________________________________
                                :
SECRETARY OF LABOR,             :
                                :
          Complainant,          :
                                :
          v.                    :   OSHRC Docket No. 00-2190
                                :
KOKOSING CONSTRUCTION CO., INC.,:
                                :
          Respondent.           :
________________________________:


APPEARANCES:

   Michelle M. DeBaltzo, Esq.
   Office of the Solicitor
   U. S. Department of Labor
   Cleveland, Ohio
      For Complainant

   Roger L. Sabo, Esq.
   Schottenstein, Zox & Dunn
   Columbus, Ohio
      For Respondent

Before: Administrative Law Judge Ken S. Welsch

*DECISION AND ORDER*

Kokosing Construction Co., Inc., (Kokosing) contracted in February,
2000, with the Ohio Department of Transportation to widen 16 miles of
Interstate 71 (I-71), north of Columbus, Ohio. While performing work on
three bridges along I-71 on October 18, 2000, Kokosing was inspected by
the Occupational Safety and Health Administration (OSHA). As a result of
OSHA's inspection, Kokosing received a serious citation on October 26,
2000. Kokosing timely contested the citation.

The citation alleges serious violations of 29 C.F.R. § 1926.200(a) or,
in the alternative 29 C.F.R. § 1926.200(g)(1) (item 1), for failing to
post signs warning motorists of employees who had stacked form work next
to a road which passed under the interstate; 29 C.F.R. § 1926.202 (item
2), for failing to place cones or barricades to direct traffic away from
employees who had stacked form work next to two roads which passed under
the interstate; and 29 C.F.R. § 1926.502(b)(1), or in the alternative 29
C.F.R. § 1926.501(b)(1) (item 3), for failing to provide fall protection
to employees who were jack hammering bridge decking next to the parapet
wall on a bridge passing over the interstate. The proposed penalties
totaled $4,500.

The case was designated to proceed under the Review Commission's EZ
Trial procedure, 29 C.F.R. § 2200.200. The hearing was held June 28-29,
and August 7, 2001, in Columbus, Ohio. The parties stipulated
jurisdiction and coverage (EZ Trial Conference Order; Tr. 5). The
parties filed post-hearing briefs.

Kokosing denies the alleged violations and classifications. Kokosing
argues that it complied with the applicable safety standards for the use
of traffic controls and warning signs. With regard to fall protection,
Kokosing asserts that the 29-inch high parapet wall provided fall
protection and complies with industry practice. Kokosing's unpreventable
employee misconduct defense was not pursued and was withdrawn (Tr.
525-526, 633-634, 642).

For the reasons discussed, the violation of § 1926.202 (item 2) is
vacated. The violations of § 1926.200(g)(1) (item 2) and §
1926.501(b)(1) (item 3) are affirmed and penalties of $1,000 and $1,500
are assessed.



/The Inspection/

Kokosing, with corporate offices in Fredericktown, Ohio, is engaged in
heavy construction projects throughout Ohio and occasionally in
surrounding states. Kokosing has been in business since 1951 and is
currently owned and managed by the heirs and spouses of its founder,
William Burgett. Kokosing employs approximately 1,600 employees (Tr.
614-615, 673-674).

Kokosing, a union employer, operates five divisions: treatment, highway,
building, utility, and asphalt. The highway division is the largest
division, with approximately 800 employees. Most of Kokosing's highway
construction work is under contracts with the Ohio State Department of
Transportation (ODOT) (Tr. 117, 614, 636, 673, 687, 721).

In February, 2000, Kokosing initiated work to widen 16 miles of I-71,
north of Columbus, Ohio, in Franklin and Delaware counties, pursuant to
a contract with ODOT (Exh. R-3; Tr. 342, 687). The $45 million contract
required Kokosing to add one traffic lane in each direction of the
interstate as well as raising and resurfacing the bridges over the
interstate (Tr. 360, 410, 686, 689-691). Automobile traffic on I-71 was
continuing during construction (Tr. 362). In widening the interstate,
Kokosing had to make changes on 21 bridges, both mainline and overhead
bridges. A mainline bridge is part of the interstate highway. An
overhead bridge passes over the interstate (Tr. 122, 343, 345, 689). At
its peak, Kokosing, under its project superintendent Kirby Fontaine, had
approximately 140 employees working on the interstate project (Tr. 336,
391). Kokosing's work is still ongoing (Tr. 429).

