jensen testified that he
told Buttino about the different violations he saw that day, specifically advising him that
unprotected edges needed to be guarded (Tr. 338-340, 353, 366).

CO Norton continued the inspection the next day, January 20, 1999. (Tr. 765). According to his
testimony, CO Norton identified an employee on the southwest corner of the top deck, within
two or three feet in either direction of the edge, working on the actual columns without any fall
protection. (Tr 765-767). His testimony also reports an exposed, unprotected employee on the
28th floor, reaching out over the edge of the building to retrieve material which had fallen onto
catch fingers. (Tr. 769-771).

The OSHA officers conducted a further meeting with representatives of Major and 30 River
Court on January 21, 1999, in order to discuss the perceived violations. (Tr. 373). Respondent’s
attorney, Mr. Paranac, was present, and it was at this meeting that Major first provided OSHA
with a copy of their fall protection plan, dated September, 1998. (Tr. 774-775). Issues relating
to fall protection, abatement procedures, and OSHA’s interference with the work progress were
discussed. (Tr. 374). According to AD Ricca, the compliance officers reiterated the numerous
methods available to Major to abate the hazards, such as netting, anchorages, restraints and catch
platforms. (Tr 988). According to CO Norton, suggestions were made to Major to consult with
an expert in the field. (Tr. 775), and that his primary suggestion was to use perimeter nets.
(Tr.814-816). Again, no consensus was reached. (Tr. 775). CO Jensen returned to the job site
to continue the inspection. (Tr. 374).

CO Jensen testified that he observed and videotaped additional violations on January 21, 1999.
For example, he saw unprotected employees performing leading edge work on the 31st deck,
(Tr. 375-377), unprotected employees at the leading edge, but not performing leading edge
work, (Tr. 379), and unprotected employees in a hoist area near the exterior edge. (Tr. 381).

CO Jensen returned to the site on January 22, 1999, with Mohammed Ayub, (OSHA’s Director
of Engineering) and CO Norton. (Tr. 906). They met with Buttino and, later, Polites on that
date, with respect to the issue of fall protection. (Tr. 386-387). According to his trial testimony,
Mr. Ayub told Mr. Rufalo and Polites to use safety nets or a lifeline to protect the employees. (Tr
907-910). Major did not accept any of Mr. Ayub’s suggestions, and the inspection was
continued. (Tr. 910-911).

Mr. Ayub testified that he spent some time walking around the 31st floor with Rufalo, Polites,
and others, (Tr 911), and that he informed them not to anchor the lifeline to the rib of the floor
unless an engineer has done computations to ensure that the rib can take a force of 5,000 pounds,
or have a safety factor of two. (Tr. 913). CO Jensen testified that their continued inspection that
day disclosed additional instances of unprotected employees performing leading edge work, (Tr.
387-388), employees exposed to open, unguarded floor holes, (Tr. 390-392), and at least one
Major employee exposed to unguarded and uncapped rebar, on this date (Tr. 393-395).

CO Norton continued the inspection solo on January 25, 1999, which he described as a stormy,
windy, snowy day. (Tr. 780). Despite the weather, CO Norton observed an employee within two
to three feet of an open edge in a hoist area on the 28th floor without any means of fall arrest or
fall protection. (Tr. 776-779). Co Norton also reported more than one employee working on the
32d deck, at the leading edge, within a foot or two of the edge with no fall protection. (Tr. 780-784).

CO Jensen and CO Norton returned to the site on January 26, 1999 with Rich Mendelson, a
regional safety specialist. (Tr. 400). CO Jensen testified that again, he observed and videotaped
further OSHA violations involving Major’s failure to provide fall protection. According to his
testimony, he observed and videotaped an unprotected employee performing concrete forms
related work two to three feet from the edge of the building, in a hoist area, (Tr. 401-403),
employees exposed to open-sided floors without fall protection, despite the presence of ice on
the deck, (Tr. 403- 405), and employees performing leading edge work without fall protection.
(Tr. 407-409). He also reported employees using step ladders in an improper, folded up manner.
(Tr. 410). Similarly, CO Norton reported violations observed this day involving leading edges
and floor holes. (Tr. 785-787). CO Jensen testified that he told Buttino, again, that the edge had
to be guarded and that there were continuing violations involving fall protection. (Tr. 414).
Buttino thereupon guarded up the icy section of the deck. (Tr. 416).

CO Jensen testified that he observed additional violations on January 27, 1999, such as a failure
to provide fall protection to employees exposed to an open edge on the 30th floor, (Tr. 417-420), and unprotected employees performing leading edge work. (Tr. 421). CO Jensen also
reported violations involving the exposure of Major employees, (“carpenters”) to unguarded
rebar (Tr. 425). CO Jensen testified that he again told Buttino that fall protection needed to be
provided, but no action was taken. (Tr. 426-427).

CO Jensen testified that he returned on January 28, 1999, but was denied entry onto the
structure. (Tr. 429-432). CO Jensen therefore videotaped the ongoing construction work from
the street, catching further violations from that vantage. (Tr. 432-433). CO Jensen reported,
specifically, an employee performing the last stage of leading edge work without fall protection,
and an unprotected employee on the 33 rd deck installing an upright stanchion for a guardrail.
(Tr. 434-438). CO Norton returned to the site on January 29, 1999, but was denied entry to
floors 29, 30, 31 and 32. (Tr. 789). Nonetheless, he testified to additional violations dealing with
open sided floor violations and Major’s failure to provide appropriate fall protection. (Tr. 790-801).

CO Jensen returned to the site on February 1, 1999, and was again denied entry. (Tr 440). Once
more, he videotaped what he perceived to be violations from plain view. According to his trial
testimony, CO Jensen observed a worker walking two to three feet from the edge of a stripped
floor, with no means of fall protection, (Tr 440-442), and a worker standing at an unguarded
edge of the building on the 30th floor, with no form of fall protection. (Tr. 444-445). CO Jensen
also testified that, from January 6, 1999 through February 1, 1999, he did not observe any steps
taken by Major to correct any fall hazards addressed in the citations. (Tr. 447).

CO Jensen also testified that he never noticed any evidence of a controlled access zone, such as a
sign connected to a guardrail, a rope or other physical means to denote the area, (Tr. 449, 491-492), nor was he ever told of a competent person assigned primarily to monitor job safety. (Tr.
451-452). Further, he observed no attempts to control access to any controlled access zone. (Tr.
453). CO Jensen testified that he suggested the issuance of citations based on these perceived
failures following receipt of Major’s Fall Protection Plan, which identifies use of a controlled
access zone. (Tr. 449-450, 593). He admitted, however, that he did not receive a copy of
Major’s fall protection plan until after his work site inspection was complete. (Tr. 575). CO
Norton likewise testified that he could not identify a “competent person” with respect to
monitoring any controlled access zone, and that conversations with Buttino indicated that
Respondent did not in fact maintain a fall protection plan. (Tr. 809, 811, 821-822).

Testimony of Dong Lee

Dong Lee, is an engineer who was retained by Major construction to “coordinate” the job. (Tr.
1054). He worked for MJP before working for Major, and worked for Politis Construction before
he worked for MJP. (Tr. 1053-1054). He testified that he prepared Major’s Fall Protection Plan
in September of 1998. He also drafted a fall protection plan for Politis Construction Co. for a
Prospect Heights Care Center on May 8, 1997, and a fall protection plan for M.J.P. for the Tower
of Amenia project on September 8, 1997. (Tr. 1055-1057, 1065-1068, Complainant’s Exhibits
12 and 14, respectively). He testified that he consulted with Buttino and Rufalo before writing
the MJP fall protection plan, (Tr. 1061-1062), which was largely based on the Politis
Construction plan. (Tr. 1059-1064). Both job sites were similar, poured in place concrete
structures. Of note, the fall protection plan for the Prospect Heights and the Amenia projects
require that either a guardrail and/or a personal fall arrest system be used to protect workers
performing leading edge work. The plan for the Amenia project was further modified on
October 11 1997, to require that workers on perimeter areas wear personal fall protection
systems.

Mr. Lee testified that he first learned that Major would be involved in the 30 River Court
Project approximately six months prior to September, 1998. (Tr.1063). The fall protection plan
he testified he drafted for this job states that conventional fall protection cannot be used during
erection, stripping and movement of the deck form work, with various explanations.(Exhibit C-7).

Mr. Lee testified that he spoke with Rufalo and Buttino before creating the fall protection plan
for Major. Mr. Rufalo told him that the prior M.J.P plan he had written was garbage, and that
he therefore prepared the Major fall protection plan differently, based on Rufalo’s suggestions.
(Tr. 1065-1067). Interestingly, the fall protection plan drafted for Major’s work at this job site is
in a different handwriting that the plans prepared for Politis and MJP.

Under questioning by the Court, Mr. Lee testified, in general, that concrete reaches up to 40 to
60 percent of its strength three days after is was poured. (Tr. 1076). After seven days, it is
probably at 80 percent, and after 28 days, it is at full strength. (Tr. 1075-1076). Mr. Lee also
testified that he believed Major put accelerates in the concrete, but that accelerates make the
concrete cure only about an hour faster. (Tr 1077).

Testimony of Michael Polites

Polites testified that he is the President and a 4% shareholder of Major Corporation, and a 4 %
shareholder of M.J.P. Construction Company. The remaining shares of Major are owned by his
daughter and son. (Tr. 1120-1121, 1124). Polites receives mason foreman’s wages for his work
for Major. He testified that he has not received any dividends, as profits are funneled back into
the business concern. (Tr. 1122-1123). Polites’ responsibilities include estimating the job,
working on the plans on the job, and acting as referee, if needed. (Tr. 1136-1138). Major’s
headquarters are located at the same address as Polites’ home, but on a different floor. (Tr.
1121). Major also rents a storage space in Clifton, New Jersey for materials. (Tr. 1133).

Polites testified that Major Corporation, not Polites, paid union benefits, workers’ compensation
insurance, general liability insurance and employment taxes on the 30 River Court job. (Tr.
1143-1144). Major also maintained its own bank account for the 30 River court job site. (Tr
1144).

Polites also testified that decisions regarding day to day operations at the 30 River Court job site
were made by the individual foremen and Mr. Lee. (Tr. 1128-1129). Mr. Lee was responsible for
ordering materials.(Tr 1130). Polites also testified that the individual foremen, not Polites, had
authority to hire and fire employees, through the union. (Tr 1130-1131). Nonetheless, Polites
hired Mr. Lee, (Tr 1135), and had the power through Mr. Lee to fire the general foremen. (Tr.
1140-1141).

Polites testified that Politis Construction went bankrupt because its debtors did not pay money
owed. (Tr. 1128-1129). M.J.P., however, is still in existence, and, in fact, leased one of its
vehicles to Major for the 30 River Court project. (Tr. 1124).

Testimony of Anthony Buttino

Buttino testified that he was hired through his union to work for Major Construction
Corporation as a foreman and shop steward at the 30 River Court construction job. He worked
for Politis construction in August, 1996, and M.J.P. Construction in July, 1997. (Tr. 1079-1081),
holding more or less the same positions. (Tr. 1085). Buttino also testified that he has been a
carpenter foremen for more than 20 years, (Tr. 1148), and spent approximately 99 % of those
years working on high rise concrete construction projects. (Tr. 1149). Buttino boasts to having
been involved in the construction of more than 50 poured in place concrete buildings. (Tr. 1149-1150). He has not, however, read the OSHA standards. (Tr. 1285).

As a carpentry foreman, Buttino supervised the stripping floor and the forming deck, as well as
the subsequent reshoring and clamping of concrete. (Tr. 1146-1147). As the individual
responsible for “ensuring that the job was safe”, (Tr. 1146), Buttino testified that he made sure
that all penetration holes were covered, that there was a guardrail on the deck, and that shafts
were covered over. (Tr. 1148). Preplanning the safety for the 30 River Court Job involved
reviewing the fall protection plan when he first arrived on the job site, in early October, after
construction had already commenced. (Tr. 1084).

Using Respondent’s Exhibits 17 and 18, Buttino described the process of Major’s work on the
job as involving three or four floors at the same time. The top deck, just below the leading edge
work, was described as the framing deck. (Tr. 1206, and see Exhibit R-18). The stripping level
came immediately below the framing deck, and the stacking, or plywood level, came
immediately below the framing level. (Tr. 1293).

With respect to the integrity of the forms structure as it existed before the concrete was poured,
Buttino testified that the high stringers were toe nailed to the low stringers, with just one nail per
stringer. (Tr. 1156-1157). The ribs were not connected to the high stringers until after the
plywood was placed on a joint rib. (Tr. 1157). Ribs located underneath, however, remain
unattached. (Tr. 1157-1158). Each piece of four by eight plywood was attached with between
four and six nails. (Tr 1165). Legs were not secured to the concrete deck below them. (Tr 1196).
Thus, according to Buttino’s testimony, if a lifeline became wrapped around one of the 30 legs
on a deck, the leg could be pulled out, and cause a section of the deck above to drop. (Tr.
1197).

With respect to safety on the hoisting deck, (the deck below the stripping deck), Buttino testified
that employees at that level worked “probably six to eight feet” from the edge of the structure.
(Tr. 1202). Perimeter cabling, he testified, would not be possible because it would interfere with
the operation of the material crane. (Tr. 1202-1203). Thus, Major did not install cabling until
after all materials were hoisted. (Tr. 1203-1204).

Turning to issues relating to the safety of a worker working/walking on top of the frames,
Buttino testified that there was no way to use fall protection because there is no place to attach a
lanyard. (Tr. 1188). With respect to the safety of employees working on the framing deck,
Buttino testified that the overhead forms are not strong enough to support a lifeline or lanyard.
(Tr. 1189-1191). Despite this perceived difficulty with using fall protection in areas below the
forms deck, employees performing clamping columns were tied off to stringers above, following
a conversation between Buttino and the general contractor regarding fall safety. (Tr. 1190-1191). According to Buttino’s testimony, this conversation occurred following recommendations
made by OSHA officers. Nonetheless, attaching the lanyards to the stringers is not, in Buttino’s
opinion, a feasible way to provide fall protection because he had not seen it done in all the years
he has been in the business. (Tr. 1192). He also testified that it is inadvisable to attach a lifeline
or lanyard to an interior column, because, first, the column would not be structurally sound until
it is poured, and second, the lifeline running to the interior column would create a tripping
hazard. (Tr 1193).

Buttino testified that employees stripping the outside columns on the stripping floor were
provided with safety belts which were to be tied to the outside columns. Other employees,
according to Buttino, did not come “that close to the edge”, and he would not tie off to an
interior column on the striping floor, again, because of the tripping hazard. (Tr. 1203). With
respect to the installation of guardrails, Buttino testified that Major employees “came back” and
installed the guardrail once they had 20 % of the deck solid. (Tr 1162 - 1163).

Further, Buttino testified that there was a fall protection plan for the 30 River Court Job site,
written by Mr. Lee, for “people we could not protect”, (Tr 1208-1209), which he states was in
fact implemented and maintained at the job site. (Tr. 1094, 1215-1216). Buttino testified that the
plan provided that fall protection could not be used to protect workers doing leading edge work,
workers in the hoisting area, workers erecting outside columns, or workers clamping concrete
or stripping forms. (Tr. 1209). He testified that, at one point, Major considered creating a catch
place by extending the deck beyond the edge. This idea was rejected, however, as it was thought
that the catch basin would interfere with operation of the crane. (Tr 1210).

The plan they ultimately developed directs employees to work from the inside of the building
out, to work in teams of two, and to observe the controlled access zones, which Buttino defined
as “the floors that we were occupying”. (Tr. 1211-1212). He explained that Major identified
different controlled access zones for the different types of workers. For example, only the five
strippers and the stacking crew were allowed on the stripping floor. (Tr. 1212). Other trades,
however, could access the areas. (Tr 1212). Buttino testified that it was his responsibility to
ensure that workers abided by the fall protection plan on the framing deck. Phil Miller took over
this responsibility on the deck, and Ed Craffey took over that responsibility on the stripping
floor. (Tr. 1214).

