________________________________
                                :
SECRETARY OF LABOR,             :
                                :
          Complainant,          :
                                :
          v.                    :   OSHRC Docket No. 99-0313
                                :
BIG APPLE WRECKING &            :
CONSTRUCTION CORP.,             :
                                :
          Respondent.           :
________________________________:


Appearances:



Steven D. Riskin, Esquire; New York, New York

For the Complainant.



Joseph P. Paranac, Jr., Esquire; Newark, New Jersey

For the Respondent.



Before: Chief Judge Irving Sommer



*/_DECISION AND ORDER_/**__*



This proceeding is before the Occupational Safety and Health Review
Commission ("the Commission") pursuant to section 10(c) of the
Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 /et seq./
("the Act"). The Occupational Safety and Health Administration ("OSHA")
inspected a building demolition work site, located in New York City, of
Respondent Big Apple Wrecking & Construction Corporation during July and
August of 1998. As a result of the inspection, OSHA issued Respondent a
serious citation, a repeat citation and a willful citation alleging
violations of the Act. Respondent contested the citations, and a hearing
was held in New York City on November 22-23, 1999, and March 14-16,
2000. Both parties have submitted post-hearing briefs.

*/_Willful Citation 2 - Item 1_/**__*

This item alleges a violation of 29 C.F.R. 1926.451(g)(1), which
provides as follows:

Each employee on a scaffold more than 10 feet (3.1 m) above a lower
level shall be protected from falling to that lower level [by the use of
personal fall arrest systems or guardrail systems].

The only two witnesses who testified in this matter were Peter Steinke,
the OSHA compliance officer ("CO") who conducted the inspection, and
Timothy Cassese, Respondent's project superintendent at the site. Their
testimony regarding this item is set out below.

CO Steinke testified that he went to the site on July 29, 1998, pursuant
to an anonymous complaint that the demolition work was exposing
employees to a 60-foot fall hazard. Upon arriving, he saw a six-story
theater building that was about 200 feet long and 150 feet wide; he
noted the roof of the theater was gone, that there were no floors in the
theater except for two under the mezzanine area, and that there was
scaffolding around the outside of the entire building.^(1) <#N_1_> He
met with Timothy Cassese and told him why he was there, and the two went
to the mezzanine area to watch the work in progress. The CO saw
approximately 15 employees working on the top level of the scaffolding.
Specifically, there were two jackhammer teams, two torch burner teams,
two employees using water hoses to keep the dust down, and five other
workers; the jackhammer teams were on the east wall and the southeast
corner, as were the hose men, the burner teams were on the north and
west walls, and the other employees were walking and moving equipment on
the west wall. Steinke observed that the jackhammer teams were standing
on the scaffolding outrigger platform, which was 2 feet wide and right
next to the 18-inch-wide wall they were demolishing, and that they were
taking the wall down to the level of the platform they were on.^(2)
<#N_2_> He also observed that the burners stood on the outrigger
platform to cut off the vertical steel columns that were left after the
walls were removed, and that the hose men stood on the outrigger
platform to spray water. Steinke saw there were no guardrails or cables
on the outrigger platform, that no fall arrest systems were in use, and
that employees working on the platform were exposed to falls of up to 60
feet to the inside of the building. He discussed the hazard with
Cassese, who said that part of the wall was supposed to be left up for
protection and that the "old-timers" did not like to wear fall
protection; Cassese also radioed his foremen to have the employees move
back from the edge of the platform. The CO and Cassese went up on the
scaffolding on the east wall so the CO could speak to the employees. The
CO saw that they were not wearing safety harnesses or belts, and when he
asked about fall arrest systems, Cassese radioed an employee who brought
a bucket containing four or five such units. CO Steinke pointed out that
the employee had walked close to the edge to approach them, and he asked
Cassese to close off the scaffold along the wall, after which a rope was
put up. CO Steinke told Cassese the company might be cited for what he
had observed. (Tr. 9-34; 40; 72-75).

The CO went back to the site on August 5, 1998, and again saw employees
working on the scaffolding outrigger platform without fall
protection.^(3) <#N_3_> He saw the jackhammer team on the east wall
continuing to take the wall down to the platform level, and he saw
employees on the west wall platform, including torch burners and workers
who were walking around and carrying and moving equipment, without fall
protection.^(4) <#N_4_> Steinke asked why the employees were still
working without fall protection, and Cassese, after having the employees
move away from the edge again, said he had about 15 safety harnesses on
order. Steinke then asked why the jackhammer team was still cutting the
wall flush with the platform, and Cassese told him that that was the way
they did it and that it would take too long to leave part of the wall up
for protection. The CO returned to the site the next day. The jackhammer
team on the east wall was still removing the wall down to the platform
level, and although both employees had on harnesses and were tied off to
the scaffolding posts behind them their lanyards were too short to allow
for any movement. The CO also saw torch burners working on the west wall
platform who were not tied off. CO Steinke spoke to Cassese, who once
again had the employees move back from the edge of the platform. CO
Steinke's final visit to the site was on August 26, 1998, for the
purpose of holding a closing conference, and the citations were issued
on January 21, 1999. (Tr. 18; 38-43; 78-80).

Timothy Cassese testified that the procedure was to demolish the
theater's brick walls in sections 6 feet high, the height of a
scaffolding frame, and 20 feet long, the distance between the vertical
columns, beginning with the top 3 feet. Standing on the scaffold
platform, and starting at the wall's midpoint, the jackhammer man would
make penetrations to form a 3-foot-square section, and the bar man would
insert a wrecking bar into the penetrations and lever the bar so the
section would fall into the building. After removing the top half of
about three 20-foot sections, the team would remove the lower half; the
jackhammer man would make penetrations on the bottom of the wall, and
the bar man would stand behind an intact section of wall to lever off
the loosened section. Cassese said the team was protected by the bottom
3 feet of the wall as it removed the upper 3 feet and that it was also
protected as it removed the lower 3 feet. He noted there was a 6-inch
gap between the 2-foot-wide platform and the 2-foot-wide wall and that
the penetrations were about a foot into the wall; further, the
jackhammer was 4 feet long, such that the operator was 4 to 5 feet from
the wall, and the wall was always in front of him in any case. He also
noted the wrecking bar was 5 feet long, that the bar man stood behind an
intact section of wall to lever off the loosened section, and that when
there was no longer any intact wall to stand behind the bar man tied off
to the scaffolding. (Tr. 321-28).

