AJP Construction, Inc.

Plain-English summary

AJP Construction performed concrete superstructure work at a residential construction site in Hoboken, New Jersey. OSHA conducted one inspection after a referral and another after falling form material struck an outrigger scaffold, causing it to collapse and killing an employee. The judge affirmed serious violations involving fall protection, controlled access, employee training, scaffold construction and design, falling-object protection, and scaffold training. She also affirmed a willful violation because AJP knew employees repeatedly worked without fall protection, received warnings from the general contractor, and did not take effective corrective measures. Several other citation items or instances were vacated for lack of proof. The judge assessed penalties totaling $87,400.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.451(g)(3), 1926.501(b)(1), 1926.501(b)(4)(i), 1926.502(g)(1), 1926.503(a)(1), 1926.451(f)(7), 1926.451(f)(9), 1926.451(h)(1), 1926.452(i)(8), 1926.454(a), and 1926.451(g)(1)(vii)
• Outcome: Multiple serious and one willful violation affirmed, several items or instances vacated, and $87,400 in penalties assessed.
• Key point: Repeated warnings and an inadequate fall-protection program supported a willful finding when employees continued working without required protection.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NOS. 01-0568 & 01-1474
AJP CONSTRUCTION, INC.,
Respondent.

Appearances: Esther D. Curtwright, Esq. Joseph P. Paranac, Jr., Esq.
U.S. Department of Labor St. John & Wayne
Office of the Solicitor Newark, New Jersey
New York, New York For Respondent.
For Complainant.

BEFORE: COVETTE ROONEY
Administrative Law Judge

                                DECISION AND ORDER

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

Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 651 et seq. (“the Act”). Respondent, AJP Construction, Inc. (“AJP”), at all times
relevant to this case maintained a construction work site in Hoboken, New Jersey. AJP admits
that it is an employer engaged in a business affecting interstate commerce within the meaning of
section 3(5) of the Act and that it is subject to the requirements of the Act.
On September 28, 2000, the Occupational Safety and Health Administration (“OSHA”)
began its first inspection of the work site, which resulted in the issuance of one citation alleging
 2

serious violations with a proposed total penalty of $13,600.00.1 On January 31, 2001, OSHA
began its second inspection of the work site following a fatal accident. As a result of the second
inspection, OSHA issued to AJP two citations alleging serious and willful violations with a
proposed total penalty of $92,000.00.2 AJP filed timely notices of contest, and, upon the
Secretary’s motion, the two cases were consolidated on August 24, 2001. A hearing was held
June 24-28, 2002, in New York, New York, and the parties have submitted post-hearing briefs
and reply briefs.
Background
In January 2000, AJD Construction, the general contractor, started construction on a 13-
story residential building at the South Waterfront work site in Hoboken, New Jersey. AJD
Construction subcontracted the concrete super structure work to Major Construction (“Major”).
Major in turn subcontracted the work to AJP. Major and AJP share the same business address,
telephone and fax numbers and some of the same contact personnel, including Michael J. Polites,
Dong Lee, Anthony Buttino, and Dominic Scerbo. (Tr. 9, 12, 47, 318-19; C-6-7.)
On September 28, 2000, OSHA Compliance Officer (“CO”) Patrick Nies arrived at the
site pursuant to a referral. After speaking with the general contractor, CO Nies attempted to begin
his inspection, but AJP would not allow the inspection until AJP’s safety representative could be
present on the site. CO Nies returned to the site with CO Gary Jensen on October 2, 2000, to
conduct his inspection, and the COs inspected the work site for several days in October 2000.
(Tr. 45-49.)
On January 30, 2001, AJP employee James Sherengo was on the seventh floor work
platform attempting to unload a mud buggy. The platform was approximately 8 feet by 8 feet,
and the mud buggy was about 4 feet by 7 feet. When fellow AJP employees Daniel Giordano and

   1
    As issued, the citation had five items and proposed a total penalty of $26,000.00. Before the

hearing, the Secretary withdrew Items 3 and 4a, leaving for resolution Items 1, 2, 4b and 5, with a
proposed total penalty of $13,600.00.
2
As issued, Serious Citation 1 had six items and Willful Citation 2 had one item, and the
proposed total penalty was $96,000.00. Before the hearing, the Secretary withdrew Items 2 and 6a
of Citation 1, leaving for resolution Items 1, 3, 4, 5 and 6b of Citation 1, and Item 1 of Citation 2,
with a proposed total penalty of $92,000.00.
 3

James Johnson saw Mr. Sherengo attempting to “land” the mud buggy by himself, they went out
onto the platform to help him. While the employees were thus engaged, cantilevered form
material from the twelfth floor fell onto the seventh floor platform, killing Mr. Sherengo. As a
result of the accident, CO Nies returned to the site to conduct another inspection. (Tr. 203-08,
216-21, 240-46, 459, 561-62.)
The Secretary’s Burden
To establish a violation of a standard, the Secretary must show (a) the applicability of the
cited standard, (b) the employer’s noncompliance with the standard’s terms, (c) employee access
to the violative conditions, and (d) the employer’s actual or constructive knowledge of the
violation (i.e., the employer either knew, or with the exercise of reasonable diligence could have
known, of the violative conditions). Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-
1747, 1994).
Docket No. 01-0568 - Citation 1, Item 1
This item alleges a serious violation of 29 C.F.R. § 1926.451(g)(3), which provides, in
pertinent part, that “[i]n addition to meeting the requirements of Sec. 1926.502(d), personal fall
arrest systems used on scaffolds shall be attached by lanyard to a vertical lifeline, horizontal
lifeline, or scaffold structural member.”3 Section 1926.502(d)(16)(iii) provides, in turn, that
“[p]ersonal fall arrest systems, when stopping a fall, shall be rigged such that an employee can
neither free fall more than 6 feet (1.8 m), nor contact any lower level.” I find that the cited
standard applies and that AJP violated the terms of the standard. CO Nies and CO Jensen
testified that they saw two employees working immediately adjacent to the outside edge while on
baker’s rack type scaffolds, which are mobile scaffolds. (Tr. 25-26, 58, 66-73, 115-17.) The
employees were wearing harnesses and lanyards, but the lanyards were too long, so that if the
employees had fallen from the scaffolds they could have fallen from the outside edge and fallen
more than 10 feet. Id. To verify this, CO Nies unhooked a lanyard from one of the employees and
tossed it towards the edge to demonstrate that the lanyard would go beyond the edge and

