October 30, 1981


Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.


            A decision of Administrative Law Judge Cecil L. Cutler, Jr., is before the Commission pursuant to section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’). Judge Cutler affirmed a citation alleging that Respondent, Kus-Tum Builders, Inc. (‘Kus-Tum’), violated section 5(a)(1) of the Act[1] in that its employees who were engaged in truss erection operations were working on or under large wooden trusses which were not provided with adequate bracing to prevent toppling and ‘dominoing.’ The judge, however, concluded that the Secretary of Labor (‘the Secretary’) failed to prove that the violation was willful, as alleged. The Secretary petitioned for discretionary review by the Commission on the grounds that Judge Cutler erroneously concluded that the violation here was not willful and that he erred in reducing the penalty from the $5,600 originally proposed to $700. Commissioner Cleary directed review on the two issues raised by the Secretary.[2] For the reasons set forth below, we conclude that the judge erred in vacating the willful allegation and assessing a reduced penalty.


            At the time of the violation at issue, Kus-Tum’s work crew was engaged in erecting prefabricated wooden roof trusses at a one-story, rectangular commercial building, 60 feet wide and 250 feet long, which at the time had 10-foot high concrete walls on three sides and an open fourth side consisting of steel columns and bearing beams. Each roof truss was triangular in shape, nearly 70 feet long at the base and 12 feet high at the arch, and each weighed 1000 at 1200 pounds. A crane lifted each truss into position so that it straddled the width of the building, standing vertically and parallel to the other trusses at approximately 2-foot intervals. The individual trusses were then connected to each other by nailing strips of ‘2x4’ wood to the trusses to serve as bracing. Bracing can be diagonal (e. g., a 20-foot strip connecting the edges of five or six parallel trusses), cross (two diagonals overlapping in the shape of an ‘x’), or lateral (e. g., a short strip of wood inserted horizontally between two adjacent trusses). The purpose of the bracing is to stabilize the roof structure and to keep the individual trusses plumb so that they do not topple over against each other like dominoes.

            According to testimony at the hearing before Judge Cutler, prior to the commencement of the truss erection operation, the superintendent of the general contractor on the construction job had discussed the blueprint for the project with Kus-Tum’s chief officer, Anthony Amato, and had emphasized the necessity of having adequate bracing for the trusses. Amato testified later that the specifications called for diagonal bracing every 20 feet. Amato had also reviewed, in preparing for the project, a truss industry pamphlet that again emphasized the need for diagonal bracing. Early on the day of the violation at issue, the superintendent expressed his concern to Amato that more bracing was required. Amato assigned one of his crew members to the task. Nevertheless, during a break later that afternoon, crew members also became apprehensive about the instability of the forty-five trusses that had been erected. Five crew members testified 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 crew would continue to erect additional trusses and then install more bracing at the end of that work day or the beginning of the next. When some of the crew balked at re-mounting the trusses to resume work following the break, Amato told them to get back to work or go home. Shortly thereafter, the truss structure began to creak and suddenly all of the trusses toppled over. Amato, who was working beneath the truss structure at the time, was hospitalized as a result of the collapse. One of the workers was killed.

            At the hearing, the nature and adequacy of the bracing provided for the trusses was sharply disputed. Amato conceded that truss erection is a very hazardous operation, particularly when it involves long trusses of the type used here. He also testified that the truss structure had been braced diagonally every 20 feet and that he would never put up forty-five trusses without attaching diagonal bracing. He specifically denied that anyone had told him that there was inadequate diagonal bracing and maintained that, up until the time of the incident, he had remained satisfied with the stability of the trusses. Leanza, Amato’s cousin, testified that diagonal bracing had been used approximately every five trusses and that Amato and the deceased employee, Azzaleno, had done the work, Amato cutting the pieces for the bracing and Azzaleno installing them. Leanza, too, asserted that no one had complained that the trusses were out of plumb.

            In direct conflict with this testimony, the OSHA compliance officer, two truss experts and a city building inspector testified that, following the collapse, they found no evidence of cross or diagonal bracing connecting the trusses and further concluded that the bracing that had been used was inadequate. They specifically noted the absence both of bracing material in the collapsed debris and also of nail holes in the trusses where cross or diagonal bracing would have been attached. Moreover, five crew members asserted that the bracing had appeared inadequate at the time.


