J.A. Jones Construction Co.

Read the official release (oshrc.gov)

Plain-English summary

This case returned to the Commission after an earlier decision affirmed numerous serious, rather than willful, fall-protection violations at J.A. Jones Construction's Chicago high-rise project and remanded for item-specific penalties. On remand, the ALJ evaluated the fall distance, degree of employee exposure, employer size, good faith, and violation history for each item, assigning penalties from $200 to $600 that totaled $14,600. The Commission rejected the Secretary's attempt to amend the case to allege repeated violations because the issue had not been tried by consent, Jones had not had an opportunity to rebut substantial similarity, and the request came too late. It also rejected Jones's claim that the ALJ's findings were vague or unsupported and affirmed the remand decision.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.500(b)(1); 29 C.F.R. § 1926.500(c)(1); 29 C.F.R. § 1926.500(d)(1); 29 C.F.R. § 1926.500(e)(1)(ii).
• Outcome: Affirmed. The Commission upheld the ALJ's item-specific penalties totaling $14,600.
• Key point: Evidence of prior similar citations introduced to prove willfulness does not by itself show consent to try an unpleaded repeated-violation allegation.

Full text (OSHRC public release)

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. — 9th Floor
Washington, DC 20036-3419

FAX:
COM (202) 606-5050
FTS (202) 606-5050

SECRETARY OF LABOR,
Complainant,
v. : OSHRC Docket No. 87-2059
J.A. JONES CONSTRUCTION COMPANY, )

Respondent.

DECISION

BEFORE: FOULKE, Chairman; and MONTOYA, Commissioner.
BY THE COMMISSION:

This case is before the Commission for the second time. On February 19, 1993 the
Commission largely affirmed a decision by Administrative Law Judge Edwin G. Salyers. The
judge had concluded that Respondent, J.A. Jones Construction Company (“Jones”), violated
the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (“the Act”) by failing
to comply with the fall protection requirements set forth in 29 C.F.R. § 1926.500, but the
judge found that the violations were serious rather than willful in nature. On review of that
decision, the Commission concluded that the judge had not erred, but the Commission
remanded the case to the judge for further proceedings to determine the appropriate
penalties to be assessed for the instances of noncompliance with section 1926.500 in
question. J.A. Jones Constr. Co., 15 BNA OSHC 2201, 1993 CCH OSHD ¶ 29,964
(No. 87-2059, 1993).

In conformity with the remand order, Judge Salyers made explicit factual findings with
respect to the penalty assessment criteria prescribed in section 17(j) of the Act, 29 U.S.C.
§ 666(j), and he assessed penalties for each individual violation based on those findings. Both

2

parties filed petitions for review taking exception to the judge’s decision on remand, and the
Commission directed review. We affirm.

Jones contends that the judge’s factual findings are not sufficiently specific.1 In Jones’
view, the judge made vague and conclusory statements regarding the degree of employee
exposure to the hazardous conditions without relating his conclusions to the particular
allegations in question and without citing any supporting evidence. The Secretary filed a
cross-petition asserting that the judge erred in denying the Secretary’s motion to amend the
pleadings to allege that the violations were repeated in nature. The Secretary contends that
contrary to the judge’s decision, the issue of repeated violations was tried with the consent
of the parties and that granting the motion to amend would not require the taking of
additional evidence. Accordingly, the Secretary asks that the penalties be assessed in accor-
dance with the higher maximum penalty amount for repeated violations set forth in the
Act.2

Addressing the Secretary’s contentions first,3 we find no indication whatever in the
record that the parties tried by consent the unpleaded issue that the instances of violative

conduct were repeated as well as willful. Although the Secretary introduced evidence of prior

1Jones also requests that we review the judge’s decision on the same grounds that Jones previously set forth
in its petition for review of the judge’s original decision, and a copy of its earlier petition is attached to its
current petition. The refiling of Jones’ previous petition, however, does not set forth reasons for us now to
review those issues which we have already addressed, or expressly declined to address, in our first decision.
Accordingly, we exercise our discretion to limit our review to those arguments which relate to the subject of
our remand order, the amount of penalties to be assessed. Pennsylvania Steel Foundry & Machine Co., 12 BNA
OSHC 2017, 2019 n.3, 1986-87 CCH OSHD ¶ 27,671, p. 36,063 n.3 (No. 78-638, 1986), aff'd, 831 F.2d 1211
(3d Cir. 1987).

2At the time this case arose, section 17(a) of the Act, 29 U.S.C. § 666(a), provided that either a willful or
repeated violation could be assessed a penalty of up to $10,000 whereas the maximum penalty under section
17(b) for a serious violation was $1000. These amounts were subsequently raised to $70,000 and $7,000,
respectively, in the Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, § 3101 (1990).

3Although the Commission’s direction for review stated that a briefing order would issue, on further
consideration, we conclude that the questions before us at this time can be decided without briefs from the
parties. Although Commission Rule 93, 29 C.F.R. § 2200.93, provides that the Commission ordinarily will
afford the parties the opportunity to file briefs, the Commission retains discretion not to solicit briefs from
the parties. We further note that the Secretary has already stated the grounds for his motion to amend in a
supporting memorandum filed with the judge and that the parties also had the opportunity to present their
positions through their petitions for review. As the Commission observed in its prior decision in this case, the
Commission’s procedures for petitions for review satisfy the requirements of the Administrative Procedure Act,
5 U.S.C. § 557(c), that the parties be entitled to submit exceptions to an administrative law judge’s decision.
J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2204 n.6, 1993 CCH OSHD ¶ 29,964, p. 41,022 n.6 (No. 87-2059,
1993).

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violations of section 1926.500, that fact alone does not demonstrate that the parties “squarely
recognized” that they were litigating the unpleaded issue. Armour Food Co., 14 BNA OSHC
1817, 1823-24, 1987-90 CCH OSHD ¶ 29,088, p. 38,885 (No. 86-247, 1990). On the contrary,
the evidence of Jones’ compliance history was relevant to the pleaded allegation of
willfulness as well as the unpleaded charge that the violations were repeated in nature.
Indeed, the Secretary so concedes in his petition for review:

The Secretary’s purpose in introducing evidence of several previous citations
to Jones for violations of § 1926.500 was to establish employer knowledge of
the requirements of the cited standard, and therefore the willfulness of the
violations. The Secretary plainly relied on the similarity of the current viola-
tions to the hazardous conditions represented by the previous final orders, in
arguing willfulness.

(Emphasis in original). Since the evidence in question pertained to both the pleaded and
unpleaded issues, it cannot be said on the record here that the parties consented to try the
unpleaded issue of whether the violations were repeated. McWilliams Forge Co., 11 BNA
OSHC 2128, 2130, 1984-85 CCH OSHD ¶ 26,979, p. 34,669 (No. 80-5868, 1984).

The judge also properly determined that the record would have to be reopened if the
Secretary’s motion were allowed. A repeated violation exists where the employer has previ-
ously committed a substantially similar violation. The Secretary’s evidence that Jones had
previously failed to comply with section 1926.500 establishes a prima facie case that the
current and previous violations are substantially similar. Jersey Steel Erectors, 16 BNA OSHC
1162, 1167, 1993 CCH OSHD ¶ 30,041, p. 41,219 (No. 90-1307, 1993); Potlatch Corp., 7 BNA
OSHC 1061, 1063, 1979 CCH OSHD ¶ 23,294, p. 28,171 (No. 16183, 1979). A full
evidentiary record, though, does not exist unless the employer has had an opportunity to
introduce evidence to rebut the Secretary’s proof. See Stone Container Corp., 14 BNA OSHC
1757, 1762, 1987-90 CCH OSHD ¶ 29,064, p. 38,819 (No. 88-310, 1990). Because the issue
of repeated violations was not tried by consent, Jones could not have been aware of any
need to introduce rebuttal evidence showing lack of substantial similarity.

At this late stage in the proceedings, however, we do not consider it appropriate to
reopen the record to allow Jones to present a case in rebuttal. The Secretary had an

opportunity to raise the issue of the characterization of the violations when the Commission

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first reviewed the judge’s decision, after the judge had originally ruled that the violations
were not willful. At that time, the Secretary filed a petition for review arguing only that the
violations were willful in nature. The Secretary did not move to amend the pleadings, nor
did he make any other attempt to raise an issue relating to a repeated violation until after
the Commission remanded the case to the judge for the limited purpose of determining
penalties for violations characterized as serious but nonwillful. In these circumstances, we
consider the Secretary’s motion to be untimely, and we will not protract this matter for
further proceedings on an unpleaded issue.

We also conclude that Jones’ objections to the judge’s decision are without merit.
When we remanded this case to the judge, we noted that, generally speaking, gravity is the
most important factor in the assessment of a penalty. We also observed that the judge’s
original factual findings indicated that the gravity factor varied widely among the different
fall protection violations. We pointed out that in some instances employees performed their
work in close proximity to the hazardous conditions whereas in other instances the hazards
were simply accessible to employees in the area. Additionally, we noted that the fall
distances themselves differed from as little as 10 feet to as much as nine stories. We
therefore instructed the judge to decide the penalty assessment based on an evaluation of
the circumstances applicable to each individual instance of noncompliance with section
1926.500. 15 BNA OSHC at 2204, 1993 CCH OSHD at pp. 41,032-33.

In his decision on remand, the judge made explicit factual findings as to the fall
distance and degree of employee exposure with respect to each instance of violative conduct.
He then evaluated the gravity on a scale from low to moderate to high based on these
findings. In making these findings, the judge in turn relied on his original detailed and
extensive factual findings which we noted in our decision and which were largely based on
the testimony of the Secretary’s compliance officer. In further accordance with our remand
order, the judge also addressed and made specific findings regarding the other criteria for
penalty assessment set forth in section 17(j): the employer’s size, its history of prior
violations, and whether it acted in good faith. Based on consideration of all four factors, he

assessed penalties in a range of $200 to $600 for the various violations.

5

Contrary to Jones’ argument in its petition for review, the judge’s factual findings with
regard to the penalty assessment are clearly associated with each individual instance of
violative conduct. Indeed, we are unable to discern what Jones means by its contention that
the judge “did not connect [his] conclusions with the particular charges at issue.” In addition,
the judge’s findings on the penalty assessment are in part based on the evidentiary discussion
in his earlier decision in which the judge noted the pages of the hearing transcript and the
exhibits on which he was relying. We therefore reject Jones’ contention that the judge failed
to cite any evidence of record in support of his findings. In the circumstances, we also
conclude that the judge’s findings regarding employee exposure are sufficiently specific to
support his assessments. Lastly, the judge’s decision fully complies with the terms of our

remand order. Accordingly, we see no basis on which to disturb or set aside the judge's
findings, and we affirm his decision.

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Dated: December 15, 1993

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

One Lafayette Centre
1120 20th Street, N.W. — 9th Floor
Washington, DC 20036-3419

PHONE:
COM (202) 606-5100
FTS (202) 606-5100

SECRETARY OF LABOR,
Complainant,

v. : Docket No. 87-2059
J. A. JONES CONSTRUCTION CO.,

Respondent.

NOTICE OF COMMISSION DECISION

The attached decision by the Occupational Safety and Health Review Commission was issued on
December 15, 1993. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISHES
TO OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE
APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE OF THIS
DECISION. See Section 11 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 660.

FOR THE COMMISSION

FAX:
COM (202) 606-5050
FTS (202) 606-5050

/s/ Ray H. Darling, Jr.

December 15, 1993
Date
Ray H. Darling, Jr.
Executive Secretary

Docket No. 87-2059

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.

Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004

200 Constitution Ave., N.W.
Washington, D.C. 20210

John H. Secaras, Esq.

Regional Solicitor

Office of the Solicitor, U.S. DOL
Room 844

230 South Dearborn St.

Chicago, IL 60604

Robert D. Moran, Esq.
Law Offices

919 - 18th Street, N.W.
Suite 800

Washington, DC 20006

Administrative Law Judge

Occupational Safety and Health
Review Commission

Room 240

1365 Peachtree Street, N.E.

Atlanta, GA 30309-3119

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. — 9th Floor

Washington, DC 20036-3419

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 87-2059
J. A. JONES CONSTRUCTION CO.
Respondent.

NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION

The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on September 23, 1993. The decision of the Judge
will become a final order of the Commission on October 25, 1993 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received by the Executive Secretary on or before
October 13, 1993 in order to permit sufficient time for its review. See
Commission Rule 91, 29 C.F.R. § 2200.91.

All further pleadings or communications regarding this case shall be
addressed to:

Executive Secretary
Occupational Safety and Health
Review Commission

1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419

Petitioning parties shall also mail a copy to:

Daniel J. Mick, Esq.

Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004

200 Constitution Avenue, N.W.
Washington, D.C. 20210

If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
having questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.

FOR THE COMMISSION

/s/ Ray H. Darling, Jr.

Date: September 23, 1993
Ray H. Darling, Jr.
Executive Secretary

DOCKET NO. 87-2059
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.

Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004

200 Constitution Ave., N.W.

Washington, D.C. 20210

John H. Secaras, Esq.

Regional Solicitor

Office of the Solicitor, U.S. DOL
230 South Dearborn St.

Chicago, IL 60604

Robert D. Moran, Esq.
Law Offices

919 - 18th Street, N.W.
Suite 800

Washington, DC 20006

Edwin G. Salyers

Administrative Law Judge

Occupational Safety and Health
Review Commission

Room 240

1365 Peachtree Street, N.E.

Atlanta, GA 30309-3119

00103259719 :05

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 PEACHTREE STREET, N.E., SUITE 240
ATLANTA, GEORGIA 30309-3119

PHONE: FAX

COM (404) 347-4197 COM (404) 347-01
FTS (404) 347-4197 FTS (404) 347-011
SECRETARY OF LABOR,
Complainant,
v. : OSHRC Docket No. 87-2059

J. A. JONES CONSTRUCTION CO.,

Respondent.

DECISION AND ORDER ON REMAND

This case has been remanded by the Review Commission for reconsideration of the
penalties assessed in connection with the violations affirmed under 29 C.F.R. § 1926.500.
In particular, this court has been directed to evaluate the gravity factor for each individual
instance based upon specific factual findings. J. A. Jones Construction Co., _ BNA OSHC
_ 1993 CCH OSHD ¶ 29,964 (No. 87-2059, 1993).

Section 17(j) of the Occupational Safety and Health Act (29 U.S.C. § 651, et seq.)
requires the Commission in assessing penalties to give “due consideration” to the size of the
employer’s business, the gravity of the violation, the good faith of the employer, and the
history of previous violations. Each of these factors are not necessarily accorded equal

weight but can, in appropriate circumstances, serve to reduce a penalty assessment below

the maximum allowed by the Act. At the time of the Secretary’s inspection in this case, the
maximum penalty provided for a serious violation was $1,000.1

In assessing respondent’s size, good faith and previous history, this court concludes
respondent is not entitled to a penalty reduction for either size or good faith but should
receive a reduction for previous history under the circumstances of this case.

It is uncontroverted that respondent is a large construction contractor with
widespread operations throughout the United States and abroad. At the worksite in
question, respondent utilized its own employees together with those of numerous
subcontractors. At any given time, hundreds of employees were engaged at this project over
which respondent maintained control as the prime contractor. Accordingly, respondent is
not entitled to a reduction based upon size.

This court considered in its initial decision respondent’s “good faith” in connection
with its deliberations on the “willfulness” charge. While this court concluded respondent’s
conduct did not reach a sufficient level of malevolence to support a willful charge, it can
hardly be concluded on this record that respondent has demonstrated it acted in good faith.
Respondent did not take effective steps to insure that its fall protection system was installed
and maintained as required. It did not implement or enforce its policy which required
subcontractors to replace or repair fall protection devices which had been removed or
damaged by the subcontractors. It did not provide an accident prevention program which
included frequent and regular inspections to disclose and correct fall hazards on the
worksite. Its safety crew, which was responsible for repairing and maintaining the fall
protection devices, was inadequate to perform this function. Respondent had knowledge of
the foregoing circumstances which resulted in the widespread violations disclosed by the
Secretary’s inspection. Respondent is not entitled to any special considerations for reduction
of penalties based upon good faith.

In its decision in this case, the Review Commission assessed the circumstances of

respondent’s prior history in connection with its deliberation concerning the willful

1 The Act was amended by the Omnibus Budget Reconsideration Act of 1990, Public Law #101-508, Section
3101 (1990), which raised the penalty for a willful violation from $10,000 to $70,000 and for a serious violation
from $1,000 to $7,000. This amendment was not in effect at the time of the Secretary’s inspection in this case.

2

characterization of the charges. It noted that Jones had been inspected on numerous
occasions prior to the current inspection but concluded “the number and severity of Jones’
violations of § 1926.500 have been relatively inconsequential in comparison to the number
of inspections that OSHA had made at Jones worksites.” It further concluded “Jones’ prior
history of OSHA citations is not sufficient to place Jones on notice of any serious or
fundamental flaws in its overall safety program.” Id. at 41,030. The undersigned adopts the
Commission’s assessment of respondent’s prior history and will allow a reduction in penalties
based upon this factor.

In its remand decision the Commission notes that an assessment of the gravity of a
particular item depends upon such matters as the number of employees exposed, the
duration of the exposure, the precautions taken against injury, and the likelihood that any
injury would result. Kus-Tum Builders, Inc., 10 BNA OSHC 1128, 1132, 1981 CCH OSHD ¶ 25,738, p. 32,107 (No. 76-2644, 1981). It also notes:

A review of the judge’s factual findings indicates that there is a wide variation

in the magnitude of the gravity factor among the various fall protection

citation items. For example, in some instances no fall protection whatever was

in place whereas other items involve only improperly secured or overly flexible

railings or cables. The severity of employee exposure varies as well; some of

the hazardous conditions were simply accessible to employees in the area

whereas in other instances employees worked in close proximity to the fall

hazard. Similarly, the possible fall distances range from as little as 10 feet to

as much as nine stories.
J. A. Jones Construction Co., supra, at p. 41,032-33.

