Ernest Bock & Sons, Inc.

Plain-English summary

The case involved subcontractor employees working from aerial lifts without required fall protection at a Pennsylvania construction project. The administrative law judge had treated Bock Construction's site superintendent as Ernest Bock & Sons' agent under the multi-employer worksite doctrine and affirmed serious and repeated violations with $6,000 in penalties. After review was directed, the Secretary determined that further litigation was not warranted and withdrew all citation items. The Commission granted the withdrawal, vacated the citations, and ended the case.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.453(b)(2)(iv), 1926.20(b)(1), and 1926.453(b)(2)(v)
• Outcome: All citation items withdrawn by the Secretary and vacated by the Commission.
• Key point: The Secretary's withdrawal of every citation item after review was directed resolved the case without a Commission merits ruling on multi-employer liability.

Full text (OSHRC public release)

                                                  :

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC Docket No. 99-2022

                                                  :

ERNEST BOCK & SONS, INC., :
:
Respondent. :
:

                                          ORDER

   This case is before the Commission based on a Direction for Review by Commissioner

Ross Eisenbrey on March 12, 2001. The Secretary has now filed a Notice of Withdrawal of
Citation Items (Notice of Withdrawal) stating that the Secretary has determined that future
litigation is not warranted and that she withdraws the citations, which resolves all issues in the
case. The Commission construes this as a motion to withdraw these citations and grants it.
The Commission concludes that no further review of this case is warranted. The citations
are vacated and this Order is the final order of the Commission.
It is so ordered.
FOR THE COMMISSION

Date: August 10, 2001 /s/
Ray H. Darling, Jr.
Executive Secretary

                                                                           2001 OSHRC No. 21

99-2022

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, DC 20210

Catherine Oliver-Murphy, Regional Solicitor
Office of the Solicitor, U.S. DOL
The Curtis Center, Suite 630E
170 S. Independence Mall West
Philadelphia, PA 19106-3306

Thomas M . Guinan, Esquire
Kathleen J. Heist, Esqu ire
Howland, Hess, Guinan, Torpey & Cassidy, LLP
2444 Huntingdon Pike
Huntingdon Valley, PA 19006-6189

G. Marvin Bober
Administrative Law Judge
Occup ational Saf ety and Hea lth
Review Commission
1120 20th Street, Ninth Floor
Washington, D.C. 20036-3419
 SECRETARY OF LABOR,

            Com plainan t,

                   v.                                    OSHRC D OCKET N O. 99-2022

ERN EST B OCK & SO NS, IN C.,

            Respon dent.




                              DECISION AND ORDER

APPEARANCES:

           Troy E. Leitzel, Esquire             Thomas Bock, Vice-President
           Office of the Solicitor              Ernest Bock & Sons, Inc.
           U. S. Department of Labor            Philadelph ia, Pennsylvan ia
           Philadelph ia, Pennsylvan ia         For the Respo ndent, pro se.
           For the Complainant

BEFORE: G. MARVIN BOBER
Administrative Law Judge

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

Commission” ), pursuant to the Occupational Safety and Health Act of 1970, §§ 651-678
(1970) (“the Act”), to review a two-item serious citation and a one-item repeat citation issued
by the Sec retary of L abor to Ernest Bock & So ns, Inc., h ereinaf ter “Re spond ent” or “ EBS .”
On August 25 and 31, 1999, the Occupational Safety and Health Administration
(“OSHA”) conducted an inspection of a construction site located in Springfield,
Pennsylvania, where EB S was the prime general contractor. As a re sult of the inspection,
OSHA on October 1, 1999, cited EBS for serious violations of 29 C.F.R . §§
1926.453(b)(2)(iv) and 1926.20(b)(1) and a repeat violation of 29 C.F.R. 1926.453(b)(2)(v).
EBS filed a timely notice of contest on October 18, 1999 . An adm inistrative trial wa s held
in Philadelphia, Pennsylvania on Ma y 16, 2000, an d post-trial brief s were filed by both
parties. The Secretary made a motion to strike certain ex hibits EBS submitted w ith its post-
trial brief, and EBS filed a response to the motion.
Stipulations
1. Ernest Bock & Sons, Inc., is engaged in bu siness as a general contractor.
2. Ernest Bo ck & So ns, Inc., is a corp oration w ith its principal office and place of
business located at 2800 Southampton Road, Philadelphia, Pennsylvania 19154.
3. On Janu ary 19, 1999, E rnest Bock & Sons, Inc., entered in to a contrac t with
Springfield Township, D elaware Cou nty for the New C lubhouse at the Spring field Country
Club located at 400 West Sproul Road, Springfield, Pennsylvania 19064.
4. On April 9, 1999, Ernest Bock & Sons, Inc., en tered into a co ntract with
subcontractor B&K C onstruction for the New Clubhouse at the Springfield Country Club
located at 400 West Sproul Road, Springfield, Pennsylvania 19064.
5. On Ap ril 9, 1999, E rnest Boc k & So ns, Inc., entered into a contra ct with
subcontractor RRR Contractors for the New Clubhouse at the Springfield Country Club
located at 400 West Sproul Road, Springfield, Pennsylvania 19064.
6. The parties stipulate to the a uthenticity of ea ch others’s e xhibits, but no t necessarily
to their relevance or to the matters asserted therein.1
Motion to Strike
On July 14, 2000, the Secretary filed a motion to strike the documents EBS had
attached to its brief and “any portion of the brief which argues from or refers to the
docum ents.” The basis for the motion is that the doc uments were not admitted into evidence
at the hearing and the fact that EBS did not request the record to be left open to admit the
documents. In response, EBS notes that the record was left open for the Secretary to provide
the articles of incorporation for EBS and Bock Construction, Inc. (“BCI”), a subcontractor
of EBS at the site. (Tr. 206). EBS further notes that it is providing the documents attached