            In his decision, Judge Cutler found that a question of fact had been raised as to whether the collapse was initiated by the truss structure’s having been struck by a wildly swinging truss suspended from the boom of the crane or as a result of the inherent weakness of the structure. Nevertheless, he correctly reasoned that the cause of the collapse need not be determined in this proceeding because, if the trusses were not adequately braced, a violation existed regardless of the cause of the accident. The judge found that the trusses erected after the first five were not adequately braced and that they did not conform to recognized industry safety standards. Specifically, he found that only lateral braces with spacers were provided on most of the later trusses. With regard to the disputed factual issues in the case, the judge implicitly discredited the testimony of Leanza and Amato. For example, the judge rejected their assertions as to the extent and the adequacy of the bracing that was provided and also cited and relied upon the conflicting testimony of the employees as to the events preceding the incident. Judge Cutler concluded that the evidence sustained the section 5(a)(1) charge and further found that collapse of the trusses would cause death or serious physical injury to Respondent’s employees and also that Respondent’s chief officer, Amato, and foreman, Leanza, knew or should have known of the hazard. Accordingly, Judge Cutler found Kus-Tum in serious violation of section 5(a)(1) of the Act.

            Judge Cutler concluded, however, that the violation was not willful as alleged. The judge noted Amato’s testimony that the bracing methods used by Kus-Tum comported with what he believed to be necessary safety requirements in the industry. The judge stated, ‘This also appears to be the case with Mr. Leanza.’ The judge further reasoned that both Amato and Leanza apparently believed the truss structure to be safe for they were working underneath it when it collapsed. Consequently, he stated that he could not ‘conclude that there was an intentional disregard of or indifference to a recognized hazard on the part of respondent such as to constitute a willful flaunting of the statute.’ Accordingly, Judge Cutler affirmed a modified citation for a serious violation of section 5(a)(1) and assessed a penalty of $700. Nevertheless, he emphasized that there was ample evidence of the dangerous condition prior to the incident. He also observed that ‘safety was sacrificed for speed’ and that Respondent had been ‘unquestionably negligent.’ Moreover, he made an explicit finding of fact that ‘respondent’s chief officer and foreman knew, or should have known, of the hazards.’


            On review, the Secretary cites record evidence that, in his view, sustains the willful allegation. He notes Amato’s admission that cross or diagonal bracing is essential to maintain the stability of the large, heavy trusses used at the worksite. Moreover, Amato knew that the specifications for the erection of the trusses called for diagonal bracing. In addition, the prime contractor made several requests for more bracing on the day of the incident. Nevertheless, Respondent failed to use cross or diagonal bracing; the materials required for this bracing were not even at the worksite. Even more significant, in the Secretary’s view, was Kus-Tum’s failure to respond to the complaints of the employees.

            The Secretary cites two cases affirming willful violations of section 5(a)(2) of the Act for the proposition that willfulness implies knowing and voluntary conduct that disregards employee safety. Georgia Electric 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 a condition 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’s argument—relied upon the by judge—that Amato’s asserted belief that the bracing comported with industry practice and Amato’s own willing exposure to the alleged hazard should mitigate a finding of willfulness here.

            Respondent’s defense against the allegation of willfulness rests essentially upon two assertions. First, Respondent argues that there is no record evidence to indicate Amato’s actual knowledge of the alleged violation. Second, Respondent insists that it would be unreasonable to believe that Amato would have worked directly under the 1000 to 1200 pound trusses had he known that they were not properly braced.


            The Commission characterizes a violation as ‘willful’ if it was committed with either an intentional disregard of, or plain indifference to, the Act’s requirements. Mel Jarvis Construction Co, OSHRC Docket No. 77–2100 (RC, September 30, 1981). This position is consistent with 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.2d 799 (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, 587 F.2d 1303 (D.C. Cir. 1978); Empire-Detroit Steel 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.

