Lacerte Builders, Inc.

Plain-English summary

An OSHA compliance officer observed subcontractor employees using elevated aerial lifts and working on open third-floor balconies without proper fall protection. The judge found that Lacerte controlled the exterior work, supervised the subcontractors, could correct hazards, and had actual knowledge that employees were not tied off. Aerial-lift and unprotected-edge violations were affirmed with penalties totaling $3,500. Two items concerning workers' improvised use of a lightweight chain as a lanyard were vacated because the Secretary did not prove that Lacerte knew or should have known of that specific conduct. The judge also rejected Lacerte's Fourth Amendment challenge because the observations were made from an adjacent open area with consent and the worksite inspection was consensual.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.453(b)(2)(iv)-(v), 1926.501(b)(1), and 1926.502(d)(9), (21)
• Outcome: Three grouped fall-protection items were affirmed, two were vacated, and total penalties of $3,500 were assessed.
• Key point: A contractor that supervises subcontractors, controls their work, and can correct their hazards may be liable as the controlling employer even when the exposed workers are not on its payroll.

Full text (OSHRC public release)

Secretary of Labor,

             Complainant,

             v.                              OSHRC Docket No. 02-1657

Lacerte Builders, Inc.,

              Respondent.

Appearances:

           Gwen Y . Anderson, Esquire                        Mr. Hal Morrow
             Office of the Solicitor                             Morrow & Associates
            U. S. Department of Labor                            Jacksonville, Florida
             Atlanta, G eorgia                                       For Respondent
                   For Com plainant

Before: Administrative Law Judge Stephen J. Simko, Jr.

                              DECISION AND ORDER

           Lacerte Builders, Inc., is engaged in exterior building construction. On July

16, 2002, the Occupational Safety and Health Administration conducted an inspection of
respondent’s jobsite in Tampa, Florida. As a result of this inspection, respondent was issued
a citation. Respondent filed a timely notice contesting the citation and the proposed
penalties. A hearing was held pursuant to the EZ trial procedures in Tampa, Florida, on
March 6, 2003. For the reasons that follow, Citation No. 1, Items 1a and 1b, are affirmed and
a penalty of $1,500 is assessed; Citation No. 1, Item 2a, is affirmed and a penalty of $2,000
is assessed; and Citation No. 1, Items 2b and 2c, are vacated.

                                        Background

           Complainant’s compliance officer, Lloyd Black, was conducting inspections

of construction sites in the Tampa area on July 16, 2002, pursuant to OSHA Construction
Accident Reduction Emphasis program (CARE). Under the program, inspections of
construction sites are conducted when hazardous conditions are observed. Mr. Black
testified that he observed an elevated empty aerial lift on Lacerte’s jobsite while driving past
the front of the property on Linebaugh Avenue. He concluded that someone climbed out of
the lift while it was elevated. Based on his observation of possible violations of OSHA
standards, Mr. Black decided to conduct an inspection. He drove onto the property next to
the construction site and spoke to a facility employee at a gatehouse at the entrance to the
property, which was later determined to be Aston Gardens, a retirement community. There
were no gates or fences around the property at this entrance. Mr. Black identified himself
and presented his credentials. He told this individual that he wanted to drive to the back of
the property to see the back side of the construction site. The gate attendant told the
compliance officer that the construction site was further down the road. Mr. Black then told
her that he knew where that entrance was, but restated that he really would like to drive to
the back side of the property to see if anything was going on back there. The attendant told
him to proceed. Ms. Palmer, the attendant, then notified the property residential manager of
Mr. Black’s arrival.
Mr. Black testified that he parked at the back of the complex next to a
construction gate. He further stated that he observed several employees working from
balconies on the back side of the building, applying stucco. He noticed that the employees
were not tied off, and there were no guardrails or catch nets on the perimeter of the building
to protect the employees from falling. At that time, Compliance Officer Black took several
photographs of the violations. As he was preparing to leave the area and proceed to the front
of the construction entrance, Compliance Officer Black heard someone yelling, “Tie off now,
OSHA is here” (Tr. 23, 31, 81; Exh. R-2). Upon hearing this, the employees in the area
attempted to tie off. Compliance Officer Black later learned that the individual who ordered
the employees to tie off was Mr. Kevin Swift, the project superintendent for Lacerte
Builders. Compliance Officer Black presented his credentials to Mr. Swift, introduced
himself, and stated his purpose was to conduct an inspection of the jobsite. After some
discussion, Mr. Black entered the site through an unlocked gate. Mr. Black informed M r.