Cassese next described the procedures for the torch burners and the hose
men. He said the torch burners, who usually worked alone but sometimes
had helpers, followed the jackhammer teams. After a wall was down to 3
feet, the burner would stand on the scaffold platform and use a
3-foot-long cutting torch to cut off the exposed 3 feet of each steel
column; after a wall was down to the platform level, the burner would
tie off to the scaffold to cut off the remaining 3 feet of each
column.^(5) <#N_5_> As for the hose men, Cassese said they stood on the
scaffold platform and sprayed water to control dust and to prevent fires
on the ground; they tied off to the scaffold while spraying, and to move
to a different area, they would untie, take their hoses to the new
location by walking down the center of the scaffold platform, and then
set up in the new location. (Tr. 331-36).

Cassese disputed the CO's testimony. For example, he testified that he
did not see anyone exposed to fall hazards while he and the CO were on
the mezzanine level on July 29 and that he had stopped the work because
he wanted to clarify the issues; he further testified that he had
explained the demolition process to the CO, that the CO was mostly
concerned about the jackhammer teams working where the wall was
completely gone, and that he told the CO there was no need for anyone
else to be in those areas.^(6) <#N_6_> Cassese said that the foreman who
brought them the fall arrest systems had five or six in his hand and
"several" in a "barrel," and that there was a total of 15 to 20 such
systems at the site; he also said he felt that the only thing he had to
do to be in compliance, when the CO left on July 29, was to replace the
safety belts he had with harnesses. Cassese stated he and the CO had no
more discussions about fall protection, although the CO was at the site
August 5 and 6, and that the inspection on August 6 focussed on a health
issue. (Tr. 346-53; 359-62; 368; 475-76; 510-12).

Cassese also disputed the CO's testimony about C-2-5. The CO testified
the employee on the left in C-2 was standing at the edge of the platform
on the building's southwest corner and using a jackhammer to remove the
wall, which was down around his ankles, without fall protection; Cassese
testified the employee was tied off, but the CO said they had discussed
the employee at the time and he was not tied off. (Tr. 43-46; 224-27;
270-72; 354-56; 457-59; 550-52). The CO also testified that C-3 showed
Cassese on the mezzanine radioing an employee on the north wall
platform; Cassese said the employee, a foreman, was wearing a harness
and was not near the edge, while the CO said he was not wearing a
harness and was exposed to a fall hazard. (Tr. 46-50; 227-28; 272-73;
357-58; 460-61). As to C-4, the CO said it showed employees on the
platform on the west wall, which had been removed, with neither fall
protection nor harnesses or belts; Cassese said the scaffold was being
dismantled, and while the CO agreed, he said the employee on the left
was carrying a jackhammer and was not engaged in dismantling. (Tr.
50-53; 228-31; 273-74; 358-59). As to C-5, the CO testified it showed
Cassese and a jackhammer worker on the building's east side and that
neither wore fall protection. Cassese said he and the worker were
protected by the 3-foot wall in front of them; however, he agreed
neither jackhammer worker had worn fall protection to remove the wall on
the left side of C-5, and he said he had admonished them. (Tr. 54-60;
216-18; 353-54; 466-70).

Finally, Cassese disputed the CO's testimony about C-6-7. CO Steinke
testified that the three employees in C-6 were on the east wall
platform, that the wall was flush with the platform, and that the
employee on the left was spraying water into the building's interior;
Cassese said that employee was tied off, but the CO disagreed and noted
the lanyard hanging from his safety belt. (Tr. 61-66; 231-33; 365). As
to C-7, Steinke testified it showed three employees on the west wall
platform and Cassese on the mezzanine in the foreground. The CO also
testified the wall was essentially flush with the platform and that the
scaffold frames on that level were gone; he noted the torch burner on
the right was bending over to cut the column in front of him, that the
employee on the left was using a jackhammer on the wall, and that the
three employees had no fall protection and were not wearing harnesses or
belts. Cassese testified the employees were not standing on the
scaffold, but, rather, a section of the staircase bulkhead on the
building's west side. He agreed that the one on the right was burning a
steel column and that the one on the left was using a jackhammer on the
wall; however, he said that the wall in front of both workers was about
3 feet high.^(7) <#N_7_> (Tr. 67-71; 366-68).

It is clear from the foregoing that the accounts the two witnesses gave
of the inspection were markedly different. For the reasons that follow,
the CO's testimony is credited over that of Cassese. First, significant
parts of Cassese's testimony were equivocal and inconsistent. For
example, he initially testified that he did not remember discussing the
employee in C-2 or the CO taking that photo, despite R-17, Respondent's
enlargement of C-2; he then said that he did recall these matters and
recounted how he determined the employee was tied off, which, as noted
above, was at odds with the CO's testimony. (Tr. 456-59). Cassese also
indicated that the usual procedure was for the torch burners to cut off
the top 3 feet of the columns and then, after the rest of the wall was
removed, the bottom 3 feet; however, he agreed that the exposed beams in
C-5-7 were 6 feet and higher and had not been cut as he had described.
(Tr. 332-33; 477-88). As a final example, Cassese indicated that the CO
told him during the inspection that guardrails could be inserted into
the "sockets" or "cups" on the outriggers. He next indicated that the
first time he had heard the CO mention this matter was at the hearing;
he then reverted to his original statement, and finally said he could
not recall when the issue was first raised.^(8) <#N_8_> (Tr. 362; 488;
542-43).