Buttino conducted weekly safety meetings. Issues covered included “safety rules” such as hard
hats, safety glasses, and floor openings . (Tr. 1218- 1220). The employees were instructed to use
their safety glasses whenever they were cutting, and, according to Buttino’s testimony, Major
provided safety glasses to all carpenters. (Tr. 1218-1219). He testified that he also discussed
issues relating to the two men assigned to the hoist, and the hoist’s controlled access zone. (Tr.
1222) Buttino testified that the issue of guardrails was specifically discussed during the
November 16, 1998 meeting, when the workers were told to install the preliminary guardrail
once the deck was 20% completed, and that the guardrail on the framing floor should stay up as
long as it could, until they had to start stripping the floor below. (Tr. 1220). On other dates, the
workers were told that if the guardrail is not up, Buttino would send out two guys with safety
belts. (Tr. 1221). The men were also told to position railings around the elevator shaft after they
passed the material up, and to cover the opening completely after the material was passed up.
(Tr. 1221).

Buttino testified that he specifically discussed leading edge work and fall protection on
December 15, 1998, when he told the workers about “working in pairs, working safe, working
from the inside of the building out.” Buttino testified that, by that time, Major was providing
lanyards to the workers on the stripping floor. Therefore, he believed, he did not have to discuss
the use of personal fall protection. (Tr. 1222-1223). Safety meetings also covered controlled
access zones for the four floors where Major was working, (Tr. 1223), and the use of safety belts
for certain employees. (Tr 1223). In addition to the weekly safety meetings, safety notices were
mailed with the employees’ paychecks. (Tr. 1225, 1226).

Buttino also testified that he knew of only one instance in which an employee who should have
been using a safety belt failed to re-attach himself after taking a work break. (Tr. 1225-1226).
(The instance was caught on videotape and became a basis for the issuance of Citation 2 Item 1a,
discussed more fully below). The employee was only “yelled at a little bit” (Tr. 1234).

Testimony of Phil Miller

Phil Miller, Major’s top deck carpentry foreman, testified that the fall protection plan for the 30
River Court project instructed employees to always work from the inside of the building out, to
always face the edge of the building and to kneel down as one nears the edge. (Tr 1328-1329).
Mr. Miller further testified, that, as foreman, he monitored the carpenters working on the top
deck, working on the leading edge. (Tr. 1330-1331). He testified that there was a controlled
access zone on the deck, which he described as “the whole working area”. (Tr. 1329).

Testimony of Steven Koc

Respondent called to the stand Steven Koc, the Major employee assigned to clamping and
stripping columns, who was caught on videotape clamping columns without a safety harness.
(Tr.1337-1343). Mr. Koc testified that he usually wore his harness when working, but in only
this one instance, had taken a break, and forgot to put it back on. (Tr 1339).

Respondent’s Expert: Louis Nacamuli

Respondent’s engineering expert, Louis Nacamuli, (“Nacamuli”), issued a report, and testified
with respect to the feasibility of conventional fall protection for Major’s work at the job site. His
report, (Exhibit R 19) defines the moving deck, being constructed out of form work as leading
edge. His report identifies primary fall protection as guardrails, and secondary fall protection as
a personal fall arrest system, or safety nets. (R19 ). Without differentiating between leading edge
work and non-leading edge work, Nacamuli’s report states, generally, that secondary fall
protection is, “not a feasible method for fall protection of employees during the normal work
activities in high rise concrete construction.” (R19). Specifically, the report submits that
guardrails cannot be installed until the leading edge work is concluded. Once the floor is placed,
however, and the columns are stripped, the report indicates that the guardrail must be removed
because it is attached to the supporting framework. (R. 19). It is also Nacamuli’s opinion that
personal fall arrest systems were not feasible for protection of any of employees in the fall
protection related citations, because there was no reliable structure that could be used for
attachment points. The deck structure, according to his report, could not be used because it is
temporary in nature.

During his trial testimony, Nacamuli explained that form work is designed to support vertical
loads of concrete, and not to withstand lateral challenges. (Tr. 1368). It is designed to come
apart very easily, to enable the forms to be stripped with the least amount of damage to the
integrity of the wooden forms material. (Tr. 1368, 1399) Specifically, He opined that the
stringers would be inappropriate as anchors, because they were only toe nailed as a temporary
form for the concrete. (Tr. 1369). Legs likewise could not be used as anchors because they were
merely wedged, designed to be readily removed with a sledge hammer. Any horizontal load,
therefore, would pull them out. (Tr.1370 - 1371). In his view, there is likewise no appropriate
place to anchor a personal fall protection system on the stripping floor. (Tr. 1372). The shores
for the concrete could not be used as an anchor because they are not perpendicular. ( R.19).
Nacamuli admitted, however, that the ACI standard for lateral load is a very basic requirement
that the form work has to stand up and hold its shape, (Tr 1392), and that form work can be
designed to support a foreseeable load. (Tr 1394).

According to Nacamuli’s report, the concrete decks could not be used as an anchorage support
because the concrete would not have cured to the necessary strength at the time the employee
working on the floor needed protection. (R.19). Nacamuli testified that the concrete floor below
the framing deck would not be strong enough to support an attachment until it reached at
approximately 2,200 pounds a square inch,

which he testified would not occur until after a
minimum of one week following the pour. (Tr. 1370-1371, 1379). Because of the two day pour
cycle at the 30 River Court job site, the cement floor below the framing deck would have been
less than 24 hours old, and he testified, therefore would not have attained sufficient strength to
support lanyard attachments. (Tr. 1370-1371). The concrete columns and deck on the stripping
floor, one level below, could not be used for the same reason. (Tr 1372-1373). Similarly, the
concrete on the stacking floor would not have sufficient strength as it was only four days old.
(Tr. 1373). Mr. Nacamuli further testified that the concrete decks would, likewise not have
reached the “required strength of 2,500 pounds” in one day, which he believes is necessary to
support a net or other anchorage in one day. (Tr. 1378).

Mr. Nacamuli also testified that guardrails were a feasible means of fall protection on the top
deck, but not until 10 to 20 percent of the floor was constructed. In his view, it would be
impractical to walk along the edge, and install a guard rail on a stringer. (Tr 1373-1374).

Nacamuli likewise opined that a guardrail is not a feasible means of fall protection on the
stripping floor, until after the floor is stripped. First, he contends, concrete shores located at the
edge of the structure would interfere with the placement of the guardrail. Second, the guardrail
would interfere with the stripping of the exterior columns. (Tr. 1374-1475).

Nacamuli’s report indicates that nets would not be a feasible means of fall protection for
employees working at 30 River Court job because, “A net system relies on a stable secure
anchorage point to secure the nets. Information provided by manufacturers of safety straps state
that the safety straps can only be attached to a permanent, stable structure and, therefore, cannot
be used in this type of construction.” (R. 19). In explanation, he testified that workers could
not access the floor to attach the nets until between five and seven days into the cycle. At that
point, however the net would be lower than 30 feet from the floor the net was intended to
protect. (Tr. 1378). Even then, he opined, the concrete might not have reached the necessary
strength to support the nets. (Tr. 1376). Furthermore, in his opinion, a perimeter net would get in
the way of the crane hoist. (Tr. 1377).

Complainant’s Expert Witness, Mathew Burkart

Engineer Mathew Burkhat, (“Burkart”), testified that fall protection was feasible on the Thirty
River Court project. On the top deck, he suggested that the ribs could have been designed with a
guardrail pre-attached, at the least to protect falls in the outer perimeter of the building. (Tr.
1410). Also, a fall restraint system could be anchored into the forms. This, Burkart testified,
would act like a leash, preventing the workers from walking beyond the edge, as opposed to a
fall arrest system, which is designed to hold the worker’s body in a fall. (Tr. 1411-1412). He also
testified that nets could be installed on the perimeter to protect any employees falling from the
edge. (Tr 1412). With respect to attaching anchors to the concrete slabs to support perimeter
nets, Burkart testified that if the concrete is strong enough to be stripped, it should be strong
enough to support nets, as well as fall restraints and fall arrest systems, and that the engineer on
site should have documented the strength of the concrete, in any event. (Tr. 1413). Burkart
admitted that it is not practical to maintain a guardrail system while constructing leading edge.
However, he testified that a guardrail should be constructed once the perimeter is reached. (Tr.
1427).

Turning to the framing deck, Burkart noted that a guard rail system supported by the forms
below was in place. In any event, he testified that a guard rail system could be installed on the
framing deck between the columns. (Tr. 1413-1414). Alternatively, a fall restraint system could
be used on this floor, by tying back to either a floor opening, or to one of the columns on the
framing floor, to restrain the person from the edge of the building, (Tr 1413-1414), or a
perimeter net could be used. (Tr. 1413). Finally, according to Burkart’s testimony, it was feasible
to install a fall restraint system on this deck, by choosing specific locations where the rib and
stringer would be secured sufficiently to support a fall restraint system. (Tr. 1439). In those
locations, the contractor may have to add one or two nails to the forms, and use eight penny
double nails instead of three-penny nails. (Tr. 1439).

Burkart also testified that fall protection was feasible on the stripping floor. (Tr 1414-1415). The
types of fall protection he identified included nets, a fall restraint system tied to a stripped,
interior column, or a wooden guard rail or wire rope system placed around the building to
provide a guard rail. (Tr. 1415). The guard rail would not, he opined, interfere with the stacking
of materials because one could let the materials project out underneath the guard rail, if
necessary. When the material is going to be lifted out, one would disconnect that section of the
guardrail and hoist the materials out. The workers disconnecting the guardrail and working in the
hoist space could be protected by use of a personal fall restraint system. This same procedure
could be used on the stacking floor, below the stripping floor. (Tr. 1415-1416).

Burkart also testified that perimeter nets could be placed three levels below the level being
formed. If, however, the top deck were protected by a guardrail, one could move the perimeter
net down to open out the stacking floor, allowing the perimeter net to protect the three levels
above it. (Tr 1418, Tr 1428).

With respect to the ability of concrete to support loads, Burkart testified that not all concrete
manufacturers require a minimum of concrete strength in order to support a net. He indicated
that the size of the nets and the type of anticipated loading is taken into consideration. Further,
he testified that recent developments have all but eliminated the requirement that a specific
minimum strength be established before the net is anchored. (Tr. 1428). Generally, 2,000 pound
concrete is a reasonable number to look at for a standard of the strength of concrete. (Tr. 1429).

However, if the concrete is strong enough to support itself and the loads imposed by the form
work installed above it, an anchorage imbedded in the concrete should be strong enough to
support a safety strap. (Tr 1420). Burkart further testified that ACI Code Section 347 requires
that concrete have 70 percent of its strength before the forms are stripped. However, an engineer
on the project may approve earlier stripping, on a case by case basis. (Tr 1432-1433). With
respect to the cure rate of concrete, generally, Burkart testified that under ideal conditions, 75
percent will cure in seven days or less. Additives, however, can speed that cure rate in one, two
and three days. (Tr. 1434-1435). A determination in each case, as to whether concrete is strong
enough to support removal of the forms and anchorages, can be made by conducting field cured
samples, on-site testing, and impact or dynamic testing in the field. (Tr. 1436, 1437-1438). In
any event, Burkart testified, it is important to consider what safety measures you will require
before you bid for the job; indeed it is common industry practice to do so. In this way, the
contractor considers the cost of safety in the terms of the contract. (Tr. 1419).

Complainant’s Expert Daniel Paine

Complainant’s safety consultant expert, Daniel Paine, (“Paine”) likewise testified that fall
protection was feasible at the job site. (Tr 1449-1454). Like Burkart, Paine opined that guardrail
posts could have been installed on the exterior portions of the stringers, for the placement of a
guardrail on the outer perimeter of the top level. (Tr.1457). The leading edge workers could be
protected by use of a fall restraint system anchored by nail to the plywood and into a rib or
stringer. He testified that the contractor might have to beef up that particular area, in order to
support the anchor. (Tr 1458-1459). He suggested, alternatively, that the contractor anchor fall
arrest systems to the form work, but the forms would have to be designed differently than they
were at this job site. (Tr. 1459).

Paine opined that perimeter nets are feasible alternatives to protect the workers on the top level,
if preplanned. (Tr. 1459). Like Burkart, Paine testified that a dynamic load test should be
performed once the net system is anchored to the building. Paine’s suggested test would involve
dropping a 400 pound sand bag into the net, at the weakest points. This would provide 10,000
foot pounds of force, which Paine felt is sufficient to catch a man falling 30 feet into the safety
net. (Tr. 1460-1461). Paine claims to having installed hundreds of theses types of systems. (Tr.
1461).

Pain further testified that a guardrail system was certainly feasible on the framing floor. The
guardrail could be “up from the floor stripping”. Alternatively, perimeter nets or a fall restraint
or fall arrest system are feasible. (Tr. 1462). A fall restraint system, his first choice of the two
personal fall arrest systems for this deck, could be anchored into the framework of the forming
deck, or anchored into the concrete floor at the perimeter. Anchors could be tested for strength.
(Tr. 1463). He testified that a minimal number of anchors at the perimeter would be required.
(Tr. 1463-1464).

Paine testified that workers on the exterior of the stripping floor could be protected in a number
of ways, but that the contractor should pre-plan its safety program. If properly pre-planned,
pour in place anchors could be attached over rebar in the columns, before the concrete pour. This
would allow for the attachment of safety lines to these anchors, once the columns are stripped
(Tr. 1465-1466). He further testified that, if the floor is stripped from the inside out, workers
could tie off to a concrete column behind them, in order to strip the forms from the edge of the
building. Interior workers, obviously, would not need to be tied off. (Tr. 1465-1466)
Alternatively, Paine suggested that inserts could be installed into the columns to anchor the
safety lines. Paine identified at least one company which uses this latter method. (Tr. 1466). Tie
off points at the perimeter could also become one of the points to use for a guardrail system. (Tr.
1467).

A guardrail is similarly feasible on the stripping and stacking decks, and would not interfere
with stacking material because the contractor could stack the material below the guardrail in the
hoist area, or stack the material in an area where a portion of the guardrail has been removed.
(Tr. 1467). Workers in the hoist area with a removed guardrail could then be attached to a
personal fall arrest or restraint system. (Tr. 1467).

As a “rule of thumb”, Paine testified, once the forms in a pour in place structure are stripped, the
concrete should be strong enough to anchor fall restraint or arrest systems. (Tr 1467-1468).
Again, he stressed that dynamic testing should alleviate any fears about the strength of the
concrete. (Tr. 1468). Safety net systems can be anchored by a C-clamp onto the concrete slab or
anchored to the columns. It would take approximately six man hours per post to install the whole
safety net system. (Tr.1487).

Likening the plywood floor to a storage floor, Paine testified that a guardrail , in place at this
level, would provide appropriate fall protection. (Tr. 1470). The stacked material could be placed
under the guardrail. Alternatively, the section of the guardrail where the material is stacked
could be removed. Necessary workers in that area could then use a personal fall restraint
system. (Tr. 1470).

Paine also testified as to ways to avoid having a perimeter safety net interfere with the material
crane. First, the safety net could be cantilevered out in the hoist area. Planning would be required
at this point so that the workers working in the hoist area on this floor, as well as the workers
working in the area but on higher floors are protected by personal fall arrest systems.
Alternatively, the workers could be removed from the area while the material is being removed.
(Tr. 1471).

Under cross-examination, Paine testified that he was involved in a similar construction job in
Virginia wherein a safety determination was made that personal fall protection systems were
infeasible for the workers performing leading edge work on the interior of the building. Paine
testified that such a system would be difficult because the employees performing leading edge
work would constantly have to tie off as each portion of the edge progresses. (Tr 1474). Paine
therefore instituted a controlled deck zone for the leading edge work on the interior of the
building. (Tr. 1475). Once the work reached the perimeter, however, he testified that the
contractor needed a fall protection system. At the Virginia site, safety straps were used by the
workers performing leading edge work once they reached the perimeter. (Tr. 1477-1478).

Discussion

Polites as a named Respondent

First, I address the propriety of citing Michael Polites individually. In this instance, I find that
the Secretary failed to submit evidence during the trial sufficient to prove that Polites was an
employer, as that term is defined by Commission precedent.