   3
    In her original complaint, the Secretary cited AJP for a violation of 29 C.F.R. §

1926.451(g)(1). The Secretary filed a motion to amend her complaint to allege a serious violation
of 29 C.F.R. § 1926.451(g)(3), which I granted on August 15, 2001.
 4

continue falling without actually pulling on a coil of cable that was on the floor at the base of the
column. (Tr. 67-68.) This evidence supports a finding that AJP did not comply with the standard.
In essence, AJP asserts that CO Nies’ demonstration did not accurately portray the
situation of the employees and that if they had fallen off the scaffolds they would have fallen to
the concrete floor below.4 (Tr. 411-13.) I reject this assertion. While the scaffolds may only have
been a few feet above the concrete floor they were working on, the employees, if they had fallen
from the scaffolds, could just as easily have fallen from the edge of the floor due to their
proximity to the edge. (Tr. 58, 66, 71.) This conclusion is supported by the admission of Anthony
Buttino, AJP’s carpentry foreman, that the scaffolds were within 2 feet of the building’s edge.
(Tr. 413.) Moreover, as the scaffolds were mobile and near the edge of the floor, there was an
increased risk that the scaffolds themselves could have fallen off the edge. (Tr. 70-71, 75, 100-
01.) I found Mr. Buttino’s testimony that the angle at which the employees were working would
have prevented a fall to be not credible, and his failure to state his belief to the CO during the
inspection that the employees were not exposed further undermines his credibility. (Tr. 477-79.)
Employees were thus exposed to the cited hazard.
I also find that AJP had knowledge of the hazardous condition. Both COs testified that
Mr. Buttino told them he set up the operation and that he therefore knew the conditions the
employees were working under. (Tr. 26-27, 71.) When the Secretary seeks to establish her
burden of proving knowledge by demonstrating that the supervisor violated the standard, the
Secretary must show that the supervisor’s actions were reasonably foreseeable because of
inadequacies in the employer’s safety program, and the employer, therefore, did not exercise
reasonable care to prevent or detect the condition. Pennsylvania Power & Light Co., 737 F.2d
350, 357-58 (3d Cir. 1984).
In cases where the Secretary proves that a company supervisor had knowledge of,
or participated in, conduct violating the Act, we do not quarrel with the logic of
requiring the company to come forward with some evidence that it has undertaken

   4
     Although AJP questions his credibility, I find the CO’s testimony to be more credible than

that of AJP’s witnesses. The CO had the opportunity and capacity to observe the cited condition, and
his observations and conclusions were consistent with the other evidence of record. Further, I
observed the CO’s demeanor as he testified, and I found him a credible and convincing witness.
 5

   reasonable safety precautions....We do hold, however, that the Secretary may not
   shift to the employer the ultimate risk of non-persuasion in a case where the
   inference of employer knowledge is raised only by proof of a supervisor’s
   misconduct. The participation of the company’s own supervisory personnel may
   be evidence that an employer could have foreseen and prevented a violation
   through the exercise of reasonable diligence, but it will not, standing alone, end
   the inquiry into foreseeability.

Id. at 357-58. The Third Circuit further noted that “an employer will be held ‘excused from
responsibility for acts of its supervisory employees’ upon a showing ‘that the acts were contrary
to a consistently enforced company policy, that the supervisors were adequately trained in safety
matters, and that reasonable steps were taken to discover safety violations committed by its
supervisors.’” Id. at 358.
In the subject case, AJP failed to present any evidence that it had undertaken reasonable
safety precautions. First, I question the adequacy of the company policy itself. The only evidence
of a safety plan is the handwritten “Fall Protection Plan for A.J.P. Construction,” prepared by
Dong Lee in September 2000. (C-4.) This document in essence states that conventional fall
protection cannot always be used and that in such cases controlled access zones will be used for
employees who are selected for their “experience, knowledge, and/or training.” Id. I find that this
document hardly qualifies as a fall protection plan and that it falls far short of what a reasonably
diligent employer would provide to train employees in company safety policy.5 In addition, the
evidence of record clearly demonstrates that supervisors were not adequately trained in safety
matters. Louis DeMarco, the laborer foreman, testified without equivocation that he received no
safety training and had not received a copy of the fall protection plan from AJP.6 (Tr. 358-59.)
Dominic Scerbo, the shop steward for laborers, also testified that he received no safety training
from AJP. (Tr. 459-60.) Finally, there is no evidence to show what steps AJP took to discover

   5
   Besides the fact that the plan was clearly inadequate, I also note that it was not drafted and

implemented until September 2000, several months after AJP started work on this project. (C-4.)
6
In fact, no witness testified to receiving a copy of this plan. Further, Mr. Buttino and Mr.
Scerbo offered no testimony about their own training in fall protection, and Mr. Scerbo admitted that
he had had no training on scaffolds. (Tr. 460.)
 6

safety violations or what steps it took when it discovered violations.7 Based on the foregoing, I
conclude that AJP had knowledge of the violative condition and that it could have foreseen and
prevented the condition through the exercise of reasonable diligence. This item is accordingly
affirmed.
This violation was properly classified as serious because there was a substantial
probability that the cited hazard could have resulted in death or serious physical harm.8 As to an
appropriate penalty, section 17(j) of the Act requires the Commission to give due consideration
to four factors: (1) the size of the employer’s business, (2) the gravity of the violation, (3) the
employer’s good faith, and (4) the employer’s prior history of OSHA violations. See also J. A.
Jones Constr. Co., 15 BNA OSHC 2201, 2213-14 (No. 87-2059, 1993). Based on the conditions
in which employees were working, I agree with the Secretary’s determination that the condition
had high severity and greater probability. (Tr. 75.) I also agree that AJP deserves no adjustment
for prior history or good faith. (Tr. 73-76.) While AJP itself may not have been cited for earlier
OSHA violations, several companies owned and operated by Michael J. Polites, AJP’s principal,
have been cited for many OSHA violations, including fall protection. (C-6.) There is undeniable
similarity between AJP and these other companies–Polites Construction, MJP Construction and
Major–all of which have essentially the same officers, management, business purpose and type of
operation.9 (Tr. 311-12; C-6, C-10.) In reviewing the extensive history of OSHA violations of