                                           2

Swift of the observed hazards, and Mr. Swift stated that the workers should have been tied
off.

                                        3

Mr. Black recommended that Swift remove unprotected employees from the
building. Swift and Black proceeded to the balcony of Building 6A to remove one of the
employees who had attempted to tie off with a chain. Using visual commands, Mr. Swift
ordered the employee off the building. The employee detached the chain he was using from
his harness and climbed off the edge of the balcony into the scissor lift.
Mr. Swift then contacted the front office and was told to send Compliance
Officer Black to the front office. There Mr. Black met with Tom Doyle, the project
superintendent for Vestcor Construction Services, the general contractor for this jobsite. At
that time, with the walkaround portion of the inspection concluded, the compliance officer
held a closing conference with Mr. Doyle and M r. Swift.

                         Reasonableness of the Inspection

          Respondent argues that the OSHA inspection of its jobsite was a

nonconsensual inspection in violation of the Fourth Amendment. Lacerte relies on Marshall
v. Barlow’s, Inc., 436 U.S. 307 (1978), in support of its argument that no consent was given
by anyone with Aston Gardens retirement community to enter that property to inspect the
adjacent construction site. It further argues that respondent did not consent to entry of the
compliance officer onto the site to conduct an inspection.
It is well established that under Barlow’s, supra, OSHA inspections under
section 8(a) of the Act, 29 U.S.C. § 657(a), are subject to the Fourth Amendment and that
evidence obtained in violation of the Fourth Amendment may be excluded from evidence in
proceedings before the Review Commission. Ackermann Enterprises, Inc., 10 BNA OSHC
1709 (No. 80-4971, 1982); Sarasota Concrete, 9 BNA OSHC 1608, (No. 78-5269, 1981),
aff’d, 693 F.2d 1061 (11th Cir. 1982).
There is no Fourth Amendment violation when consent is voluntarily given to
a warrantless search or inspection. Ackermann Enterprises, Inc., supra, at 1711. In this case,

                                          4

consent for the compliance officer to enter the property adjacent to the construction site was
given by the Aston Gardens employee, Kathy Palmer. Consent to enter the construction site
was given by Kevin Swift, respondent’s project superintendent.

          Kathy Palmer testified that when Mr. Black, the compliance officer, arrived at

the entrance to Aston Gardens and identified himself, she told him that the construction
entrance was 500 feet west. He persisted, saying that he needed to go to the back of the
property and she said, “Okay.” She further testified that she did not tell Mr. Black that he
could not come onto the property.
Ms. Palmer stated that she was a meeter/greeter for residents and others and
was not trained or certified as a security guard. There was no gate or fence at this entrance
to the property. Ms. Palmer said that people can come on and off the property as they like.
The security she offers is security to the residents of the retirement community, and she
carries a beeper to assist them. Her duties do not include restricting entry to the property.
She is often away from the gatehouse to take residents food or assist them in other matters.
When she is gone from the entrance, no one is there in her place. While Ms. Palmer was very
nervous during her testimony, I found her to be very sincere and highly credible.
Mr. Black parked his car at the back of the Aston Gardens property and
observed and photographed employees working on a building at the rear of the adjacent
construction site. After ten or fifteen minutes observing these conditions, he heard Kevin
Swift yell to these employees that OSHA was there and to tie off.
At that time, the compliance officer called to Mr. Swift, identified himself, and
presented his credentials. Swift told Black at first to go around to the front of the
construction entrance to enter the jobsite. When both men discovered that the gate near them
was not locked, the compliance officer entered the site at that location. Mr. Black testified
that Mr. Swift opened the unlocked gate for him to enter. Mr. Swift has no recall as to