It is clear that only an employer may be held liable for violations that effect the safety and health
of its employees. Van-Buren-Madawaska Corp . 13 BNA OSHC 2157, 2158, ( Nos. 87-214, 87-217, and 87-450 through 459, 1989). In this regard, the Commission has formulated an
“economic realities test” to determine whether an employment relationship exists. The test
requires an inquiry into factors specifically enunciated in Griffen & Brand of McAllen 6 BNA
OSHC 1702, (No.14801, 1978). These include, “(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 hire, fire, or modify the employment condition of the
workers? (6) Does the workers’ ability to increase their income depend on efficience rather than
initiative, judgment and foresight?, (and), (7) How are the workers’ wages established?” Id, at
1703. (See also, Sinisgalli 17 BNA OSHC 1849 (No.94-2981, 1996), allowing for the citation of
an individual where the workers believed their employer was the individual Respondent who had
hired them directly, Id at 1851).

It is not disputed that Polites is a 4% shareholder and President of Major Construction, (Tr.
1120), and drives a vehicle owned by the corporation. ( Tr. 113, 1123). As President, Polites
hired Mr. Lee. ( Tr. 1135). Polites testified that his responsibilities included estimating and
bidding for the job, acting as a referee, and working on the plans in the office. (Tr. 1125-1126).
He did not have the ability to hire or fire any individual workers at the job site, as only the
individual foremen had that power through the union. ( Tr. 1130-1132). Polites testified that
decisions regarding day to day operations at the job site were made by Mr. Lee or the individual
foremen. (Tr. 1129)

There was no testimony that any of the workers considered Polites to be their employer. Major
paid the union benefits, worker’s compensation insurance, general liability insurance and
employment taxes for the job site. (Tr. 1143-1444). There was no evidence that Polites had any
input into how much the workers were paid and what factors would influence the amount of their
salaries. Not one employee statement was offered to establish that any worker believed that he
was employed by Polites. Further, the evidence adduced at trial depicted Buttino and Rufalo,
rather than Polites, as making decisions regarding safety and fall protection. (Tr. 1146-1158)
For example, Rufalo directed and controlled Mr. Lee’s preparation of the fall protection plan,
(Tr. 1061-1062).

It cannot be argued that Polites did not have some control of the job site. It is undisputed that he
could fire Mr. Lee, and he held himself out as having the authority to deny access to the job site
to various compliance officers during the course of the investigation. This type of control,
however, does make him an employer, under the Act.

The Secretary argues that Polites’ control over Major Corporation and the job site at issue herein
were sufficiently strong so as to warrant a determination that Polites was an employer, and that
any protections from personal liability Polites may have by virtue of the incorporation of Major
should be overlooked. In support of her argument, the Secretary refers to testimony taken during
party and witness depositions, (admitted into the trial record as Exhibits 26 through 31, Tr. 950,
but marked as Binder two, Exhibits 1 - 6). However, there is insufficient evidence to identify
Polites as an employer under the criterion set forth in Griffen & Brand of McAllen supra.
Polites deposition testimony is more to the effect that the various foremen controlled the
workers, (Complainant’s Binder 2, Exhibit 3, p. 21), and that Polites, alone did not make the
decision to continue working following the posting of imminent danger, [Complainant’s Binder
2, Exhibit 3, p. 38, line 18, “Yes we did...” (emphasis supplied )], Polites was not on site every
day, (Complainant’s Binder two, exhibit 4, page 49, lines 14-18), and remained in the trailer
when he was on site. (Complainant’s Binder two, exhibit 4, page 51, lines 20-24). While Polites
himself signed the contract for 30 River Court, his son, another officer, also had authority to do
so. (Complainant’s Binder two, Exhibit 4, page 64, lines 11 - 16). Each foreman made decisions
about day to day operations, (Complainant’s Binder two, exhibit 4, page 71, lines 13 - 20).

Buttino identified his employer as Major, not Polites, when questioned on this issue during his
deposition. (Complainant’s Binder two, Exhibit 5, Page 5, lines 20 - 22). Buttino further
affirmed that he reported to either Don Lee or Polites, (Complainant’s Binder Two, Exhibit 5,
Page 8, lines 3 - 5). Buttino, however, was in charge of the day to day operations.
(Complainant’s Binder Two, Exhibit 5, Page 9, lines 1- 3), and he and Mr. Lee worked on the
fall protection plan. (Complainant’s Binder Two, Exhibit 5, Page 30, lines 7 - 13). There is no
testimony that Polites paid the workers, or that any of the workers believed they were employed
by Polites, rather than Major. There is thus insufficient evidence to establish Polites as an
employer, either in the trial transcript or in the trial exhibits.

Given that there is insufficient evidence to identify Polites as an employer in his own right, it is
questionable whether OSHA may nonetheless assert jurisdiction over Polites under the theory
that facts may be presented which would support a decision to disregard the personal liability
protections afforded Polites by the State of New Jersey through the incorporation of the
business concern. In other words, where an individual is not an employer, but is an officer of a
corporation which is an employer, may OSHA assert jurisdiction to inquire whether there are
sufficient facts to warrant piercing the corporate veil and holding the individual officer
responsible ?

In this case, however, the question is moot. Even if such an inquiry were appropriate, the
evidence in this case does not disclose sufficient facts which would warrant a piercing of the
corporate veil. It is well settled that a Court will generally not pierce the corporate veil to hold an
individual shareholder liable for the acts of a corporation, absent fraud or injustice. In this case,
the evidence is insufficient in this regard. There is no evidence that Polites received any
proceeds beyond his salary. Indeed, the evidence indicates rather that any proceeds were
funneled back into the business concern. It does appear that no dividends to the shareholders
were paid, however, the corporation was newly formed, and had undertaken only one job as of
the date of the OSHA investigation. Polites himself was a minor shareholder, and had given
authority to at least one other officer, his son, to execute contracts on behalf of the corporation.
The corporate office was maintained on a separate floor of Polites’ house, and a warehouse was
leased for the purposes of storing supplies. There was no siphoning off of funds, and
Complainant presented no evidence that the corporation is insolvent. Further, Complainant failed
to submit evidence that Polites had such control of the corporation as to be its alter ego. Rather,
it appears that decisions regarding safety and day to day operations were made by the foremen at
the site, and the engineer, Mr. Lee. It is also clear that the other officers performed valuable
functions for the corporation.

In support of its argument, Complainant relies heavily on United States of America v Pisani 646
F.2d 83, (3 rd . Cir., 1981). The evidence in Pisani , established that the sole shareholder had
siphoned off $184,000 from the corporation over the course of two years, and that his
withdrawal of the bulk of the money was made at a time when he knew the business concern was
on the verge of bankruptcy. Major Corporation is an ongoing concern, as is Polites’ earlier
corporation, M.J.P. In fact, it is clear that the latter corporation maintains assets of some kind as
it leased a construction truck to Major for use during the 30 River Court job. The evidence would
not, therefore, support a determination that Major Corporation was a mere facade created for
the personal gain of Polites.

Duplication of Items in Citation 2

OSHA cited Respondent three times in Citation 2 for a violation of 29 CFR 1926.501(b)(1),
(Citation 2 Item 1 a; Citation 2, Item 2a; and Citation 2 Item 3a), three times in Citation 2 for a
violation of 19 CFR 1926.501(b)(3), (Citation 2, Item 1b; Citation 2 Item 2c; and Citation 2,
Item 3d), one time in Citation 1 and two times in Citation two for violations of 501(b)(2)(I),
(Citation 1, Item 3; Citation 2, Item 2b; and Citation 2 Item 3b), and one time in Citation 1 and
one time in citation 2 for a violation of 29 CFR 1926.501(b)(4), (Citation 1, item 4; Citation 2,
Item 4). All Citation 2 violations are classified as willful citations, and each bears a separate
proposed penalty.

As is discussed below, it was appropriate to classify Citation 1, Item 3 and Citation 1, Item 4, as
serious citations. Following the instances which resulted in the identification of these items,
OSHA compliance officers told Major personnel about the instances, advised them of the
standards, and suggested various abatement methods. Major, however, continued to fail to
provide appropriate fall protection, and, as is discussed relative to each violation, it was suitable,
therefore, to issue later, citations classified as willful, even though the violations involved the
same standard. See, e.g. Hoffman Constr. Co 6 BNA OSHC 1274, (No. 4182, 1978), where the
Commission allowed for duplicate penalties for violation of the same standard where the
hazards to which the employees were exposed resulted in the classification of one violative
instance as non-serious, and the other as serious. Id, at 1275.

The duplication of the citation items within Citation Two is a different matter. Arguing that the
standards violated allow for instance by instance treatment, the Secretary grouped the instances
charged in Citation Two, by, first, all those which occurred prior to the posting of imminent
danger, for each standard. [Thus, Citation 2, Item 1a involves instances of violations of 29 CFR
1926.501(b)(1) which occurred prior to the posting of endangerment, and Citation 2, Item 1b
involves all instances of violations of 29 CFR 1926.501(b)(3)] Second, the Secretary grouped
instances which were observed after the posting of imminent danger on floors 27 through 30 as
Items 2a through 2c, for each standard violated. Finally, the Secretary grouped instances
observed on the “30 th floor through the 33 rd floor”, as items 3a through 3c. ( See , Secretary’s
brief, p. 108).

At issue is, first, whether it is suitable to assess separate penalties for the violation of the exact
same standard, involving the same form of possible abatement. In this case, the Secretary issued
up to three separate items per standard requiring the use of appropriate fall protection. The
Secretary presumably issued the citations in this fashion under the “egregious willful doctrine”,
(see, e.g. The Secretary’s post-hearing brief at pp 106-107). As enunciated in Caterpillar 15
BNA OSHC 2153, (No. 87-0922, 1993) and explained in A.S Haley Co. 17 BNA OSHC 1145,
at 1151, (No.89-1508, 1995), the Act does not prohibit instance by instance treatment in willful
egregious cases where the “unit of prosecution” is an individual act, as opposed to an overall
course of conduct.  Id , at 1151. The Commission has also held that separate penalties for
violations of the same standard may be assessed where the regulation allegedly violated prohibits
individual acts, as opposed to a single course of action. Caterpillar , Supra, at 2172.

The standard at issue in Caterpillar , 29 CFR 19042 (a), directed employers to maintain a log of
all “recordable” occupational injuries. It was determined that the employer failed to record 194
separate recordable injuries. Each failure to record an injury was deemed a separate and distinct
act in violation of the standard. One entry, or one course of conduct, would not have effected the
193 other instances. Therefore, each failure warranted separate treatment and a separate penalty.
Id. . The Commission has further allowed instance by instance treatment for violations involving
a failure to provide appropriate fall protection. See J.A.Jones  15 BNA OSHC 2201, (No. 87-2059, 1993).

The Commission further elucidated the application of instance by instance treatment when
dealing with a specific standard in Sanders Lead Co, 17 BNA OSHC 1197, (No. 87-260, 1995).
In determining whether violations involve individual acts or one course of conduct, Sanders
Lead Co requires reference to the terms of the standard allegedly violated. Id, at 1203. The
standard at issue at issue in Sanders Lead , for example, prohibited individual acts, because the
language directed employers to “perform either quantitative or qualitative face fit tests at the
time of the initial fitting and at least every six months thereafter for each employee wearing
negative pressure respirators”. Id , at 1203. The Commission ultimately determined that the
language of the standard permitted instance by instance assessment because it required “an
evaluation of the individual employees’ respirators under certain unique circumstances peculiar
to each employee”. Id, at 1203.

The first standard at issue in this case, 29 CFR 1926.501(b)(1), (cited in Citation 2 Item 1 a,
Citation 2, Item 2a and Citation 2 Item 3a), provides that , “... Each employee on a
walking/working surface, (horizontal and vertical surface) with an unprotected side or edge
which is 6 feet (1.8m) 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” Id . The standard mandates
that an employer provide certain appropriate fall protection for each employee. The language of
this specific standard does not, however, require an evaluation of each individual employee’s
protection needs under circumstances unique to each employee, as did the standard in Sanders
Lead , supra. Likewise, 29 CFR 1926, 501 (b)(3), (“Each employee in a hoist area shall be
protected from falling 6 feet or more to lower levels by guardrail systems or personal fall arrest
system....”) looks to the safety protection which should be provided, rather than calling for an
individual employee evaluation in each instance. (This standard is cited three times, in Citation
2, Item 1b, Citation 2 Item 2c, and Citation 2 Item 3d). The language of 29 CFR
1926.501(b)(2)(i), (the standard cited in Citation 2 Item 2b, and Citation 2 Item 3b), likewise
does not require an individual determination for each individual employee. (The standard
provides, in pertinent part, that “Each employee who is constructing a leading edge 6 feet (1.6m)
or more above lower levels shall be protected from falling by guardrail systems, safety net
systems or personal fall arrest systems...” Id.

The conduct in Caterpillar required that a separate decision be made as to whether each claimed
injury or illness was recordable. It thus required an evaluation which differed with each new
employee involved. Unlike the conduct in Caterpillar , the conduct in question in this matter
involves Respondent’s failure to provide fall protection to workers at or near the edge. The
standard does not require that a separate evaluation be made as to each exposed employee. Two
of the standards cited allow for any one of three options, including safety nets, guardrails or a
personal fall arrest system. One standard, [29 CFR 1926. 501(b)(3)] allows for any one of two
safety measures.

The course of conduct at issue is Major’s failure to provide fall protection to its employees
working at the edge, on the leading edge or in a hoist area at 30 River Court. The standards do
not require that an individual determination be made based on each employee. Under this
evaluation, I find that these items in Citation 2 are not appropriate for instance by instance
treatment. Under the precedent set in Cleveland Consolidated Inc. 13 BNA OSHC 1114, (No.
84-696, 1987), Capform Inc . 13 BNA OSHC 2219, (No. 84-0556, 1989), .and General Electric
Co. 10 BNA OSHC 1687 (No. 77-4476, 1982), therefore, I group all the items in Citation 2
according to the standards violated.

In any event, the grouping proposed by the Secretary appears arbitrary, given the standards
cited. The posting of imminent danger does not in this instance support a separation of two
willful instances of violation of one standard. While the endangerment notice bears on a
heightened sense of awareness and may, if necessary, support a finding of wilful behavior, or
support duplicate failure to abate citations, it does not effect whether actions comprise one or
more course of conduct, and has no bearing on the type of abatement.

The Secretary explained that the instances comprising Item 2a to 2c were separated from the
instances comprising Item 3a to 3d, because one perimeter net would have abated the hazards
for the Item 2 instances, as those involved floors 27 - 30. Under the Secretary’s reasoning, a
second perimeter net would be required to protect employees exposed in the instances
comprising Item 3, because they occurred on decks which were more than three floor over the
first floor identified in Item 2. I find the Secretary’s argument in this regard also unpersuasive.
First, the instances involve one building which was constructed at the rate of one floor every
two days. It was not disputed that Major worked only on the top three or four floors at any one
time. Floor 31 was not in existence at the time Major was at work on floor 27. Therefore, at no
one time was there ever an instance when two separate safety nets were required at the job site.
Second, the Secretary’s grouping makes no logical sense when applied to the separation of the
instances involving the observed violations of 29 CFR 1926. 501(b)(3), (“Hoist Areas”), because
the applicable standard does not specify perimeter net as an acceptable method to protect
employees in a hoist area.

Rather, separate consideration should have been given as to the safety measures provided for
employees based on whether the employees were in the hoist area, working on the leading edge,
or merely at an edge. The regulations already provide separate standards for each of these areas.
It is therefore appropriate in this instance to group the items according to the standards violated.

The Serious Citations

Citation 1, Item 1

This item was charged for three instances of violations of 29 CFR 1926.95 (a). The standard
requires that,

Protective equipment, including personal protective

equipment for eyes...shall be provided, used and

maintained in a sanitary and reliable condition

wherever it is necessary by reason of hazards of

processes or environment, chemical hazards...or

mechanical irritants encountered in a manner

capable of causing injury or impairment in the

function of any part of the body through absorption,

inhalation or physical contact.

The citation identifies three instances in which employees performing forms related work were
observed using power activated tools without appropriate eye protective gear. Instance a
occurred on January 12, 1999, when CO Jensen saw and videotaped two employees cutting
plywood with a power saw, with no eye protection. (Tr. 326-327). The corresponding video
depicts one employee using the saw, and another holding the plywood. Instance b occurred on
January 19, 1999, when CO Jensen videotaped an employee placing fasteners into the shoring
and into the concrete with the use of a power activated tool he identified as a “hilty gun”. (Tr.
355-357). Apparently, this employee did not know he was required to wear eye protection under
these circumstances. (Tr. 665). Instance c was observed the same day as instance b, when CO
Jensen testified to observing an employee using a power tool without eye protection, and that the
exposed employee was seen on earlier days using power tools without eye protection. (Tr. 357).
The corresponding videotape depicts two employees using power saws, while two more
employees look on. It is impossible to tell from the video whether the employees were wearing
eye protection while they were using the saw. After they stopped sawing, however, it appears
that one is wearing sunglasses,

and the other is wearing what appears to be eye protection. CO
Jensen testified that Major was present on the floor. (Tr. 664).

