Hackensack Steel Corp.

Plain-English summary

Hackensack Steel was erecting structural steel at a medical-center project when two connectors worked as high as 43 feet without exterior or interior fall protection and without hardhats. Unprotected reinforcing steel also created an impalement hazard below them. The Commission rejected Hackensack's arguments that wind conditions required the work, that the employees engaged in misconduct, and that the general contractor was responsible for the rebar hazard. It affirmed the temporary-flooring and hardhat violations as willful, repeat, and serious, the exterior fall-protection violation as repeat and serious, and the rebar violation as serious. The Commission grouped the two fall-protection violations for a $70,000 penalty and assessed total penalties of $121,500.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.105(a), 1926.701(b), 1926.100(a), and 1926.750(b)(2)(i)
• Outcome: All four violations were affirmed, with total penalties of $121,500.
• Key point: A supervisor who knowingly proceeds without required decking and fails to monitor readily observable personal-protection violations can establish employer knowledge and willfulness.

Full text (OSHRC public release)

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SECRETARY OF
LABOR,

Complainant,

v.

OSHRC Docket No.
97-0755

HACKENSACK STEEL CORP.,

Respondent.

DECISION

Before: RAILTON,
Chairman; STEPHENS and ROGERS, Commissioners.

BY THE
COMMISSION:

Hackensack
Steel Corp. (“Hackensack”) is in the business of steel erection. Over the
course of eight different dates from October 24, 1996 - April 18, 1997, the
Occupational Safety and Health Administration (“OSHA”) conducted an inspection
of a worksite at the Hackensack Medical Center in Hackensack, New Jersey, where
Hackensack was working as the steel erection subcontractor. Following the
inspection, the Secretary of Labor (“Secretary”) issued a citation alleging
four violations of the Occupational Safety and Health Act (“the Act”), 29
U.S.C. §§ 651-678.

All
the citation items on review involve events that took place on October 24,
1996, the first day of the OSHA inspection: a serious and repeat violation of
29 C.F.R. § 1926.105(a) for failure to have exterior fall protection; a
serious violation of 29 C.F.R. § 1926.701(b) for exposing employees to
unprotected rebar; a willful, repeat, and serious violation of 29 C.F.R.
§ 1926.100(a) for not wearing hardhats; and a willful, repeat, and serious
violation of 29 C.F.R. § 1926.750(b)(2)(i) for not having temporary decking below
the employees in case of an interior fall. Administrative Law Judge Covette
Rooney affirmed all four items and assessed the penalties proposed by the
Secretary.

For the reasons below, we affirm all four items as
alleged by the Secretary and affirmed by the judge. However, we group the two
violations involving fall hazards for penalty purposes and assess a single
penalty of $70,000. We affirm the judge on the penalty amounts assessed for the
other two violations.

Background

At the Medical Center worksite, Hackensack raised the
steel in tiers, two stories at a time, and by October 24, 1996, the first tier
had been erected. Hackensack had contracted to have decking, to be used as
interior fall protection, delivered at 7:00 that morning. However, the decking
did not arrive at the scheduled time. Around 9:30 a.m., Hackensack’s crew began
working on the second level, erecting two-story vertical columns from the
second floor to the fourth floor. While they were erecting the columns, the
employees worked at a height of 24 feet; thus, they were working below the
height at which OSHA’s fall protection standards require interior and exterior
fall protection.

Hackensack’s foreman testified that because it was a
windy day, he was concerned that the steel columns that had been erected would
not be stable and might fall on the employees of other employers working at the
site or into a nearby apartment building. The foreman testified that due to his
concerns, and in order to stabilize the columns, he instructed the two
employees (the “connectors”) who had been erecting the columns to connect them
with 8 beams on the third level and to put in wind bracing columns. This task
involved working above 25 feet with neither a temporary floor to protect
against interior falls nor any protection against exterior falls. As Hackensack
acknowledges in its brief on review, the foreman made the decision to tie in
the columns above the 25-foot level after he learned that the decking would not
arrive. In addition, the two connectors’ hardhats fell off some time during the
connecting work. The hardhats were not returned until the connectors went down
to the ground for their lunch break.

OSHA
Compliance Officer Charles Triscritti (“CO Triscritti”) drove by Hackensack’s
worksite, which he had been assigned to inspect, between 8:00 and 8:30 a.m. on
October 24. At that time, he observed that skeletal steel had been erected
to the second story, but he did not see any employees up on the steel. At
approximately 11:00 a.m., he returned to the job site to conduct his
inspection. Upon his arrival, he observed that the columns had risen two
stories above the second story and there were beams connecting some of the
columns at the third story level. As CO Triscritti walked up to the worksite,
he saw two connectors without hardhats on the third story, about 43 feet from
the ground.

As
CO Triscritti watched, a crane brought in steel columns within a couple of feet
of the connectors’ heads. The connectors then put in bolts to join the steel.
The employees were not tied off to prevent a fall to either the exterior or the
interior of the structure. On the exterior, there were no ladders, catch
platforms, safety nets, or scaffolding. On the interior, there was no decking
within 30 feet or two stories of where the employees worked. As the connectors
approached the outside of the steel, which CO Triscritti believed to be at
heights between 27 to 43 feet, they had no fall protection whatsoever. CO
Triscritti observed the two connectors sliding down a column from the 43-foot
level to the 27-foot level also without fall protection. In addition, he noted
that at the ground level directly under the connectors, there were more than
100 vertical protruding reinforcing rods that were neither protected nor bent.

After observing the connectors’ activity for
approximately ten minutes, CO Triscritti proceeded to the general contractor’s
office. On his way, he watched as another column was brought in to continue the
steel erection process. The connectors installed this column in the same manner
as the others. When CO Triscritti met with the general contractor and reviewed
the plans that the general contractor produced, he learned that the distance
from the ground level to the first level of steel was 11 feet; from the first
level of steel to the second level of steel was 16 feet (for a total of 27
feet); and from the second level of steel to the 12 columns that had been
installed on the third level of steel was 16 feet (for a total of 43 feet off
the ground). After the lunch break, CO Triscritti also met with Hackensack’s
foreman. The foreman indicated that there were ten Hackensack employees on site
that day and that he had been on the ground that morning directing the crane
operator to hoist the steel up to the connectors working on the skeletal steel.

THE FALL PROTECTION AND HARDHAT VIOLATIONS

Hackensack
does not dispute the essential facts regarding the alleged violations of 29
C.F.R. § 1926.750(b)(2)(i) (failure to use temporary flooring), 29 C.F.R.
§ 1926.105(a) (failure to use any of the fall protection abatements
specified by this standard), and 29 C.F.R. § 1926.100(a) (failure to use
hardhats). Essentially, Hackensack’s arguments as to the fall hazard
allegations are that tying in the columns was necessary because of wind
conditions at the worksite and it would have been hazardous to leave them
untied; and the use of safety belts would have constituted abatement under both
fall protection standards but the connectors engaged in employee misconduct by
not using them. Hackensack also argues that it had no knowledge that its
employees were not using their personal fall protection equipment or that their
hardhats had fallen off while they were connecting the columns with beams.
According to Hackensack, the foreman on site was engaged in selecting the
connecting beams and did not have the two connectors in sight at the time the
compliance officer observed the cited conditions. We conclude that these
arguments lack merit.

The Fall Protection Items

The
Secretary has on occasion cited employers under the fall protection standards
cited in this case. See, e.g., Donovan v. Daniel Marr & Son Co. ,
763 F.2d 477 (1st Cir. 1985); Peterson Bros. Steel Erection Co. , 16 BNA
OSHC 1196, 1993-95 CCH OSHD ¶ 30,052 (No. 90-2304, 1993), aff’d , 26
F.3d 573 (5th Cir. 1994). The Secretary’s policy has been to cite unprotected
fall hazards to the exterior of the steel under section 1926.105 and fall
hazards to the interior under section 1926.750 when temporary floors were not
established within 30 feet or two stories, whichever is less, beneath the
workers. Abatement under section 1926.105(a) allows the employer to use a
number of alternative forms of protection including the use of personal fall
arrest equipment. However, section 1926.750(b)(2)(i) prescribes the use of
temporary floors as fall protection. Personal protective equipment is not
mentioned as an alternative to temporary floors.

Hackensack
does not dispute that at the time of the inspection, it did not have the temporary
decking in place as required by the steel erection fall protection standard.
Similarly, it does not dispute the fact that two of its connectors were working
without using their fall protection equipment at the third level of the steel
in order to install connecting beams and wind bracing columns. The two
connectors were exposed to a 43-foot fall hazard both to the exterior and the
interior of the steel. Accordingly, Hackensack failed to comply with the terms
of either section 1926.750(b)(2)(i) or 1926.105(a).

The Hardhat Item

The Secretary charged Hackensack with a willful
violation of § 1926.100(a) in that the two connectors were not wearing hardhats
while on the steel. Although they were wearing them when they went up on the
steel, the helmets fell off as they were connecting the columns. The connectors
testified that they called out to the signalman that they had lost their
hardhats, and the record establishes that the hats were returned when the two
connectors descended the steel for lunch. One of the connectors testified that
he received five or six pieces of steel after his hat fell off, and the other
connector testified that he worked on an additional two beams and two columns
after his hat fell off.