A second reason for crediting the CO's testimony is due to the
photographic evidence. For example, the CO and Cassese agreed that the
wall in front of the two employees in C-5 was about 3 feet high, or
around waist level. (Tr. 216; 466-67). Cassese nonetheless testified
that the walls in front of the jackhammer man and the torch burner, on
the left and right sides in C-7, respectively, were also about 3 feet
high, even though it is apparent from C-7 that the walls in front of the
workers are much lower than that height, as the CO indicated. (Tr.
67-70; 366-68). Also telling is the testimony about the employees who,
according to Cassese, were tied off, with C-6 being the most obvious
example. Cassese testified that the hose man on the left side of C-6 was
tied off. However, as the CO testified, C-6 shows the looped lanyard
hanging from the employee's waist, and that the hose man is not tied off
is even more evident upon viewing the employee in the middle of C-6,
which, as Cassese and the CO agreed, depicts that employee's lanyard
going from his waist to the scaffolding frame behind him. Another
example was Cassese's testimony that the jackhammer men worked 4 to 5
feet from the wall, while C-6 and R-17, the blowup of C-2, both show
jackhammer workers standing much closer to the wall, as the CO
testified. (Tr. 61-63; 231-32; 324-27; 365).

The third reason for crediting the CO's testimony is based on the
respective demeanors of the two witnesses. I observed CO Steinke as he
testified and found his statements in general to be very candid and
credible. I also observed Cassese as he testified, and it was apparent
from his deportment and statements that he was being less than
forthright about the circumstances at the site. In concluding the CO was
the more reliable witness, I have considered Respondent's assertions
that CO Steinke's inspection was inadequate, that his recall was vague,
and that his photos were taken from such distances and vantage points as
to render them inconclusive. I have also considered the CO's testimony
about how he documented his observations and his conversations with
Cassese and his concession that he documented some of the pertinent
information in his office rather than at the site. (Tr. 555-61; 569-97).
Regardless, the demeanors of the witnesses, and my review of the record
as a whole, persuade me that it is appropriate to credit the CO's
testimony over that of Cassese to the extent their statements are
conflicting. This citation item, which alleges violations of 29 C.F.R.
1926.451(g)(1) on July 29 and August 5 and 6, 1998, is accordingly
affirmed.^(9) <#N_9_>

*/_Whether the Violation was Willful_/**__*

The Secretary has classified the violation set out in Citation 2 as
willful/serious. It is clear that the cited conditions could have
resulted in serious injuries or death. Further, Commission precedent is
well settled that a violation is willful if it was committed "with
intentional, knowing, or voluntary disregard for the Act's requirements,
or with plain indifference to employee safety." /Williams Enter., Inc./,
13 BNA OSHC 1249, 1256 (No. 85-355, 1987). As /Williams/ also states:

A willful violation is differentiated by a heightened awareness--of the
illegality of the conduct or conditions--and by a state of
mind--conscious disregard or plain indifference. There must be evidence
that an employer knew of an applicable standard or provision prohibiting
the conduct or condition and consciously disregarded the standard.
Without such evidence of familiarity with the standard's terms, there
must be evidence of such reckless disregard for employee safety or the
requirements of the law generally that one can infer that if the
employer had known of the standard or provision, the employer would not
have cared that the conduct or conditions violated it. It is therefore
not enough for the Secretary simply to show carelessness or lack of
diligence in discovering or eliminating a violation; nor is a willful
charge justified if an employer has made a good faith effort to comply
with a standard or eliminate a hazard, even though the employer's
efforts are not entirely effective or complete.

13 BNA at 1256-57 (citations omitted).

The CO considered the violation willful because on all the dates
relevant to this item, and despite his speaking to Timothy Cassese about
fall protection, employees continued to be exposed to falls. In
particular, the CO testified that on July 29, after he and Cassese
observed employees from the mezzanine area, he asked why they were
working without any fall protection. Cassese said the employees were
taking the wall down all the way to the platform and that they were
supposed to leave some of it up for protection; he also said the
"old-timers" did not like to wear fall protection. None of the workers
the CO saw that day were wearing safety harnesses or belts, and, after
he asked about what was available at the site, Cassese radioed an
employee who came up to them a few minutes later with a bucket
containing four or five such units. On August 5, the CO again saw
employees exposed to fall hazards, working without fall protection, and
cutting the wall down flush with the platform. When the CO asked why,
Cassese admitted that was how they did the work and that it would take
too long to leave part of the wall up; he also said he had 15 harnesses
on order and that employees would thereafter use fall protection. The CO
indicated that while some employees wore fall protection that day, the
only one he saw tied off was the jackhammer man in C-6. On August 6, the
CO observed that employees were still exposed to fall hazards; they were
wearing safety harnesses, but their lanyards were too short to allow for
movement and they were unhooking them in order to work. When the CO
pointed this out, Cassese said that he had longer lanyards on order but
they were not in yet.^(10) <#N_10_> (Tr. 17-23; 29-32; 38-43; 49-52;
60-84; 231-32; 270-73).

In addition to the above, the CO testified that when he first met with
Cassese on July 29 and told him about the complaint and asked if it was
valid, Cassese indicated it could be if employees were cutting the wall
all the way down to the platform. The CO also testified that Cassese
told him on August 5 he knew about OSHA's fall protection requirements;
that is, he knew that fall protection was required for work above 6 feet
and that safety harnesses had been required since February 1998.
Finally, the CO testified that on August 5 and 6, Cassese told him that
he considered the situation "borderline." When the CO returned to the
site to hold a closing conference on August 26, he asked Cassese what he
meant by that statement. According to the CO, Cassese agreed that while
it was possible someone could trip and fall he did not think it was
likely because employees were standing on the platform and not on the
wall itself. The CO learned on July 29 that the employees had been at
the site for about two weeks, and it was his opinion they would have
continued working in the same manner if he had not conducted his
inspection. (Tr. 16-17; 39; 71-81).