   1
       The Secretary’s and Respondent’s exhibits are identified as “GX” and “RX, respectively.

to its brief in support of its assertion that EBS and BCI are in fact two separate corporations
and that EBS w as improperly cited in this matter.
As the above suggests, at issue in this case is whether BCI is a se parate legal e ntity
from EBS and whe ther EBS was prop erly cited in this matter. Upon considering the
docume nts EBS seeks to introduce, I conclude that they are relevant to understanding the
relationship between these two entities and to the resolution of this case. I further conclude
that it would be fundamentally unfair to consider the Secretary’s documents without also
considering those of EBS . The Secretary’s motion is accordingly DENIED, and the
documents of both parties are received in evidence.2
Corporate History of EBS and BCI
The record shows th at Ernest B ock, Inc., w as incorpo rated in the Commonwealth of
Pennsylvan ia on October 15, 1970, and that on December 21, 1981, the company changed
its name to EB S. The corpor ate off icers on record are Ern est Boc k, CEO , Thomas Bock,
vice-preside nt, and Jean Bock, secretary. The record further shows that BCI was incorporated
in the Commonwe alth of Pennsylvania on March 10, 19 94, and that the corporate o fficers
on record then wer e Christine M arlin, CEO , and Lou is Harris, vice- president. 10,000 shares
of stock we re authorize d to be issued, the sole shareholder was Thomas Bock, and the initial
members of the boa rd of d irectors w ere Th omas B ock, E rnest B ock an d Jean B ock. At a
special meeting held on March 1, 1997, BCI’s sha reholders and board of directors approved
the sale of BCI to Marianne Owens, appointed her to the board of directors, and appointed
Christine Marlin as president, secretary and treasurer and Louis Harris as vice-president. At
a special meeting held on February 11, 1998, BCI’s board of directors appointed Marianne
Owens as president, secretary and treasurer; at the same time, Christine Marlin resigned as
an officer and director o f BCI. (GX -11-12, RX-8-9 , RX-13).

   2
    The Secretary’s documents are the articles of incorporation of BCI and EBS and are

admitted as GX-11 and 12, respectively. The documents of EBS are the articles of incorporation
of BCI, minutes from BCI’s board of directors meetings, and other records of BCI. These are
admitted as RX-8 through 15. All of these exhibits are specifically set out in Attachment 1 to this
decision.
 Pursuant to their agreement of March 1, 1997, Thomas Bock agreed to sell Marianne
Owens all of the “pre sently issued an d outstand ing” BCI stock he owned, consisting of
10,000 shares of stock having a v alue of $1 .00 per sha re; in return, Ms. Owens agreed to pay
$50,000 for the s tock, w ith a dow n payme nt of $1 0, a payment of $990 by November 1,
1997, and the balance of $49,000 to be paid over a ten-year period. Annual payments of
principal and interest were du e by March 1 of each year, beginning in 1998, and Thomas
Bock retained a se curity interest in the stock in the event of a default; in addition, the
agreement was “expressly conditioned to and contingent upon Buyer securing a lease from
the owner upon the premises situate and known as 2800 Southampton Road, Philadelphia,
Pennsylvania, for a period of ten (10) years.” The lease agreement of March 1, 1997, between
Thomas Boc k, t/a EBS Bus iness Co urt, a nd B CI re quired B CI to pay a minimal annual rental
of $13,750, with the first installment due by March 1, 1998.3 (RX-11-12, R X-14).
Factual Background
On January 19, 1999, EBS contracted with Springfield Township to construct a
clubhouse at the Springfield Country Club. As the prime general contractor, EBS was
responsible for excav ation, steel erec tion, masonry and concrete, carpentry, roofing and
interior finishing at the site.4 EBS then subcontracted with various entities to do the actual
work on the project, including RRR Contractors (“RRR”) for roofing and siding work, B&K
Construction (“B&K”) for carpentry, metal framing, drywall and insulation work, and BCI
for door installation and millwork; BCI was also responsible for supervising the work of the
EBS subcontractors and for safety coo rdination, an d Antho ny Cellucci w as BCI’s jo b site