Hackensack
argues that the connectors were not exposed to overhead hazards while they
performed their work, but CO Triscitti testified that he observed the crane
bringing the steel within a few feet of a connector. While it may be that the
hazard of being struck by the beams was remote and that hardhats may not have
offered much protection from such a hazard, we believe that the Secretary
through the testimony of the compliance officer has adduced sufficient evidence
to make out a prima facie case for exposure.

Knowledge of the Cited Conditions       

Hackensack argues that it did not have knowledge of
either the safety belt violation or the hardhat violation. According to
Hackensack, its foreman did not observe the connectors and could not have known
they were not wearing their personal fall protection equipment or hardhats.
There is conflicting testimony in the record concerning whether the foreman had
actual knowledge of the violative conditions, but it is not necessary to
resolve this conflict since we find, for the following reasons, that Hackensack
could have discovered the violations had it exercised reasonable diligence.

Hackensack’s foreman sent the connectors onto the
steel knowing that the working conditions did not comply with the steel
erection fall protection standard. The foreman knew that this meant the
connectors had to use personal protective equipment as protection against fall
hazards, instead of temporary floors. He also knew that they were required to
wear hardhats. Despite this, the foreman took himself out of position to
monitor the connectors’ work. Under the circumstances and given Hackensack’s
lengthy history of OSHA citations for failure to use safety belts and hardhats,
as discussed below, we believe that the foreman should have done more to
discover safety hazards than he did. This is not to suggest that he had to
monitor the connectors the entire time they were on the steel. However, we find
that it is reasonable to expect him to have checked them from time-to-time or
to direct another employee – such as the signalman, who was in visual contact
with the connectors – to apprise him of the situation. Automatic Sprinkler
Corp. of America , 8 BNA OSHC 1384, 1387, 1980 CCH OSHD ¶ 24,495, p. 29,926
(No. 76-5089, 1980) (employer “must make a reasonable effort to anticipate the
particular hazards to which its employees may be exposed in the course of their
scheduled work”). Cf. Texas A.C.A., Inc. , 17 BNA OSHC 1048, 1050-51,
1993-95 CCH OSHD ¶ 30,652, pp. 42,525-27 (No. 91-3467, 1995) (only reasonable
monitoring efforts are required).

We note that Hackensack is no novice to allegations of
the kind in this case. Hackensack should have perceived a need for increased
monitoring based on the six final orders for violations of section 1926.105(a)
it received from October 1986 to April 1993, as well as the eight prior final
orders it received for violating section 1926.100. See Pace Constr.
Co. , 14 BNA OSHC 2216, 2222, 1991-93 CCH OSHD ¶ 29,333, p. 39,432 (No.
86-758, 1991) (“failure to enforce fall protection requirements was a
long-standing problem”). Effective implementation of a safety program requires
a diligent effort to discover and discourage violations of safety rules. Propellex
Corp. , 18 BNA OSHC 1677, 1682, 1999 CCH OSHD ¶ 31,792, p. 46,590 (No.
96-265, 1999). Furthermore, the foreman here conceded that he was involved in a
previous citation issued to Hackensack in October 1991, involving both a
hardhat and a section 1926.105(a) violation. The foreman was apparently unaware of two other citations issued to
Hackensack in 1993 involving worksites where he was the foreman, including one
involving a violation of section 1926.105(a). The foreman’s testimony that he was unaware of these citations is
compelling evidence that Hackensack has not been reasonably diligent about
eliminating safety violations since it failed to even inform the individual in
charge of safety on the site that there were safety problems that needed to be
corrected.

In view of Hackensack’s numerous prior OSHA citations
for violations of the cited standards and its failure to inform its foreman
that citations had been issued to Hackensack at worksites where he was in
charge, we find that the foreman’s decision to leave these employees on their
own was foreseeable. See Danco Constr. Co. v. OSHRC , 586 F.2d 1243,
1247 (8th Cir. 1978) (employer cannot hide behind lack of knowledge of working
practices when it fails to properly train and supervise its employees).  

Accordingly, we find that Hackensack had constructive
knowledge of the violative conditions.

The Greater Hazard Defense

According
to Hackensack, the connectors had to connect the columns and provide wind
bracing even though temporary flooring was not available at that time because
there was a danger that the steel might collapse due to wind conditions at the
site. Although Hackensack characterizes this argument as a greater hazard
defense, its claims do not fall within the parameters of that defense. The
Commission has held that an employer asserting the greater hazard defense must
demonstrate that the hazards of compliance with the standard are greater than
noncompliance; that alternative means of protecting employees were either used
or not available; and that an application for a variance under section 6(d) of
the Act would be inappropriate. Peterson Bros. Steel Erection Co. , 16
BNA OSHC at 1204, 1993-95 CCH OSHD at p. 41,304; State Sheet Metal Co.,
16 BNA OSHC 1155, 1159, 1993-95 CCH OSHD ¶ 30,042, p. 41,225 (No.
90-1620, 1993).  

Usually,
this defense is raised when the greater hazard is to the cited employer’s
employees exposed to the non-complying condition. In this case, the
non-complying condition would be Hackensack’s failure to use temporary
flooring, and the exposed employees would be its connectors. However,
Hackensack claims that the danger here was to the employees of other employers
and to the adjacent property. While these arguments might have some appeal were
they fully developed, we need not address them further because it is clear that
Hackensack did not use an alternative means of protecting its employees from
the fall hazard. Although personal fall protection equipment was available to
protect the connectors, Hackensack failed to take reasonable steps to ensure
that the connectors actually used the equipment. Accordingly, the greater
hazard defense has not been established.

The Employee Misconduct Defense

Hackensack
raises the employee misconduct defense in rebuttal to the Secretary’s case for
constructive knowledge as to both fall protection violations and the hardhat
violation. To establish the defense, Hackensack has the burden of showing that:
(1) it has established work rules designed to prevent the violations; (2) it
has adequately communicated the rules to its employee; (3) it has taken steps
to discover violations; and (4) it has effectively enforced the rules when
violations are discovered. Danis Shook Joint Venture XXV , 19 BNA OSHC
1497, 1502, 2001 CCH OSHD ¶ 32,397, p. 49,866 (No. 98-1192, 2001), aff’d ,
319 F.3d 805 (6th Cir. 2003); GEM Industrial, Inc., 17 BNA OSHC 1861,
1863, 1995-97 CCH OSHD ¶ 31,197, p. 43,688 (No. 93-1122, 1996), aff’d without
published opinion, 149 F.3d 1183 (6th Cir. 1998). Accord Brock v. L. E.
Myers Co ., 818 F.2d 1270, 1276-77 (6th Cir. 1987), cert. denied , 484
U.S. 989 (1987).

Hackensack
makes virtually no attempt to demonstrate that the conduct of its foreman in
determining to proceed with steel erection while knowing he lacked temporary
decking was misconduct. It merely argues that management above his level did
not specifically authorize him to proceed as he did. None of the elements of
the rebuttal case has been proved as to this charge.

We
also conclude that Hackensack failed to establish the defense as to the failure
of the connectors to use fall protection equipment and hardhats. The third
element of the rebuttal case requires an employer to demonstrate it has taken
steps to discover the violations. Here, as we have noted, Hackensack’s foreman
made no attempt to observe the work of the connectors and did not bother to
check on them, even once. In the circumstances, we conclude that Hackensack has
failed to rebut the Secretary’s prima facie case.

Characterization

The section 1926.750(b)(2)(i) violation for the
failure to use temporary decking was cited as serious and willful; the
Secretary amended the citation to add the allegation that the violation was
also repeated. Like the judge, we affirm all three characterizations.

A
violation is serious under section 17(k) of the Act, 29 U.S.C. § 666(k),
“if there is a substantial probability that death or serious physical harm
could result.” “That provision does not mean that the occurrence of an accident
must be a substantially probable result of the violative condition but, rather,
that a serious injury is the likely result should an accident occur.” Miniature
Nut & Screw Corp. , 17 BNA OSHC 1557, 1558, 1995-97 CCH OSHD
¶ 30,986, p. 43,176 (No. 93-2535, 1996). Because the connectors were
exposed to a fall of 40 feet, a serious injury was likely if one of them had
fallen. The violation was therefore properly classified as serious.

In addition, Hackensack had seven prior fall
protection violations, including one for violating section 1926.750. A violation is properly classified as
repeated under section 17(a) of the Act if, at the time of the alleged repeated
violation, there was a Commission final order against the same employer for a
substantially similar violation. See, e.g., Jersey Steel Erectors , 16 BNA OSHC 1162, 1167-68, 1993-95 CCH OSHD
¶ 30,041, p. 41,219 (No. 90-1307, 1993), aff’d without published
opinion , 19 F.3d 643 (3rd Cir. 1994). Under Commission precedent, the “time
between violations does not bear on whether a violation is repeated.” Id.
at 1168, 1993 CCH OSHD at p. 41,220.

Notwithstanding this clear precedent, Hackensack
argues that the most recent prior violation was over three years old and that
OSHA’s Field Inspection Reference Manual (“the FIRM”) states that a citation
should not be cited as repeated unless the final order date or the final
abatement date of the prior citation is within three years of the current
violation. See FIRM, Chp. III, C, 2, f, (3). However, the FIRM also
indicates that there are no statutory limitations upon the length of time that
a citation may serve as the basis for a repeated violation. Id. The
Commission has held that the FIRM and its predecessor, Field Operations Manual,
are only a guide for OSHA personnel to promote efficiency and uniformity, are
not binding on OSHA or the Commission, and do not create any substantive rights
for employers. Hamilton Fixture , 16 BNA OSHC 1073, 1079, 1993-95 CCH
OSHD ¶ 30,034, pp. 41,174-75 (No. 88-1720, 1993), aff’d , 28 F.3d 1213
(6th Cir. 1994) (unpublished); Andrew Catapano Ent. , 17 BNA OSHC 1776,
1780, 1995-97 CCH OSHD ¶ 31,180, p. 43,606 (No. 90-50, 1996) (consolidated); Orion
Constr. , 18 BNA OSHC 1867, 1868 n.3, 1999 CCH OSHD ¶ 31,896, p. 47,222, n.3
(No. 98-2014, 1999). Accordingly, Hackensack’s argument must fail and a
repeated violation has been established.