To prove a violation, the Secretary has an initial burden of establishing that “(1) the standard
applies, (2), the employer violated the terms of the standard, (3) Respondent’s employees had
access to the violative condition, and (4) the employer had actual or constructive knowledge of
the violative condition.” Gary Concrete Prids., Inc 15 BNA OSHC 1051, 1052 (No. 86-1087,
1991). The Secretary met her burden of proving that the standard applied, as the identified
employees were not using personal protective equipment to protect their eyes from form work
particles or other irritants. It is clear that the employees in instance a and b were not wearing eye
protection. Instance c is more difficult, as it is not clear from the video that the workers were not
initially wearing eye protection. However, CO Jensen testified unequivocally that one worker
was not wearing eye protection while using the power activated tool, and Respondent submitted
no evidence to the contrary. Thus, I find, in all instances, that the standard applied. The
evidence also indicates that the standard was violated in each instance, as an employee was
exposed to the possibility of eye injury from, in instances a and c, sawdust. In instance b, the
employee is exposed to the danger of splinters of plywood and concrete shards, chips, flakes or
even a misdirected fastener that may be shot out of the structure by the application of the hilty
gun. The evidence further demonstrates that Respondent’s employees had access to the
violative condition. The workers exposed in each instance were performing concrete forms work,
and were within arm’s length from the hazard.

I find, however, that Respondent had knowledge of only instance b. Knowledge will be
imputed if the employer “knew, or with the exercise of reasonable diligence, could have known
of the presence of the violative condition”. George Campbell Painting Corp. 18 BNA OSHC
1929, 1933 (No. 94-3121, 1999) citing Halmar 18 BNA OSHC 1015, 1016 (No. 94-2043,
1997).

With respect to Instances a and c, there is no evidence that Major had actual knowledge of the
violations. With respect instance a, there is no evidence that a superintendent from Major was
present on the deck at the time the violation occurred. With respect to instance c, there is an
implication in CO Jensen’s testimony, that Major representatives were present on the deck
during the violation, (“Q: ...And sir, you don’t know...whether or not anyone from Major knew
at the time whether these employees were wearing eye wear? A: No, but they should have know,
they’re right there on the work floor. If they had been inspecting, I think they would have caught
that” Tr. 664 - 665.). CO Jensen, however, failed to specify whether the representative on the
floor was a superintendent, foreman, or other employee through whom knowledge could be
imputed to the employer. Further, the violation is transient in nature; it occurred only as long as
the workers were cutting. A regularly conducted safety inspection would disclose the violation
only if the workers were sawing at the precise moment the inspection was underway.

The record demonstrates that Major made reasonable efforts to anticipate the particular hazard
observed in instances a and c. Employees were put on notice of the general requirement to wear
safety goggles for jobs involving cutting forms, and for a few other specified instances. Buttino
testified that he supplied the employees with eye protection, and that there was only one
employee who did most of the cutting on the job, and that he had eye protection. (Tr. 1266-1267). Further, Respondent’s written safety rules direct that “safety goggles and/or other face
protection shall be worn when chipping, welding, grinding or during other operations where eye
injuries may result”. (Complainant’s Exhibit 6, paragraph K). The rules were delivered to the
workers together with their paychecks. (Tr. 1237). Buttino also testified that the carpenters
were given safety goggles, and that the use of safety goggles, during cutting, was discussed
during the weekly safety meetings. (Tr. 1229-1232). Thus, it appears that Respondent took
reasonable, diligent measures to advise the workers of the necessity of wearing safety goggles
while cutting forms.

There is no evidence, however, that Respondent made efforts to ensure that workers wore
protective eye wear while attaching forms to concrete with the use of power automated tools
such as a “hilty gun”. Buttino did not tell the workers that they should wear protective eye wear
while attaching form work to concrete during his safety meetings. Constructive knowledge may
be imputed to the employer with respect to this instance. As a consequence, I find that the
Secretary met her initial burden with respect to this citation item.

Classification and Penalty Consideration

The classification of this item as “serious” is affirmed. The worker was exposed to a serious
personal injury, which included possible blindness. A penalty of $1,500 was charged, based on a
high severity gravity base determination, with a low probability of occurrence. (Tr. 993).
Further, Respondent was given a 40 % reduction for size, but no reduction for good faith. (Tr.
992-993). The hazard presented in the sole remaining instance supporting this violation,
(instance b), is of high severity, as the loss of an eye may occur. There is, however, no evidence
of prior instances of violations of this nature. Therefore, I reduce the penalty to $500.00, one
third of the initial penalty assessed for this item.

Citation 1, Item 2

Respondent was cited under one instance for a violation of 29 CFR 1926.405(b)(1). This
standard requires, in pertinent part, that,

Conductors entering boxes, cabinets or

fittings shall be protected from abrasion,

and openings through which conductors

enter shall be effectively closed. Unused

openings in cabinets, boxed and fittings

shall also be effectively closed.

Id . The Secretary claims, specifically, that Major employees were exposed to an activated,
electrical panel with open fly parts, approximately six feet from stairs. (Tr. 359-360).

CO Jensen, the officer who provided the information for this citation, testified that he observed
and videotaped the “clean up guy” for the concrete forms contractor walk by the open panel.
(Tr. 360-361). The panel was live. (Tr. 361). The video corresponds with his testimony,
depicting several concrete forms workers walking close to the open, live electrical panel on
what appears to be the forms deck. The standard thus applies to the instance. I further find that
Respondent violated the standard, as the panel was not closed. Also, the evidence indicates that
Respondent’s employees were exposed to the hazard; the video depicts concrete forms workers
within two feet of the open panel. Finally, while there is no evidence that any Major employee of
a supervisory nature had actual notice of the condition, there is sufficient evidence that with
reasonable diligence, Major should have been aware of the violation. The open panel box was
located on what appears to be a forms deck, close to an open ladder used by Major employees.
This forms deck, in fact, is one of the areas identified by Major as one of its controlled access
zones. Respondent controlled the area. The open panel is obvious in nature and should have been
identified as a potential hazard during any even brief inspection. Therefore, I find that the
Secretary met her initial burden with respect to this item.

Respondent argues that the breaker panel was the responsibility of the electrical contractor, not
Major. Under commission precedent, however, an employer who did not otherwise create a
hazardous condition may not therefore avoid liability unless it establishes, first, that it did not
control the violative condition such that it could not realistically have abated the condition, and,
second, that it either made reasonable alternative efforts to protect its employees or, did not
have, and with the exercise of reasonable diligence, could not have had, notice of the hazardous
condition. Capform Inc. supra. . See also Kokosing Constr. Co. Inc . 17 BNA OSHC 1869, (No.
92-2596, 1996). Major should have been aware of the hazardous condition, in the exercise of
reasonable diligence. Further, it appears that no efforts at all were made to abate the condition,
despite the fact that Respondent’s employees were walking and working in the near vicinity,
within the zone of danger. Thus, the mere fact that the electrical contractor may have created the
hazardous condition will not absolve Major of responsibility in this instance.

Classification and Penalty Consideration

Major was assessed a penalty of $1,500.00 for this serious item, based on the potential injuries to
which the employees were exposed. The classification is affirmed as the potential hazard
involved possible electrocution and/or death. This penalty assessment of $1,500.00 is likewise
appropriate. The hazard was not merely transient in nature, and therefore presented a greater risk
to a larger number of employees. Nonetheless, Respondent made no efforts to abate the
situation.

Citation 1, Item 3

The Secretary issued this citation item for three instances of violations of 29 CFR
1926.501(b)(2)(i). The applicable standard provides, in pertinent part,

Each employee who is constructing a

leading edge 6 feet (1.8 m) or more

above lower levels shall be protected

from falling by guardrail systems, safety

net systems, or personal fall arrest systems.

Id . The standard specifically provides for an exception where the employer can demonstrate that
conventional fall protection is infeasible, or creates a greater hazard, in which case additional
formal safety measures are required, (i.e. maintenance of a fall protection plan).

CO Jensen testified that he observed two employees performing leading edge work a few feet
from the edge of the building on the 27 th deck, on January 7, 1999. (Tr. 265). The workers were
not protected by any means of fall protection. (Tr. 265). CO Jensen also later identified an
individual standing on a rib, watching the two employees perform leading edge work, as Phil
Miller, the carpentry deck foreman for Major. (Tr. 267-278). The video corresponds with the
compliance officer’s testimony. CO Jensen testified that this is the first instance that they
observed a violation of this specific standard at this job site.

Four days later, CO Jensen again observed and videotaped employees performing leading edge
work, on the 29 th floor. Specifically, he testified to seeing an employee engaged in the last step
of leading edge work within one foot of the edge of the building, with no means of fall
protection. (Tr. 301-302). The exposed worker was identified as a Major employee as he was
performing concrete forms related work. (Tr. 302, 304). This violation is identified as instance b.
On January 12, 1999, further evidence of violations of this standard were identified, although
the facts were not preserved on videotape. (Tr. 601). Specifically, CO Jensen testified that he
observed employees performing leading edge work on the perimeter of the building with no
means of fall protection, on the 29 th deck. (Tr. 601).

First, the standard applies. Leading edge is defined in 29CFR 1926.500, as “(T)he edge or 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.” Id . The employees were observed working on form work sections, either plywood,
ribs or stringers, as the top deck was being constructed, causing the edge to change location.
The exposed employees performing the leading edge work were observed at the exterior edge of
the building, with a fall hazard of a minimum of a 26 story fall, at least as to instances a and b.
Second, I find that the standard was violated. The evidence establishes that none of the
employees were provided with any form of conventional fall protection identified in the
regulation, despite the fact that they were performing leading edge work. Third, it is clear that
the workers performing leading edge work were Major’s employees, as the leading edge work
involved the creation of the top deck of concrete forms.

Respondent argues that there is no evidence that the workers exposed to fall hazards were Major
employees as the compliance officers did not testify that they confirmed their identities.
(Respondent’s post hearing brief, pp 31 - 34). Respondent’s argument is unpersuasive. It is
undisputed that Major was the concrete contractor, and that Major’s work on the job involved
the erection of concrete forms, including leading edge work. The record is replete with
references to the fact that Major employed and paid the salaries of the concrete forms workers.
Major should not now, therefore claim that it did not employ these workers.

Finally, I find that Major had knowledge of the violation. The evidence with respect to instance a
places one of Major’s foremen at the scene of the violation. This foreman, Phil Miller, was
described as having supervisory responsibilities. As such, knowledge to him can be imputed to
Respondent. Even in the absence of Miller’s identified presence, in instance b, I determine that
Major’s supervisors were well aware of the absence of guardrails, safety nets and personal fall
protection systems. As early as November 3, 1998, Polites was aware that no fall protection was
supplied to or used by the workers at the site. Thus, even if there is no proof that Major actually
knew of the occurrence of instances b and c, in the exercise of reasonable diligence, Respondent
should have had knowledge of the violations. The Secretary therefore has met her initial burden
with respect to this item.

Respondent argues that conventional fall protection was infeasible or created a greater hazard,
for workers performing leading edge work. As is discussed at length below, Respondent did not
meet its burden with respect to this defense.

Classification and Penalty Consideration

This item was classified as serious, and a penalty of $5,000.00 was assessed. The classification is
affirmed because workers were exposed to probably death. The penalty assessment is also
affirmed, based on the dangerous nature of the conditions, and the repeated requests for
compliance, (Tr. 994), and the fact that the instances occurred repeatedly.

Citation 1, Item 4

This item was issued for six instances of violations of 29 CFR 1926.501(b)(4), which provides,
in pertinent part, that “(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 system erected around such holes, (ii) Each
employee on a walking/working surface shall be protected from tripping in or stepping into or
through holes, (including skylights) by covers.” Id . Instance a arose as a result of observations
made by CO Torre on November 3, 1998. Specifically, CO Torre, he reported unprotected
employees working by open floor holes on the third floor, with no means of fall protection, (Tr.
77-78). Of interest, a worker who identified himself as a Major employee appeared and
constructed a guardrail around one of the areas in question while CO Torre was still present. (Tr.
188-192). The corresponding video depicts workers performing form work near the open hole.
The citation identifies exposed employees on the 6 th deck, as instance d, and is supported by
testimony that on November 3, 1998, CO Torre observed employees walking near an open floor
hole on the sixth floor deck, with no means of fall protection, despite a possible fall one story to
the deck below. (Tr. 79-80). A corresponding, brief section of the videotape depicts workers
standing near an open hole. CO Torre later identified the exposed employees as ironworkers. (Tr.
201-202).

Instance c of this item in the citation identifies a stairway opening observed on the 7 th floor on
November 16, 1998, and is based on CO Torre’s observations of employees working near only
partially covered floor holes. (Tr. 202). The corresponding vide depicts holes which are partially
covered with construction debris, including a coffee cup, and a piece of plywood placed only
partially across the opening. Workers performing concrete forms work are in the near vicinity.

Instances d, e, and f are based on observations made by CO Jensen. The citation identifies an
open hole on the 27 th floor on January 7, 1999 as instance d. CO Jensen testified that he observed
the open floor hole elevator shaft with an inadequate guardrail on the top deck during his
January 7, 1999 inspection. Major employees were working/walking in the area of the open floor
hole. (Tr. 272). The corresponding videotape depicts the open elevator shaft on the top deck, or
framing deck. Workers are in the area, but they are not identifiable as concrete forms workers.
The hole is the only way to access the deck. (Tr. 675). CO Jensen testified that Major employees
were present, even though ironworkers were in the area at the time the videotape was taken. (Tr.
674). Buttino testified with respect to this instance that he used the hole to pass materials up. In
any event, he testified, the area is prepared for the pour, and he could not close off the hole
because they hadn’t poured the concrete yet. (Tr. 1272).

The citation identifies open elevator shaft openings and a stairway opening observed on the 28 th
floor on January 11, 1999, as Instance e. Co Jensen testified that he observed employees,
performing concrete forms related work, walking near this unguarded floor hole, which was
open to the deck below. (Tr. 307-309). The video tape corresponds with his testimony. Again,
Buttino explained that this hole, too, had to be open because it was used as a passway for
construction materials. (Tr. 1272).

CO Jensen testified with respect to instance f, (identified as an open elevator shaft opening
observed on January 12, 1999, on the 29 th deck). He reported steel workers walking/working
near open floor holes. CO Jensen testified that he cited Major because the Major employees
necessarily had to pass by the hazardous condition in order to perform their work. (Tr. 328-329).
In any event, the video depicts workers unloading plywood from a crane on the top deck in the
near vicinity of the hazardous condition. (Tr. 330-331).

The instances identified each involve the danger that an employee could fall thorough the open
hole nine feet to the deck below. The standards therefore apply to each instance cited.
Respondent failed to provide any fall protection to the employees exposed to the holes. None of
the holes were adequately covered, and none had visible guardrails. I also find that
Respondent’s employees had access to the hazardous conditions. Instances a, c, e and f involve
workers performing concrete forms work close to the open floor holes. With respect to instance
d, CO Jensen testified to seeing Respondent’s employees in the vicinity, even if he did not catch
them on the video tape. This testimony was not rebutted.

Instance b, on the other hand, involves exposure of workers identified only as ironworkers. It is
not disputed that Major did not directly employ the ironworkers, and, therefore, the ironworkers
exposed in this instance were clearly not on Major’s payroll. Nonetheless, under Commission
precedent, an employer in a multi-employer construction site may be held responsible if the
employee of another employer is exposed to a hazard created or controlled by the cited
employer. Harvey Workover, Inc. 7 OSHC 1687, 1689 (No. 76-1408, 1979). See also , Flint
Engineering & Constr. Co. 15 BNA OSHC 2052, (No. 90-2873, 1992), “(W)here an employer is
‘in control of an area, and responsible for its maintenance’, to establish a violation the Secretary
need only show that a hazardous condition existed and the hazard was accessible to the
employees of the cited employer or those of other employers engaged in a common
undertaking’”, Id, at 2055, citing Brennan v OSHA & Underhill 513 F. 2d 1032, 1038 (2d Cir.,
1975). It is clear that Major controlled the top deck at the time this worker was exposed. Not
only did Major construct the deck, and therefore, created the openings, but Major identified the
whole of this top deck as one of its “controlled access zones”. (Tr. 1211-1212). Also, it is
undisputed that Major was still present at the job site at the time this instance was observed.
As such, under the multi-employer rule, I find that these workers may be deemed an employee of
Major for purposes of this citation.

