North Eastern Precast LLC & Masonry Services, Inc. dba MSI., Docket No. 13-1169 13-1170

THIS CASE IS NOT A FINAL ORDER OF THE REVIEW COMMISSION AS IT IS PENDING COMMISSION REVIEW

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. §§651-678 (OSH Act or the Act). Following an inspection of Respondents’ worksite in Valley Stream, New York, the Secretary of Labor (Secretary), through the Occupational Safety and Health Administration (OSHA), issued three citations to North Eastern Precast LLC (NEP), alleging various willful, serious and other-than-serious violations of the Act. OSHA also issued four citations to Masonry Services, Inc. (MSI), alleging various willful, repeat, serious and other-than-serious violations. Both employers filed a timely notice of contest, bringing this matter before the Commission.

Before the hearing, all parties stipulated that, because both MSI and NEP have overlapping ownerships and were working at the same site, they should be treated as a single employer, subject to a single set of citations

. According to the stipulation, each citation item issued to NEP is consolidated with the analogous item issued to MSI and the penalties originally issued to MSI will be considered the proposed penalties for the consolidated items. (Ex. J-1, ¶ 4). The numbering system for the citations issued to MSI will be preserved for the consolidated citations. Hereafter, MSI and NEP will be collectively referenced as Respondent, except where circumstances require reference to either of the employers alone. Also, employees allegedly exposed to the violations will be considered to be employees of Respondent. Id.

A hearing was held in New York City on October 21-22, 2014. The parties filed post-hearing briefs. For the reasons set forth below, all citations and proposed penalties are affirmed.

Based upon the record, I find that, at all relevant times, MSI and NEP were engaged in a business affecting commerce and were employers within the meaning of sections 3(3) and 3(5) of the Act. (NEP Answer ¶¶ I, III; MSI Answer ¶¶ I, III, Ex. J-1, ¶ 5). I also find that the Commission has jurisdiction over the parties and subject matter in this case. (Ex. J-1, ¶1)

In the summer of 2012, Respondent contracted with Vordonia Contracting & Supplies Corp,/Alma Realty Corp. (Vordonia) to provide the masonry work at a mixed retail/residential construction project in Valley Stream, a town on Long Island, New York. (Tr. 253, Ex. J-1, ¶ 9).

The site was located between Brooklyn Avenue and Fourth Street. Power lines ran along both streets and shared a common pole (pole #3)

at the corner of Fourth and Brooklyn. (Ex. C-26A). Both lines carried 13.2 kV. (Tr. 64). That pole was approximately 10 degrees out of plumb and encroached over the footprint of the building. (Tr. 357, 797, Ex. C-67). The Fourth Street line fed electricity from the poles at the site to several downstream customers. Because it was a dead end line, the power could not be rerouted. (Tr. 68, 168, 206). Therefore, rather than de-energizing the line, it had to be moved further from the worksite. (Tr. 69, 206, 286, 318, 320, 329). However, the power from the Brooklyn Avenue line, between poles 2 and 3, could be rerouted and the line de-energized. (Tr. 68, 206)

At a pre-job meeting that summer, James Sal Herrera, one of Respondents’ owners, met with Patricio Solar, Vordonia’s in-house architect, and designated representative at the jobsite. (Tr. 442-444, 800-801, Ex. J-1, ¶ 11). Herrera testified that, at first, he thought the wires were phone lines, but that Solar informed him that they were power lines. (Tr. 718, 801-802). Herrera noticed that the power lines on both Fourth Street and Brooklyn Avenue appeared to be less than ten feet from the jobsite and might pose a problem as the building went up. Herrera told Solar that Vordonia had to move or insulate the power lines to enable Respondent to perform the necessary crane work while remaining in compliance with OSHA requirements. (Tr. 442-444, 699, 801). Solar told him that he would handle the matter because he already had to talk with the LIPA to have power brought into the building. (Tr. 699-700).

In July 2012, Jermaine Clarke, a design engineer supervisor connected with LIPA, visited the site. He noted that a crane was located on Brooklyn Avenue close to the Fourth Street side. None of the lines along the site were de-energized and he was concerned because the crane was operating within 10 feet of the power line on Brooklyn Avenue. (Tr. 91-92). As a result, he issued a Cease and Desist Order requiring that the work be stopped until the lines were de-energized. (Tr. 92). Although other unnamed persons were present, Clarke remembered giving the Order only to Solar. (Tr. 109). Clarke also posted stickers and tossed flyers on the site warning of the dangers of working near high voltage lines. (Tr. 93, Ex. C-24). Shortly after the Cease and Desist Order was issued, the Brooklyn Avenue line was de-energized and grounding devices were placed on it. (Tr. 68). The Fourth Street line could not be de-energized because there was no feed coming from the other side to pick up downstream customers. (Tr. 68). Although not explicitly stated in the record, the evidence, as discussed infra, leads to the inference that the crane was soon moved from Brooklyn Avenue to Fourth Street. See generally, Manganas Painting Co., 21 BNA OSHC 1964, 1981 (No. 94-0588, 2007)(citations omitted)(noting “reasonable inferences can be drawn from circumstantial evidence”). However, it is unclear whether the crane was moved prior or subsequent to the lifting of the Cease and Desist Order.

In August 2012, LIPA representative, Guerson Carelus visited the site. He noticed that the crane, now on Fourth Street, was lifting loads over the Fourth Street power line onto the construction site. (Tr. 172). He was concerned that workers’ lives were in jeopardy because of the proximity of the load to the line. (Tr. 172, 176-177). Carelus requested that the work stop. (Tr. 173-174). He gave warning pamphlets in English and Spanish to as many employees as possible. (Tr. 178-180). He spoke with someone identified as a supervisor of the crane company and told him that they had to take down the crane. (Tr. 174). The next day, August 23, 2012, he issued the second Cease and Desist Order. (Tr. 173, Ex. R-2). Carelus delivered the Order to Solar and left the site without talking to anybody else. (Tr. 177-178). According to crane operator, Anthony Ferrara, both he and Superintendent, Manuel Herrera were informed by LIPA that the Fourth Street line was energized and that they had to maintain a safe distance from the line. They were also informed that the Fourth Street line could not be de-energized. (Tr. 445-449). As a result, the crane was moved back to Brooklyn Avenue, where the line was now de-energized. (Tr. 174, 176-177, 194, 319-320).

Later that day, after the crane was moved to Brooklyn Avenue, the Cease and Desist Order was lifted. (Tr. 320, Ex. R-3). The letter removing the Order emphasized that the line between poles #2 and #3 on Brooklyn Avenue had already been de-energized and constituted a safe work zone. (Ex. R-3).

