“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76?2644 \u00a0 KUS-TUM BUILDERS, INC., \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0October 30, 1981DECISIONBefore: ROWLAND, Chairman; CLEARY and COTTINE,Commissioners.BY THE COMMISSION:??????????? Adecision of Administrative Law Judge Cecil L. Cutler, Jr., is before theCommission pursuant to section 12(j), 29 U.S.C. ? 661(i), of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651?678 (?the Act?). Judge Cutleraffirmed a citation alleging that Respondent, Kus-Tum Builders, Inc.(?Kus-Tum?), violated section 5(a)(1) of the Act[1] in that its employees whowere engaged in truss erection operations were working on or under large woodentrusses which were not provided with adequate bracing to prevent toppling and?dominoing.? The judge, however, concluded that the Secretary of Labor (?theSecretary?) failed to prove that the violation was willful, as alleged. TheSecretary petitioned for discretionary review by the Commission on the groundsthat Judge Cutler erroneously concluded that the violation here was not willfuland that he erred in reducing the penalty from the $5,600 originally proposedto $700. Commissioner Cleary directed review on the two issues raised by theSecretary.[2] For the reasons set forthbelow, we conclude that the judge erred in vacating the willful allegation andassessing a reduced penalty.I??????????? Atthe time of the violation at issue, Kus-Tum?s work crew was engaged in erectingprefabricated wooden roof trusses at a one-story, rectangular commercialbuilding, 60 feet wide and 250 feet long, which at the time had 10-foot highconcrete walls on three sides and an open fourth side consisting of steelcolumns and bearing beams. Each roof truss was triangular in shape, nearly 70feet long at the base and 12 feet high at the arch, and each weighed 1000 at1200 pounds. A crane lifted each truss into position so that it straddled thewidth of the building, standing vertically and parallel to the other trusses atapproximately 2-foot intervals. The individual trusses were then connected toeach other by nailing strips of ?2×4? wood to the trusses to serve as bracing.Bracing can be diagonal (e. g., a 20-foot strip connecting the edges of five orsix parallel trusses), cross (two diagonals overlapping in the shape of an?x?), or lateral (e. g., a short strip of wood inserted horizontally betweentwo adjacent trusses). The purpose of the bracing is to stabilize the roofstructure and to keep the individual trusses plumb so that they do not toppleover against each other like dominoes.??????????? Accordingto testimony at the hearing before Judge Cutler, prior to the commencement ofthe truss erection operation, the superintendent of the general contractor onthe construction job had discussed the blueprint for the project with Kus-Tum?schief officer, Anthony Amato, and had emphasized the necessity of havingadequate bracing for the trusses. Amato testified later that the specificationscalled for diagonal bracing every 20 feet. Amato had also reviewed, inpreparing for the project, a truss industry pamphlet that again emphasized theneed for diagonal bracing. Early on the day of the violation at issue, thesuperintendent expressed his concern to Amato that more bracing was required.Amato assigned one of his crew members to the task. Nevertheless, during abreak later that afternoon, crew members also became apprehensive about theinstability of the forty-five trusses that had been erected. Five crew memberstestified that they had complained to Amato and to his foreman, Anthony Leanza,that some of the trusses were leaning. The workers were told that the crewwould continue to erect additional trusses and then install more bracing at theend of that work day or the beginning of the next. When some of the crew balkedat re-mounting the trusses to resume work following the break, Amato told themto get back to work or go home. Shortly thereafter, the truss structure beganto creak and suddenly all of the trusses toppled over. Amato, who was workingbeneath the truss structure at the time, was hospitalized as a result of thecollapse. One of the workers was killed.??????????? Atthe hearing, the nature and adequacy of the bracing provided for the trusseswas sharply disputed. Amato conceded that truss erection is a very hazardousoperation, particularly when it involves long trusses of the type used here. Healso testified that the truss structure had been braced diagonally every 20feet and that he would never put up forty-five trusses without attachingdiagonal bracing. He specifically denied that anyone had told him that therewas inadequate diagonal bracing and maintained that, up until the time of theincident, he had remained satisfied with the stability of the trusses. Leanza,Amato?s cousin, testified that diagonal bracing had been used approximatelyevery five trusses and that Amato and the deceased employee, Azzaleno, had donethe work, Amato cutting the pieces for the bracing and Azzaleno installingthem. Leanza, too, asserted that no one had complained that the trusses wereout of plumb.??????????? Indirect conflict with this testimony, the OSHA compliance officer, two trussexperts and a city building inspector testified that, following the collapse,they found no evidence of cross or diagonal bracing connecting the trusses andfurther concluded that the bracing that had been used was inadequate. Theyspecifically noted the absence both of bracing material in the collapsed debrisand also of nail holes in the trusses where cross or diagonal bracing wouldhave been attached. Moreover, five crew members asserted that the bracing hadappeared inadequate at the time.II??????????? Inhis decision, Judge Cutler found that a question of fact had been raised as towhether the collapse was initiated by the truss structure?s having been struckby a wildly swinging truss suspended from the boom of the crane or as a resultof the inherent weakness of the structure. Nevertheless, he