                                          5

whether he or Mr. Black opened the gate. M r. Black’s testimony is convincing on this point.
The compliance officer testified that he was never asked to leave the jobsite
at any time during the inspection. He discussed hazardous conditions with Mr. Swift at the
rear of the jobsite and later with Mr. Doyle, the general constructor’s project superintendent,
along with Mr. Swift in the jobsite trailer.
After considering the totality of circumstances surrounding the compliance
officer’s entry onto this jobsite, I conclude that this was a consensual entry and inspection.
While Mr. Swift did not specifically tell Mr. Black that he was consenting to this inspection,
his actions clearly indicated that he was allowing the inspection to proceed. Mr. Doyle,
representing the general contractor, specifically told Mr. Black to proceed with the inspection
when Mr. Black asked whether a warrant would be necessary to continue the inspection.
Since the Aston Gardens agent, Ms. Palmer, consented to Mr. Black’s presence
in the back parking area of the retirement community, the compliance officer was not barred
from observing activities or objects around him. His observations of objects and activities
in plain view from that area is not a constitutional violation. Ackermann Enterprises, Inc.,
supra, at 1712; Harris v. United States, 390 U.S. 234 (1968). Since the conditions Black
observed from this location were in plain view, there is no Fourth Amendment violation.
Mr. Black’s observations were outdoors in an open parking area adjacent to the
construction site. There is no Fourth Amendment violation where, as here, observations
occurred in “the open fields” rather than inside houses, commercial buildings, or other
premises from which the public is excluded. Ackermann Enterprises, Inc., supra, at 1712
(and the cases cited therein).
The working conditions on Building 6A at the rear of Lacerte’s jobsite were
readily observable from the open area of the adjacent property. Respondent, therefore, had
no reasonable expectation of privacy with respect to its operations and work activities.
Ackermann Enterprises, Inc., supra, at 1712. See also Katz v. United States, 389 U.S. 347
(1967).

                                           6

Since there was no violation of the Fourth Amendment by complainant in
obtaining evidence prior to actual physical entry onto the jobsite and presentation of
credentials, that evidence will not be excluded. Furthermore, permission for Mr. Black’s
entry onto the Aston Gardens property was granted by Ms. Palmer, Aston Gardens’ agent.
Mr. Swift opened the unlocked gate at the rear of the jobsite to allow Mr. Black to enter the
site. The two men then discussed possible hazards. Mr. Black was then told to report to the
general contractor’s trailer at the front of the worksite. At no time was the Secretary’s
compliance officer asked by Mr. Swift or the general contractor to leave the jobsite, to stop
the inspection, or to obtain a warrant before continuing his inspection.1

              I conclude that the inspection was consensual. Furthermore, the inspection was

conducted at a reasonable time, within reasonable limits, and in a reasonable manner in
accordance with the provisions of section 8(a) of the Act. Evidence gathered before and after
presentation of credentials will not be suppressed and will be considered.

                                                  Discussion

              The Secretary has the burden of proving violations of standards promulgated

1

During his conversation with Mr. Doyle, the general contractor’s project superintendent, Mr. B lack, ask ed M r.
Do yle whether a warrant was necessary to continue the inspection. Mr. Black indicated that he needed only names
and addresses of workers observed during his inspection. He further stated th at if a wa rrant w as ob tained , he w ould
conduct a wall-to-wall inspection. Mr. Doyle then met privately w ith M r. Swift. After th at discu ssion , M r. Swift
provided the requested information to Black. A closing conference was then held, and the inspection was concluded.
M r. Doyle did not testify in this case. Du ring h is testim ony , M r. Swift did not indicate that he had been intimidated
by M r. Black ’s discu ssion of a ne ed to get an inspe ction wa rrant or th e sco pe o f such wa rrant.

After consideration of the testimony of M r. Black and M r. Swift, and observin g the de me anor of b oth w itnesses,
I con clud e that M r. Black ’s referenc e to g etting a warrant was not intended to intimidate or coerce Mr. Doyle or
respondent to allow the inspection to proceed.

                                                        7

under the Act.
In order to establish a violation of an occupational safety or
health standard, the Secretary has the burden of proving: (1) 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).

          There is no dispute that all standards at issue in this case are applicable to the

construction activities involved at this jobsite. M r. Swift admitted that the violations took
place. Employees directed and controlled by respondent clearly had access to the violative
conditions.

                        Respondent as Controlling Employer

          Respondent claims that employees exposed to the fall hazards at issue are not

its employees, and that Lacerte is not responsible for the violative conditions which occurred
on the date of the inspection. While respondent actually employs one employee, Mr. Swift,
on this jobsite, it directly controls the work of at least twenty-four other workers. These
workers are employees of four subcontractors of Lacerte. Respondent manages and
supervises all aspects of exterior construction work at this site. On the day of the inspection,
Mr. Swift, Lacerte’s project superintendent, was supervising the stucco work on building 6A,
the location of the alleged violations. Respondent directed the work of the only stucco
contractor on this job.
Throughout the inspection and at the hearing, Mr. Swift consistently referred
to the exposed workers as his employees. He attempted at hearing to explain away this
reference, but it was clear from his testimony and statements during the inspection that he
directly controlled, and supervised the work of these employees, and truly considered these