Around this time, Solar had conversations with LIPA involving the Fourth Street line where they discussed the cost of relocation, which was estimated at $70,000. (Tr. 285-288). Solar talked to Respondent about halting construction until the relocation issue was resolved and suggested that they work on the opposite side of the building. (Tr. 290-291). However, he did not explicitly tell them that they couldn’t do any work on the Fourth Street side until the issue with LIPA was resolved. (Tr. 295). Although both the Cease and Desist Order and the Notice to Proceed specifically stated that the lines carried 13 kV, (Exs. R-2, R-3), Solar testified that he didn’t think that anybody understood the danger because they did not know how much current was going through the lines or how close they could get without someone getting hurt. (Tr. 295). However, he knew from common sense not to get too close to the lines. (Tr. 296).

On December 1, 2012, Compliance Safety and Health Officer (CSHO), Brian Calliari and Senior Compliance Officer, Anthony Campose, began the OSHA inspection. (Tr. 343). At that time, Respondent had done some foundation work and steel erection. They were performing masonry block and precast concrete plank installation on the third floor. (Tr. 337, 365, Ex. C-25). The crane on Brooklyn Avenue was lifting the planks over the Brooklyn Avenue line and bringing them within eight feet of the energized Fourth Avenue line before setting them down in the worksite. (Tr. 373-374, Ex. C-26A)

Before conducting the opening conference, CSHO Calliari informed Superintendent/Foreman, Manuel Herrera that the overhead line on Fourth Street constituted an imminent danger to the crane operations and requested that Herrera remove the employees from the hazard. (Tr. 348). After the employees were removed, an opening conference was held. (Tr. 349). Another opening conference was held with Respondent’s owner, James Sal Herrera, and a phone conference was held with Solar. (Tr. 349-350). The CSHO told the Herreras that the planks should not be installed, but staged outside the worksite or installed at another part of the building where they could maintain a safe distance from the line. (Tr. 419-420). James Sal Herrera told the CSHO that he would have to eat the cost of returning the trucks with the planks to the NEP plant and that they could not stage the planks outside of the work area. (T. 420). James Sal Herrrea told him that they would continue to set the planks in other areas of the structure and would not encroach on the energized line. (Tr. 421). The full inspection ensued, which resulted in several of the instant citations. (Tr. 351).

After the OSHA inspectors left the site, and contrary to Herrera’s promise to the CSHO, Respondent continued to install planks along Fourth Street, up to and past the northeast corner where the power line now hung directly over the building. (Tr. 421-423). James Sal Herrera testified that Respondent used a center pick method of lifting the planks, meaning that the rigging came down from the crane boom above the center of the load and secured at both ends of the load. (Tr. 734, Ex. C-25). As the plank installation progressed toward the northeast corner, the crane got progressively closer to the Fourth Street power line. (Tr. 408-410, Ex. C-69). They also continued to build the masonry wall at the northeast corner. (Tr. 422-426, Ex. C-14).

As the masonry wall was erected vertically, it too got closer to the Fourth Street power line. (Tr. 409). At some point after the December 1 inspection, the masonry wall exceeded the height of the Fourth Street line. Because the common pole

shared by the two lines was out of plumb, the line crossed the plane of the wall. Therefore, to continue to build the wall, Respondent created a 5 X 5 inch hole in the wall for the line to pass through. (Tr. 85-86, 95, 222-223, 226, 463-464, Exs. C-14, C-15, C-47). As the line entered the wall, it was covered by an insulation type of material. (Tr. 147, 234-235, 305, Exs. C-15, C-84).

When LIPA design engineer Clarke arrived at the site on December 5, he observed that Respondent built the wall around the primary wire. He was shocked. Clarke testified that he never saw anything like it before and was surprised that nobody was killed. (Tr. 85). Believing that his earlier warnings were ignored, and concerned that, after he left the site, work would resume, Clarke called the police to shut down the site. (Tr. 156, 299). That day, Clarke also issued a third Cease and Desist Order to Solar, requiring that all work activity be stopped “immediately.” (Tr.88-89, Ex. C-13).

LIPA referred the matter to OSHA. (Tr. 156). CSHO Calliari returned to the site on December 6, 2012. (Tr. 422). The CSHO observed that Respondent continued working after his inspection and that the Fourth Street power line passed through the masonry wall. He also observed that Respondent erected an engineered fall protection system along the north and east sides of the third floor. (Tr. 425, 477) He continued his inspection which resulted in the Secretary alleging additional violations.

After December 6, Vordonia paid the $70,000 fee to LIPA and the Fourth Street line was relocated. (Tr. 69, 90, 328)

Before the hearing, the parties agreed to the following “Admitted Stipulated Facts and Issues of Law”:

1. Jurisdiction of this action is conferred upon the Occupational Safety and Health Review Commission by section 10(c) of the Act (the Act).

2. Respondent Masonry Services Inc. dba MSI (MSI), is a corporation organized under the laws of the State of New York and doing business in the State of New York, maintaining a principal office and place of business at 201 Snediker Ave., Brooklyn, NY 11207, is and at all times hereinafter mentioned was engaged in construction.

3. Respondent North Eastern Precast LLC (NEP), a limited liability company organized under the laws of the State of New York and doing business in the State of New York, maintaining a principal office and place of business at 3963 State Highway 5S, Fultonville, NY 12072, is and at all times hereinafter mentioned was engaged in precast concrete manufacturing and installation.

4. Respondents MSI and NEP did and do act as a single employer for purposes of the OSH Act, and are deemed a single employer in this matter, subject to a single set of citations and proposed penalties, such that each citation item that was issued to NEP in this matter is consolidated with the analogous citation item that was issued to MSI in this matter, with the resulting consolidated items being against Masonry Services Inc. dba MSI/North Eastern Precast LLC, a single employer (MSI/NEP), and with the resulting proposed penalty for each consolidated citation item consisting of the penalty originally proposed against MSI. Respondent was the employer of the employees who were allegedly exposed to the hazards alleged in the citations issued to MSI and NEP.

5. Many of the materials and supplies used and/or manufactured by MSI/NEP originated and/or were shipped from outside the State of New York and MSI/NEP was and is engaged in a business affecting commerce within the meaning of sections 3(3) and 3(5) of the Act and is an employer within the meaning of section 3(5) of the Act.

9. MSI executed a contract in 2012 with Vordonia Contracting & Supplies Corp. (Vordonia) for work to be performed by Respondent at a worksite located at 14 Brooklyn Avenue in Valley Stream, NY (the Worksite).

11. Patricio Solar was Vodonia’s primary representative at the Worksite with whom MSI/NEP communicated regularly about the Worksite.

12. Prior to commencing work, James Sal Herrera asked Patricio Solar about the status of the power lines on the worksite.

13. MSI/NEP coordinated with Patricio Solar regarding work performed at the Worksite. MSI/NEP advised Mr. Solar about the schedule of work, including the delivery of concrete floor planks.

14. Individuals who supervised employees of MSI/NEP at the Worksite in 2012 included James Sal Herrera and Manuel Jesus Herrera.