   7
    While there is no evidence that AJP took any reasonable steps to discover safety violations,

the evidence shows that Keith Healy, the general contractor’s assistant superintendent, personally
observed safety violations and took steps to inform AJP of them, including speaking to Mr. Polites
and writing memos to the company. (Tr. 336-52.) Mr. Healy specifically testified that he saw various
employees, including supervisors, working without fall protection. (Tr. 340-44, 352.) In addition,
a review of C-3 shows that most of the safety memos Mr. Healy wrote to AJP had to do with fall
hazards. AJP did not rebut this evidence, and it offered nothing to demonstrate what measures it took
to discover safety violations or what actions it took after learning of such violations.
8
While the citation alleges that a fall from the outside edge to the ground below was about
40 feet, CO Nies testified that the two employees on the scaffold could have fallen more than 10 feet.
(Tr. 58.) Despite this discrepancy, the violation is properly classified as serious because a fall from
either distance could cause serious injury or death.
9
It is noteworthy that the general contractor, AJD Construction, did not know that AJP was
working at the site. (Tr. 318-20.) According to AJD officials, AJD subcontracted the concrete super
 7

these companies, I conclude that the purposes of the Act would be best served by if the previous
OSHA violations of these companies are considered in assessing the penalty for this item.
Likewise, no credit will be given for good faith, in light of the company’s continued refusal to
take steps to protect its employees from fall hazards.10 For these reasons, the proposed penalty of
$4,000.00 for this item is assessed.
Docket No. 01-0568 - Citation 1, Item 2
Item 2 alleges a serious violation of 29 C.F.R. § 1926.501(b)(1), which provides that
“each employee on a walking/working surface (horizontal and vertical surface) with an
unprotected side or edge which is 6 feet (1.8 m) or more above a lower level shall be protected
from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems.”
In instance 2a, the Secretary alleges that on October 3, 2000, AJP employee Shawn Flynn was
walking near an unprotected edge on the fourth floor and was exposed to a fall of 9 feet, 9 inches.
AJP argues that this standard is not applicable because Mr. Flynn was part of the leading edge
crew. (R. Brief at pp. 11-12.) CO Jensen testified Mr. Flynn was a rigger and not part of the
leading edge crew. (Tr. 13-14, 30.) Further, Mr. Buttino, the carpentry foreman, admitted that he
did not know if Mr. Flynn was doing leading edge work at the time of the alleged violation. (Tr.
419-20.) I find that the cited standard applies.
I also find that AJP did not comply with the terms of the standard, that employees were
exposed to the hazard, and that AJP had knowledge of the violation. CO Jensen testified that he
observed Mr. Flynn walk within 2 inches of an unprotected edge without fall protection. (Tr. 13-
14, 29-30.) In light of the CO’s credible testimony and AJP’s failure to present any rebuttal
evidence, Mr. Flynn was exposed to the cited hazard and AJP violated the terms of the standard.
As to knowledge, CO Jensen stated that two AJP supervisors were present at the time of the

structure work to Major, and AJD was not even aware that Major had subcontracted the work to AJP
until the OSHA investigation began. Id. Prior to this time, AJD had directed all correspondence and
contact about the project to Michael Polites and Major. (Tr. 321, 333, 338, 340-41, 348-49.)
10
The Secretary did accord a 20 percent credit for size, which is appropriate in light of the
size of AJP’s business. Moreover, I conclude that the adjustments made to the penalty for this item
are appropriate for all of the affirmed items in this case, including those in Docket No. 01-1474.
 8

violation. (Tr. 13-14.) As found supra, AJP clearly had knowledge of the violative condition and
could have foreseen and prevented the condition with the exercise of reasonable diligence. This
violation was properly classified as serious, since either serious injury or death was possible if an
accident had occurred. Item 2a is thus is affirmed as a serious violation.
In instance 2b, the Secretary alleges that on October 5, 2000, two employees working on
the third floor with improperly anchored personal fall protection equipment were exposed to falls
of 40 feet. After a careful review of the testimony of both COs, I conclude that neither CO
specifically addressed this instance at the hearing. Without other evidence to support the alleged
violation, I find the Secretary has not met her burden of proving the cited instance. Item 2b is
therefore vacated.
Having affirmed Item 2a and vacated Item 2b, I note that the Secretary has proposed a
total penalty of $2,800.00 for these two instances. Based on this fact, and in accordance with the
penalty discussion set out in Item 1 above, I conclude that a penalty of $1,400.00 is appropriate
for Item 2a. A penalty of $1,400.00 is consequently assessed for this item.
Docket No. 01-0568 - Citation 1, Item 4b
Item 4b alleges a serious violation of 29 C.F.R. § 1926.502(g)(1), which states that
“[w]hen used to control access to areas where leading edge and other operations are taking place
the controlled access zone shall be defined by a control line or by any other means that restricts
access.” I find that the standard applies and that AJP violated the terms of the standard.
According to AJP’s fall protection plan, it was the company’s intention to use controlled access
zones (“CAZs”) to restrict access to leading edge areas. (C-4.) CO Nies testified that on October
24, 2000, he observed that AJP had not used a control line or other means to restrict access to
areas where leading edge work was in progress. (Tr. 81-82, 137-46.) In particular, the CO saw
four ironworkers performing non-leading edge work inside the area that should have been
designated as a CAZ. (Tr. 83, 120-21, 136-37.) While Mr. Buttino disputed the CO’s
observations, he did not testify that he actually saw the alleged violation and relied instead upon
his review of the CO’s videotape. (Tr. 405-10.) I find CO Nies’ first-hand observations more
reliable than Mr. Buttino’s analysis of a videotape, and I have already found CO Nies to be more
credible than the witnesses offered by AJP. AJP failed to present anything to rebut the
 9