   3
     Despite the agreement for sale and the lease agreement, I note that BCI’s 1998 Form

1120S shows only a $24 deduction for interest and no deduction for rent; in addition, the 1999
Form 1120S attached to BCI’s request for an extension of time to file shows no deduction for
interest and a deduction of only $9,800 for rent. See RX-15.
4
Other prime contractors that had separate contracts with Springfield included an HVAC
contractor, a plumbing contractor, a sprinkler contractor and an electrical contractor. (Tr. 8-12).
superinten dent. 5 Springfield Township had also contracted with R.M. Shoemaker Company
(“Shoemaker”) to act as its con struction ma nager, and Jeffrey Sm ith, Shoem aker’s proje ct
superintendent at the site, was responsible for overseeing all the work and ensuring it was
done s afely. (Tr . 8-15, 1 8-20, 2 7-28, 3 5-36, 1 72, 180 -82, 18 8; GX -4-6, R X-2-4 ).
On August 25, 1999, James Touey, an OSHA compliance officer (“CO”), went to the
site to inspect the project. Upon arriving, he saw an employee in an aerial lift; the lift was
about 50 feet in the air and the employee was working without fall protection. After videoing
the scene, the C O met firs t with Jeffrey Smith and then w ith Anthony Cellucci. As the y were
discussing the condition, the CO saw that the employee had climbed onto the midrail of the
lift and wa s leaning ou t of it to work; he videoed the scene and then had the employee come
down, after which he interviewed him and learned that he worked for RRR. CO Touey also
spoke briefly to RRR’s foreman, but he was unable to complete his inspection because he
had learned that Ernest Bock, Jr., a family friend, was involved with the project; the CO
therefore recused him self from the inspection. (T r. 42-54).
On August 31, 1999, OSHA CO Nicholas DeJesse went to the site to continue the
inspection. When he arrived, he saw an employee in an aerial lift, 30 to 35 feet in the air,
without fall protection. The CO videoed the scene and then m et with Mr. Sm ith and Mr.
Cellucci; he next had the employee brought down for an interview, and he also spoke to the
employee’s foreman, who worked for B&K. The CO then held an openin g confere nce in
Shoemake r’s trailer to identify the various contractors at the site . Upon re suming h is
inspection, the CO saw two employees working in an aerial lift in a different area of the
project; the employees were about 2 0 feet in the air and had on harnesses but no lanyards.
The CO videoed them and the basket, which by this time was on the ground, and he learned
the employees worked for RRR . CO DeJesse recommended the citations in this case, and he