15. Individuals who provided personal protective equipment to employees of MSI/NEP at the Worksite in 2012 included James Sal Herrera and Manuel Jesus Herrera.

16. In or around September 2012, the power line located on the Brooklyn Avenue side of the worksite was de-energized.

17. Respondent performed work at the Worksite on, among other dates, December 1 and 5, 2012.

18. Respondent used a Liebherr LTM 1220-5.2 mobile crane at the Worksite in 2012.

19. Respondent possessed a copy of the operating manual/instructions for the Liebherr LTM 1220-5.2 mobile crane.

20. On Saturday, December 1, 2012, Respondent used a Liebherr LTM 1220-5.2 mobile crane to hoist and set precast concrete floor planks on the Worksite.

21. On Saturday, December 1, 2012, Respondent had employees engaged in precast concrete erection at the Worksite.

22. Respondent operated a JLG Lull Model 1044C-54 powered industrial truck at the Worksite in 2012.

23. Respondent possessed a copy of the operator manual for the JLG Lull Model 1044C-54 powered industrial truck.

24. On April 23, 2010, MSI executed an Informal Settlement Agreement with OSHA to resolve an OSHA citation that had been issued to MSI as a result of OSHA inspection number 314087883.

25. Citation 1, Item 4 of the OSHA citation that was issued to MSI as a result of OSHA inspection number 314087883 alleged a violation of 29 CFR 1926.701(b).

To demonstrate a prima facie violation of an OSHA standard, the Secretary must prove that: (1) the standard applies to the facts; (2) the employer failed to comply with the terms of that standard; (3) employees had access to the hazard covered by the standard, and (4) the employer had actual or constructive knowledge of the violation (i.e. the employer knew, or with the exercise of reasonable diligence could have known, of the violative condition). D.A. Collins Const. Co., Inc. v. Secretary of Labor, 117 F.3d 691, 694 (2d Cir. 1997); Atl. Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994). Knowledge or constructive knowledge may be imputed to an employer through a supervisory agent. N.Y. State Elec. & Gas Corp v. Secretary of Labor, 88 F.3d 98,105 (2d Cir. 1996).

Although the citations issued separately to MSI and NEP essentially allege violations of the same standards, there are a few differences. Besides some minor numbering differences, the repeat violation issued to MSI is cited as other-than-serious to NEP. As agreed to by the parties, the repeated charge will be retained as the allegation against the combined entity. For convenience, the following chart summarizes the items issued against each party, and the resultant merged consolidated citations that are addressed in this decision:

At the hearing and in their briefs, the parties primarily focused on the willful allegations in Citation 2. Because that citation constitutes the heart of this case, and the allegations therein are relevant to several other lesser charges, it is discussed first.

The citation alleges that, from December 3 to December 5, 2012, at various locations around the worksite, employees of Respondent were working as close as four inches to the energized power line that ran along Fourth Street, carrying 13 kV of electricity, phase to phase.

(a) Protection of employees. (1) No employer shall permit an employee to work in such proximity to any part of an electric power circuit that the employee could contact the electric power circuit in the course of work, unless the employee is protected against electric shock by de-energizing the circuit and grounding it or by guarding it effectively by insulation or other means.

There is no dispute that Respondent was engaged in construction work. (Ex. J-1, ¶ 2). The evidence also establishes that the Fourth Street power line running along the construction site was energized. Accordingly, the standard applies.

Regarding instance (a), the CSHO testified that employees, who installed the engineered fall protection system on the third floor, came within three feet of the line. (Tr. 477). That distance assumed that the height of an average employee was only five feet. Manuel Herrera told the CSHO that the height of the third floor was eight feet. Therefore, the CSHO estimated that, a five foot tall employee would be approximately three feet below the power line when installing the engineered fall protection system. (Tr. 477-478). According to the CSHO, an employee more than five feet tall would have been even closer to the line. (Tr. 478).

In instances (b) and (c), based on descriptions given to him by Manuel Herrera, the CSHO estimated that employees constructing the masonry block wall on the north and east side of the building on December 4, worked approximately 12 inches below the inner-most power line on the Fourth Street Circuit. (Tr. 478-479, Ex. C-14). When work continued on December 5, at the northeast corner of the third floor, employees constructing the masonry block wall worked between the inner-most and the middle overhead power line on the Fourth Street circuit. (Tr. 479). Based on information provided by Manuel Herrera, the physical dimensions of the concrete masonry units, and physical measurements obtained from LIPA, the CSHO estimated that employees worked approximately four inches from the primary power line and 14 inches from the secondary power line. (Tr. 480).

In instance (d), the evidence demonstrates that, when the CSHO returned to the worksite on Dec. 5, at the north side of the third floor, the wall was actually built around the Fourth Street power line and that a sleeve had been placed over that portion of the line entering the wall. (Exs. C-15, C-84). The CSHO testified that, when building the wall, employees had a phase to phase exposure because they were working between the inner-most and the middle overhead power lines on the Fourth Street circuit. (Tr. 479). Based on information provided by Respondent and line measurements by LIPA, the CSHO estimated that to, to have built the wall in this fashion, employees came within four inches of the primary line and approximately 14 inches from the secondary power line. (Tr. 479-480). The CSHO also estimated that, to actually capture the line in the wall on December 5, employees had to come within four inches of the lines. (Tr. 480-481). James Sal Herrera admitted that it was likely that the masonry wall was built by his employees. (Tr. 784). Also, whoever installed the sleeve on the line had to do so with their hands. (Tr. 305).

The evidence establishes that Respondent violated the standard as alleged and that its employees were exposed to the hazard posed by the energized Fourth Street power line.

The Secretary alleges and the evidence demonstrates that Respondent knew of the violation and that the violation was willful.

A willful violation is one “committed with intentional, knowing or voluntary disregard for the requirements of the Act or with plain indifference to employee safety. A. Schonbek & Co., v. Donovan, 646, F.2d 799, 800 (2d Cir. 1981); Valdak Corp., 17 BNA OSHC 1135, 1136 (No. 93-239, 1995), aff’d, 73 F.3d 1466 (8th Cir. 1996) Williams Enterp. Inc., 13 BNA OSHC 1249, 1256 (No. 85-355, 1987); Asbestos Textile Co., 12 BNA OSHC 1062, 1063 (No. 79-3831, 1984). 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 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. Williams Enterp, Inc., 13 BNA OSHC at 1257.

Willfulness is negated by evidence that the employer had a good faith opinion that the conditions in its workplace conformed to OSHA requirements. E.g., Calang Corp., 14 BNA OSHC 1789, 1791 (No. 85-319, 1990). The test of good faith is an objective one, i.e., whether the employer’s belief concerning the factual matters in question was reasonable under all of the circumstances. In other words, the employer’s belief must have been “non-frivolous.” Morrison-Knudson, 16 BNA OSHC , 1105, 1127 (No. 88-572, 1993); See Secretary v. Union Oil, 869 F.2d 1039, 1047 (7th Cir. 1989).