Based on the foregoing, I find that the violation was willful. In so
finding, I have noted Respondent's claims that the CO's inspection was
deficient and that Cassese's testimony, which was in large part contrary
to that of the CO, was the reliable evidence of record. However, these
claims were addressed and rejected /supra/ after careful consideration
of the testimony of both witnesses. I have also carefully considered all
of the circumstances in this case, giving particular attention to the
number of times the CO visited the site, what the CO observed and what
he and Cassese discussed during these visits, and the company's
continued failure to protect its employees at the site. In view of the
record as a whole, it is my conclusion that the Secretary has met her
burden of demonstrating that Respondent acted "with intentional,
knowing, or voluntary disregard for the Act's requirements."^(11)
<#N_11_> This citation item is therefore affirmed as a willful violation.

The Secretary has proposed a penalty of $70,000.00 for this citation
item. Commission precedent is well settled that in determining
penalties, due consideration must be given to the employer's size,
history and good faith and to the gravity of the violation. /See, e.g.,
J.A. Jones Constr. Co/., 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993). The
record shows that no credit was given for any of these factors due to
the company's previous history of violations, the number of employees it
had, the high gravity of the violation and the willful characterization
of the violation. (Tr. 85-87). However, I disagree with the CO's
determination of Respondent's size. CO Steinke testified that companies
with over 250 employees are considered "large" and are consequently not
entitled to an adjustment for size. Because Cassese was unsure how many
employees the company had, the CO called Respondent's office. One
individual, whose position the CO evidently did not determine, said
there were 115 employees, while the person in charge of records said
there were 250. CO Steinke then spoke to Leon Levine, the CO who had
conducted the health inspection at the site, who advised him that the
president of the company had told him that there were 300 employees.
(Tr. 85-87, 207-10). Notwithstanding this testimony, I conclude that a
reduction in penalty for size is appropriate. CO Steinke spoke directly
to the person in charge of records and asked her specifically for the
maximum number of employees the company had had in the past 12 months.
Her response was 250, and when he said that that sounded like a round
number and asked for the exact number, she repeated that it was 250.
(Tr. 209). Because CO Steinke did not speak to the president himself,
who may well have provided the 300 figure as merely an estimate, I find
his testimony about what Respondent's employee in charge of records told
him to be the more reliable indicator of the total number of employees.
On the basis of this finding, a 20 percent reduction for size is
appropriate and a penalty of $56,000.00 is assessed.^(12) <#N_12_>



*/_Serious Citation 1 - Item 1_/**__*

This item alleges that compressed gas cylinders at the site were not
secured in an upright position as required, in violation of 29 C.F.R.
1926.350(a)(9). That standard provides as follows:

Compressed gas cylinders shall be secured in an upright position at all
times except, if necessary, for short periods of time while cylinders
are actually being hoisted or carried.

CO Steinke testified that on July 19, 1998, he observed two acetylene
cylinders in an upright position in a storage area just outside of the
job site office that were not secured as required. He said the cylinders
were hooked up to hoses going up the side of the building, for use by
the torch burners above, and that the cylinders were not in a storage
cart or tied off to the building. He identified C-9 as his photo of the
cylinders, which he said were a hazard; he noted employees smoked and
took breaks in the area and that something from above dropping on a
cylinder or catching on a hose could have resulted in a cylinder falling
over, a gas release and a fire or explosion. The CO pointed out the
condition and Cassese had it corrected; however, when the CO was on the
site on August 6, 1998, there were two unsecured acetylene cylinders in
the same location.^(13) <#N_13_> (Tr. 102-14; 242; 279-80).

Timothy Cassese testified the cited cylinders were tied off with manila
rope to the window grills on the building behind them. He said that R-8,
an enlargement of C-9, showed a rope around the centers and bases of the
cylinders, and he marked where the ropes were on R-8; he also marked the
rope around another cylinder in R-8, noting it was also in use, that
there was a door in front of it, and that there were more cylinders
there that were similarly secured. (Tr. 381-87; 519-25; 547-48).

As in the preceding item, the testimony of the witnesses is markedly
different, and, for reasons similar to those above, the CO's testimony
is credited over that of Cassese. First, I note my credibility findings,
/supra/, and the CO's testimony that he went right up to the cylinders
and saw that they were not secured. (Tr. 113; 239). Second, while he
agreed that the cylinder behind the door in the photos appeared to be
secured as there was a rope around the top part of it, he disagreed that
the cited cylinders were secured; he pointed out that there was nothing
wrapped around the top parts of the cylinders and that the hose or rope
draped around the bottom, as shown in R-8 and C-9, would not keep them
from falling over. (Tr. 110-13; 240-42). Finally, my own review of the
photos persuades me that the subject cylinders were not tied off;
although the cylinder behind the door seems to be secured with rope, as
both witnesses indicated, there does not appear to be anything around
the cited cylinders other than the rope or hose draped at the bottom.
This item is affirmed as a serious violation, and a penalty of $2,000.00
is assessed. (Tr. 105-06; 115-16).

*/_Serious Citation 1 - Item 2_/**__*

Item 2 alleges that two extension cords at the site passed through the
pinch points of metal doors, in violation of 29 C.F.R.
1926.405(a)(2)(ii)(I), which states that:

Flexible cords and cables shall be protected from damage. Sharp corners
and projections shall be avoided. Flexible cords and cables may pass
through doorways or other pinch points, if protection is provided to
avoid damage.

The CO testified that on August 5, 1998, he saw a yellow extension cord
under the metal gate to the east side entrance to the site and an orange
extension cord under the metal door to the job site office.^(14)
<#N_14_> He identified C-10 and C-11 as photos of the cords, which were
used to provide electricity for tools and for lighting in the office,
and he said the cords were in the pinch points of the gate and door,
that they were subject to damage when the gate and door were closed, and
that he observed the cord in C-10 to be crimped and thus already
damaged.^(15) <#N_15_> The CO saw the entry gate in both an open and
closed position, and while the office door was always open on his visits
he believed it was closed and locked at night as equipment was stored in
the office. The CO stated the cords were a hazard, as contacting the
gate or door or using the cords could have caused an electrical shock
and a heart attack; he also stated the conditions were corrected while
he was there. (Tr. 116-30; 243-47; 277-79).