The Secretary also alleged that the decking violation
was willful. A willful violation is one committed with intentional, knowing, or
voluntary disregard for the requirements of the Act or with plain indifference
to employee safety. A showing of evil or malicious intent is not necessary to
establish willfulness. A willful violation is differentiated from a nonwillful
violation by an employer’s heightened awareness of the illegality of the
conduct or conditions and by a state of mind, i.e. , conscious disregard
or plain indifference for the safety and health of employees. Great Lakes
Packaging Corp. , 18 BNA OSHC 2138, 2140-41, 2000 CCH OSHD ¶ 32,094, p.
48,186 (No. 97-2030, 2000). Furthermore, an “employer is responsible for the
willful nature of its supervisor’s actions to the same extent that the employer
is responsible for their knowledge of violative conditions.” Tampa
Shipyards, Inc. , 15 BNA OSHC 1533, 1539, 1991-93 CCH OSHD ¶ 29,617, p.
40,101 (No. 86-360, 1992) (consolidated) (citations omitted). A willful
violation is not 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 were not entirely effective or complete. The test of good faith for
these purposes is an objective one – whether the employer’s belief concerning a
factual matter or concerning the interpretation of a rule was reasonable under
the circumstances of the case. Great Lakes Packaging Corp. , 18 BNA OSHC
at 2140-41, 2000 CCH OSHD at p. 48,186.

The Secretary has established that the foreman acted
with conscious disregard for the requirements of the standard and that
Hackensack is responsible for the foreman’s willful action. It is clear from
the record that the foreman knew that decking was required and made a conscious
decision to proceed without it. Even if Hackensack had a good faith belief that
its approach was safer than complying with the standard, an employer who
deliberately ignores the requirements of a standard still commits a willful
violation. Valdak Corp. v. OSHRC , 73 F.3d 1466 (8th Cir. 1996); Reich
v. Trinity Indus. , 16 F.3d 1149 (11th Cir. 1994). On the evidence in this record, we find
that the violation was willful, repeat, and serious as alleged.

The
section 1926.105(a) violation for the failure to use personal fall protection
was originally cited as serious. The Secretary amended the citation to allege
that the item was repeated. The judge found that the violation was serious and
repeated. In light of the fact that the connectors were exposed to a fall of
forty feet, death or serious injury would be likely if a fall had occurred.
Thus, we agree with the judge that a serious violation is therefore
established. Based on Hackensack’s six prior final orders for violating section
1926.105(a), the violation is also properly classified as repeated, as the
judge found. See Jersey Steel Erectors. For the reasons discussed above,
we reject the argument that the prior citations are “stale.”

The section 1926.100(a) violation for the failure to
use hardhats was cited as serious and willful. The Secretary amended the
citation to add the allegation that the violation was also repeated.
Hackensack’s manager agreed that if an employee was not wearing a hardhat and
was hit in the head by an incoming beam, he could be seriously injured. The
violation is clearly serious.

We
also find that the violation is repeated. The judge found that Hackensack had
ten prior final orders alleging violations of the same standard. Hackensack has
argued that not all the prior hardhat violations claimed by the Secretary
involved the company. We agree with Hackensack that, like the prior fall
protection violation discussed supra at note 4, the record lacks
sufficient evidence to establish that two of the prior hardhat violations were
issued to the same company cited here. Accordingly, we will not consider two of
the ten prior violations of section 1926.100(a) in determining whether the
current violation of this standard was properly characterized as repeat.
However, on this record, there are eight prior final orders for violations of
section 1926.100(a) issued over a period of nine years against Hackensack.
Again, we reject Hackensack’s argument that these prior violations are “stale.”

In
addition, we find that the hardhat violation is willful. Hackensack’s extensive
prior history of hardhat violations and the foreman’s own involvement with at
least one of these prior violations of which he was made aware establish a
heightened awareness of the requirements of section 1926.100(a). Revoli
Constr. Co. , 19 BNA OSHC 1682, 1685, 2001 CCH OSHD ¶ 32,497, p. 50,377 (No.
00-315, 2001) (“ Revoli ”). As we have already noted, given its long
history of hardhat violations, Hackensack was sufficiently alerted to the need
for increased monitoring of its employees to prevent future violations. Id.
at 1686, 2001 CCH OSHD at p. 50,378; Falcon Steel Co. , 16 BNA OSHC 1179,
1188, 1993-95 CCH OSHD ¶ 30,059, p. 41,336 (No. 89-2883, 1993) (consolidated).
Yet, as its foreman’s conduct in this case shows, Hackensack failed to take effective
steps to monitor compliance with the cited standard. We find that this
demonstrates a plain indifference to employee safety, as well as the
requirements of the cited standard. Anderson Excavating & Wrecking Co. ,
17 BNA OSHC 1890, 1892-93, 1995-97 CCH OSHD ¶ 31,228, p. 43,788-89 (No.
92-3684, 1997), aff’d , 131 F.3d 1254 (8th Cir. 1997). See also Revoli ,
19 BNA OSHC at 1685-86, 2001 CCH OSHD at pp. 50,377-78. Accordingly, this
violation was properly characterized by the judge as willful.

Penalty

Section 17(j) of the Act, 29 U.S.C. § 666(j), requires
that in assessing penalties due consideration be given to four criteria: the
size of the employer’s business; the gravity of the violation; good faith; and
the employer’s history of violations. Generally, the gravity of the violation
is the primary element in the penalty assessment. See, e.g., A.P. O’Horo Co. ,
14 BNA OSHC 2004, 2013, 1991-93 CCH OSHD ¶ 29,223, p. 39,134 (No. 85-369, 1991) .
The gravity of a particular violation depends on: (1) the number of
employees exposed; (2) the duration of the exposure; (3) whether any
precautions were taken against injury; and (4) the probability that an accident
would occur. Caterpillar, Inc. , 15 BNA OSHC 2153, 2178, 1991-93 CCH OSHD
¶ 29,962, p. 41,012 (No. 87-922, 1993).

The Secretary proposed a penalty of $49,500 for the
willful, repeat, serious decking item. CO Triscritti indicated that he deemed
this violation to be high gravity with high severity and lesser probability. He
gave a 10 percent reduction for size, based on 110 employees, but no credit for
history or good faith. The judge assessed the Secretary’s proposal of $49,500.

The Secretary also proposed a penalty of $2,000 for
the repeat, serious safety belt item, similarly based on high gravity with high
severity and lesser probability. CO Triscritti again gave no credit for history
or good faith but gave a 20 percent reduction for size because the item was not
cited as willful. The judge assessed that amount.

With respect to these two items, we note that even
though the regulations undergirding both items specify different means of
abatement, both standards address fall hazards. Indeed, CO Triscritti testified
that the standards address the “same hazard” and agreed that the use of safety
belts with lanyards would have been an alternate form of fall protection for
the connectors. As part of the Commission’s exclusive grant of authority to
assess civil penalties, see section 17(j) of the Act, 29 U.S.C. §
666(j), we have broad discretion in assessing penalties. See Hern Iron
Works, Inc. , 16 BNA OSHC 1619, 1621-23, 1993-95 CCH OSHD ¶ 30,363, pp.
41,881-83 (No. 88-1962, 1994). As part of this discretion, the Commission may
assess penalties for distinct but potentially overlapping violations and may
find it appropriate to assess a single penalty for such violations. See H.H.
Hall Constr. Co. , 10 BNA OSHC 1042, 1046, 1981 CCH OSHD ¶ 25,712, p. 32,056
(No. 76-4765, 1981). Under these factual circumstances, we think it appropriate
to group these two fall protection items for penalty purposes.

As for penalty amount, we decline to give Hackensack
any credit for good faith under the circumstances of this case. As for
Hackensack’s size, while we note that the Secretary may have overstated the
number of employees, that factor is far outweighed by
gravity and history. In light of the fact that Hackensack left its employees
totally unprotected from possible falls of over 40 feet, Hackensack’s prior
history of numerous fall protection violations, including six for violations of
section 1926.105 alone, and our consideration of the factors set forth in
section 17(j), we assess $70,000 for the two grouped items. We recognize that
this amount is higher than that proposed by the Secretary for the two items
combined. However, in light of Hackensack’s history of multiple violations, we
conclude that, “a high penalty is necessary to induce future compliance.” See
Revoli , 19 BNA OSHC at 1686-87, 2001 CCH OSHD at p. 50,378.

With respect to the willful, repeat, serious hardhat
item, the Secretary proposed a penalty of $49,500, and the judge assessed that
amount. CO Triscritti testified that, in determining the penalty, he deemed the
violation to be of medium severity and lesser probability for the gravity
factor. He based his assessment of probability on the fact that he viewed the
connectors without hardhats for eleven minutes during which he saw only two
pieces of steel being lowered. CO Triscitti gave a 10 percent reduction based
on 110 employees but no reduction for good faith or history.