After the December 1 inspection, Respondent had notice that the Fourth Avenue line was energized. The CSHO told James Sal Herrera that the line posed a hazard and elicited a promise from Herrera that Respondent would avoid the line. (Tr. 419-421). Given the clear warnings given to him by the CSHO, I find James Sal Herrera’s assertion that, before December 5, he did not know that the Fourth Street line was not de-energized to be self-serving and not credible. (Tr. 780). James Sal Herrera asserted that he did not know that the wall was built and that, had he known what his employees were doing, he would have stopped it. (Tr. 785). However, Respondent’s superintendent and supervisor, Manuel Herrera was on the site and had authority to stop the work. (Tr. 786). Additionally, there were several foremen at the site. (Tr. 786).

During the December 1 OSHA inspection, Manuel Herrera was clearly informed by the CSHO that the Fourth Street line was energized. He knew from his OSHA course work that no work should be performed within ten feet of energized power line. (Tr. 433). After asserting that he did not know whether the line was energized, he stated that “[t]here was no sign there, so I can work there” in a signed statement given to the CSHO. He noted that LIPA drove by, but did not stop to tell them that the line was energized. He then stated that “[i]f nobody tells me it’s energized, I will go there to work.” (Tr. 433). He continued: “[I]f I look at wires and I don’t know what is, I don’t care. If I know it is live, I stay ten feet away. If I don’t know if it is live or not, I can go near it.” (Tr. 433-444).

The CSHOs presented multiple options to the Herreras that would have enabled Respondent to continue its work until the problems with the Fourth Street line were resolved. (Tr. 419). They were told by the CSHOs that they could stage the planks at another area of the building, or continue setting planks in other areas of the building where they would not get closer than 20 feet from the line. (Tr. 419). James Sal Herrera told the CSHOs that he could not return the trucks with the planks back to the upstate NEP plant because there was no money and he would have to eat the cost. (Tr. 420). He further indicated that they couldn’t stage the precast planks outside of the designated work area. Id. However, Herrera assured the CSHOs that they would set planks in safe areas without encroaching within 20 feet of the energized line. (Tr. 421). Despite these warnings, and contrary to James Sal Herrera’s assurances, Respondent continued work in areas where employees were required to come literally within inches of the energized line. Indeed, both Manuel Herrera and crane operator Anthony Ferrara, Jr., told the CSHO that Respondent resumed its work immediately after the CSHOs left the site. (Tr. 422, 649-651).

As the work continued, the crew came progressively closer to the line. (Tr. 409). Yet, James Sal Herrera testified that he never discussed with his foreman that the work was progressing to a point where they would have interference from the Fourth Street power line. (Tr. 790). When asked why he did not have such conversations, Herrera explained that “I could give you a litany of excuses, just poor planning on our part.” (Tr. 791). When considered with the other evidence, what Herrera deemed “poor planning” looks more like a genuine lack of care.

Particularly reckless was Respondent’s building of the masonry wall enclosing the power line. When Clarke saw the power line passing through the hole in the wall he was shocked. Further, he stated that he had never seen anything like it before and wondered how it was possible to do something like that without anyone getting hurt or killed. (Tr. 85). LIPA representative Robert Braccia, who visited the worksite several times, stated that he had “never seen anything so horrendous in my [sic] life.” (Tr. 222)

Because Respondent continued to defy the warnings about the danger of the power line, as manifested by two earlier Cease and Desist Notices, Clarke found it necessary to not only issue a third Cease and Desist Notice for the jobsite, but to also contact the local police and the township to ensure that Respondent ceased its hazardous activities.(Tr. 156). As previously noted, where the employer claims it did not know of the standard, its reckless disregard for employee safety can establish that even if actually informed of the hazardous condition, it would not care. Williams Enterp. Inc., 13 BNA OSHC at 1257. Here, Respondent not only knew of the standard, it was also unambiguously informed that it was in violation and that its employees were exposed to a potentially fatal hazard. However, the evidence reveals that it did not care.

Respondent asserts that the violation was not willful because, rather than setting forth specific minimum distances that must be maintained from a power line, the standard requires only that employees not be allowed to work “in such proximity to any part of an electric power circuit that the employee could contact the electric power circuit.” This failure of the standard to delineate “close proximity” required it to exercise judgment. Respondent also asserts that, although the Secretary claimed that the insulation material around the power line was not sufficient to insulate it, the material was never tested. Moreover, the voltage of the line was not established. (Resp’ts Post Hr’g Br. at 8).

These arguments are without merit. The evidence establishes that employees worked literally inches from the Fourth Street power line. While there may be legitimate judgmental differences regarding what constitutes an impermissible “proximity” to a power line, allowing employees to come within inches of the line clearly does not constitute a reasonable exercise of that judgment. Morrison-Knudson, 16 BNA OSHC at 1127. In any event, Respondent was warned by the CSHO about the proximity of the crane to the lines and, after assuring him that they would maintain an adequate clearance, resumed the hazardous activity as soon as the CSHO left the site. Similarly, while the insulation material around the wire was never tested, the testimony of both the CSHO and LIPA representative Robert Braccia established that it was not a material that was capable of providing any effective insulation of the line. (Tr. 234-235, 454). Moreover, regardless of the insulation qualities of the wire cover, employees still had to virtually touch the wire to install it. Finally, Respondent’s assertion that the voltage of the line was not tested is frivolous. Representatives from LIPA, which owns the lines, testified that the wires were energized and carried 7,620 volts in each line or a combined 13.2 kV. (Tr. 79).

Accordingly, I find that the evidence establishes that Respondent willfully violated the cited standard as alleged.

Section 17(j) of the Act, 29 U.S.C. § 666(j), requires that in assessing penalties, the Commission give "due consideration" to four criteria: the size of the employer's business, the gravity of the violation, the employer's good faith, and its prior history of violations. Specialists of the S., Inc., 14 BNA OSHC 1910 (No. 89-2241, 1990). These factors are not necessarily accorded equal weight. Generally speaking, the gravity of a violation is the primary element in the penalty assessment. J. A. Jones Constr. Co., 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993).

The gravity of a particular violation depends upon such matters as the number of employees exposed, the duration of the exposure, the precautions taken against injury, and the likelihood that any injury would result. Id at 2214.

The maximum statutory penalty for a willful violation is $70,000. Section 17(a) of the Act; 29 U.S.C. §666(a). Based on the factors set forth in Section 17(j) of the Act, the Secretary proposed a penalty of $61,600

The CSHO testified that gravity is composed of two parameters: severity and probability. (Tr. 481). Here, the severity was rated as high because, with voltages of 7,620 volts per line or 13.2 kV phase to phase, death or serious physical injury was likely to result in the event of an accident. (Tr. 481-482). Taking into account the number of employees exposed, and the frequency of exposure, the probability of an incident was rated as “greater.” (Tr. 482). The CSHO testified that the resulting gravity was high, resulting in a gravity-based penalty of $70,000. (Tr. 482).