In June, 2000, the I-71 project was inspected by OSHA. The inspection
involved the Dustin bridge. No citations were issued (Tr. 131-133,
382-383, 387).

On October 18, 2000, OSHA compliance officer (CO) Richard Burns
initiated a programmed inspection of the project pursuant to a local
emphasis program. After the opening conference, CO Burns and Kokosing
safety officer Joseph Sellers drove the interstate project in Sellers'
truck (Exh. C-1; Tr. 38, 40-42, 130, 535).

The first worksite inspected^(1) <#N_1_> which involved an alleged
violation was the Dustin Road bridge, an overhead bridge. CO Burns
arrived at approximately 2:20 p.m (Exh. C-9; Tr. 122, 141). The Dustin
Road bridge had been constructed in the early 1960's (Tr. 714). There
were six employees working on the bridge. Dustin Road was closed to
traffic. Four Kokosing employees, using jack hammers, were breaking up
the concrete pavement on the bridge deck. Two of the employees jack
hammering were observed next to the parapet wall at the edge of the
bridge (Tr. 78, 89, 216). The bridge was 16 feet above the interstate
(Tr. 91). The employees were not wearing fall protection. The parapet
wall from the concrete deck was 29 inches high and 6 inches wide at the
top (Tr. 84, 195). The 16-inch railing which ran across the top of the
parapet had been removed (Tr. 384-385, 718). In addition to replacing
the bridge decking, Kokosing was to increase the height of the
parapet^(2) <#N_2_> to 36 inches (Tr. 698, 713, 721). Kokosing asserts
that the parapet is a wall and additional fall protection is not required.

The second worksite inspected by CO Burns was the mainline bridge over
Africa Road. It was approximately 3:11 p.m. Three Kokosing employees
were removing form work from underneath the bridge where the embankment
rose up to the bridge (Exh. C-3; Tr. 143-144, 218). The employees
removed only the form work which could be reached by hand from the
embankment. While removing the form work, the employees were working
between the bridge's columns (piers) and on the embankment (Tr. 46,
151-152, 540). After removing the form work, the employees stacked the
forms within 15 feet of Africa Road, near a drainage ditch (Tr. 154,
157-158, 161-162, 541). According to Kokosing safety officer Joseph
Sellers, the form work whalers^(3) <#N_3_> were approximately three feet
from the edge of the pavement (Tr. 541). The form work was to be removed
by crane for use in other locations (Tr. 158-159). There were no
motorist warning signs, cones, or barricades placed along Africa Road.
Africa Road, with two traffic lanes and a posted speed limit of 45 miles
per hour (mph), was not closed to automobile traffic (Tr. 46-47, 51-52,
60, 542).

The third worksite inspected was the mainline bridge over Bale Kenyon
Road. It was approximately 3:30 p.m. (Exh. C-6; Tr. 144). Earlier in the
day, Kokosing employees, using a manlift, had removed form work from
underneath the bridge and stacked it on the side of Bale Kenyon Road
(Tr. 223). While removing the form work, the employees had arranged 50
traffic cones tapering automobile traffic through one lane under the
bridge, used flaggers to direct traffic, and had placed motorist warning
signs including "Flagger Ahead" and "Road Construction Ahead" (Tr. 171,
481, 483, 549). However, by the time of OSHA's inspection, the form work
had been removed and stacked. CO Burns observed only four traffic cones
in the center of Bale Kenyon Road and two flaggers located on the side
of the road in either direction from the bridge (Tr. 60). The employees
were waiting for a crane to remove the form work (Tr. 574-575, 731,
734). Bale Kenyon Road, a rural two lane road with a reduced, posted
speed limit of 35 mph, was open to automobile traffic (Tr. 68).

Based on CO Burns' inspection, a serious citation was issued for failing
to have fall protection for employees on the Dustin Road bridge (item
3); to have motorist warning signs before the Africa Road bridge (item
1); and to have barricades or cones on Africa Road and Bale Kenyon Road
(item 2).