   5
     Specifically, BCI was to “[p]rovide the necessary labor to properly supervise, manage

and oversee all aspects of the project including but not limited to safety coordination and
installation of doors and millwork per all plans and specifications.” See RX-4.
concluded from his inspection EBS was the responsible employer. (Tr. 75-92, 109-12, 146-48).
The Relevant Testimony
Jeffrey Smith, Shoemaker’s project superintendent, testified he had been una ware
there were two companies at the site, that is, EBS and BCI; as best he could recall, the prime
general contractor was just “Bock” and Mr. Cellucci was the superintendent of “Boc k.” 6 Mr.
Smith also testified that his jo b included walk-aro und safe ty inspections an d week ly safety
inspection reports. He noted that GX-1, his report of June 19, 1999, said to “ instruct Bock’s
sub B&K to use harnesses in high reach,” and that GX-2, his report of August 25, 1999,
which had a fax cover sheet to “Bock Construc tion/Tony C ellucci,” stated th at “men in high
reach need harnesses.” He also noted he had given GX-1-2 to Mr. Cellucci, who was
responsible for correcting hazards relating to the EBS subcontractors. Mr. Smith stated that
RX-5-6, Mr. Cellucci’s daily reports to him, had some sheets showing the company as EBS
and others show ing it as Bock Co nstruction. (Tr. 18-26, 29-35, 40 ).
CO Touey testified that on August 25, 1999, Mr. Smith told him that the prime
contractor involv ed in the activity he had see n was “Boc k.” CO Touey further testified that
Mr. Cellucci told him he worked for “Bock” and that he did not know at that time that two
different companies were inv olved. Th e CO n oted that be sides his acq uaintance w ith Ernest
Bock, Jr., he had w orked brief ly for EBS or BCI in 1989; he thought then there might have
been two compan ies, one unio n and on e non-un ion, but he d id not know if this was a ctually
the case. (Tr. 46-47, 51, 54-5 5, 62-63, 68-69, 72).
CO DeJesse testified that at the opening conf erence on Au gust 31, Mr. Cellucci told
him he was the superintendent for “Bock.” CO DeJesse also testified that although he
requested one, Mr. Cellucci never gave him a business card. However, at the closing
conference the next day, Mr. Cellucci gave him the safety manual of EBS, and the CO
identified GX-7, a discussion of when fall protection is required, as a page fro m that ma nual;

   6
  Mr. Smith said that “Bock” had a trailer at the site but that he did not remember what

company name was on it. (Tr. 22)
Mr. Cellucci also told him that Louis Harris was the person to contact in his office.7 At some
point, the CO received a fax from Louis H arris on CB I’s letterhead, an d Springf ield
Town ship gave the CO a copy of its contract showing EBS as the prime general contractor
at the site. As he was un sure about which company was the employer at the site, the CO on
October 1, 1999, phoned Louis H arris, BCI’s v ice-presiden t, who info rmed him that it was
EBS. Based o n his inspec tion, the CO believed th at Mr. H arris and M r. Cellucci w ere in
effect employees of E BS. (Tr. 80-83, 89-9 1, 100-01, 109-14 , 130-36, 140, 143-4 8).
J. Lee Fulton was the director of code enforcement for Springfield Township at the
time of the inspe ction, and h is duties includ ed involve ment in the daily functions of the
project. He testified that the township had contracted with EBS for general contracting
services relatin g to the project and that he had regular discussions with Mr. Cellucci about
the job. He fu rther testified th at he had been unaware there were two separate companies,
that “Bock” was the prime general contractor as far as he was concerned, and that he
considered EBS and BCI “one and the same.” Mr. Fulton noted that Mr. Cellu cci told him
at one point that his boss w as Thomas B ock. (Tr. 150-60).
Gary Perlstein, pres ident of R RR, testified that he had contracted with EBS to do the
roofing work at the site a nd that Th omas B ock of E BS wa s the person who ap proved h is
invoices and issued his checks. He also testified that he h ad rece ived G X-10 , a July 16, 1999
letter from Thomas Bock regarding s afety on the job, and that he ha d received similar letters
on other jobs he had done for EBS. Mr. Perlstein said he gave safety inform ation wee kly to
Mr. Cellucci, the job superin tendent, who he assumed worked for EBS; however, he did not
know this for a fa ct. (Tr. 168-177).

   7
    The CO recalled no signs for either EBS or BCI at the site, but he agreed that on the

closing conference sign-in sheet, Mr. Cellucci noted his company as “Bock Construction.” (Tr.
103, 143-45).
 Anthony Cellucci testified that he had worked for EBS fr om appr oximately 19 90 until
1994 and that since then he h ad worked f or BCI. 8 He said that pursuan t to BCI’s contract
with EBS, he supervised the BCI employees at the site in addition to the employees of the
subcontractors of EBS; he also said that Jeff Smith had given him GX-1 and GX-2 and that
he had had the authority to correct those conditions.9 Mr. Cellucci noted that although
Thomas Bock had hired him to work for EBS, Louis Harris was his boss at BCI; he further
noted that he had seen Thomas Bock on the job “maybe twice, in the very beginning,” and
that he had ne ver taken a ny directions fro m him at the site. Mr. Cellucci did not know why
he had gone from EBS to BCI, and he was not aware of any BCI jobs that were not with
EBS. (Tr. 178-1 93).
Louis “Buzz” Harris testified that he had been BCI’s vice-president since 1994 and
that before then he had worked for EBS; he further testified that EBS had sold BCI in 1997
and that one of the reasons for the sale h ad been th e fact that B CI was a union com pany while
EBS was not. 10 Mr. Harris said that about 70 percent of BCI’s business was with EBS, and
he indicated tha t the comp anies we re in the same suite of the same office building. He also
said that he had contacted Thomas Bock during the project about issue s with subcontractors
and that Thomas Bock had written GX-10; however, he stated that the matters he discussed
with Mr. Boc k we re no t safety issues, and he assumed that Mr. Bock had written GX-10
because EB S’s contract was w ith RRR. (Tr. 195 -205).