With 51 employees for MSI was a small employer and Respondent was given a 20% reduction for size. (Tr. 483-484). However, the penalty was increased 10% because it had a substantial prior history of OSHA violations. (Tr. 483). Since 2000, Respondent has been inspected 28 times and issued 96 citations, including multiple serious and repeat violations that were either affirmed through settlements or informal settlement conferences. (Tr. 486-487). Finally, no credit was given for good faith because the inspection resulted in citations for willful, serious and repeat violations. (Tr. 485).

Respondent argues that the proposed penalties are excessive and would cripple it. It also contends that other willful cases involving similar hazards resulted in lesser penalties. I am not persuaded. Respondent has introduced no financial statements to support its contention that the proposed penalties would result in financial distress. In any event, financial hardship imposed upon Respondent is not a statutory criterion for determining the appropriateness of a penalty. Finally, each case stands on its own and involves its own unique facts and circumstances. Other cases that resulted in lower penalties are not before this Court. I find that the facts and circumstances before this Court justify the penalty proposed by the Secretary.

The citation alleges that on or about December 1, 2012, employees hoisted and set precast concrete floor planks with a mobile crane. The rigging came within 8 feet of the overhead primary and secondary power lines which carried 13 kV phase to phase.

(2) Determine if any part of the equipment, load line or load (including rigging and lifting accessories), if operated up to the equipment’s maximum working radius in the work zone, could get closer than 20 feet to a power line. If so, the employer must meet the requirements in Option (1), Option (2), or Option (3) of this section as follows:

(i) Option (1)-De-energize and ground. Confirm from the utility owner/operator that the power line has been de-energized and visibly grounded at the worksite.

(ii) Option (2)-20 foot clearance. Ensure that no part of the equipment, load line, or load (including rigging and lifting accessories), gets closer than 20 feet to the power line by implementing the measures specified in paragraph (b) of this section.

(Note: Under table A the clearance for lines up to 50 kV is 10 feet. The CSHO explained that Option (2) would apply where the employer does not know the voltage of the power line. (Tr. 490)).

The evidence establishes that Respondent, who was engaged in construction work, operated a crane in proximity to the energized overhead power line on Fourth Street. The standard applies.

As previously noted, when the CSHO went to the worksite on December 1, he found that the overhead line on Fourth Street constituted an imminent danger and requested that Manuel Herrera remove the employees from the hazard. (Tr. 348). Employees were actively engaged in setting precast concrete planks. The planks were rigged to a large hydraulic mobile truck crane with a 240 foot boom, hoisted over the Brooklyn Avenue circuit, near the Fourth Street power line, and placed along the east side of the structure along Fourth Street. (Tr. 365, 370). The Fourth Street line could not be de-energized because LIPA was unable to reroute service to its downstream customers. (Tr. 206). Therefore, at a minimum, Respondent was obligated to adhere to option (3) and maintain a minimum ten foot distance between the crane and the power line.

Clarke explained that, because the Fourth Street line came so close to the building, it was not possible to maintain a ten foot clearance. (Tr. 67). Where the planks were being installed near Fourth Street Pole #1, the CSHO observed crane equipment operating less than ten feet from the power line. (Tr. 370-371, Exs. C-25, C-46). At that location, the horizontal distance from the innermost power line to the face of the building was approximately 4 feet 9 inches. (Tr. 464, Exs. C-46, C-47 at 3). Where the planks were being installed near the middle of Brooklyn Pole #3

the pole was hanging over the building because it was out of plumb and leaning toward the building. (Tr. 364-365, 408-410, Exs. C-26A, C-46 at 2, C-47 at 1, C-69). Therefore, employees could not work on the Fourth Street side of the building without creating a proximity hazard. (Tr. 70). He testified that the power line posed a proximity hazard to the individual wire rope slings supporting the plank, the wire rope spreader assembly, and the planks themselves. (Tr. 373-374, 379-380, 386, Exs. C-25, C-61, C-66). The CSHO estimated that the planks and rigging came within eight feet of the load. (Tr. 374, 492-494, Ex. C-61). In some instances the rigging came even closer. (Tr. 492-494, Exs. C-21, C-60).

The planks themselves were conductive because they contained metal reinforcing material and could retain moisture. (Tr. 374, 381). Respondent asserts that the planks did not present a hazard because they were cast using a “zero slump mix”

which minimizes the moisture in the planks. (Tr. 707). However, the CSHO testified that, in his experience, concrete created by a zero slump mix still has moisture. (Tr. 617-618). I find that the evidence establishes that the planks contained moisture. Even accepting Respondent’s assertion, “minimizing” moisture is not the same as “eliminating” moisture.

Employees who were guiding and setting the planks were touching the load and could have been electrocuted if any part of the crane made contact with the power line. (Tr. 379-382, 385, Ex. C-38). The CSHO further explained that the proximity of the rigging and the planks to the power line risked the entire crane superstructure becoming energized. This could have electrocuted employees located in or around the base of the crane at street level. (Tr. 373-374, 380-381). Even without actual contact, the proximity of the crane and its components could have allowed it to enter the electric field created by the line, causing an arc flash which could have resulted in electrocution. (Tr. 53-54, 225). The record establishes the violation.

The Secretary asserts, and the evidence establishes that the violation was willful.

The evidence demonstrates that, from the beginning of the project, Respondent was fully aware that the Fourth Street line posed a proximity hazard. Similarly, Respondent superintendent Manuel Herrera told OSHA that he learned in OSHA classes that a crane must maintain a ten foot distance from energized power lines. (Tr. 433). The crane’s operating manual, which warned about the hazard of operating cranes near power lines and the minimum distance requirements, was used by Respondent at the worksite. (Tr. 454-457, Ex. J-1 at ¶¶ 18-20, Ex. C-40 at pp. 13-14).

James Sal Herrera and MSI Vice President, Jaime T. Herrera, were aware of the OSHA rule that crane equipment cannot come near a power line. (Tr. 799-800, Ex. J-2 at 6-7, 11-13). At the pre-job meeting, James Sal Herrera told Solar that both the Fourth Street and Brooklyn Avenue power lines would pose a problem as the building went vertical because they were less than ten feet from the worksite, and that they had to be moved or insulated to perform the crane work. (Tr. 699, 801). In a statement given to the CSHO, James Sal Herrera stated that “I knew power lines on Fourth Street and Brooklyn Avenue were less than ten feet and told Patricio [Solar] in late summer 2012 meeting.” (Tr. 444) He further stated that he told Solar that Vordonia “would have to relocate/insulate the power lines.” (Tr. 442-443, 801). However, LIPA’s July Cease and Desist Order

gave Respondent unambiguous notice that none of the lines had been de-energized. Respondent asserts that it assumed that Solar would take care of the problem. Any assumption that the Fourth Street line was de-energized was fully dispelled in August when the second cease and desist notice was issued.