It is noted at the outset that Compliance Officer Payne who conducted this inspection
did not determine in each instance either the number of employees exposed to the
hazardous condition or the duration of the exposure. He did, however, determine in most
instances that the hazardous conditions were “accessible” to employees working in the area
or that employees were working “in close proximity” to these conditions. Some of the
photographs taken by Payne show employees in the hazardous areas (Exh. C-17). While this
circumstance makes it difficult to assess the gravity factor based upon exposure and will

result in significant reduction of the penalties assessed for each item, it is not fatal to the

Secretary’s case since exposure is only one of the factors to be considered in penalty
determinations.

The following determinations as to each cited item are based upon the findings made
in the body of this court’s initial decision (pages 22 through 41) and its findings of fact
(pages 54 through 88). The gravity determination in each case will depend upon the
following factors:

(1) The nature of the violative condition, i.e., whether there was a complete absence
of fall protection or a system where the railings or cables were improperly secured or overly
flexible.

(2) Whether employees worked in close proximity to the hazardous condition or the
condition was only accessible.

(3) The fall distance presented by the hazardous condition. This court concludes any

fall of 16 or more feet would result in serious injury or death.

The Charges Under § 1926.500(b)(1)
(Floor Openings and Holes)

Item 2(a)

Payne observed a floor opening which was not protected by a guardrail on one side.
The guardrails on the remaining sides were unstable and could be deflected with “slight
force.” Several employees were working near this opening and were exposed to a fall
distance of 16 feet which could result in serious injury or death in the event of a fall. The
gravity factor for this item is considered moderate, and a penalty of $400 is assessed.

Item 2(b)

Payne observed and photographed a floor opening at level minus 2, line H-19, which
was not fully protected since the guardrail did not completely surround the opening nor were
the existing guardrails stable. Employees of Jones, together with those of subcontractors,

were working in close proximity to this condition which presented a fall hazard of 16 feet.
The gravity factor of this condition is considered moderate, and a penalty of $400 is assessed.

Item 2(c)

Payne observed a floor opening enclosed by guardrails with no intermediate uprights.
He tested these railings, noted significant deflection, and concluded the railings were
unstable. The fall distance at this location was 10 feet, and the area was accessible to
employees using an operational stairway immediately adjacent to the opening. The gravity
factor for this item is considered low since no employees were directly exposed. A penalty

of $200 is appropriate.

Item 2(d)

A floor opening near a stairway did not have intermediate posts spaced at 8-foot
intervals and was not supported by cross-braces to minimize deflection causing the guardrails
to be unstable. The area was accessible, and the fall distance was 30 feet. Due to the
height of the fall distance, the gravity is assessed as low to moderate and a penalty of $300

is appropriate.
Item 2(e)

A floor opening at the street level was guarded by an unstable guardrail. Employees
were working in close proximity to this condition which presented a fall hazard of 16 feet.
The gravity is considered low to moderate, and a penalty of $300 is appropriate.

Item 2(f)

On the second floor Payne observed a partial guardrail system where parts of the
guardrail had been removed and replaced with a “caution” tape. This condition was

accessible to employees and presented a fall hazard of 16 feet. The gravity is considered low

5

since employees were not working in close proximity to the condition. A penalty of $200 is

appropriate.
Item 2(g)

At stairway No. 6 on the second floor of the building, Payne observed a floor opening
which was unprotected by any guardrails or toeboards. While the fall distance at this
location was 10 feet, employees were working in close proximity to this condition, thereby
increasing the potential for falls. Gravity is assessed as low to moderate, and a penalty of
$300 is appropriate.

Item 2(h)

A floor opening on the third floor was not protected by an adequate guardrail since
midrails and toeboards were missing and the system was unstable. This condition was
accessible to employees and presented a fall distance of 16 feet. The gravity is considered

low since there was no direct exposure, and a penalty of $200 is appropriate.

Item 2(i)

A floor opening on the third floor was protected by guardrails which had no
toeboards on two sides and were missing cross-braces to minimize deflection. This area was
accessible, and the fall distance was 16 feet. The gravity is considered low since there was
no direct exposure, and a penalty of $200 is appropriate.

Item 2(j)

Payne observed a floor opening on the fourth floor where the guardrails did not fully
extend around the opening. The space between the end post and the adjacent wall was
1½ feet. While this area was accessible and presented a fall distance of 16 feet, the

narrowness of the opening and the absence of direct exposure reduces the gravity factor to

low. A penalty of $200 is appropriate.
Item 2(k)

On the fifth floor Payne observed a floor opening protected by guardrails which were
unstable, had cracked midrails, and were missing toeboards. Employees were working in
close proximity to these guardrails, and the fall distance was five stories. The gravity with

respect to this item is considered moderate to high, and a penalty of $600 is appropriate.

Item 2(l)

A floor opening west of stairway No. 5 was protected by guardrails with unsecured
top and midrails. The condition was accessible to employees and presented a fall distance
of 16 feet. Since the evidence does not show direct exposure, the gravity is considered low.
A penalty of $200 is assessed.

Item 2(m)

A floor opening on the seventh floor was protected by an unstable guardrail system
with missing toeboards. This opening was accessible and posed a 16-foot fall hazard. Since
the evidence does not reflect immediate exposure, the gravity is assessed as low and a

penalty of $200 is appropriate.
Item 2(n)

On the seventh floor guardrails surrounding a floor opening were missing a midrail
and toeboards. While this condition posed a potential fall distance of seven stories, no
employees were directly exposed. The area was accessible, and the gravity is considered
moderate. A penalty of $400 is appropriate.

Item 2(o)

On the north side of the twentieth floor a floor opening was protected by a guardrail
which was not securely anchored to the floor and could be moved several inches with the
application of pressure. The railing was missing an intermediate upright. This area was
accessible to employees and presented a fall distance of 16 feet. Since there was no direct

exposure of employees, the gravity is considered low and a penalty of $200 is appropriate.
Item 2(p)

On the sixteenth floor employees were working near a floor opening where the
guardrails were unstable. The fall distance at this location was 16 feet, and the area was
accessible. Since the evidence fails to reflect direct exposure to this condition, the gravity

is considered low and a penalty of $200 is assessed.
Item 2(q)

On the eighth floor employees were working in close proximity to a floor opening
which had no guardrails on two sides. The fall distance at this location was 16 feet, and the
gravity is considered moderate. A penalty of $400 is appropriate.

Item 2(r)

Employees were working in close proximity to a floor opening on the third floor. The
guardrailing protecting this opening was unstable since it was not braced to minimize
deflections. Payne was able to pull the guardrail free with minimum exertion. The fall
distance at this location was 16 feet, and the gravity is considered low to moderate. A
penalty of $300 is appropriate.

The Charges Under § 1926.500(c)(1)
(Wall Openings)

Item 3(a)

On the south side of the fourth floor employees were working in close proximity to
a wall opening protected by wire rope. The top rope was hanging 29 inches above the floor,
and the bottom rope was 12 inches above the floor. Upon application of pressure, these
ropes could be deflected closer to the floor. In essence, this condition provided no fall
protection to employees. The fall distance was 50 to 60 feet, and the gravity is considered
moderate to high. A penalty of $600 is appropriate.

Item 3(b)

On the south side of the second floor Payne observed a wall opening near a material
hoist. This opening was not protected by any means of guardrails or ropes. It was used by
employees as a “travel way” and was accessible. The fall distance was 16 feet, and the

gravity is moderate. A penalty of $400 is assessed.

The Charges of § 1926.500(d)(1)

(Open-Sided Floors, Platforms, and Runways)
Item 4(b)

On the fifth floor employees were working in close proximity to an unguarded floor
edge. The cables on the guardrails had been removed from anchorage and were lying on
the floor. This condition exposed employees to a fall of five stories, and the gravity is
moderate to high. A penalty of $600 is appropriate.

Item 4(f)

On the eighth floor an open-sided floor was protected by wire ropes which were not
drawn tight to assure a minimum of deflection. The top rope was slack, and the bottom
rope deflected to the floor. The fall distance at this location was eight stories. This area
was accessible, but the evidence does not show direct exposure to this condition.

Accordingly, the gravity is considered moderate and a penalty of $400 is appropriate.
Item 4(g)

On the east side of the building at the ninth level, an open-sided floor was protected
by wire ropes which could be deflected with minimum pressure. The fall distance at this
location is nine stories. The area was accessible, but the evidence does not show any direct
exposure. Accordingly, the gravity factor is considered moderate and a penalty of $400 is

assessed.
Item 4(h)

On the southeast corner of the second floor employees were working in close
proximity to an open-sided floor which was protected by wire rope not drawn tight to assure
a minimum of deflection. The top ropes could be deflected to within 20 inches of the floor.
The fall distance at this location was two stories, and the gravity is considered moderate.

A penalty of $400 is appropriate.
Item 4(i)

At level minus 2 Payne observed guardrails which did not extend along the full length
of an opening under a ramp. There were no midrails at this location. The fall distance was
11 feet, and the area was accessible. Since the evidence does not show direct exposure, the

gravity is considered low and a penalty of $200 is assessed.

10

Item 4(j)

On the second floor of the West Podium Payne observed guardrailing around the
perimeter which was not securely anchored or braced to minimize deflection. This area was
accessible, and the fall distance was 16 feet. Since the evidence does not show direct

exposure, the gravity factor is considered low and a $200 penalty is considered appropriate.
Item 4(k)

At stairway No. 5 the landings or platforms between the first and second floors were
not equipped with midrails. This area was accessible to employees and presented the
potential for a 16-foot fall. Since the evidence does not reflect direct exposure, the gravity

is considered low and a penalty of $200 is appropriate.
Item 4(l)

On the south side perimeter of the second floor a guardrail did not fully extend
between two columns leaving an open space of approximately 5 feet. The fall distance at
this location was 16 feet, and the area was accessible. Since the evidence does not show

direct exposure, the gravity is considered low and a $200 penalty is appropriate.
Item 4(m)

On the second floor of the building employees were working in close proximity to an
open-sided floor protected by wire ropes which could be deflected to within 12 to 21 inches
of the floor. The fall distance at this location was two stories, and the gravity is considered
low to moderate. A penalty of $300 is appropriate.

11

Item 4(n)

On the second floor between columns A-19 and A-21 an employee was working in
close proximity to an open-sided floor. The wire ropes erected to protect the open-sided
floor were slack and could be deflected to within 12 to 21 inches of the floor. The fall
distance at this location was 16 feet. The gravity is considered to be low to moderate, and

a penalty of $300 is appropriate.
Item 4(o)

On stairway No. 6 between the second and third floors, the guardrail protecting the
stairway was missing a midrail. The fall hazard at this location was 15 feet. The condition
was accessible to employees, but the evidence reflects no direct exposure. Accordingly, the

gravity is considered low and a penalty of $200 is assessed.
Item 4(p)

On the north side of the third floor employees were working in close proximity to an
open-sided floor. This area was protected by a wood railing which lacked a midrail. The
fall distance at this location was three stories, and the gravity is considered moderate. A
penalty of $400 is assessed.

Item 4(q)

On the east side of the third floor an open-sided floor was surrounded by a wire rope
guardrail system. The ropes were not taut, and with minimum effort the top rope could be
deflected to within 21 inches of the floor and the bottom rope directly to the floor. The fall
distance at this location was three stories. The area was accessible, but the evidence reflects

no direct exposure. The gravity is considered moderate, and a $400 penalty is appropriate.

12

Item 4(r)

On stairway No. 1 between the third and fourth floors employees were working near
an open-sided floor which was not properly guarded since there were no midrails. The fall
distance at this location was 10 feet, and the gravity is considered low. A penalty of $200

is assessed.
Item 4(s)

A situation similar to that just described was observed on stairway No. 6. Employees
were working in close proximity to a floor opening whose guardrails were missing midrails.
The fall distance at this location was 10 feet, and the gravity is considered low. A penalty
of $200 is appropriate.

Item 4(t)

A similar situation to the foregoing was observed on stairway No. 1 between the
fourth and fifth floors. Employees were working in close proximity to a guardrail that
contained no midrails. The fall distance was 10 feet, and the gravity is considered low. A
penalty of $200 is appropriate.

Item 4(u)

On the west side of the fifth floor employees were working in close proximity to an
open-sided floor guarded by perimeter ropes that were not drawn tight and could be
deflected to within 9 inches of the floor. The fall distance at this location was five stories,
and the gravity is considered moderate to high. A penalty of $600 is appropriate.

13

Item 4(v)

On the west side of the sixth floor employees were working near an open-sided floor.
The guardrails at this location were unstable and could be deflected with minimum effort.
The fall distance was six stories, and the gravity is considered moderate to high. A penalty

of $600 is appropriate.
Item 4(w)

On the northeast corner of level 7½ a floor opening was not guarded by a proper
guardrail. The wire rope, which was intended to serve as the midrail, was not placed midway
between the top rail and the floor. The fall distance at this location was 7” stories. The
area was accessible, but the evidence does not reflect any direct exposure. The gravity is

considered moderate, and a penalty of $400 is appropriate.
Item 4(x)

On level 7½ Payne observed an open-sided floor which was not protected by proper
guardrails since the midrails were missing. The fall distance at this location was 7½ stories.
The area was accessible, but the evidence does not reflect any direct exposure. The gravity
is considered moderate, and a penalty of $400 is appropriate.

Item 4(y)

On the north side of the eighth floor a floor opening was guarded by perimeter cables
which sagged to within 18 inches of the floor. This condition provided no fall protection but
only aggravated the situation. Employees were working in close proximity to the edge, and
the fall distance was eight stories. The gravity is considered moderate to high, and a $600
penalty is assessed.

14

Item 4(z)

On the south side of the ninth floor an open-sided floor near a job trailer was
guarded by wire rope. The top rope sagged to within 23 inches of the floor, and the
midrope was lying on the floor. The fall distance at this location was nine stories. This area
was accessible to employees, but the evidence does not reflect any direct exposure. The

gravity is considered moderate, and a $400 penalty is assessed.

The Charges of § 1926.500(e)(1)(ii)

(Stairway Railings and Guards)

Item 5(a)

On the twelfth floor a stairway had no protective railings as required by the standard.
The fall distance at this location was 16 feet. The evidence reflects no exposure at this
location, but the area was accessible. The gravity is considered low, and a penalty of $200

is appropriate.
Item 5(b)

A stairway on the twelfth floor was missing a guardrail on the left side. The evidence
reflects no direct exposure at this location, but the area was accessible. The gravity is

considered low, and a $200 penalty is appropriate.

Item 5(c)

A stairway on the south side of the twelfth floor was missing a railing on the left side.
No direct exposure of this condition is disclosed in the record, but the area was accessible.
The fall distance was 16 feet. The gravity is considered low, and a $200 penalty is
appropriate.

15

CONCLUSIONS AND ORDER

In view of the foregoing, the citation items discussed above are affirmed as serious.

The gravity level and penalties are assessed as follows:

Citation Item Gravity Penalty Assessed
2(a) Moderate $400
2(b) Moderate 400
2(c) Low 200
2(d) Low to Moderate 300
2(e) Low to Moderate 300
2(f) Low 200
2(g) Low to Moderate 300
2(h) Low 200
2(i) Low 200
2(j) Low 200
2(k) Moderate to High 600
2(l) Low 200
2(m) Low 200
2(n) Moderate 400
2(o) Low 200
2(p) Low 200
2(q) Moderate 400
2(r) Low to Moderate 300
3(a) Moderate to High 600
3(b) Moderate 400
4(b) Moderate to High 600
4(f) Moderate 400
4(g) Moderate 400
4(h) Moderate 400
4(i) Low 200
4(j) Low 200
4(k) Low 200
4(l) Low 200
4(m) Low to Moderate 300
4(n) Low to Moderate 300
4(o) Low 200
4(p) Moderate 400
4(q) Moderate 400

Citation Item Gravity Penalty Assessed
4(r) Low $200
4(s) Low 200
4(t) Low 200
4(u) Moderate to High 600
4(v) Moderate to High 600
4(w) Moderate 400
4(x) Moderate 400
4(y) Moderate to High 600
4(z) Moderate 400
5(a) Low 200
5(b) Low 200
5(c) Low 200

Total $14,600

SO ORDERED.

EDWIN G. SALYERS
Judge

Date: September 13, 1993

17

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET. N.W.
4TH FLOOR
WASHINGTON. D.C. 20006-1246
FAX 8/ (202) 634-4008

April 25, 1990

IN REFERENCE TO SECRETARY OF LABOR v.

J. A. Jones Construction Co.

OSHRC

DOCKET NO. 87-2059

NOTICE IS GIVEN TO THOSE LISTED BELOW:

Daniel J. Mick, Esq.

Counsel for Regional Trial Litigation
Office of the Solicitor, USDOL

200 Constitution Ave., N. W., Room S-4004
Washington, D. C. 20210

• John H. Secaras, Regional Solicitor
  Office of the Solicitor, USDOL

230 South Dearborn Street

Chicago, IL 60604

Robert D. Moran, Esquire
Cooter & Gel

1201 New York Avenue, N.W.
Suite 900
Washington, D.C. 20005

Judge Edwin G. Salyers
OSHRC

1365 Peachtree Street, N.E.
Suite 240

Atlanta, GA 30309

NOTICE OF DOCKETING

Notice is given that the above case was
docketed with the Commission on
4/25/90 - The decision of the

Judge will become a final order of the
Commission on 5/25/90 unless a
Commission member directs review of the
decision on or before that date.

Petitions for discretionary review should be
received on or before 5/15/90- in
order to permit sufficient time for their
review. See Commission Rule 91, 29 C.F.R.
sec. 2200.91. Under Rule 91(h) petitioning
corporations must also file a declaration of
parents, subsidiaries, and affiliates.

All pleadings or other documents that may be
filed shall be addresses as follows:

Executive Secretary

Occupational Safety and Health
Review Commission

1825 K St., N.W., Room 401

Washington, D. C. 20006-1246

A copy of any petition for discretionary
review,must be served on the Counsel for
Regional Trial Litigation, Office of the
Solicitor, USDOL, 200 Constitution Ave.,

N.W., Room S4004, Washington, D. C. 20210.

If a Direction for Review is filed the Counsel
for Regional Trial Litigation will represent
the Department of Labor.

FOR THE COMMISSION

fey A Sees,

Ray H. Darling, Jr.
Executive Secretary

(3/90)

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 PEACHTREE STREET, N.E.. SUITE 240
ATLANTA, GEORGIA 30309-3119

PHONE. Fax
COM (404) 347-4197
FTS (404) 347-4086

SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket No. 87-2059

J. A. JONES CONSTRUCTION CO.,

Respondent.

APPEARANCES:
Rafael Alvarez, Esquire, and Susan J.
Bissegger, Esquire, Office of the
Solicitor, U. S. Department of Labor,
Chicago, Illinois, on behalf of
complainant.
Robert D. Moran, Esquire, Cooter and Gel,

Washington, D. C., on behalf of
respondent.

DECISION AND ORDER

SALYERS, Judge: J. A. Jones Construction Company
(hereinafter "respondent" or "“Jones") is a large general
contractor with home offices located in Charlotte, North
Carolina. During the period relevant to this case, Jones was
engaged as the prime contractor at a huge construction site
located at 900 North Michigan Avenue in Chicago, Illinois.
The project was a planned multi-level, 67-story tower, with

two adjacent 10-story towers at either end (Exs. R-9, R-10).

The adjacent structures were known respectively as the east
and west podiums.! Each floor in the tower was approximately
the size of three football fields (Tr. 1787).

Jones began construction of this complex in June 1986.
The plan called for the first 30 stories of the main tower to
be constructed of structural steel. At the time of the
Secretary's inspection in May 1987, structural steel assembly
was in progress on the upper levels of the main tower which
had reached the 26th level or floor.2 Most structural steel
operations below the 26th floor had been completed. The west
podium was at the tenth level and the east podium had not yet
been built. Kelley Steel Erectors, one of approximately 19
subcontractors at the jobsite, was in charge of all steel
erection. Upon completion of the steel erection, it was
Kelley's responsibility to install fall protection devices
around the perimeter of each floor. This was accomplished by
welding bolts to the steel columns which were then used to
string wire rope (or cable) around the outside perimeter (Tr.
244). Once this perimeter protection was installed by Kelley,
it then became Jones' responsibility to maintain the integrity

of the perimeter protection to insure that the cable remained

taut and stable. It was also Jones' responsibility to
1
Also referred to in the record as "atriums."
2

The terms "level" and "floor" are used interchangeably
in the record.

install and maintain fall protection devices around floor
openings and stairways on all completed floors (Tr. 81-82,
154, 160, 375, 1276-1277, 1776-1777, 2521, 2591). It was
Jones' policy to require each subcontractor who damaged or
removed a fall protection device to reinstall or repair the
device or to alert Jones' supervisory personnel so that Jones!
safety crew could accomplish this task (Tr. 1265, 1508, 2249,
2253).

On May 6, 1987, an employee of Kelley fell to his death
while working on the main tower's fifth level. This incident
was reported to the Occupational Safety and Health
Administration Area Office and precipitated an inspection
under the provisions of the Occupational Safety and Health
Act of 1970 (29 U.S.C. 651, et seq.). Compliance Officer
Ronald Payne conducted this inspection which commenced on May
6 and concluded June 9, 1987. Payne was assisted from time to
time by Safety Supervisor Phillip L. Colleran.

Following Payne's inspection, the Secretary of Labor
issued to respondent on November 4, 1987, willful citation and
notification of penalty no. 1 charging respondent with 76
violations of the Act's fall protection and accident
prevention standards. Specifically, the Secretary alleged
that respondent failed to provide for frequent and regular
inspections of the jobsite [29 C.F.R. § 1926.20(b)(1) and 29
C.F.R. § 1926.20(b)(2)]; failed to adequately guard 18 floor

openings with standard railings and toeboards [29 C.F.R. §

1926.500(b)(1)]; failed to guard two wall openings in a way
which would reduce the danger of falling [29 C.F.R. §
1926.500(c)(1)]; failed to guard 26 sides of open-sided floors
with standard railings or the equivalent protection [29 C.F.R.
§ 1926.500(d)(1)]; failed to guard three stairways with at
least one stair railing [29 C.F.R. § 1926.500(e) (1) (ii)]; and
failed to guard open-sided floors with toeboards on the
outside perimeter of the main tower and the atriums (29
C.F.R. § 1926.500(f) (1)). The citation and complaint were
amended by order of this Administrative Law Judge on
December 28, 1988, to incorporate 29 C.F.R. § 1926.500(d) (1)
for item numbers 51 through 76 and to incorporate 29 C.F.R. §
1926.500(b)(1) for item numbers 77 and 78.3 The citation
proposed an abatement date of November 9, 1987, for all
violations, with proposed penalties totalling $259,000.

After extensive discovery and pretrial proceedings, the
case was tried over an ll-day period in Chicago. The record
consists of a transcript containing 2,648 pages and 40
documentary exhibits.

Respondent contests all aspects of the Secretary's
charges and contends that the Secretary did not carry her

burden of proof, did not observe applicable requirements of

3

The original citation designated items by number and
alphabetical letter. In her complaint, the Secretary modified
the designation method by eliminating the alphabetical letters
and using a numerical equivalent with the items designated
from 1 to 78.

law and committed other errors during the course of her
inspection and prosecution of this case which significantly
prejudiced the rights of respondent. Each cited item will be
considered separately giving due regard to the evidence and

respondent's contentions.
ITEM 1 - ACCIDENT PREVENTION PROGRAM

The complaint alleges that "[o]n or about May 6 through

June 9, 1987:"

Respondent violated 29 C.F.R. Section
1926.20(b) (1) and (2) as stated in subparagraph (a)
above, in that: (1) a safety program was not
initiated and maintained to provide compliance with
applicable safety and health standards, including
but not limited to, 29 C.F.R. 1926, Subpart M-Floor
and Wall Openings, and Stairways, and more
specifically 29 C.F.R. 1926.500(b) (1), (c) (1),
(d)(1), (e)(1) and (f)(1); and, (2) an accident
prevention program was not initiated and maintained
to provide frequent and regular inspection of the
jobsite, materials, and equipment, including but not
limited to inspection and perimeter rope protection
and other fall protection systems for damage and/or
defects.

Section 1926.20 of 29 C.F.R., entitled "General safety

and health provisions," provides:

(b) Accident prevention responsibilities. (1)
It shall be the responsibility of the employer to

initiate and maintain such programs as may be
necessary to comply with this part.

(2) Such programs shall provide for frequent
and regular inspections of the job sites, materials,
and equipment to be made by competent persons
designated by the employers.

The Secretary's position concerning this charge is
outlined in the testimony of Philip L. Colleran, a safety
supervisor in the OSHA Area Office, who assisted Compliance
Officer Payne in the inspection. Colleran has been employed
by OSHA for 15 years and is a safety supervisor in the Chicago
North Area Office (Tr. 753). He has conducted over 2,000
inspections, most of which have been in the field of
construction (Tr. 760). He has participated in numerous
training programs and has conducted seminars in fall
protection (Tr. 757-759). At Payne's request, he visited
respondent's work site on two occasions to give a “second
opinion" concerning the prevalence of violations (Tr. 763).
His main function, however, was to review and evaluate
respondent's safety program to determine if respondent had
violated 1926.20(b)(1) and (2). Colleran determined that
respondent did have a "comprehensive" written safety program
(Tr. 765) but did not conduct frequent and regular
inspections to insure that employees were protected in
accordance with the fall protection standards (Tr. 766).

Colleran's conclusion that respondent's inspection
program was inadequate was based upon his premise that the
numerous instances of violations in existence at the work
site, as reported to him by Payne, constituted evidence that
respondent was not inspecting and correcting these
deficiencies (Tr. 766). In his discussions with James

Jackson, Chris Shanahan and Jim Jennings during his

walkaround, he concluded that Jackson was too busy with other
matters to make regular and frequent inspections of the
jobsite (Tr. 768, 775, 792). He also concluded that Jones!
"subcontractors responsibility" policy requiring
subcontractors to replace or repair missing or defective fall
protection devices was ineffective since this policy was not
followed in actual practice.

Respondent has a comprehensive safety program embodied in
its corporate safety manual (Ex. C-15). Section 1 sets forth
respondent's intention to "provide a protective standard
beyond the requirements of federal, state and local laws" and
that "compliance with safety regulations is essential to the
effectiveness" of its project safety program (Ex. C-15, p. 1-
1).

Sections 2, 3, 4 and 5 outline the duties and
responsibilities of respondent's supervisory personnel with
respect to safety and designate the project manager at each
site as the person having the primary accountability for
jobsite safety (Ex. C-15; p. 2-4). This section further
provides for safety training for all safety personnel from the
construction manager to the field safety engineer (Ex. C-15,
p-. 2-5).

Section 3 contains the position descriptions for all
safety personnel and delineates their respective duties. This

section describes the duties of a safety inspector who

coordinates "safety and first aid on a project" and lists as

primary responsibilities (Ex. C-15, p. 3-15 and 3-16):

2. Conduct daily surveys of J. A. Jones' and
   contractors'/subcontractors' operations to
   ensure compliance with OSHA and state safety
   standards and regulations. Identify safety
   defects and initiate corrective action by
   responsible supervisor.

3. Maintain current knowledge of all applicable
   OSHA standards and regulations; maintain
   current knowledge of all applicable state or
   other governmental safety and health standards
   and regulations; ascertain that all subordinate
   personnel are appropriately knowledgeable;
   coordinate application and administration of
   such requirements at such project site.

---

13. Keep area safety supervisor advised in timely
    manner of project safety program progress or
    unresolved safety problems.

Section 5 contains what is referred to in the record as
respondent's “subcontractor responsibility" which the
Secretary urges is a primary cause of the alleged deficiencies
in this case. In essence, this section requires each
subcontractor to comply with all OSHA and state safety
regulations and holds them accountable for any infractions as
follows (Ex. C-15, p. 5-2, 5-3, 5-4):

J. A. Jones will monitor the safety performance of

the contractors working under its direction. When

violations of the statutory safety requirements,

J. A. Jones project safety procedures,or the owner's

safety regulations are observed, the responsible

contractor(s) shall be informed if possible and a

Notice of Non-compliance shall be prepared by the

Safety Representative or Safety Coordinator for

signature by the Project Manager. Each violation

8

observed shall be identified and a brief description
of the violation and the exact location shall be

included in the Notice.

---

If the contractor fails to correct the conditions
described in the Notice of Non-compliance within the
time specified, a second Notice of Non-compliance
should be issued.

If no action is taken by the contractor in the time
set forth in the second Notice, a meeting should be
scheduled with the contractor's superintendent, the
J. A. Jones Project Manager, the Safety
Representative or Safety Coordinator. This meeting
should result in a documented agreement of the
contractor's intended action and timing to correct
the violation(s).
Failure to reach agreement, or failure to correct
the violation, shall be documented, and the matter
referred to the appropriate J. A. Jones Construction
Manager for resolution with the subcontractor's
senior management.

---

After the second Notice of Non-compliance form has
been issued and the subcontractor still fails to
correct the safety violation creating a hazard for
persons or property, J. A. Jones can perform, or
cause to be performed, the necessary work and
unilaterally backcharge the subcontractor.

Section 6 deals with safety education and provides for

regular safety meetings as follows (Ex. C-15, p. 6-1):

Tool Box Safety Meetings shall conform to the
following guidelines:

2 Weekly meetings shall be conducted
preferably on Monday or Tuesday mornings
before work begins for the day.

2 The subject material developed by the
Safety Representative shall be typed,
reproduced, and distributed to each
foreman. (Information for Tool Box Topics

9

shall be distributed regularly by the
Corporate Safety Department).

• The subject material shall be pertinent to
  the work being performed.

• The meetings shall be conducted by each
  Craft Supervisor with his crew at the time
  designated, using the subject material
  furnished.

• The meetings shall provide employees with
  the opportunity to ask questions regarding
  safety.

The Project Manager/Superintendent and/or Safety

Representatives, and other supervisory personnel

will regularly attend these meetings.

Section 26 delineates the measures required to protect
employees from fall hazards pertaining to "floors, wall
openings and stairways." This section defines, in
considerable detail, what steps must be taken to install and
maintain fall protection devices and parallels the
specifications established in the cited OSHA standards. It
specifically requires (Ex. C-15, p. 26-1 to 26-12):

1. The use of standard railings consisting of top

rail, intermediate rail, toeboard and posts.

2. The anchoring of post to assure that the system

can "withstand a load of at least 200 pounds
applied in any direction at any point on the

top rail with a minimum of deflection.

3. Cables should be taut to meet minimum
   deflection requirements.

4. The need for toeboards, stair railings and
   handrails.

5. The necessity for guarding floor openings, wall
   openings, stairways and opensided floors.

10

In addition to respondent's corporate safety policy,

Jones also developed a safety program for the work site at 900

Michigan Avenue (Ex. C-11). This program provided:

A representative from the Safety Department will
tour the Project on a daily basis. All safety
violations are documented and given to J. A. Jones
Project Superintendent for implementation. All
subcontractor safety violations found will be
documented, copies of violations will be sent
immediately to responsible subcontractor and J. A.
Jones Superintendent.

It further provided for regular safety meetings (Ex.

C-11):

A.

J. A. JONES SAFETY MEETINGS:

Meetings are held at the beginning of the shift on
Mondays and attended by safety personnel and J. A.
Jones workers. Items of concern are discussed by
craft foremen and documented.

J. A. JONES SUBCONTRACTORS SAFETY MEETING:

Meetings are held at 10:00 a.m. each Monday in
the Safety Office. Stewards from
subcontractors discuss safety problems common
to all, and agree to solutions as a group.
J.A. Jones Safety Personnel attend these
meetings, directs and documents problems and
interfaces with management personnel to make
necessary corrections.

J. A. JONES SCHEDULE COORDINATION MEETING:

Meetings are held at 1:00 p.m. each Tuesday to
discuss progress in the schedule by
subcontractor project management. The meeting
is also attended by J. A. Jones’ safety
personnel who discuss problems that are common
to all of the subcontractors.

11

The record discloses that respondent took steps to
implement its corporate safety policy at this work site. It
employed two full-time safety supervisors, James Jackson and
Pat Conroy,* who worked directly under the project manager to
monitor and coordinate respondent's safety program. It
provided weekly safety meetings for its craft employees, the
union stewards and the subcontractors during which safety was
the principal topic of discussion (Tr. 1692, 1693, 2588).
Respondent's safety supervisors attended the weekly stewards’
meeting which lasted from 30 minutes to an hour and provided
the stewards an opportunity to bring safety concerns to the
attention of management (Tr. 1700). Respondent employed a
full-time safety crew consisting of six carpenters and six
laborers whose sole function was to construct and maintain
safety devices throughout the site (Tr. 1779, 1815).

Jackson and Conroy operated from a small trailer but
tried to keep their "office time" to a minimum so that they
could spend as much time as possible "in the field," i.e.,
walking the floors of the building or inspecting for hazards
(Tr. 1701). Jackson acknowledged that it was common practice
for subcontractors to remove or damage fall protection devices
and "just walk away and leave it" (Tr. 1793), and that he
encountered this circumstance during his inspection tours

(Tr. 1792-1793). He testified, however, that he was always

4
Conroy did not appear as a witness.

12

on the look out for missing or defective fall protection
devices and would use a two-way radio system to advise the
carpenter foreman of any unsafe conditions so that the foreman
could arrange for immediate repair by the safety crew (Tr.
1702, 1703). Jackson testified he spent from 65 to 75 percent
of his time “in the field" (Tr. 1722, 1802) making
inspections, which he considered to be "the most important
part of the job" (Tr. 1803). Jackson's responsibility,
however, included a host of other duties which encompassed
first aid, sanitation and security. It was not uncommon for
the other duties to disrupt or interfere with his attempts to
inspect the work site (Tr. 1722, 1787-1790).

Jackson admits that he had a conversation with Colleran
concerning the need to.spend more time inspecting for fall
hazards (Tr. 1720) but denies that he made an admission that
his other duties prevented him from adequately performing this
function (Tr. 1721-1723). He admits that fall protection
hazards were raised at the stewards' safety meetings but
maintains that this topic was broached by the safety
supervisors and not by the stewards (Tr. 1724, 1820). He also
denies that fall protection hazards were brought to his
personal attention by Christopher Shanahan and James Jennings
on a regular and frequent basis (Tr. 1725). He admits that
Chris Shanahan made frequent requests for additional members
to be added to the safety crew but surmises that this was

merely an attempt to increase employment of union carpenters

13

on the project rather than a legitimate concern for the crew's
capacity to perform its safety responsibilities (Tr. 1737-
1738, 1818-1819).

Walter E. Wrobleski was the project manager at the
Michigan Avenue site and has 18 years' experience in the
construction industry (Tr. 2581). He described the company
policy of conducting weekly subcontractor safety meetings and
subcontractor coordination meetings (Tr. 2583); the minutes
of which were received, reviewed, and filed in his office
(Exs. R-11, R-12; Tr. 2584). At each of these meetings,
safety items were "the first order of business" (Tr. 2588).
The responsibility for making safety inspections of the work
site rested primarily with the safety superintendents (or
engineers) but also included respondent's other supervisory
personnel who also made inspections (Tr. 2589). Wrobleski
made an accounting review of company records to determine the
number of manhours expended on the installation and repair of
safety rails and barricades (Tr. 2592). During the period in
question, respondent averaged 535 manhours per week in this
regard (Tr. 2594). He considered this to be an adequate
resource allocation to accomplish respondent's safety policies
(Tr. 2596). As the project superintendent, it was his
testimony that he was not made aware of any serious or on-
going safety concerns emanating from respondent's failure to

inspect and repair fall protection devices (Tr. 2616-2618).

14

William McGuire has been a carpenter for 24 years and
worked for Jones at the Michigan Avenue site from the time of
its inception (Tr. 2472-2472). In January 1987, he was given
the job of foreman in charge of a safety crew (Tr. 2477),
which was responsible for "the first ten floors
including the west podium" (Tr. 2481). It is important to
note, however, that his area of responsibility did not include
the upper floors of the tower which was the area served by mr.
Shanahan's crew (Tr. 2486, 2490). McGuire regularly
conducted safety meetings with his crew (Tr. 1486), at which
everyone was afforded the opportunity to bring up safety
concerns (Tr. 2487). He and his crew of about a dozen were
responsible for spotting and correcting all missing or
defective fall protection devices in their area of
responsibility (Tr. 2477-2481). He received instructions from
the carpenter foreman by means of a two-way radio: when a
safety matter required attention and would respond in "a
matter of minutes" (Tr. 2488-2489). Based upon his
experience, it was his opinion that Jones dedicated "a great
deal more manpower" to accomplish safety objectives than he
had witnessed on other jobs (Tr. 2494).

Christopher Shanahan began work as a carpenter at the
Michigan Avenue site in October 1986 (Tr. 2226). In December,
he was designated the carpenter steward and was assigned to
the safety crew in the main tower (Tr. 2227-2228). This crew

was responsible for constructing and repairing guardrails and

15

maintaining wire rope protection around openings and floors in
the main tower above the tenth floor (Tr. 2229-2232).
Shanahan received no instructions from respondent's
supervisors concerning his duties or those of his crew with
respect to inspecting the jobsite for safety hazards. He
considered this to be a function of "the guy in the safety
office" (Tr. 2245-2246). He would, however, look for safety
hazards when not otherwise engaged in work assigned by the
carpenter foreman and would repair or replace theses items as
time permitted (Tr. 2247-2248, 2332). He described, in his
testimony, the constant problem resulting from subcontractors
removing or damaging fall protection devices without restoring
or replacing them (Tr. 2243, 2262, 2332). On several
occasions, he voiced his concern in this regard directly to
the safety supervisors but was always told that “whoever took
it down puts it back up" (Tr. 2244, 2249, 2253-2254, 2265).
Shanahan explained his concerns to the safety supervisors that
the other crafts did not have the skills or tools to replace
or repair the devices, but his concerns were largely ignored
and no action was taken (Tr. 2243-2244, 2254). During the
period preceding Payne's inspection, Shanahan's safety crew
consisted of three carpenters and one laborer (Tr. 2257-2258).
He considered this allocation totally inadequate to accomplish
the task of installing and repairing safety devices in the
numerous floors of the main tower to which it was assigned

but was give no additional members to accomplish this task

16

(Tr. 2341-2342). Shanahan raised the problem of guardrails
and ropes at least once a month at the stewards! safety
meeting (Tr. 2249).

Casimir Vrasic is the business representative for the
Carpenters Union and had jurisdiction over the carpenters
employed at the Michigan Avenue work site (Tr. 1880). He
makes random visits to work sites where carpenters are
employed (Tr. 1881). During these visits, he makes safety
checks with the union steward; and, if hazardous conditions
are disclosed, he discusses this with management officials and
attempts to resolve the problem (Tr. 1882-1883). If
resolution can not be achieved on a voluntary basis, he
refers the matter to OSHA (Tr. 1889).

During the period preceding Payne's inspection, Vrasic
visited respondent's work site on several occasions5 and
raised safety concerns about guardrails and floor openings
with Bill Wheeler, respondent's carpenter foreman (Tr. 1904,
1906, 1912, 1914). On occasions, he discussed with Wheeler
the adequacy of the safety crews to perform its
responsibilities (Tr. 1937) and the need to maintain and

repair fall protection devices (Tr. 1927). On the morning of

5

Vrasic gave conflicting testimony concerning the
frequency of his visits to the work site. Initially, he
testified his visits were "numerous" (Tr. 1890), but later
clarified this to twice a month (Tr. 2060). While his
testimony was discredited somewhat on this point, this court
concludes that he did visit the work site on several occasions
and discussed safety concerns with management officials.

17

the accident, he visited the work site in response to a
complaint from Shanahan that his crew was falling behind on
its safety work and needed more assistance (Tr. 1941). He
toured the site with Shanahan and observed a number of
conditions which he considered hazardous. Following this
tour, he prepared a memorandum containing the substance of his
observations which included references to missing guardrails
and sagging wire ropes (Ex. C-27).

James Jennings was the electricians' steward at the
project and has 15 years' experience in the trade (Tr. 1184).
He testified concerning an on-going problem at the site of
employees being struck by objects falling from upper floors
and decks (Tr. 1212, 1213). This problem was discussed with
Jackson or Conroy and was also brought up at safety meetings
(Tr. 1218-1220). Installing toeboards to correct this problem
was suggested at the safety meetings (Tr. 1223) but was
rejected on grounds that toeboards were not required around
the perimeter of the building and that it was the
subcontractors' responsibility to assure that objects were not
"kicked off the deck" (Tr.1238). Jennings also confirmed the
"on-going" problem of missing or defective guardrails and wire
ropes (Tr. 1251, 1273). When this problem was presented to
respondent's safety personnel or brought up in safety
meetings, the response was always that it was the
subcontractors' responsibility to replace or repair the

missing or defective devices (Tr. 1256-1258). Jennings voiced

18

his concerns to respondent's safety supervisors that this
policy “wasn't working, that giving everybody this
responsibility, nobody was doing it" (Tr. 1265-1266). When
the job expanded in the Spring of 1987, Jennings noted an
alarming increase in fall protection hazards and brought this
to the attention of Conroy or Jackson five to ten times per
week (Tr. 1486).

Jennings believed that the size of the safety crew was
inadequate to accomplish the inspection and repair of fall
protection devices throughout the working areas of the
building (Tr. 1277-1278, 1285). He was present when Shanahan
brought this problem to the attention of safety personnel
"time after time" with no positive results (Tr. 1361-1362).

Peter B. Zimmer is an engineering manager for Aetna Life
and Casualty Company (Tr. 1089), respondent's insurance
carrier for the last 25 years (Tr. 1091). Zimmer made
periodic inspections of respondent's work sites to evaluate
safety practices and to assist respondent in loss prevention
and control. On January 21, 1987, Zimmer inspected the
Michigan Avenue work site and noted a number of loose
perimeter cables on the upper floor levels. He tested these
cables by using pressure applied by hand (Tr. 1097) and
determined that these conditions were unsafe. He discussed
this condition with respondent's management personnel
(Wrobleski, Conroy and Jackson) (Tr. 1095) and included it in

a written report (Ex. C-12, p. 3). On April 28, 1987, Zimmer

19

returned to the work site and found this same condition. Once
again, he discussed the problem with respondent's management
and noted in his report that perimeter cables should be
checked and tightened to provide for employee safety (Ex.
C-13, p. 4; Tr. 1105, 1106).

The voluminous and often conflicting testimony in this
case has complicated the task of resolving the facts with
respect to this issue. Resolution of the matter requires a
credibility determination with respect to the testimony of
Jackson, Shanahan and Jennings. This court concludes that
Jackson was less than candid in his testimony concerning his
awareness of the hazardous conditions in the tower and his
efforts to detect and correct these conditions. His denial
that these conditions were brought to his direct attention by
Shanahan and Jennings and were frequently raised at the
stewards' safety meetings is in conflict with the credible
evidence in this case. This court is not persuaded that
Jackson performed his responsibility to inspect on a regular
and frequent basis nor did he enforce respondent's
subcontractor responsibility policy by requiring the
subcontractors to replace or repair the missing or damaged
-fall protection devices. As a result of his failure to
adequately perform his primary responsibility, safety at this
work site was compromised.

Shanahan was not an impressive witness. However, this

court concludes that Shanahan accurately assessed the

20

inability of his crew to meet the demands imposed upon it and
communicated this circumstance to respondent's safety
supervisors. It is concluded that he voiced his safety
concerns at least once a month at the stewards' meetings and
brought these concerns to the direct attention of the safety
supervisors on a fairly frequent basis.

This court finds Jennings to be a fully credible witness.
His description of the numerous and on-going safety hazards at
the work site is considered to be an accurate portrayal of the
circumstances existing before and during the Secretary's
inspection. His testimony in this regard is fully supported
by the numerous instances of fall protection hazards disclosed
in Payne's inspection. I also find as a fact that Jennings
regularly and repeatedly brought these conditions to the
attention of respondent's safety supervisors, who took no
effective action to deal with this persistent problem.

What emerges from this record is a safety program that
had form but lacked substance as described in the testimony of
Colleran and Payne. Respondent's subcontractor responsibility
policy was largely ignored by the subcontractors who had
neither the inclination or tools to replace or repair the
missing or damaged fall protection devices. This policy was
not enforced by respondent's safety supervisors or other
supervisory personnel charged with this responsibility. As a
result of this failed policy, the existence of missing or

defective devices was rampant in the tower area served by

21

Shanahan's crew. These conditions were readily apparent to
the safety supervisors during their daily walkarounds and
could have been detected and corrected with the exercise of
reasonable diligence. Respondent's safety supervisors were
put on notice of these conditions through direct complaints
received from Shanahan and Jennings and through complaints
made during the stewards' weekly safety meetings. Respondent
was also made aware of these conditions as a result of
inspections by its insurance carrier on two separate occasions
prior to the Secretary's inspection. Despite repeated
admonitions, respondent's safety supervisors took no effective
steps to abate these conditions.

Based upon the foregoing, it is concluded that the
Secretary has met her burden of showing that respondent did
not meet its responsibilities under 29 C.F.R. § 1926.20(b)(1)

and (2). Accordingly, the citation will be affirmed.
THE FALL PROTECTION STANDARDS

This aspect of the case was conducted by Compliance
Officer Ronald Payne, who has made over 1,500 inspections,
including approximately 850 construction sites (Tr. 37).
Payne holds a degree from Northwestern University and is a
member of the American Society of Safety Engineers (Tr. 45).

Payne conducted an inspection of the Michigan Avenue work
site during the period May 6 to June 6, 1987. Throughout his

inspection, Payne was accompanied by a Jones' representative

22

(either Conroy, Jackson or Wrobleski) (Tr. 134-135). Payne
took photographs whenever he observed what he considered to be
a violative condition. These photographs and Payne's
testimony are the primary basis upon which the Secretary

predicates the following charges in this case.

THE 29 C.F.R. § 1926.500(b)(1) CHARGES6

At level minus 2, line 21,7 Payne saw and photographed
men working near a floor opening (Ex. C-17, Item 2; Citation
Item 2a). These men were identified by Jones'
representatives who accompanied Payne on the walkaround as
Jones' employees (Tr. 69). The floor opening was unprotected
by guardrails and presented a fall hazard of approximately 16
feet to the next floor (Tr. 71). At this same location, Payne
also noted the guardrail was unstable. Using only "slight
force," Payne was able to move the guardrail four inches and

measured this deflection with a tape (Tr. 72-73). Based upon

6
Section 1926.500(b) (1) of 29 C.F.R. provides:

(b) Guarding of floor openings and floor
holes. (1) Floor openings shall be guarded by a

standard railing and toe boards or cover, as
specified in paragraph (f) of this section. In
general, the railing shall be provided on all
exposed sides, except at entrances to stairways.

7

Level minus two indicates a floor two levels below ground
level. Line 21 is the location of a column on that floor (Tr.

23

this information, Payne concluded the standard had been
breached.

At level minus 2, line H-19, Payne observed a floor
opening as depicted in Exhibit C-17, Item 3 (Citation Item
2b). This opening was not completely protected since the
guardrail did not "fully surround" the entire opening nor was
the existing guardrail stable. Payne was able, "with very
little exertion," to move the railing about four inches ina
lateral direction (Tr. 84-85). He also noted that one end
post supporting the railing was "free standing" and could be
deflected with "very little exertion," (Tr. 87-88) further
adding to the guardrail's instability. Jones' employees were
working in the area (Tr. 89).

At level minus 2, line 5, he observed a floor opening
(Ex. C-17, Item 4, Citation Item 2c) without intermediate
uprights8 (Tr. 96). He shook the top of the guardrail and
noted it had a "significant amount" of deflection (several
inches) (Tr. 97). He then placed his hand on the midrail and
"with slight exertion, the rail holding it up against the wall
pulled out and the railing fell to the floor" (Tr. 98). The
fall distance at this opening was ten feet (Tr. 100-101), and
the opening was adjacent to an operational stairway which was

in regular use (Tr. 101). He saw "dozens" of employees,

8

The standard requires an intermediate upright at eight-
foot intervals between end posts to promote stability (Tr.
100).

24

including Jones', using the stairway while he was at this
location (Tr. 101). Should an employee fall against this
guardrail, it was his opinion the rail would give way causing
the employee to fall through the opening causing serious
injury or death (Tr. 100, 102).

At level minus 2, line 5, he observed what is depicted
in Exhibit C-17, Item 5 (Citation Item 2d), a guardrail
surrounding a floor opening (Tr. 104). There were no
intermediate uprights between the end posts and applying
pressure to the railing caused deflection which indicated to
Payne the device was unstable (Tr. 105-106). This railing was
adjacent to an open stairway and was accessible to employees
(Tr. 109).

At the ground or floor level on the northeast section of
the building, Payne observed the conditions depicted in
Exhibit C-17, Item 6 (Citation Item 2e). One end post of the
guardrail (shown in photograph with a circle) was not securely
fixed to the floor. Payne was able to move this post and
guardrail “four to six inches" with a "slight amount of
pressure" (Tr. 113). The fall distance at this location was
16 feet and the railing was immediately adjacent to a stairway
in use by employees (Tr. 114, 116).

On the second floor, Payne observed a partial guardrail
system where part of the railing had been removed and replaced
by a yellow caution tape (Ex. C-17, Item 7, Citation Item 2f).

Aside from the hazard of the missing section of guardrail,

25

Payne considered the use of the caution tape to be
inappropriate. If tape is to be used to restrict access, it
should be "set back from the danger point" so that employees
will avoid the area completely (Tr. 121-125). In Payne's
opinion, the tape could not be substituted for a standard
guardrail (Tr. 127). Employees had access to this condition
(Tr. 126).

At stairwell number six on the second floor at the
building's southwest corner, Payne observed and photographed
(Ex. C-17, Item 8, Citation Item 2g), a floor opening devoid
of guardrails and toeboards (Tr. 128). This opening was
adjacent to a stairway which was open for use. Employees were
working in the area (Tr. 131) and were exposed to a potential
fall to the floor below (Tr. 130).

On the north side of the building on the third floor, he
observed and photographed (Ex. C-17, Item 9, Citation Item 2h)
a floor opening approximately 3 feet by 16 feet (Tr. 140) on
the building's perimeter. This opening had a top rail but was
missing a midrail, toeboards and intermediate upright between
the end posts (Tr. 134). He tested the top rail with arm
pressure and “was able to deflect it several inches towards
the opening" (Tr. 138). He further noted some employees of a
subcontractor working in the area (Tr. 139). The fall from
this location was approximately 16 feet (Tr. 140).

On the southeast section of the third floor, he observed

and photographed (Ex. C-17, Item 10, Citation Item 2i) a floor

26

opening with a guardrail system in place which was ostensibly
in compliance with the requirements of the standard, i.e., top
and midrails with some toeboards. On close examination, he
noted toeboards were missing on each end of the enclosure;
and, upon testing the system with pressure, the railing was
"very unstable" (Tr. 142). He observed employees working in
the area which was accessible and not cordoned off (Tr. 144).
He concluded this situation created a hazard of falls through
the opening and also the missing toeboards could result in
injuries to employees working at lower levels (Tr. 145).

On the fourth floor between C4 and 6, Payne observed and
photographed (Ex. C-17, Item 11, Citation Item 2j) a floor
opening where the guardrails did not fully extend around the
opening nor was the opening protected by toeboards along the
east side (Tr. 148). He measured the space between the end
post and a concrete block wall and found the space to be one
and one-half feet wide (Tr. 148) and concluded these
conditions violated the floor opening standard. He further
noted the area was accessible to employees, that work was
still in progress on this floor (Tr. 149), and that Jones'
employees would be exposed to this condition in the
performance of their duties (Tr. 154). The fall hazard was
"in excess of one story" (approximately 16 feet) which could
cause serious injury (Tr. 155).

Payne observed and photographed (Ex. C-17, Item 12,

Citation Item 2k) two floor openings in the southeast section

27

of the fifth floor. While guardrails had been erected around
these openings, one midrail was broken and loose, toeboards
were missing around much of the perimeter and one end post was
free standing without being tied into the floor or wall. He
tested the guardrail and found “there was a lot of play" and
that he could move the top rail “horizontally in the direction
of the floor opening" (Tr. 158-159). Work was in progress at
this location and the area was accessible to employees,
including those employed by Jones (Tr. 159-160).

At stairway number five on the fifth floor, Payne
observed but did not photograph a guardrail which was not
securely anchored (Item 13, Citation Item 2l). He was able to
push the top rail "several inches towards the open side" (Tr.
165). This condition existed around a stairway used by
employees going to and from the lower and higher floors (Tr.
165-166).

Payne observed and photographed (Ex. C-17, Item 14,
Citation Item 2m) a floor opening at stairway number four on
the seventh floor protected by a guardrail attached to an end
post which was not anchored securely to the floor. He was
able to move the top rail several inches. He also noted
missing toeboards in the area (Tr. 169-170). The entire area
was not cordoned off and was accessible to employees using
the stairway (Tr. 171-172).

On the seventh floor in the southeast section, he

observed and photographed (Ex. C-17, Item 15, Citation Item

28

2n) a missing midrail at one end of a floor opening (Tr. 174-
175). This condition constituted "a 16 square foot area
through which somebody could fall" (Tr. 176). The area was
accessible to employees (Tr. 177) and exposed them to a seven-
story fall (Tr. 178). No toeboards were in place.

On the north side of floor 20, Payne observed and
photographed (Ex. C-17, Item 16, Citation Item 2o) a guardrail
surrounding a floor opening. The railing was not securely
anchored to the floor and could be moved several inches "with
little exertion." The railing was missing an intermediate
upright (Tr. 181-182). This area was accessible to employees,
including those of Jones (Tr. 183).

On the 16th floor, Payne observed and photographed (Ex.
C-17, Item 17, Citation Item 2p) a floor opening protected by
top rail, midrail, toeboards, intermediate uprights and end
posts. However, when he tested this system with minimum
exertion, he could displace the top rail several inches (Tr.
193). Employees were in the area (Tr. 195).

On the eighth floor at column A4, Payne observed but did
not photograph a floor opening approximately four feet by
eight feet which was not protected by any guardrailing on two
sides (Item 18, Citation Item 2q). The other two sides had
guardrailing which "was not secure" (Tr. 198). Some employees
were installing concrete block near this area and the entire

area was accessible (Tr. 199).

29

On the third floor in the southeast corner, Payne
observed and photographed (Ex. C-17, Item 19, Citation Item
2r) a floor opening with guardrails along its north side which
were not anchored and were free standing (Tr. 200-201). He
touched it and was able to pull it away (Tr. 202). Employees
working on a scaffold were using this area to exit and came in
close proximity to this unsecured railing (Tr. 201)

This court concludes Payne's testimony and supporting
photographs sustain the Secretary's charges with respect to
each of the foregoing instances of failure to guard floor
openings and holes. Payne is an experienced compliance
officer and was a fully credible witness. In each case, he
made careful observations of the violative conditions,
including the testing of wire ropes and guardrails for
stability. He also determined in each instance that employees
were exposed to the hazardous condition at the time of his
observation or that these areas were readily accessible to
employees working in the area. Exposure to each of these
hazards could result in a fall causing serious injury or death
to an employee. Complaint items 2 through 19 and Citation

Items 2a through 2r will be affirmed.

30

THE 29 C.F.R. § 1926.500(c)(1) CHARGES9

on the south side of the fourth floor, Payne observed and
photographed (Ex. C-17, Item 20, Citation Item 3a) a wall
opening approximately 16 feet in length (Tr. 204). This
opening was guarded by two wire ropes, one 29 inches and the
other 12 inches above the floor. Each rope was further
deflected towards the floor when Payne applied pressure (Tr.
205). Employees were working in this area and on occasion
came to "within a foot" of the opening (Tr. 206). The area
was accessible and the potential fall from the opening was 50
to 60 feet (Tr. 207).

On the south side of the second floor, Payne observed and
photographed (Ex. C-17, Item 21, Citation Item 3b) another
wall opening near a material hoist. This opening was not
protected by any means of guardrails or ropes (Tr. 210-212).

This area was "commonly used as a travelway" by employees of

9
Section 1926.500(c)(1) of 29 C.F.R. states:

(c) Guarding of wall openings. (1) Wall
openings, from which there is a drop of more than 4
feet, and the bottom of the opening is less than 3
feet above the working surface, shall be guarded as
follows:

zk &

(i) When the height and placement of the
opening in relation to the working surface is such
that either a standard rail or intermediate rail
will effectively reduce the danger of falling, one
or both shall be provided;

31

all trades (Tr. 213). The fall potential at this location was
one floor or about 16 feet.

For the same reasons assigned above in connection with
floor openings, this court concludes the Secretary has
sustained her charges with respect to failure to guard wall
openings. Complaint items 20 and 21, citation items 3a and 3b

will be affirmed.
THE 29 C.F.R. § 1926.500(d)(1) CHARGES10

During the course of his inspection, Payne was furnished
pictures taken by Kelley Steel allegedly depicting conditions
in existence at the work site on May 6 prior to Payne's
arrival at the scene (Ex. C-17; Items 22, 24, 25, 26). Payne
could not authenticate the pictures or give first-hand
testimony concerning the existence of these conditions (Tr.
246-247). During the testimony of Chris Shanahan, however,
these pictures, which purport to show the conditions of

perimeter ropes on the northeast corner of the fourth through

10
Section 1926.500(d)(1) of 29 C.F.R. provides:

(a) Guarding of open-sided floors, platforms,
Wi (1) Every open-sided floor or
platform 6 feet or more above adjacent floor or
ground level shall be guarded by a standard railing,
or the equivalent, as specified in paragraph (f) (1)
of this section, on all open sides, except where
there is entrance to a ramp, stairway, or fixed
ladder. The railing shall be provided with a
standard toeboard wherever, beneath the open sides,
persons can pass, or there is moving machinery, or
there is equipment with which falling materials
could create a hazard.

32

eighth floors, were presented for his identification. While
Shanahan did not take the pictures, he did view the areas
shown and testified the pictures were an accurate
representation of what he observed (Tr. 2299-2310). Shanahan
was unable, however, to establish exposure of employees to
these conditions, an essential element of the Secretary's
proof. Accordingly, these items will be vacated.

When Payne arrived at the work site in the late afternoon
of May 6, he went to the fifth floor of the building (the
accident scene) and took the photographs shown in Exhibit
C-17, Item 23 (Citation Item 4b). He observed the top
perimeter cable had been removed from its anchorage and was
lying on the floor (Tr. 238). He observed employees working
in this area in proximity to the unguarded edge (Tr. 240) and
concluded they were exposed to a fall of five stories (Tr.
241).

On the south side of the building at the eighth floor
level, Payne observed and photographed a rope cable strung
midway between the floor and a steel beam which cable was
sagging and was not anchored with a proper clip (Ex. C-17,
Item 27, Citation Item 4f; Tr. 248). Payne's supervisor, who
was accompanying him at the time, was able to press this cable
with his foot "all the way down to the floor" (Tr. 250). The
rope was connected with "bailing wire" rather than a standard

rope clip (Tr. 252). The area was regularly travelled by

33

employees and Payne observed employees "within a few feet" of
this condition (Tr. 254).

On the east side of the building at the ninth level,
Payne observed but did not photograph perimeter ropes running
between columns (Item 28). These ropes were not drawn taut
(Tr. 255) and could be deflected with minimum pressure (Tr.
256). While no employees were working at this location at the
time he made his observations (6:30 p.m. on October 6), the
area was accessible and was used as a "walkway, travelway"
(Tr. 260).

On the southeast corner of tae second floor, Payne
observed perimeter ropes which were "slacked out” (Item 29,
Tr. 265). He tested these ropes and found they could be
deflected to within 20 inches of the floor. He observed
employees of Jones and other subcontractors performing work at
this location which was "within a few feet" of an elevator
(Tr. 266).

At level minus 2, line F14, Payne observed and
photographed (Ex. C-17, Item 30, Citation Item 4i) guardrails
which did not extend along the full length of an opening under
a ramp. While the beam running from the end of the guardrail
to the next column would serve as a top rail to guard against
falls, there was no midrail along this opening. Payne
considered this situation created the potential for falls in

between the beam and the floor (Tr. 272, 273).

34

On the second floor of the West Podium (atrium), Payne
observed but did not photograph a guardrailing system with "a
lot of play in it" (Tr. 275; Citation Item 4j). With a
minimum of hand pressure, he was able to push the top rail "at
least four inches towards the open side" (Tr. 277). The area
was accessible (Tr. 275).

Payne observed at stairway number five the landings or
platform between the first and second floors were not equipped
with midrails11 (Item 32, Citation Item 4k). Failure to erect
midrails at this location constituted a fall hazard to
employees using the stairs in their regular duties and also in
the event of emergency use (Tr. 281-284).

On the south side perimeter of the second floor, Payne
observed and photographed (Ex. C-17, Item 33; Citation Item
4l) a guardrail which did not extend fully between two columns
leaving an open space of approximately five feet between the
end post and the column (Tr. 287-288). Employees were working
in this area which was open and accessible (Tr. 289-290).

Directly to the east of the area just described, Payne
observed and photographed (Ex. C-17, Item 34; Citation Item
4m) perimeter cables which were not taut and could be
deflected downward from 12 to 21 inches (Tr. 292-293).
Employees were working in the area which was "fully

accessible (Tr. 294-295).

11

Payne used Exhibit C-17, Item 48, to support his
testimony concerning this charge (Tr. 280).

35.

In this same area between columns A19 and 21, Payne
observed and photographed (Ex. C-17, Item 35; Citation Item
4n) perimeter ropes which were not drawn tight and could be
deflected 12 to 21 inches with hand pressure (Tr. 299-300).
The area was accessible and employees were observed receiving
material to the west of this condition (Tr. 302).

At stairway number six, Payne observed and photographed
(Ex. C-17, Item 36; Citation Item 4o) a landing platform
midway between the second and third floors which was not
guarded by a midrail to prevent falls through an opening of 31
to 33 inches high and approximately six feet in length (Tr.
305-306). This stairway was open for use.

On the north side of the third floor, there was a floor
opening12 which Payne observed and photographed (Ex. C-17,
Item 37; Citation Item 4p). This opening was protected by a
top rail but no midrail (Tr. 307). Employees of Jones and the
window subcontractor were working in the area (Tr. 309).

On the east side of the third floor, Payne observed and
photographed perimeter ropes around the atrium (Ex. C-17, Item
38, Tr. 311; Citation Item 4q). The ropes were not taut and
Payne was able, with little effort, to deflect the top rope to

within 21 inches of the floor and the bottom rope directly to

12

Payne determined this was a floor opening rather than a
wall opening, because there was no extension of the wall
across the opening but only a toeboard (Tr. 308).

36

the floor (Tr. 311-312). Payne saw an employee in the area
(Tr. 315).

At stairway number one, Payne observed and photographed a
landing platform between the third and fourth floors which was
not equipped with midrails (Ex. C-17, Item 39; Citation Item
4r) to protect from falls between the beam above and the
platform below (Tr. 315-319). This stairway was open and
accessible (Tr. 320).

Payne observed similar situations to the one just
described at stairway number six at a platform between the
third and fourth floors (Item 40; Citation Item 4s) and at
stairway number one between the fourth and fifth floors (Item
41; Citation Item 4t) (Tr. 321-324) although no photographs
were made.

At the west side of the fifth floor in the atrium area,
Payne observed and photographed the perimeter protection
around a large floor opening (Ex. C-17, Item 42; Citation Item
4u). The system included wooden guardrails and perimeter
ropes (Tr. 327). Payne tested the ropes and found they could
be deflected within nine inches of the floor (Tr. 328). He
also noted the guardrail system around the opening "was very,
very flimsy" (Tr. 330) and that the wooden rails acted like a
"sling shot" when deflected. He testified that "when I
pulled the top rail on the wood guard rail and let it go, it
actually continued to shake after I released it" (Tr. 331).

He further noted that employees (including Jones' employees)

37

were working in this area and had access to the opening (Tr.
329-330).

On the west side of the sixth floor in the atrium area,
Payne observed and photographed another system similar to the
one just described (Ex. C-17, Item 43; Citation Item 4v),
consisting of "a wood guard railing system that was tied in
with some wire rope perimeter protection . . . and it had the
same sling shot effect" (Tr. 332). He was able to deflect
both the guardrail and the wire rope "with very little force"
(Tr. 333). Employees were working in this area which was near
a stairway and accessible (Tr. 334).

Payne observed a missing midrail on the northeast corner
at level 7½ (a mezzanine above the seventh level). Exhibit
C-17, Item 44, shows a wire rope extending underneath a beam.
This wire rope was 33 inches above the floor (Tr. 336).
Although the beam in this case served as a top rail, the wire
rope was too high above the floor to serve as a midrail since
it would not prevent an employee from falling through the
space between the beam and the floor. It should have been
located midway between the floor and the beam (approximately
17 inches) (Tr. 336-337). The area was accessible to
employees working in the area (Tr. 338).

On the southeast corner of level 7½, Payne observed and
photographed (Ex. C-17, Item 45; Citation Item 4x) wire ropes
intended as midrails which had been dropped. These ropes

provided no protection to prevent a fall through the space

38

between the beam and the floor (Tr. 339-340). The photograph
depicts an employee walking near the perimeter and the area
was accessible (Tr. 342).

On the north side of the eighth floor, Payne observed and
photographed (Ex. C-17, Item 46; Citation Item 4y) a condition
where perimeter cables were sagging to within 18 inches of the
floor (Tr. 344-345). This circumstance provided no fall
protection but only served to aggravate the situation. The
photograph shows two employees working in close proximity to
the edge and the area was accessible (Tr. 347).

On the south side of the ninth floor, Payne observed and
photographed (Ex. C-17, Item 47; Citation Item 4z) an area
where a subcontractor trailer had been parked. He observed
that perimeter rope protection adjacent to the trailer was not
drawn taut between a column and stanchions. Rebar had been
placed “about one foot inward from the edge of the floor" (Tr.
350) to a height of 23 inches. The wire rope was lying on top
of this rebar barrier. In the absence of a taut wire rope
above the rebar, this situation created a.hazard for employees
who could fall over the rebar resulting in a nine-story fall
(Tr. 351). The situation was aggravated since the steps

leading into the trailer were in close proximity to the

rebar, 13

13

The situation was further aggravated since wind
conditions in che area increased the hazard. Payne

experienced an incident while on the trailer steps where "wind
caught the door of the trailer . . . and slammed the

39

For the reasons assigned above in connection with floor
openings, this court concludes the Secretary has sustained her
charges with respect to failure to guard open-sided floors.
Complaint Items 23 and Citation Item 4b, together with
complaint items 27 through 47 and Citation Items 4f through 4z
will be affirmed. Complaint items 22, 24, 25, and 26 and
Citation Items 4a, 4c, 4d and 4e will be vacated for failure

of proof.
THE 29 C.F.R. § 1926.500(e)(1)(ii) CHARGE14
20

Payne observed three instances where stairways had not
been provided with standard railings on an open side. He
observed this situation at stairway number five located in the
southwest corner of the building on the second floor. Exhibit
C-17, Item 48, (Citation Item 5a) shows the absence of a

railing on the right side of the stairway. This condition

door . . . into the side of the trailer." Had he been within
the swing radius of the door, he would have been knocked over
the edge (Tr. 351-352).

14
Section 1926.500(e)(1) (ii) of 29 C.F.R. provides:

(e) Stairway railings and guards. (1) Every

flight of stairs having four or more risers shall be
equipped with standard stair railings or standard
handrails as specified below, the width of the stair
to be measured clear of all obstructions except
handrails:

a

zk kek

(ii) On stairways less than 44 inches wide
having one side open, at least one stair railing on
the open side;

40

created a falling hazard to employees who used this stairway
moving to and from the second floor (Tr. 354).

On the 12th floor, Payne observed and photographed (Ex.
C-17, Item 49; Citation Item 5b) a similar situation at the
north stairway. No railing was provided on the left side of
this stairway to provide protection from falls to the lower
level (Tr. 359). The stairway was open for use and readily
accessible to employees (Tr. 360).

On the south stairway on the 12th floor, Payne observed
and photographed (Ex. C-17, Item 50; Citation Item 5c) a missing
railing on the left side of the stairway (Tr. 361). This
stairway was open for use and readily accessible to employees
in the area (Tr. 362).

For the reasons assigned above with respect to floor
openings, this court concludes the Secretary has sustained her
charges with respect to respondent's failure to guard
stairways with standard railings. Complaint Items 48, 49 and

50 and Citation Items 5a, 5b and 5c will be affirmed.
THE TOEBOARD CHARGES

Throughout his inspection, Compliance Officer Payne had

occasion to observe the outside perimeters of floors 2 through

15

This charge was originally lodged under 29 C.F.R. §
1926.500(f)(1). Prior to trial, the Secretary amended her
complaint and the citation to include charges under §
1926.500(b)(1) and § 1926.500(d)(1) (See Judge's Ex. 51, Tr.
365).

41

26 and noted that toeboards were not installed at the edge to
prevent objects from being knocked or blown off the floor to
lower elevations (Tr. 365-366). This same condition was also
observed in the atriums (Tr. 378). The fact that toeboards
were not utilized on the outer perimeters of the building and
atriums is not contested by respondent (Tr. 2297) and was
conceded in the testimony of James B. Jackson, respondent's
safety supervisor (Tr. 1728). This fact alone, however, does
not constitute a violation of the cited standards.

During his inspection, Payne did not inspect each of the
26 floors in the tower or atrium floors for the purpose of
gathering specific evidence upon which to base these
charges. 16 Accordingly, he did not develop proof that there
were "materials" on each of these floors, that there existed a
reasonable probability that these "materials" would fall or be
blown over the unguarded edge and that employees were exposed
to falling objects at each of the areas located below these
floors. Payne's general, nonspecific testimony (Tr. 369-375)
is insufficient to cure this defect. Complaint items 51

through 78 will be vacated.

16

Payne originally intended to charge only one item under
this standard. This approach was later changed when the
Secretary chose to expand the complaint to include separate
charges for all floors.

42

RESPONDENT'S DEFENSES

Respondent contends that the Secretary's delay in issuing
the citation violates the provisions of 29 U.S.C. 658(c) which
require the Secretary to issue citations with "reasonable
promptness" and prohibit such issuance "after the expiration
of six months following the occurrence of any violation."

The inspection in this case was completed on June 9,
1987, and the citation and notification of proposed penalties
was issued and served on November 4, 1987, by personal service
upon respondent (Tr. 623-624). Service was effected within
the six-month period provided in the statute. The issue,
therefore, is whether the Secretary acted with "reasonable
promptness."

In Chicago Bridge & Iron Co., 74 OSAHRC 3/E10, 1 BNA
OSHC 1485, 1973-74 CCH OSHD ¶ 17,187 (No. 744, 1974), the
Commission held that the reasonable promptness language of the
statute required issuance of the citation within three working
days (72 hours) after the area director formed his belief that
a violation occurred. This rule was rejected on review by the
Seventh Circuit, Brennan v. Chicago Bridge & Iron Co., 514
F.2d 1081 (7th Cir. 1975), as being unsupported by the statute
or legislative history and totally impractical to implement.

The Commission adopted a new rule in Coughlan
Construction Co., 75 OSAHRC 87/F6, 3 BNA OSHC 1636, 1975-76
CCH OSHD ¶ 20,106 (Nos. 5303 & 5304, 1975), holding that

43

regardless of the delay in issuance of the citation, it would
not be vacated unless the employer could show substantial
prejudice. This rule has been supported by the decisions of

the Courts of Appeal. Stephenson Enterprises, Inc. v.

Marshall, 578 F.2d 1021, 1023, (5th Cir. 1978); United Parcel Service of Ohio, Inc. v. OSHRC, 570 F.2d 806, 809 (8th Cir.

1978); Todd Shipyards Corp. v. Secretary of Labor, 566 F.2d
1327, 1330 (9th Cir. 1977); Bethlehem Steel Corp. v. OSHRC,

607 F.2d 871, 876 (3d Cir. 1979).

Respondent's contention that it has been prejudiced by
the Secretary's delay is unsupported in the record. Except
for general allegations of prejudice made by respondent's
counsel during the course of the hearing, respondent made no
specific showing that the delay in issuing the citation
prevented the respondent from preparing its defenses. In the
absence of such a showing, this defense must fail. Craig D.
Lawrenz & Associates, Inc., 77 OSAHRC 60/D8, 4 BNA OSHC 1464,
1976-77 CCH OSHD ¶ 20,910 (No. 5540, 1976); National

Industrial Constructors, Inc., 81 OSAHRC 94/A2, 10 BNA OSHC 1081,
1981 CCH OSHD ¶ 25,743 (No. 76-4507, 1981); Rangaire Corp., 76
OSAHRC 62/B5, 7 BNA OSHC 1928, 1979 CCH OSHD ¶ 23,770 (No. 78-
1595, 1979); Chessie System, 76 OSAHRC 140/A2, 4 BNA OSHC
1874, 1976-77 CCH OSHD ¶ 21,287 (No. 10687, 1976); Stripe-A-
Zone, 80 OSAHRC 111/D12, 10 BNA OSHC 1694, 1982 CCH OSHD ¶ 26,069 (No. 79-2380, 1982); Kelly Steel Erectors, Inc., __ OSAHRC __,
8 BNA OSHC 1191, 1979 CCH OSHD ¶ 24,111 (No. 79-25,

44

1979); Cedar Construction Co., 77 OSAHRC 63/D2, 5 BNA OSHC
1311, 1975-76 CCH OSHD ¶ 19,960 (No. 10929, 1975).

Respondent contends that Payne's inspection was improper
because at the time it was commenced, a case arising out of a
prior inspection was still pending before the Commission.’
This argument is based upon a provision in Chapter II of the
OSHA Field Operations Manual entitled "Effect of Contest,"
which provides that OSHA programmed inspections should be
delayed or carried over when a case is pending before the
Review Commission against the employer under inspection. The
FOM contains only guidelines for use by OSHA in its execution
of enforcement operations. These guidelines are intended only
for internal application to promote efficiency and not to
create an "administrative straightjacket." They do not have
the force and effect of law, nor do they accord procedural or
substantive rights to employers. FMC Corp., 77 OSAHRC 153/D4,
5 BNA OSHC 1707, 1975-76 CCH OSHD ¶ 20,640 (No. 13155, 1977).
This minor departure from the Secretary's internal directives
does not serve.to invalidate the proceedings against the
respondent.

Respondent asserts that the Secretary's charges in this
case were brought under the wrong standards. The contention

is made that since the work site in question was a structural

17

Respondent was issued a citation in 1986 which was
disposed of by a settlement agreement dated May 27, 1987. A
final order was entered on June 11, 1987, two days after Payne
concluded his inspection (Ex. C-4).

45

steel building, the steel erection standards (subpart "R" of
part 1926) rather than the construction standards should
apply- This contention is without merit. While it is true
that Kelley Steel, the steel erection subcontractor, was
engaged in operations falling within subpart "R", neither
Jones' employees nor those of the other subcontractors engaged
in steel erection activities. The areas inspected by Payne
were in locations where the steel erection had been completed.
Employees working in these areas were engaged in regular
construction activities and subject to the general
construction standards.

Respondent contends it had no knowledge of the violative
conditions disclosed in Payne's inspection. Section 17(k) of

the Act indicates there can be no violation of the Act “unless

the employer did not, and could not with the exercise of
reasonable diligence, know of the presence of the violation."

(Emphasis supplied.) This indicates that knowledge may be
either actual or constructive. "Reasonable diligence" has
been defined as "such watchfulness, caution and foresight as
under all the circumstances of the particular service; 4
corporation controlled by prudent officers ought to exercise."
Ames Crane & Rental Service, Inc., 75 OSAHRC 64/E12, 3 BNA
OSHC 1279 at 1282, 1974-75 CCH OSHD ¶ 19,724 at 23,534 (No.
2578, 1975)-

There is good reason to conclude that respondent had

actual knowledge of the persistent and hazardous conditions

46

existing in the tower. Many of these conditions (sagging wire
ropes, missing guardrails) were readily apparent to the naked
eye while others (unstable guardrails and ropes) could be
detected upon performance of a simple hand deflection test.
Diligent inspections by respondent's safety supervisors would
have identified these conditions with a minimum of effort.

In any event, the Secretary is not required to make a
showing of actual knowledge. To sustain this element of
proof, the Secretary need only show that the employer could
have known of the hazardous conditions through the exercise of
reasonable diligence. Prestressed Systems, Inc., 81 OSAHRC
43/D5, 9 BNA OSHC 1864, 1981 CCH OSHD ¶ 25,358 (No. 16147,
1981); Bechtel Power Corp., 82 OSAHRC 49/B8, 10 BNA OSHC 2003,
1982 CCH OSHD ¶ 26,261 (No. 77-3222, 1982); Austin Building Co. v. OSHRC, 657 F.2d 1063 at 1067-1068 (10th Cir. 1981);

Kenneth P. Thompson Co., 80 OSAHRC 67/A2, 8 BNA OSHC 1696,
1980 CCH OSHD ¶ 24,593 (No. 76-2623, 1980); Del-Cook Lumber Co., 78 OSAHRC 14/A2, 6 BNA OSHC 1362, 1978 CCH OSHD ¶ 22,544

(No. 16093, 1978); J. H. MacKay Electric Co. and U.S.

Engineering Co., 78 OSAHRC 77/B10, 6 BNA OSHC 1947, 1978 CCH
OSHD ¶ 23,026 (No. 16110, 1978). The Secretary has

established this element of her case.

Respondent asserts that the Secretary has failed to show
exposure of employees to the fall hazards described in Payne's
testimony. In many instances, Payne observed employees

(including Jones' employees) in close proximity to hazardous

47

conditions. In other cases, he was able to show that the
zones of danger were readily accessible to employees using
stairways or walkways in the immediate vicinity. In each
instance (except for Items 22, 24, 25 and 26, and the toeboard
items), Payne showed either actual exposure or accessibility

to the hazard.
Although early decisions of the Commission required an
actual exposure test, this requirement was rejected in
Underhill Construction Corp., 76 OSAHRC 89/A2, 4 BNA OSHC

1489, 1976-77 CCH OSHD ¶ 20,918 at 25,121 (No. 3042, 1976), as
follows:

The Commission has recently reconsidered the
issue of whether the Secretary must establish actual
exposure to a hazard in order to prove the existence
of a violation. Gilles & Cotting, Inc., Docket No.
504, 3 BNA OSHC 2022, CCH OSHD ¶ 20,448 (R.C.
February 20, 1976). See also Brennan v. OSHRC &
Underhill, 513 F.2d 1032 (2d Cir. 1975). We said
that the question is factual and is to be determined
by considering the zones of danger created by the
hazard, employee work activities, their means of
ingress-egress, and their comfort activities on the
jobsite. We determined that an actual exposure
requirement is inconsistent with the purposes of the
Act, whereas an access theory furthers the purposes
of the Act. In that case we defined access on a
basis of reasonable predictability as requested by
the Secretary.

The circumstances disclosed in Payne's testimony are
sufficient to meet the "reasonable predictability" test

announced in Underhill.

48

WILLFULNESS

The question of what constitutes a willful violation of
the Act has been the subject of numerous decisions of the
Review Commission and the circuit courts, most of which are
cited in the briefs of counsel. In general, 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." Asbestos Textile Co., 84
OSAHRC 50/B3, 12 BNA OSHC 1062 at 1063, 1984-85 CCH OSHD ¶ 27,101 at 34,948 (No. 79-3831, 1984); Williams Enterprises,
Inc., 87 OSAHRC 33/A2, 13 BNA OSHC 1249 at 1256, 1987 CCH OSHD ¶ 27,893 (No. 85-355, 1987).

In Williams Enterprises, supra, the Commission expanded
its definition as follows (Id. at 13 BNA OSHC 1256-1257):

A willful violation is differentiated by a
heightened awareness -- of the illegality of the
conduct or conditions -- and by a state of mind --
conscious disregard or plain indifference. There
must be evidence that an employer knew of an
applicable standard or provision prohibiting the
conduct or condition and consciously disregarded the
standard. Without such evidence of familiarity with
the standard's terms, there must be evidence of such
reckless disregard for employee safety or the
requirements of the law generally that one can infer
that if the employer had known of the standard or
provision, the employer would not have cared that
the conduct or conditions violated it. It is
therefore not enough for the Secretary simply to
show carelessness or lack of diligence in
discovering or eliminating a violation; nor is a
willful charge justified if an employer has made a
good faith effort to comply with a standard or
eliminate a hazard, even though the employer's
efforts are not entirely effective or complete. See

Brock v. Morello Brothers Construction, Inc., 809

49

F.2d 161, 163-65 [12 OSHC 2033, 2035-36] (1st Cir.
1987), and cases cited therein; Asbestos Textile
Co., Marion Group, Inc., 84 OSAHRC 27/C2, 11 BNA
OSHC 2090, 2092, 1984-85 CCH OSHD ¶ 26,975, p. 34,643

(No. 79-5363, 1984); Mel Jarvis Construction Co., 81

OSAHRC 89/B13, 10 BNA OSHC 1052, 1981 CCH OSHD

¶ 25,563 (No. 77-2100, 1984).

While it has been concluded that respondent's safety
program was defective in that regular and frequent inspections
were not made of the tower area, it is undisputed that
respondent made significant and substantial efforts to promote
safety at this work site. It employed full-time safety
supervisors and conducted safety meetings with all employees
each week. It utilized a safety crew whose principal duty was
to repair and replace safety devices. During the period
preceding the Secretary's inspection, respondent spent
$60,000.00 per month in providing safety rails and barricades
(Tr. 1794) and devoted 535 manhours per week to this endeavor
(Tr. 2594). This is not the type of conduct that shows either
"intentional" disregard of the Act or "plain indifference" to
employee safety. At most, the evidence in this case shows
that respondent was careless or failed to exercise diligence
in discovering or eliminating the hazards. Respondent's
significant effort to deal with this problem negates a finding
of willfulness even though its efforts were not effective or
complete. Accordingly, the charges in this case will be

classified as serious rather than willful.

50

THE PENALTIES

Respondent challenges the Secretary's authority to issue
separate charges under the same standard on an "instance by
instance" basis. The controlling language of the Act is found
in section 17(b) which provides: "Any employer who has
received a citation for a serious violation of the
requirements of section 5 of the Act . . . may be assessed a
civil penalty of not more than $1,000 for each violation . .
. ." (Emphasis added.) The clear language of the statute
empowers the Secretary to propose the assessment of a separate
civil penalty for each violation of the Act.

This question was addressed by the Review Commission in
Hoffman Construction Co., 78 OSAHRC 2/A2, 6 BNA OSHC 1274,
1977-78 CCH OSHD ¶ 22,489 (No. 4182, 1978). In that case, the
Secretary issued two separate citations for violations of a
single standard. The ALJ grouped both citations and assessed
a single penalty. The Commission noted that, where citations
of the same standard involve “entirely different and separate"
facts, the Secretary is “justified in issuing separate
citations." The Commission explained that because different
facts underlay each charge of violation (Id. at 1275):

[T]he charges are not duplicative .... The

Secretary chose to cite Hoffman for separate

violations of the same standard, and under these

circumstances, it is within his discretion as the
prosecutor under the Act to do so.

51

In this case, the Secretary has exercised her prerogative
to issue separate citations and proposed penalties for each
infraction of the cited standards. Each charge involves a
different location and different factual circumstances. As
the prosecutor under the Act, the Secretary is free to propose
separate penalties for each infraction subject to Commission
review to assure that the proposals are reasonable and in
accord with the Secretary's obligation to promote the overall
effectiveness of the Act. RSR Corp., 85 OSAHRC 85/40/A3, 11
BNA OSHC 1163, 1983 CCH OSHD ¶ 26,429 (Nos. 79-3813, 80-1602, 79-
6392, 79-5062, 1983).

In this case, the assessment of a $1,000 penalty with
regard to each of the affirmed items is considered appropriate
to insure respondent's future compliance with the Act's

requirements.

FINDINGS OF FACT

1. Respondent, J. A. Jones Construction Company, is a
   general contractor incorporated in the State of North
   Carolina. During the period from January to June 1987,
   respondent was engaged as the prime contractor in the
   construction of an office complex at 900 Michigan Avenue in
   Chicago, Illinois.

2. As the prime contractor at the work site, respondent
   was responsible for erecting and maintaining standard

guardrails (as defined in the cited standards) around floor

52

openings and open-sided floors throughout the working areas
and standard handrails on all stairways. In addition, it was
respondent's responsibility to maintain wire rope guards
initially installed around the perimeters of the building by
Kelley Steel Erectors, its subcontractor.

3. As the prime contractor, respondent was required by
   29 C.F.R. § 1926.20(b) (1) and (2) to initiate and maintain an
   accident prevention program and to provide for frequent and
   regular inspection of the jobsite to detect and correct
   hazardous conditions.

4. During the period in question, it was common
   practice for subcontractors to remove or damage fall
   protection devices without replacing or repairing the devices.
   While respondent had a policy requiring subcontractors to
   correct these conditions or call them to the attention of
   respondent's supervisors, this policy was largely ignored by
   both the subcontractors and respondent's supervisory
   employees. As a result, the existence of missing or damaged
   fall protection devices at this work site was a persistent and
   recurring problem.

5. The foregoing conditions were in plain view or
   readily discernible by performance of a simple hand pressure
   test and could have been detected with the exercise of
   reasonable diligence. Respondent did not, however, establish
   an inspection program to assure that these conditions were

routinely detected and corrected.

53

6. Respondent's safety supervisors were informed by
   employees of these conditions during the course of their daily
   tours of the work site and also at the weekly stewards' safety
   meetings but took no effective steps to alleviate the
   conditions. The existence of these conditions was also
   brought to respondent's attention by its insurance carrier on
   two occasions prior to the Secretary's inspection.

The following proposed findings submitted by the
Secretary are adopted with modification:

7. Citation Item 2a

a. On May 11, 1987, at 2:40 p.m., at level minus
2, line 21, two employees of J. A. Jones Construction Company
were hand shoveling concrete and breaking down and setting up
the concrete supply pump that delivers the concrete into the
area. They were in the process of removing the concrete
supply pump and were working in close proximity to a floor
opening that was not guarded as required by 29 C.F.R. §
1926.500(b) (1) by a standard guardrail.

In addition, employees of J. A. Jones were also
working in close proximity to a partial guardrail. The
partial guardrail was not adequately braced to permit a
minimum of deflection. The deflection was four inches. The
partial guardrail was not guarded as required by 29 C.F.R. §
1926.500(b) (1) by a standard guardrail.

54

b. It was the responsibility of J. A. Jones
Construction Company to erect and maintain standard guardrails
around floor openings at the work site.

c. The above-described violative conditions were
in plain view. J. A. Jones Construction Company could have
known of the above-described conditions with the exercise of
reasonable diligence.

d. If an employee fell through or off the floor
opening, the fall would have been 16 feet and could have
resulted in death or serious physical harm (Ex. C-17; Tr. 60-
83).

8. Citation Item 2b

a. On May 11, 1987, at 2:20 p.m., at level minus
2, line H19, employees of J. A. Jones Construction Company
were pouring concrete. They were working in close proximity
to a floor opening that was not guarded as required by 29
C.F.R. § 1926.500(b) (1), because an end post was not anchored
and guardrails were not braced to minimize deflection.
Employees of other construction companies also were in close
proximity to the floor openings.

b. It was the responsibility of J. A. Jones
Construction Company to erect and maintain standard guardrails
around floor openings at the work site.

c. The above-described violative conditions were

in plain view. J. A. Jones Construction Company could have

55

known of the above-described violative conditions with the
exercise of reasonable diligence.

d. If an employee fell through or off the floor
opening, the fall would have been 16 feet and could have
resulted in death or serious physical harm (Ex. C-17; Tr. 83-
94).

9. Citation Item 2c

a. On May 12, 1987, at 8:00 a.m., at level minus
2, line 5, a floor opening directly north of the stairway was
not guarded by a standard guardrail as required by 29 C.F.R. §
1926.500(b)(1). The top rail moved more than six inches, the
mid-rail fell to the ground, and the posts were not spaced
eight feet or less on center to provide strength and
stability. Said floor opening was accessible to employees at
the work site because it was not cordoned off.

b. It was the responsibility of J. A. Jones
Construction Company to erect and maintain standard guardrails
around floor openings at the work site.

c. The above-described violative conditions were
in plain view. J. A. Jones Construction Company could have
known of the above-described violative conditions with the
exercise of reasonable diligence.

d. If an employee fell through or off the floor
opening, the fall would have been 30 feet and could have
resulted in death or serious physical harm (Ex. C-17; Tr. 95-

103).

56

10. Citation Item 2d
    a. On May 12, 1987, at 8:00 a.m., On level minus

2, line 5, a floor opening directly south of the stairway did
not have posts spaced eight feet or less and the guardrails
did not have cross braces to minimize deflection. The floor
opening was not guarded by a standard guardrail as required by
29 C.F.R. § 1926.500(b) (1). Said floor opening was accessible
to employees at the work site because it was not cordoned
off.

b. It was the responsibility of J. A. Jones
Construction Company to erect and maintain standard guardrails
around floor openings at the work site.

c. The above-described violative conditions were
in plain view. J. A. Jones Construction Company could have
known of the above-described violative conditions with the
exercise of reasonable diligence.

d. If an employee fell through or off the floor
opening, the fall would have been a distance of 30 feet and
could have resulted in death or serious physical harm (Ex.
C-17; Tr. 103-111).

11. Citation Item 2e

a. On May 12, 1987, at 8:50 a.m., at the ground
floor on the street level, a floor opening was not guarded by
a standard guardrail as required by 29 C.F.R. § 1926.500(b) (1)
in that the end post, the top and mid rail were not secured or

braced for minimum deflection. Employees of J. A. Jones

57

Construction Company and other subcontractors were in close
proximity to the floor opening because it was a walkway.

b. It was the responsibility of J. A. Jones
Construction Company to erect and maintain standard guardrails
around floor openings at the work site.

c. The above-described violative condition was in
plain view. J. A. Jones Construction Company could have known
of the above-described violative condition with the exercise
of reasonable diligence.

d. It an employee fell through or off the floor
opening, the fall would have been "6 feet and could have
resulted in death or serious physical harm (Ex. C-17; Tr. 111-
119).

12. Citation Item 2f

a. On May 12, 1987, at 11:30 a.m., on the second
floor, a floor opening was not guarded by a standard guardrail
as required by 29 C.F.R. § 1926.500(b)(1) in that a section of
the guardrail was removed and toeboards were missing. Said
floor opening was accessible to all employees at the work
site because it was not cordoned off.

b. It was the responsibility of J. A. Jones
Construction Company to erect and maintain standard guardrails
around floor openings at the work site.

c. The above-described violative condition was in

plain view. J. A. Jones Construction Company could have known

58

of the above-described violative condition with the exercise
of reasonable diligence.

d. If an employee fell through or off the floor
opening, the fall would have been 16 feet and could have
resulted in death or serious physical harm (Ex. C-17; Tr. 119-
128).

13. Citation Item 2g

a. On May 12, 1987, at 12:40 p.m., on stairway
number six on the second floor at the southwest corner, an
employee of Thorlief-Larson and Sons was bringing bricks up to
the second floor and placing materials north of the stairway.
Employees of Fujitech America were installing railings for the
elevators in some of the shaftways.

b. The above employees were working in close
proximity to the floor opening that was not guarded as
required by 29 C.F.R. § 1926.500(b)(1) by not having
guardrails or toeboards. Also, employees working below were
exposed to the hazard of falling objects.

c. The above-described violative condition was in
plain view. J. A. Jones Construction Company could have known
of the above-described violative condition with the exercise
of reasonable diligence.

d. If an employee fell through or off the floor
opening, the fall would have been at least ten feet or the

employee would have rolled down the stairway. In either case,

59

the result could have been death or serious physical harm (Ex.

C-17; Tr. 128-133).

14. Citation Item 2h
    a. On May 12, 1987, at 1:00 p.m., on the north

side of the third floor near column 25, a floor opening was
not guarded by a standard guardrail as required by 29 C.F.R. §
1926.500(b) (1) in that there were no midrails, posts were not
spread eight feet or less on center and toeboards were
missing. Said floor opening was accessible to employees at
the work site because it was not cordoned off.

b. It was the responsibility of J. A. Jones
Construction Company to erect and maintain standard guardrails
around floor openings at the work site.

c. The above-described violative conditions were
in plain view. J. A. Jones Construction Company could have
known of the above-described violative condition with the
exercise of reasonable diligence.

d. If an employee fell through or off the floor
opening, the fall would have been 16 feet and could have
resulted in death or serious physical harm (Ex. C-17; Tr. 133-
142).

15. Citation Item 2i

a. On May 12, 1987, at 1:15 p.m., in the southeast
section of the third floor, employees of PPG were working with
metal frames. They were working in close proximity to a floor

opening that was not guarded as required by 29 C.F.R. §

60

1926.500(b)(1). The floor opening did not have toeboards in
the north and south side and cross braces on the guardrail to
minimize deflection.

b. It was the responsibility of J. A. Jones
Construction Company to erect and maintain standard guardrails
around floor openings at the work site.

c. The above-described violative conditions were
in plain view. J. A. Jones Construction Company could have
known of the above-described violative conditions with the
exercise of reasonable diligence.

d. If an employee fell through or off the floor
opening, it would be more than 16 feet and the result could
have been death or serious physical harm. Also, if material
fell off the floor opening due to a lack of toeboards, an
employee below could have been seriously injured or killed
(Ex. C-17; Tr. 142-147).

16. Citation Item 2j

a. On May 12, 1987, at 2:10 p.m., on the fourth
floor between Columns 4 and 6, employees of PPG were working
with metal frames. They were working in close proximity to a
floor opening that was not guarded as required by 29 C.F.R. §
1926.500(b)(1) in that said floor opening did not have a top
and midrail and toeboards along a one and one-half foot wide

perimeter.

61

b. It was the responsibility of J. A. Jones
Construction Company to erect and maintain standard guardrails
around floor openings at the work site.

c. The above-described violative conditions were
in plain view. J. A. Jones Construction Company could have
known of the above-described violative conditions with the
exercise of reasonable diligence.

d. If an employee fell through or off the floor
opening, it would be more than 16 feet and the result could
have been death or serious physical harm. Also, if material
fell off the floor opening due to a lack of toeboards, an
employee below could have been seriously injured or killed
(Ex. C-17; Tr. 147-156).

17. Citation Item 2k

a. On May 12, 1987, at 2:30 p.m., at the southeast
section of the fifth floor, employees of Fujitech were
building an elevator shaft. They were- working in close
proximity to the floor opening that was not guarded as
required by 29 C.F.R. § 1926.500(b)(1) by not having an end-
post tied into the floor or the wall, the midrails were
cracked and there were no toeboards.

b. It was the responsibility of J. A. Jones
Construction Company to erect and maintain standard guardrails
around floor openings at the work site.

c. The above-described violative conditions were

in plain view. J. A. Jones Construction Company could have

62

known of the above-described violative conditions with the
exercise of reasonable diligence.

d. If an employee fell through or off the floor
opening, it would have been at least five stories and the
result could have been death or serious physical harm. Also,
if material fell off the floor opening because of a lack of a
toeboard, an employee below could have been seriously injured
or killed (Ex. C-17; Tr. 156-164).

18. Citation Item 2l

a. On May 12, 1987, west of stairway number five,
a floor opening was not guarded by "a standard guardrail as
required by 29 C.F.R. § 1926.500(b) (1) by not having the top
and midrail secured. Said area was accessible to all
employees at the work site since it was adjacent to stairway
number five and the area was not cordoned off.

b. It was the responsibility of J. A. Jones
Construction Company to erect and maintain standard guardrails
around floor openings at the work site.

c. The above-described violative condition was in
plain view. J. A. Jones Construction Company could have known
of the above-described violative condition with the exercise
of reasonable diligence.

d. If an employee fell through or off the floor
opening, the distance would be 16 feet and could have resulted

in death or serious physical harm (Ex. C-17; Tr. 164-168).

63

19. Citation Item 2m

a. On May 13, 1987, at 10:05 a.m., on stairway
number four at the seventh floor, a floor opening was not
guarded by a standard guardrail as required by 29 C.F.R. §
1926.500(b)(1) in that the guardrail around the stairway
displaced and there were no toeboards. Said floor opening was
accessible to employees at the work site because it was not
cordoned off. -

b. It was the responsibility of J. A. Jones
Construction Company to erect and maintain standard guardrails
around floor openings at the work site.

c. The above-described violative conditions were
in plain view. J. A. Jones Construction Company could have
known of the above-described violative conditions with the
exercise of reasonable diligence.

d. If an employee fell through or off the floor
opening, the distance would be 16 feet and could result in
death or serious physical harm (Ex. C-17; Tr. 168-174).

20. Citation Item 2n

a. On May 13, 1987, at 10:20 a.m., at the
southeast section of the seventh floor, a floor opening was
not guarded by a standard guardrail as required by 29 C.F.R. §
1926.500(b) (1) by having a midrail and toeboards. Said floor
opening was accessible to employees at the work site because

it was not cordoned off.

64

b. It was the responsibility of J. A. Jones
Construction Company to erect and maintain standard guardrails
around floor openings at the work site.

c. The above-described violative conditions were
in plain view. J. A. Jones Construction Company could have
known of the above-described violative conditions with the
exercise of reasonable diligence.

d. If an employee fell through or off the floor
opening, it would be a distance of seven stories and could
result in death or serious physical harm. If material fell
through the floor opening because of a lack of toeboards and
hit an employee, it could result in death or serious physical
harm (Ex. C-17; Tr. 174-179).

21. Citation Item 2o

a. On May 13, 1987, at 2:30 p.m. on the north side
of the 20th floor, a floor opening was not guarded by a
standard guardrail as required by 29 C.F.R. § 1926.500(b) (1)
in that a section of the guardrail lacked mid and top rails,
end posts were not secured and posts were not spaced eight
feet or less on center.

b. It was the responsibility of J. A. Jones
Construction Company to erect and maintain standard guardrails
around floor openings at the work site.

c. The above-described violative conditions were

in plain view. J. A. Jones Construction Company could have

65

known of the above-described violative conditions with the
exercise of reasonable diligence.

d. If an employee fell through or off the floor
opening it would have been 16 feet and result in death or
serious physical harm (Ex. C-17; Tr. 179-185).

22. Citation Item 2p

a. On May 13, 1987, at 2:15 p.m., on the 16th
floor, an employee of CECO Construction Company was erecting
form work for encasing a beam. The employees were working in
close proximity to the floor opening that was not guarded as
required by 29 C.F.R. § 1926.500(b)(1) in that the
guardrailing was not anchored or braced to minimize
deflection.

b. It was the responsibility of J. A. Jones
Construction Company to erect and maintain standard guardrails
around floor openings at the work site.

c. The above-described violative condition was in
plain view. J. A. Jones Construction Company could have known
of the above-described violative condition with the exercise
of reasonable diligence.

d. If an employee fell through or off the floor
opening, it would have been a distance of 16 feet or more.
The result could have been death or serious physical harm (Ex.

C-17; Tr. 193-197).

66

23. Citation Item 2q

a. On the eighth floor near column four, employees
of Thorlief-Larson were installing concrete block along the
north perimeter. They were working in close proximity to the
floor opening that was not guarded as required by 29 C.F.R. §
1926.500(b)(1) in that a four-foot-by-eight-foot area lacked
guardrailing on the north and east sides and the guardrail on
the west side was not secure.

b. It was the responsibility of J. A. Jones
Construction Company to erect and maintain standard guardrails
around floor openings at the work site.

c. The above-described violative condition was in
plain view. J. A. Jones Construction Company could have known
of the above-described violative condition with the exercise
of reasonable diligence.

d. If an employee fell through or off the floor
opening, it would have been approximately 16 feet and the
result could have been death or serious physical harm (Ex.
C-17; Tr. 197-200).

24. Citation Item 2r

a. On June 9, 1987, at 9:00 a.m., on the third
floor, the southeast corner near the alleyway, employees of
Thorlief-Larson were placing concrete block. They were
working in close proximity to the floor opening that was not

guarded as required by 29 C.F.R. § 1926.500(b)(1) in that the

67

guardrailing along the north edge was not braced to minimize
deflections.

b. It was the responsibility of J. A. Jones
Construction Company to erect and maintain standard guardrails
around floor openings at the work site.

c. The above-described violative condition was in
plain view. J. A. Jones Construction Company could have known
of the above-described violative condition with the exercise
of reasonable diligence.

d. If an employee fell through or off the floor
opening, it would have been approximately 16 feet and the
result could have been death or serious physical harm (Ex.
C-17; Tr. 200-203).

25. Citation Item 3a

a. On May 12, 1987, at 2:15 p.m., on the south
side of the fourth floor, employees of Thorlief-Larson were
positioning or moving concrete block. The employees were in
close proximity to the wall opening that was not guarded as
required by 29 C.F.R. § 1926.500(c)(1) in that the perimeter
ropes between column M14 and 15 were not drawn tight to assure
a minimum of deflection. The top rope was hanging 29 inches
above the floor and the bottom rope was 12 inches above the
floor. Both ropes could be deflected close to the floor.

b. J. A. Jones contracted with Kelley Steel

Erectors Corporation to erect wire ropes, but J. A. Jones

Construction Company had the responsibility to maintain the
perimeter wire rope guards.

c. The above-described violative condition was in
plain view. J. A. Jones Construction Company could have known
of the above-described violative condition with the exercise
of reasonable diligence.

d. If an employee fell through or off the wall
opening, the distance would have been approximately 16 feet
and the result could have been death or serious physical harm
(Ex. C-17; Tr. 203-210).

26. Citation Item 3b

a. On May 12, 1987, at 10:10 a.m., on the south
side of the second floor west of the material hoist, employees
of MGM Electrical Contractors had a shanty for electrical
storage and were installing electrical equipment. They were
working in close proximity to the wall opening that was not
guarded as required by 29 C.F.R. § 1926.500(c)(1) in that a
guardrail was missing at the wall opening directly under the
north side of the stairway.

b. It was the responsibility of J. A. Jones
Construction Company to erect and maintain standard guardrails
around floor openings at the work site.

c. The above-described violative condition was in
plain view. J. A. Jones Construction Company could have known
of the above-described violative condition with the exercise

of reasonable diligence.

69

was not guarded by a standard railing or equivalent as
required by 29 C.F.R. § 1926.500(d)(1) in that the perimeter
ropes running south between columns A4 and B4 were not drawn
tight to assure a minimum of deflection. The top rope was
slack. The bottom rope deflected to the floor. Said open-
sided floor was accessible to employees at the work site
because it was not cordoned off.

b. J. A. Jones Construction Company contracted
work with Kelley Steel Erectors to erect perimeter wire rope
guards on open-sided floors, but J. A. Jones Construction
Company had the responsibility to maintain the perimeter wire
rope guards.

c. The above-described violative conditions were
in plain view. J. A. Jones Construction Company could have
known of the above-described violative conditions with the
exercise of reasonable diligence.

d. If an employee fell through or off the open-
sided floor, the distance would have been nine stories and
result in death or serious physical harm (Ex. C-17; Tr. 247-
264).

29. Citation Item 4g

a. On May 8, 1987, at 8:15 p.m., at the southeast
corner of the second floor, employees of Thorlief-Larson were
doing masonry work. They were working in close proximity to
the open-sided floor that was not guarded as required by 29
C.F.R. § 1926.500(d)(1) in that the perimeter ropes running

71

west and north from column M4 were not drawn tight to assure a
minimum of deflection. The top ropes could be deflected to
within 20 inches of the floor or Q-deck.

b. J. A. Jones Construction Company contracted
work with Kelley Steel Erectors to erect perimeter wire rope
guards on open-sided floors, but J. A. Jones Construction
Company has the responsibility to maintain the perimeter wire
rope guards.

c. The above-described violative condition was in
plain view. J. A. Jones Construction Company could have known
of the above-described violative condition with the exercise
of reasonable diligence.

d. If an employee fell through or off the second
floor, the distance would have been two stories and result in
death or serious physical harm (Ex. C-17; Tr. 265-267).

30. Citation Item 4i

a. On May 11, 1987, at 3:00 p.m., in level minus
2, line F14, an open-sided floor was not guarded by a standard
railing as required by 29 C.F.R. § 1926.500(d)(1) in that a
guardrail was not extended above the full length of the floor
underneath the ramp heading up to the next level. Said open-
sided floor was accessible to employees at the work site
because it was not cordoned off. Said opening was 11 feet and
near the CECO Corporation shanty. Employees of CECO

Corporation worked in this area.

72

b. It was the responsibility of J. A. Jones
Construction Company to erect and maintain standard railings
or the equivalent on open-sided floors or platforms at the
work site.

c. The above-described violative condition was in
plain view. J. A. Jones Construction Company could have known
of the above-described violative condition with the exercise
of reasonable diligence.

d. If an employee fell through or off the open-
sided floor, the distance could have been ten feet and result
in death or serious physical harm (Ex. C-17; Tr. 268-274).

31. Citation Item 4j

a. On May 12, 1987, at 9:45 a.m., in the west
podium second floor, an open-sided floor was not guarded by a
standard railing as required by 29 C.F.R. § 1926.500(d)(1) in
that the guardrailing erected around the perimeter of the
atrium was not securely anchored or braced to minimize
deflection. Said open-sided floor was accessible to employees
at the work site because it was not cordoned off.

b. It was the responsibility of J. A. Jones
Construction Company to erect and maintain standard railings
or the equivalent on open-sided floors or platforms at the
work site.

c. The above-described violative condition was in

plain view. J. A. Jones Construction Company could have known

73

of the above-described violative condition with the exercise
of reasonable diligence.

d. If an employee fell through or off the open-
sided floor, the distance would have been 16 feet and result
in death or serious physical harm (Ex. C-17; Tr. 274-278).

32. Citation Item 4k

a. On May 12, 1987, at 9:50 a.m., on stairway
number five between the first and second floors, a landing or
platform was not guarded by a standard railing as required by
29 C.F.R. § 1926.500(d)(1) in that the stairway landing was
not equipped with a midrail. Said landing or platform was
accessible to employees at the work site because it was not
cordoned off.

b. It was the responsibility of J. A. Jones
Construction Company to erect and maintain standard railings
or the equivalent on open-sided floors or platforms. at the
work site.

c. The above-described violative condition was in
plain view. J. A. Jones Construction Company could have known
of the above-described violative condition with the exercise
of reasonable diligence.

d. If an employee fell through or off the landing
or platform, the distance would have been 16 feet and result

in death or serious physical harm (Ex. C-17; Tr. 279-284).

74

33. Citation Item 4l
    a. On May 12, 1987, at 3:30 p.m., on the north

side of the building at the second floor, employees of
Thorlief-Larson were doing masonry work. They were working in
close proximity to the open-sided floor that was not guarded
as required by 29 C.F.R. § 1926.500(d)(1) in that the
removable guardrails erected between columns A12 and 13 were
not extended along the entire distance between the columns.

b. It was the responsibility of J. A. Jones
Construction Company to erect and maintain standard railings
or the equivalent on open-sided floors or platforms at the
work site.

c. The above-described violative condition was in
plain view. J. A. Jones Construction Company could have known
of the above-described violative condition with the exercise
of reasonable diligence.

d. If an employee fell through or off the open-
sided floor, the distance would have been 16 feet and result
in death or serious physical harm (Ex. C-17; Tr. 284-291).

34. Citation Item 4m

a. On May 12, 1987, at 11:30 a.m., at the north
side of the building, second floor between columns A11 and
A12, employees of Thorlief-Larson were doing masonry work.
They were working in close proximity to the open-sided floor

that was not guarded as required by 29 C.F.R. § 1926.500(d) (1)

75

in that the top rope was 12 to 21 inches from the floor and
the bottom rope could be pushed to the ground.

b. J. A. Jones Construction Company contracted
work with Kelley Steel Erectors to erect perimeter wire rope
guards on open-sided floors, but J. A. Jones Construction
Company had the responsibility to maintain the perimeter wire
rope guards.

c. The above-described violative condition was in
plain view. J. A. Jones Construction Company could have known
of the above-described violative condition with the exercise
of reasonable diligence.

d. If an employee fell through or off the open-
sided floor, the distance would have been two stories and
result in death or serious physical harm (Ex. C-17; Tr. 291-
298).

35. Citation Item 4n

a. On May 12, 1987, at 12:30 p.m., on the north
side of the building on the second floor between columns A19
and 21, an employee of Thorlief-Larson was doing masonry work.
He was working in close proximity to the open-sided floor that
was not guarded as required by 29 C.F.R. § 1926.500(d)(1) in
that the perimeter ropes were not drawn tight. The top rope
could be deflected 12 to 21 inches and the mid-rope could be
deflected to the ground.

b. J. A. Jones Construction Company contracted

work with Kelley Steel Erectors to erect perimeter wire rope

76

guards on open-sided floors, but J. A. Jones Construction
Company had the responsibility to maintain the perimeter wire
rope guards.

c. The above-described violative condition was in
plain view. J. A. Jones Construction Company could have known
of the above-described violative condition with the exercise
of reasonable diligence.

d. If an employee fell through or off the open-
sided floor, the distance would have been 16 feet and result
in death or serious physical harm (Ex. C-17; Tr. 299-304).

36. Citation Item 4o

a. On May 12, 1987, at 12:40 p.m., on stairway
number six between the second and third floors, the stairway
was not guarded as required by 29 C.F.R. § 1926.500(d)(1) in
that it was missing a midrail. Said stairway was available to
employees at the work site because it was not cordoned off.

b. It was the responsibility of J. A. Jones
Construction Company to erect and maintain standard railings
or the equivalent on open-sided floors or platforms at the
work site.

c. The above-described violative condition was in
plain view. J. A. Jones Construction Company could have known
of the above-described violative condition with the exercise

of reasonable diligence.

77

d. If an employee fell through or off the
stairway, the distance would have been 15 feet and result in
death or serious physical harm (Ex. C-17; Tr. 304-307).

37. Citation Item 4p

a. On May 12, 1987, at 1:00 p.m. on the north side
of the third floor near column 19, employees of PPG were
installing windows. They were working in close proximity to
the open-sided floor that was not guarded as required by 29
C.F.R. § 1926.500(d)(1) in that the wood railing at the
perimeter of the floor lacked a midrail.

b. It was the responsibility of J. A. Jones
Construction Company to erect and maintain standard railings
or the equivalent on open-sided floors or platforms at the
work site.

c. The above-described violative condition was in
plain view. J. A. Jones Construction Company could have known
of the above-described violative condition with the exercise
of reasonable diligence.

d. If an employee fell through or off the open-
sided floor, the distance would have been three stories and
result in death or serious physical harm (Ex. C-17; Tr. 307-
310).

38. Citation Item 4q

a. On May 12, 1987, at 1:30 p.m., on the east side

of the third floor between columns eight and nine, an open-

sided floor was not guarded as required by 29 C.F.R. §

78

1926.500(d)(1) in that the perimeter ropes were not drawn
tight to assure a minimum deflection. The top rope could be
deflected to within 21 inches of the floor and the bottom rope
could be deflected to the floor.

b. J. A. Jones Construction Company contracted
work with Kelley Steel Erectors to erect perimeter wire rope
guards on open-sided floors, but J. A. Jones Construction
Company had the responsibility to maintain the perimeter wire
rope guards.

c. The above-described violative condition was in
plain view. J. A. Jones Construction Company could have known
of the above-described violative condition with the exercise
of reasonable diligence.

d. If an employee fell through or off the open-
sided floor, the distance would have been three stories and
result in death or serious physical harm (Ex. C-17; Tr. 311-
315).

39. Citation Item 4r

a. On May 12, 1987, at 2:00 p.m., on stairway
number one between the third and fourth floors, employees of
PPG were installing windows. They were working in close
proximity to the open-sided floor that was not guarded as
required by 29 C.F.R. § 1926.500(d)(1) in that there were no
midrails.

b. It was the responsibility of J. A. Jones

Construction Company to erect and maintain standard railings

79

or the equivalent on open-sided floors or platforms at the
work site.

c. The above-described violative condition was in
plain view. J. A. Jones Construction Company could have known
of the above-described violative condition with the exercise
of reasonable diligence.

d. If an employee fell through or off the open-
sided floor, the distance would have been more than ten feet
and result in death or serious physical harm (Ex. C-17; Tr.
315-320).

40. Citation Item 4s

a. On May 12, 1987, at 2:00 p.m., on stairway
number six. between the third and fourth floors, employees of
PPG were installing windows. They were working in close
proximity to the stairway landing or platform that was not
guarded as required by 29 C.F.R. § 1926.500(d)(1) in that
there were no midrails.

b. It was the responsibility of J. A. Jones
Construction Company to erect and maintain standard railings
or the equivalent on open-sided floors or platforms at the
work site.

c. The above-described violative condition was in
plain view. J. A. Jones Construction Company could have known
of the above-described violative condition with the exercise

of reasonable diligence.

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d. If an employee fell through or off the stairway
landing or platform, the distance could have been more than
ten feet and result in death or serous physical harm (Ex.
C-17; Tr. 320-323).

41. Citation Item 4t

a. On May 12, 1987, at 2:25 p.m., on stairway
number one between the fourth and fifth floors, employees of
PPG were installing windows. They were working in close
proximity to the stairway or platform that was not guarded as
required by 29 C.F.R. § 1926.500(d)(1) in that there was not a
midrail.

b. It was the responsibility of J. A. Jones
Construction Company to erect and maintain standard railings
or the equivalent on open-sided floors or platforms at the
work site.

c. The above-described violative condition was in
plain view. J. A. Jones Construction Company could have known
of the above-described violative condition with the exercise
of reasonable diligence.

d. If an employee fell through or off the stairway
landing or platform, the distance could have been more than
ten feet and result in death or serious physical harm (Ex.
C-17; Tr. 323-324).

42. Citation Item 4u
    a. On May 12, 1987, at 3:00 p.m., on the west side

of the fifth floor at the atrium, employees of Thorlief-Larson

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were doing masonry work. They were working in close proximity
to the open-sided floor that was not guarded as required by 29
C.F.R. § 1926.500(d)(1) in that the perimeter ropes were not
drawn tight. The top rope could be deflected to within 29
inches of the floor and the bottom rope to within 9 inches.
On the west side of the atrium the ropes were drawn together.

b. J. A. Jones Construction Company contracted
work with Kelley Steel Erectors to erect perimeter wire rope
guards on open-sided floors, but J. A. Jones Construction
Company had the responsibility to maintain the perimeter wire
rope guards.

c. The above-described violative condition was in
plain view. J. A. Jones Construction Company could have known
of the above-described violative condition with the exercise
of reasonable diligence.

d. If an employee fell through or off the open-
sided floor, the distance would have been five stories and
result in death or serious physical harm (Ex. C-17; Tr. 324-
331).

43. Citation Item 4v

a. On May 13, 1987, at 8:15 a.m., on the west side
of the sixth floor around the atrium, employees of Thorlief-
Larson were doing masonry work. They were working in close
proximity to the open-sided floor that was not guarded as

required by 29 C.F.R. § 1926.500(d)(1) in that the wood

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guardrails and perimeter ropes were not constructed to stand a
minimum of deflection.

b. It was the responsibility of J. A. Jones
Construction Company to erect and maintain standard railings
or the equivalent on open-sided floors or platforms at the
work site.

c. The above-described violative condition was in
plain view. J. A. Jones Construction Company could have known
of the above-described violative condition with the exercise
of reasonable diligence.

d. If an employee fell through or off the open-
sided floors, the distance would have been six stories and
result in death or serious physical harm (Ex. C-17; Tr. 331-
335).

44. Citation Item 4w

a. On May 13, 1987, at 10:00 a.m., on the
northeast corner of level 7½, employees of Thorlief-Larson
were doing masonry work. They were working in close proximity
to an open-sided floor that was not guarded as required by 29
C.F.R. § 1926.500(b)(1) in that there was no midrail along
the east perimeter.

b. It was the responsibility of J. A. Jones
Construction Company to erect and maintain standard railings
or the equivalent on open-sided floors or platforms at the

work site.

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c. The above-described violative condition was in
plain view. J. A. Jones Construction Company could have known
of the above-described violative condition with the exercise
of reasonable diligence.

d. If an employee fell through or off the open-
sided floor, the distance would have been seven and one-half
stories and result in death or serious physical harm (Ex.
C-17; Tr. 336-339).

45. Citation Item 4x

a. On May 13, 1987, at 10:15 a.m., at the
southeast corner of level 7½, employees of Thorlief-Larson
were doing masonry work. They were working in close proximity
to an open-sided floor that was not guarded as required by 29
C.F.R. § 1926.500(b)(1) in that a midrail was not installed
along the east perimeter and the wire rope serving as a
midrail on the south perimeter was 17 inches above the. floor.

b. J. A. Jones Construction Company contracted
work with Kelley Steel Erectors to erect perimeter wire rope
guards on open-sided floors, but J. A. Jones Construction
Company had the responsibility to maintain the perimeter wire
rope guards.

c. The above-described violative conditions were
in plain view. J. A. Jones Construction Company could have
known of the above-described violative conditions with the

exercise of reasonable diligence.

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d. If an employee fell through or off the open-
sided floor, the distance would have been seven and one-half
stories and result in death or serious physical harm (Ex.
C-17; Tr. 339-342).

46. Citation Item 4y

a. On May 13, 1987, at 11:30 a.m., on the north
side of the eighth floor between columns 20 and 21, employees
were working in close proximity to an open-sided floor which
was not guarded as required by 29 C.F.R. § 1926.500(b) (1).
Said floor was accessible to all employees at the work site
because it was not cordoned off.

b. J. A. Jones Construction Company contracted
work with Kelley Steel Erectors to erect perimeter wire rope
guards on open-sided floors, but J. A. Jones Construction
Company had the responsibility to maintain the perimeter wire
rope guards.

c. The above-described violative condition was in
plain view. J. A. Jones Construction Company could have known
of the above-described violative condition with the exercise
of reasonable diligence.

d. If an employee fell through or off the open-
sided floor, the distance would have been eight stories and
result in death or serious physical harm (Ex. C-17; Tr. 342-

347).

47. Citation Item 4z

a. On May 11, 1987, at 11:30 a.m., on the south
side of the ninth floor, an open-sided floor adjacent by the
Kelley Steel Erectors' office trailer was not guarded as
required by 29 C.F.R. § 1926.500(b)(1) in that the top rope
was 23 inches high and mid-rope was lying on the floor. Said
open-sided floor was accessible to employees at the work site
because it was not cordoned off.

b. J. A. Jones Construction Company contracted
with Kelley Steel Erectors to erect perimeter wire rope guards
on open-sided floors, but J. A. Jones Construction Company had
the responsibility to maintain the perimeter wire rope guards.

c. The above-described violative condition was in
plain view. J. A. Jones Construction Company could have known
of the above-described violative condition with the exercise
of reasonable diligence.

d. If an employee fell through or off the open-
sided floor, the distance would have been nine stories and
result in death or serious physical harm (Ex. C-17; Tr. 347-
352).

48. Citation Item 5a

a. On May 13, 1987, at 1:00 p.m., on the south
stairway, 12th floor, a stairway on the left side did not have
any railings as required by 29 C.F.R. § 1926.500(e) (1) (ii).
Said stairway was accessible to employees at the work site

because it was not cordoned off.

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b. It was the responsibility of J. A. Jones
Construction Company to erect and maintain standard railings
or the equivalent on open-sided floors or platforms at the

work site.

c. The above-described violative condition was in
plain view. J. A. Jones Construction Company could have known
of the above-described violative condition with the exercise
of reasonable diligence.

d. If an employee fell through or off the
stairway, a distance of 16 feet, the result could have been
death or serious physical harm (Ex. C-17; Tr. 360-362).

49. Citation Item 5b

a. On May 12, 1987, at 9:45 a.m., on stairway.
number five, the first flight of stairs from the second floor,
there was no stair railing on the right side as required by 29
C.F.R. § 1926.500(e)(1)(ii). Employees had access to the
stairs because they were not cordoned off.

b. It was the responsibility of J. A. Jones
Construction Company to erect and maintain standard railings
or the equivalent on open-sided floors or platforms at the
work site.

c. The above-described violative condition was in
plain view. J. A. Jones Construction Company could have known
of the above-described violative condition with the exercise

of reasonable diligence.

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d. If an employee fell through or off the
stairway, the result could have been death or serious physical
harm. The distance would have been 16 feet or more.

50. Citation Item 5c

a. on May 13, 1987, at 1:00 p.m, on the north
stairway, 12th floor, a stairway was not equipped with
railings at the left side as required by 29 C.F.R. 5
1926.500(e) (1) (ii). Employees had access to the stairs
because they were not cordoned off.

b. It was the responsibility of J. A. Jones
Construction Company to erect and maintain standard railings
or the equivalent on open-sided floors or platforms at the
work site.

c. The above-described violative condition was in
plain view. J. A. Jones Construction Company could have known
of the above-described violative condition with the exercise
of reasonable diligence.

d. If an employee fell through or off the
stairway, it would have been a distance of 16 feet and result

in death or serious physical harm (Ex. C-17; Tr. 357-360).

CONCLUSIONS OF LAW

1. This court has jurisdiction of the parties and
   subject matter in this case.
2. Respondent seriously violated 29 C.F.R. §

1926.20(b)(1) and (2) by its failure to initiate and maintain

a safety program that included the frequent and regular
inspection of the work site to detect and correct hazardous
conditions.

3. Respondent seriously violated 29 C.F.R. §
   1926.500(b) (1), 1926.500(c)(1), 1926.500(d)(1),
   1926.500(e)(1) (ii) and 1926.500(f)(1) as set forth in findings

of fact 7 through 50.

It is ORDERED:

1. Citation No. 1, Items 1a and 1b, are affirmed as
   serious violations with a total penalty of $2,000.00 assessed.

2. Citation No. 1, Items 2a through 2r, and complaint
   items 2 through 19 are affirmed as serious violations with a
   total penalty of $18,000.00 assessed.

3. Citation No. 1, Items 3a and 3b, complaint items 20
   and 21, are affirmed as serious violations with a total
   penalty of $2,000.00 assessed.

4. Citation No. 1, Items 4b and 4f through 4z,
   complaint items 23 and 27 through 47 will be affirmed as
   serious violations with a total penalty of $22,000.00
   assessed.

5. Citation No. 1, Items 4a, 4c, 4d and 4e, complaint

items 22, 24, 25 and 26, are vacated.

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6. Citation No. 1, Items 5a, 5b, and 5c, complaint
   items 48, 49, and 50, will be affirmed as serious violations
   with a total penalty of $3,000.00 assessed.

7. Citation No. 1, Item 6, is vacated.

Dated this 18th day of April, 1990.

/s/ Edwin G. Salyers

EDWIN G. SALYERS
Judge

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