Finally, I find that Respondent knew of the violative conditions in each instance. While there is
no direct evidence that Major had actual knowledge in each instance, constructive knowledge of
a hazardous condition may be found where the hazard is one likely to be detected during an
inspection, and there is no evidence that Respondent conducted safety inspections. Automatic
Sprinkler 8 BNA OSHC 1384, 1388 (No. 76-5089, 1980). With the exercise of reasonable
diligence, Respondent should have been aware that the openings it created were not covered. In
any event, Respondent should have been aware of the openings as Buttino admittedly was using
them as passways for construction material. I thus find that the Secretary met her initial burden
with respect to Citation 1, Item 4.

Classification and Penalty Consideration

OSHA assessed this serious violation with a proposed penalty of $3,500.00. The classification is
affirmed. The workers were exposed to a fall of nine feet to the deck below; such a fall is likely
to cause serious personal injury or disability.

The penalty assessment is likewise affirmed. AD Ricca testified that the gravity was medium, as
the hazard was a fall of only one floor, and the likely injury would be serious, but not necessarily
death. No reduction for size was given, based on the repeated failure of Respondent to correct
the hazard. (Tr. 996-997). AD Ricca’s reasons were cogent and based on the appropriate factors.

Citation 1 Item 5a

This item was issued for two violations of 1926.502(b)(1) occurring prior to the date OSHA
posted imminent danger

. The standard at issue provides in pertinent part that;

Guardrail systems and their use shall comply

with the following provisions.

(1) Top edge height of top rails or equivalent

guardrail system members shall be 42 inches

(1.1m) plus or minus three inches (8 cm)

above the walking/working level...

The Secretary established her prima facie case for this item. CO Jensen observed and videotaped
a single rail, purportedly protecting employees preparing to rake out concrete on the 27 th deck,
on January 7, 1999. The rail was too low in that it came only to knee height, rather than the
required 42 inches, (plus or minus three inches). These observations constitute instance a. The
video corresponds with his testimony, depicting employees raking concrete near the clearly
inadequate rail, exposed to a fall off the side of the building. On January 12, 1999, CO Jensen
reported another instance of violation of this standard, when he observed and videotaped workers
performing form work near a guardrail with a top rail only 27 inches above the supporting deck.
CO Jensen measured the rail to be sure of its height. (Tr. 330-332). The videotape corresponds
with his testimony.

The standard applies as the condition located involved portions of the top rail of a guardrail
which were less than the required height. The standard was clearly violated; the evidence
demonstrates that a portion of the top rail came only to an employee’s knees, in instance a, and
was only 27 inches from the grade of the deck in instance b. Both instances involve workers
performing concrete forms work close to the deficient guardrails, and thus exposed to a fall.
Respondent’s employees, therefore, had access to the violative condition. Finally, Respondent
had constructive knowledge of the violative condition. Respondent created the hazardous
condition in that Major built the guardrails. Due care, then, in conducting an inspection of the
guardrail should have discovered the violative condition.

Citation 1 Item 5B

This item involves a violation of 29 CFR 1926.502(b)(2), which provides in pertinent part, that
“Midrails, screens, mesh, intermediate vertical members or equivalent intermediate structural
members shall be installed between the top edge of the guardrail system and the
walking/working surface when there is no wall or parapet wall at least 21 inches high.” Id. The
citation specifically charges that a midrail was missing from parts of a guardrail system on the
27 th deck on January 7, 1999. The Secretary established her prima facie case with respect to this
item, as well.

The trial testimony demonstrates that a guardrail on the top deck was missing a midrail in one
section, and there was otherwise no wall or parapet protecting employees from falling below the
guardrail. The standard therefore applies, and was violated. Workers are seen in the video
pouring concrete, coming within two feet of the deficient guardrail, and exposed to a fall off the
side of the building. Because Major was the concrete contractor for this job site, I find that the
Secretary established that Respondent’s employees had access to the condition. Finally, I find
that Major had constructive notice of the condition. Major constructed the guardrails at issue. A
proper inspection would have revealed that the midrail was missing. With reasonable diligence,
therefore, Respondent should have become aware of the hazardous condition.

Classification and Penalty Consideration for Citation 1, Items 5a and Item 5b

The citation assessed Item 5a with a proposed penalty of $4,200. The citation does not propose a
penalty for Item 5b, although AD Ricca testified that the proposed gravity based penalty for both
items, together was $7,000. (Tr. 997). The classification is affirmed. The potential injury
included a fall of 26 stories to the ground; the potential injury was death. The penalty
assessment is also confirmed. AD Ricca testified that the hazards in both items were considered
“high graders”, but a 40 % reduction was given based on Respondent’s size. (Tr. 997). His
assessment is appropriate, and is further supported by the fact that Item 5a, instance b was
observed five days after the observations made in Item 5a instance a and Item 5b instance a,
indicating repeated instances of violations relating to the structure of the guardrail.

Citation 1 Item 6, Citation 1, Item 7, Citation 1, Item 8a, Citation 1, Item 8b and Citation 1,
Item 9, Citation 1, Item 10, Citation 1, Item 11

The Secretary’s post hearing brief states that these Citation items, (except for Items 10 and 11)
were issued based on Respondent’s claim that it was working pursuant to a fall protection plan.
(Secretary’s Post Hearing Brief, at p. 88). Items 10 and 11 were cited for standards which set
forth requirements that the fall protection plan must meet, and I therefore discuss them together.
These standards provide requirements that must be met if conventional fall protection cannot be
used. Specifically. Citation 1, Item 6 involves a violation of 29 CFR 1926.502(g)(1), which
establishes specific formal requirements for use when controlled access zone is used. Item 7
alleges a violation of 29 CFR 1926.502(h)(1), which sets forth the requirements for a safety
monitoring system. Item 8a alleges a violation of 29 CFR 1926.503(h)(3), which limits access to
a controlled access zone to employees covered by a fall protection plan. Item 8 alleges a
violation of 29CFR1926.502(k)(9), which establishes the requirements of a fall protection plan.
Item 9 alleges a violation of 29 CFR 1926.502(k)(3), which provides that a copy of the fall
protection plan shall be maintained at the job site. Citation 1, Item 10 involves an alleged
violation of 29 CFR 1926.502(k)(4), which directs that the implementation of the fall protection
plan shall be under the supervision of a competent person. Finally, Citation 1, Item 11 involves
an alleged violation of 29 CFR 1926.502(k)(7), which requires that the fall protection plan
specify each location where conventional fall protection methods cannot be used, classify them
as controlled access zones, and comply with 1926.502(g).

The Secretary argues that she established her prima facie case in each of these items, arguing
that the facts support a finding that the standards have been violated. (See, Complainant’s Post
hearing brief, pp. 89-92). The initial inquiry, however, must be whether the standards apply to
the facts of the case. As is discussed more fully, below, Respondent did not meet its burden of
establishing that conventional fall protection was infeasible, or created a greater hazard. The
precise question presented then, is whether Respondent may nonetheless be held liable for
failure to comply with standards which establish requirements to be met in those circumstances
where conventional fall protection cannot be used.

The requirement to produce, implement and maintain a written fall protection plan is triggered
when conventional fall protection is infeasible to protect workers performing leading edge
work. The language of the standard makes this clear: “(w)hen the employer can demonstrate
that it is infeasible or creates a greater hazard to use (guardrail systems, safety net systems, or
personal fall arrest systems), the employer shall develop and implement a fall protection plan
which meets the requirements of paragraph (k) of Section 1926.502." 29 CFR 1926.501(b)(2). 29
CFR 1926.502(k), by its own terms, applies only to, “employees engaged in leading edge
work...who can demonstrate that it is infeasible or it creates a greater hazard to use conventional
fall protection”. Id. A plain reading of the standard establishes that, if Respondent were able to
establish that conventional fall protection were either infeasible or created a greater hazard, than
Respondent would be held to the further requirements of 29 CFR 1926.502(k). Because
Respondent did not prove that conventional fall protection was either infeasible or created a
greater hazard to workers performing leading edge work, however, the requirements of 29 CFR
1926.502(k) were not triggered. Thus, 29 CFR 1926.502(k)(9), 29 CFR 1926.502(k)(3), 29
CFR 1926.502(k)(4) and 29 CFR 1926.502(k)(7) do not apply. Items 8, 9, 10 and 11 are
vacated.

Similarly, the requirement to maintain a controlled access zone is conditioned on the
requirement that conventional fall protection prove infeasible. A controlled access zone is
specifically defined as, “an area in which certain work...may take place without the use of
guardrail systems, personal fall arrest systems or safety systems and access to the zone is
controlled”. 29 CFR 1926.500. In fact, the requirements for a controlled access zone in 29 CFR
1926.502(g)(1), are made applicable by operation of 29 CR 1926.502(k), which provides that
where a fall protection plan is used, “(7)...The fall protection plan shall identify each location
where conventional fall protection methods cannot be used . These locations shall then be
classified as controlled access zones and the employer must comply with the criteria in
paragraph (g) of this section”. Id (Emphasis supplied). Because Major did not establish that
conventional fall protection was infeasible, the requirements relative to maintaining a proper
controlled access zone are likewise not triggered. Citation 1, Item 6, [1926.502(g)(1), relating to
a controlled access zone], and Citation 1, Item 8a, [1926.502(h)(3), which requires safety
monitoring of employees in controlled access zones] are therefore vacated.

Finally, the requirement to maintain a safety monitoring system is conditioned on a finding that
conventional fall protection is infeasible or would create a greater hazard, in that the necessity of
implementing and maintaining a safety monitoring system with the requirements set forth in
1926.502(h)(1), is established by 1926.502(k)(8). Specifically, 1926.502(k) provides that, once
an employer has established that conventional fall protection is either infeasible or creates a
greater hazard, a fall protection plan must be established which meets certain requirements.
Subsection 8 of that standard specifically provides that, “Where no other alternative measures
has been implemented, the employer shall implement a safety monitoring system in conformance
with Section 1926.502(h).” 29 CFR 1926.502(k)(8). The requirements of 1926.502(h),
therefore, are triggered only after an employer has established that it is entitled to use a fall
protection plan as an alternative safety measure to conventional fall protection. Because
Respondent failed to establish that conventional fall protection was infeasible or created a
greater hazard, the requirements relating to the maintenance of a fall protection plan were not
triggered, and, therefore, nor were the requirements relating to the safety monitoring system.
Item 7 is likewise vacated.

Citation 1 Item 12

This Citation item was issued for a violation of 29 CFR 1926.503(a)(1). The standard provides,
in pertinent part, that “(1) the employer shall provide a training program for each employee who
might be exposed to fall hazards...” Id . The Secretary has the burden of proving that the cited
employer failed to provide instructions that a “reasonably prudent employer would have given
in the same circumstances”. N&N Contractors, Inc. 18 BNA OSHC 2121, 2126 (No. 96-0606,
2000). An employer may rebut the allegation of a training violation ‘by showing that it has
provided the type of training at issue, and the burden shifts to the Secretary to show some
deficiency in the training provided.’” N & N , Supra, citing American Sterilizer Co. 18 BNA
OSHC 1082, 1086, (No. 91-2494, 1997).

In this regard, CO Jensen testified that this citation item was issued for a failure to provide
appropriate training, in general. (Tr. 701). It appeared to him that employees did not realize that
there was a fall hazard. (Tr. 457). He admitted, however, that Majors’ safety meeting talks and
toolbox forms were not taken into account when this citation was issued. (Tr. 703). This was the
only evidence presented in support of this citation item.

There was no testimony relating to what instructions should have been given under the
circumstances in the first instance. Merely stating that it appeared that employees did not
recognize a hazard is insufficient. Thus, I find that the Secretary failed to meet her initial
burden.

This citation item is vacated.

Citation 1 Item 13

This Citation item was issued for violation of 29 CFR 1926.701(b). The standard provides,
specifically, that “all protruding, reinforcing steel, onto and into which employees could fall,
shall be guarded to eliminate the hazard of impalement.” Id. The citation identifies six separate
instances wherein Respondent’s employees were exposed to uncapped, protruding rebar. In each
instance, the testimony and correlating video tape depict protruding, uncapped rebar, presenting
a hazard to workers in the area. Therefore, the standard applies and it was violated.

It is not disputed that the steel members were constructed by the ironworkers, another
subcontractor who was not retained by Major for this job site. Instances b, c, d, e, and f,
nonetheless involve the exposure of carpenters and concrete forms workers, undeniably Major’s
employees, to uncapped rebar. Instance b was observed on the top deck, where concrete forms
workers were preparing for and pouring concrete into already laid forms. (Tr. 282-284). The two
portions of the video which correspond with this instance clarifies that the ironworkers have
completed their work and Respondent’s employees are in control of the deck.

The alleged violation identified as instance c was observed on the framing deck. The
corresponding video depicts concrete forms workers in the area, near a floor opening surrounded
partially by steel rods protruding two to three feet from the deck below. Buttino is also present.
Instance d was likewise observed on the framing deck, (this time on the 29 th floor). Major
employees were observed walking/working within a few feet of the protruding, uncapped rebar.
(Tr. 363-364). Instances e and f were also observed on framing floors, (instance e was observed
on January 22, 1999, when the 31 st floor was the framing floor, and Instance f was observed on
January 27, 1999, when Major was framing out the roof, on the 32 nd floor). Respondent’s
employees were seen performing concrete forms work. (Tr. 394-398, 426-429). The evidence
demonstrates, then, that Respondent’s employees in fact had access to the hazardous condition
in instances b, c, d, e and f.

The evidence also demonstrates that Respondent had knowledge of the hazardous condition. It
is clear that Major had actual knowledge of the violations represented in instance c. Buttino was
present and is seen on the videotape. As the framing deck carpentry foreman and the shop
steward in charge of safety, his knowledge may easily be imputed to Major.

In any event, the evidence demonstrates that Major had constructive knowledge of the
hazardous conditions presented in instances b,c,d,e, and f. Respondent was in control of the
framing floor at the time the hazardous conditions were observed. The uncapped rebar was in
plain view in each instance and would easily have been discovered in the course of an ordinary
inspection, and should have been discovered in the exercise of reasonable diligence. Thus, I
find that the Secretary met her initial burden with respect to instances b,c,d,e, and f.

The violations identified in instance a, on the other hand, occurred on the framed deck after
Major had relinquished the deck to the ironworkers . The corresponding video depicts
ironworkers installing rebar into a framed deck. There are no carpenters in the area. There is no
evidence that Major was present on the deck, let alone in control of the floor. Further, there is
no evidence that the rebar protruding through the deck existed before the ironworkers took
control of the floor. On the contrary, it appears that the ironworkers were installing the rebar at
the time the observation was made. Major could not have controlled the hazard. Therefore,
instance a is vacated.

Respondent argues that it should not be held accountable for any of the instances of this item
because the rebar was installed by the ironworkers, not Major. Specifically, Respondent argues
that statements by CO Torre and CO Jensen to the effect that the ironworkers were responsible
for capping the rebar should absolve Major from liability. (Respondent’s Post-Trial Brief, pp 56-57). The mere fact that an employer did not create the specific hazard, or that another contractor
may be responsible to provide a specific safeguard, however, will not absolve the employer
from liability.

Defendant’s argument is, essentially, a multi-employer worksite defense. However, it is clear
that instances b.c.d.e and f occurred under areas under Major’s control. The dangerous condition
was not transient in nature, and should have been discovered with the exercise of reasonable
diligence. Respondent also did not submit any evidence that it made any efforts whatsoever to
protect its employees from the unguarded rebar, even while its employees were directly in the
zone of danger. Under the precedent set in Capform Inc. supra, I find that Respondent failed to
meet its burden of establishing this defense. See also Kokosing Constr. Co. Inc . supra, “ access
to unguarded rebar exists if there is a ‘reasonable predictability’ that employees ‘will be, are or
have been in’ the ‘zone of danger’”. Id at 1870, citing Capform , supra.