correctly reasonedthat the cause of the collapse need not be determined in this proceedingbecause, if the trusses were not adequately braced, a violation existedregardless of the cause of the accident. The judge found that the trusseserected after the first five were not adequately braced and that they did notconform to recognized industry safety standards. Specifically, he found thatonly lateral braces with spacers were provided on most of the later trusses.With regard to the disputed factual issues in the case, the judge implicitlydiscredited the testimony of Leanza and Amato. For example, the judge rejectedtheir assertions as to the extent and the adequacy of the bracing that wasprovided and also cited and relied upon the conflicting testimony of theemployees as to the events preceding the incident. Judge Cutler concluded thatthe evidence sustained the section 5(a)(1) charge and further found that collapseof the trusses would cause death or serious physical injury to Respondent?semployees and also that Respondent?s chief officer, Amato, and foreman, Leanza,knew or should have known of the hazard. Accordingly, Judge Cutler foundKus-Tum in serious violation of section 5(a)(1) of the Act.??????????? JudgeCutler concluded, however, that the violation was not willful as alleged. Thejudge noted Amato?s testimony that the bracing methods used by Kus-Tumcomported with what he believed to be necessary safety requirements in theindustry. The judge stated, ?This also appears to be the case with Mr. Leanza.?The judge further reasoned that both Amato and Leanza apparently believed thetruss structure to be safe for they were working underneath it when it collapsed.Consequently, he stated that he could not ?conclude that there was anintentional disregard of or indifference to a recognized hazard on the part ofrespondent such as to constitute a willful flaunting of the statute.?Accordingly, Judge Cutler affirmed a modified citation for a serious violationof section 5(a)(1) and assessed a penalty of $700. Nevertheless, he emphasizedthat there was ample evidence of the dangerous condition prior to the incident.He also observed that ?safety was sacrificed for speed? and that Respondent hadbeen ?unquestionably negligent.? Moreover, he made an explicit finding of factthat ?respondent?s chief officer and foreman knew, or should have known, of thehazards.?III??????????? Onreview, the Secretary cites record evidence that, in his view, sustains thewillful allegation. He notes Amato?s admission that cross or diagonal bracingis essential to maintain the stability of the large, heavy trusses used at theworksite. Moreover, Amato knew that the specifications for the erection of thetrusses called for diagonal bracing. In addition, the prime contractor madeseveral requests for more bracing on the day of the incident. Nevertheless,Respondent failed to use cross or diagonal bracing; the materials required forthis bracing were not even at the worksite. Even more significant, in theSecretary?s view, was Kus-Tum?s failure to respond to the complaints of theemployees.??????????? TheSecretary cites two cases affirming willful violations of section 5(a)(2) ofthe Act for the proposition that willfulness implies knowing and voluntaryconduct that disregards employee safety. GeorgiaElectric Co., 77 OSAHRC 30\/A2, 5 BNA OSHC 1112, 1977?78 CCH OSHD ?21,613(No. 9339, 1977), aff?d, 595 F.2d 309(5th Cir. 1979); C.N. Flagg & Co.,74 OSAHRC 66\/A2, 2 BNA OSHC 1195, 1974?75 CCH OSHD ?18,686 (No. 1734, 1974), pet. den., No. 74?2362 (2nd Cir. Jan.12, 1976).??????????? Finally,the Secretary insists that an employer?s belief or private determination that acondition is not hazardous cannot defeat a willful charge, citing F.X. Messina Construction Corp. v. OSHRC,505 F.2d 701 (1st Cir. 1974), and, thus, the Secretary dismisses Respondent?sargument?relied upon the by judge?that Amato?s asserted belief that the bracingcomported with industry practice and Amato?s own willing exposure to thealleged hazard should mitigate a finding of willfulness here.??????????? Respondent?sdefense against the allegation of willfulness rests essentially upon twoassertions. First, Respondent argues that there is no record evidence toindicate Amato?s actual knowledge of the alleged violation. Second, Respondentinsists that it would be unreasonable to believe that Amato would have workeddirectly under the 1000 to 1200 pound trusses had he known that they were notproperly braced.IV??????????? TheCommission characterizes a violation as ?willful? if it was committed witheither an intentional disregard of, or plain indifference to, the Act?srequirements. Mel Jarvis Construction Co,OSHRC Docket No. 77?2100 (RC, September 30, 1981). This position is consistentwith the views of the United States Courts of Appeals for the First, Second,Fourth, Fifth, Sixth, Eighth, Ninth, Tenth and District of Columbia Circuits. A. Schonbek & Co. v. OSHRC, 646 F.2d799 (2nd Cir. 1981); National Steel &Shipbuilding Co. v. OSHRC, 607 F.2d 311 (9th Cir. 1979); Georgia Electric Co. v. Marshall, supra;Kent Nowlin Construction Co. v. OSHRC, 593 F.2d 368 (10th Cir. 1979); Cedar Construction Co. v. OSHRC, 587F.2d 1303 (D.C. Cir. 1978); Empire-DetroitSteel Division v. OSHRC, 579 F.2d 378 (6th Cir. 1978); Western Waterproofing Co. v. Marshall, 576 F.2d 139 (8th Cir.1978), cert. denied, 439 U.S. 965(1978); Intercounty Construction Co. v.OSHRC, 522 F.2d 777 (4th Cir. 1975), cert.denied, 423 U.S. 1072 (1976); F.X.Messina Construction Corp. v. OSHRC, supra.??????????? TheSecretary?s burden of proving willful conduct is notably more difficult when anemployer is charged with a willful violation under a general standard or ?thegeneral duty clause,? section 5(a)(1), rather than a specific standard. St. Joe Minerals Corp. d\/b\/a St. Joe LeadCo. v. OSHRC & Marshall, 647 F.2d 840 (8th Cir. 1981). In particular, amore concrete evidentiary showing is required to prove willfulness in thiscontext. Where a