The August Cease and Desist Order not only provided notice to Respondent that the Fourth Street line remained energized, it also put it on notice that it was encroaching into the safety zone of the lines. Furthermore, Guerson Carelus testified that on August 23rd, he talked with the employees and a supervisor and told them that they were working too close to the wires. (Tr. 174-177, 446-447). When the supervisor insisted that he was told by Solar that it was okay to work where they were, Carelus told them that the situation was dangerous and people could die. (Tr. 177). Carelus informed him that they could work on Brooklyn Avenue, because it was de-energized. (Tr. 177).

According to Solar, between August and December, Respondent made repeated inquiries about LIPA moving the Fourth Street line. (Tr. 320-321). On several occasions, as construction neared the Fourth Street power line, Respondent told him that if the line was not moved, they would have to pack up and leave until it was time to come back. (Tr. 294-295). Solar suggested to them that they work on the side of the building away from Fourth Street. (Tr. 290-291). Yet, despite the Cease and Desist Orders and its own concerns, and despite its expressed awareness that they were operating in violation of the ten foot clearance rule, MEP/NEP continued to work on the Fourth Street side of the site in plain indifference to employee safety.

Respondent makes several arguments that the violation was not willful. First, it claims that James Sal Herrera thought that the overhead wires were phone lines, not power lines. It asserts that 90% of its work was in New York City where the power lines are buried underground and, therefore, he was not familiar with overhead power lines. This excuse challenges credulity. As noted, it was James Sal Herrera who brought the hazard of the power lines to the attention of Patricio Solar at the pre-job meeting. He told Solar that the lines had to be either moved or insulated, which clearly establishes that he knew that they were power lines. This evidence clearly demonstrates that if Herrera had any misunderstanding about the nature of the lines encroaching on the worksite, they were dispelled during this pre-job meeting. Herrera was further warned by the August Cease and Desist Order that the Fourth Street power line was energized.

Respondent next asserts that it relied on Solar’s assurance that he would resolve the problem of the lines with LIPA. However, the August Cease and Desist Order from LIPA unmistakably informed Respondent that, while the Brooklyn Avenue line was de-energized, the Fourth Street line remained a problem. James Sal Herrera claimed that he saw the red jumpers on the common pole and assumed it meant that the Fourth Street line was de-energized. (Tr. 716, 807). However, those jumpers were on the pole shortly after the July Cease and Desist Order was issued. The August Cease and Desist Order was issued because the Fourth Street line remained energized. Respondent offers no explanation why the August Cease and Desist Order did not put them on notice that the Fourth Street line remained energized. Rather, Respondent asserts that it just assumed, but never specifically inquired whether the Fourth Street line was de-energized. Indeed, Herrera’s claim that he was so lacking experience with overhead lines that he could not tell the difference between phone lines and power lines must be weighed against his decision to assume, but not confirm, that the Fourth Avenue line was de-energized. If Herrera could not tell the difference between power lines and phone lines, he would not have been able to tell which circuit the red jumpers indicated was de-energized. His failure to ascertain the status of the lines while continuing to expose his employees to the hazard of electrocution constituted nothing less than a plain indifference to employee safety.

Respondent asserts that when hurricane Sandy struck in late October 2012, the power was knocked out of the area. (Tr. 229-230, 242). It suggests that it did not know that power had been restored and believed that the power remained out on the Fourth Street line. This argument is without merit. Power was restored to all of Long Island by the end of November. (Tr. 243). There is nothing in the record to suggest that Respondent ever inquired whether the power remained out. Yet, knowing that if power was restored, it was exposing its employees to the hazard of electrocution, it continued working. Again, this demonstrates plain indifference to employee safety.

Respondent’s lack of regard for employee safety was further underscored by its conduct after the inspection. During the inspection, the CSHO unambiguously warned Respondent of the hazard posed by the Fourth Street line. The CSHO deemed the situation an imminent hazard and had Respondent remove its employees from the zone of danger. Respondent promised him that work on the Fourth Street side of the site would not continue until the hazard was abated. Yet, once the CSHO left the site, Respondent proceeded to completely ignore the warning and its own promise and, with reckless disregard to the safety of its employees, resumed work on the Fourth Street side. One of the tests for willfulness is whether the employer was actually aware that the act was unlawful, or that it possessed a state of mind such that if it were informed of the standard, it would not care. Propellex Corp., 18 BNA OSHC 1677, 1684 (No. 96-0265, 1999). Here, Respondent was informed of the standard and the hazard to which it was exposing its employees, however, its actions demonstrated that it simply did not care.

The evidence leads to only one conclusion, that Respondent was plainly indifferent to employee safety and that the violation was willful.

As with Citation 2, item 1, the Secretary proposed a penalty of $61,600 for Citation 2, item 2. The CSHO testified that the severity of the violation was high because death or serious injury could occur as a result of the hazard. The probability was deemed to be greater because of the number of employees exposed and the repetitive nature in which exposure occurred. (Tr. 495-496). As a result, the gravity-based penalty was $70,000. (Tr. 496). The CSHO further testified that, as with Citation 2, item 1, a 20% adjustment was made for Respondent’s size, a 10% increase was made for Respondent’s substantial OSHA history, and no deduction was given for good faith. (Tr. 496-497).

I find that the Secretary properly considered the gravity of the violation to be high, and that he properly considered the statutory factors when arriving at his proposed penalty. Accordingly, a $61,600 penalty is assessed.

Citation 1, item 1 alleges that Respondent committed a serious violation of 29 CFR §1926.100(a) on the grounds that at the east side of the building, on the third floor:

Employees setting precast concrete planks were working near and directly below the suspended load without helmets, on or about December 1, 2012.

(a)Employees working in areas where there is a possible danger of head injury from impact, or from falling or flying objects, or from electrical shock and burns, shall be protected by protective helmets.

Respondent was engaged in the construction of a multi-level building using, among other things, a crane to hoist materials. Therefore, the standard applies.

The CSHO testified that, on December 1, 2012, employees engaged in precast concrete construction, were hoisting precast concrete planks with a crane and working near and directly below the suspended load, without protective helmets. (Tr. 380, 500, Exs. C-38, C-64). The condition was visible from street level and Respondent’s supervisor, Manuel Herrera was present at the site. (Tr. 501).

Also, on December 6, the CSHO witnessed and photographed an employee on a truck, working below the booms during a tandem powered electrical truck lift where employees were loading counterweights onto a flatbed truck. (Tr. 501-503, 506, Exs. C-85, C-86). This condition occurred in front of the worksite, close to the Brooklyn Avenue/Rockaway intersection, along Brooklyn Avenue. (Tr. 502). As with the previous instance, Supervisor, Michael Herrera was present when the CSHO observed the violations. (Tr. 508). The conditions exposed the employees to being struck in the head by the planks. (Tr. 380). I find that the preponderance of the evidence establishes that the standard was violated as alleged.

