SECRETARY OF LABOR,
OSHRC Docket No. 97-0755
HACKENSACK STEEL CORP.,
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.
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
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
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.
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
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
Accordingly, we find that Hackensack had constructive knowledge of the violative
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
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
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.
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
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
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
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
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.
W. Scott Railton
James M. Stephens
Thomasina V. Rogers
Dated: September 24, 2003 Commissioner
SECRETARY OF LABOR,
DOCKET NO. 97-0755
HACKENSACK STEEL CORPORATION,
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
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.
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).
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](D.C. Cir. 1985). 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
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.
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
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.
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.
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.
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.
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.
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.
Dated: November 16, 1998