Based on the foregoing, I find that the Secretary has established the
alleged violation. In so finding, I have noted the testimony of Timothy
Cassese that the cord in C-10 was not damaged, that the cord in C-11 was
removed on weekends, which was the only time the door to the office was
ever closed, and that the cords were protected by ground fault circuit
interrupters. (Tr. 387-93; R-9). Regardless, for the reasons set out
/supra/, the CO's testimony is credited over that of Cassese. This item
is affirmed as a serious violation, and a penalty of $2,000.00 is assessed.

*/_Serious Citation 1 - Item 3_/**__*

Item 3a alleges that there were unprotected openings in the scaffolding
platform at the site,

in violation of 29 C.F.R. 1926.451(b)(1).^(16) <#N_16_> The cited
standard provides as follows:

Each platform on all working levels of scaffolds shall be fully planked
or decked between the front uprights and the guardrail supports....

CO Steinke testified that on August 6, 1998, he saw a scaffold platform
on the east side of the building with two unprotected openings; one was
about 8 feet long and 3 feet wide, the other was about 8 feet long and 2
feet wide, and both were on the building side of the platform. C-13, the
CO's photo, shows the two openings on either side of a stairway; the
larger one is in the foreground in front of the stairway, the smaller
one is in the background past the stairway, and the CO said both
openings were about 25 feet from the stairway. He also said the cited
platform was one or two levels below the top platform, where the
demolition work was taking place, and that while no one was on the
platform when he took C-13 he saw employees walking on it; he noted the
platform was used to store and move scaffolding materials and that
workers unaware of the openings could have fallen through them and been
seriously injured.^(17) <#N_17_> (Tr. 130-42; 247-50; 280-82; 285-88).

Respondent does not dispute the existence of the floor openings, which
are clearly depicted in C-13. However, Respondent contends that it did
not violate section 1926.451(b)(1) because of the following exception to
the standard:

The requirement in paragraph (b)(1) to provide full planking or decking
does not apply to platforms used solely as walkways or solely by
employees performing scaffold erection or dismantling. In these
situations, only the planking that the employer establishes is necessary
to provide safe working conditions is required.

Respondent asserts that the subject platform met the foregoing exception
because it was still in the process of being built. In this regard, the
CO and Cassese both testified that demolition was taking place on the
top platform, that the subject platform was a "staging area"for
dismantling and rebuilding the scaffold, and that the plywood piled near
the larger opening in C-13 was there as part of that process. (Tr.
247-49; 282; 393-95; 496-97). The CO went on to describe the dismantling
and rebuilding process as follows:

You had to walk on those platforms if you were from the scaffold crew,
because you used those lower platforms to transport a scaffold, because
you take the upper platform down and then you have to stage through the
lower platforms to reconstruct another platform at the bottom. You have
to use all of the platforms. (Tr. 134).

Cassese indicated that the subject platform was still being established
and that the openings were there because employees were passing scaffold
materials down to the next level. (Tr. 393-95; 496-97). However, the CO
specifically testified that the subject platform was completed and not
"under construction" at that time, and his testimony also shows that no
materials were being passed down to the next level when he saw the
openings. (Tr. 132-34; 281-82; 286-87). It is Respondent's burden to
prove that it met the exception set out above. Based upon the CO's
testimony, which is credited over that of Cassese, I conclude that
Respondent has not met its burden of demonstrating that the exception to
the standard applied in the circumstances of this case. I also conclude
that, as the CO testified, the openings represented a hazard for
employees. Item 3a is accordingly affirmed as a serious violation, and a
penalty of $2,000.00 is assessed.

*/_Serious Citation 1 - Item 4_/**__*

This item alleges that scaffolding stairway landings at the site had
incomplete guardrail systems, in violation of 29 C.F.R.
1926.451(e)(4)(xii), which states that:

Guardrails meeting the requirements of paragraph (g)(4) of this section
shall be provided on the open sides and ends of each landing.

The CO testified that on every day of his inspection, he observed
stairway landings that did not have guardrails as required.^(18)
<#N_18_> He explained that there was a stairway on each level of the
east side of the building and that employees used the stairways to get
to their work areas; he further explained that while the stairways
themselves had handrails on both sides, the stairway landings did not
have guardrails to prevent someone from walking off the landing, falling
into the stairway opening, and sustaining a serious injury. The CO
identified C-14 and C-15 as photos of the stairways on two different
levels with unguarded landings, and he marked on both photos where
guardrails should have been in place. (Tr. 148-71; 174).

As a preliminary matter, Respondent contends that the cited standard
does not apply because it refers to "stairtowers," which were not used
at the site. Timothy Cassese testified that a stair tower is an
individual unit that is installed adjacent to a scaffold, while the
scaffolding at the site had stair inserts that were placed within the
parameters of the scaffold frame; he further testified that a stair
tower has landings that tie the staircases together, while the
scaffolding at the site had no landings and the stairways went directly
from one level to another. (Tr. 395-97; 499-502).

As Respondent contends, section 1926.451(e) does refer to "stairtowers."
However, this section reads in its entirety as follows:

Stairtowers (scaffold stairway/towers) shall be positioned such that
their bottom step is not more than 24 inches (61 cm.) above the scaffold
supporting level.

The foregoing leads me to conclude that the term "stairtowers" includes
scaffold stairways and scaffold towers; in this regard, I note that
several subsections under 1926.451(e) refer to scaffold stairways, while
none refers to "stairtowers." Respondent's reference to a drawing in
Appendix E to the standard likewise does not persuade me of its
position; although the drawing shows a scaffold with a stair tower like
the one Cassese described, the drawing is entitled "System Scaffold" and
is clearly different from the scaffolding at the subject site.
Respondent's contention is rejected.^(19) <#N_19_>

Respondent next contends that the landing area the CO had marked on C-15
as requiring guardrails was not a hazard. In support of this position,
Respondent presented R-1, which the CO agreed was one of his photos and
a "mirror image" of C-15, and the testimony of Cassese that the landing
area was not accessible because of the other stairway right over it and
that a person would have had to crouch down to a height of 3 or 4 feet
to get into that area. (Tr. 397-98). However, the CO testified he had
used the stairway, that it was not as close to the landing area as it
looked in R-1, and that if he had gotten dizzy climbing the stairs in
C-15 he could have fallen off the landing area he marked in that photo.
(Tr. 250-55). The CO's testimony is credited, and Respondent's
contention is rejected. This item is affirmed as a serious violation,
and a penalty of $2,000.00 is assessed.