That the violation was committed in full view of Supervisor, Manuel Herrera, establishes that, with reasonable diligence, Respondent knew or could have known of the violative conditions.

Respondent asserts that the violation was the result of employee misconduct. It points out that James Sal Herrera testified that all employees are provided with and required to wear protective head gear. (Tr. 747). In most cases, to establish the affirmative defense of “unpreventable employee misconduct,” the employer must rebut the Secretary’s showing of knowledge by proving that: (1) it has established work rules designed to prevent the violation, (2) it has adequately communicated these rules to its employees, (3) it has taken steps to discover violations, and (4) it has effectively enforced the rules when violations are discovered. E.g., D.A. Collins Const. Co., v. Secretary of Labor, 117 F.3d at 695; Rawson Contractors, Inc., 20 BNA OSHC 1078, 1081 (No. 99-0018, 2003); Precast Servs., Inc., 17 BNA OSHC 1454, 1455, (No. 93-2971, 1995), aff'd without published opinion, sub nom Precast Servs. v. Reich, 106 F.3d 401 (6th Cir. 1997). However, this case arose in and is appealable to the Second Circuit. In N.Y. State Elec. & Gas Corp. v. Secretary of Labor, 88 F.3d at 108, the Second Circuit held that, where the sufficiency of an employer’s safety program is at issue, the burden is on the Secretary to establish that the program was not adequate. I find that the Secretary met that burden.

The evidence establishes that protective hard hats were provided to employees and that Respondent had a rule requiring them to be worn. (Tr. 451, 613). Respondent asserts that employees gave statements to the CSHO that they are required to wear hard hats. Although employee statements were marked for identification, they were not admitted into evidence. Rather, portions of their statements were read into the record

. (Tr. 585-586). None of those portions related to protective headgear. Although the Secretary did not introduce these statements into evidence, nothing prevented Respondent from doing so, if it believed that it contained exculpatory information. Moreover, in its brief, Respondent does not cite to any part of the statements, either read into the record or not, that would support its assertion. A review of the record does reveal that, during cross-examination of the CSHO, a portion of the statement of Quacy Jones was read into the record, where the employee stated that “Sal Herrera would make sure everyone had their hard hats.” (Tr. 451, 613). However, mere words does not a safety program make.

The evidence establishes that James Sal Herrera was not always on the site. (Tr. 783-786). In his absence, his brother Manuel Herrera had supervisory authority. (Tr. 786). The violative conditions occurred in full view of Manuel Herrera. That employees felt free to violate the rule in front of their supervisor demonstrate that the rules were not actively enforced. See Falcon Steel Co., 16 BNA OSHC 1179, 1194 (No. 89-2883, 1993)(consolidated). There is no evidence to suggest that Respondent was enforcing its work rule. I find that the evidence adduced by the Secretary, and Respondent’s failure to rebut that evidence by demonstrating that it took measures to enforce the work rule, establishes the inadequacy of its safety program. See D.A. Collins Constr. Co., 117 F.3d at 695-696.

The CSHO testified that death or serious physical harm would have likely occurred had an employee been struck in the head by a plank. (Tr. 509). The violation was properly characterized as serious.

The Secretary proposed a penalty of $6,160. The CSHO testified that both the severity of the violation and the probability of an accident were high. According to the CSHO the probability of an accident was “greater” because there were multiple employees repetitively and repeatedly exposed to the hazard. (Tr. 509). The Secretary arrived at an unadjusted gravity-based penalty of $7,000. (Tr. 509). The same penalty adjustments considered for the willful violations were considered here. (Tr. 510). I find that the proposed penalty properly considers the statutory factors and that the $6,160 proposed penalty is appropriate.

Citation 1, item 2 alleges that Respondent committed a serious violation of 29 CFR §1926.251(a)(2)(iii) on the grounds that the loads did not have permanently affixed markings indicating the safe working loads at the following locations:

a) on or about December 1, 2012, on Brooklyn Avenue and the east side of the third floor-the wire rope slings used to hoist precast concrete floor planks;

(b) on or about December 1, 2012, on Brooklyn Avenue and the east side of the third floor, the two legged wire rope spreader assembly used between the crane hook and the wire rope slings on the load being hoisted; and

(c) on or about December 6, 2012, by Brooklyn Avenue, the endless wire rope sling used to load the crane counterweights, which weighed 10 tons (20,000 pounds).

(iii) Not be used without affixed, legible identification markings, required by paragraph (a)(2)(i) of this section

Respondent is a construction contractor and was using rigging equipment for material handling. Therefore, the standard applies.

According to the CSHO, it is important for the identification tags to be affixed to the equipment because they indicate the types and manner of hitches that could be used. They also indicate the angles and safe working loads that are permitted for that particular piece of equipment. (Tr. 513).

The CSHO testified that, in instance (a) and (b), employees were actively engaged in hoisting precast planks with a crane. Instance (a) refers to the individual wire rope slings located at each end of the precast planks, used to hoist the planks. Some of the slings were missing tags. (Exs. C-65, C-89). One tag was illegible and the CSHO was unable to read the diameter or safe working loads. (Tr. 514-516). The evidence also establishes that there was no tag on the wire rope spread assembly as alleged in instance (b). (Tr. 515, Ex. C-65).

Regarding instance (c), Ex. 90 shows an endless wire rope sling that was one of the two slings used to hoist the crane counterweight onto the back of a flatbed truck along the front of Brooklyn Avenue. (Tr. 517-518). The sling did not have a tag affixed to it to indicate the safe working load or diameters. (Tr. 518). Respondent does not specifically address this item in its post-hearing brief. However, at the hearing, James Sal Herrera testified that all the rigging it purchased had two tags affixed one on each end of the cable. He speculated that the tags might have fallen off. (Tr. 771). Respondent adduced no evidence to indicate that it had a program requiring that the tags be regularly checked for the presence and legibility. To the contrary, the number of tags missing, together with the lack of legibility of another tag demonstrates that Respondent had no program for regularly checking the tags. Therefore, the record establishes that Respondent knew, or with the exercise of reasonable diligence could have known of the violative condition.

The CSHO testified that the failure to have legible tags affixed to the gear exposed riggers, signalmen, and laborers engaged in setting the precast planks to a hazard. (Tr. 518). As to items (a) and (b), he explained that riggers would rig the planks singly or sometimes double on the backs of the trucks. Once the slings were placed underneath each end of the plank, it was connected to the wire rope spread assembly that was attached to the main load line of the crane. Employees would stand, holding the wire rope sling in position until the crane could obtain sufficient tension to enable them to let go without the sling moving to the center or coming off the end. Once the wire sling attained proper retention, the crane operator would begin to hoist it. The riggers would climb down off the trucks while the load was simultaneously hoisted to an elevation sufficient to clear the primary circuit on the Brooklyn Avenue side of the site. This exposed them to the hazard of being struck in the event that the chocker they used failed because they were unknowledgeable about the safe working load. (Tr. 517-520). Laborers and signalmen were exposed to the same hazard as the load was being lowered. (Tr. 520).