Classification and Penalty Consideration

The citation proposes a $7,000.00 penalty for this serious item. The classification is affirmed.
The workers were exposed to possible impalement and laceration injuries. The penalty
assessment is also affirmed, even though one instance was vacated. AD Ricca testified that this
item is a high grader based on the fact that the condition was continuously observed throughout
the site, and there were no attempts to abate it. He testified that the gravity of the hazard was
deemed high because an impalement onto exposed rebar could cause death. (Tr. 1003-1004).
While no reduction for size was given, (Tr. 1003-1004), the number of instances, and the gravity
of harm supports OSHA’s assessment.

Citation 1, Item 14

This citation item was issued for a violation of 29 CFR 1926.703(a)(2), which provides, in
pertinent part, that “Drawings or plans, including all revisions, for the jack layout, form work,
(including shoring equipment) working decks and scaffolds shall be available at the job site”. Id .
CO Jensen testified that he recommended the issuance of this citation item after being told by
Buttino that there was no drawing or plan for the form work. (Tr. 458). CO Jensen further
testified that Major’s engineer should have prepared plans, including calculations. (Tr. 710). The
hazard presented is that the forms could collapse. (Tr. 458-459).

Respondent constructed form work at the job site; the standard therefore applies. I also find that
Buttino’s statement makes it clear that Respondent did not keep available a copy of drawings or
plans for the form work at the job site. Respondent therefore violated the standard. Respondent’s
employees were required to ascend and walk/work on the form work, which apparently was
constructed without reference to a plan or drawing. Thus, Respondent’s employees were exposed
to the hazard that if the forms were not constructed according to a drawing on site, the form
work could collapse.

Respondent also had knowledge of the condition. Respondent constructed the concrete form
work, and, I find, should have been aware of the potential for collapse of such a structure.
(Indeed, Respondent uses the form work’s frailty as a basis for Respondent’s argument that it is
infeasible to use the forms as an anchor for a personal fall protection system). In any event, it is
clear that Respondent knew it did not maintain drawings or plans for the form work for reference
on site. The Secretary therefore met her burden with respect to this citation item.

Classification and Penalty Consideration

This item was properly classified as serious because serious personal injury and possible death
would occur to employees trapped under the forms in the event of a form collapse. The proposed
penalty of $3,000 is likewise affirmed. AD Ricca considered this item a “high grader” because
the nature of the violation was such that if the form work were improperly erected, a collapse
could occur, causing numerous serious injuries. Initially assessed at $5,000, a 40 % reduction for
size was granted. (Tr. 1004). While merely maintaining a copy of a drawing on site will not in
and of itself prevent a form work collapse, not having a plan available for reference could result
in improper and dangerous construction of the form work. The evidence indicates that there were
a number of employees on the structure at any one time. A collapse of the forms, then, could
cause serious personal injury, if not death to numerous employees.

The Willful Citations

Citation 2, Item 1a, Citation 2, Item 2a and Citation 2 Item 3a

These three Citation Items were issued for numerous instances of violations of 29 CFR
1926.501(b)(1)

. (Unprotected workers at the edge). As is discussed above, these items are
grouped into one item.

The evidence demonstrates that the Secretary established her prima facie case for these items.
Citation 2, Item 1a, instance a involves employees clamping columns in two instances on
November 3, 1998, without fall protection, (Tr. 50, 66), in site of both Buttino and Polites.(Tr.
66). The corresponding videotape shows workers close to the edge, working with the forms,
with no visible means of fall protection. Instance b involves ironworkers on the 6 th deck, at the
west top perimeter, performing ironwork. There was no form of passive fall protection, and the
workers were close to the edge of the building. CO Torre testified that he cited Major for this
violation, even though the exposed workers were iron workers, and not performing concrete
related work, because Major’s contract requires them to install a guardrail as a deck is being
placed. (Tr. 74).

Citation 2, Item 1a instance c involves an unprotected forms worker on the fifth floor, observed
by CO Torre on November 4, 1998. (Tr. 94). The exposed employee can be can be seen on the
corresponding videotape as close as one foot to the edge, with no visible means of fall
protection. Instance d involves an unprotected employee on the eighth floor, installing reshore
only six inches from the exterior edge of the building, observed by CO Torre site on November
16, 1998. (Tr. 97). The corresponding video indeed shows a worker installing reshore, at least
one foot from the edge, if not closer. Instance e involves workers stripping lumber on the 25 th
floor without fall protection, observed by CO Jensen on January 6, 1998. (Tr. 255-256). The
corresponding video shows a worker retrieving forms right at the exterior edge of the building.
Instance f involves employees on the 26 th floor, at the South perimeter of the building, near
columns # 17 and # 18. CO Jensen testified that he observed an unprotected employee at the
edge assisting other employees remove a clamp. (Tr. 258-259). The corresponding videotape
indeed shows workers on the stripping floor performing forms work, near the columns, and
close to the edge.

CO Norton testified with respect to Citation 2, Item 1a, Instance g, Citation 2 Item 1a, Instance h
and Citation 2, Item 1a, Instance i. Instances g and h were videotaped, but the videotaped
portion was not played during the trial. CO Norton testified that Instance g involved a worker at
the southwest corner of the 25 th floor, who appeared to be working near a column, although the
column was already stripped. The employee was not protected by any type of fall protection,
even though he was only two to three feet away from the edge. (Tr. 748-749). CO Norton
believed the worker was working on the column, but he could not tell what he was doing to it,
and could not tell what tools he was using. (Tr. 748). CO Norton testified that instance h
involved a worker placing plastic around the 26 th floor, within two to three feet of the edge, with
no noticeable means of fall protection. (Tr. 749-750). During cross-examination, CO Norton
testified that it was Major’s duty to provide appropriate fall protection for this floor. (Tr. 847).

Instance i involves employees walking on the stripping deck, on the North side of the building
near the center column, observed on January 11, 1999. The workers had no form of fall
protection even though they were observed within three to four feet of the exterior edge. (Tr.
293, 754-755). CO Norton brought the situation to Buttino’s attention. (Tr. 755). The
corresponding video coincides with CO Norton’s testimony. Instance J was issued as a result of
violations CO Jensen observed on the 27 th or 28 th floor, where employees were identified near
the edge without fall protection. (Tr. 295-206). The corresponding video depicts an employee
performing forms work at the edge of a building. Somewhat unbelievably, another employee is
seen on the video, putting the finishing touches on a guardrail behind him, leaving the exposed
employee between the railing and the exterior edge of the building. (Tr. 296-297). Instance k
involves additional employees performing concrete forms related work near the edge with no fall
protection, and is based on observations made by CO Jensen. (Tr. 298-299). His observations
were memorialized, albeit briefly, on the corresponding videotape.

Citation 2, Item 2a addresses instances identified after OSHA posted the imminent danger notice
at the job site.

Instance a involves a Major employee removing form work from existing
stringers near the edge of the 27 th floor, with no means of fall protection. (Tr. 341-343). The
corresponding video tape shows the worker walk right to the exterior edge of the building.
“Instance b” involved an employee performing form work on the 28 th floor without fall
protection. CO Norton observed the employee come as close as two feet from the edge. (Tr. 766-767). This violation was memorialized on videotape, but was identified as “Citation 2, Item 2a,
Instance c”, through an apparent recording error. The error was harmless, as the inconsistency
was cleared up through CO Norton’s testimony, (Tr. 770-771, 850), and the citation even with
this minor error fully apprized Respondent of the substance of the allegations. . The video
segment identified as “Citation 2, Item 2a, Instance c” corresponds and supports CO Norton’s
testimony with respect to the “Instance b”.

Instance c involves another exposed worker at the top deck, with no means of fall protection.
The videotape identified as “Citation 2, Item 2a, Instance b”, but actually corresponding to this
instance, depicts a worker at the very top deck, within two feet of the edge, with no means of fall
protection. (Tr. 771). Under cross examination, CO Jensen testified that the employee exposed
in this instance was “probably an ironworker” (Tr. 851).

Finally, instance d of Instance d of Citation 2, Item 2a, involves another unprotected forms
worker whose work takes him right to, and beyond, the exterior edge of the building on the 30 th
floor. According to CO Jensen’s testimony, this unprotected employee was seen actually place
part of his body over the edge, to kick form work out onto a temporary catch basin. ( Tr. 418-420).

Citation 2, Item 3a, which is now grouped with Citation 2 Item 1a and Citation 2 Item 2a, was
cited following the observation of three separate instances of violations of 29 CFR
1926.501(b)(1). CO Jensen testified with respect to Instances a and c. Instance a involves
observations he made on January 26, 1999, when he observed and videotaped a worker carrying
forms on the 31st floor, within three feet of the edge, with no form of fall protection. (Tr. 403-406). Instance c involves observations he on February 1, 1999. On that date, he observed an
employee two and one half to three feet from the edge, on a floor which had been stripped. The
employee was not protected by any form of fall protection. (Tr. 446-447). CO Jensen testified
that he believed the worker was employed by Major, but he didn’t see him actually doing any
work. (Tr. 442-443). The corresponding video segment depict what appear to be two examples
of workers exposed to an unprotected edge, with a relatively plump worker walking within at
least three feet of the edge on a floor which appears to be almost fully stripped.

CO Norton’s observations resulted in the identification of Instance b of Citation 2, Item 3a.
Specifically, CO Norton testified that he observed a worker performing form related work one
level below the top deck, on the 31 st floor, with no means of fall protection. He ascertained that
the exposed worker was a Major employee by virtue of the nature of his work. (Tr. 793-795).
The corresponding video shows a worker standing within one foot of the edge, handing forms
along the outside of the structure to workers on the top deck. The exposed worker does not
appear to be in a hoist area. Of interest, the citation refers to the 32 nd floor, which CO Norton
explained was a mistake. (Tr. 856).

The standard clearly applies to the instances cited. Each floor, or deck, of the building was nine
feet, one inch above the deck below. (Tr. 57).In any event, the observed workers were exposed
to a fall off the exterior side of the building, and in each instance, the worker(s) were exposed to
an unprotected side or edge. The second prong of the Secretary’s burden, to wit, to prove the
employer’s noncompliance with the standard, was likewise met, as in no instance was there
appropriate fall protection.

Further, I find that the Secretary met her burden of proof of establishing that each worker
exposed in these items was an employee of Major. Item 1 a, instances a, c, d, e, f, i, j, and k, all
involved workers performing concrete forms related work. I find this sufficient to identify them
as employees of Major.

Citation 2 Item 1a instance b involved the exposure of an ironworker, not a forms worker, on the
top deck. Nonetheless, the evidence demonstrates that Major controlled the top deck at the time
this worker was exposed. Major constructed the deck in questions, and was still present in the
vicinity at the time of the violation. In fact, this top deck was identified by Major as one of its
“controlled access zones”, (Tr. 1211-1212). As such, under the multi-employer rule, I find that
this worker may be deemed an employee of Major for purposes of this citation.

Although videotape was taken of the circumstances involving instances g and h, none was shown
at the trial. Nonetheless, I found CO Norton’s testimony regarding his observations believable,
and Respondent failed to offer any factual evidence to contradict CO Norton’s observations.
With respect to Instance g, the exposed worker was observed near a column on the 25 th floor,
(Tr. 748-749), unprotected by any safety net or fall protection. Again, like the top deck in
question in Citation 2, Item 1a, instance b, this floor was under Respondent’s control at the time.
Respondent constructed the floor, and in fact, had contracted the obligation to provide a
perimeter cable or other perimeter protection, at a minimum, after each floor is stripped.
(Complainant’s Exhibit 4, Schedule I, parph14). Likewise, I find that Major was under a duty to
provide fall protection for the exposed workers on the 26 th floor identified in instance g. As
such, I find that the worker exposed to the hazard may be deemed a Major employee despite the
fact that there was no direct testimony as to who his employer was and he was not, in fact,
performing concrete form related work.

Finally, the evidence demonstrates that Major either knew, or with the exercise of reasonable
care, should have known, of the violative conditions under this item. According to the trial
testimony, Polites and Buttino were present on site on November 3, 1998, when CO Torre
observed the circumstances that comprised Citation 2, Item 1a, Instances a and b. (Tr. 86).
Polites was specifically identified facing the workers at the site. (Tr. 55). Both Polites and
Buttino admittedly had supervisory control over other employees sufficient to warrant the
imputation of their knowledge of the violation to the remaining respondent. In short, Major,
through its supervisors, had actual notice of the violations occurring on November 3, 1998.
With respect to all other instances of violations of 29 CFR 1926.501(b)(1), Major’s supervisors
were well aware of the absence of guardrails, safety nets and personal fall protection systems, as
early as November 3, 1998, when Polites was specifically told that no fall protection was
supplied to or used by the workers at the site. Yet no reasonable efforts to abate the hazards were
made, despite the ongoing construction. Thus, even if there is no proof that Major actually knew
of the occurrence of each instance of violation, in the exercise of reasonable diligence, Major
should have, and would have had knowledge the violations. Respondent has easily met her
initial burden.

There was testimony to the effect that instance f of item 1a involved Stephen Koc, an employee
who merely forgot to put his harness back on after a bathroom break. Sounding in a defense of
unforseen or unpreventable employee misconduct, this argument appears abandoned by
Respondent, despite the fact the Mr. Koc was called to the stand to testify solely on this issue. In
any event, Respondent did not meet its burden of establishing this affirmative defense. The
First Circuit succinctly delineated the Commission precedent for the elements of a defense of
unforseen employee misconduct in . P. Gioioso & Sons Inc. 17 BNA OSHC 2091, (No. 96-1807,
1997). Essentially, an employer has the burden of proving that it “(1)established a work rule to
prevent the ...unsafe condition from occurring, (2) adequately communicated the rule to its
employees, (3) took steps to discover incidents of noncompliance, and (4) effectively enforced
the rule whenever employees transgressed it” Id , 2098, citing Jensen Constr, Co 7 BNA OSHC
1477, (No. 76-1538, 1979). Respondent’s safety plan does not direct that employees working
near the edge use personal fall protection systems, and it does not appear that instructions were
otherwise given to employees to do so. No evidence whatsoever was presented that Respondent
took any steps to discovery incidents of noncompliance. Finally, Mr. Koc’s penalty was merely
to be “yelled at a little bit”, which does not evidence any reasonable intent to effectively enforce
the rule.

Respondent’s post-hearing brief does address its argument that conventional fall protection was
infeasible for workers working at the edge. As is discussed below, however, Respondent failed
to meet its burden of establishing this defense.

Classification and Penalty Consideration

There is ample evidence to support the classification of this item as willful. Generally,
“(w)ilfulness can be established by evidence that an employer knowledgeable of a standard’s
requirement either intentionally disregarded it or showed plain indifference to it”. Morrison-Knudsen Co./Yonkers Contracting Co. 16 BNA OSHC 1105, 1123, (No. 88-572, 1993). The
relevant inquiry is whether the state of mind of the employer appears such that “if he were
informed of the (applicable standard), he would not care...” Morrison-Knudson Co./Yonkers
Contracting Co. citing Brock v Norello Bros. Constr. 809 F. 2d 161, 164 (1 st . Cir. 1987). The
Third Circuit requires an assessment of whether the employers’ actions depict an “obstinate
refusal to comply with safety and health requirements”. Universal Auto Radiator Mfg. v
Marshall 631 F 2d 20, (Third Cir. 1980). The evidence is clear that the supervisors and foremen
for Major were well aware of the requirements of the standard. Polites was aware of the
requirements of providing fall protection to employees working at the edge as early as the mid
1980s. (Tr. 975). Major supervisors were apprized of the standards involving fall protection
again, during an inspection of another job site, in 1997. (Tr. 1044-1050). Further, a number of
these instances occurred following conversations with Major supervisors relating to the
requirements of the standard during the course of the construction of this job site, and five
occurred following the posting of endangerment, which identifies this hazard.

Respondent’s only arguable attempts to comply with the standard did not become evident until
January 19, 1999 seven days after posting of imminent danger, when Respondent delivered a
copy of a hand written document entitled “fall protection plan” in response to a subpoena, and to
have a few workers tie off to stringers above when working near the edge.