*/_Serious Citation 1 - Item 5_/**__* ^(20) <#N_20_>

Item 5 alleges that Respondent did not ensure that both top-rail and
mid-rail protection was provided on the scaffolding, in violation of 29
C.F.R. 1926.451(g)(4)(xv), which states that:

Crossbracing is acceptable in place of a midrail when the crossing point
of two braces is between 20 inches (0.5 m) and 30 inches (0.8 m) above
the work platform or as a toprail when the crossing point of two braces
is between 38 inches (0.97 m) and 48 inches (1.3 m) above the work
platform. The end points at each upright shall be no more than 48 inches
(1.3 m) apart.

CO Steinke testified that during his inspection he observed that the
scaffolding on the street side of the building had cross bracing with a
cross point of 42 inches, which was sufficient for a top rail; however,
the scaffolding did not have mid-rails, and the wire mesh he saw along
the sides of the scaffolding did not meet the standard.^(21) <#N_21_> He
said the standard requires wire mesh to go from the top of the guardrail
system to the scaffold platform and that the mesh at the site, which was
only about 2 feet high, was several inches below the cross bracing; he
also said the standard requires wire mesh to be able to prevent someone
from falling through it and that while the mesh at the site was attached
to the scaffold end frames it was not attached to the cross bracing. The
CO noted that C-14, his July 29 photo of the level below the top level,
showed the wire mesh along the right side of the scaffold platform. He
further noted the mesh was only in some areas; C-16, his August 7 photo,
showed no mesh on the outside of the building, and C-13 and C-4 showed
no mesh on the levels in those photos. The CO said the condition could
have caused falls to the outside of the building and serious injuries or
death; he also said Cassese acknowledged the condition but that it was
not corrected during the inspection because of the amount of scaffolding
on the job. (Tr. 180-94).

Timothy Cassese testified the mesh at the site was 3 feet high, that it
was attached every 2 feet to the toe boards along the scaffold platform,
and that it was tied with heavy gauge wire to the cross bracing as well
as to the scaffold end frames. (Tr. 316-20; 345-46; 410-11; 491-95). The
CO conceded he could have been mistaken about the height of the mesh and
that he had not checked to see if it was attached to the toe boards.
However, he said the requirement was that it be attached to the top
rail, and he was adamant that he had looked at the mesh, that he had
seen it was not tied to the cross bracing, and that if it had been he
would not have cited the condition. (Tr. 256-62; 282-84; 595-97).
Cassese further testified the mesh was as "tight as we could get it,"
while the CO said it was "just sort of tied up and standing up on edge,"
that it did not have much rigidity, and that "if you fell into it, you
could have fallen through it." (Tr. 186; 317-18). Finally, although
Cassese testified about R-6 and R-7, photos he took showing the wire
mesh as he had described it, he did not rebut the CO's testimony about
the photos noted above that show no mesh in place.^(22) <#N_22_> (Tr.
340-46). The CO's testimony is credited over Cassese's, and I find that
the Secretary has proved the alleged violation. This item is affirmed as
a serious violation, and a penalty of $2,000.00 is assessed.

*/_Serious Citation 1 - Item 6_/**__*

Item 6 alleges that employees were not effectively trained to recognize
the hazards associated with working on the type of scaffolding used at
the site, in violation of 29 C.F.R. 1926.454(a)(1).^(23) <#N_23_> That
standard states that:

The employer shall have each employee who performs work while on a
scaffold trained by a person qualified in the subject matter to
recognize the hazards associated with the type of scaffold being used
and to understand the procedures to control or minimize those hazards.
The training shall include the following areas, as applicable: (1) The
nature of any ... fall hazards ... in the work area.

The CO testified that after observing the fall hazards at the site on
July 29, 1998, and after Cassese had told him the old-timers did not
like to wear fall protection, he asked Cassese what type of training was
provided in this regard; when Cassese asked what he meant, the CO
explained he was talking about any on-site training or tool box
meetings, and Cassese replied that no such training was done. (Tr.
194-99). Timothy Cassese, on the other hand, denied that the CO asked
about any on-site training, and he testified about the company's fall
protection program and the daily briefings and weekly safety talks he
had at the site; he also testified that he instructed employees to tie
off and disciplined those who did not. (Tr. 328-30; 399-419; 526;
529-34; R-10-11). For the reasons set out /supra/, the CO's testimony is
credited over that of Cassese. On the basis of the CO's testimony and my
disposition of the willful citation in this case, I find that the
Secretary has established the alleged violation. Item 6 is affirmed as a
serious violation, and a penalty of $2,000.00 is assessed.

*/_Serious Citation 1 - Item 8_/**__*^(24) <#N_24_>

This item alleges that an engineering survey was not performed prior to
the start of the demolition work at the site, in violation of 29 C.F.R.
1926.850(a). That standard provides as follows:

Prior to permitting employees to start demolition operations, an
engineering survey shall be made, by a competent person, of the
structure to determine the condition of the framing, floors, and walls,
and possibility of unplanned collapse of any portion of the structure.
Any adjacent structure where employees may be exposed shall also be
similarly checked. The employer shall have in writing evidence that such
a survey has been performed.

CO Steinke testified that during the inspection he asked Cassese if an
engineer had surveyed the building before the job began; his concern was
the archway over the stage that was about 100 feet long and 80 feet
high, which, if cut improperly, could have collapsed and fallen on
anyone working below.^(25) <#N_25_> Cassese said an engineer had been
involved with the project but that to his knowledge there was no written
survey. Cassese referred him to Ben Versaci, the project manager, who
told the CO that there was nothing in writing but that Bernard DiNunzio,
an engineer, had been involved with the project and that he would have
expected DiNunzio to tell him if there were any problems. The CO noted
that the standard requires written evidence of a survey and that he
never saw anything in writing. He also noted that he had checked the
company's history and had learned that it had been cited previously for
a violation of the same standard. (Tr. 200-08; 262-67; 284).