Hackensack argues that the penalty assessed for the
hardhat violation issued immediately before this one was $500 and that the
penalty here, $49,500, is “staggering and totally disproportionate to the prior
penalty.” Citing Crescent Wharf & Warehouse , 1 BNA OSHC 1219,
1971-73 CCH OSHD ¶ 15,687, p. 20,978 (No. 1, 1973), the company argues that the
penalty should not be substantially higher than the amount necessary to deter
the violation. We agree with this proposition. However, in light of the fact
that Hackensack has eight prior hardhat violations, it is clear that past
penalty assessments have not had the necessary deterrent effect. See Revoli ,
19 BNA OSHC at 1687, 2001 CCH OSHD at p. 50,378.

As discussed above, Hackensack argues that the
Secretary has overstated the number of employees, and we agree. On the other
hand, while CO Triscitti based his gravity assessment on the fact that the two
connectors were only exposed to two pieces of steel, the record developed at
the hearing indicates the two employees were actually exposed for a longer period
involving the lowering of five to six pieces of steel. Accordingly, considering
all the section 17(j) factors, we agree with the judge and assess $49,500 for
this willful, repeat, and serious violation.

THE UNGUARDED REBAR VIOLATION

The
Secretary alleges a serious violation of 29 C.F.R. § 1926.701(b) based on the exposure of the two
connectors to unguarded reinforcing steel rods (“rebars”) protruding from the
concrete footing below. We agree with the judge that a violation has been
established.    

The
cited standard requires that protruding rebar into which employees could fall
be guarded to eliminate the hazard of impalement. Armstrong Steel Erectors,
Inc. , 17 BNA OSHC 1385, 1390-91, 1995-97 CCH OSHD ¶ 30,909, p. 43,034 (No.
92-262, 1995). While Hackensack does not contest the existence of the
unprotected rebar on the site, it argues that its employees were not within the
zone of danger. Hackensack also argues that it did not create the hazard, was
not expected to protect against it, and was unaware of it.

Although
one of Hackensack’s connectors testified that the rebar was not directly below
where they were working but was a foot or two away, the Secretary presented
evidence that an employee who fell could reasonably be expected to fall into
the area where the protruding rebar was located. We find that this evidence
establishes exposure to the impalement hazard. See Kokosing Constr.
Co. , 17 BNA OSHC 1869, 1871, 1995-97 CCH OSHD ¶ 31,207, p. 43,723 (No.
92-2596, 1996).

Moreover,
the rebar was out in the open where it was “readily observable” if the foreman
had inspected the site. Thus, we find that Hackensack either knew of the rebar
hazard or could have known with the exercise of reasonable diligence. Halmar
Corp. , 18 BNA OSHC 1014, 1016, 1995-97 CCH OSHD ¶ 31,419, p. 44,410 (No.
94-2043, 1997) (reasonable diligence includes inspecting worksite and
anticipating hazards), aff’d , 152 F.3d 918 (2nd Cir. 1998)
(unpublished). Therefore, a violation has been established.

Hackensack’s
claim that the general contractor on site was responsible for the rebar hazard
and that, as a result, Hackensack cannot be held liable for any hazard that
existed, raises the multi-employer worksite affirmative defense. In order to
establish this defense, an employer must prove that:

1)    It did not create the
violative condition to which its employees were exposed;

2)    It did not control the
violative condition, so that it could not itself have performed the action
necessary to abate the condition as required by the standard; and

3)    It
took all reasonable alternative measures to protect its employees from the
violative condition.

Rockwell Int’l. Corp. , 17 BNA
OSHC 1801, 1808, 1995-97 CCH OSHD ¶ 31,150, pp. 43,536-37 (No. 93-54,
1996)(consolidated). Accord D. Harris Masonry Contr. v.
Secretary of Labor , 876 F.2d 343 (3rd Cir. 1989).

Even
if we accept that Hackensack did not create or control the cited condition, the
company has failed to prove that it took reasonable precautions to protect its
employees from falling onto the rebar. The evidence establishes that Hackensack
could have required its employees to utilize safety belts and lanyards to
protect themselves from the hazard of falling onto the rebar. In the
alternative, Hackensack could have erected safety nets. Accordingly, we find
that Hackensack has not established it took all reasonable alternative measures
to protect its employees from the rebar and has failed to prove the
multi-employer worksite affirmative defense.

CO
Triscritti testified that the unguarded rebar violation was cited as serious
because it presented the hazard of impalement. We agree with the judge that
this item is properly characterized as serious. CO Triscritti also testified
that the rebar violation was high gravity, lesser probability but high
severity, and that he gave the company a 20 percent reduction for size. The
judge assessed the $2,000 penalty proposed by the Secretary. On review, neither
party has challenged the appropriateness of the amount assessed by the judge
for this item, which we believe is appropriate. We therefore affirm the judge.

ORDER

Citation 1, item 1, alleging a violation of §
1926.105(a), is affirmed as a repeat and serious violation. Citation 2, item 2,
alleging a violation of § 1926.750(b)(2)(i) is affirmed as a willful, repeat,
and serious violation. The two items are grouped for penalty purposes and a
total penalty of $70,000 is assessed for the two violations.

Citation 1, item 2, alleging a violation of §
1926.701(b), is affirmed as a serious violation and a penalty of $2000 is
assessed.

Citation 2, item 1, alleging a violation of §
1926.100(a), is affirmed as a willful, repeat, and serious violation and a
penalty of $49,500 is assessed.

So ordered.

/s/                                        

W.
Scott Railton

Chairman

/s/                                        

James
M. Stephens

Commissioner

/s/                                        

Thomasina
V. Rogers

Dated: September
24, 2003                                         Commissioner

SECRETARY OF LABOR,

Complainant,

v.

DOCKET NO. 97-0755

HACKENSACK STEEL CORPORATION,

Respondent.

Appearances: For Complainant: Barnett
Silverstein, Esq., Office of the Solicitor, U. S. Department of Labor, New
York, N. Y.; For Respondent: Edward Rosen, Esq., Fort Lee, NJ.

Before: Judge Covette Rooney

DECISION AND ORDER

This
proceeding is before the Occupational Safety and Health Review Commission
pursuant to Section 10(c) the Occupational Safety and Health Act of 1979 (29
U.S.C. §651, et seq. )(“the Act”). Respondent, Hackensack Steel
Corporation (“Hackensack”) all times relevant to this action maintained at a
workplace at the Hackensack Medical Center, Hackensack, NJ., where it was
engaged in the business of steel erection construction work. Hackensack admits
that it is an employer engaged in a business affecting commerce and is subject
to the requirements of the Act.

From
October 24, 1996 through April 18, 1997, Compliance Safety and Health Officer
(“CO”) Charles Triscritti conducted a general inspection of the aforementioned
worksite. As a result of this inspection, on April 23, 1997, Respondent was
issued four citation items, alleging serious, repeat and wilful violations with
a proposed total penalty in the amount of $ 103,000.00. By timely Notice of
Contest Hackensack brought this proceeding before the Review Commission. A
hearing was held before the undersigned on May 27 to 29, 1998, and June 25-26,
1998 in New York, NY. Counsel for the parties have submitted Post-Hearing
Briefs and Reply Briefs, and this matter is ready for disposition.

BACKGROUND

The
subject job site involved the construction of the Hackensack Medical Center, a
nine- story office building and a parking garage (Tr. 39) . Respondent was the subcontractor on the job responsible for the
erection of the structural steel for the building. Sometime between 8:00 and
8:30 AM on Thursday, October 24, 1996, CO Triscritti drove by the subject job
site which he had been assigned to inspect. At that time he observed that
skeletal steel had been erected to the second story. He saw no employees on the
upper steel at that time. He observed that there were approximately 64 vertical
steel columns which were 27 feet tall. There were horizontal steel eye beams
connecting the columns to each other (Tr. 42-43). Nothing else had been erected
(Tr. 44). At approximately 11:00 AM he returned to the job site to conduct an
inspection. Upon his arrival, he observed that the site had changed. The
columns had risen two stories above the second story. There were beams
connecting a portion of the columns at the third story level and columns jutted
up to the fourth story level (Tr. 45-46, 169).

He
parked his car a couple of blocks away and walked to the site. As he walked
along the sidewalk, he saw two iron workers on the third story steel, about 43
feet from the ground, without any hardhats (Tr. 48-50, Ex. C-2 to C-7, C-27). He observed the crane bringing in steel columns overhead for the two
workers to install them. He noted that the crane would bring the steel columns
in very close - within a couple of feet of the employees’ heads. He saw the
employees putting bolts in to join the steel. They were standing on steel eye
beams on both the second and third levels of steel. He watched this activity
for some 10-12 minutes (Tr. 50-51, 67, 275, 280; Ex. C-27). He also observed
that the employees were not tied-off to prevent falling either to the exterior
or to the interior (Tr. 48-50; Exs. C-2 to C-7, C-20 to C-25, C-27). During his
investigation, he learned that one employee, Donald Ayres, had a safety belt
on, however, neither employee had a lanyard with which to tie-off a safety
belt. He learned that there were no lanyards on site which could have been used
to tie-off (Tr. 137, Ex. C-27). He also observed that there was no decking on
the interior of the skeletal steel within 30 feet or two stories of where the
employees worked (Tr. 49, 133). He testified that as they approached the
outside of the steel, which he believed was at heights from 27 feet to 43 feet,
they had no fall protection outside of the steel. He testified that he observed
the two employees sliding down the column from the 43 foot level to the 27 foot
level without any means of fall protection (Tr. 149). At the ground level
directly under the area the employees worked he observed more than 100 pieces
of vertical protruding reinforcing rods which were not protected or bent (Tr.
49-50, 71-72). CO Triscritti testified that on the interior there was no
decking as required by OSHA, and on the exterior, there were no ladders, no
safety belts or lanyards, no catch platforms, no safety nets, no scaffolding or
temporary floors (Tr. 49-50). 

He
took photos and some video between 11:15 and 11:30 a.m. He took some notes and
then proceeded to the general’s office - William Blanchard. As he walked to the
general’s office he observed another column being brought in to continue the
steel erection process. They installed it as they did the others (Tr. 51).

CO
Triscritti testified that he met quickly in with the general in his office . He
learned the heights of the steel from conversations with the general contractor
and a review of the plans which the general contractor produced (Tr. 217,
221-22). He was informed that the distance from the ground level to the first
level of steel was 11 feet, and from the first level of steel to the second
level of steel was 16 feet - a total of 27 feet (Tr. 40, 42, 220-21). He
learned that twelve columns had been installed on the third level which was 43
feet off of the ground - an additional 16 feet from the second story (Tr. 46,
173). By the time they got on site, it had drastically changed. There were no
employees on the third story steel and every employee that he saw had on a
hardhat. This was about 11:45 A.M. At this time there was no activity on the
third level of steel, and it looked as if they had gone to lunch at the time
(Tr. 54). In total, he was on site 8 days (Tr. 59).

After
lunch held a opening conference with contractors. David Campbell, the rig
foreman, was there from Hackensack (Tr. 63). Mr. Campbell told him Hackensack
had 10 employees on site (Tr. 63). He learned from Mr. Campbell that at the
time he arrived between 11:00 and 11:30, Mr. Campbell on the ground directing
the crane operator to hoist the steel up to the employees working on the
skeletal steel (Tr. 66).

RESPONDENT’S CASE

The
plan for work on October 24, 1996, was to erect the deck and erect steel for
the next sequence - third level. Respondent began its workday at by unloading,
sorting and shaking out steel in preparation for the decking that was to be
delivered at approximately 7:00 a.m. At around 9:00 a.m., they began erecting
columns for the third floor (Tr. 347, 357, 370). At approximately 10:30 -11:00
a. m., the Dave Campbell learned that the decking was not going to arrive (Tr.
376). At that time, twelve columns had been erected without any decking (Tr.
373). Dave Campbell testified that upon learning that the decking would not
arrive, he became concerned about the columns in the back next to an apartment
building. He testified that it was a windy day and going to get windier (Tr.
377). He testified that it would not have been good construction practice to
have just left the columns next to the apartment building (Tr. 377). He made
the decision to tie in the columns with beams at the back of the building
adjacent to the apartment building and to put in the wind bracing columns which
started at the 2nd level because of the location of the building. He also
testified that he was concerned about the safety of employees from other trades
who were working on the wall - laborers and masons (Tr. 383-84, 392,397). It
was his opinion that there were no alternative methods to safely secure the
columns and was no faster method to stabilize the columns (Tr. 377-78, 387,
406). The record indicates that this task involved the installation of eight
beams and the wind bracing columns (Tr. 401-02). This entailed making a square
box, putting up column ties and headers, and then moving to the wind bracing
(Tr. 398). He decided to install the windbracing columns because they were the
strongest columns in the area and would make the area abutting the apartment
building a stronger unit (Tr. 404).

Secretary’s Burden of Proof

The
Secretary has the burden of proving his case by a preponderance of the
evidence. In order to establish a violation of an occupational safety or health
standard, the Secretary has the burden of proving: (a) the applicability of the
cited standard, (b) the employer’s noncompliance with the standard’s terms, (c)
employee access to the violative conditions, and (d) the employer’s actual or
constructive knowledge of the violation (the employer either knew or with the
exercise of reasonable diligence could have known, of the violative
conditions). Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747,
1994). To satisfy the element of knowledge, the Complainant must prove that a
cited employer either knew, or with the exercise of reasonable diligence could
have known of the presence of the violative condition. Seibel Modern
Manufacturing & Welding Corp. , 15 BNA OSHC 1218, 1221 (No. 88-821,
1991); Consolidated Freightways Corp. , 15 BNA OSHC 1317, 1320-1321 (No.
86-351, 1991). “Because corporate employers can only obtain knowledge through
their agents, the actions and knowledge of supervisory personnel are generally
imputed to their employers, and the Secretary can make a prima facie showing of
knowledge by proving that a supervisory employee knew of or was responsible for
the violation.” Todd Shipyards Corporation , 11 BNA OSHC 2177, 2179 (No.
77-1598, 1984). See also Dun Par Engineered Form Co. , 12 BNA OSHC
1962 (No. 82-928, 1986)(the actual or constructive knowledge of an employer’s
foreman can be imputed to the employer). In Pride Oil Well Service, 15
BNA OSHC 1809 (No. 87-692, 1992), the Review Commission set forth criteria to
be considered when evaluating reasonable diligence.

Reasonable diligence involves several factors,
including an employer’s “obligation to inspect the work area, to anticipate
hazards to which employees may be exposed, and to take measures to prevent the
occurrence.” Frank Swidzinski Co ., 9 BNA OSHC 1230, 1233 (No. 76-4627,
1981) . . . Other factors indicative of reasonable diligence include adequate
supervision of employees, and the formulation and implementation of adequate
training programs and work rules to ensure that work is safe. (citations
omitted).

Id. at 1814.

Citation 1, Item 1

29 CFR §1926.105(a) : Safety nets shall be
provided when workplaces are more than 25 feet above the ground or water
surface, or other surfaces where the use of ladders, scaffolds, catch
platforms, temporary floors, safety lines, or safety belts is impractical.

a)
Office Building, third story: connectors were exposed to exterior fall hazards
of approximately 43 feet while on the third story of steel. No safety net was
used, on or about 10/24/96.

The
record indicates that it is not disputed that at the time of the inspection two
connectors, Bernard Lalley and Donald Ayres did not have on their safety belts
(Exs. C- 3 and 27). The record discloses that from the ground floor to the
first floor it was approximately 9 feet, from the first floor to the second
floor was 15 feet 9 inches, and from the second floor to the third floor was 15
feet 9 inches (Tr. 440-45, 454-55; Ex. R-2; See Secretary’s Reply Brief, p. 1
and Respondent’s Post-Trial Brief, p.37). It is undisputed that the connectors were on the third level of steel
for the purpose of connecting eight beams (Tr. 256, 401-02, 519, 535-36, 569).
Accordingly, the undersigned finds that the standard is applicable and that the
connectors had no exterior fall protection while working off the top of the
steel at the third level which was at an elevation in excess of 25 feet from
the first floor. Thus, the cited standard was violated and employees had access
to the cited hazard.

The
record also demonstrates that safety belts with lanyards attached could have
been used to protect exposed employees - this was done on all subsequent days
when OSHA was present (Tr. 60). The Respondent has asserted that the time frame
in which the work was performed was very limited (Respondent’s Post-Trail
Brief. Pp. 43-48). However, the undersigned finds the time limitation no
defense to the cited hazards. The short duration of exposure to a violative
condition is no defense against evidence of a violation. Walker Towing,
14 BNA OSHC 2072 (No. 87-1359, 1991).

At
issue here, is whether the Secretary has established that Respondent knew or
with the exercise of reasonable diligence should have known about the
connectors working on the steel without fall protection. Respondent alleges
that it did not know that they were not wearing the safety belts while on the
steel. It is the Respondent’s position that the connectors had been instructed
to wear safety belts, and that the connectors went up on the steel wearing
their safety belts. Mr. Campbell testified that company policy required that
safety harnesses be worn on the outside of the building after the completion of
2 floors. He stated that he enforced that rule when they were working at that
height (Tr. 348). On the morning of October 24, he believed that the connectors
had taken their safety belts up on the steel. He testified that when they went
up on the steel they had safety belts with them. He stated that once up on the
steel, he never saw them without the belts nor was it ever brought to his
attention that they were working without the belts (Tr. 375, 405-06). He
explained that he had not seen them erect the beams because most of the time he
was behind a wall determining what beams would be sent up since the sequence
had now changed (Tr. 417).

The
undersigned finds that Mr. Campbell’s explanation does not excuse him of his
obligation to exercise reasonable diligence on the worksite. The Respondent
presented no evidence of what steps Mr. Campbell actually took to ensure that
the connectors had their safety belts and harnesses on when they first went up
on the steel. Mr. Campbell’s generalized statements of what the company policy
requires and what his job duties require when working at heights above two
stories, do not definitively describe the steps he took on October 24 to ensure
that company policy was being followed. Mr. Campbell changed the building
sequence and started sending steel for the third level without first installing
the decking. He acknowledged that he gave no specific instructions about safety
belts and did not do anything to ensure that the employees had utilized fall
protection when he started sending them beams for the third level (Tr. 736-38).
The undersigned finds that Mr. Campbell did nothing to ensure that this policy
was being complied with on October 24. His involvement with the selection of
beams to be installed at a location in which allegedly made it impossible for
him to observe the connectors, did not release him from his duty to exercise
reasonable diligence in ensuring that company safety policy was being followed.
The undersigned that in light of the fact that he was so preoccupied with
selection of the beams, in his supervisory capacity, he should have taken steps
to ensure adequate supervision of employees, and taken measures which would
have prevented the occurrence of the cited condition. The undersigned further
finds that the violation was a condition which was readily apparent to anyone
who looked, and thus, should have been known to management.( See Simplex
Time Recorder Co. v. Brock , 766 F.2d 575, 589 12 BNA OSHC 1401. National Industrial Constructors, Inc ., 10 BNA OSHC 1081,
1097,(No. 76-4507, 1981); J. H. MacKay Electric Co ., 6 BNA OSHC 1947,
1950 (No. 16110, 1978); Public Improvements, Inc ., 4 BNA OSHC 1864, 1866
(No. 1955, 1976). The undersigned finds that the preponderance of evidence
establishes that the Respondent had constructive knowledge of the cited
condition.

Respondent
also attempted to prove no knowledge of the violation by the two connectors as
witnesses. Both of the connectors testified that they had their safety belts
(harnesses and lanyards) when they initially went up on the steel that day.
Bernard Lalley testified that prior to the commencement of work on this project,
there had been a tool box safety meeting wherein he learned that the company’s
safety policy included the wearing of certain equipment such as hard hats and
harnesses, and failure to follow these procedures could result in disciplinary
action (Tr. 512, 553-54). He testified that on October 24th he had his harness
with him at the time he went up on the steel. However, both he and Donald Ayres
put their harnesses down when they got up on the ladder on the second floor
(Tr. 514,561). He explained that he had placed it on top of a column on the
second floor. At the time he installed the beams to box the columns he did not
wear his safety belt (Tr. 519). He stated that he did not think it was
important at the time because they had been “thr[own] off track” with the
change of plans caused by the lack of decking. He testified that it took about
5 minutes to install each beam and about 5- 10 minutes to install the wind
bracing columns. He stated that in order to set the beams for the exterior and
interior climbs, he climbed/shimmied the columns to the third level where the
beam would be connected. He stated that he normally would tie off to the column
to perform this task (Tr. 545-46, 566). Donald Ayres confirmed that at the
safety meeting conducted at the commencement of the job, hard hats and safety
belts were discussed. He testified that he took his safety belt up with him on
the morning of October 24. He stated that at the time they were tying in
columns his belt was on the deck below - second level of steel. He acknowledged
that he should have been wearing it (Tr. 580, 582-83, 592). Both employees
testified that the inspector showed them photographs of the cited condition on
October 25 (Tr. 520, 585-86).

The
record reveals that the connector’s testimony contradicts the information which
the compliance officer obtained from them during his inspection. CO Triscritti
interviewed the connectors on October 31, 1996, about his observations of
October 24, 1996. He complied notes from those interviews which indicate that
Bernard Lalley told him that they had to wear safety belts, however, he was not
wearing a belt when he was working on the third because the belts were not on
the job yet - they were coming out (Ex. C-20 & 21). His notes indicate that
Donald Ayres told him that he did have on a safety belt but had no lanyard because
he started working on the third level before the ropes had come out.(Ex.
C-22-23). Furthermore, in its rebuttal case, the Secretary presented the
testimony of CO Eric Marrinan who accompanied CO Triscritti for the October 31,
1996 interviews of the connectors. He testified that Bernard and Donald were
interviewed separately, and CO Triscritti’ notes of both interviews accurately
reflected their responses to questions regarding the lack of safety belts. CO
Marrinan testified that Bernard Lalley did not say anything about having a belt
draped on the steel or anything about having a belt that day (Tr. 833-40,
847-849). He also testified that the day after these interview he reviewed CO
Triscritti’s interviews which had been typed. At that time he agreed that these
notes were accurate (Tr. 846-47, 859-60). The record also contains the
handwritten notes of another compliance officer who also accompanied CO
Triscritti on this interview. The compliance officer, CO Scott Terefenko
recorded notes of the interviews which corroborate CO Marrinan’s testimony and
CO Triscritti’s notes of the interviews of Ayres and Lalley (Tr. 844, 849; Ex.
C-22).

Respondent
argues that the undersigned should disregard the inspectors’ notes of these
interviews and give credence to the sworn testimony which the connectors
(Respondent’s Post-Trial Brief, p. 53). The undersigned having listened to the
testimony of the connectors and observed their demeanor while testifying finds
that their sworn testimony was not credible. The undersigned finds that the
compliance officer’s written reports of these interviews are more reliable. As
previously stated, CO Triscritti’s notes were corroborated by two other
inspectors who accompanied him on his inspection. The record contains no
evidence of any prejudice on the part of OSHA towards the Respondent during the
course of this inspection. The undersigned, having observed the demeanor of CO
Marrinan, finds his corroborating testimony completely candid. These interviews
occurred within a week of the cited condition, at time when the connectors had
no time to realize their own own self-interest or feel pressure from the Respondent.
The statements were given independent of one another about a critical fact
which involved the manner in which the connectors went about their work. By the
time the connectors appeared at trial, two years had gone by and one of the
connectors had been promoted to foreman - Mr. Lalley. This promotion certainly
created a more biased interest in favor of the Respondent with respect to the
in the outcome of the case. The undersigned believes that this passage of time
and the continued employment and promotion resulted in some pressure and/or
bias to testify in favor of their employer. These factors were evident in their
demeanor as they testified.

The undersigned also notes that although the
connectors had been available to testify during Respondent’s case and
Respondent was given the opportunity bring them back to refute the Secretary’s
rebuttal. However, Respondent did not produce the connectors to explain the
alleged discrepancy in their statements (Tr. 865-67).

Repeat and Serious Classification

A
violation is properly classified as repeated under section 17(a) of the Act if,
at the time of the alleged repeated violation , there was a Commission final
order against the same employer for a substantially similar violation. Unless
the violation involves a general duty standard, the Secretary establishes a
prima facie case of similarity by showing that both violations are of the same
standard. Edward Joy, 15 BNA OSHA 2091, 2092 (No. 91-1710, 1993). See
also Potlatch Corp., 7 BNA OSHA 1061, 1063 (No. 16183, 1979). The record
establishes that Respondent had received seven prior violations for
§1926.105(a) which had become final orders at the time the subject violation
was issued(Tr. 31, 37; Exs. C-1, C-9, C-11, C-12). These final orders were
dated from November 7, 1986 to April 25, 1993. There had also been a fall
protection violation issued under §1926.750(b)(1)(ii) which had become a final
order on August 14, 1984 (Tr. 31; Ex. C-1). Respondent, relying upon OSHA’s
repeat policy, argues that the subject violation had not been issued within
three years of the date of the final order of any of the previously cited
violations. See OSHA Field Inspection Reference Manual (FIRM) Chapter III,
C, 2, f. (3) . However, the undersigned finds that Review Commission
precedent had established that a single prior violation can invoke the repeated
violation sanction authorized by the Act. The Review Commission made no mention
of a time limitation when it held that a violation can be cited as a repeat
violation, “if, at the time of the alleged repeated violation, there was a Commission
final order against the same employer for a substantially similar violation”. Potlatch
Corp ., at 1063. The length of time between two similar violations is
relevant only to the "good faith" criterion for assessing a penalty,
as it reflects upon the degree of an employer's continuing efforts to protect
employees against hazards. Id. at 1064. The Review Commission has held
that, "the guidelines provided by the FOM are plainly for internal
application . . . [and] they do not have the force and effect of law, nor do
they accord important procedural or substantive rights to individuals." FMC
Corp ., 5 BNA OSHC 1707, 1710. See also H.B. Zachry Co. , 7 BNA
OSHC 2202 (No. 76-1393, 1980), aff'd, 638 F.2d 812 (5th Cir. 1981). Moreover,
the FOM itself recognizes that "there are no statutory limitations upon
the length of time that a citation may serve as a basis for a repeated
violation". FIRM at Chapter III, C, 2 f., (3).

In
light of the fact that the FOM is not legally binding, and the record establishes
that Secretary has satisfied the Potlatch requirements, I find that the
Secretary has properly classified the violation as

The
undersigned finds that this violation was appropriately classified as serious.
Section 17(k) of the Act, 29 U.S.C. §666(k), provides that a violation is
serious if there is a “substantial probability that death or serious physical
harm could result” from the violation. The undersigned finds that a fall from
the cited condition would result in a substantial likelihood of serious injury.

Penalty

Once
a contested case is before the Review Commission, the amount of the penalty
proposed by the Complainant in the Citation and Notification of Proposed
Penalties is merely a proposal. What constitutes an appropriate penalty is a
determination which the Review Commission as the final arbiter of penalties
must make. In determining appropriate penalties “due consideration” must
be give to the four criteria under Section 17(j) of the Act, 29 U.S.C.,
§666(j). These “penalty factors” are: the size of the employer’s business, the
gravity of the violation, the employer’s good faith, and its prior history. J.A.
Jones Construction Co. , 15 BNA OSHC 2201, 2213-14 (No. 87-2059, 1993).

The
record reflects that gravity of the violation established a high severity
because of the serious nature of expected injuries. The probability was
assessed as lesser because only two employees were observed for approximately
11 minutes. The gravity based penalty was adjusted to reflect the respondent’s
size - 20 % for size (110) employees (Tr. 491-994). No adjustment was allowed
for history or good faith because of the prior final orders, and Respondent the
record is void of any evidence that Respondent enforced any kind of safety program.
Accordingly, a penalty in the amount of $2,000.00 is appropriate.

Citation 1, Item 2

29 CFR §1926.701(b) : Reinforcing steel.
All protruding reinforcing steel, onto and into which employees could fall,
shall be guarded to eliminate the hazard of impalement.

a) Office Building, throughout site: Ironworkers were
working on the steel above unguarded vertical protruding re-bar. The re-bar was
located at the perimeter walls and at grade level. No floor or catch platform
was installed between the ironworkers and the unguarded re-bar, and no fall
protection was used, on or about 10/24/96.

The
record establishes that at the ground level, underneath the columns on the
first two floors, there was a wall with more than 100 pieces of unprotected
rebars protruding from it. The two connectors were observed working over this
area. Bernard Lalley testified that as he set columns, he was about a foot and
one-half off the wall (Tr. 49-50; 550-51; Exs. C-4, C-5). The Review Commission
has held that, “[a]ccess to unguarded rebars exists if there is a ‘reasonable
predictability’ that employees ‘will be, are, or have been in’ the ‘zone of
danger’”. Kokosing Construction Co., Inc., 17 BNA OSHC 1869, 1870 (No.
92-2596, 1996), citing Capform, Inc. 16 BNA OSHC 2020, 2041 (No.
91-1613, 1994). The undersigned finds that the photographs and the testimony
adequately establish that the cited violation was applicable and that employees
had access to the danger of the cited rebars.

The
undersigned finds that Respondent had constructive knowledge of this violation
which was in plain view and readily apparent to Mr. Hamilton. Had Mr. Campbell
exercised reasonable diligence, he would have taken steps to have ensured that
his employees were not exposed to the cited hazard as they erected steel beams
and columns. The record is void of any measures taken such as the notification
of the contractor responsible for this condition and/or the implementation of
alternative safety measures.

Serious Classification

The
undersigned finds that serious injuries or death would result from a fall onto
unprotected rebars. Therefore, the cited condition was appropriately classified
as serious.

Penalty

The record reflects that gravity of the
violation established a high severity because of the serious nature of expected
injuries. The probability was assessed as lesser because only two employees
were observed for approximately 11 minutes. The gravity based penalty was
adjusted to reflect the respondent’s size - 20 % for size (110) employees. No
adjustment was allowed for history or good faith because of the prior final
orders, and Respondent the record is void of any evidence that Respondent
enforced any kind of safety program. Accordingly, a penalty in the amount of
$2,000.00 is appropriate.

Citation 2 Item 1

29 CFR §1926.100(a): Employees working in
areas where there is a possible danger of head injury from impact, or from
falling or flying objects, or from electrical shock and burns, shall be
protected by protective helmets.

a) Office Building, third story: Connectors were not
wearing head protection while erecting the steel, on or about 10/24/96

The
record unequivocally establishes that at the time CO Triscritti observed the
two connectors, they both were working without hard hats (Tr. 48, Exs. C-2 to
C-5). CO Triscritti testified that he observed the crane bringing in steel
columns overhead for the two connectors. He observed the columns coming in as
close as a couple of feet, and maybe within a foot, of the heads of the
connectors (Tr. 50). It is undisputed that at the time the two employees went
up on the steel that morning they had on their hard hats (Tr. 265, 514). It is
also undisputed that there are times that hard hats fall off (Tr. 267).

Bernard
Lalley testified that his hard hat fell off as he was making a connection on
one of the boxing beams. He testified that at that time he had set 6 beams. He
stated that when the hat fell he yelled down to the signal man to send the hat
up. He stated that they did not stop working and acknowledged that he received
an additional two beams and connected them after his hard hat had fallen (Tr.
537-.42). He then raised an additional two columns which went from the second
level of steel to the fourth level. He acknowledged that when the beam was
brought in on the crane he was already up on the column waiting for it, and he
described how he would stand inside of a clip inside a column waiting for the
beam to come in (Tr. 546) . He testified that the beam would be swung over his
head, and as it would come down it would be within a foot or two away from him
and then it is slide in(Tr. 548). He testified that the signal man returned
both he and his partner’s hats at the second level when they were on their way
down the stairs (Tr. 517). Donald Ayres testified that while setting the
“existing iron”. He stated that they yelled down to the signal man to send the
hats back. He testified that the hats were returned to them right before lunch
as they were coming down. He stated that the hats were on the ladder - the
safety guy had placed then there (Tr. 582). He recalled that his partner’s hat
fell off at about the same time his fell off. He testified that the signal man
continued to direct the crane operator to send up steel, and they continued
setting - maybe 5 to 6 pieces of steel - without their hard hats (Tr. 588-91).

The
Review Commission has recognized that the instant standard requires proof of
access to a zone of danger rather than proof of proof of actual exposure. See Adams
Steel Erection, Inc ., 766 F.2d 804, 811 (3d Cir. 1985). The test for
determining whether employees are exposed to a hazard is whether it is
"reasonably predictable" that employees would be in the zone of
danger created by a noncomplying condition. Kokosing Constr. Co ., 17 BNA
OSHC 1869, 1870 (No. 92-2596, 1996); RGM Constr. Co. , 17 BNA OSHC 1229
(No. 91-2107, 1995). The undersigned finds that the testimony from CO
Triscritti and Bernard Lalley establish that employees were working within the
zone of danger of head injury from the impact from beams being slide in or
falling from above as they went about their assigned duties. Accordingly, the
cited standard is applicable and because the employees were working without
protective head protection noncompliance and employee exposure have been
established.

Again,
Respondent maintains that during the time the violation was observed, Dave
Campbell did not see the connectors and was not made aware of the fact that
their hard hats had fallen off. Bernard Lalley also testified that from where
he was working he was not able to see Dave Campbell because he was on the other
side of a five foot wall that was on the outside of the building in the
vicinity of the crane (Tr. 518). It is Respondent’s position that only the
signal man knew that the hardhats were off because the connectors had yelled
down to him. Thus, Respondent asserts that management cannot be held
knowledgeable of this violation.

The
undersigned finds that Respondent’s argument is unpersuasive. The record
indicates that management was aware that hats do fall off during steel
erection. Mr. Campbell

acknowledged that it was not uncommon for hard
hats to fall off connectors because they have to bend over and turn completely
over. He stated that if the hard hat falls off they “pick it up, tie it on, and
send it back up with the next available man”(Tr. 416-17). The undersigned finds
that the frequency of hard hats falling off this crew was established by the
fact that the hats of both connectors fell off. The undersigned finds that
these factors establish the lack of reasonable diligence on the part of
management to take preventative measures such as ensuring the adequate supervision
of employees, and the formulation and implementation of adequate training
programs and work rules to ensure that work did not continue when hard hats had
fallen off. Again, this violation was in plain view. Accordingly, the
undersigned finds that the record establishes actual and constructive knowledge
on the part of Mr. Campbell of the cited condition. This knowledge is imputable
to Respondent.

Repeat Classification

The
record reveals that Respondent had previously received ten hard hat

violations under §1916.100(a) which had become
final orders at the time of the issuance of the subject violation (Tr. 31; Exs.
C-1, C-8 to C-10). The undersigned finds that the record establishes that the
instant violation was appropriately classified as repeat. As previously
discussed, the fact that the most recent previously cited hard hat violation
was outside of a three-year time frame, is of no consequence with regard to a
repeat finding.

Citation 2, Item 2

29 CFR §1926.750(b)(2)(I) : Where skeleton
steel erection is being done, a tightly planked and substantial floor shall be
maintained within two stories or 30 feet, whichever is less, below and directly
under that portion of each tier of beams on which any work is being performed,
except when gathering and stacking temporary floor planks on a lower floor, in
preparation for transferring such planks for use on an upper floor. Where such
a floor is not practicable, paragraph (b)(1)(ii) of this section applies.

a) Office Building, third story: Connectors were
exposed to interior fall hazards of approximately 4 feet while on the third
story of steel No floor was installed between the connectors and the ground, on
or about 10/24/96.

The
record unequivocally established that on the morning of October 24, Mr.
Campbell expected decking to arrive on site. The decking subcontractor was on
site and the skeletal steel erection for the second level had just been
completed. He had directed his crew to prepare for the arrival of that decking
(Tr. 370). Upon learning that the decking would not arrive that morning, he
directed his crew to connect the beams to the existing columns in order to make
a strong unit. He believed the windy conditions created a hazard to the
existing columns which were adjacent to the apartment building (Tr. 397-98,
401, 404). He testified that there were no alternative methods to secure these
columns (Tr. 407). He acknowledged that the connectors had to climb the columns
to get to the third level of steel because there were no ladders to that level
and that there were no floors (Tr. 741-44). He acknowledged that after beams
were installed to form two boxes, two additional columns were raised (Tr. 751,
752). He testified that the columns installed on October 24 went from the
second to fourth floor and were 28 to 30 feet tall (Tr. 803, 811-812).

The
undersigned finds that the record establishes that no tightly planked floor was
present while two employees were engaged in steel erection at the third level
which was more than 30 feet from the ground floor. One of the connectors,
Donald Ayres, recalled that the distance from the third level of steel to the
ground was approximately 40 to 43 feet (Tr. 593). As the result of the lack of
the floor beneath them or any kind of fall protection, the two connectors were
exposed to a 40 fall hazard. Accordingly, the standard is applicable and
noncompliance and employee exposure have been established. The record further
establishes that Mr. Campbell was fully aware of the lack of flooring and the
fact that the two connectors would have to work at the third level without the
presence of flooring. He stated that he made this decision without consulting
anyone else. The violation was in plain view and occurred under the direction
of the foreman. Actual knowledge on the part of the Respondent has been
established by a preponderance of evidence.