The fall protection plan, which was also hand delivered on January 21, 1999, during a further
meeting, is completely different from the fall protection plans used by Politis Construction
Company and M.J.P., this plan was drafted, at the earliest, after construction of the site had
already commenced, (it is dated September, 1998, and construction commenced in August), and
long after the job was bid. It was not even read by the shop steward and foreman in charge of
safety until early October. (Tr. 1148). No real safety pre-planning could have been performed.
Furthermore, while this document is purportedly written by Major’s engineer, Mr. Lee, it was
redrafted at the direction of Major personnel, and is drafted in a completely different handwriting
from that of the two prior fall protection plans in the record, also purportedly prepared by Mr.
Lee. Finally, Buttino, the foreman who also acted as shop steward, and safety officer, and who
conducted the weekly tool box meetings, testified that he has not even read the OSHA
regulations. Also, the few instances in which Major grudgingly had a few of its employees
working near the edge tie off to stringers with the use of lanyards, hardly constitutes good faith.
No real course of conduct was altered, no rules or procedures were changed, and the employees
continued to be exposed to falls off the side of the building with no form of fall protection.

Major’s actions, as a whole, portray a state of mind of complete indifference to and a continued,
obstinate refusal to comply with the OSHA fall protection standards, as well as an apparent
disrespect for the investigation. This item is properly classified as willful.

The penalty assessment of $56,000 is affirmed. For each item, OSHA assessed an initial penalty
of $70,000, based on the number of instances involved and the high gravity of injury. A 20%
reduction for Respondent’s size was accorded. Because these items have been grouped, one
penalty will be assessed. The evidence warrants an assessment of $56,000.

Citation 2, Item 2b; Citation 2, Item 3b

Citation 2, Item 2b and Citation 2, Item 3b were issued based on numerous instances of
violations of 29 CFR 1926.501(b)(2)(i), (“Leading Edges”)

As is discussed above, the
instances in Citation 2 dealing with a violation of this standard have been grouped into one item.
In each instance cited, the exposed worker can be identified as a Major employee by virtue of
the fact that the work necessarily involved concrete forms work. The evidence amply
demonstrates that the Secretary established her prima facie case.

Citation 2, Item 2b, instance a involves an observed an unprotected employee performing the
last step of leading edge work on the 30 th deck on January 19, 1999. (Tr. 344-346). The
corresponding video does indeed show a worker performing leading edge work very close to the
edge of the building. No visible means of fall protection is present. Citation 2, Item 3b, instance
b involves employees performing leading edge work on the 27 th floor, with no fall protection, on
January 21, 1999, (Tr. 376). According to CO Jensen’s testimony, two employees came as
close as a couple of feet from the end of the building. His observations were memorialized on
videotape, which supports his testimony. Citation 2, Item 3b, instance b, and c are also based on
observations made by CO Jensen. These instances involve additional violations on January 22,
1999, when CO Jensen observed an unprotected employee performing leading edge work, on
the 31 st deck, and a second unprotected employee walking the ribs, and installing plywood. (Tr.
388- 390). The video is in accordance with his testimony.

Citation 2, item 3b, instance c involves additional violations observed by CO Norton on January
25 1999, and Citation 2, item 3b instance d involves additional violations observed by CO
Jensen on January 26, 1999. The citation identifies Instance c as occurring on the 32 nd deck,
rather than the 31 st deck, and instance d as occurring on the 31 st deck, rather than the 32 nd deck,
even though the observations for instance d occurred the day after the those for instance C. This
is clearly a typographical error, as leading edge work could not physically have been performed
on the the 32 nd deck the day before the 31 st deck was formed. This error, however, was
harmless. The discrepancy can easily be explained by reference to the videotape, which was
disclosed during discovery. Further, the substance of the citation, together with the facts
presented on the videotape, placed Respondent on notice of the violative conditions alleged.
Thus, there is no prejudice to Respondent in allowing the cited instances to stand.

With respect to Instance c, CO Norton testified that he observed and videotaped unprotected
employees near the edge of the building, placing ribs and plywood. (Tr. 781-782). The
corresponding video shows a snowstorm occurring, while employees are indeed laying plywood,
with no visible means of fall protection, even though the exposed employees are within what
appears to be two feet from the end of the building, and thus exposed to a 30 story fall. One
employee is seen precariously balancing on a rib. CO Jensen similarly testified that employees
were observed on January 26, 1999, performing leading edge work, exposed to the end of the
building, with no fall protection, causing him to recommend the issuance of Citation 2, Item 3b,
Instance d. (Tr. 545-546). Using the video to refresh his memory, CO Jensen testified that an
unprotected employee performing leading edge work came within four feet of the end of the
building. (Tr. 544- 561).

Citation 2, Item 3b, instance e involves further violations of leading edge observed on January
26, 1999. CO Jensen testified that he observed employees performing leading edge work on the
south side of the building, near the end of the building, with no form of fall protection. (Tr. 407-409). The corresponding video supports his testimony.

Citation 2, Item 3b Instance f, involves further violations of 29 CFR 1926.501(b)(2)(i) observed
on January 27, 1999. According to CO Jensen’s testimony, two unprotected employees were
seen tacking plywood into ribs on the top deck. (Tr. 424). The video corresponds with his
testimony.

It is clear from the video that the workers get dangerously close to the end of the
building. Extended ribs are indicated as an arguable form of fall protection, although they are
clearly not identified specifically in the standard as an acceptable method of conventional fall
protection.

Instances g and h of Citation 2, Item 3b involve violations observed on the 33 rd deck,
(presumably, the roof), on January 28, 1999 and January 29, 1999, respectively. CO Jensen
testified as to instance g, ( Tr. 434-435), and the corresponding video depicts employees
performing leading edge work within what appears to be two feet from the end of the building,
with no visible means of fall protection. CO Norton testified that instance h was issued because
he observed and videotaped an employee measuring out and installing the end of leading edge
within two to three feet from the edge of the building, with no fall protection. (Tr. 796-797).

The standard applies in each instance. The workers were observed working on form work
sections, either plywood, ribs or stringers, as the top deck was being constructed, causing the
edge to change location. The exposed employees performing the leading edge work were
observed at the end of the building, with a fall hazard of a minimum of 26 stories, (Instance a of
Citation 2, Item 2b), and nine feet one inch above the deck immediately below. Thus, each
instance cited involved an exposed employee performing leading edge work over 6 feet above
any lower level. Second, there was only one apparent attempt to provide fall protection to these
exposed employees. In instance f, ribs were extended out beyond the edge of the building. This
is not, however, an item of allowable fall protection under the standard. I therefore find that the
employer violated the terms of the standard. Finally, just as Respondent knew or should have
known of the multiple violations of 29CFR1926.501(b)(1), (exposed employees at an
unprotected side), Respondent should have been aware that its employees, directed to perform
the leading edge work, would be exposed to the fall hazards described in the citations. Thus, I
find that Major had constructive knowledge of the violative conditions.

Respondent argues that conventional fall protection was infeasible or created a greater hazard for
protection employees working at the edge. As is discussed below, Respondent did not establish
its burden of establishing this defense.

Classification and Penalty Consideration

The evidence supports the classification of these items as willful. As in Citation 2, Item 1a,
Respondent’s supervisors, should have been aware of OSHA’s fall protection requirements long
before the first instance was cited. In any event, during the course of the investigation of this job
site, three instances of a violation of this standard were identified prior to the observance of the
first instance in this item. (See, instances a, b and c of Citation 1, Item 3). Buttino specifically
was specifically apprized of the standard’s requirements at least as of January 11, 1999, (Tr.
305). Issues relating to fall protection, generally, were discussed with Major’s safety consultant
during the January 12, 1999 meeting. Further, imminent danger was posted prior to the
observation of the first instance in this item.

As is discussed above, Major did not undertake any significant pre-planning for safety for the
job. It was not until the January 21, 1999 meeting, that Major first presented its “fall protection
plan”, which, although purportedly written by Mr. Lee, an engineer, was redrafted at the
direction Mr. Rufalo. The evidence thus demonstrates the existence of a heightened awareness of
the requirements of the standard, which was largely ignored, while Major conducted its business
in the manner it chose. Therefore, this item is properly classified as wilful.

A penalty assessment of $56,000 is also appropriate. AD Ricca testified that the penalty for each
item was determined to be $70,000, with a 20 % reduction based on Respondent’s size. This is
especially suitable now that Citation 2, Item 2b and Citation 2, Item 3b have been grouped, and
one penalty will be awarded. The evidence demonstrates that the exposed employees were
likely to be killed if they fell off the building, and Major made no real efforts to abate the danger,
even after the posting of imminent danger. The assessment is also supported by the number of
dangerous instances observed.

Citation 2, Item 3c

The citation charges three instances of violations of 29 CFR 1926.501(b)(2)(ii). The standard
requires that “Each employee on a walking/working surface 6 feet (1.8m) or more above a lower
level where leading edges are under construction, but who is not engaged in the leading work,
shall be protected from falling by a guardrail system, safety net system, or personal fall arrest
system....” Id .The Secretary did not meet her burden of establishing that the standard applies to
instance a. While CO Jensen testified that he observed workers involved in form related work at
the leading edge, without fall protection, (Tr. 378-379), the corresponding video depicts a
worker placing plywood on a rib at the edge of the building. It is not clear that the worker is
doing non-leading edge work, which CO Jensen ultimately admitted. (Tr 603).

However, I do find that the Secretary met her initial burden of establishing a violation of this
standard in instances b and c of this Item. CO Jensen videotaped employees installing upright
stanchions for a guardrail system at a portion of the leading edge, unprotected by fall protection,
even though the employee is on the roof deck, (or 33 rd floor). (Tr. 437-440). In installing the
temporary guardrail, the employee is seen on the video right at the edge of the building. This
instance is classified as “instance b”. Likewise, “instance c” involves concrete forms workers
installing a temporary guardrail at the leading edge; CO Norton specifically testified to
observing an employee securing a stringer, and, in doing so, reaching over the edge of the
building. (Tr. 789-799). The corresponding video depicts workers installing a guardrail system
on the roof deck, at the leading edge. As both instances involve unprotected workers performing
non-leading edge work, at the leading edge, I find the standard applies.

The employer violated the terms by not protecting the workers installing the guardrails with a
safety net, or personal fall protection system. The exposed workers, who were observed and
videotaped at the edge of the building, were performing concrete forms work, and are therefore
deemed to be Major employees. Finally, just as Respondent knew or should have known that it
did not provide the required fall protection for the workers performing leading edge work,
Respondent should have known that the workers performing non-leading edge work, at the
leading edge, were likewise unprotected. The two instances cited in this item were observed on
January 28, 1999 and January 29, 1999, respectively. Respondent knew of the requirement for
providing fall protection to protect employees exposed to the edge of the building as early as
November, 1998. Respondent also knew that appropriate fall protection for workers preforming
leading edge work was not provided to protect its employees as early as January 7, 1999, when
the first observation relating to Major’s failure to provide fall protection for workers at the
leading edge was made. Furthermore, Major’s failure to provide fall protection to workers
performing leading edge work was addressed at the meeting of January 12, 1999, prior to the
posting of imminent danger, which likewise occurred before these violations, and addressed
work relating to the construction for form decks. It is foreseeable that workers performing non-leading edge work at the leading edge would be exposed to the hazard. Respondent therefore had
constructive notice of the violation.

Respondent’s argument, that it was infeasible, or created a greater harm, to provide conventional
fall protection to workers performing non-leading edge work at the leading edge, is discussed
below.

Classification and Penalty Consideration

The evidence supports a classification of this item as willful. Just as Major ignored its obligation
to provide fall protection to workers constructing leading edge work, (29 CFR 1926.501(b)(2)(I),
Citation 2, Items 2b and 3b, above), Major ignored its obligations under 29 CFR
1926.501(b)(2)(ii), to provide fall protection to workers at the leading edge, who were
performing non-leading edge work. The instances in this item all occurred after imminent danger
was posted, and after at least one abatement meeting with OSHA compliance officers. However,
Respondent continued to completely ignore the standard’s requirements, despite the fact that its
employees were exposed to the danger of falling off the side of the building, to their deaths.

I affirm the $56,000 penalty. AD Ricca testified that this item was identified as a high grader
because of the likelihood of injury and gravity of harm. (Tr. 1008-1009). OSHA evaluated the
item at $70,000, and reduced it 20 %, based on the size of the Respondent. This was an
appropriate assessment.

Citation 2, Item 1b; Citation 2, Item 2c; and Citation 2, Item 3d

Citation 2, Item 1b, Citation 2 Item 2c and Citation 2, Item 3d were issued for alleged violations
of 29 CFR 1926. 501(b)(3). (Hoist Areas). The applicable standard provides, in pertinent part,
“Each employee in a hoist area shall be protected from falling 6 feet (1.8 m) or more to lower
levels by guardrail systems or personal fall arrest systems. If guardrail systems, [or chain, gate or
guardrail] or portions thereof, are removed to facilitate the hoisting operation (e.g., during
landing of materials), and an employee must lean through the access opening or out over the
edge of the access opening (to receive or guide equipment and materials, for example), that
employee shall be protected from fall hazards by a personal fall arrest system”. Id . Item 1b, Item
2c and Item 3d have been grouped under on item for penalty purposes. The Secretary met her
initial burden with respect to these items, although the instance identified in the Citation as Item
2c, instance b is vacated.

Citation 2, Item 1b identifies only once instance, which was based on an observation made by
CO Torre on November 3, 1998. CO Torre testified that he observed and videotaped
unprotected employees performing form related work at the edge in a hoist area, within two feet
from the edge, on the fourth floor. (Tr. 75-76, 159-160). The videotape corresponds with his
testimony, depicting what appears to be men working with forms work in a hoist area on the
stacking floor.

Citation 2, Item 2c contains four instances of observed violations. Instance a involves
observations made by CO Jensen the 25 th floor on January 19, 1999. Major employees were seen
in a hoist area, with no form of fall protection. CO Jensen ascertained that the workers were
Major employees because they were performing forms related work. (Tr. 347-349).

The corresponding video, however, does not depict the exposed employees performing form
related work. Rather, it shows two employees standing in a hoist area, close to the edge, talking.
The floor appears to have been stripped. Nonetheless, I find that Major controlled the area in
question in that Major undertook the contractual responsibility to install perimeter cables or
guardrails after each floor is stripped. Furthermore, the hoist areas served to store and move
concrete forms work. Major, as the concrete forms contractor, would clearly have controlled the
area, and can be held accountable for the violation under the precedent set in Harvey Workover,
Inc. , supra , and Flint Engineering & Constr. Co. , supra .

The evidence at trial likewise demonstrates that the Secretary established her prima facie case
with respect to the allegations identified in instances c and d of Citation 2, Item 2c. Instance c is
supported by CO Norton’s testimony that an unprotected employee performing forms work was
observed within two to three feet of the edge, in a hoist area on the 28 th floor. The corresponding
video segment is in accordance, and the hazard is aggravated by the fact that it is snowing at the
time, causing the deck to appear slippery. Instance d is supported by CO Jensen’s testimony that
an unprotected employee was observed on January 26, 1999, in a hoist area, preparing to rig up
a sling to connect to the material. (Tr. 401-402). The corresponding video supports his
testimony.

CO Jensen reported that an additional violation of 29 CFR 1926.501(b)(3) occurred on February
1, 1999, when he observed an employee one and ½ feet from the edge in a hoist area on the 30 th
floor without fall protection. (Tr. 444 - 446). His observations formed the basis for the issuance
of Citation 2, Item 3d, which identifies only this one instance, (“instance a”). While Jensen
admitted that the video does not show Major employees exposed to the hazard, he reported
observing Major employees present in the area who were not caught on the film showed during
the hearing. (Tr. 649-651). Nonetheless, the hoist area in question was used to store and transport
concrete forms. Major controlled the area and can be held responsible for the violation.

The evidence thus demonstrates that the Secretary established her prima facie case in all
instances except for Citation 2, Item 2c, instance b. Respondent’s argument that it was
infeasible or created a greater harm to provide conventional fall protection to workers in the
hoist areas is discussed, below.

Citation 2, Item 2c, Instance b identifies unprotected employees in a hoist area on the 27 th floor,
on the north side, observed on January 21, 1999.The corresponding video, however, depicts two
employees performing leading edge work. As such, I find the standard cited, 29 CFR 1926.
501(b)(3) does not apply to this one instance.