                                           8

workers to be his employees.
During the inspection, Mr. Swift sent all these employees home when rain
began falling. He had authority to correct hazards and, in fact, did so when hazards were
observed. When the compliance officer arrived on site, M r. Swift rode a scissor lift to an
upper level balcony to remove an employee working at the edge of the balcony with improper
fall protection. The only factor limiting Mr. Swift’s ability to supervise and control the work
of these employees is the language barrier. Most of these employees speak only Spanish.
Mr. Swift does not speak Spanish, so he gives orders by means of hand signals or he speaks
to the foremen or leadmen of the companies working directly for Lacerte. These individuals
are usually bilingual, enabling them to communicate with Mr. Swift and convey his
instructions directly to the workers. Lacerte exercises both direct control and indirect
control, through foremen, of these employees. Respondent also has in place a safety
violation program that it uses to discipline subcontractors for noncompliance with OSHA
guidelines. Respondent has authority to stop work and replace subcontractors as needed.
Mr. Swift, at hearing, described his job duties and function on this jobsite as
project superintendent as follows:
A. To make it easier -- to pretty much give the GC
one person to go to correct any problems that may
occur from the siding guys, the form guys,
lathing, stucco, anybody that we would have out
there, the subs from Lacerte, instead of the GC
having to go to five or six different lead foremens,
he has one person that’s in contact which was me.

                                          9

And, I also coordinate, order material, organize
scheduling for the buildings, monitor safety
programs, make sure that things are in place,
make sure that any of the employees that are
working unsafe gets their stuff corrected when
noticeable. But, like I said, you can’t hold
everybody’s hand all day long. (Tr. 37)

          In his capacity as Lacerte’s project superintendent, on arrival at the jobsite on

the inspection date, Mr. Swift did a quick walk-around of the various buildings and saw one
employee without fall protection. Swift ordered this worker to tie off, and the employee
complied.
While Lacerte was not the general contractor on this job, it acted in the same
capacity in relation to its own subcontractors, including the stucco sub whose employees
performed the stucco work at issue. Respondent had responsibility for, managed, and
supervised all exterior construction work on buildings on this site. It exercised its authority
for safety. It corrected safety hazards affecting or created by its subcontractors. It treated
its subcontractor’s employees as its own and gave these employees direct instructions, being
limited only by language. Respondent directed and
controlled the day-to-day work of these employees.
The multi-employer doctrine provides that an employer who controls or creates
a worksite safety hazard may be liable under the Occupational Safety and Health Act even
if the employees threatened by the hazard are solely employees of another employer.
Universal Construction Company, Inc. v. OSHRC, 18 BNA OSHC 1769 (No. 98-9519,
1999), F.3d (10th Cir., June 28, 1999). See also U. S. v. Pitt-Des Moines, Inc.,
168 F.3d 976 (7th Cir. 1999); R. P. Carbone Constr. Co. v. OSHRC, 166 F.3d 815 (6th Cir.
1998); Beatty Equip. Leasing, Inc. v. Secretary of Labor, 577 F.2d 534 (9th Cir. 1978);
Marshall v. Knutson Constr. Co., 566 F.2d 596 (8th Cir. 1977); and Brennan v. OSHRC, 513
F.2d 1032 (2d Cir. 1975).

                                          10

Under the multi-employer doctrine, Lacerte controlled the worksite safety
hazards at issue and is responsible, as the controlling employer, for violative conditions even
though the employees threatened by the hazards are those of its subcontractor.
Here, respondent could reasonably be expected to detect and abate the
violations due to its supervisory authority and control of the stucco work on this jobsite. Mr.
Swift was in the immediate work area, observed the safety conditions, and specifically
directed employees to tie off before the inspection and when he learned that the OSHA
inspector had arrived. See McDevitt Street Bovis, Inc., 19 BNA OSHC 1108 (No. 97-1918,
2000).

                               Citation No. 1, Item 1a
           Alleged Serious Violation of 29 C.F.R. § 1926.453(b)(2)(iv)


          The Secretary in Citation No. 1, Item 1a, alleges that:

          a) On or about 7/16/02--employees using the extensible boom
          aerial lifts were elevating the baskets to the second and third
          floor balconies where they would exit the aerial lift by stepping
          out of the unlanded basked [sic] onto the floor of the balcony.

          The standard at 29 C.F.R. § 1926.453(b)(2)(iv) provides:

          (iv) 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.

          Kevin Swift, respondent’s project superintendent, testified that Lacerte was the

only contractor that had boom lifts, a type of aerial lift, on this jobsite. Compliance Officer
Lloyd Black’s undisputed testimony established the violative conditions as alleged. He
observed at least three instances of employees elevating the aerial lift to the second and third
floor balconies, opening the gates of the elevated lift, carrying materials from the lift to the
balconies, stepping back onto the lift, closing the gate and then moving the lift.

                                          11

Mr. Black explained that the lift basket may drop 6 inches to 2 feet in case of
hydraulic failure. This could create a hazardous condition if this occurred while an employee
was walking between the aerial lift and a balcony while the lift was elevated. When workers
walk between the basket of the elevated lift and the building, they are not standing firmly on
the floor of the basket and are exposed to a fall hazard in the event of sudden drop due to
hydraulic failure. Mr. Swift was working in the immediate area and knew, or should have
known, of this violative condition. He testified he knew that these employees were using
the boomlift on the morning of the inspection. Respondent owned the boomlifts and
provided them for use on this jobsite. If an employee fell from the elevated basket, death or
serious physical injury could result. The violation of 29 C.F.R. § 1926.453(b)(2)(iv) is
affirmed as a serious violation.

                               Citation No. 1, Item 1b
           Alleged Serious Violation of 29 C.F.R. § 1926.453(b)(2)(v)


          In Citation No. 1, Item 1b, the Secretary alleges:


          29 CFR 1926.453(b)(2)(v): A body belt (as a restraint) or a full
          body harness (for fall arrest) was not worn and a lanyard was not
          attached to the basket or boom when working from an aerial lift:

                 a) On or about 7/16/02--the employees using
                 aerial lifts for access to the second and third floor
                 balconies were not using a body belt or harness in
                 the platforms of the aerial lift and when they did
                 have on a harness and lanyard on, they unattached
                 their lanyards from the attachment point of the
                 basket and exited the aerial lift on to the second or
                 third floor balcony.

          The standard at 29 C.F.R. § 1926.453(b)(2)(v) provides:



                                          12

(v) A body belt shall be worn and a lanyard attached to the
boom or basket when working from an aerial lift.

          NOTE TO PARAGRAPH (b)(2)(v): As of January 1, 1998,
          subpart M of this 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 under § 1926.502(e).

          As discussed above in Item 1a, respondent owned the aerial lifts, and Mr. Swift

knew employees used the lifts on the morning of the inspection. M r. Swift was working in
the immediate area of this work. Knowing employees used the lifts that morning, he knew,
or should have known, of this violation. Mr. Black’s undisputed testimony established that
employees were not wearing a harness, body belt or lanyard attached to the basket when
working from the aerial lift. He observed two employees without the required protection
while working on the aerial lift and while walking between the elevated lift and the building
balconies. He described the fall hazard to be similar to that in Item 1a, specifically, in the
event of hydraulic failure, the basket could drop 6 inches to 2 feet causing an employee to
be thrown from the elevated basket, if not tied off by a lanyard hooked to a body belt or
harness. The violation of 29 C.F.R. § 1926.453(b)(2)(v) is affirmed as a serious violation.

                               Citation No. 1, Item 2a
                Alleged Serious Violation of 29 C.F.R. § 501(b)(1)


          In Citation No. 1, Item 2a, the Secretary alleges 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 was not protected from
          falling by the use of guardrail systems, safety net systems, or
          personal fall arrest systems:

                 a.   On or about 7/16/02--Northside of building

                                         13

6A, one employee was working from the third
floor balcony and had not attached his retractor
device to an anchorage of any type.

                 b. On or about 7/16/02--Northside of building
                 6A, the anchorage points (eyelets) for the fall
                 protection required that the employees walk next
                 to the edge of the unprotected sides and edges of
                 the balcony before they could attach their lanyard.

          The standard at 29 C.F.R. § 1926.501(b)(1) provides:
                 (b)(1)    Unprotected sides and edges. Each
                 employee on a w alking/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.