Willful and Serious Classification - Citation
2, Items 1 and 2

The
Secretary recommends willful classifications for the violations of the hard hat
and interior fall protection violations. The Secretary maintains that
Respondent had a “heightened awareness” of the cite violations because
Respondent had previously received violations for these hazards.. Furthermore,
Mr. Campbell was the same foreman on the jobsite when Respondent was cited in
1993 when Respondent was cited for hard hats and fall protection violations
(Exs. C-10, C-12, C-25, and C-26). On the day of the inspection CO Triscritti
interviewed Mr. Campbell who indicated that as a part of his foreman duties, he
directed the crane operator to hoist the steel up to the employees on the
skeletal steel with hand signals (Tr. 66). CO Triscritti’s testified Mr.
Campbell admitted that he knew the OSHA steel erection standards required every
decking every second floor. Mr. Campbell informed CO Triscritti that it was his
decision to put up the next floor and not to use nets. It was his desire to
keep the job going because of the expense which had already been expended in
preparation of the decking. He also informed Mr. Triscritti that it was “crazy”
for connectors to wear hard hats because they drop off so often, and that he
had “12,000 pieces of steel to connect” and he did not have time to watch the
connectors. CO Triscritti testified that he jotted down notes of that interview
and typed these notes upon returning to the office the following Tuesday - the
inspection took place Thursday and Friday, October 24 and 25(Tr.68, 116, 118 ;
Ex. C-13). CO Triscritti again interviewed Mr. Campbell on November 25, 1996
and he again recorded notes of that interview. At that time, Mr. Campbell
informed him that Donald and Bernie were installing beams on October 24, on the
third story and no protection was used when they were on the outside beams. He
stated he knew this because he saw them (Ex. C-14). On January 30, 1977, he
interviewed Walter Hamilton, the superintendent and Mr. Campbell. At that time,
Mr. Hamilton informed him that it was difficult to enforce the hard hat rule
and that he knew of nothing to prevent the hats from falling (Ex. C-15). Mr.
Triscritti in the presence of his supervisor, again interviewed Mr. Campbell,
who was at home at the time, via the telephone on March 27, 1997. At that time
Mr. Campbell stated that he had seen the connectors not wearing hard hats. He
stated he allowed the connectors to work without hard hats because they fall
off. He stated when they do fall off he sends them back up when he gets a
chance. He admitted that on the day of the inspection he knew the connectors
were not wearing hard hats (Ex. C-16).

During
the course of his testimony, Mr. Campbell explained that his recorded responses
to CO Triscritti’s questions were taken out of context.. He testified that it
was after lunch on October 24, when he met with CO Triscritti in the general’s
office, that he was informed that the connectors did not have on hard hats (Tr.
409). He told CO that to the best of his knowledge they had on hard hats and
took safety belts with them up on the steel. He explained that he did not mean
that he did not need decking. He only meant that if they did not set the
columns then there would be no other work for them (Tr. 413). He further
explained that what he met when he said “it was a crazy”, was that if a man is
hanging over upside down, the hat is either going to fall off or he had to take
it off in order to do the work. He was referring to connectors who are either
bent over or in a lot of times, catching their heel in the top frame of the
beam and turning completely over. When they reach over the hats fall off. He
testified that he does not allow them to go on the steel without them, and if
the hat falls off they pick it up, tie it on and send it back with the next
available man(Tr. 416-17, 423-24). He explained that Bernie and Donald were the
only two connectors in the area that day, so he knew they had installed the
beams that day. What he meant by “I saw them” was he saw them go up on the
steel, but he could not see them erect the beams from his position (Tr. 419).

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." Trinity Industries, Inc ., 15 BNA OSHA 1597, 1586
(Nos. 88-1545 and 88-1547, 1992), citing Williams Enterp., Inc., 13 BNA OSHA
1249, 1256 (No. 85-355, 1987). "It is differentiated from other types of
violations by a heightened awareness - of the illegality of the conduct or
conditions - and by a

state of mind - conscious disregard or plain
indifference." Calang Corp ., 14 BNA OSHA 1789, 1791 (No. 85-319,
1990). There must be evidence that an employer knew of an applicable standard
prohibiting the conduct or condition and consciously disregarded the standard. Trinity
at 1586, citing Williams at 1257. An employer who substitutes his
own judgement for the requirement of a standard of fails to correct a known
hazard commits a willful violation even if the employer does so in good faith. Valdak
Corp v. OSHRC, 73 F.3d 1466, 1469 (8th Cir., 1996). Evidence
regarding prior citations may be considered in determining, whether an employer
formed the requisite state of mind to warrant classification of subsequent
violation as willful. Atlantic Battery Co ., 16 BNA OSHA 2131 (No.
90-1747, 1994). The Review Commission has held that "the employer is
responsible for the willful nature of its supervisor's actions to the same
extent that the employer is responsible for their knowledge of violative
conditions." Tampa Shipyards, Inc ., 15 BNA OSHA 1533, 1539 (Nos.
86-360 and 86-469, 1992).

The
undersigned finds that the responses which Mr. Campbell gave to CO Triscritti,
as well as his testimony explaining his responses to CO Triscritti’s questions,
demonstrate that he was fully aware that hats fall off of connectors as they
connect steel. He was also well aware of the OSHA requirements for hard hats
and decking. In spite of this knowledge, he directed the installation of beams
without ensuring the presence of interior or alternative fall protection. He
also went about his work of directing crane operations without any assurances
that the connectors were fully protected, via any fall protection and hard
hats, which he acknowledged fell off frequently. He directed operations in
order to stabilize columns which he believed presented a greater danger with
total disregard for the OSHA standards. The undersigned finds that the most
obvious and apparent hazards were presented to the connectors. The foreman’s
admitted knowledge of the frequency of hard hats falling off, and the lack of
decking demonstrate a heightened awareness. His failure to observe the manner
in which they were working is further evidence of his voluntary disregard and
plain indifference to the requirements of the Act. He substituted his own
judgment for the standard’s. The Secretary has established by a preponderance
of evidence a willful violation.

The
undersigned also finds that the Secretary has established a serious violation.
The record demonstrates that death or serious physical harm could result from
being hit by steel on one’s unprotected head, and free falling 30 to 40 feet.

Penalty - Citation 2, Items 1 and 2

The
undersigned the record for both violations supports a gravity finding which
reflects a high severity. Massive head injury could occur if steel struck
employee in the head. Death or injuries resulting in permanent disability could
be expected from a free fall from 30 to 40 feet . The probability was lesser
because he only two employees were observed in the zone of danger for
approximately 11 minutes. The gravity based penalty of $55,000 for each
violation was adjusted for size. No good faith or history adjustments are
appropriate. The proposed penalty of $49,500 for each violation is proper.

Affirmative Defenses

The
undersigned finds that the record is void of evidence sufficient to support any
of the affirmative defenses raised by the Respondent. To establish this
affirmative defense, an employer must show that “it had established a work rule
designed to prevent the violation, adequately communicated those work rules,
and effectively enforced those work rules, when they were violated .”
Centrex-Rooney Construction Co., 16 BNA OSHA 2127 (No. 92-0851, 1994);
Pride Oil Well Serv., 15 BNA OSHA 1809 (No. 87-692, 1992). The Respondent
produced no evidence that it adequately enforced its work rules or that work
rules were effectively enforced, or that any of its employees had ever been
disciplined for failure to follow rules. The Respondent also failed to prove
the elements for the defense of greater hazard. In order to establish the
greater hazard affirmative defense, the employer must prove that: (1) the
hazards caused by complying with the standard are greater than those
encountered by not complying, (2) alternative means of protecting employees
were either used or were not available, and (3) application for a variance
under section 6(d) would be inappropriate. Peterson Bros. Steel Erection
Co., 16 BNA OSHA 1196 , (No. 90-2304, 1993). Before an employer
elects to ignore the requirements of a standard because it believes that
compliance creates a greater hazard, the employer must explore all possible
alternatives and is not limited to those methods of protection listed in the
standard. State Sheet Metal Co . , 16 BNA OSHA 1155, 1159, (No.
90-2894, 1993). The Respondent produced no evidence to establish that
alternative means of protecting employees were either used or were not
available, and why application for a variance under section 6(d) would have
been inappropriate.

Findings of Fact and Conclusions of Law

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

ORDER

Based upon the foregoing decision, it is hereby
ORDERED that:

Citation 1, Item 1, alleging a serious-repeat
violation 29 C.F.R. §1926.105(a), is AFFIRMED with a penalty of $2,000.00.

Citation 1, Item 2, alleging a serious violation
29 C.F.R. §1926.701(b), is AFFIRMED with a penalty of $2,000.00.

Citation 2, Item 1, alleging a
willful-serious-repeat violation 29 C.F.R. §1926.100(a), is AFFIRMED with a
penalty of $49,500.00.

Citation 2, Item 2, alleging a
willful-serious-repeat violation 29 C.F.R. §1926.750(b)(2)(I), is AFFIRMED with
a penalty of $49,500.00.

/s/

Covette
Rooney

Judge,
OSHRC

Dated: November 16, 1998

Washington,
D.C.