willful violation of section 5(a)(1) is alleged, the Secretaryhas the burden of proving the employer?s intentional disregard of or its plainindifference to its statutory duty to furnish a workplace free from recognizedhazards that are causing or likely to cause death or serious physical harm. Id. at 848. Thus, ?there must beevidence, apart from that establishing knowledge of the hazard, from which wemay reasonably conclude that the employer intentionally disregarded or wasindifferent to the safety of the workplace.? Id. at 848?849.??????????? Suchevidence is abundant in this record. First, because he was working directlybeneath the trusses, Amato was in a position to see clearly the lack of bracingand the instability of the trusses. Second, Amato admitted in his testimonythat he knew that diagonal bracing was required in order to secure thesetrusses. Third, the prime contractor?s superintendent expressed concern severaltimes during the course of the truss erection that the bracing was not adequate.Forth, prior to commencing the job, Amato reviewed a brief industry pamphletwhich contains numerous references to the necessity of adequate bracing,especially diagonal bracing. Fifth, Amato and Leanza were specifically warnedby as many as five laborers on the jobsite that the trusses were unstable andrequired more bracing.[3] Sixth, Amato essentiallyconceded the validity of these warnings by telling at least two of the crewmembers that the crew would go back and add bracing, but only at the end of theworkday. Seventh, despite ample warning of the hazard, as indicated above,Amato failed to take any corrective action. Indeed, despite their concern, thelaborers were told to get back to work or to go home. Eighth, expert witnessestestified that there was no physical evidence of diagonal bracing among thecollapsed trusses at the worksite. In sum, the record clearly establishesKus-Tum?s intentional disregard of or plain indifference to ?the safety of theworkplace? and its duty under section 5(a)(1) to provide a workplace free fromrecognized hazards that are likely to cause death or serious physical harm.??????????? Byway of mitigation on the issue of willfulness, Respondent asserts that there isno record evidence to indicate Amato?s actual knowledge of the allegedviolation. We reject this assertion. Amato?s statement, reported by two of theworkers, that the crew would defer adding more bracing until the end of the daybelies Respondent?s claim, particularly since at least five different peoplecomplained to him about the instability of the truss structure.??????????? Finally,Respondent argues that Amato and Leanza would not have continued workingbeneath the structure if they had doubted its safety. While an employer candefend against a willful allegation on the basis of a good faith belief thatits actions complied with the Act, in order to sustain this defense,Respondent?s asserted belief that the trusses were not hazardous must have beenheld in good faith. See Mel JarvisConstruction Co., supra. Moreover, the test for determining good faith ?isan objective one, i. e., was the employer?s belief concerning a factual matteror concerning the interpretation of a standard, reasonable under thecircumstances.? Id., slip op. at 5.Here, the weight of the evidence?including the admitted necessity of diagonalbracing, the absence of diagonal bracing, the leaning of the trusses, and thewarnings by the workers?does not support a finding of good faith. See Morrison-Knudsen & Associates,80 OSAHRC 108\/A2, 8 BNA OSHC 2231, 1980 CCH OSHD ?24, 953 (No. 76?1992, 1980).Furthermore, it is unnecessary to conclude that Amato acted with calculation insubjecting himself and his employees to conditions which he recognized to behazardous. It is sufficient that he acted here with intentional disregard of orplain indifference to the safety of the workplace. The record amply sustainsthis conclusion.??????????? Havingreversed the judge?s determination that the violation was not willful, we mustreevaluate the question of the penalty to be assessed. Although Respondent hadless than twenty employees and no record of previous violations, it cannot becredited with any good faith here. As to the gravity of the violation, thefollowing elements must be considered: (1) the number of employees exposed, (2)the duration of exposure, (3) the precautions taken against injury, and (4) thedegree of probability that an injury would occur. Turner Co., 79 OSAHRC 108\/A2, 4 BNA OSHC 1554, 1976?77 CCH OSHD?21, 023 (No. 2635, 1976); rev?d on othergrounds, 561 F.2d 82 (7th Cir. 1977). Here, at least six persons weresubjected to the hazard. The duration of exposure was several hours. Respondenttook only meager precautions against injury in providing inadequate bracing.Given the weight of the trusses and the lack of bracing, we consider thegravity of the violation to be relatively high. We therefore conclude that theSecretary?s proposed penalty of $5600 is reasonable and appropriate in light ofthe record and the statutory penalty criteria set forth at section 17(j) of theAct, 29 U.S.C. ? 666(i).??????????? Accordingly,we reverse the judge?s decision insofar as it vacated the willful allegation,we find that the violation was willful as alleged, and we assess a penalty of$5,600. SO ORDERED.?FOR THE COMMISSION:?Ray H. Darling, Jr.Executive SecretaryDATED: OCT 30, 1981\u00a0\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76?2644 \u00a0 KUS-TUM BUILDERS, INC., \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 December 27, 1976DECISION AND ORDERAPPEARANCES:Bobbye D. Spears, Esquire, RegionalSolicitor U.S. Department of Labor, Atlanta, Georgia, by James L. Stine,Esquire, for complaint.\u00a0Ellis S. Simring, Esquire, Ft. Lauderdale,Florida, for respondent.