Piercing th e Corpo rate Veil

   8
       Mr. Cellucci testified that after 1994, his paychecks came from BCI. (Tr. 181-82, 191-

92).
9
Mr. Cellucci said the subcontractors had their own supervisors but that he oversaw the
job and coordinated the work on the project. (Tr. 188-89).
10
Mr. Harris said he had no ownership interest in either EBS or BCI and that his
paychecks came from BCI. (Tr. 195-97, 202).
 As indicated supra, the primary issue in this case is whether EBS and BCI are s eparate
and distinct legal entities and whether EBS was properly cited for the alleged violations. The
Secretary contends that becaus e of the interr elationship between the two co mpanies, a nd in
the circumstances of this case, it is appropriate to “pierce the corporate veil,” treat the
companies as a single en tity, and hold EB S liable for th e cited cond itions. EBS contends to
the c ontrary.
In support of her position, the Secretary cites to two Commission cases standing for
the proposition that when two compa nies share a common work site (such that employees of
both have acc ess to the sam e hazardo us condition s), have interre lated and integrated
operations, and sh are a co mmo n presid ent, management, supervision or ownership, the
purposes of the Act are best effectuated by treating the two entities as one. Advanc e Specialty
Co., 3 BNA OSH C 2072 , 2076 (N o. 2279, 19 76); Trinity Indus., 9 BNA OSHC 1515, 1518
(No. 77-3909, 19 81).
The Secretary asserts the interrelation of the companies is shown by the fact that
Christine Marlin, BCI’s CEO on record, is also the office manager of EBS and the person
who signed RX-4, the contract between EBS and BCI fo r the subject p roject. (Tr. 198, 201).
However, the exhibits discussed above, in the corporate history part of this decision, show
that Christine Marlin w as no longer an of ficer of BCI w hen she signed R X-4. The Sec retary’s
assertion is thus unpersuasive.
The Secretary further asserts that other evidence shows the interrelation of EBS and
BCI, such that the y should be treated as on e entity. She notes that Springfield To wnship’s
contract was with EBS, that none of the witnesses who worked at the site knew there w ere
two separate companies, and that BCI used the safety manual of EBS and at times filled out
its weekly reports on EBS letterhead. She also notes that Louis Harris told CO DeJesse that
EBS was the employer at the site, that Anthony Cellucci told J. Lee Fulton that Thomas Bock
was his boss, and that Thomas Bock signed GX-10, the letters to B&K and RRR advising
them they were required to follow “ all OSH A regula tions and sa fe work ing proced ures,” in
particular those requiring fall protection on the project. Finally, the Secretary notes that EBS
and BCI have the s ame address and fax number. 11 Although the evidence in this case does
establish all of these f acts, I noneth eless conclude that it not appropriate to “pierce the
corporate veil” because the circumstances here are very different from those in Advance
Specialty Co., 3 BNA O SHC 20 72 (No. 2279 , 1976). 12
First, the two entities in Advanc e Specialty had the same president and owner who
actively supervised the activities of both. Second, both entities were located in the same
physical plant, and one fabricated wire products that were plated by the other. Third, the
interchange of employees between the two companies was not unusu al, the work ers of both
traveled freely into any area of the common work site, and the employees of both companies
were equally exposed or had access to the hazards presented by the cited conditions. 3 BNA
OSHC at 2074. Based upon the facts in Advance Specialty , and the Commission’s reasons
for treating the two en tities as one, it is my op inion that that d ecision simp ly does not a pply
to this case and that piercing the corporate v eil is not the ap propriate m eans of res olving this
matter. The Secretary’s assertion is accordingly rejected.
Multi-Employer Work Site Doctrine
The Secretary next conten ds that under the mu lti-employer work site doctrine, EBS
should be held resp onsible for the alleged v iolations bec ause of its o verall autho rity with
respect to the general construction on the pro ject. EBS c ontends th at it was not re sponsible
for the cited conditions because it hired BCI to oversee the project and implement its safety
program at the job site.13