Classification and Penalty Consideration

These items were properly classified as willful. Major’s supervisors were on notice of the
requirement for providing fall protection as early as the mid 1980's. Also, the record is devoid of
any sincere attempts to consider a proper abatement plan, despite repeated discussions with
compliance officers during the investigation of this job site. Furthermore, a number of these
instances occurred after imminent danger was posted, and still, no real attempts to protect the
employers were made. (The record reveals only a half hearted apparent direction that some
employees tie off, after OSHA commenced the inspection, although no apparent efforts to
actually enforce this ‘rule’ were made).

Similarly, even without Citation 2, Item 2c, instance b, this newly grouped item reports five
instances of unprotected employees exposed to a fall off the side of the building and probable
death. Thus, the penalty assessment, of $70,000, which was reduced to $56,000 based on the
size of the employee, is affirmed.

Citation 2, Item 4

Complainant likewise met her burden of establishing violations of 29 CFR 1926.501(b)(4),
(“Holes”).

CO Jensen testified that he observed and videotaped unprotected workers near an
unprotected floor opening on the 28 th floor, on January 19, 1999. (Tr. 351-353). The video
corresponds with his testimony; the open hole at issue leads to the deck below, and is surrounded
by strips of yellow caution tape. Buttino identified the area in question as an open stairway,
which was used to pass up construction materials from the deck below. He also admitted that
Major taped the area, purportedly to prevent employees from falling through the hole. (Tr.
1261). Despite Buttino’s testimony that the hole would be covered when not in use, there was no
activity seen in the hole, at least during the brief video. This instance is identified as instance a.

CO Jensen testified to an unguarded hole on the south side of the building observed on January
22, 1999, with a form work side which approximately 15 inches high. Employees, one of whom
was identified as Don Lee, were shown working near the opening. The video depicts the opening
on the forming deck, partially surrounded by a small partition made of form work, which almost
comes up to the knees of one of the employees working near the hole.

The standard applies to both instances. The hazard presented involves a potential fall of up to 9
feet, one inch, (to the deck below). Respondent violated the terms of the standard, as the
openings were not covered or guarded in accordance with the statute. It is clear that
Respondent’s employees in instance b were exposed; the video shows a worker performing form
work within two feet of the edge, (whether or not one of the workers near the opening is Don
Lee). With respect to instance a, it is not clear whether the worker in the video who passes the
opening is an iron worker or a concrete forms worker. Nonetheless, Buttino’s testimony makes it
clear that Respondent controlled the area. Finally, it is clear Respondent knew, or at least,
should have known of the violative conditions. Respondent placed caution tape around the
opening in instance a and also provided for half of the opening in instance b to be partially
protected by a low forms work partition. Further, Buttino testified that Respondent used both
openings to pass through materials; Respondent’s deck foreman, (Buttino for the framing deck),
in supervising the workers, should have observed the hazardous conditions in the exercise of due
diligence.

Respondent asserts that it was infeasible to provide the statutory fall protection to workers
exposed to open floor holes. As is discussed below, Respondent failed to meet its burden of
proof for this affirmative defense.

Classification and Penalty Consideration

The record supports the classification. This item was classified as willful because Respondent
was put on prior notice of the standard’s requirements. (Tr. 1009-1010). While the imminent
danger notice referenced employees exposed at the edge of the building, and not specifically to
employees exposed to open floor holes, the record indicates that Buttino was aware of the
standard’s requirements at least as early as January 11, 1999, when he apparently had a heated
discussion with a compliance officer relating to an open floor hole which formed the basis of
Citation 1, Item 4, instance e. Major’s attempts to “comply” with the standard, such as taping
“caution tape” around an open floor hole, were lackadaisical, at best, and evidence a continuing
refusal to even read the standards, let alone take them seriously.

AD Ricca testified that the gravity base was medium, with a possible greater severity. An
assessment of $55,000 was determined, reduced by 20 % based on the size of the employer,
resulting in a final proposed penalty of $32,000.00. This assessment is supported by the record.
While the employees were not exposed to a fall off the side of the building, serious personal
injury, even death, could occur with a fall to the grade below. The problem is aggravated by the
number of prior observations, and the fact that any of Respondent’s attempts to cover the floor
holes were half-hearted, at best.  

Respondent’s defense of the Infeasibility of Conventional Fall Protection .

Respondent argues that it was infeasible to provide conventional fall protection for employees
working at the edge, [29.CFR 1926.501(b)(1)], employees performing leading edge work,
[29CFR. 1926.501(b)(2)(i)], employees at the edge in a hoist area, [29 CFR 1926.501 (b)(3)],
and employees exposed to open floor holes [29 CFR 1926.501(b)(4)]. Respondent failed to meet
its burden of proof to establish this defense.

29 CFR 1926.501(b)(2)(i) is the only one of the three standards involved which, by its terms,
allows for an affirmative defense of infeasibility. Nonetheless, Commission precedent
recognizes an affirmative defense where an employer is able to establish that compliance with a
specific standard is infeasible, regardless of whether such a defense is contained within the
standard at issue. In order to establish a defense of infeasibility, and employer must prove that,
“(1) the means of compliance prescribed by the applicable standard would have been infeasible
under the circumstances in that (a) its implementation would have been technologically or
economically infeasible after its implementation, and (2) either (a) an alternative method of
protection was used, or (b) there was no feasible alternative means of protection”. A.J. McNulty
and Company 19 BNA OSHC 1121, 1129, (No. 94-1758, 2000). I find that Respondent Major
failed to establish that the means of compliance prescribed the applicable standards were
infeasible, or for that matter, created a greater harm.

Respondent failed to meet its burden of establishing that conventional fall protection was
infeasible to protect workers performing leading edge work, [Respondent’s violations of 29 CFR
1926.501(b)(2)(I)]. Respondent argues that there was no place for an employee to anchor a
personal fall arrest system as the form work was not structurally sound enough to support the
weight or to withstand lateral loads. Guardrails could not be used because the deck was
continually moving out, and a perimeter net could not be attached closer than five stories below
the leading edge, because the top five floors were “working floors”, and nets would interfere
with the operation of the material crane. (Respondent’s brief, pp 14- 15). Respondent’s experts
also opined that the concrete slabs within three stories of the area to be protected were not
strong enough to support a perimeter net or to withstand a lateral pull which would occur if an
employee were to drop into the net. (Tr. 1368, 1399)

It is necessary to clarify that the employees on this job site who were observed exposed to a fall
hazard while performing leading edge work, were at the exterior edge of the building, as well as
at the leading edge. This case therefore does not present the question of whether it is infeasible
to continually place, remove, and replace a guardrail or temporary safety net at the leading edge
as the edge progresses, but whether some sort of perimeter protection would have protected the
employees performing leading edge work in these instances.

Respondent failed to establish the infeasibility of a perimeter net, the suggested form of
conventional fall protection for these workers. (Tr. 305). Respondent apparently made the
determination that the concrete slabs three levels below the leading edge deck, had not cured
sufficiently to support a perimeter net, without conducting any on site testing or consulting any
concrete strength reports. Nonetheless, Respondent was sufficiently assured that the concrete
was adequately cured in order to support up to three levels above it at the time the supporting
wooden forms were stripped from the concrete. The only real evidence Respondent presented in
this regard is Respondent’s expert’s statements based on his review of the concrete
“manufacturer’s instructions”. (Tr. 1381). This is insufficient, especially in light of Polites’
deposition testimony that an independent contractor was retained by 30 River Court to conduct
regular concrete strength tests, and that he had access to those reports, if needed. (C-29, p. 57).

Complainant’s expert Mathew Burkart testified that the engineer on site should have
documented the strength of the concrete before the forms were stripped. If the concrete were
strong enough to be stripped, it should have been strong enough to support a perimeter net or to
act as an anchor for a personal fall arrest system (Tr. 1413). Any fears that the concrete had
insufficient strength to a net or personal fall arrest system should be alleviated by an on site
testing by an engineer on site. (Tr. 1413). I find this suggestion reasonable. Furthermore, it
sheds doubt on the veracity of Respondent’s expert in that he either did not consult any site tests
before offering his opinion, or he did, and chose not to refer to them. Alternatively, of course,
Respondent’s engineer may have chosen not to conduct or even refer to site tests that were
performed, in which case it is clear that no effort was made either during the planning stage or
during the construction to determine the feasibility of conventional fall protection. In any event,
I find that Respondent’s failure to submit reports from any site tests fatal to Respondent’s
argument that the concrete three floors below the area to be protected was not strong enough to
support a perimeter net at this job site.

Respondent’s argument that a perimeter net was infeasible because it would interfere with the
material crane unpersuasive. Respondent did not explain why a portion the perimeter net could
not be removed in the hoist area so as not to interfere with the operation of the crane. In any
event, even had Respondent met its burden in this regard, the Secretary’s rebuttal experts
proved that, with planning, the material hoist areas could have been specifically identified and
localized to fewer areas on decks. Respondent thereupon could cantilever out that portion of the
perimeter net which is directly below and above the hoist areas, so as to leave a clear path for the
operation of the crane, regardless of the type of fall protection provided the workers in the hoist
area. In this regard, I find the Secretary’s expert witness, Mr. Paine, more credible than the
Respondent’s expert witness.

Likewise, I find feasible the suggestion that the ribs intended to be placed at the edge of the
building could have been designed with a guardrail already attached, so as to provide protection
for the workers working on the leading edge, who reach the perimeter of the building. (Tr. 1410).
Respondent failed to explain why it would be infeasible to provide such a temporary guardrail.

Respondent similarly failed to meet its burden of proving that it was infeasible to provide
conventional fall protection to employees exposed to unprotected sides, in violation of 29 CFR
1926.501(b)(1). Respondent’s argument includes the claim that there was no anchorage point of
sufficient strength to which to anchor a personal fall protection system, (Respondent’s brief, pp
21 -22), there was no place to hook a guardrail, (Respondent’s brief, at p22), and, in instances on
the stripping and stacking floor, “guardrails were infeasible because the floor below had already
been stripped” (Respondent’s brief, p 23). Respondent also claims that there was no place to
anchor a lifeline to on the framing floor, because the form work above was necessarily merely
toe nailed together and could not support therefore support a body weight. (Respondent’s brief,
pp 21 -23).

Again, however, Respondent apparently performed no on site or dynamic tests to determine
whether the concrete slabs in each instance below the framing deck were not of sufficient
strength to serve as an anchor for a personal fall arrest system, or to support a perimeter net. Nor
did Respondent obtain the tests which were performed and admittedly available. Respondent
likewise did not explain why it would be infeasible to strengthen a few areas of form work at the
perimeter, to which lanyards for personal fall protection systems could be anchored. More
blatantly, Respondent’s argument that guardrails were infeasible where the floor below has been
stripped because Respondent attached the guardrails to the form work below completely ignores
the possibility that the guardrail could be attached to the floor on which the men were working,
either to the form work, to anchors in the cement, or to anchors attached to the internal steel
structures. Further, during the course of the investigation, it appears that some employees were
in fact caught on tape wearing personal fall protection systems while performing work near the
edge of the building. (Respondent argued, however, that it only required that its employees “tie
off” after OSHA inspectors told them to. Requiring that employees use harnesses and lanyards
attached to formwork, according to Respondent, was against its better judgment. Even if
Respondent’s witnesses were believed in this regard, however, Respondent has failed to establish
that guardrails, and perimeter nets were infeasible and that sections of the form work could not
be reinforced so as to support such equipment.)

Respondent likewise failed to meet its burden of proving the infeasibility of the prescribed fall
protection methods of 29 CFR 1926. 501(b)(3). Again, Respondent failed to establish that the
concrete slabs or columns were of insufficient strength to anchor a personal fall arrest system.
Also, Respondent did not establish the infeasibility of the use of a guardrail system, at least
while the hoist area is not in operation. Respondent presented no evidence why the stored forms
could not be placed below the mid rail of the guardrail, or why the portion in operation could
not be removed, as is contemplated by the standard. Arguing that the guardrail would impede
the operation of the crane, Respondent did not consider the possibility that the portion of the
guardrail protecting the hoist area in operation could be removed while the crane is being
utilized, as is expressly contemplated by the standard.

Similarly, Respondent failed prove that the prescribed methods for fall protection specified in
29 CFR 1926.501(b)(4) were infeasible. Respondent argues that the prescribed methods would
“unreasonably disrupt” the work activities because the stairway openings and elevator shafts
were being used in the work process for “passing the material up”. (Respondent’s brief, p 25).
Thus, Respondent argues, a guardrail or cover would interfere with the ability to move material
through the holes. Personal fall arrest systems were likewise infeasible because of a “tripping
hazard” and the potential that the lines would become tangled in the various legs of the forms
work. I find that Respondent has not established that guardrails would sufficiently interfere
with Respondent’s ability to move material through the holes so as to consider their use
unreasonable. The standard requires that the top rail of a guardrail be 42 inches, plus or minus
three inches, above the walking/working surface. 29 CFR 1926.502(b)(1). Respondent failed to
submit evidence that material passed up nine feet from the deck below, cannot be reasonably
passed up an additional, approximate, 42 inches. Furthermore, Respondent did not establish
why the open holes in question could not be fully covered when not in use, or why the portion of
the hole not in use could not be covered.

Citation 3, Item 1

This Citation was issued for two instances of violations of 29 CFR 1926.1053(b)(4), which
provides in pertinent part that “ladders shall be used only for the purpose for which they were
designed.” Id. CO Jensen testified that on two different dates he observed an employee using an
eight foot stepladder in a folded up manner. Tr. 410-411. The hazard, he testified, is that the
ladder can slip. Tr. 411. I find that the standard applies, and that it was violated. The ladders
were designed to be used as step ladders, and not as pitched ladders. However, the Secretary
presented no evidence and makes no arguments that Respondent was aware, or should have been
aware, of these two separate instances. Therefore, I find that the Secretary failed to meet her
burden of establishing knowledge of the hazardous condition. This Citation is therefore vacated.

ORDER

Based on the foregoing decision, the citation items are disposed of and the penalties assessed, as
follows:

Citation            Violation                                  Disposition       Classification   Penalty  

Item

Citation 1          29 CFR 1926.95(a)                   Affirmed as      Serious                          $500.00

Item 1                                                               To Instance b

Citation 1          29 CFR1926.405(b)(I)              Affirmed           Serious                          $1,500.00

Item 2

Citation 1          29CFR1926.501(b)(2)(I)          Affirmed           Serious                          $5,000.00

Item 3

Citation 1          29CFR1926.501(b)(4)Affirmed           Serious                          $3,500.00

Item 4

Citation 1  

Item 5a              29CFR1926.502(b)(1)Affirmed           Serious                          $7,000.00

Item 5b             1926.502(b)(2)

Citation 1          29CFR1926.502(g)(1)Vacated

Item 6

Citation 1          29CFR1926.502(h)(1)Vacated

Item 7

Citation 1          29CFR1926.502(h)(3)Vacated

Item 8a

Citation 1          29CFR1926.502(k)(9)Vacated

Item 8b

Citation 1          29CFR1926.502(k)(3)Vacated

Item 9

Citation 1          29CFR1926.502(k)(4)Vacated

Item 10

Citation 1          29CFR1926.502(k)(7)Vacated

Item 11

Citation 1          29CFR1926.503(a)(1)Vacated

Item 12

Citation 1          29CFR1926.701(b)                   Affirmed as toSerious              $7,000.00

Item 13                                                             Instances b,

c, d, e, & f

Citation 1          29CFR1926.703(a)(2)Affirmed                       Serious              $3,000.00

Item 14

Citation 2          29CFR1926.502(b)(1)Affirmed                       Willful$56,000.00

Item 1a

Item 2a

Item 3a

Citation 2          29CFR1926.501(b)(2)(I)          Affirmed                       Willful$56,000.00

Item 2b

Item 3b

Citation 2          29CFR1926.501(b)(2)(ii)         Affirmed as toWillful$56,000.00

Item 3c                                                              Instance b & c

Citation 2          29CFR1926.501(b)(3)Affirmed except           Willful$56,000.00

Item 1b                                                             As to instance b of

Item 2c                                                              Item 2c

Item 3d

Citation 2          29CFR1926.501(b)(4)Affirmed                       Willful$32,000.00

Item 4

Citation 3          29CFR1926.1053(b)(4)            Vacated

Item 1

/s/

G.Marvin Bober, Administrative Law Judge

Washington, DC

Dated: March 16, 2001

Washington, DC