\u00a0Cutler, Judge:??????????? Followingan unfortunate accident resulting in the death of the individual and injury totwo others, respondent was issued a citation on May 28, 1976. Respondent ischarged with a willful violation of section 8(a)(1)[4] of the Occupational Safetyand Health Act of 1970 (29 U.S.C. 651, et seq.) on or about May 19, 1976, at aworksite located at Bual Shopping Center, 2100 North University Drive, PembrokePines, Florida, in that it ?willfully failed to furnish each of his (sic)employees employment which is free from recognized hazards that are likely tocause death or serious physical harm in that during truss erection operations,employees were working on or under large wooden trusses which were not providedwith the adequate erection bracing which is always required to prevent topplingand ?dominoing?.??????????? Theviolation is charged as serious and willful with immediate abatement. A penaltyof $5,600.00 is proposed.??????????? Ahearing was held on September 15 and 17, 1976, in Fort Lauderdale, Florida. Noaffected employee or authorized employee representative elected to participateas a party in the case.I??????????? Whilerespondent does not concede jurisdiction under the Act, the probative evidenceestablishes that the lumber used to manufacture the trusses used by respondentgenerally came from outside the State of Florida (Tr. 174). In addition, thesteel used in the manufacturing of the truss connectors was mostly bought frommills outside the state (Tr. 209). Accordingly, I find that respondent was anemployer engaged in a business affecting commerce between states.II??????????? Respondentis a building construction company and, on the dates pertinent here, was asubcontractor involved in the erection of a 60-by-250-foot building located inthe Bual Shopping Center, Pembroke Pines, Florida?specifically in connectionwith the masonry and concrete work and installation of the roof. On May 19,1976, during the course of work, approximately 45 roof trusses fell killing oneman and injuring two others.??????????? Respondentis charged with not providing adequate erection bracing to prevent toppling and?dominoing?. The thrust of complainant?s case is that the trusses were notproperly braced in accordance with good safety practice. Complainant furtheravers that the cause of the accident is not material to the issue of whetherrespondent violated the Act. Respondent argues that the trusses were properlybraced and the toppling of the trusses was caused by external cause?the actionof an uncontrolled and wildly swinging truss suspended on the boom of the craneused in the erection process.??????????? Toresolve the complicated factual issues involved, a detailed exposition of theevidence is necessary. The trusses used by respondent in connection with theroof construction were prefabricated of wood with metal reinforcing connectorsholding the chords together and reinforced by diagonal and vertical webs. Theywere triangular in shape, individually weighed 100 to 1200 pounds, and were 69feet, 4 inches long, and 12 feet high at the top of the arch. The trusses werehoisted into position by a crane with a spreader bar attached to the boom.??????????? Atthis point it may be observed generally that, when several trusses are erectedin the building process, various types of field bracing are utilized betweenthe trusses and from truss to ground to provide proper spacing and overallstability of the unitized structure. These include ground bracing, lateral(also called bridge, straight or continuous) bracing, cross or X-bracing, anddiagonal bracing. In addition, the first brace is tied into the buildingstructure. As to what types of field bracing were used and their adequacy werematters hotly contested at the hearing.??????????? Accordingto the evidence adduced at the hearing, the truss work started on May 18, 1976,the day before the accident. The first truss was installed with ground bracingand with anchor or ?hurricane? steel straps which were imbedded in the concretewall and nailed to the truss. The ground bracing, according to Anthony Leanza,respondent?s foreman, consisted of four of five two-by-fours extending from thetop of the truss and staked in the ground with stubbing. Four additionaltrusses were installed that day which Mr. Leanza testified were braced togetherlaterally both on the top and bottom and with cross or diagonal bracing.??????????? Onthe following morning Mr. Leanza related the five trusses were rebraced withtwo-by-ten planking substituted for the two-by-four ground bracing. Thereafter,about 40 trusses were erected up until 3:20 p.m. that day. Mrs. Evelyn Mormangave an eye-witness account of the tragic event that followed. She is ahousewife who had been watching the construction activity for the past two daysfrom her kitchen window west of the work site. According to Mrs. Morman, atruss suspended from the boom of the crane began swaying back and forth?radically? (Tr. 360, 361). Then all of the trusses swayed north then fellsouth. Normally, she said, two men would be positioned to grab and secure atruss when it was elevated. However, the crew had just completed a coffee breakand the men were unsuccessful in reaching their positions where they couldcontrol the truss.??????????? Accordingto Mr. Leanza, at the end of the coffee break, the crane operator was in thecab which was facing toward the west and the boom was up. The crane had startedto move when the trusses started to fall. His testimony was corroborated by Mr.Anthony Amato, head of the respondent company.??????????? Thatthe crane was involved in the accident was denied by its operator, LonnieWright, and his assistant (oiler), Kenneth Kogelman, both employees of Gold CoastCrane Service. Wright testified that he was in his cab when the accidentoccurred but that the cab was facing south and the crane was not hooked up to atruss. His oiler stated that, at the time of the accident, the crane?s boom wasto the southeast and a truss was being hooked up. This would place the boomalmost in an opposite direction from the point of the alleged impact. VictorWeaver, one of respondent?s carpenters on the job, testified that, at the timeof the accident, the crane was just picking up a truss from the pile and hadnot yet moved it inside the building shell. Also another carpenter, JerryLayne, who was on top of a beam at the time of the collapse, testified he didnot see the crane.??????????? It isunnecessary in this forum to determine the cause of the accident?i.e., whethera wildly swinging truss suspended from the boom of the crane struck the alreadyerected trusses or whether the truss structure collapsed due to its inherentweakness. The statute does not require an accident to occur before there can bea violation of a standard (NationalRealty and Construction Co., Inc., 1 OSAHRC 731 (1972), rev?d on another issue 489 F.2d 1257(D.C. Cir. 1973); Secretary v. TolarConstruction Co., 13 OSHRC 514 (1974). It is clear that, if the trusseswere not adequately braced, a violation existed even assuming the action of thecrane initiated the accident.??????????? Accordingly,we turn to the evidence as to the nature and extent of the bracing used in thiscase. Complainant presented as a witness, Francis L. Silverberg, a complianceofficer for the Department of Labor. Concerning his qualifications, hetestified that, prior to his employment with the Labor Department, he had beena state safety representative and also a foreman and superintendent in theheavy construction industry. On the day following the accident he conducted aninspection of the job site. He found all of the trusses lying collapsed in theinterior of the building shell. From his examination of the trussed, he foundno evidence of cross or diagonal bracing. This conclusion was reached by thelack of nail holes in the truss members and the absence of bracing material. Heascertained that the trusses had been connected to each other with one-by-four-inchspacers, 25? inches in length. Also two-by-ten-inch scaffold planks apparentlyhad been used as lateral bracing. He indicated the ground bracing was deficientin that the stakes nailed to the braces were not driven far enough in theground and would not provide adequate bracing in a southerly direction. It washis opinion that the trusses lacked sufficient bracing.??????????? Thesite was also inspected the day after the accident by William R. McAlpine,Vice-president of a truss manufacturing company. He is a civil engineer with 17to 18 years? experience in the truss industry. He was asked by the supplier toexamine the trusses involved to see if anything was wrong with them. Hedetermined that the bracing used was six or seven ground braces from the firsttruss and six rows of continuous or lateral bracing along the top chords of thetrusses. He saw no evidence of cross or diagonal bracing. In his opinion, ?somesort of cross bracing in addition to lateral bracing and extremely secureground bracing would be most important? (Tr. 212).??????????? Thecomplaint also called as a witness, Silvio Silveria, the estimator and chiefengineer of Mack Industries, a truss designing company. He is a civil engineerwith experience also as a general contractor. Mack Industries prepared the rooftruss layout for the general contractor in this case. From his on-the-siteinspection after the accident, he concluded that the trusses were notadequately braced.??????????? RichardGodfrey, the superintendent of the general contractor at the Bual ShoppingCenter, testified he told Mr. Amato that the first truss needed more bracing.The latter agreed and this was done. Bracing for the other trusses was alsodiscussed several times. He indicated that bridge or straight bracing was usedat the top and bottom chords using one-by-four-inch lumber. The ground bracingconsisted of two-by-ten and two-by-four members.??????????? Theaccident resulted in a visit to the scene by Harold B. White, the chiefbuilding inspector for the City of Pembroke Pines. He has 50 years? experiencein the construction business. His investigation led to a report findingrespondent in violation of the South Florida Housing Code. Specificdeficiencies which he enumerated in his testimony were that there was no bracesto prevent the trusses from falling south, that 8 penny nails were used insteadof 16 penny nails in the anchor straps and in the lateral spacers, and thatthere was no diagonal bracing. Had he inspected the site as the trusses werebeing erected, he stated he would have stopped the job.??????????? Testimonyof some of the workers at the scene is to the effect the trusses were deficientprior to the accident and that this was made known to respondent?s supervisorypersonnel. Lonnie Wright, the crane operator, testified that the bracing wasinadequate and that the trusses were leaning and out of plumb. He said that hetold the foreman several times about the bracing. At the three o?clock break,prior to the accident, he and his oiler told several respondent?semployee??Don?t go back up there because those things look like they are goingto fall? (Tr. 140). He testified the employees did not want to go back up butthe foreman ordered them to.??????????? KennethKogelman, the oiler, also testified the trusses had been leaning and so toldthe foreman who answered that a man was supposed to straighten the trusses.Prior to the three o?clock break, Mr. Kogelman stated that the last trusserected was leaning to the south and was almost touching the one adjacent toit. He heard Lonnie Wright tell the employees about the trusses and observedthat the man were reluctant to return to work after the break. The foreman,however, told them to go back or go home.??????????? Asfor the bracing itself, he testified he did not recall any cross bracing beingused and the only bracing used was lateral across the top, and the man who waskilled was putting one-by-three?s on the bottom.??????????? VictorWeaver, a carpenter for respondent, testified that the bracing used at the BualShopping Center job consisted of lateral bracing across the top andone-by-three-inch spacers, 26 inches long which were nailed from truss totruss. He did not feel the bracing at the jobsite was adequate and haddiscussed it with others, including Mr. Amato.??????????? Anothercarpenter for Kus-Tum Builders, Jerry Layne, testified the bracing used on thejob consisted of one-by-four-inch lateral bracing ?running across the top anddown the center? (Tr. 240). Except for spacers, there was no cross or diagonalbracing used. He stated he thought the trusses should be braced more and sotold Mr. Amato. The latter said he would take care of it 15 minutes beforequitting time. Mr. Layne also testified he did not want to go back up on thetrusses after the break because they were unsafe but Mr. Amato told him to doso or leave. At the time of the accident, he saw the trusses shift a bit and hejumped from the top of the beam and he was on. He did not see the crane upthere at that time.??????????? BruceCook, also a carpenter on respondent?s work crew at the site, testified thefirst six trusses were diagonally braced with 16-foot two-by-ten-inch planks.The trusses erected the next day were braced with 16-foot one-by-three-inchlateral braces. Spacers were used at the top but not at the bottom. This keptthe trusses straight except for the last three, and he told the foreman aboutthis. The latter told him that Tony (the deceased) would catch up. After thefirst six trusses, no cross or diagonal bracing was used. According to Mr.Cook, the foreman told him this would be done after the lumber was delivered inthe afternoon. At the time of the break, he did not believe the trusses weresafe and so told the foreman or Mr. Amato.??????????? Respondent?switnesses paint a different picture. Sam Bercot, a laborer putting up thetrusses on the job, testified that at least the first 15 trusses were X-bracedand were also laterally braced. He believed the man who was killed wasinstalling additional cross braces at the time of the accident.??????????? AnthonyLeanza, respondent?s foreman, testified that he has worked in dozens of trusserection operations. As to the job in question, he stated that, in addition tolateral bracing, the first 40 trusses were diagonally or cross braced in setsof five. At the time of the accident, Tony Azzaleno, the deceased, was in theprocess of bracing the next five and was also putting in lateral bracing at thebottom. Mr. Leanza believed that, prior to the accident, the trussing operationwas sturdy and as secure as possible with no swaying or movement. He deniedbeing asked by Bruce Cook if they could drop back and work on cross bracing andalso that any employee told him the trusses were out of plumb.??????????? Mr.Anthony Amato, owner of Kus-Tum Builders, testified he has worked in theconstruction business since about 1940, first as a union carpenter and later asa subcontractor. Examples of his experience included erection of 10 or 20structures for the International House of Pancakes chain, 24 or 26 for theBurger King chain, and three for the Bonanza Steak House chain. In addition, hewas the project manager in connection with the erection of a large Cleveland(Ohio) theater.??????????? Concerningthe Bual Shopping Center, he testified that the first truss was installed withmetal straps and five ground braces securely staked. Four more trusses were putup and secured the first day. The next morning, the five trusses were resecuredwith diagonal, parallel and base bracing. The trusses thereafter erected werediagonally braced every 20 feet with one-by-fours. He denied having been toldby any worker on the site that the trusses were unsafe. Prior to the accident,he was cutting spreaders while Tony Azzaleno was nailing diagonals. Up to thetime of the accident, he considered the trusses to be stable.IIIMy evaluation of the evidence leads to but one conclusion?thatis that the wooden trusses erected by respondent were not adequately braced toprevent them from buckling or ?dominoing?. While Mr. Amato and Mr. Leanzatestified that diagonal cross bracing was being used for almost all of thetrusses, another of respondent?s witnesses, Sam Bercot, could only recall thatthe first 15 were so braced. On the other hand, the crane operator, hisassistant, and three carpenters all testified that no cross bracing was used atthe jobsite on May 19, 1976. All indicated the trusses were inadequately bracedand voiced opinions to that effect prior to the accident. Their testimonyreceives substantial corroboration from that of Mr. Silverberg, the complianceofficer, who found no evidence of cross bracing nail holes or of the lumberused for the purpose although there was ample evidence of lateral spacers andground bracing. Three experts, Mr. McAlpine, Mr. Silveria and Mr. White supporthis conclusions.??????????? Whatdoes appear from the evidence is that the first five trusses were properlybraced but the ones erected on the succeeding day, May 19th, were not. Thepreponderating evidence indicates that the only bracing used on most of thelater trusses erected on May 19th was 16 foot two-by-ten-inch lateral braceswith one-by-four-inch spacers placed between each truss near the top. That thiswas not sufficient to afford the structure stability is evidence by testimonyof the on-site workers that the trusses were leaning and out of plumb. Thisdeficiency was pointed out to respondent?s foreman by Mr. Cook who testifiedthat, when he asked Mr. Leanza if he could drop back and put up cross bracing,Mr. Leanza told him it would be done later when the lumber arrived. Finally, Inote that about 40 trusses were erected on the day of the accident. Mr. Leanzatestified that he was not satisfied with the bracing of the first five trussesand they were rebraced that morning. Because of this, work did not start on thetrusses subsequently erected until about 10:30 a.m. Figuring in the 30-minutelunch break, it appears that 40 trusses were erected in the space of about fourhours and 20 minutes?or approximately six minutes per truss. Yet, Mr. Leanzatestified that proper truss erection required 10 to 15 minutes per truss.??????????? Complainant?sexpert witnesses uniformly testified that the bracing used was not adequate anddid not conform to industry safety standards. I agree. Respondent argues thatthe trusses were properly braced and that their collapse was due to the actionof the crane. I need not resolve this point of contention. However, I willobserve that, had the trusses been properly braced, it is more than likely thatthe entire structure would not have collapsed to the extent that it did.Assuming the crane boom with a suspended truss had struck the last of the 45erected trusses, the fact that the truss structure first moved north, caromedback to the south, and then completely collapsed was indicative of itsstructural weakness, particularly at the bottom which was unsupported by crossor lateral bracing.??????????? It isalso noted that both Mr. Silverberg and Mr. White indicated that the groundbracing used for the first truss was not adequate to cope with a fall in asoutherly direction. The latter also testified 8 penny nails were used in theanchor straps instead of 16 penny nails. Thus, had there been proper bracing ofthe first truss the whiplash action of the truss structure may well have beenaverted.??????????? Thereis no need, however, to speculate on ?what might have been?. The fact remainsthat the probative evidence clearly establishes that the trusses were notprovided with adequate erection bracing necessary to prevent toppling or?dominoing?.??????????? Toestablish a violation of the general duty clause (section 5(a)(1)), theSecretary must prove (1) that the employer failed to render its workplace?free? of a hazard which was (2) ?recognized? and (3) ?causing or likely tocause death or serious physical harm?. This requires employers to discover andexclude from the workplace all feasibly preventable forms and instances ofhazardous conduct (National Realty andConstruction Co. v. OSHRC and Secretary, 489 F.2d 1257 (C.A. D.C. 1973)); Getty Oil Co. v. OSHRC and Secretary,530 F.2d 1143 (5th Cir. 1976).??????????? Inthe instant case, the probative evidence clearly establishes that the failureof respondent to properly brace the trusses created a definite safety hazard toits employees. That it was a ?recognized? hazard?i.e., generally known by theindustry involved?is also well established. The complainant?s expert witnessesand, indeed Mr. Amato himself, agree that cross or diagonal bracing is acceptedand considered necessary in the industry.[5] Finally, there is no doubtthat there existed a substantial probability of death or serious injury to anemployee as a result of the collapse of one or more of the trusses, eachweighing 1000 to 1200 pounds.??????????? Consideringall the facts and circumstances of this case, I conclude the respondent?sfailure to properly brace the roof trusses at his worksite was violative of thegeneral duty clause, and further, was properly charged as serious.??????????? Theviolation is also alleged as willful. The term ?willful? has been defined as?intentional, or knowing, or voluntary, as distinguished from accidental, andthat it is employed to characterize ?conduct marked by careless disregardwhether or not one has the right so to act??. (United States v. Illinois Central R.R., 303 U.S. 239, 243 (1938); Secretary v. C.N. Flag & Co., Inc., 11 OSHRC 632, 634 (1974)).Knowledge or ?scienter? appears to be an important criterion in determingwillfulness?that is, where the employer knew that his actions might violate thelaw, Coleman v. Jiffy June Farms, 458F.2d 1139, 1142 (5th Cir. 1972)). In IntercountyConstruction Co. v. OSHRC, 522 F.2d 777 (4th Cir. 1975), the court appliedthe terms to a violation of a specific standard and found willfulness when thecompany, after a previous warning from OSHA, intentionally removed a safetydevice from a trench. The court, citing Coleman, supra, stated that ?Congressintended to punish the conduct of one who knew that his actions would violatethe law? (Intercounty Construction Co.,supra, at 780).??????????? Thisconstruction of the term, as applied to a civil statute accords generally withthe definition given by the Supreme Court in a 1938 case, as follows:?. . . [W]e are persuaded that it[willfully] means purposely or obstinately and is designed to describe theattitude of a [person], who, having a free will or choice, either intentionallydisregards the statute or is plainly indifferent to its requirements. . . .? (United States v. Illinois Central Railroad,303 U.S. 239, 243 (1938)).?The respondent in the case, sub judice, is chargedwith a violation of the general duty clause of the Act?Section 5(a)(1), (29U.S.C. 654(a)(1))?rather than a specific standard. The testimony of Mr. Amato indicatesthat he believed that the bracing methods taken by Kus-Tum Builders comportedwith what he believed to be necessary safety requirements in the industry. Thisalso appears to be the case with Mr. Leanza. In any event, both apparentlybelieved the truss structure to be safe for they were underneath it when itcollapsed and sustained injuries therefrom.??????????? Consideringthe foregoing, I cannot conclude that there was an intentional disregard orindifference to a recognized hazard on the part of respondent such as toconstitute a willful flaunting of the statute.??????????? I donot mean to imply by the foregoing that respondent was not in violation of thestatute. The evidence is ample that the dangerous conditions existed prior tothe accident. I accept as valid the testimony of complainant?s expert witnessesas to that condition even though based upon ?after the fact? examinations butbolstered, as they are, by the testimony of lay witnesses concerning theinherent weakness of the truss structure prior to the accident. My view of theevidence leads me to the conclusion that safety was sacrificed for speed.Respondent knew or should have known that a hazard to its employees was createdand, while I have not denominated the violation as willful, it was unquestionablynegligent.??????????? Complainanthas proposed a penalty of $5,600.00. This is based upon a gross figure of$8,000.00 for the degree of willfulness and with a reduction of 10 percentbased upon the size of the company and 20 percent for a history of no previousviolations. This proposed penalty obviously must be reassessed in view of myfinding that respondent has not willfully violated the statute.??????????? Accordingly,considering the statutory factors of size, gravity, good faith and history, apenalty of $700.00 is appropriate and will be assessed.??????????? Ireach the following findings of fact and conclusions of law:FINDING OF FACT??????????? 1.That at the time and place in question, respondent was a subcontractor engagedin erecting roof trusses for a shopping center building in Pembroke Pines,Florida.??????????? 2.That on the afternoon of May 19, 1976, approximately 45 roof trusses had beenerected by respondent.??????????? 3.That each roof truss was triangular in shape, weighed between 1000 and 1200pounds, and was 60 feet, four inches long, and 12 feet high at the arch.??????????? 4.That at about 3:30 p.m., May 29, 1976, all of the trusses collapsed killing oneemployee and injuring two others.??????????? 5.That a question of fact remains as to whether the collapse was initiated by thetruss structure having been struck by a wildly swinging truss suspended fromthe boom of a crane or as a result of the inherent weakness of the structure.??????????? 6.That, regardless of the cause, the trusses were not properly braced inaccordance with good safety standards recognized by the construction industry.??????????? 7.That as a result of this inherent structural weakness, collapse of the trusseswas possible which would cause death or serious injury to employees workingwith the trusses.??????????? 8.That respondent?s chief officer and foreman knew, or should have known, of thehazards.CONCLUSIONS OF LAW??????????? 1.That respondent is an employer engaged in a business affecting commerce withinthe meaning of the Act.??????????? 2.That this Commission has jurisdiction over the subject matter and parties tothis action.??????????? 3.That respondent violated section 5(a)(1) of the Act (29 U.S.C. 654(a)(1)) byfailing to properly brace roof trusses which it was erecting.??????????? 4.That the violation was serious.??????????? 5.That the violation was not willful.??????????? Basedupon the foregoing findings of fact and conclusions of law, the citation, asamended, is affirmed and a penalty of $700.00 is assessed.?SO ORDERED.?CECIL L. CUTLER, JR.JudgeDate: December 27, 1976[1] Section 5(a)(1)of the Act, 29 U.S.C. ? 654(a)(1), provides:SEC.5(a) Each employer?(1) shall furnish to each of his employees employment and aplace of employment which are free from recognized hazards that are causing orare likely to cause death or serious physical harm to his employees.[2] In addition,former Commissioner Moran directed review of the judge?s decision ?for error?without specifying any issues to be resolved by the Commission. Only theSecretary filed a petition for review. After review had been directed,Respondent filed a letter-in-lieu-of-brief in which it relied both upon itsbrief before the judge and upon the judge?s decision (which found a violation,but rejected the Secretary?s ?willful? characterization). Respondent praisedJudge Cutler?s ?fair and accurate analysis of the trial? and his ?fair andreasonable? decision. Thus, to the extent that Respondent?s arguments beforethe judge are inconsistent with the judge?s decision, we conclude thatRespondent has abandoned on review its claims below denying the existence ofthe violation and persists only in denying that its conduct was ?willful.?Because there is neither party interest nor compelling public interest inreviewing any issues other than those directed for review by CommissionerCleary, we affirm the remainder of the judge?s decision without review. See Water Works Installation Corp., 76OSAHRC 61\/B8, 4 BNA OSHC 1339, 1975?76 CCH OSHD ?20,780 (No. 4136, 1976); Abbott-Sommer, Inc., 76 OSAHRC 21\/A2, 3BNA OSHC 2032, 1976?77 CCH OSHD ?20,428 (No. 9507, 1976). Those parts of thejudge?s decision are accorded the precedential value of an unreviewed judge?sdecision. Leone Constr. Co., 76OSAHRC 12\/E6, 3 BNA OSHC 1979, 1975?76 CCH OSHD ?20,387 (No. 4090, 1976), appeal withdrawn, No. 76?4070 (2d Cir.1976).[3] We note thatAmato and Leanza denied that the laborers warned them of the instability of thetruss structure. Moreover, they stated that diagonal bracing was installed onalmost all of the trusses. Judge Cutler expressly rejected the testimony ofLeanza and Amato as to the bracing that was provided. In addition, heimplicitly credited the testimony of the five laborers, as opposed to that ofAmato and Leanza, on the question of whether the workers warned the supervisorsof the inadequacy of the bracing. Credibility evaluations are chiefly theresponsibility of the administrative law judge and the Commission ordinarilydefers to these credibility determinations. C.Kaufman, Inc., 78 OSAHRC 3\/C1, 6 BNA OSHC 1295, 1977?78 CCH OSHD ?22,481(No. 14249, 1978). We find no reason to overturn Judge Cutler?s credibilitydeterminations in this case and we accordingly accept them.[4] This sectionprovides that each employer ?shall furnish to each of his employees employmentand a place of employment which are free from recognized hazards that arecausing or are likely to cause death or serious physical harm to hisemployees.?[5] In R.J.H. Contractors, Inc., OSHRC DocketNo. 969, CCH OSHD 15,422 (1971?73), an ALJ found an employer not in violation ofthe general duty clause because of evidence by an expert that cross or x-typetruss bracing was not recognized as being in common use in the industry. Inthat case the trusses were considerably smaller in size and weight than here.Further the testimony of the expert witnesses is the case, sub judice, inuncontroverted and documented by an accepted industry treatise.”