   11
     Mr. Cellucci’s BCI business card has the same fax number appearing on the letterhead

of EBS. See RX-7, GX-10. In addition, the address of EBS is 2800 Southampton, while that of
BCI is evidently 2800-A Southampton. See RX-4, RX-14.
12
Trinity Indus., 9 BNA OSHC 1515, the other case cited by the Secretary, was remanded
so that the parties could present additional evidence as to the relationship between the two
companies involved and is thus not particularly helpful to this discussion.
13
The cases EBS cites in its brief have been considered; however, these cases are not
relevant to the disposition of this matter.
 Commission precedent is well settled that on a multi-employer work site an employer
that is in control of an area, and respo nsible for its m aintenance , is responsible under the Act
when it is established that a violation has been committed and that the area of the hazard was
accessible to the employees of the cited employer or those of other employers engaged in a
common undert aking. Anning-Johnson Co., 4 BNA OSHC 1193, 1196-97 (Nos. 3694 &
4409, 1976); Grossman Steel & Aluminum Corp., 4 BNA OSHC 1185, 1188-89 (No. 12775,
1976). See also Brennan v. OSHRC, 513 F.2d 1032, (2d Cir. 1975); Anning-Johnson Co. v.
OSHRC, 516 F.2d 1081 (7th Cir. 1975). Thus, the issue to resolve in this case is whether
EBS had sufficient control and respo nsibility over the site s uch that it sho uld be held liable
for the alleged violations. This determ ination will necessarily involve whe ther the Secretary
has met her burden of showing that EBS knew or should have known, in the exercise of
reasonab le diligence, of the viola tions. David Weekly Homes, 19 BNA OSHC 1116, 1119
(No. 96-0898 , 2000); Ragnar Benson, Inc., 18 BNA OSH C 1937, 1939 (No. 97-1676, 1999 );
Armstrong Steel Erectors, Inc., 17 BNA OSHC 1385, 1386 (N o. 92-262, 1995).
As noted above, Springfield Township’s contract was with EBS, none of the witnesses
knew there were two separate companies, and BCI used the safety manual of EBS and at
times filled out its weekly reports on EBS letterhead. Moreover, Louis Harris told CO
DeJesse that EBS was the employer at the site, A ntho ny Cellucci told J. Lee Fulton that
Thomas Bock was his boss, and Thomas Bock signed GX-10, the letters to B&K and RRR
informing them that they were required to follow “all OSHA regulations and safe working
proced ures,” in particular tho se requiring fall protection , on the proje ct. Finally, EBS and
BCI share the same add ress and fax num ber. In these circumstan ces, I conclu de that BC I in
general, and Anthony Cellucci in particular, was in essen ce an a gent of EBS at the site . I
further conclude that because of this relationship, EBS had control and responsibility over
the site sufficient to find it liable for the alleged violations; stated another way, Anthony
Cellucci’s knowledge of the cited conditions, which is clearly established by the evidence,
is imputable to EBS such that EBS had constructive knowledge of the violations.
Accordingly, I find that the Secre tary’s citation of EBS in this matter w as proper. 14
Serious Citation 1, Items 1a and 1b--Proposed penalty: $3,000
Item 1a of Citation 1 alleges a violation of 29 C.F.R. 1926.453(b)(2)(iv), which
pertains to aerial lifts and provides as follows:
Employees shall always stand firmly on the floor of the basket, and shall not
sit or climb on the edge of the basket or use planks, ladders, or other devices
for a work position.
The citation alleges that on August 25, 1999, on the north end of the site, an employee
in a Genie S-80 aerial lift was working from the rails of the platform and exposed to an
approxim ately 50-foot fall. CO Touey testified that on August 25, 1999, he saw an employee
in an aerial lift, about 50 feet from the ground, who was not tied off. The CO videoed the
scene and then met with Mr. Smith, who referred him to Mr. Cellucci. As they discussed the
condition, the CO saw that the employee had climbed onto the midrail o f the lift and was
leaning out of it to work. The CO videoed the scene and then had the employee come down,
after which he interviewed him and learned his name was David McFarlin and that he
worked for RRR; he also learned he had been on the job for two days, had not been provided
fall protection , and had n ot been told he neede d it.15 (Tr. 44-51).
The foregoing clearly establishes the alleged violation, and EBS presented nothing to
rebut the Secretary’s evidence. In addition, GX-1-2, GX-7, GX-10 and RX-5-6, described
supra, clearly establish EBS’s knowledge of the requirements of the cited stand ard as we ll
as prior violations of the standard at the site. This citation item is therefore affirmed.

   14
     While the foregoing is sufficient to dispose of this matter, I note that RX-4, the

agreement EBS had with BCI, required BCI to submit weekly safety meeting minutes to EBS.
RX-5-6 are copies of Mr. Cellucci’s daily reports to Mr. Smith. The reports for 6/25/99, 7/7/99,
7/24/99 and 8/3/99 all state that B&K and/or RRR were told that their employees needed to use
safety harnesses when working in lifts. These reports are deemed to be safety meeting reports
provided to EBS, thus establishing that EBS had actual knowledge of the cited conditions.
15
The CO noted that as they viewed the scene, Mr. Cellucci conceded that the employee
was not wearing fall protection; Mr. Cellucci then indicated that employees normally had fall
protection and that this individual had probably simply failed to put it on. (Tr. 49).
 Item 1b of Citation 1 alleges a violation of 29 C.F.R. 1926.20(b)(1), which pertains
to the employer’s accident prevention responsibilities and provides as follows:
It shall be the responsibility of the employer to initiate and maintain such
program s as may be n ecessary to com ply with this part.
The citation alleges that EBS did not initiate and maintain a safety and health program
to assist employees with the hazards associated with their operations. CO DeJesse testified
that he recommended this citation item because of EBS’s failure to have a safety and health
program at the site. He explained that although EBS had a written safety and health program
at the site, which included GX-7, a requirement that employees in man lifts or bucket trucks
use fall protection, it was apparent that the employer did not enforce the program in light of
the fall pro tection v iolation s he and CO T ouey saw at the site . (Tr. 89-91, 96-97, 130-31).
Based on the evidence, the Secretary has demonstrated the alleged violation. This citation
item is accordingly affirmed.
Items 1a and 1b of Citation 1 have been characterized as serious. A violation is serious
if death or ser ious physical h arm is the like ly result should an accide nt occu r. Miniature Nut
and Screw Corp., 17 BNA OSHC 1557, 1558 (N o. 92-2535, 1996 ); Super Excavators, Inc.,
15 BNA OSH C 1313, 1315 (No. 89-2253, 1991). CO DeJesse testified he classified the items
as serious because falls from heights of over 20 f eet usually cause serious injury or death.
(Tr. 93-94). The Secretary has met her burden as to the classification of these items, and they
are affirmed as serious violations.
The Secretary has g rouped th ese items an d propose d a single penalty of $3,000. In
assessing penalties, the Commission must give “due consideration” to the employer’s size,
history and good faith, and to the grav ity of the v iolation . J.A. Jones Constr. Co., 15 BNA
OSHC 2201, 22 13-14 (N o. 87-205 9, 1993). T he gravity of th e violation is u sually the most
significant e lement in penalty as sessme nt. Trinity Indus., 15 BNA OSHC 1481, 1483 (No.
88-691, 1992). CO DeJesse testified that the severity of Item 1a was h igh and the probability
of an accident greater due to the fact that the employee was working 50 feet above the ground
in a lift without fall protection and at one point was standing on the midrail of the lift and
leaning out of it to work. The CO further testified that while a reduction for size was given,
no reductions for good faith or history were given bec ause of the employer’s fa ilure to
enforce fall protection use at the site and because EBS had received a previous serious
citation within three years of this inspection. (Tr. 94-9 7). O n the basis of t he C O’s testim ony,
the proposed penalty of $3,000 is appropriate and is accordingly assessed.
Repeat Citation 2, Item 1--Proposed penalty: $3,000
This item alleges a violation of 29 C .F.R. 1926.453(b)(2)(v) which provides as
follows:
A body belt shall be worn and a lanyard attached to the boom or basket when
working from an a erial lift.
NOTE TO PARAG RAPH (b)(2)(v): As of January 1, 1998, subpart M of th is
part (§1926.502(d)) provides that body belts are not acceptable as part of a
personal fall arrest system. The use of a body belt in a tethering system or in
a restraint system is acceptable and is regulated u nder §1926.502 (e).
The citation alleges violations of the standard as follows:
a) North Side - An employee working in a Genie S-80 aerial lift was not
wearing a full body ha rness in conjunction with a lanyard thus being exposed
to a fall of approximately fifty (50) feet. Observed 08-25-99.
b) North Sid e - An em ployee wor king in a Genie S-60 aerial lift was not