Timothy Cassese testified that DiNunzio, an employee of the company,
surveyed the site before the project began. He said he was with DiNunzio
during his survey, which was about a month and included the archway over
the stage; he also said DiNunzio kept a notebook, that he had seen him
writing in the notebook during the survey, and that DiNunzio used the
notebook to document the survey and the dates and hours he was at the
site. Cassese identified R-3 as a copy of the notes of the survey that
DiNunzio had faxed to him on November 18, 1999. (Tr. 302-10; 373).

I find that the foregoing establishes that an engineering survey was
performed as required; however, I nonetheless find that Respondent
violated the cited standard. Timothy Cassese and Ben Versaci, the
project superintendent and the project manager, respectively, both told
the CO there was nothing in writing regarding the survey, and the CO
never received any written evidence of the survey. During discovery, the
Secretary requested documentation of the survey, and, when no such
documentation was produced, filed a motion to compel. The Secretary's
motion was granted on August 9, 1999, and when Respondent did not comply
as required by August 15, 1999, the Secretary filed a motion for
sanctions. On September 13, 1999, Respondent was again ordered to comply
and was advised that failure to do so by September 27, 1999, would
result in dismissal of its answer and notice of contest. On September
24, 1999, Respondent stated, in a letter to my office, that "[t]he
originals of all documents have been sent to the Secretary." At the
hearing, Respondent's counsel moved to admit R-3 into the record. The
Secretary's counsel objected, stating he had never received R-3, that
the document produced during discovery was simply a statement signed by
DiNunzio, and that Respondent's pre-hearing exchange had not included
R-3. R-3 was received in evidence upon the representation of
Respondent's counsel that to the best of his belief he had sent R-3 to
the Secretary's counsel on November 19, 1999, the day after it was faxed
to Cassese. (Tr. 311-13). Regardless, R-3 is accorded no probative
value, for the following reasons.

First, two management officials of the company told the CO that there
was nothing in writing regarding the survey, and, despite the
Secretary's discovery requests, R-3 was not provided until just before
the hearing. Second, R-3 consists of a single legal-sized photocopy of
three pages of notes that are largely illegible, and Respondent
presented neither the testimony of DiNunzio nor his signed statement
indicated above in support of R-3. Third, although Cassese testified
about R-3, my credibility rulings set out /supra/ preclude giving much
weight to his testimony. Based on the record, Respondent did not "have
in writing evidence that [an engineering] survey ha[d] been performed."
This item is affirmed as an "other" violation, in that the condition had
a direct relationship to safety and health but would not have caused
serious injury or death, and a penalty of $400.00 is assessed.

*/_Repeat Citation 3 - Item 1_/*/__/

This item alleges that the track hoe being used at the site had an
inoperable backup alarm, in violation of 29 C.F.R. 1926.602(a)(9)(ii).
That standard states as follows:

No employer shall permit earthmoving or compacting equipment which has
an obstructed view to the rear to be used in reverse gear unless the
equipment has in operation a reverse signal alarm distinguishable from
the surrounding noise level or an employee signals that it is safe to do so.

CO Steinke testified that on July 29, he saw a track hoe operating
inside the building; it was going backward as well as forward, and he
noted that it had an obstructed view to the rear due to the large engine
box behind the driver's cab, that it did not have a backup alarm, and
that there was no one directing the operator. Steinke also testified
that the track hoe was picking up masonry debris and pieces of steel and
loading these materials into trucks, that it moved "pretty quickly," and
that employees could have been at risk when it was in reverse; Cassese
was on the ground at times, there were two ground employees who directed
trucks coming onto the site, and burners were also on the ground at
times in order to cut pieces of steel so they would fit into the trucks.
The CO said everyone "kept their distance" from the track hoe when he
saw it but that his main concern was the burners, who, if they were
cutting steel, might not be paying attention to the track hoe. The CO
discussed the alarm with Cassese, who said it was broken and that he
would get it fixed; however, the CO saw the track hoe in use on August 5
and 6, and although Cassese repeated he would have the alarm fixed it
was still not working on August 26, the day of the closing conference.
(Tr. 88-98; 234-39).

Based on the foregoing, I conclude the Secretary has met her burden of
showing the standard applied, that its terms were violated, and that
Respondent was aware of the condition.^(26) <#N_26_> Regardless, in my
opinion, the Secretary has not shown employee exposure to the condition.
C-8, the CO's photo of the track hoe, depicts no one in the vicinity.
Moreover, the CO himself testified that he saw the track hoe operating
on the three days noted above and that the employees he saw in that area
"kept their distance" and got no closer than 30 feet to the track hoe;
he also testified that employees who were on the ground level when the
track hoe was operating stood within the confines of the building or out
in the street and that he saw no one "getting into a dangerous location
behind the machine." (Tr. 89-92; 97; 234-38). Finally, while Cassese's
statements have not been accorded much weight in this case due to my
credibility findings set out /supra/, his testimony that employees were
not allowed in the area when the track hoe was being used is supported
by the fact that the CO never saw anyone near it when it was operating.
(Tr. 297-98; 374-79). Because the Secretary has failed to establish
employee exposure to the cited condition, this citation item is vacated.

*/_Conclusions of Law_/**__*

1. Respondent, Big Apple Wrecking & Construction Corporation, is engaged
in a business affecting commerce and has employees within the meaning of
section 3(5) of the Act. The Commission has jurisdiction of the parties
and of the subject matter of the proceeding.

2. Respondent was in serious violation of 29 C.F.R. §§ 1926.350(a)(9),
1926.405(a)(2)(ii)(I), 1926.451(b)(1), 1926.451(e)(4)(xii),
1926.451(g)(4)(xv) and 1926.454(a)(1).

3. Respondent was not in violation of 29 C.F.R. §§ 1926.502(d) and
1926.602(a)(9)(ii).

4. Respondent was in "other" violation of 29 C.F.R. § 1926.850(a).

5. Respondent was in willful violation of 29 C.F.R. § 1926.451(g)(1).

*/_Order_/**__*__

On the basis of the foregoing Findings of Fact and Conclusions of Law,
it is ORDERED that:

1. Items 1 through 3a and 4 through 6 of Serious Citation 1 are
AFFIRMED, and a penalty of $2,000.00 is assessed for each item.

2. Item 3b of Serious Citation 1 is VACATED.

2. Item 7 of Serious Citation 1 is VACATED.

3. Item 8 of Serious Citation 1 is AFFIRMED as an "other" violation, and
a penalty of $400.00 is assessed.

4. Item 1 of Willful Citation 2 is AFFIRMED, and a penalty of $56,000.00
is assessed.

5. Item 1 of Repeat Citation 3 is VACATED.







/s/



Irving Sommer

Chief Judge



Date: 12 SEP 2000

1. The CO saw the theater from the roof of a building across the street,
and C-1 is his photo of this view; he also took C-2-5 that day, and R-17
is a blowup of C-2. (Tr. 10-13; 44-60; 550).

2. The main platform within the framework of the scaffolding was 6 feet
wide, and while the exterior (street side) of the scaffolding had cross
bracing on it, the interior (building side) cross bracing had been
removed to facilitate working on the outrigger platform. (Tr. 23-24;
31-34).

3. On August 5 and 6, CO Steinke was accompanied by Leon Levine, another
CO, who was conducting a health inspection; CO Steinke was also on the
site on August 7. (Tr. 183; 556; 590-91).

4. C-6-7 are photos the CO took on August 5. (Tr. 61-71).

5. Cassese noted that at times the burners would cut off the entire
6-foot columns at once but would tie off to do so. (Tr. 333).

6. Cassese indicated that he and the CO did not discuss the burners at
all that day. (Tr. 351).

7. Cassese also testified as to his belief that the jackhammer man was
tied off, but then said it was "very unclear" to him. (Tr. 367).

8. Although Cassese said there was nowhere to install guardrails on the
outriggers, the CO testified he had seen this type of guardrail many
times and that he had also talked to the scaffold rental company that
had erected the scaffolding at the site. (Tr. 35; 275-77; 362; 488;
540-47; 554).

9. In affirming the violation, I have considered Cassese's testimony
about R-5-7, photos he said he took about two months before the
inspection showing various aspects of the job. (Tr. 337-46). Although
these photos would appear to depict employees working as Cassese
described, they do not rebut the CO's testimony about what he observed
when he was at the site.

10. The CO initially testified that the lanyards he saw on August 5 and
6 were 4 feet long; he later said they could have been 6 feet long but
were in any case too short to be used for the work at the site. He also
indicated that utilizing either 8-foot lanyards or safety lines would
have been acceptable alternatives. (Tr. 35-37; 41-42; 65-66; 73-74; 79;
83-84; 591-94).

11. This conclusion is supported by Cassese's admission that the CO told
him before leaving on July 29 that he would be returning the site. (Tr.
352; 473-74).

12. I conclude that a 20 percent reduction is also appropriate for the
other affirmed items in this case. /See, e.g./, OSHA Field Inspection
Reference Manual, Section 8, Chapter IV.C.2.i.(5)(a).

13. In her complaint, the Secretary amended this item to include the
August 6 date in addition to the July 29 date.

14. The complaint amended this item to allege a violation on August 5
rather than July 29.

15. The electricity to the building had been shut off due to the
demolition work, and C-12 shows the fixtures plugged into a circuit
outside of the building. (Tr. 118).

16. The Secretary's complaint withdrew Item 3b, which alleged another
violative instance of the standard, and amended Item 3a to include the
date of August 6, 1998, in addition to July 29, 1998; at the hearing,
her motion to reduce the penalty to $2,500.00 was granted. (Tr. 4-5).

17. The CO said there were two planked platform levels below the top
level when he was at the site; he also said that an employee falling
through one of the subject openings could have fallen 50 feet if there
was no platform below, or 6 to 7 feet if there was a platform below.
(Tr. 134-36).

18. The complaint amended this item to include August 5-7, 1998, in
addition to July 29, 1998.

19. Also rejected is Cassese's testimony that the stairways at the site
did not have landings.

20. The complaint amended this item to include August 5-7, 1998, in
addition to July 29, 1998.

21. The CO said that the netting hanging from the building, as shown in
C-16 and other photos, was debris netting and did not provide any fall
protection. (Tr. 182-90).

22. As to photos R-6-7, /see/ footnote 9, /supra/.

23. This item initially alleged a violation of 29 C.F.R. 1926.454(a) on
July 29; the complaint amended this item to allege a violation of
1926.454(a)(1) and to include the dates of August 5-7.

24. In her complaint, the Secretary withdrew Item 7 of Citation 1; she
also amended Item 8 to add that Respondent had no written evidence of
having performed an engineering survey.

25. The CO said that C-1 showed the archway and a track hoe on the
ground below, where the operator and ground employees worked. (Tr.202-06).

26. In so concluding, I have considered Respondent's contention that the
standard does not apply based on Cassese's testimony that the track hoe
was only used to load pieces of steel into trucks and that it had a
clear view to the rear due to the mirrors on either side of the cab; I
have also considered Cassese's testimony that he was unaware the alarm
was not working until the CO noticed it. (Tr. 376-80; 515-18). However,
the CO testified that he saw the track hoe digging and scraping masonry
debris in the center of the building and then loading this material as
well as steel into trucks; he further testified that the standard
applies to earthmoving machines and that track hoes are usually used for
excavation and loading. (Tr. 88-89; 96; 235). The CO also testified the
operator could not have seen if someone was right behind him because of
the engine housing, that the mirrors on the cab would have given only a
partial view to the rear, and that he had made this determination from
the track hoes he had seen before. (Tr. 96; 238-39). Finally, I note the
CO's testimony about what Cassese said when he mentioned the alarm. (Tr.
92-93). The CO's testimony is credited over that of Cassese, and,
consequently, the Secretary has shown the elements noted above.