In instance (c), the employee on the back of the flatbed truck was exposed because he was positioning the counterweight. (Tr. 520). Without the tags, none of the employees at the work site knew the safe working load or the manner in which the sling could be used to properly rig those counterweights during the lift operation. (Tr. 521).

The evidence establishes that a sling failure could have resulted in an employee being crushed to death. (Tr. 521). Therefore, the violation was properly characterized as serious.

The Secretary proposed a penalty of $6,160 for this violation. The CSHO testified that the probability of an accident was “greater” because of the number of employees exposed. Employees were exposed throughout the course of their work and the repetitive nature of the activity. (Tr. 521-522). As a result, the Secretary arrived at a gravity based penalty of $7,000. According to the CSHO, the Secretary applied the same adjustments for history, good faith and size made in the previous items in arriving at an adjusted proposed penalty of $6160. I find that the Secretary properly applied the statutory factors when arriving at the proposed penalty. Therefore, the proposed penalty of $6,160 is assessed.

Citation 1, item 3 alleges a serious violation of 29 CFR §1926.251(c)(9) on the grounds that, on or about December 1, 2012, by Brooklyn Avenue, on the east side of the third floor, the “wire rope slings used to hoist the precast concrete planks, weighing up to approximately 11,000 pounds, were not protected from the sharp edges of the precast concrete floor planks”.

The evidence establishes that Respondent is engaged in construction work and was using slings to lift loads. The standard applies.

The padding prevents the rigging from being damaged. Nylon slings can fray or tear; the outer jackets of component slings can tear and expose the internal core. Individual strands or entire cores from wire rope slings can suffer abrasion. (Tr. 523).

The CSHO testified that on December 1, 2012, Respondent used wire rope slings to hoist precast planks. The evidence establishes that the planks had sharp edges, but were not padded or protected. (Tr. 523, Ex. C-36). As in Citation 1, item 2, employees exposed included riggers, laborers and signalmen engaged in hoisting the planks. (Tr. 524-525). Respondent’s supervisor, Manuel Herrera, was present during the crane work. (Tr. 525). Therefore, Respondent knew, or with the exercise of reasonable diligence could have known of the violative condition. Respondent does not address the merits of this item in its brief. I find that the preponderance of the evidence establishes that Respondent violated the standard as alleged.

The Secretary proposed a penalty of $4,400. The CSHO testified that the severity of the violation was high because a sling failure could result in death or serious injury. (Tr. 525). Therefore, the violation was properly characterized as serious. The probability of an accident was rated as lesser, resulting in a gravity-based penalty of $5,000. (Tr. 526). To that penalty, the Secretary made the same percentage adjustments as in the earlier discussed violations. I find that the Secretary properly considered the statutory factors when proposing the penalty. The proposed penalty of $4,400 is assessed.

Citation 1, item 4 alleges that Respondent seriously violated 29 CFR §1926.416(a)(3) on the grounds that at times prior to and including December 21, 2012, on the north and east sides of the building on the second and third floors:

Signs were not posted identifying the locations of the overhead primary and secondary power lines that were in close proximity to the building. In addition, the employer did not warn employees about the hazards or the proper protective measures to be taken when they worked in close proximity to the overhead primary and secondary power lines.

(3)Before work is begun the employer shall ascertain by inquiry or direct observation, or by instruments, whether any part of an energized electric power circuit, exposed or concealed, is so located that the performance of the work may bring any person, tool, or machine into physical or electrical contact with the electric power circuit. The employer shall post and maintain proper warning signs where such a circuit exists. The employer shall advise employees of the location of such lines, the hazards involved, and the protective measures to be taken.

The evidence demonstrates that Respondent is a construction contractor. The evidence also demonstrates that its employees were working in proximity to the energized line on Fourth Street. The standard applies.

The CSHO testified that there were no signs posted with respect to either the energized primary or secondary overhead lines on the Fourth Street side of the work site. (Tr. 527-528). Moreover, James Sal Herrera testified that employees were not advised about the energized line, the hazards involved or the protective measures to be taken. (Tr. 720-722). In his statement given to the CSHO, Manuel Herrera stated that when some of the masons and laborers asked him about the Fourth Street line, he told them only “not to damage it.” (Tr. 433). Respondent failed to comply with the standard.

As previously discussed, the evidence also demonstrates that Respondent knew, or with the exercise of reasonable diligence could have known that the Fourth Street power line was energized. Both James Sal Herrera and Manuel Herrera knew that they did not provide the requisite information to its employees.

All the employees at the worksite were exposed to the hazard of electrocution because they were not informed of the hazard involved in working near energized power lines. (Tr. 528). Had the lack of information resulted in an employee getting too close to the energized power line, he/she likely would have been electrocuted thereby resulting in death or serious harm. (Tr. 522). The violation was properly characterized as serious.

The Secretary proposed a penalty of $6,160 for this serious violation. (Tr. 528). The CSHO testified that, because the violation exposed employees to the hazard of death or serious injury by electrocution, the severity of the violation was considered to be high. (Tr. 528). Due to the number of employees exposed to the hazard, the frequency of the exposure, and the repetitive nature of the exposure, the probability of an accident was considered to be greater. (Tr. 528). This resulted in a gravity-based penalty of $7,000. After adjusting for Respondent’s size, history, and good faith, as discussed earlier, the Secretary proposed a penalty of $6,160. I find that the Secretary properly considered the statutory factors and the proposed penalty is appropriate.

Respondent asserts that this item, along with Citation 1, items 7 and 8 are duplicative of the violations set forth in Willful Citation 1, items 1 and 2. The merits of these assertions will be discussed, infra.

Citation 1, item 5 alleges that on or about December 6, 2012, Respondent committed a serious violation of 29 CFR §1926.602(c)(1)(vi) on the grounds that

The JLG Lull Telehandler forklifts, Serial #s 0160029366 and 0160013049, used to load the crane counterweights onto a flatbed truck were operated beyond the rated load capacity.

(1) Industrial trucks shall meet the requirements of § 1926.600 and the following:

(vi) All industrial trucks in use shall meet the applicable requirements of design, construction, stability, inspection, testing, maintenance, and operation as defined in American National Standards Institute B56.1-1969, Safety Standards for Powered Industrial Trucks.

The evidence establishes that Respondent is a construction contractor and was using powered industrial trucks. The standard applies.

On December 6, 2012, the CSHO observed Respondent using two forklifts to simultaneously load two counterweights onto the back of a flatbed truck. (Tr. 533, