FABI Construction Company, Inc., and PRO Management Group

Plain-English summary

The D.C. Circuit reviewed the administrative law judge's decision after it became a final Commission order without discretionary review. The court granted review of the penalty for a concrete-formwork violation and found that the judge increased the Secretary's proposed $2,500 penalty to $7,000 without providing an adequate factual basis. The court also observed that the judge apparently did not recognize that the assessed amount exceeded the Secretary's proposal. After receiving the court's mandate, the Commission remanded the penalty issue to the judge for further proceedings consistent with the opinion.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.703(e)(1)
• Outcome: The Commission remanded the penalty assessment for further proceedings under the D.C. Circuit's mandate.
• Key point: A judge who increases a proposed penalty must provide an adequate factual basis and account for the deviation.

Full text (OSHRC public release)

FABI Construction Company Inc., and PRO Management Group, Docket No. 04-0776

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 04-0776

FABI CONSTRUCTION COMPANY, INC., and
PRO MANAGEMENT GROUP

Respondents.

APPEARANCES:

John Shortall, Attorney; Michael P. Doyle, Attorney; Nathaniel I. Spiller, Senior Counselor;
Joseph M. Woodward, Associate Solicitor; U.S. Department of Labor, Washington, DC

For the Complainant

Joseph P. Paranac, Jr., Esq., St. John & Wayne, L.L.C., Newark, New Jersey

For the Respondent

REMAND ORDER

Before: THOMPSON, Chairman; ROGERS, Commissioner.

BY THE COMMISSION:

This case is before the Commission on remand from the United States Court of
Appeals for the District of Columbia Circuit. Fabi Construction Co., Inc. and Pro Mgmt.
Group v. Sec’y of Labor , 508 F.3d 1077 (D.C. Cir. 2007). The court reviewed the
decision of Administrative Law Judge Covette Rooney, which became a final order of the
Commission on May 1, 2006, following the Commission’s decision not to review the
case. In its opinion dated November 27, 2007, the court granted review of the judge’s
penalty assessment for a violation of 29 C.F.R § 1926.703(e)(1) and remanded this issue
to the Commission. Id. at 1090. According to the court, the judge raised the Secretary’s
proposed penalty of $2,500 to $7,000 without providing an “adequate factual basis” for
doing so and “apparently did not recognize she was deviating from the Secretary’s
proposed fine.” Id.

On September 12, 2008, the Commission received the court’s mandate, dated
August 29, 2008, in this case. We now remand the case to the judge for further
proceedings consistent with the court’s opinion.

SO ORDERED.

_/s/________

Horace A. Thompson III

Chairman

_/s/________

Thomasina V. Rogers

Commissioner

Dated: September 23, 2008

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 04-0776

FABI CONSTRUCTION, INC., and

PRO MANAGEMENT GROUP,

Respondents.

APPEARANCES:

William G. Stanton, Esq.                                  Joseph P. Paranac, Jr., Esq.

Suzanne Demitrio, Esq.                                    Joseph F. Lagrotteria, Esq.

U.S. Department of Labor                                St. John & Wayne, L.L.C.

New York, New York                                      Newark, New Jersey

For the Complainant.                                        For the Respondent.

BEFORE:         Covette Rooney

Administrative Law Judge

DECISION AND ORDER

This case is before the Occupational Safety and Health Review Commission (“the
Commission”) pursuant to the Occupational Safety and Health Act of 1970, 29 U.S.C. §§
651-678 (“the Act”), to review (1) two citations issued by the Secretary of Labor (“the
Secretary”) and (2) a proposed assessment of penalty therefor.

A hearing was held in Philadelphia, Pennsylvania, from May 17 through June 2,
2005. The parties have filed both opening and reply briefs, and this case is now ready for
disposition.

Background

During the fall of 2001, Keating Building Corporation (“Keating”) was the prime
contractor for a large construction project involving the expansion of the Tropicana Hotel
and Casino in Atlantic City, New Jersey (“the Project”). (Tr. 126). The Project consisted
of a 20-floor hotel tower, ten levels of parking, and three levels of retail and
entertainment establishments below the parking garage. (Joint Pretrial Statement (“JPS”),
p.14, Ex. C-54). The parking garage was built in levels designated P1 through P10. (JPS,
p. 14, Ex. C-54). Keating contracted with Fabi Construction, Inc. (“Fabi”) and its
management company, Pro Management Group

to be the subcontractor responsible for
concrete placement on the project. Fabi was required to provide labor, materials and
equipment for performing the concrete work, including the building components such as
foundations, shear walls, columns, beams and slabs. (Tr. 11-12). Fabi, in turn,
subcontracted with several companies to assist it in fulfilling its contractual obligations.
Specifically, Fabi retained Mid-State Filigree Systems, Inc., to furnish precast barrier
walls and beam and slab products, including shoring drawings, erection shop drawings,
piece drawings and perimeter edge forms. Fabi also retained Forrest Consultants to
prepare steel reinforcement shop drawings which detailed the steel welded-wire
reinforcement, or mesh. Fabi additionally retained Mitchell Bar Placement, Inc., to install
the steel reinforcement bars and mesh. Mitchell placed all reinforcing steel on levels
except P4-P6. (JPS, p.15, Tr. 188, 494-95). On level P5, and possibly on level P4,
ironworkers on Fabi’s payroll and under its supervision placed the reinforcing steel and
mesh along Column Line 1. (Tr. 188, 494-95).

Penn Jersey Building Materials, Inc., was retained to furnish the cast-in-place concrete
materials for the Project. Finally, Peri Formwork and Scaffolding prepared shoring
drawings and rented or sold Peri Formwork products to Fabi. (JPS, p. 15).

The garage and tower consisted of continuous reinforced concrete slabs that
spanned the wide, reinforced concrete beams or walls, creating floors. The beams were
supported by reinforced concrete columns. (Tr. 66-67). These beams and slabs were
constructed using the “Filigree Wideslab” method of construction. The filigree system
consists of precast slabs and beams that serve as permanent formwork for the cast-in-place concrete poured on site. The filigree system comprises about 15 percent of the
concrete on the site, with the rest being poured on site. (Tr. 66-67). As the filigree precast
components were brought to the site, they were placed on top of shoring used to
temporarily support the filigree slabs and beams. (Tr. 55, 104-06). After the filigree
components were set on the shoring, reinforcement bars (“rebar”) and mesh were put on
top of the filigree precast concrete in anticipation of concrete being cast on top of the
rebar and mesh.(Tr. 212-13).

Industry practice requires that steel reinforcement be placed in accordance with
shop drawings which have been approved by the structural engineer. (Tr. 98, 129, 1642,
1692, 1696-98). These shop drawings are made from structural drawings prepared by
engineers and provided to the architect. (Tr. 19, 129). Shop drawings for the Project were
prepared by MFS, Southwest and Forrest. (Tr. 13, 718-19). At each level, after the steel
reinforcement was laid and before the rest of the concrete was poured, inspections were
conducted by Site-Blauvelt, who checked to ensure that the steel reinforcement was
placed in conformance with the shop drawings. (Tr. 1459-60, 1469-71). Also, prior to the
final pour, Atlantic City inspectors reviewed the site to ensure compliance with the shop
drawings and municipal codes. (Tr. 511-12, 734, 1383-84, 1460).

On October 30, 2003, Respondent’s employees were pouring concrete on level P8
in the parking garage when levels P4 through P7 collapsed. (Tr. 177, 1475). The collapse
occurred along the westernmost edge of the parking garage along Column Line 1 (Tr. 11-12) and extended east from Column Line 1 to Column Line 4 and south from the shear
wall to Column F-6. (Tr. 1534-39, Ex. R-19, slides 2, 4, 5). As a result of the accident,
four employees were killed and 21 injured. (Tr. 12).

Following an inspection and investigation, OSHA issued two citations. Citation 1
contained five items, two of which were withdrawn by the Secretary prior to the hearing.
(JPS, p.15). Remaining is Item 1, alleging a violation of the General Duty Clause on the
grounds that Fabi failed to place reinforcing steel as required by industry custom and
practice; Item 2, alleging a violation of 29 C.F.R. § 1926.703(a)(2) for not having shoring
plans available at the site for levels P3 to P8; and Item 5, alleging a violation of 29
C.F.R. § 1926.703(e)(1) on the grounds that Fabi failed to test the concrete before
removing shoring. Citation 2 alleges that Fabi willfully failed to comply with 29 C.F.R. §
1926.703(a)(1) because it did not ensure that the formwork supporting level P8 was
capable of supporting all actual and anticipated loads.

Citation 1, Item 1: Serious Violation of Section 5(a)(1)

Citation 1, Item 1 alleges a serious violation of section 5(a)(1)

of the Act, the
“General Duty Clause.” According to the citation, employees were exposed to the
recognized hazard of a collapse because reinforcing steel was not placed in accordance
with industry standards and the structural and/or shop drawings. The Secretary alleges
that Fabi failed to properly install three types of reinforcing steel: the top steel or mesh,
the longitudinal steel, and the bottom steel.

To establish a violation of the General Duty Clause, the Secretary must prove that
(1) there was an activity or condition in the employer’s workplace that constituted a
hazard to employees; (2) either the cited employer or its industry recognized that the
condition or activity was hazardous; (3) the hazard was causing or likely to cause death
or serious physical harm; and (4) there were feasible means to either eliminate or
materially reduce the hazard. E.g. Well Solutions Inc. , 17 BNA OSHC 1212, 1213 (No.
91-340, 1995); Industrial Glass , 15 BNA OSHC 1594, 1597 (No. 88-348, 1992).

Applicability of the General Duty Clause

The General Duty Clause is applicable only where no specific standard applies to
the cited condition. New York State Elec. & Gas Corp. , 17 BNA OSHC 1129, 1130 (No.
91-2897, 1995), aff’d in pert. part 88 F.3d 98 (2d Cir. 1996); Sun Shipbuilding &
Drydock Co. , 1 BNA OSHC 1381-82 (No. 161, 1973). However, a citation under section
5(a)(1) will not be vacated where the hazards presented are interrelated and not entirely
covered by any single standard, or where a specific standard does not address the
particular hazard for which the employer has been cited. Ted Wilkerson, Inc. , 9 BNA
OSHC 2012, 2015 (No. 13390, 1981).

Fabi argues that the General Duty Clause was not applicable because the standard
at 29 C.F.R. § 1926.703(d)(1) applies to the cited hazard. That standard provides that
“Reinforcing steel for walls, piers, columns, and similar vertical structures shall be
adequately supported to prevent overturning and to prevent collapse.” (Emphasis added).
(Fabi Brief at 15-16).

The Secretary counters that the plain language of the standard addresses rebar
placed in “vertical structures” such as “walls, piers, columns,” while Citation 1, Item 1
addresses steel placement in the horizontal plane of the concrete floor slabs. Moreover,
the Secretary points out that the hazard addressed by the standard is different than that
addressed by the citation. While the citation is concerned with a collapse of the concrete
structure, the legislative history of the standard makes it clear that the hazard addressed
by the standard is the possibility of a collapse of the reinforcing steel. (Secretary Reply
Brief at 11). 53 Fed. Reg. 22612, 22633 (June 16, 1988).

I agree with the Secretary. By its plain words, the standard applies only to
“vertical structures,” while the instant citation involves the horizontal support placed in
the slabs. Clearly, they apply to different conditions. Furthermore, the legislative history
of the standard supports the Secretary’s assertion that the hazard addressed by the
standard was not the potential collapse of the structure, but the collapse of the vertical
supports. Id. Accordingly, I hold that there were no specifically applicable standards and
that the General Duty Clause applies to the hazard cited by the Secretary.

The Recognized Hazard

The recognized hazard as alleged by the Secretary has two parts. First, the
Secretary asserts that it is a recognized hazard for a contractor not to follow the shop
drawings

provided to it by the structural engineer and/or detailer. It is not disputed that
“shop drawings” are typically used by contractors in the field when performing the actual
construction work. (Tr.128-29, 593). Moreover, the contractor is expected to follow the
shop drawings and may not deviate from them unless expressly directed to do so by the
structural engineer. (Tr. 96-98, 527, 593, 1132, 1814). It is not disputed that a
contractor’s deviation from those drawings, without the permission of the structural
engineer, constitutes a recognized hazard that could lead to structural failure and,
therefore, expose employees to death or serious physical harm. It is also not disputed that
the only feasible abatement method is to install the reinforcing steel in conformance with
the drawings in the first instance.

Second, the Secretary alleges that it is a recognized hazard for an employer to
install reinforcing steel in a manner that contravenes industry custom and practice. This
hazard would only be manifested where the structural and/or shop drawings call for the
contractor to install the reinforcing steel in a manner it knows to be contrary to industry
custom and practice.

The parties differ over a contractor’s duty when it has reason to believe that the
shop drawings are in error. According to the Secretary, where the contractor believes the
shop drawings are in error it must not proceed. Rather, under such circumstances a
contractor has the duty to bring its concerns to the structural engineer. If the structural
engineer confirms the details as set forth in the drawings, the contractor has fulfilled its
duty and must comply with the shop drawings. (Cagley, Tr. 600-03, 612, 665, Ayub, Tr.
1138-40). On the other hand, Fabi contends that as long as the contractor makes sure that
it has interpreted the shop drawings correctly, it has no further duty to question the
propriety of the drawings and must follow the drawings. (Guedelhoefer, Tr. 1814).

Although Fabi’s expert, Otto Guedelhoefer, who had more recent experience in
actual concrete construction work than the Secretary’s experts James Cagley and
Mohammed Ayub, testified that industry custom and practice requires the contractor to
always follow the shop drawings, I find that industry practice requires a contractor to
consult the structural engineer when that contractor knows or has reason to know that the
drawings are or may be in error. (Tr. 598-600, 603, 1131-34). While the contractor may
lack the engineering expertise to overrule or ignore the shop drawings, to hold that he
must slavishly follow them ignores the fact that the contractor has practical experience in
the field and is in a position to know when the shop drawings are contrary to generally
accepted practice. The shop drawings may be unclear and confusing, or the detailer who
prepared them may have made a mistake. Under such circumstances, to conclude that
industry practice requires the contractor to follow the shop drawings without first
contacting the structural engineer is an invitation to disaster and clearly contrary to the
intent of the General Duty Clause.

Moreover, the evidence demonstrates that Fabi had occasion to contact the
structural engineer and request revisions. Allen Zappone, Fabi’s owner, testified that
there was an instance where the drawings created the possibility that the slab could
disengage and fall onto employees below. To avoid this, he requested and received
revisions that changed the location of the beams and installed a “crash wall.” (Tr. 801-02). Clearly, then, industry custom and practice recognizes the contractor’s right and
obligation to contact the structural engineer when it has reason to believe that the shop
drawings are in error or are otherwise in need of revision.

Accordingly, the Secretary has demonstrated by a preponderance of the evidence
that it is a recognized hazard in the concrete construction industry for a contractor to
deviate from the shop drawings, or to follow those drawings when it knows or has reason
to know that they call for construction methods contrary to industry custom and practice,
without first contacting the structural engineer to ensure that those drawings are not
erroneous.

Instance (a): The Mesh (Top Steel)

The top steel placed over the filigree panels were composed of two types of steel
mesh. Shop drawings indicate that S9 mesh was to be placed from Column B-9 to
Column E, and that the S21 mesh was to be placed from Column E to Column F-6. (Ex.
C-24).

It is undisputed that this steel mesh was not embedded into the columns or
hooked over dowels near the shear wall. The evidence demonstrates that, in many areas,
it was not possible to place it into the columns because of the presence of the precast
crash wall. In those instances, the mesh was placed as far into the concrete as possible. In
those areas, the mesh either butted up to the dowels or was embedded 2-4 inches.
(Fiorentino, Tr. 510, DeStefano, Tr. 722, Ayub, Tr. 898-99, Guedelhoefer, Tr. 1790-91).

Robert Rodriguez, an ironworker for Mitchell Rebar, who was installing the
mesh, testified that he was concerned that the mesh abutted but was not hooked over the
dowels and that he brought his concerns to the attention of his foreman, Frank DeStefano.
Although DeStefano told Rodriguez that the installation was correct, Rodriguez remained
concerned because he had never seen mesh installed in that manner. Rodriguez continued
to raise his concerns. The night before the collapse, after being rebuffed for a third time,
Rodriguez hooked several sheets of mesh over the dowels to demonstrate that such an
installation was possible. The next morning, after the collapse, the sheets he installed
were the only ones still hanging from the dowels. (Tr. 693-96).

According to the Secretary, this failure to adequately embed the mesh into the
columns and shear wall, or to place the mesh over the vertical dowels, compromised the
integrity of the beam-column joints and exposed employees to the hazard of a partial or
full collapse of the structure. (Ayub, Tr. 903-04, 927-28). The Secretary asserts that the
mesh should have been embedded 8 to 9 inches into the wall. (Ayub, Tr. 899). She argues
that the failure to embed the mesh or hook it over the dowels was contrary to the shop
drawings, which called for the steel to be embedded into the columns or shear wall.
(Ayub, Tr. 895-96).

On the other hand, Fabi contends that the shop drawings did not call for the mesh
to be embedded into the columns. (Guedelhoefer, Tr. 1582-85, 1591-92, 1683-85, 1693-94). Fabi asserts that the purpose of the mesh was not to secure the beam to the column
but rather to reinforce the juncture between the beam and the slab. (Guedelhoefer, Tr.
1583, 1687). Therefore, there would be no need for the mesh to be embedded into the
column. (Guedelhoefer, Tr. 1687).

The preponderance of the evidence establishes that the shop drawings called for
the mesh reinforcement to be embedded into the columns. Frank DeStefano testified that
the shop drawings prepared by Forrest Consultants for levels P5 through P9 called for the
mesh to be brought to the edge of the building. (Tr. 722, Ex. C-24). However, DeStefano
testified that it was not possible to take the mesh to the edge of the building because of
the presence of the crash wall, which extended down the entirety of Column Line 1 and
prevented the mesh from being embedded more than 4 inches. (Tr. 722-24, Ex. C-105, p.
9 of 118). DeStefano’s reading of the drawings was supported by Ayub. (Tr. 895-96, Ex.
C-105, p. 9 of 118). In contrast, Guedelhoefer’s testimony that the shop drawings did not
call for mesh embedment was based on shop drawings prepared by Mid-State Filigree.
(Tr. 1684-85, Ex. R-2). However, the record reveals that Exhibit R-2 was not intended to
constitute the shop drawings for the placement of the mesh reinforcement. Hugh
McCarron testified that Mid-State Filigree did not provide the top steel and that Exhibit
R-2 was not intended to show the reinforcing mesh. (Tr. 350-51) . Indeed, an examination
of Exhibit R-2 clearly reveals that it was never intended to be used as the shop drawing
for mesh installation. In both section 1 and section 6 of the drawing, where the top steel
is indicated, the drawing clearly states “Top steel as req’d . (By others).” These “others”
are the Forrest Consultants shop drawings, specifically, Exhibit C-24, which, as
previously noted, required that the mesh be taken to the edge of the building.

While the shop drawings called for the mesh to be either fully embedded into the
columns or hooked over the dowels, the evidence is undisputed that, except for the mesh
sheets placed by Rodriguez, the mesh was only partially embedded or abutted against the
dowels. Fabi contends that a violation of the General Duty Clause did not occur because
the placement of the crash wall made full embedment impossible. While the Secretary
does not dispute that full embedment was not possible, Fabi’s defense misses the point.
Although the “recognized hazard” was the failure to properly embed or otherwise secure
the mesh as required by the shop drawings, the Secretary does not claim that abatement
could only have been achieved by fully embedding the mesh. Rather, the Secretary
asserts that abatement could have been accomplished by Fabi contacting the structural
engineer and pointing out its inability to conform to the shop drawings.

I agree. It is undisputed that the failure to follow the shop drawings constitutes a
recognized hazard. Where it is not possible to follow those drawings, the contractor can
either (1) do the best it can, or (2) bring the difficulty to the attention of the structural
engineer. By definition, the first option requires the contractor to take it upon itself to
deviate from the shop drawings, an action that all parties agree constitutes a recognized
hazard. Thus, the only feasible option is for the contractor to stop work and contact the
structural engineer for further instructions. Here, it is undisputed that Fabi chose the first
option. By doing so, it exposed its employees to a recognized hazard.

That the peculiarities of this construction might have made it unnecessary to
embed the mesh into the columns because, as Guedelhoefer stated, the purpose of the
mesh was to tie the beams to the slab, not the beam to the column, does not mandate a
different result. The shop drawings plainly called for mesh embedment and, as Fabi
points out in regard to the longitudinal and bottom steel, infra , it lacked the authority to
take it upon itself to ignore those drawings. If Fabi knew that embedment was
unnecessary or impossible to achieve, yet required by the drawings, industry practice
clearly called for it to halt the installation and seek guidance from the structural engineer.

For the foregoing reasons, Item 1, Instance (a) of Serious Citation 1 is affirmed as
a serious violation.

Instance (b): Longitudinal Steel

The approved shop drawings called for the placement of longitudinal bars or
rebars along Column Line 1. The evidence is undisputed that none of the bars passed
through the column cores. (Fiorentino, Tr. 502, 505, Rodriguez, Tr. 702-03). Both Cagley
and Guedelhoefer testified that it was contrary to industry custom and practice for at least
some of the rebars to pass through the columns. (Cagley, Tr. 602-03; Guedelhoefer, Tr.
1811-12). Moreover, Guedelhoefer testified that the failure of the rebars to pass through
the columns violated the structural integrity requirements of the ACI (American Concrete
Institute) industry code. (Tr. 1686-90). Fabi Superintendent Hugh McCarron testified that
he was generally familiar with the ACI code and was usually provided with sections of
the code relevant to the work he was performing. (Tr. 87-88).

The preponderance of the evidence establishes that the approved shop drawings
did not call for these rebars to pass through the columns. (Cagley, Tr. 659-661,

Guedelhoefer, Tr. 1639, 1688). Moreover, the narrow 12- inch columns effectively
prevented the rebars from being placed within the column core. (Rodriguez, Tr. 703, 707-09, Guedelhoefer, Tr. 1706).

The Secretary does not seriously dispute that the shop drawings did not call for
the longitudinal rebars to pass through the columns and concedes that, due to the small
size of the columns, it was not possible to do so. However, she asserts that because it
was contrary to industry custom and practice to install the longitudinal rebars without at
least some of them passing through the columns, Fabi should have stopped work and
consulted with the structural engineer. Fabi does not dispute that the rebars should have
passed through the columns, but asserts that it fulfilled its duty by complying with the
shop drawings.

Unlike the mesh, the evidence here demonstrates that Fabi was in compliance
with the shop drawings. The problem, however, is that Fabi knew or should have known
that it was contrary to industry custom and practice to install the longitudinal steel
without having some of them pass through the column. Fabi is an experienced concrete
contractor. While not qualified to take it upon itself to violate the shop drawings, it was
sufficiently experienced to know that those drawings required it to perform its duties in a
manner that violated industry custom and practice and compromised the structural
integrity of the building. Fabi would have the Commission conclude that it satisfied the
General Duty Clause, and freed the workplace of a recognized hazard, by slavishly
adhering to the shop drawings, regardless of whether it knew or should have known that
those drawings compromised the structural integrity of the project. As noted supra , such
a holding would be contrary to the General Duty Clause. Accordingly, I conclude that by
not stopping to consult the structural engineer to ensure that the shop drawings were
either properly drawn or interpreted, Fabi failed to free the workplace of the recognized
hazard posed by performing construction in a manner that violated industry custom and
practice.

On the basis of the record, Item 1, Instance (b) of Serious Citation 1 is affirmed as
a serious violation.

Instance (c): Bottom Steel

The Secretary asserts that Fabi violated industry custom and practice by not
installing B49 bottom reinforcing steel bars

along Column Line 1 for the floor slabs.

The evidence establishes that the structural drawings called for the installation of
B49 bottom steel, but that the bottom steel was omitted from the approved shop drawings
for levels P4 through P8. (Tr. 145-46, 357-59, 659-61,1000-04, Exs. C-11, R-4, R-5, R-6).

Ayub testified that the shop drawings showed B49 bottom steel for level P3 but did
not show it for levels P4 through P8. He had no explanation for the shop drawings not
showing the bottom steel for those levels. (Tr. 1874-75). Guedelhoefer suggested the B49
bars were part of the filigree panels provided by Mid-State Filigree and were therefore
not shown by the detailer. (Tr. 1591-92). This was disputed by Ayub, who noted that all
rebars were provided by the contractor and not by Midstate Filigree. (Tr. 1591-92).

I find that the Secretary failed to establish by a preponderance of the evidence
that the failure to include bottom steel in the shop drawings presented a hazard of
sufficient notoriety that Fabi should have stopped work to check the correctness of those
drawings with the structural engineer. Whether he was correct or not, Guedelhoefer’s
theory that the bars were included in the filigree panels posited a plausible theory
regarding why Fabi might have concluded that the shop drawings were not in error.
Moreover, while the evidence regarding industry recognition of the hazard posed by
failing to pass the longitudinal steel through the column core was overwhelming,
evidence regarding industry recognition of the failure to include bottom steel was
equivocal. Thus, while all the experts agreed that the longitudinal bars needed to pass
through the columns, there was a dispute among the experts regarding whether the
bottom bars depicted in the structural drawings would have added to the stability of the
structure. Ayub testified that the failure to include bottom steel created a serious
construction flaw which could lead to collapse. ( Tr. 1003-04) On the other hand,
Guedelhoefer noted that the bottom bars depicted on the structural drawings were too
short to have any structural value. (Tr. 1691-93). Moreover, Cagley testified only that it
was “typical” that bottom steel goes 6 inches into the support. (Tr. 611-12).

On this record, I find that the Secretary failed to establish by a preponderance of
the evidence that Fabi knew or should have known that the failure to install bottom rebars
was contrary to industry custom and practice such that it should have stopped work to
consult with the structural engineer. Accordingly, Item 1, Instance (c) of Serious Citation
1 is vacated.

Citation 1, Item 2: Serious Violation of 29 C.F.R. § 1926.703(a)(2)

The Secretary alleges that Fabi failed to comply with 29 C.F.R. § 1926.703(a)(2)
by not having shoring plans available at the site for levels P3 to P8. The cited standard
provides that:

Drawings or plans, including all revisions for the jack layout, formwork
(including shoring equipment), working decks, and scaffolds, shall be
available at the jobsite.

To establish a violation of a specific standard, the Secretary has the burden of
proving: (a) the applicability of the cited standard, (b) the employer’s noncompliance
with the standard’s terms, (c) employee access to the violative conditions, and (d) the
employer’s actual or constructive knowledge of the violation. ( i.e., the employer either
knew, or with the exercise of reasonable diligence could have known, of the violative
conditions.). Atlantic Battery Co. , 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

The Secretary asserts that Fabi failed to produce any drawings specifically
showing the shoring plans for levels P3 to P8. In particular, she notes that, despite
producing an extensive set of Peri shoring plans that were used for levels P2 and below,
Fabi failed to produce any plans specifically applicable to levels P3 to P8. (Ex. R-1).
Moreover, she argues that although McCarron testified that he made drawings by hand
for levels P3 to P8 (Tr. 231), those drawings were not produced in discovery or during
the hearing.

The Secretary also argues that while the shoring plans set forth in Exhibit R-1
showed only Peri equipment, Fabi also used shoring manufactured by Waco and Aluma.
(Tr. 105-06). The Secretary also points out that Foreman James Cincotti, who supervised
employees engaged in shoring operations, testified that he never saw a shoring plan. (Tr.
762). Finally, the Secretary asserts that, while testimony established that the same
shoring plan may be used for multiple levels if those levels are “typical” (Cagley, Tr.
632), levels P3 to P8 were not identical to level P2. The Secretary observes that, unlike
level P2, levels P3 to P8 had a 48-foot slab along Column Line 1. (Tr. 1297).
Furthermore, on level P2 and below, there was an additional horizontal beam along
Column Line 2 that was narrower than its counterpart on levels P3 to P8.

Contrary to the Secretary’s assertions, a review of Exhibit R-1, pp. 134-142,
reveals that the shoring plan specifically applied to levels P3 to P8. Although labeled as
applicable to P2, the legend box, which gave applicable floor elevations, noted that the
plan was to be repeated for each of the upper levels. (Tr. 1717). Indeed, Guedelhoefer
testified that this type of shoring plan was customary in the industry and did not create
any hazard. (Tr. 1717-18, 1723). These plans were kept in the Fabi field trailer and
copies were available to employees erecting the shoring. (Tr. 257). While those plans
applied to Peri shoring, McCarron testified that he gave workers marked-up drawings to
show the spacing of the Waco and Aluma shores. (Tr. 331-39, 342). Although copies of
these marked-up plans were not provided during these proceedings, other evidence
supports McCarron’s assertion that they were available at the site. In particular, Cincotti
testified that he received marked-up shoring plans from McCarron. (Tr. 768-69). I note
that this testimony is inconsistent with Cincotti’s earlier testimony that he never saw a
shoring plan. (Tr. 762). Moreover, he also testified that he was specifically directed by
McCarron where to place the shoring and that McCarron even placed chalk marks to
indicate its placement. (Tr. 768-69) Thus, regardless of whether he actually received a
written plan, these explicit instructions may well have made it unnecessary for Cincotti to
actually receive a copy of the shoring plans.

Finally, both McCarron and Guedelhoefer
testified that the Peri drawings contained notations for “other” brands of shoring and,
therefore, were part of the plans. (McCarron, Tr. 375, Guedelhoefer, Tr. 1802).

Finally, I find unpersuasive the Secretary’s argument that differences in levels P3
to P8 from level P2 made the shoring plan set forth in Exhibit R-1 inapplicable to these
upper levels. The Secretary failed to adduce evidence to establish that these differences
rendered the plans set forth in Exhibit R-1 inapplicable to levels P3 to P8.

What the
preponderance of the evidence does establish is that levels P2 and higher had a common
ceiling height of 10 feet and a typical configuration requiring a shoring plan that did not
change. (Tr. 262, 328-29, 334-35). Furthermore, both McCarron and Cincotti testified
that McCarron provided marked-up plans for the upper levels and that these plans were
used to place shoring. (Tr. 331-39, 342 768-69).

Accordingly, I find that the Secretary failed to establish by a preponderance of the
evidence that Fabi violated 29 C.F.R. § 1926.703(a)(2). Item 2 of Serious Citation 1 is
therefore vacated.

Citation 1, Item 5: Serious Violation of 29 C.F.R. § 1926.703(e)(1)

The Secretary alleges that Fabi failed to comply with 29 C.F.R. §1926.703(e)(1)
which states that:

Forms and shores (except those used for slabs on grade and slip forms)
shall not be removed until the employer determines that the concrete has
gained sufficient strength to support its weight and superimposed loads.
Such determination shall be based on compliance with one of the
following: (i) The plans and specifications stipulate conditions for
removal of forms and shores, and such conditions have been followed, or
(ii) The concrete has been properly tested with an appropriate ASTM
standard test method designed to indicate the concrete compressive
strength, and the test results indicate that the concrete has gained
sufficient strength to support its weight and superimposed loads.

There is no dispute that plans and specification did not stipulate conditions for the
removal of forms and shores. Rather, the contract between Fabi and Keating merely
paraphrased the OSHA standard and required that “Forms, shores, or reshores shall be
removed only after the concrete has rendered sufficient strength to carry the dead weight
of the concrete plus all applicable construction and external loads without causing
damage, overstress, or excessive or permanent deflection.” (Ex. C-44, p. 9 ¶E).
Therefore, the Secretary asserts that Fabi violated the requirement that the concrete pass
a compressive strength test before the shores could be removed as required by paragraph
(ii) of the standard. Specifically, the Secretary contends that the standard required Fabi to
test the strength of the concrete prior to “cracking” the shores. “Cracking” the shores is a
process whereby the shores are loosened and lowered a few inches to enable the slab to
deflect downward and assume its “natural” position. After a few hours, the shores are
retightened and the slab supported in its new position. These “reshores” remain in place
until the shoring system is ready to be removed. (Tr. 1030-31, 1433-37, 1554). The
evidence establishes Fabi did not test the compressive strength of the concrete until seven
days after the pour, prior to the final removal of the shores. (Tr. 218, 1439-40, 1724-25,
Ex. R-11). However, the shores on levels P5 to P7 were generally cracked on the fourth
or fifth day after the concrete was poured. (Tr. 1428, 1558). (Secretary Brief at 38-41).

Fabi takes the position that the standard does not apply to “cracking” the shores,
but only to the final removal of the shores. It argues that the “cracking” of shores is not
addressed by the standard because “cracking” shores and removing shores are two
independent operations. Fabi points out that McCarron testified that when “cracking”
shores, the entire shore, including the shore head, its continuous aluminum beam support,
and its braces, remained in place. As a result, the shore frames are still supported as if
they are holding the wet load of concrete. (Tr. 1435). Therefore, according to Fabi, the
Secretary’s attempt to apply the standard is at odds with the undisputed facts and plain
language of the standard itself. (Fabi Brief at 55).

Finally, Fabi points out that it conducted tests of the concrete before finally
removing the shores and that those tests demonstrated the concrete exceeded the
minimum requirements for shore removal. (Tr. 1440-57, 1725, Ex. R-11). Thus, it argues
it was in compliance with the standard.

The Commission must defer to the Secretary’s interpretation of an ambiguous
standard if that interpretation is reasonable. Martin v. OSHRC (C.F.&I. Steel Corp.), 499
U.S. 144 (1991). An interpretation is reasonable if it sensibly conforms to the purpose
and wording of the regulation, taking into account whether the Secretary has consistently
applied the interpretation embodied in the citation, the adequacy of notice to the parties,
and the quality of the Secretary’s elaboration of pertinent policy considerations. Superior
Masonry Builders, Inc., 20 BNA OSHC 1182, 1184 n.2 (No. 96-1043, 2003).

I find that the Secretary’s interpretation is reasonable and conforms to the purpose
and wording of the standard. Accordingly, the Commission must defer to the Secretary’s
interpretation.

While Fabi correctly cites McCarron’s testimony for the proposition that when
the shores are “cracked” they remain in place as if they were still holding the wet cement,
it overstates the case by implying that, when cracked, they continue to bear the load of
the wet concrete. However, it is clear from McCarron’s testimony that he was stating
only that they were not moved from their location and remained in place for when they
would be retightened and become reshores. The critical point is that during the
“cracking” operation, the shore heads are lowered and are no longer supporting the slab.
Whether “cracked” or permanently taken down, if the shores are lowered prematurely the
slab can fail. As Ayub testified, “the slab does not know that the shores have been
cracked 2 inches or it has been removed.” (Tr. 1201).

Guedelhoefer testified that if the slab collapsed, it would be caught by the lowered
shore head, thus preventing a collapse and protecting employees. (Tr. 1728-29) This, Fabi
argues, demonstrates that the standard cannot be read to apply to the “cracking” of shores.
However, Ayub testified that the shores are not designed for the type of impact that would
occur in the event of a failure and that “once the shore begins to fail then there’s no end to it.”
(Tr. 1285). Further, even if the slab fell a few inches, the shores could buckle, chunks of
concrete could strike employees below, and employees on the collapsed slab would fall. (Tr.
1285). I find that regardless of which expert is correct, the pertinent point is that whether the
shores are “cracked” or permanently removed, a failure of the slab is possible unless the
contractor tests the concrete to ensure that it is capable of supporting its own weight.
Accordingly, I find that the Secretary’s interpretation is consistent with the purpose of the
standard.         Finally, I note that section 1926.703(e)(2) states that:

Reshoring shall not be removed until the concrete being supported has attained
adequate strength to support its weight and all loads in place upon it.

Where, as here, the same equipment is used for both shoring and reshoring, Fabi’s
interpretation of the cited standard would render section 1926.703(e)(2) redundant because
the removal of the reshores would be considered the first time the shoring is removed and
therefore covered under section 1926.703(e)(1). Thus, there would be no purpose to section
1926.703(e)(2). I conclude, therefore, that the Secretary’s interpretation of the cited standard
is both reasonable and consistent with the regulatory scheme set forth in section 1926.703(e).

I also find the violation to be serious. Under section 17(k) of the Act, 29 U.S.C. §
666(k), a violation is serious “if there is a substantial probability that death or serious physical
harm could result.” That provision does not mean that the occurrence of an accident must be a
substantially probable result of the violative condition, but, rather, that a serious injury is the
likely result should an accident occur. Miniature Nut and Screw Corp. , 17 BNA OSHC 1557,
1558 (No. 93-2535, 1996). Guedelhoefer’s opinion was that the loosened shores would catch
any collapsing slab and protect any employees below. That opinion, however, overlooks the
fact that even a collapse of the slabs caught by the shore heads could result in employees on
the slab being subjected to injuries from falls as well as injuries from falling or moving
equipment. Moreover, even if the slabs might be caught by the shore heads, I am swayed by
Ayub’s concern that there also is a likelihood of a complete or partial collapse of the slab,
which would drop employees standing upon it as well as fall onto employees below. The
degree of the collapse would largely depend upon the strength of the slab, and, without
testing, the strength of the slab is unknown.

Based on the foregoing, Item 5 of Serious Citation 1 is affirmed as a serious violation.

Citation 2, Item 1: Willful Violation of 29 C.F.R. § 1926.703(a)(1)

Finally, the Secretary alleges Fabi willfully failed to adequately support level P8, as
required by 29 C.F.R. § 1926.703(a)(1),

making the formwork incapable of supporting the
loads imposed by level P8. The Secretary argues that the failure to properly place reinforcing
steel, as set forth in Citation 1, Item 1, resulted in the slabs being in distress. As a result, those
slabs which were intended to support the weight of level P8 were incapable of supporting the
reasonably anticipated load.

The Secretary further contends that Fabi knew or should have known of the distressed
condition because of warnings provided by several employees regarding an unusual pattern of
cracks that developed in the slabs, in conjunction with its knowledge that it failed to properly
install the reinforcing steel. Moreover, the Secretary asserts that the violation was willful
because Fabi ignored warning signs the floor slabs were in distress and placed its employees
at risk by proceeding to pour concrete before qualified individuals had evaluated the
conditions. (Secretary Brief at pp. 17-28)

Fabi contends it did not violate the standard. It first argues that the standard does not
apply as it applies only to temporary structures. Because the slabs are permanent structures,
they cannot be formwork and, therefore, are not covered by the standard. It also argues that
even if the standard does apply, this item must be vacated because it lacked knowledge of the
violation. Fabi contends that the steel reinforcement was placed in conformance with the shop
drawings and that, in any event, the cracks in the slabs that developed were typical of
shrinkage cracks and did not provide any warning that the slabs were in distress. Fabi next
argues that a violation of the standard cannot stand because abatement was not feasible. It
contends that the record demonstrates that there was no way to calculate the number of shore
levels needed to adequately support level P8. (Fabi Brief at 36-42). Finally, Fabi argues that,
even if the standard was violated, the violation was not willful. Fabi urges that it fulfilled its
obligation by reporting the cracks to the General Contractor and that it lacked a “heightened
awareness” that there was a violation. (Fabi Brief at 43-50).

Applicability of the standard

“Formwork” is defined at section 1926.700(b)(2) as “the total system of support for
freshly placed or partially cured concrete, including the mold or sheeting (form) that is in
contact with the concrete as well as all supporting members including shores, reshores,
hardware, braces and related hardware.” The Secretary asserts that because the weight of the
slab being poured is distributed by the shoring to the slabs below, those slabs must be part
considered part of the total system of support covered by the standard.

Fabi asserts that under industry custom and practice, the definition of “formwork”
includes only temporary structures. It points out that ACI SP4, entitled Formwork for
Concrete , defines “formwork” as a “temporary structure that supports its own weight and that
of the freshly placed concrete as well as construction line loads including materials,
equipment and workmen.” (Guedelhoefer, Tr. 1740-41, Ex. R-17, pp. 57-58, 71-72, Appendix
13).

As noted supra , the Commission must defer to the Secretary’s interpretation of an
ambiguous standard if that interpretation is reasonable. Martin v. OSHRC (C.F.&I. Steel
Corp.), 499 U.S. 144 (1991). An interpretation is reasonable if it sensibly conforms to the
purpose and wording of the regulation, taking into account whether the Secretary has
consistently applied the interpretation embodied in the citation, the adequacy of notice to the
parties, and the quality of the Secretary’s elaboration of pertinent policy considerations.
Superior Masonry Builders, Inc., 20 BNA OSHC 1182, 1184 n.2 (No. 96-1043, 2003).

While I am sympathetic to Fabi’s objection to the Secretary’s strained interpretation of
the standard, I cannot conclude that her interpretation is unreasonable. Fabi properly argues
that “formwork” is usually thought of as temporary structures. However, the definition as set
out by the Secretary broadly defines the term as the “total system of support for freshly placed
or partially cured concrete.” While the definition goes on to list structures that are generally
temporary in nature, there is nothing in the definition to suggest that the list is exclusive or
limited to temporary structures. Moreover, it is not disputed that the purpose of the shores and
reshores is to distribute the weight of the slab being poured onto the slabs below. Thus, like a
chain that is no stronger than its weakest link, if those slabs are incapable of supporting the
anticipated weight of the load, the capacity of the shoring is irrelevant. So viewed, it is
reasonable to consider the slabs as part of the formwork when they are being used to support
the weight of the upper levels. Unless these slabs are able to absorb the weight distributed by
the shores and reshores, the entire system of support will fail. Here, the slabs at levels P5 to
P7, which ultimately had to bear the weight of the freshly poured concrete on level P8, were
part of the overall support system and the Secretary could reasonably consider them
“formwork.” Accordingly, I conclude that the Secretary’s interpretation reasonably conforms
to the purpose and wording of the standard and that the Commission must defer to that
interpretation.

Did Fabi have knowledge of the violation?

To establish a violation of a standard, the Secretary must establish by a preponderance
of the evidence that the employer knew, or with the exercise of reasonable diligence should
have known, of the violation. American Wrecking Corp. v. Secretary , 351 F.3d 1254, 1261
(D.C. Cir. 2003).

There is no dispute that the anticipated load on level P8 was 175 pounds per square
foot, which consisted of 125 pounds per square foot for the wet concrete and an additional 50
pounds per square foot for the weight of the people and equipment on the deck. (Ayub, Tr.
1046-47). While the shoring system was designed to support that load, (Guedelhoefer, Tr.
1753-54), the collapse demonstrates that, in practice, something went wrong and the entire
system of support was not capable of supporting the load. (Ayub, Tr. 1195-96).

Here, the
issue of knowledge depends on whether the pattern of cracks that formed in the concrete put
Fabi on notice that the slabs were in distress and that the “total system of support” was
incapable of supporting the anticipated loads.

It is not disputed that it is common for shrinkage cracks to develop in newly-cured
concrete. These cracks are expected and are not a matter of concern. (Campano, Tr. 437,
Cagley, Tr. 625-27, 676-77).

However, several employees testified they observed cracks
developing along Column Line 1 that were of a pattern and size that raised concerns regarding
the stability of the slabs. (Brooks, Tr. 405-08, Campano, Tr. 427-35, Roberts, Tr. 469-75, 747-48). For example, John Campano, a Fabi carpenter, testified that one crack was wide enough
to insert a credit card (Tr. 446) and that others went all the way through the concrete and were
as much as 1/8 inch wide. (Tr. 432). Some of these employees communicated their concerns
to Hugh McCarron (McCarron, Tr. 239-240, Campano, Tr. 435-36, Roberts, Tr. 475, Cincotti,
Tr. 765-66).

McCarron examined the cracks to determine whether they were just on the surface or
went entirely through the concrete. (Tr. 241-42). He found that the cracks did not extend
through the panels and noted that they did not change over time. He did not see any cracks
large enough to insert a credit card and considered the cracks merely hairline cracks.
Moreover, he failed to detect any discernable pattern in the cracks or note any open cracks.
McCarron was not alarmed by these cracks and concluded that they were the results of
deflection caused when the shores were cracked and the slabs allowed to assume their natural
position. (Tr. 239-47). Accordingly, McCarron never brought these cracks to anybody’s
attention. (Tr. 239-47).

I find that the preponderance of the evidence establishes that the cracks went through
the concrete and were wide enough to insert a credit card (criteria which McCarron agreed
would indicate a problem) and therefore were of sufficient size to constitute a warning that the
slabs were in distress. Although McCarron testified that he did not see any cracks penetrating
through the concrete or wide enough to insert a credit card, his testimony was contradicted by
at least four employees, many with considerable experience in the field. These employees
understood the natural hairline cracking which was to be expected on this type of
construction, and yet they were concerned by the size and degree of the cracking that they
witnessed.

I would also note that the cracking had to be considered in the context of the problems
with the steel reinforcement. As discussed in Citation 1, Item 1, Fabi knew or should have
known that neither the steel mesh nor the longitudinal steel was properly embedded into the
columns. Given this knowledge, McCarron should have taken the concerns of these
employees more seriously and ensured that the matter was brought to the attention of the
structural engineer.

Accordingly, I find that Fabi knew or should have known that the cracks observed in
the concrete constituted a warning that the formwork was incapable of supporting the
anticipated load.                             Feasibility of Abatement

Fabi argues it was not feasible to abate because the record fails to disclose how many
levels of shoring would have been necessary to support level P8. Moreover, if contacting the
structural engineer would have abated the hazard, Fabi contends it fulfilled its duty. (Fabi
Brief at 41-42)

To establish the affirmative defense of infeasibility of abatement, an employer must
prove that (1) the means of compliance prescribed by the applicable standard would have
been infeasible under the circumstances in that (a) its implementation would have been
technologically or economically infeasible, or (b) necessary work operations would have been
technologically or economically infeasible after its implementation, and (2) either (a) an
alternative method of protection was used, or (b) there was no feasible alternative means of
abatement. A.J. McNulty & Co., Inc. , 19 BNA OSHC 1121, 1129 (No. 94-1758, 2000).

Fabi has not established its asserted affirmative defense. Here, the standard does not
set forth a particular method of abatement. However, the Secretary does not assert that Fabi
could have abated by adding additional levels of shoring. Indeed, the record indicates that
Fabi did not have the authority to add levels of shoring without first consulting the structural
engineer. Thus, the Secretary asserts that Fabi should have consulted the structural engineer to
allow that individual to determine if there was a problem that needed addressing. Fabi does
not assert that such consultation was infeasible. Rather, it asserts that it fulfilled that duty
because an employee, Campano, informed Keating, the general contractor, about his
concerns. (Tr. 435-36).

The problem with Fabi’s defense is that there is nothing in the record to suggest that
Campano, a carpenter for Fabi, was a management official with authority to bring potential
structural problems to the attention of the general contractor. Indeed, Campano’s testimony
demonstrates that his statement to Ken Lang, the Keating official at the site, was at best
informal and made during a work break:

Q Did you have any other discussions with any members of management at
the site about these cracks?

A Only Kenny Lang from Keating.

Q And what did you say to Kenny Lang?

A Well we were sitting with my guys having a break, we asked Kenny if he
saw the cracks over on one line. He says I’ve seen cracks all over this place.

Q Do you know if Mr. Lang went over to investigate?

A I don’t believe so, no.

Q Did you at any point discuss the cracks with anyone else?

A Just our men. (Tr. 436).

It is not reasonable to expect that the general contractor will investigate every concern
informally made by a subcontractor’s employees. Rather, the proper procedure would have
been for McCarron, having been alerted to the potential problem by his employees, to make
an official request to Keating or directly to the structural engineer, to have the matter
investigated. Having failed to do this, Fabi failed to do what was feasible to abate the
violation.

Willfulness

A violation is willful if committed with intentional, knowing or voluntary disregard
for the requirements of the Act or with plain indifference to employee safety. L.E. Myers Co. ,
16 BNA OSHC 1037, 1046 (No. 90-945, 1993). A willful violation is differentiated from a
nonwillful violation by a heightened awareness, a conscious disregard or plain indifference to
employee safety. General Motors Corp., Electro-Motive Div. , 14 BNA OSHC 2064, 2068
(No. 82-630, 1991) (consolidated). A willful charge is not justified if an employer has made a
good faith effort to comply with a standard or to eliminate a hazard even though the
employer’s efforts are not entirely effective or complete. Keco Indus., Inc. , 13 BNA OSHC
1161, 1169 (No. 81-263, 1987).

The Secretary asserts that Fabi willfully violated the cited standard by ignoring signs
of distress and placing its employees at risk by proceeding to pour concrete before the
conditions had been evaluated. She analogizes this case to Arcadian Corp. , 20 BNA OSHC
2001 (No. 93-0628, 2004). In that case, management knew that “weep hole leaks” in the liner
of a urea reactor indicated that the liner was breached and in danger of exploding.
Nonetheless, it allowed the reactor to continue in operation. Finding the violation willful, the
Commission held that:

Absent any evidence that Arcadian had a good faith basis for concluding that
the leaks were caused by anything other than a breach, its failure to shut down
the reactor demonstrates a reckless disregard of employee safety....Their
decision to treat weep hole leaks as something other than warnings of a
hazardous breach without any reasonable basis in fact and, essentially, ignore
them was the equivalent of gambling with employee safety and was, indeed,
reckless.

20 BNA OSHC at 2019.

I find the Secretary’s reliance on Arcadian to be misplaced. In Arcadian , the only
purpose of the “weep holes” was to warn of a liner breach. Here, the record establishes that
cracks in the concrete are a standard occurrence and can have several benign causes,
including shrinkage and deflection. Thus, the mere fact that there were cracks is not
sufficient to conclude that McCarron had a heightened awareness that the slabs were in
distress. Indeed, McCarron testified that he concluded that the cracks were caused by a
normal deflection of the slabs which occurred when the shoring was cracked. (Tr. 246).
Moreover, there is nothing in the record to contradict McCarron’s testimony that he
investigated the cracks and found nothing sinister about them. While he might not have taken
his employees concerns seriously enough, and should have made a more thorough
investigation, the record fails to establish that he either had a heightened awareness of the
problem or exhibited intentional disregard to employee safety. In particular, I note that
McCarron had several relatives on site, including his brother, brother-in-law, and son. (Tr.
240, 360) Each of these people was exposed to the risk of death or serious physical harm
should the slabs collapse. Under these circumstances, I cannot conclude that Fabi willfully
failed to comply with the standard.

Despite the foregoing, there is no dispute that a collapse of the slabs caused by
improperly installed or maintained shoring could lead to death or serious physical harm.
Accordingly, I find that the Secretary has established a serious violation of 29 C.F.R. §
1926.703(a)(1). Citation 2, Item 1 is therefore affirmed as a serious violation.

Penalties

The Secretary proposed a penalty of $70,000.00 for the alleged willful violation set
forth in Citation 2, Item 1, and $7,000.00 for each of the serious violations of Citation 1.
These represent the maximum penalties allowed under the Act. See 29 U.S.C. §§ 666(a) and
(b).

When calculating an appropriate penalty, the Act requires that the Commission
consider the gravity of the violation, the employer’s size and history, and its good faith. 29
U.S.C. § 666(j). The primary consideration when determining an appropriate penalty is the
gravity of the violation. Trinity Indus. , 15 BNA OSHC 1481, 1483 (No. 88-2691, 1992). The
gravity of a particular violation depends upon such matters as the number of employees
exposed, the duration of exposure, the precautions taken against injury, and the likelihood
that an injury would result. Valdak Corp. , 17 BNA OSHC 1135, 1138 (No. 93-0239, 1995),
aff’d , 73 F.3d 1466 (8 th Cir. 1996). The record amply demonstrates the likelihood of death or
serious physical harm should a slab collapse. Moreover, there were many employees working
in or around the area, each of whom was exposed to the hazard. Therefore, I find each of the
affirmed violations to be of high gravity.

The record also demonstrates that, with over 240 employees, Fabi is a large
employer. Also, Fabi has a history of prior violations. (Tr. 1417). Finally, the record
demonstrates a pliant approach to safety that does not warrant credit for good faith. Fabi
failed to follow shop drawings when it was not convenient to do so, yet slavishly followed
them when it was convenient to do so, even though Fabi knew it was installing rebars in a
manner contrary to industry custom and practice. Fabi failed to take with sufficient
seriousness employee concerns about signs of distress in the slab, even though it knew or
should have known that reinforcing steel was not placed properly. Moreover, Fabi assumed
that it was safe to “crack” the shores based on extrapolations of concrete tests made days
after the “cracking” operations. Based on this record, I find that the Secretary properly
considered the statutory factors in its penalty proposals. The penalties for the affirmed items
in Citation 1 are therefore assessed as proposed, as set out below in the Order. With respect
to Citation 2, Item 1, because that item has been affirmed as serious instead of willful, the
penalty for that violation has been assessed in accordance with the other serious violations.

Findings of Fact and Conclusions of Law

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

ORDER

Based on the foregoing findings of fact and conclusions of law, it is ORDERED that:

1. Citation 1, Item 1, Instances (a) and (b), alleging serious violations of section
5(a)(1) of the Act, are AFFIRMED, and a total penalty of $7,000.00 is assessed for these two
instances.

2. Citation 1, Item 1, Instance (c), alleging a serious violation of section 5(a)(1) of the
Act, is VACATED.

3. Citation 1, Item 2, alleging a serious violation of 29 C.F.R. § 1926.703(a)(2), is
VACATED.

4. Citation 1, Item 5, alleging a serious violation of 29 C.F.R. § 1926.703(e)(1), is
AFFIRMED, and a penalty of $7,000.00 is assessed for this item.

5. Citation 2, Item 1, alleging a willful violation of 29 C.F.R. § 1926.703(a)(1), is
AFFIRMED as a serious violation, and a penalty of $7,000.00 is assessed for this item.

/s/

Covette Rooney

Judge, OSHRC

Dated: March 30, 2006

Washington, D.C.