            The Secretary’s burden of proving willful conduct is notably more difficult when an employer is charged with a willful violation under a general standard or ‘the general duty clause,’ section 5(a)(1), rather than a specific standard. St. Joe Minerals Corp. d/b/a St. Joe Lead Co. v. OSHRC & Marshall, 647 F.2d 840 (8th Cir. 1981). In particular, a more concrete evidentiary showing is required to prove willfulness in this context. Where a willful violation of section 5(a)(1) is alleged, the Secretary has the burden of proving the employer’s intentional disregard of or its plain indifference to its statutory duty to furnish a workplace free from recognized hazards that are causing or likely to cause death or serious physical harm. Id. at 848. Thus, ‘there must be evidence, apart from that establishing knowledge of the hazard, from which we may reasonably conclude that the employer intentionally disregarded or was indifferent to the safety of the workplace.’ Id. at 848–849.

            Such evidence is abundant in this record. First, because he was working directly beneath the trusses, Amato was in a position to see clearly the lack of bracing and the instability of the trusses. Second, Amato admitted in his testimony that he knew that diagonal bracing was required in order to secure these trusses. Third, the prime contractor’s superintendent expressed concern several times during the course of the truss erection that the bracing was not adequate. Forth, prior to commencing the job, Amato reviewed a brief industry pamphlet which contains numerous references to the necessity of adequate bracing, especially diagonal bracing. Fifth, Amato and Leanza were specifically warned by as many as five laborers on the jobsite that the trusses were unstable and required more bracing.[3] Sixth, Amato essentially conceded the validity of these warnings by telling at least two of the crew members that the crew would go back and add bracing, but only at the end of the workday. Seventh, despite ample warning of the hazard, as indicated above, Amato failed to take any corrective action. Indeed, despite their concern, the laborers were told to get back to work or to go home. Eighth, expert witnesses testified that there was no physical evidence of diagonal bracing among the collapsed trusses at the worksite. In sum, the record clearly establishes Kus-Tum’s intentional disregard of or plain indifference to ‘the safety of the workplace’ and its duty under section 5(a)(1) to provide a workplace free from recognized hazards that are likely to cause death or serious physical harm.

            By way of mitigation on the issue of willfulness, Respondent asserts that there is no record evidence to indicate Amato’s actual knowledge of the alleged violation. We reject this assertion. Amato’s statement, reported by two of the workers, that the crew would defer adding more bracing until the end of the day belies Respondent’s claim, particularly since at least five different people complained to him about the instability of the truss structure.

            Finally, Respondent argues that Amato and Leanza would not have continued working beneath the structure if they had doubted its safety. While an employer can defend against a willful allegation on the basis of a good faith belief that its actions complied with the Act, in order to sustain this defense, Respondent’s asserted belief that the trusses were not hazardous must have been held in good faith. See Mel Jarvis Construction Co., supra. Moreover, the test for determining good faith ‘is an objective one, i. e., was the employer’s belief concerning a factual matter or concerning the interpretation of a standard, reasonable under the circumstances.’ Id., slip op. at 5. Here, the weight of the evidence—including the admitted necessity of diagonal bracing, the absence of diagonal bracing, the leaning of the trusses, and the warnings 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 in subjecting himself and his employees to conditions which he recognized to be hazardous. It is sufficient that he acted here with intentional disregard of or plain indifference to the safety of the workplace. The record amply sustains this conclusion.

            Having reversed the judge’s determination that the violation was not willful, we must reevaluate the question of the penalty to be assessed. Although Respondent had less than twenty employees and no record of previous violations, it cannot be credited with any good faith here. As to the gravity of the violation, the following elements must be considered: (1) the number of employees exposed, (2) the duration of exposure, (3) the precautions taken against injury, and (4) the degree 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 other grounds, 561 F.2d 82 (7th Cir. 1977). Here, at least six persons were subjected to the hazard. The duration of exposure was several hours. Respondent took only meager precautions against injury in providing inadequate bracing. Given the weight of the trusses and the lack of bracing, we consider the gravity of the violation to be relatively high. We therefore conclude that the Secretary’s proposed penalty of $5600 is reasonable and appropriate in light of the record and the statutory penalty criteria set forth at section 17(j) of the Act, 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.




Ray H. Darling, Jr.

Executive Secretary

DATED: OCT 30, 1981



















December 27, 1976



Bobbye D. Spears, Esquire, Regional Solicitor U.S. Department of Labor, Atlanta, Georgia, by James L. Stine, Esquire, for complaint.


Ellis S. Simring, Esquire, Ft. Lauderdale, Florida, for respondent.


Cutler, Judge:

            Following an unfortunate accident resulting in the death of the individual and injury to two others, respondent was issued a citation on May 28, 1976. Respondent is charged with a willful violation of section 8(a)(1)[4] of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq.) on or about May 19, 1976, at a worksite located at Bual Shopping Center, 2100 North University Drive, Pembroke Pines, Florida, in that it ‘willfully failed to furnish each of his (sic) employees employment which is free from recognized hazards that are likely to cause death or serious physical harm in that during truss erection operations, employees were working on or under large wooden trusses which were not provided with the adequate erection bracing which is always required to prevent toppling and ‘dominoing”.

            The violation is charged as serious and willful with immediate abatement. A penalty of $5,600.00 is proposed.

            A hearing was held on September 15 and 17, 1976, in Fort Lauderdale, Florida. No affected employee or authorized employee representative elected to participate as a party in the case.


            While respondent does not concede jurisdiction under the Act, the probative evidence establishes that the lumber used to manufacture the trusses used by respondent generally came from outside the State of Florida (Tr. 174). In addition, the steel used in the manufacturing of the truss connectors was mostly bought from mills outside the state (Tr. 209). Accordingly, I find that respondent was an employer engaged in a business affecting commerce between states.


            Respondent is a building construction company and, on the dates pertinent here, was a subcontractor involved in the erection of a 60-by-250-foot building located in the Bual Shopping Center, Pembroke Pines, Florida—specifically in connection with 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 one man and injuring two others.

            Respondent is charged with not providing adequate erection bracing to prevent toppling and ‘dominoing’. The thrust of complainant’s case is that the trusses were not properly braced in accordance with good safety practice. Complainant further avers that the cause of the accident is not material to the issue of whether respondent violated the Act. Respondent argues that the trusses were properly braced and the toppling of the trusses was caused by external cause—the action of an uncontrolled and wildly swinging truss suspended on the boom of the crane used in the erection process.

            To resolve the complicated factual issues involved, a detailed exposition of the evidence is necessary. The trusses used by respondent in connection with the roof construction were prefabricated of wood with metal reinforcing connectors holding the chords together and reinforced by diagonal and vertical webs. They were triangular in shape, individually weighed 100 to 1200 pounds, and were 69 feet, 4 inches long, and 12 feet high at the top of the arch. The trusses were hoisted into position by a crane with a spreader bar attached to the boom.

            At this point it may be observed generally that, when several trusses are erected in the building process, various types of field bracing are utilized between the trusses and from truss to ground to provide proper spacing and overall stability of the unitized structure. These include ground bracing, lateral (also called bridge, straight or continuous) bracing, cross or X-bracing, and diagonal bracing. In addition, the first brace is tied into the building structure. As to what types of field bracing were used and their adequacy were matters hotly contested at the hearing.

            According to 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 bracing and with anchor or ‘hurricane’ steel straps which were imbedded in the concrete wall 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 the top of the truss and staked in the ground with stubbing. Four additional trusses were installed that day which Mr. Leanza testified were braced together laterally both on the top and bottom and with cross or diagonal bracing.

            On the following morning Mr. Leanza related the five trusses were rebraced with two-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 Morman gave an eye-witness account of the tragic event that followed. She is a housewife who had been watching the construction activity for the past two days from her kitchen window west of the work site. According to Mrs. Morman, a truss suspended from the boom of the crane began swaying back and forth ‘radically’ (Tr. 360, 361). Then all of the trusses swayed north then fell south. Normally, she said, two men would be positioned to grab and secure a truss when it was elevated. However, the crew had just completed a coffee break and the men were unsuccessful in reaching their positions where they could control the truss.

            According to Mr. Leanza, at the end of the coffee break, the crane operator was in the cab which was facing toward the west and the boom was up. The crane had started to move when the trusses started to fall. His testimony was corroborated by Mr. Anthony Amato, head of the respondent company.

            That the crane was involved in the accident was denied by its operator, Lonnie Wright, and his assistant (oiler), Kenneth Kogelman, both employees of Gold Coast Crane Service. Wright testified that he was in his cab when the accident occurred but that the cab was facing south and the crane was not hooked up to a truss. His oiler stated that, at the time of the accident, the crane’s boom was to the southeast and a truss was being hooked up. This would place the boom almost in an opposite direction from the point of the alleged impact. Victor Weaver, one of respondent’s carpenters on the job, testified that, at the time of the accident, the crane was just picking up a truss from the pile and had not yet moved it inside the building shell. Also another carpenter, Jerry Layne, who was on top of a beam at the time of the collapse, testified he did not see the crane.

            It is unnecessary in this forum to determine the cause of the accident—i.e., whether a wildly swinging truss suspended from the boom of the crane struck the already erected trusses or whether the truss structure collapsed due to its inherent weakness. The statute does not require an accident to occur before there can be a violation of a standard (National Realty and Construction Co., Inc., 1 OSAHRC 731 (1972), rev’d on another issue 489 F.2d 1257 (D.C. Cir. 1973); Secretary v. Tolar Construction Co., 13 OSHRC 514 (1974). It is clear that, if the trusses were not adequately braced, a violation existed even assuming the action of the crane initiated the accident.

            Accordingly, we turn to the evidence as to the nature and extent of the bracing used in this case. Complainant presented as a witness, Francis L. Silverberg, a compliance officer for the Department of Labor. Concerning his qualifications, he testified that, prior to his employment with the Labor Department, he had been a state safety representative and also a foreman and superintendent in the heavy construction industry. On the day following the accident he conducted an inspection of the job site. He found all of the trusses lying collapsed in the interior of the building shell. From his examination of the trussed, he found no evidence of cross or diagonal bracing. This conclusion was reached by the lack of nail holes in the truss members and the absence of bracing material. He ascertained that the trusses had been connected to each other with one-by-four-inch spacers, 25½ inches in length. Also two-by-ten-inch scaffold planks apparently had been used as lateral bracing. He indicated the ground bracing was deficient in that the stakes nailed to the braces were not driven far enough in the ground and would not provide adequate bracing in a southerly direction. It was his opinion that the trusses lacked sufficient bracing.

            The site 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 17 to 18 years’ experience in the truss industry. He was asked by the supplier to examine the trusses involved to see if anything was wrong with them. He determined that the bracing used was six or seven ground braces from the first truss and six rows of continuous or lateral bracing along the top chords of the trusses. He saw no evidence of cross or diagonal bracing. In his opinion, ‘some sort of cross bracing in addition to lateral bracing and extremely secure ground bracing would be most important’ (Tr. 212).

            The complaint also called as a witness, Silvio Silveria, the estimator and chief engineer of Mack Industries, a truss designing company. He is a civil engineer with experience also as a general contractor. Mack Industries prepared the roof truss layout for the general contractor in this case. From his on-the-site inspection after the accident, he concluded that the trusses were not adequately braced.

            Richard Godfrey, the superintendent of the general contractor at the Bual Shopping Center, 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 also discussed several times. He indicated that bridge or straight bracing was used at the top and bottom chords using one-by-four-inch lumber. The ground bracing consisted of two-by-ten and two-by-four members.

            The accident resulted in a visit to the scene by Harold B. White, the chief building inspector for the City of Pembroke Pines. He has 50 years’ experience in the construction business. His investigation led to a report finding respondent in violation of the South Florida Housing Code. Specific deficiencies which he enumerated in his testimony were that there was no braces to prevent the trusses from falling south, that 8 penny nails were used instead of 16 penny nails in the anchor straps and in the lateral spacers, and that there was no diagonal bracing. Had he inspected the site as the trusses were being erected, he stated he would have stopped the job.

            Testimony of some of the workers at the scene is to the effect the trusses were deficient prior to the accident and that this was made known to respondent’s supervisory personnel. Lonnie Wright, the crane operator, testified that the bracing was inadequate and that the trusses were leaning and out of plumb. He said that he told the foreman several times about the bracing. At the three o’clock break, prior to the accident, he and his oiler told several respondent’s employee—‘Don’t go back up there because those things look like they are going to fall’ (Tr. 140). He testified the employees did not want to go back up but the foreman ordered them to.

            Kenneth Kogelman, the oiler, also testified the trusses had been leaning and so told the 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 truss erected was leaning to the south and was almost touching the one adjacent to it. He heard Lonnie Wright tell the employees about the trusses and observed that the man were reluctant to return to work after the break. The foreman, however, told them to go back or go home.

            As for the bracing itself, he testified he did not recall any cross bracing being used and the only bracing used was lateral across the top, and the man who was killed was putting one-by-three’s on the bottom.

            Victor Weaver, a carpenter for respondent, testified that the bracing used at the Bual Shopping Center job consisted of lateral bracing across the top and one-by-three-inch spacers, 26 inches long which were nailed from truss to truss. He did not feel the bracing at the jobsite was adequate and had discussed it with others, including Mr. Amato.

            Another carpenter for Kus-Tum Builders, Jerry Layne, testified the bracing used on the job consisted of one-by-four-inch lateral bracing ‘running across the top and down the center’ (Tr. 240). Except for spacers, there was no cross or diagonal bracing used. He stated he thought the trusses should be braced more and so told Mr. Amato. The latter said he would take care of it 15 minutes before quitting time. Mr. Layne also testified he did not want to go back up on the trusses after the break because they were unsafe but Mr. Amato told him to do so or leave. At the time of the accident, he saw the trusses shift a bit and he jumped from the top of the beam and he was on. He did not see the crane up there at that time.

            Bruce Cook, also a carpenter on respondent’s work crew at the site, testified the first 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-inch lateral braces. Spacers were used at the top but not at the bottom. This kept the trusses straight except for the last three, and he told the foreman about this. The latter told him that Tony (the deceased) would catch up. After the first 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 in the afternoon. At the time of the break, he did not believe the trusses were safe and so told the foreman or Mr. Amato.

            Respondent’s witnesses paint a different picture. Sam Bercot, a laborer putting up the trusses on the job, testified that at least the first 15 trusses were X-braced and were also laterally braced. He believed the man who was killed was installing additional cross braces at the time of the accident.

            Anthony Leanza, respondent’s foreman, testified that he has worked in dozens of truss erection operations. As to the job in question, he stated that, in addition to lateral bracing, the first 40 trusses were diagonally or cross braced in sets of five. At the time of the accident, Tony Azzaleno, the deceased, was in the process of bracing the next five and was also putting in lateral bracing at the bottom. Mr. Leanza believed that, prior to the accident, the trussing operation was sturdy and as secure as possible with no swaying or movement. He denied being asked by Bruce Cook if they could drop back and work on cross bracing and also that any employee told him the trusses were out of plumb.

            Mr. Anthony Amato, owner of Kus-Tum Builders, testified he has worked in the construction business since about 1940, first as a union carpenter and later as a subcontractor. Examples of his experience included erection of 10 or 20 structures for the International House of Pancakes chain, 24 or 26 for the Burger King chain, and three for the Bonanza Steak House chain. In addition, he was the project manager in connection with the erection of a large Cleveland (Ohio) theater.

            Concerning the Bual Shopping Center, he testified that the first truss was installed with metal straps and five ground braces securely staked. Four more trusses were put up and secured the first day. The next morning, the five trusses were resecured with diagonal, parallel and base bracing. The trusses thereafter erected were diagonally braced every 20 feet with one-by-fours. He denied having been told by 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 the time of the accident, he considered the trusses to be stable.


My evaluation of the evidence leads to but one conclusion—that is that the wooden trusses erected by respondent were not adequately braced to prevent them from buckling or ‘dominoing’. While Mr. Amato and Mr. Leanza testified that diagonal cross bracing was being used for almost all of the trusses, another of respondent’s witnesses, Sam Bercot, could only recall that the first 15 were so braced. On the other hand, the crane operator, his assistant, and three carpenters all testified that no cross bracing was used at the jobsite on May 19, 1976. All indicated the trusses were inadequately braced and voiced opinions to that effect prior to the accident. Their testimony receives substantial corroboration from that of Mr. Silverberg, the compliance officer, who found no evidence of cross bracing nail holes or of the lumber used for the purpose although there was ample evidence of lateral spacers and ground bracing. Three experts, Mr. McAlpine, Mr. Silveria and Mr. White support his conclusions.

            What does appear from the evidence is that the first five trusses were properly braced but the ones erected on the succeeding day, May 19th, were not. The preponderating evidence indicates that the only bracing used on most of the later trusses erected on May 19th was 16 foot two-by-ten-inch lateral braces with one-by-four-inch spacers placed between each truss near the top. That this was not sufficient to afford the structure stability is evidence by testimony of the on-site workers that the trusses were leaning and out of plumb. This deficiency was pointed out to respondent’s foreman by Mr. Cook who testified that, 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, I note that about 40 trusses were erected on the day of the accident. Mr. Leanza testified that he was not satisfied with the bracing of the first five trusses and they were rebraced that morning. Because of this, work did not start on the trusses subsequently erected until about 10:30 a.m. Figuring in the 30-minute lunch break, it appears that 40 trusses were erected in the space of about four hours and 20 minutes—or approximately six minutes per truss. Yet, Mr. Leanza testified that proper truss erection required 10 to 15 minutes per truss.

            Complainant’s expert witnesses uniformly testified that the bracing used was not adequate and did not conform to industry safety standards. I agree. Respondent argues that the trusses were properly braced and that their collapse was due to the action of the crane. I need not resolve this point of contention. However, I will observe that, had the trusses been properly braced, it is more than likely that the 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 45 erected trusses, the fact that the truss structure first moved north, caromed back to the south, and then completely collapsed was indicative of its structural weakness, particularly at the bottom which was unsupported by cross or lateral bracing.

            It is also noted that both Mr. Silverberg and Mr. White indicated that the ground bracing used for the first truss was not adequate to cope with a fall in a southerly direction. The latter also testified 8 penny nails were used in the anchor straps instead of 16 penny nails. Thus, had there been proper bracing of the first truss the whiplash action of the truss structure may well have been averted.

            There is no need, however, to speculate on ‘what might have been’. The fact remains that the probative evidence clearly establishes that the trusses were not provided with adequate erection bracing necessary to prevent toppling or ‘dominoing’.

            To establish a violation of the general duty clause (section 5(a)(1)), the Secretary must prove (1) that the employer failed to render its workplace ‘free’ of a hazard which was (2) ‘recognized’ and (3) ‘causing or likely to cause death or serious physical harm’. This requires employers to discover and exclude from the workplace all feasibly preventable forms and instances of hazardous conduct (National Realty and Construction 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).

            In the instant case, the probative evidence clearly establishes that the failure of respondent to properly brace the trusses created a definite safety hazard to its employees. That it was a ‘recognized’ hazard—i.e., generally known by the industry involved—is also well established. The complainant’s expert witnesses and, indeed Mr. Amato himself, agree that cross or diagonal bracing is accepted and considered necessary in the industry.[5] Finally, there is no doubt that there existed a substantial probability of death or serious injury to an employee as a result of the collapse of one or more of the trusses, each weighing 1000 to 1200 pounds.

            Considering all the facts and circumstances of this case, I conclude the respondent’s failure to properly brace the roof trusses at his worksite was violative of the general duty clause, and further, was properly charged as serious.

            The violation is also alleged as willful. The term ‘willful’ has been defined as ‘intentional, or knowing, or voluntary, as distinguished from accidental, and that it is employed to characterize ‘conduct marked by careless disregard whether 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 determing willfulness—that is, where the employer knew that his actions might violate the law, Coleman v. Jiffy June Farms, 458 F.2d 1139, 1142 (5th Cir. 1972)). In Intercounty Construction Co. v. OSHRC, 522 F.2d 777 (4th Cir. 1975), the court applied the terms to a violation of a specific standard and found willfulness when the company, after a previous warning from OSHA, intentionally removed a safety device from a trench. The court, citing Coleman, supra, stated that ‘Congress intended to punish the conduct of one who knew that his actions would violate the law’ (Intercounty Construction Co., supra, at 780).

            This construction of the term, as applied to a civil statute accords generally with the 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 the attitude of a [person], who, having a free will or choice, either intentionally disregards 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 charged with a violation of the general duty clause of the Act—Section 5(a)(1), (29 U.S.C. 654(a)(1))—rather than a specific standard. The testimony of Mr. Amato indicates that he believed that the bracing methods taken by Kus-Tum Builders comported with what he believed to be necessary safety requirements in the industry. This also appears to be the case with Mr. Leanza. In any event, both apparently believed the truss structure to be safe for they were underneath it when it collapsed and sustained injuries therefrom.

            Considering the foregoing, I cannot conclude that there was an intentional disregard or indifference to a recognized hazard on the part of respondent such as to constitute a willful flaunting of the statute.

            I do not mean to imply by the foregoing that respondent was not in violation of the statute. The evidence is ample that the dangerous conditions existed prior to the accident. I accept as valid the testimony of complainant’s expert witnesses as to that condition even though based upon ‘after the fact’ examinations but bolstered, as they are, by the testimony of lay witnesses concerning the inherent weakness of the truss structure prior to the accident. My view of the evidence leads me to the conclusion that safety was sacrificed for speed. Respondent knew or should have known that a hazard to its employees was created and, while I have not denominated the violation as willful, it was unquestionably negligent.

            Complainant has 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 percent based upon the size of the company and 20 percent for a history of no previous violations. This proposed penalty obviously must be reassessed in view of my finding that respondent has not willfully violated the statute.

            Accordingly, considering the statutory factors of size, gravity, good faith and history, a penalty of $700.00 is appropriate and will be assessed.

            I reach the following findings of fact and conclusions of law:


            1. That at the time and place in question, respondent was a subcontractor engaged in 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 been erected by respondent.

            3. That each roof truss was triangular in shape, weighed between 1000 and 1200 pounds, 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 one employee and injuring two others.

            5. That a question of fact remains as to whether the collapse was initiated by the truss structure having been struck by a wildly swinging truss suspended from the 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 in accordance with good safety standards recognized by the construction industry.

            7. That as a result of this inherent structural weakness, collapse of the trusses was possible which would cause death or serious injury to employees working with the trusses.

            8. That respondent’s chief officer and foreman knew, or should have known, of the hazards.


            1. That respondent is an employer engaged in a business affecting commerce within the meaning of the Act.

            2. That this Commission has jurisdiction over the subject matter and parties to this action.

            3. That respondent violated section 5(a)(1) of the Act (29 U.S.C. 654(a)(1)) by failing to properly brace roof trusses which it was erecting.

            4. That the violation was serious.

            5. That the violation was not willful.

            Based upon the foregoing findings of fact and conclusions of law, the citation, as amended, is affirmed and a penalty of $700.00 is assessed.






Date: 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 a place of employment which are free from recognized hazards that are causing or are 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 the Secretary filed a petition for review. After review had been directed, Respondent filed a letter-in-lieu-of-brief in which it relied both upon its brief before the judge and upon the judge’s decision (which found a violation, but rejected the Secretary’s ‘willful’ characterization). Respondent praised Judge Cutler’s ‘fair and accurate analysis of the trial’ and his ‘fair and reasonable’ decision. Thus, to the extent that Respondent’s arguments before the judge are inconsistent with the judge’s decision, we conclude that Respondent has abandoned on review its claims below denying the existence of the violation and persists only in denying that its conduct was ‘willful.’ Because there is neither party interest nor compelling public interest in reviewing any issues other than those directed for review by Commissioner Cleary, we affirm the remainder of the judge’s decision without review. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1975–76 CCH OSHD ¶20,780 (No. 4136, 1976); Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1976–77 CCH OSHD ¶20,428 (No. 9507, 1976). Those parts of the judge’s decision are accorded the precedential value of an unreviewed judge’s decision. Leone Constr. Co., 76 OSAHRC 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 that Amato and Leanza denied that the laborers warned them of the instability of the truss structure. Moreover, they stated that diagonal bracing was installed on almost all of the trusses. Judge Cutler expressly rejected the testimony of Leanza and Amato as to the bracing that was provided. In addition, he implicitly credited the testimony of the five laborers, as opposed to that of Amato and Leanza, on the question of whether the workers warned the supervisors of the inadequacy of the bracing. Credibility evaluations are chiefly the responsibility of the administrative law judge and the Commission ordinarily defers 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 credibility determinations in this case and we accordingly accept them.

[4] This section provides that each employer ‘shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.’

[5] In R.J.H. Contractors, Inc., OSHRC Docket No. 969, CCH OSHD 15,422 (1971–73), an ALJ found an employer not in violation of the general duty clause because of evidence by an expert that cross or x-type truss bracing was not recognized as being in common use in the industry. In that case the trusses were considerably smaller in size and weight than here. Further the testimony of the expert witnesses is the case, sub judice, in uncontroverted and documented by an accepted industry treatise.