Secretary’s evidence, and I find that the standard was violated.
I further find that employees were exposed to the hazardous condition. Under the multi-
employer work site doctrine, the Secretary need not show that AJP’s employees were exposed;
rather, where an employer controlled an area and was responsible for its maintenance, the
Secretary need only show the violation occurred and that the area of the violation was accessible
to employees of the cited employer or those of other employers engaged in a common
undertaking. Brennan v. OSHRC, 513 F.2d 1032, 1038 (2d Cir. 1975); Anning-Johnson, 4 BNA
OSHC 1193, 1199 (No. 3694, 1976). It is undisputed that AJP’s leading edge crew was in control
of the area and responsible for its maintenance, as evidenced by the presence of leading edge
foreman Phil Miller. (Tr. 83-84, 137-41.) The four ironworkers, who were not part of the leading
edge crew, had access to the area, as observed by CO Nies. Id. This evidence is sufficient to meet
the Secretary’s burden in regard to exposure.
As to knowledge, Mr. Miller was present at the location where the violation took place.
Furthermore, as noted above, the record is devoid of any evidence that these acts were contrary to
a consistently enforced company policy, that supervisors were adequately trained in safety
matters, and that reasonable steps were taken to discover safety violations committed by
supervisors. I conclude, therefore, that AJP had knowledge of the violative condition and that it
could have foreseen and prevented the condition with the exercise of reasonable diligence. I also
conclude that this violation was properly classified as serious, since serious injuries or death were
possible if an accident had occurred. Item 4b is consequently affirmed as a serious violation.
After giving due consideration to the gravity of the violation, and based on the penalty discussion
set out above, I find the proposed penalty of $2,800.00 to be appropriate. That penalty is
accordingly assessed.
Docket No. 01-0568 - Citation 1, Item 5
Item 5 alleges a serious violation of 29 C.F.R. § 1926.503(a)(1), which provides that
“[t]he employer shall provide a training program for each employee who might be exposed to fall
hazards. The program shall enable each employee to recognize the hazards of falling and shall
train each employee in the procedures to be followed in order to minimize these hazards.” I find
that the cited standard applies and that AJP violated the terms of the standard. Mr. Polites told
 10

CO Nies at least three times that he intended to bring someone in to conduct training on fall
protection. (Tr. 100, 146-49.) In addition, COs Jensen and Nies testified employees told them
that they had not received training for fall hazards. (Tr. 19-24, 34-36.) Specifically, three
carpenters, George Dean, Bird Hagopin and Joe Fazio, told the COs that they had not received
fall protection training. (Tr. 20-21, 90-92.) AJP laborer foreman DeMarco also testified that he
had not had any training in fall hazards and fall protection and that he had not seen anyone
providing such training; he further testified that he had not seen nor received a copy of the fall
protection plan. (Tr. 358-59.) Foreman Buttino and Mr. Scerbo, the laborer shop steward,
disputed the foregoing and described 10-to-15-minute toolbox safety meetings held weekly or
biweekly. (Tr. 390-96, 416-18, 427-31, 456-60; R-3.) Mr. Scerbo, however, was never given any
safety training by AJP. (Tr. 459-60.) Moreover, in reviewing the descriptions of these meetings, I
find that they do not meet the requirements of the standard. Without more, weekly or biweekly
meetings of 10 to 15 minutes are insufficient to train employees to recognize the fall hazards to
which they will be exposed and the procedures to follow to minimize such hazards. This
conclusion is supported by the other affirmed violations in this case and by employee responses
to the COs’ questions about fall protection, as set out below.
AJP provided harnesses and lanyards to employees but failed to train its employees in the
use of the equipment. When the COs asked about wearing fall protection equipment, the
employees’ answers indicated a lack of adequate training. (Tr. 19-21, 90-92; 215.) Two
employees, Mr. Hagopin and Mr. Fazio, told CO Nies that no one had told them how to properly
use their harnesses, lanyards and horizontal cable lifeline. (Tr. 91-92.) Foreman DeMarco himself
did not have knowledge about the different lifelines, despite Mr. Polites’ statement that it was the
foreman’s duty to train the employees. (Tr. 369.) Based on the evidence, it would appear that the
extent of AJP’s instructions to employees about this equipment was to wrap it around or tie it off
to an interior column. (Tr. 91-92, 367-68, 416-18, 511.) AJP’s instructions were clearly
inadequate, and I find that the company failed to meet the terms of the standard.
I further find that employees were exposed to the cited condition and that AJP had
knowledge of the condition. As noted above, Foreman DeMarco stated that there was no fall
hazard or fall protection training. (Tr. 358-59.) In addition, Mr. Polites’ admission that he
 11

intended to train all employees in fall hazards and fall protection implies that such training was
nonexistent or inadequate. (Tr. 100, 146-49.) Even if AJP did not have actual knowledge of the
violation, it should have discovered the violation with the exercise of reasonable diligence. The
Secretary has met her burden of showing the alleged violation, and this item is affirmed.
This violation has been properly classified as serious, in that serious injuries or death
were possible consequences. After giving due consideration to the high gravity of the violation,
and in accordance with the penalty discussion supra, I conclude that the Secretary’s proposed
penalty of $4,000.00 is appropriate. A penalty of $4,000.00 is therefore assessed.
Docket No. 01-1474 - Citation 1, Item 1
Item 1 alleges a serious violation of 29 C.F.R. § 1926.451(f)(7), which states that
“[s]caffolds shall be erected, moved, dismantled, or altered only under the supervision and
direction of a competent person qualified in scaffold erection, moving, dismantling or alteration.
Such activities shall be performed only by experienced and trained employees selected for such
work by the competent person.” As a preliminary matter, I note that this citation item and four of
the five that follow refer to hazards related to work on an “outrigger scaffold.” AJP argues that
the cited work platform does not meet the standard’s definition of an “outrigger scaffold,”
implying that, as a consequence, the cited standards are not applicable.11
29 C.F.R. § 1926.450(b) defines an outrigger scaffold as “a supported scaffold consisting
of a platform resting on outrigger beams (thrustouts) projecting beyond the wall or face of the
building or structure, the inboard ends of which are secured inside the building or structure.” The
standard further defines an outrigger beam (thrustout) as “the structural member of a suspension