          At the hearing, respondent admitted, through its representative, that the

violative conditions existed, but did not admit respondent’s responsibility for these
conditions. Mr. Black testified that he observed and photographed two employees pulling
up materials while standing at the edge of the third floor balcony with no fall protection. One
employee’s toes even extended over the edge of the balcony. One employee was observed
scrambling to attach a chain to his harness when Mr. Swift yelled, “Tie off now. OSHA’s
here” (Tr. 81). In Mr. Black’s photograph, this employee is applying stucco. Mr. Swift was
in the area at the time of the violation, as shown by this employee’s response when Mr. Swift
yelled for employees to tie off. Mr. Swift supervised stucco work and all exterior work on
this building. Respondent, acting through its agent, Mr. Swift, is the controlling employer
and had knowledge of these violative conditions. Mr. Swift clearly knew that these
employees were not tied off when he yelled to them. He was very specific in telling them to
tie off. No other protective measure was mentioned by Swift. The only inference to be
drawn from this statement is that Swift, and through him, respondent, had actual knowledge

                                          14

of the violative conditions. Mr. Swift even admitted to M r. Black that he knew these guys
were not tied off.

                              Citation No. 1, Item 2b
             Alleged Serious Violation of 29 C.F.R. § 1926.502(d)(9)


          In Citation No. 1, Item 2b, the Secretary alleges that:

          Lanyards and vertical lifelines did not have a minimum breaking
          strength of 5,000 pounds:

                 a) On or about 7/16/02--North side of building
                 6A, employees were using light weight dog tie out
                 chains for lanyards.

          The Secretary has produced evidence showing that two employees used a

lightweight dog chain as a lanyard. She proved that this chain had a working strength of 255
pounds and a breaking strength of no more than 600 pounds. The general contractor
indicated this chain was used only as a warning barrier and was not intended to be used as
a lanyard.
Respondent provided harnesses, retractable lifelines, and eye bolts attached to
the building, all of which will support 5,000 pounds. The Secretary produced no evidence
to show that respondent had actual or constructive knowledge that these employees would
grab a lightweight chain for use as a lanyard. From the evidence produced at hearing, the
employees appear to have grabbed the first chain they found in the area to attach to their
harnesses in response to Mr. Swift’s call for all to tie off as OSHA was there. No evidence
was produced showing that employees had used that chain as a lanyard prior to Swift’s
warning to tie off. The Secretary has failed to produce sufficient evidence to prove
respondent’s knowledge of the violative conditions. The alleged violation of 29 C.F.R. §
1926.502(d)(9) is vacated.

                                         15

Citation No. 1, Item 2c
Alleged Serious Violation of 29 C.F.R. § 1926.502(d)(21)

          In Citation No. 1, Item 2c, the Secretary alleges that:
          Personal fall arrest systems were not inspected for wear, damage
          and other deterioration, and defective components were not
          removed from service;

                 a) On or about 7/16/02--North side of building
                 6A--the personal fall arrest equipment (which
                 includes lanyards) in use on the third floor
                 balconies had not been inspected prior to their use
                 thereby permitting the use of dog tie out chains as
                 lanyards.

          The violation alleged in this item relates to the same hazard as addressed in

Citation No. 1, Item 2b. As discussed above, the Secretary failed to prove actual or
constructive knowledge on the part of the respondent of the violative condition, specifically,
that Lacerte knew employees were using lightweight chain as lanyards. For the reasons
discussed above relating to Item 2b, this duplicative alleged violation of 29 C.F.R. §
1926.502(d)(21) is vacated.

                                      Penalties

          Respondent has approximately 300 employees. While it had one employee on

this jobsite, it controlled 24 workers on this job. The company has not received a serious
violation during the past three years. The violations found in this case are high gravity which
could result in serious physical injuries or death. They involve potential falls from the
second and third floor balconies onto equipment and materials. Employees were working
at unprotected edges at these levels and on aerial lifts which could suddenly fall 6 inches to
2 feet. Employees were continuously applying wet stucco which dropped on the floors,
creating slippery conditions,

                                          16

Upon due consideration of these factors, it is determined that the following
penalties are appropriate.
1. For Citation No. 1, Items 1a and 1b, I find a penalty of $1,500 appropriate.
2. For Citation No. 1, Item 2a, I find a penalty of $2,000 appropriate.

                           FINDINGS OF FACT AND
                           CONCLUSIONS OF LAW

          The foregoing decision constitutes the findings of fact and conclusions of law

in accordance with Federal Rule of Civil Procedure 52(a).

                                     ORDER

          Based upon the foregoing decision, it is ORDERED:
          1. Citation No. 1, Items 1a and 1b, are affirmed and a penalty of $1,500 is

assessed.
2. Citation No. 1, Item 2a, is affirmed and a penalty of $2,000 is assessed.
3. Citation No. 1, Items 2b and 2c, are vacated.

                                                     /s/
                                                     STEPHEN J. SIMKO, JR.

Dated: April 21, 2003 Judge

                                         17