/Discussion/

The Secretary has the burden of proving a violation.

In order to establish a violation of an occupational safety or health
standard, the Secretary has the burden of proving: (a) the applicability
of the cited standard, (b) the employer's noncompliance with the
standard's terms, (c) employee access to the violative conditions, and
(d) the employer's actual or constructive knowledge of the violation
(/i.e., /the employer either knew or, with the exercise of reasonable
diligence could have known, of the violative conditions).



/Atlantic Battery Co., /16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

The facts are generally undisputed. None of the alleged violations
occurred on I-71 itself. Kokosing does not dispute that there were no
posted traffic warning signs and barricades on Africa Road. Also,
although there were four traffic cones and flaggers, there were no
barricades at the Bale Kenyon Road site. Both Africa Road and Bale
Kenyon Road were open to automobile traffic.

On the Dustin Road bridge, Kokosing acknowledges that the employees
using the jack hammers were not using other fall protection systems. In
accordance with Kokosing's practice, the employees relied on the 29-inch
high parapet wall for fall protection. Application of the construction
standards at Part 1926 and employer knowledge of the conditions is not
in dispute.

Kokosing disputes that the terms of the standards cited were violated
and that employees were exposed to a hazard. Kokosing argues that it
complied with OSHA standards and industry practice when employees
stacked form work along side Africa Road and Bale Kenyon Road and while
employees jack hammered adjacent to the parapet wall on the Dustin Road
bridge.



ALLEGED VIOLATIONS

Item 1 - Alleged serious violation of § 1926.200(a), or in the
alternative § 1926.200(g)(1)

The citation alleges that employees who stacked form work off the
shoulder of Africa Road were not protected by posted signs^(4) <#N_4_>
warning motorists of their work. Section 1926.200(a) provides:

Signs and symbols required by this subpart shall be visible at all times
when work is being performed, and shall be removed or covered promptly
when the hazards no longer exist.



Section 1926.200(g)(1), which the Secretary asserts in the alternative,
provides:

Construction areas shall be posted with legible traffic signs at points
of hazard.



Kokosing does not dispute that there were no traffic signs posted
warning motorists of the employees stacking form work adjacent to Africa
Road. Kokosing argues that § 1926.200(a) and § 1926.200(g)(1) were not
violated.

Because of the embankment and the bridge columns, CO Burns agrees that
there was no hazard to employees when they were removing the form work
from underneath the bridge (Tr. 154). The issue involves the employees
stacking the form work along the road. CO Burns observed three employees
stacking the form work within 15 feet of the road (Exh. C-3). The
employees were carpenters^(5) <#N_5_> who generally are not involved in
stacking form work and traffic control (Tr. 649).

Section 1926.200(a) does not apply to the conditions cited because the
standard does not identify when warning signs are to be used. If the
sign is used, § 1926.200(a) requires that it be visible. The issue in
this case is whether a warning sign was required because of where the
form work was stacked along the side of Africa Road.

Section 1926.200(g)(1) is a more specific standard and preempts §
1926.200(a). Section 1926.200(g)(1) informs an employer to post legible
signs at "points of hazards." Africa Road was a construction area as
contemplated by the standard. The Kokosing employees used the side of
the road to stack the form work for other use on the I-71 project.

Also, the employees were stacking the form work at a point of hazard
because it was less than 11 feet from Africa Road, where traffic was
traveling 45 mph (Tr. 46-47, 554). Kokosing safety officer Sellers
testified the whaler was stacked approximately three feet from the
pavement (Tr. 541). CO Burns testified that the form work was stacked
approximately one foot from the road's shoulder (Tr. 46). The two lanes
of Africa Road were open to automobile traffic traveling at a posted
speed limit of 45 mph (Exh. C-3; Tr. 51). Without other protection,
stacking form work that close to an active road was a "point of hazard"
as contemplated by § 1926.200(g)(1). There were no warning signs posted
for motorists. The employees were exposed to an automobile hazard (Tr. 47).

Kokosing had knowledge of the condition. Although laborers generally
stack the form work, Kokosing could have known with reasonable diligence
of the lack of signs. Kokosing's supervisor assigned the stripping work
to the carpenter crew (Tr. 649). No laborers were assigned to assist.
The supervisor's instruction did not prohibit stacking. The employees
were performing the work as assigned. Their work was not monitored (Tr.
416-417, 667). The stacked form work and the lack of signs were in plain
view (Tr. 53). According to CO Burns, Kokosing safety officer Sellers
agreed that signs should have been posted (Tr. 52). Sellers did not
dispute Burns's testimony (Tr. 542). The employees were not disciplined
for failing to post the signs (Tr. 416). There is no showing that the
employees were instructed to place warning signs.

The violation of § 1926.200(g)(1) is affirmed as serious. A violation is
serious under § 17(k) of the Occupational Safety and Health Act (Act),
29 U.S.C. § 666(k), if the violative condition creates a substantial
probability of death or serious physical harm and the employer knew or
should have known of the violative condition. In determining whether a
violation is serious, the issue is not whether an accident is likely to
occur; it is rather, whether the result would likely be death or serious
harm if an accident should occur. /Whiting-Turner Contracting Co/., 13
BNA OSHC 2155, 2157 (No. 87-1238, 1989).

As discussed, Kokosing should have known that the employees were
stacking the form work along the side of Africa Road without posted
warning signs. In the event of an accident, death or serious injury
would be the probable result if an employee was struck by an automobile
traveling 45 mph, the posted speed limit.



Item 2 - Alleged serious violation of § 1926.202

The citation alleges that there were no cones or barricades^(6) <#N_6_>
to direct traffic away from employees stacking bridge form work along
Africa Road and Bale Kenyon Road. Section 1926.202 provides:

Barricades for protection of employees shall conform to the portions of
the American National Standards Institute D6.1-1971, Manual on Uniform
Traffic Control Devices for Streets and Highways, relating to barricades.



Kokosing does not dispute that cones or barricades were not placed on
Africa Road where employees had stacked the form work (Exh. C-3). Also,
there were no barricades where form work was stacked along Bale Kenyon
Road (Exh. C-6). Four cones were observed in the center of Bale Kenyon
Road and two flaggers were located in either direction away from the
bridge^(7) <#N_7_> (Tr. 60). One flagger told CO Burns that he was
stopping traffic. CO Burns observed the flagger step out in front of a
car to stop it (Tr. 64, 67). According to Kokosing safety officer
Sellers, the crane was stationed on the bridge to remove the form work
from the road and all automobile traffic was stopped from passing under
the bridge (Tr. 545, 573-574). CO Burns testified that not all traffic
was stopped (Tr. 731). He agreed that the employees could be waiting for
the crane (Tr. 734).

A violation of § 1926.202 is not established. The standard does not
require the use of barricades but identifies the type of barricades,
when used. The reference to ANSI Manual on "Uniform Traffic Control
Devices" distinguishes barricades and cones (Exh. C-5). The standard,
referring only to barricades, does not identify when conditions require
barricades, as opposed to traffic cones, to protect employees. Under §
1926.203(a) "barricade" is defined as "an obstruction to deter the
passage of persons or vehicles." /See Andrew Catapano Enterprises,
Inc.,/ 1994 CCH OSHD ¶ 30,490 (Nos. 90-0050 et al., 1994) (ALJ vacated
alleged violation because "§ 1926.202 does not impose any use
requirements on the employer"),/decision affirmed on other grounds,/ 17
BNA OSHC 1776 (1996) (violation of § 1926.202 not addressed by Review
Commission).

Also, at Bale Kenyon Road, the weight of evidence indicates that the
crew was merely waiting for the crane before closing the road to traffic
and hoisting the form work up to the bridge (Tr. 669, 680). Neither
barricades nor cones would be required during hoisting because all
automobile traffic would be prohibited from passing under the bridge
(Tr. 731-732).



Item 3 - Alleged serious violation of § 1926.502(b)(1) or in the
alternative § 1926.501(b)(1)

The citation alleges that on the Dustin Road bridge, employees were jack
hammering the bridge deck next to a parapet wall without fall protection.

Section 1926.502(b)(1) provides:

Top edge height of top rails, or equivalent guardrail system members,
shall be 42 inches (1.1 m) plus or minus 3 inches (8 cm) above the
walking/working level. When conditions warrant, the height of the top
edge may exceed the 45-inch height, provided the guardrail system meets
all other criteria of this paragraph.



Section 1926.501(b)(1), which the Secretary asserts in the alternative,
provides:

Each employee on a walking/working surface (horizontal and vertical
surface) with an /unprotected side or edge/ which is 6 feet (1.8 m) or
more above a lower level shall be protected from falling by the use of
guardrail systems, safety net systems, or personal fall arrest systems.
(Emphasis added).



The facts are not in dispute. Six employees were observed removing
concrete from the deck of the Dustin Road bridge. Two employees were
observed operating jack hammers next to the parapet wall on the outside
edge of the bridge (Exh. C-9). The parapet wall was 29 inches high and 6
inches wide (Exh. C-9). Other than the parapet wall, the employees were
not protected by other fall protection. The bridge deck was 16 feet
above I-71, which was open to automobile traffic at a posted speed limit
of 65 mph (Tr. 90-91).

Section 1926.502(b)(1) is not the more specific standard addressing the
hazard. The 16-inch railing attached to the parapet wall was removed by
Kokosing to allow the employees to do the jack hammering (Tr. 348, 718).
The height of the parapet wall and railing are dictated by ODOT
(Exh. R-15; Tr. 352, 687).

In the alternative, § 1926.501(b)(1) is applicable. A bridge is
specifically within the meaning of "walking/working surface." /See /§
1926.500(b). Also, "unprotected sides and edges" are defined as:

[A]ny side or edge (except at entrances to points of access) of a
walking/working surface, e.g., floor, rook, ramp, or runway /where there
is no wall or guardrail system at least 39 inches (1.0 m) high/. 29
C.F.R. 1926.500(b). (Emphasis added).



Kokosing's argument that it complied with the standard because the
29-inch high parapet is a wall within the definition of "unprotected
sides and edges" is rejected. The 39-inch requirement in the definition
of "unprotected side and edge," Kokosing argues, applies only to the
height of guardrail, not walls. Where there is no parapet wall, Kokosing
does require other fall protection. "[I]t is well settled that the test
for the applicability of any statutory or regulatory provision looks
first to the text and structure of the statute or regulations whose
application is questioned." /Unarco Commercial Products,/ 16 BNA OSHC
1499, 1502 (No. 89-1555, 1993). The standard's wording must be
interpreted in a reasonable manner consistent with a common sense
understanding. /Globe Industries/,/Inc.,/ 10 BNA OSHC 1596 (No. 77-4313,
1982). The words are to be viewed in context, not in isolation, and
judged in light of its application to the facts of the case. /Ormet
Corp.,/ 14 BNA OSHC 2134, 2135 (No. 85-531, 1991). Also, a safety
standard such as § 1926.501(b)(1), and the definition at § 1926.500(b),
are generally construed liberally to allow broad coverage in carrying
out the congressional intent to provide safe and healthful working
conditions.

In support of its interpretation of "wall" as used in the § 1926.500(b)
definition of "unprotected sides or edges," Kokosing claims that the
bridge construction industry has always considered the bridge's parapet
wall, which ranges in height from 26 inches to 50 inches, as fall
protection and in compliance with OSHA (Tr. 347, 352, 458, 461, 601-602,
711-712, 721). Representatives of the Velotta Company (25 years of
bridge construction work), the Ruhlin Company (50 years in
construction), and the Ohio Contractors Association (construction
industry trade association) testified in support of Kokosing's
interpretation (Tr. 288, 300, 317-318, 321, 468). Additionally, Kokosing
conducted an informal survey of other bridge construction companies and
found that they also considered the parapet wall as fall protection (Tr.
659-660). Kokosing, based on industry practice, argues that if there is
a parapet wall on the bridge, there is no /unprotected side and edge/ as
contemplated by § 1926.501(b)(1).

Kokosing's interpretation is rejected. Industry practice is not relevant
where a standard such as § 1926.501(b)(1) prescribes employer conduct in
specific terms and is not vague. /Cleveland Consolidated, Inc.,/ 13 BNA
OSHC 1114, 1117 (No. 84-696, 1987). The standard at § 1926.501(b)(1) is
clear and unambiguous. It requires fall protection for employees working
at an unprotected side and edge. A parapet wall less than 39 inches is
an /"/unprotected side and edge." The only reasonable reading of the §
1926.500(b) definition is that the wall or guardrail has to be at least
39 inches. The prepositional phrase /at least 39-inches high/ as used in
the definition modifies equally the nouns, wall and guardrail system.
The use of "or" implies equal weight. There is no punctuation separating
the nouns.

Also, the fall protection standard at § 1926.501(b)(1) applies to the
entire construction industry and is not limited in application to the
bridge construction industry, which is the basis of Kokosing's industry
practice argument. Although there are no cases specifically addressing
the bridge construction industry, cases involving other industries, such
as roofing, have considered the parapet wall inadequate fall
protection./See Baker Drywall Co., Inc./, 18 BNA OSHC 1862, 1864 (No.
98-2088, 1999, Chief ALJ) (12-inch parapet wall not adequate fall
protection); /Wolkow Braker Roofing Corp./, 18 BNA OSHC 1891, 1895-1896
(No. 97-1773, 98-0245, 1999, ALJ) (parapet wall 28 inches not adequate
fall protection where employees' upper bodies were hanging over the
parapet).

Kokosing's reliance on the Review Commission's decision in /Tri-State
Steel Construction, Inc.,/ 15 BNA OSHC 1903, 1920-1922 (Nos. 89-2611,
89-2705, 1992), is misplaced. In that case, the Review Commission
vacated a violation of § 1926.500(d)(1), which was the prior standard,
on the basis that a paved highway ramp or bridge with a 29-inch concrete
parapet wall on each side was not an open-sided floor within the meaning
of the cited standard. The cited standard at § 1926.501(d)(1)
specifically applied to "/open-sided floors, platforms, and runways/."

As noted by the Secretary, the current Subpart M "Fall Protection"
standards became effective on February 6, 1995 (59 Fed. Reg. 40672
(August 9, 1994)) and replaced § 1926.500(d)(1) cited in the /Tri-State
Steel/ case. Unlike § 1926.500(d)(1), the standard cited in this case,
§ 1926.501(b)(1), applies to employees on a "walking/working surface,"
which includes bridges. See definition at § 1926.500(b). Therefore, the
/Tri-State Steel/ decision does not apply. Also, it is noted that the
Review Commission in/Tri-State Steel/ specifically found it unnecessary
to decide whether the parapet wall served the purpose of an equivalent
guard to prevent a fall hazard. /Tri-State Steel, /BNA OSHC at 1921.

Kokosing's interpretation would result in unreasonable consequences.
Although, under some circumstances, a wall may provide adequate fall
protection, the wall in this case was insufficient because it did not
extend at least 39 inches above the bridge deck. Kokosing made no
showing that the 29-inch parapet wall at the Dustin Road bridge provided
equivalent means of fall protection,/i.e./, equal or greater degree of
safety for employees. See definition of "/equivalent/" in § 1926.500(b).
A wall of minimal height clearly provides no fall protection. Kokosing
safety officer Sellers conceded that if a parapet wall was less than 15
inches, he believed additional fall protection for employees was needed.
He also could not decide whether 18 or 22-inch walls would provide fall
protection (Tr. 594-595). The 29-inch parapet wall on the Dustin Road
bridge did not provide adequate fall protection. The parapet wall
appears to be below the employees' waist (Exh. C-9). The purpose of the
parapet wall on the Dustin Road bridge was to keep automobiles on the
bridge (Tr. 317, 717). The purpose was not fall protection for employees.

Kokosing also argues that OSHA failed to cite this condition in previous
inspections. The record, however, fails to establish that employees were
previously observed by OSHA compliance officers working next to a
parapet wall less than 39 inches high (Tr. 410). The Secretary's failure
to cite a condition in prior inspections does not amount to a
determination that the condition does not constitute a violation.
/Seibel Modern Mfg. & Welding Corp/., 15 BNA OSHC 1218, 1223-1224 (No.
88-821, 1991) (cases cited therein). An employer cannot rely on OSHA's
failure to issue a citation (which is not shown in this case) to
establish lack of knowledge. /Columbian Art Works/, 10 BNA OSHC 1132,
1133 (No. 78-29, 1981). There is no evidence that OSHA made any
representations that deprived Kokosing of fair notice of the standard's
requirements. /Miami Industries, Inc./, 15 BNA OSHC 1258, 1264 (No.
88-671, 1991) (OSHA's affirmative representations that it considered the
empart and set aside in part without published opinion, 983 F.2d 1067
(6th Cir. 1992). Kokosing's witnesses were never on a worksite during an
OSHA inspection when employees were jack hammering adjacent to a 29-inch
parapet wall without using fall protection (Tr. 328, 411-412, 415-416, 668).

The violation of § 1926.501(b)(1) is affirmed as serious. The employees
were jack hammering the bridge decking in accordance with Kokosing's
policy and practice. The crew foreman was present on the bridge (Tr.
93-94). If an employee fell 16 feet from the bridge onto I-71, death or
serious injury was the probable result.



Penalty Consideration

The Commission is the final arbiter of penalties in all contested cases.
In determining an appropriate penalty, the Commission is required to
consider the size of the employer's business, history of previous
violations, the employer's good faith, and the gravity of the violation.
Gravity is the principal factor to be considered.

Kokosing does not dispute the reasonableness of the penalties proposed
by the Secretary. Kokosing is a large employer with 1,600 employees.
Kokosing is not entitled to credit for history because it has received
serious citations within the preceding three years (Tr. 59). Kokosing is
entitled to good faith credit (Tr. 58). Kokosing has a good safety
program with eight company safety officers who regularly inspect each of
its worksites. Kokosing has a written safety program and prepares site
specific plans for each worksite, including the I-71 project (Exh. R-3).
Kokosing has weekly employee safety meetings, provides additional
employee in-depth safety training, and has employee incentive safety
programs (Exhs. R-2, R-3, Tr. 134, 136-137, 357, 518-519).

A penalty of $1,000 is reasonable for violation of § 1926.200(g)(1).
Three employees stacked form work along the side of Africa Road and no
motorist warning signs were posted. The employees' exposure was of short
duration. There is no dispute that while removing the form work from
underneath the bridge, the employees were not exposed (Tr. 220-221).

A penalty of $1,500 is reasonable for violation of § 1926.501(b)(1).
Employees were working adjacent to the outside parapet wall of the
bridge. Although the parapet provided employees some fall protection (29
inches is an acceptable height for a midrail in a guardrail system), it
did not provide employees with adequate fall protection. The fall hazard
was 16 feet onto I-71. There were two employees observed jack hammering
next to the parapet.**



**

*FINDINGS OF FACT AND*

**

**

*CONCLUSIONS OF LAW*



The foregoing decision constitutes the findings of fact and conclusions
of law in accordance with Rule 52(a) of the Federal Rules of Civil
Procedure.



*ORDER*

Based upon the foregoing decision, it is ORDERED that serious Citation:

1. Item 1, alleged serious violation of § 1926.200(g)(1), is affirmed
and a penalty of $1,000 is assessed.

2. Item 2, alleged serious violation of § 1926.202, is vacated.

3. Item 3, alleged serious violation of § 1926.501(b)(1), is affirmed
and a penalty of $1,500 is assessed.







/s/

KEN S. WELSCH

Date: September 12, 2001 Judge

1. Other sites were inspected but no alleged OSHA violations were observed.

2. To increase the height, Kokosing uses a special machine which adds on
the additional concrete without removing the existing parapet (Tr. 700,
704).

3. Whaler is a main support board in a form work system (Tr. 156, 376).

4. "Signs are the warnings of hazard, temporarily or permanently affixed
or placed, at locations where hazards exist." 29 C.F.R. § 1926.303(b).

5. According to Kokosing, laborers perform the stacking work (Tr. 650).

6. "Barricade means an obstruction to deter the passage of persons or
vehicles." 29 C.F.R. § 1926.203(a).

7. According to CO Burns, cones and flaggers are not barricades (Tr.
60). rding to CO Burns, cones and flaggers are not barricades (Tr. 60).