    11
      First, this item and the others that refer to an outrigger scaffold cite to the general

scaffolding requirements set out in 29 C.F.R. § 1926.451 and not to the requirements that specifically
relate to outrigger scaffolds set out in 29 C.F.R. § 1926.452(i). Second, if AJP’s argument is that it
somehow did not have fair notice of what it was being cited for because OSHA referred to the work
platform as an outrigger scaffold, that argument is rejected, particularly since the evidence of record
supports a finding that the cited work platform was in fact an outrigger scaffold. Finally, I also reject
AJP’s apparent argument that because the work platform did not meet§ 1926.452(i), it was not an
outrigger scaffold. (R. Brief at pp. 22-23; Tr. 290-93.) That the platform did not meet § 1926.452(i)
is evidence that it was not in compliance with OSHA standards, not that it did not fall within the
definition of an outrigger scaffold.
 12

scaffold or outrigger scaffold by extending the scaffold point of attachment to a point out and
away from the structure or building.” Two witnesses described the platform as being 16 feet long
and 8 feet wide. (Tr. 262-66, 290, 297-04, 385-87; C-1.) According to these witnesses, seven to
nine pieces of timber were placed such that 8 feet projected out beyond the face of the structure
and 8 feet were secured inside the building. Id. 5-inch plywood was nailed on top of the timbers,
and the platform was secured inside the building with another piece of timber and screw jacks
between the platform and concrete ceiling. Id. Based on this description, I find that the subject
platform was an outrigger scaffold as contemplated by the standard, and AJP’s apparent
argument that the cited standards did not apply is rejected.
Having found that the cited standard applies, I further find that AJP failed to comply with
the terms of 29 C.F.R. § 1926.451(f)(7). CO Nies testified that several AJP supervisors and
officers told him that Louis DeMarco, the laborer foreman, supervised the scaffold’s
construction. (Tr. 198-99, 209, 276, 279-80, 360-61.) Mr. DeMarco testified that Michael Polites
told him to use “four by sixes, 16 footers and plywood and to secure it ... with screw jacks to the
ceiling.” (Tr. 199-02, 360-61, 370.) Mr. DeMarco was not shown a diagram or design of the
scaffold, nor was he given specific instructions as to how to build the scaffold. (Tr. 360-61, 370.)
Further, he could not answer the CO’s basic questions about scaffold construction. (Tr. 200,
215.) This evidence plainly demonstrates that Mr. DeMarco was not a “competent person
qualified in scaffold erection, moving, dismantling or alteration.” AJP attempts to assert that the
carpenters were in charge of these matters, asserting, specifically, that Steve Pitoniac, the stair
foreman, was in charge of supervising the building of the scaffold.12 (R. Brief at pp. 24-27; Tr.
274-75, 384-85, 389-90.) I find the testimony of CO Nies and Mr. DeMarco more credible than
Mr. Buttino’s statement that Mr. Pitoniac was responsible for supervising the building of the
scaffold.13 Based on the foregoing evidence, the Secretary has established her burden of proving

   12
     This argument is contrary to a statement of Dong Lee, a management official of AJP, that

Anthony Buttino was in charge of constructing the scaffold. (C-7.) Mr. Buttino, however, testified
that he had limited scaffolding experience. (Tr. 476-77.)
13
As noted in footnote 4, I found CO Nies a credible witness. I also find Mr. DeMarco’s
testimony credible, based on his opportunity and capacity to observe, his lack of bias, the consistency
 13

that AJP violated the terms of the standard.
The Secretary has also shown that AJP’s employees were exposed to the cited condition
and that AJP had the requisite knowledge of condition. (Tr. 507-08, 533-34.) It is undisputed that
at least three laborers, Daniel Giordano, James Sherengo and James Johnson, worked on the
scaffold regularly and were exposed to the hazard. Moreover, these scaffolds were built in plain
view and with the knowledge of AJP’s supervisors, and, as discussed supra, AJP clearly could
have foreseen and prevented the violation with the exercise of reasonable diligence. This citation
item is accordingly affirmed.
The Secretary has properly classified this item as serious, since serious injuries or death
were possible had the violation resulted in an accident. As to penalty assessment, I have given
due consideration to the gravity of the violation, and, in light of the penalty discussion set out
above, I find the proposed penalty of $2,000.00 appropriate. The proposed penalty is therefore
assessed.
Docket No. 01-1474 - Citation 1, Item 3
Item 3 alleges a serious violation of 29 C.F.R. § 1926.451(h)(1), which provides as
follows:
[i]n addition to wearing hardhats each employee on a scaffold shall be provided
with additional protection from falling hand tools, debris, and other small objects
through the installation of toeboards, screens, or guardrail systems, or through the
erection of debris nets, catch platforms, or canopy structures that contain or
deflect the falling objects. When the falling objects are too large, heavy or
massive to be contained or deflected by any of the above-listed measures, the
employer shall place such potential falling objects away from the edge of the
surface from which they could fall and shall secure those materials as necessary to
prevent their falling.
I find the cited standard applies and that AJP violated the terms of the standard. The evidence
clearly shows that AJP stacked large wood form materials in a cantilevered manner over the edge
of the building. (Tr. 203-08, 240-42, 245-46, 459, 561-62; C-1.) The record further shows that,
on the day of the accident, an AJP laborer working on the twelfth floor saw a crane rigging
contact a stack of the wood form cantilevered materials on that floor. The materials fell from the

of his testimony with other evidence and his demeanor while testifying.
 14

twelfth floor onto the seventh floor outrigger scaffold where AJP employee Sherengo was
working. The scaffold then collapsed and fell, landing on the fourth floor, and Mr. Sherengo died
as a result. (Tr. 206-07, 247-48.) It appears from the record that the cantilevered materials were
too large to be contained or deflected as set out in the standard, and AJP should therefore have
placed them away from the edge of the building and secured them to prevent their falling.
However, AJP failed to take any of the measures outlined in the standard, and Foreman DeMarco
told the CO that there were no procedures in place for stacking materials. (Tr. 204-08.) Based on
the record, AJP violated the terms of the standard.
The record also establishes that employees were exposed to the hazardous condition and
that AJP had knowledge of the condition. It is undisputed that Mssrs. Sherengo and Giordano
were exposed to falling objects, and two supervisors, Mr. Polites and Foreman DeMarco, said it
was normal for AJP to stage materials in this manner. (Tr. 207-08, 459.) Even if AJP did not
have actual knowledge of this condition, it could have foreseen and prevented the condition
through the exercise of reasonable diligence. I agree with the Secretary’s serious classification of
the violation because serious injuries or death were possible as demonstrated by the accident.
This item is consequently affirmed as a serious violation. After giving due consideration to the
high gravity of the violation, and based on the penalty discussion set out supra, I conclude that a
penalty of $5,600.00 is appropriate for this item. A penalty of $5,600.00 is accordingly
assessed.14
Docket No. 01-1474 - Citation 1, Item 4
Item 4 alleges a serious violation of 29 C.F.R. § 1926.452(i)(8), which requires
“[s]caffolds and scaffold components [to] be designed by a registered professional engineer and
[to] be constructed and loaded in accordance with such design.” The cited standard applies, and I
find that AJP violated the terms of the standard. The record clearly shows that the outrigger
scaffold that AJP used was not “designed by a registered professional engineer and constructed

   14
      I have noted the Secretary’s assertion that no penalty adjustments are appropriate, even for

size, for the items relating directly to the fatality. (C. Brief at p. 59.) However, the Commission is
the final arbiter of penalties in contested cases and is not bound by the Secretary’s proposed
penalties. As set out supra, in Docket No. 01-0568, I conclude that a 20 percent reduction for size
is appropriate for all of the penalties assessed in this case.
 15

and loaded in accordance with such design.” Mr. Polites admitted to OSHA that he did not know
who designed the scaffold and that it was “something that [they] were using for years and years.”
(C-6.) Dong Lee, the only engineer employed by AJP, stated that no one designed the scaffold.
(C-7.) As noted previously, Foreman DeMarco was responsible for constructing the outrigger
scaffold and received little instruction from anyone, other than Mr. Polites and Mr. Lee, in that
regard. (Tr. 199-02, 350-61, 370.) It is reasonable to infer from this that Mr. DeMarco did not
construct the scaffold according to a design prepared by a registered professional engineer. AJP
thus violated the cited standard.
I further find that employees were exposed to the cited condition and that AJP had
knowledge of the condition. It is undisputed that employees were exposed when working on the
scaffold, and the record supports the Secretary’s assertion that AJP had actual knowledge of the
violation. (Tr. 507-08, 533-54.) None of AJP’s witnesses and management officials denied
knowing that the scaffold was not designed by a registered professional engineer and constructed
according to such a design, and it was AJP’s management officials and supervisors who were in
the best position to know whether the scaffold was in compliance with OSHA standards. I find,
therefore, that the Secretary has satisfied her burden of proving the alleged violation, and this
item is affirmed. I agree with the Secretary’s classification of the violation as serious because
serious injury or death were possible consequences of an accident. In regard to penalty, I have
given due consideration to the gravity of the violation, and, in accordance with the penalty
discussion set out supra, I conclude that the proposed penalty of $2,000.00 is appropriate. The
proposed penalty of $2,000.00 is accordingly assessed.
Docket No. 01-1474 - Citation 1, Item 5
Item 5 alleges a serious violation of 29 C.F.R. § 1926.454(a), for failing to provide
training by a qualified person to employees working on scaffolds.15 The cited standard applies,

   15
     The standard provides: “The employer shall have each employee who performs work while

on a scaffold trained by a person qualified in the subject matter to recognize the hazards associated
with the type of scaffold being used and to understand the procedures to control or minimize those
hazards. The training shall include the following areas, as applicable: (1) The nature of any electrical
hazards, fall hazards and falling object hazards in the work area; (2) The correct procedures for
dealing with electrical hazards and for erecting, maintaining, and disassembling the fall protection
 16

and I find that AJP violated the terms of the standard. In addition to the evidence set out above
for Citation 1, Item 5, in Docket No.01-0568, the record contains further evidence that AJP did
not provide specific training for employees working on the outrigger scaffold. CO Nies and
Foreman DeMarco both testified that Mr. DeMarco did not have any formal or informal training
for scaffolds or outrigger scaffolds. (Tr. 199-200, 212, 215, 358-62, 460.) Foreman DeMarco also
lacked basic knowledge about working on the scaffold, including fall protection and maximum
load capacity for the scaffold. Id. Despite Foreman DeMarco’s lack of training and knowledge in
this regard, Mr. Polites told CO Nies that it was the foreman’s responsibility to provide training
and enforce fall protection. (Tr. 215.) As a foreman and the immediate supervisor of the three
employees who were working on the scaffold, Mr. DeMarco was himself not trained to recognize
the hazards associated with the outrigger scaffold and to understand the procedures to control or
minimize those hazards; therefore, he could not be the “qualified person” under the standard to
train laborers on the hazards associated with the scaffold. Further, CO Nies testified that the
employees who were working on the scaffold could not answer his questions about correct
procedures and weight limitations, and one of the laborers supervised by Foreman DeMarco
testified that he never received specific training in working on the outrigger scaffold. (Tr. 211,
511-12.) In view of the record, AJP was in violation of the standard.
The Secretary has also satisfied the other elements of her burden of proof. It is undisputed
that at least three employees worked out on the outrigger scaffold and were thus exposed to the
cited condition. (Tr. 507-08, 533-34.) As to knowledge, Foreman DeMarco admitted that
employees, himself included, had not been trained on outrigger scaffolds. (Tr. 361-63.) However,
even if AJP did not have actual knowledge of the violation, it should have discovered the
condition with the exercise of reasonable diligence since employee training is within its control.
This item is affirmed, and I agree with the Secretary’s serious classification of the violation.
After giving due consideration to the high gravity of the violation, and in light of the penalty
discussion set out above, I conclude that the proposed penalty of $4,000.00 is appropriate. The

systems and falling object protection systems being used; (3) The proper use of the scaffold, and the
proper handling of materials on the scaffold; (4) The maximum intended load and the load-carrying
capacities of the scaffolds used; and (5) Any other pertinent requirements of this subpart.”
 17

proposed penalty is accordingly assessed.
Docket No. 01-1474 - Citation 1, Item 6b
Item 6b alleges a serious violation of 29 C.F.R. § 1926.501(b)(1), which provides that
“[e]ach employee on a walking/working surface (horizontal and vertical surface) with an
unprotected side or edge which is 6 feet (1.8 m) or more above a lower level shall be protected
from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems.”
The cited standard applies, and I find that AJP violated the terms of the standard. The CO
testified that three employees, Messrs. Sherengo, Giordano and Johnson, were at an unguarded
edge on the seventh floor, and it is undisputed that there were no guardrail, safety net or personal
fall arrest systems in use at the time of the accident on January 30, 2001. (Tr. 216-21.) AJP
argues that because the employees were out on the work platform rather than in the building
while waiting for the mud buggy to land, they were not exposed to the unprotected edge of the
building. (R. Brief at pp. 34-35.) According to Third Circuit and Commission precedent, the
Secretary does not need to show actual exposure, but, rather, “access” to danger. See Adams Steel
Erection, 766 F.2d 804 (3d Cir. 1985); Phoenix Roofing, Inc.,17 BNA OSHC 1076, 1079 (No.
90-2148), aff’d without published opinion, 79 F.3d 1146 (5th Cir. 1996). In the subject case, the
Secretary does not need to show that employees were actually standing at the unprotected edge of
the building, but only that employees had access to an area of potential danger. The evidence
clearly establishes that employees had such access because they were working at and around the
unprotected edge and were therefore exposed to the hazard.16
I further find that the Secretary has established that AJP had knowledge of the violative
condition. Even if AJP did not have actual knowledge of this specific instance, it could have
foreseen and prevented the hazardous condition through the exercise of reasonable diligence. As
found above, AJP’s policy regarding fall protection was inadequate and it was inadequately
communicated to employees. Despite repeated warnings from the general contractor that AJP

   16
     At the hearing, the Secretary made an offer of proof of a videotape recording of Al Hanovic

in support of CO Nies’ testimony regarding the location of the three employees on the day of the
accident. I did not give any weight to this offer of proof in reaching my findings for this cited
violation.
 18

employees were working without fall protection, there is no evidence that AJP took any
reasonable steps to discover these repeated safety violations or that it took any action to correct
or prevent future fall hazards. Based on this evidence, I conclude that AJP had knowledge of the
violation and this item is therefore affirmed. I agree with the Secretary that the violation was
serious, in that falls from the unprotected edge could have resulted in serious injuries or death. In
regard to penalty, I have considered the high gravity of the condition, and, in accordance with the
penalty discussion set out supra, I conclude that a penalty of $5,600.00 is appropriate. A penalty
of $5,600.00 is consequently assessed for this item.
Docket No. 01-1474 - Citation 2, Item 1
This item alleges a willful violation of 29 C.F.R. § 1926.451(g)(1)(vii), which states that
“[f]or all scaffolds not otherwise specified in paragraphs (g)(1)(i) through (g)(1)(vi) of this
section, each employee shall be protected by the use of personal fall arrest systems or guardrail
systems meeting the requirements of paragraph (g)(4) of this section.” Paragraphs (g)(1)(i)-(vi)
provide for various types of scaffolds, but do not refer specifically to baker or mobile scaffolds.
Paragraph (g)(1)(vii), however, states that “[f]or all scaffolds not otherwise specified in
paragraphs (g)(1)(i) through (g)(1)(vi) of this section, each employee shall be protected by the
use of personal fall arrest systems or guardrail systems meeting the requirements of paragraph
(g)(4) of this section.” The cited standard applies, and I find that AJP violated the terms of the
standard. It is undisputed that guardrail systems were not in place on the outrigger scaffold in use
at the site. (Tr. 228–29.) It is further undisputed that the three employees on the outrigger
scaffold were not wearing any fall protection on January 30, 2001. (Tr. 460-62, 515-16, 540-42.)
The evidence clearly demonstrates that these employees were exposed to a fall hazard. The only
issue left to be resolved, in determining whether the Secretary has established her burden of
proving the alleged violation, is whether AJP had the requisite knowledge of the hazardous
condition.
I find that the Secretary has shown by a preponderance of evidence that AJP had
knowledge of the violation. AJP asserts the three employees were issued fall protection
equipment and that it had never seen them on the work platform without appropriate fall
protection. (R. Brief at pp. 39-40; Tr. 435.) Specifically, Shop Steward Scerbo testified that he
 19

had never seen employees working on the platform without being hooked up. (Tr. 435.)
However, Keith Healy, an employee of the general contractor, directly contradicted Mr. Scerbo’s
testimony, stating that he had observed AJP employees not wearing fall protection on the
platform on numerous occasions. (Tr. 338-44.) He also testified that he warned AJP repeatedly
about the employees’ failure to wear fall protection. (Tr. 338-51; C-3.) Based on Mr. Healy’s
opportunity and capacity to observe, the consistency of his testimony, his lack of bias, and the
overall reasonableness of his testimony, I find him a more reliable and credible witness than Mr.
Scerbo. I conclude, therefore, that AJP had actual knowledge of the violation.
AJP asserts that the violation was a result of unpreventable employee misconduct.
However, the evidence of record does not support this assertion. First, R-1, Major’s Safety
Manual, and C-4, AJP’s fall protection plan, contain nothing to show that AJP had established
work rules designed to prevent the violation. Second, even if AJP had such work rules in place,
there was inadequate communication to employees in light of the limited training AJP provided
its workers.17 Third, AJP has failed to identify any specific steps it took to discover violations.
Finally, no evidence was presented to show that AJP enforced its work rules when violations
were discovered. In view of the foregoing, the Secretary has established the alleged violation.
The Secretary has classified this item as willful. The Third Circuit has held that
“[w]illfulness connotes defiance or such reckless disregard of consequences as to be equivalent
to a knowing, conscious, and deliberate flaunting of the Act. Willful means more than merely
voluntary action or omission–it involves an element of obstinate refusal to comply.”18 Frank Irey,
Jr. Inc. v. OSHRC, 519 F.2d 1200 (3d Cir. 1974), aff’d en banc, id. at 1215, aff’d sub nom. Atlas
Roofing Co. v. OSHRC, 430 U.S. 442 (1977). A review of the record demonstrates that AJP

   17
        See Citation 1, Item 5 of Docket No. 01-0568, supra.
   18
     However, as the Third Circuit noted in Babcock & Wilcox Co. v. OSHRC, 622 F.2d 1160

(3d Cir. 1980), this definition of willful bears little difference from the other circuits:
[A]n “intentional disregard of OSHA requirements” differs little from an “obstinate
refusal to comply;” nor is there in context much to distinguish “defiance” from
“intentional disregard.” “Flaunting the act” or “flouting it,” as some would say, again
carries the same meaning....[T]he same results would likely be reached in various
cases...regardless of the verbiage utilized.
 20

obstinately refused to comply with the requirements of the Act. Based on previous violations of
companies owned and/or managed by AJP’s officers, Mr. Polites and Mr. Lee clearly were aware
of the Act’s requirements with respect to fall protection. They were intimately involved in the
day-to-day operations of several of companies, including Polites Construction and MJP
Construction, in which OSHA issued citations for fall hazards.19 Despite this knowledge, AJP
carried out its operations at the site with employees exposed to fall hazards. AJP knew from
safety memos and discussions with the general contractor that fall protection was an ongoing
problem at the site and yet could not articulate any measures that it took to address or correct the
problem, thus unequivocally demonstrating the company’s plain indifference to employee safety.
(C-3.) Moreover, the accident that resulted in the fatality of an employee was a direct result of
AJP’s “knowing, conscious, and deliberate flaunting of the Act.” This item is accordingly
affirmed as a willful violation.
In regard to penalty, and in accordance with the penalty discussion set out in Docket No.
01-0568, I conclude that some adjustment is appropriate for size. See Fiore Const. Co., Inc., 19
BNA OSHC 1408, 1410 (No. 99-1217, 2001). However, AJP merits no other adjustments to
penalty, in light of its history of OSHA violations and its lack of good faith. After giving due
consideration to these factors and particular consideration to the high gravity of this violation, I
conclude that a high penalty assessment is necessary in this case to induce future compliance and
to serve the remedial purposes of the Act. See Revoli Constr. Co., 19 BNA OSHC 1682, 1687
(No. 00-0315, 2001); E.L. Davis Contracting Co., 16 BNA OSHC 2046, 2052-53 (No. 92-35,
1994). For these reasons, I find that a penalty of $56,000.00 is appropriate for this item. A
penalty of $56,000.00 is accordingly assessed.

Findings of Fact and Conclusions of Law
The foregoing decision constitutes my findings of fact and conclusions of law in
accordance with Federal Rule of Civil Procedure 52(a).

   19
     See penalty discussion in Citation 1, Item 1, in Docket No. 01-0568, for further explanation

of the company’s prior history, and the relationship between AJP and other companies owned and
operated by Michael J. Polites.
 21

                                         ORDER
   Based upon the foregoing, it is hereby ORDERED that:
   Docket No. 01-0568:
   1. Citation 1, Item 1, alleging a serious violation of 29 C.F.R. § 1926.451(g)(3), is

AFFIRMED, and a penalty of $4,000.00 is assessed.
2. Citation 1, Item 2a, alleging a serious violation of 29 C.F.R. § 1926.501(b)(1), is
AFFIRMED, and a penalty of $1,400.00 is assessed.
3. Citation 1, Item 2b, alleging a serious violation of 29 C.F.R. § 1926.501(b)(1), is
VACATED.
4. Citation 1, Item 3, alleging a serious violation of 29 C.F.R. § 1926.501(b)(4)(i), is
VACATED.
5. Citation 1, Item 4a, alleging a serious violation of 29 C.F.R. § 1926.502(g)(1), is
VACATED.
6. Citation 1, Item 4b, alleging a serious violation of 29 C.F.R. § 1926.502(g)(1), is
AFFIRMED, and a penalty of $2,800.00 is assessed.
7. Citation 1, Item 5, alleging a serious violation of 29 C.F.R. § 1926.503(a)(1), is
AFFIRMED, and a penalty of $4,000.00 is assessed.
Docket No. 01-1474:
8. Citation 1, Item 1, alleging a serious violation of 29 C.F.R. § 1926.451(f)(7), is
AFFIRMED, and a penalty of $2,000.00 is assessed.
9. Citation 1, Item 2, alleging a serious violation of 29 C.F.R. § 1926.451(f)(9), is
VACATED.
10. Citation 1, Item 3, alleging a serious violation of 29 C.F.R. § 1926.451(h)(1), is
AFFIRMED, and a penalty of $5,600.00 is assessed.
11. Citation 1, Item 4, alleging a serious violation of 29 C.F.R. § 1926.452(i)(8) , is
AFFIRMED, and a penalty of $2,000.00 is assessed.
12. Citation 1, Item 5, alleging a serious violation of 29 C.F.R. § 1926.454(a), is
AFFIRMED, and a penalty of $4,000.00 is assessed.
13. Citation 1, Item 6a, alleging a serious violation of 29 C.F.R. § 1926.501(b)(1), is
 22

VACATED.
14. Citation 1, Item 6b, alleging a serious violation of 29 C.F.R. § 1926.501(b)(1), is
AFFIRMED, and a penalty of $5,600.00 is assessed.
15. Citation 2, Item 1, alleging a willful violation of 29 C.F.R. § 1926.451(g)(1)(vii), is
AFFIRMED, and a penalty of $56,000.00 is assessed.

                                                                /s/
                                                         Covette Rooney
                                                         Judge, OSHRC

Dated: December 13, 2002
Washington, D.C.