wearing a full body harness in conjun ction with a lanyard thus being exposed
to a fall of approximately thirty (30) feet. Observed 08-31-99.
c) South Side - An employee working in an aerial lift #45 was not wearing a
full body harness in conjunction with a lanyard thus being exposed to a fall of
approximately twenty (20) feet. Observed 08-31-99.
The citation also alleges th at:
Ernest Bock an d Sons, Inc . was prev iously cited for a violation of this
occupational safety and he alth standard , or its equivale nt standard
1926.453(b)(2)(v), which was contained in OSHA inspection #116193640,
citation #01, item #002, issued on 02/27/98 by the Harrisburg Area Office.
The preceding discussion e stablishes insta nce 1a of this citation item. As to 1b and
1c, CO DeJesse testified that on August 31, 1999, he saw an employee in an aerial lift, 30 to
35 feet in the air, without fall protection. The CO vid eoed the sc ene and m et with M r. Smith
and Mr. Cellucci; he then had the employee brought down for an interview, and he also
spoke to the employee’s foreman, who worked for B&K. After holding an opening
conference, the CO resumed his inspection. He saw two employees in an aerial lift in a
different area of the project; the employees were about 20 feet in th e air and had on harnesses
but no lanyards. The CO videoed them and the basket, which by then was on the ground, and
he learned the emp loyees worked for R RR. (Tr. 76-88).
The forego ing esta blishes t he viola tive insta nces se t out in th e citation , and EBS
presented nothing to rebut the Secretary’s evidence. This citation item is therefore affirmed.
The Secretary has c lassified this citation as a repeat vio lation. A vio lation is prope rly
characterized as repeated if, at the time of the alleged v iolation, there was a Commission
final order against the same employer for a substantially similar v iolation . Armstrong Steel
Erectors, Inc. 18 BNA OSHA 1630 (No . 97-0250 , 1999); Potlatch Corp., 7 BNA OSHC
1061, 1063 (No. 16 183, 1999). The Secretary has th e burden of provin g substantia l similarity
between the prior violation and the present alleged violatio n. Chesapeake Operating Co., 10
BNA OSHC 1790, 1796 (No. 78-1353, 1982). The fact that the violations occurred at
different work location s is not im portan t to deter mining a repea ted viola tion. Potlatch Corp.
7 BNA OSH C at 1064. The record shows that EBS was cited on February 27, 1998, for a
violation of 29 C.F.R. 1926.453(b)(2)(v), the same standard cited here. On March 17, 1998,
the parties reached an informal settlement, which became a final order of the Commission.
See GX-9. In view of the evidence, the violation was prop erly characterize d as repeate d. This
citation item is affirmed as repeated.
The Sec retar y has proposed a penalty of $3,000 for this item. CO DeJesse testified
about the factors he considered in recommending this penalty. Specifically, he assessed the
severity of the violations as high and the probability as lesser, since the employees in the
cited instances were standing on the platforms of the lifts. He gave a reduction for size but
not for good faith or history, for the same reasons set out supra. (Tr. 99). Based on the C O’s
testim ony, I conclude the propo sed pena lty is appropria te. A pena lty of $3,000 is a ccordingly
assessed for this citation item.
 ORDER
Based u pon the fo regoing d ecision, it is OR DER ED that:
1. Citation 1, Items 1a and 1b, are affirmed as serious violations, and a total penalty
of $3,000.00 is assessed for these items.
2. Citation 2, Item 1, is affirmed as a repeated violation, and a total penalty of
$3,000.00 is assessed for this item.

                                                     /s/
                                              G. MARVIN BOBER
                                              ADMINISTRATIVE LAW JUDGE

Dated: 9 Feb 2001
Washington, D.C.
 ATTACHMENT 1 - POST-TRIAL EXHIBITS

GX-11 Articles of Incorporation of Bock Construction, Inc.
GX-12 Articles of Incorporation of Ernest Bock & Sons, Inc.
RX-8 Articles of Incorporation of Bock Construction, Inc.
RX-9 Board of Directors meeting minutes for Bock Construction, Inc.
RX-10 Share Certificates of Bock Construction issued to Thomas Bock and Marianne Owens
RX-11 Agreement for Sale of Stock between Thomas Bock and Marianne Owens
RX-12 Promissory Note signed by Marianne Owens
RX-13 Resignation of Christine Marlin as officer and director of Bock Construction, Inc.
RX-14 Lease Agreement signed by Thomas Bock and Bock Construction, Inc.
RX-15 IRS Forms 1120S for Bock Construction, Inc., for 1998 and 1999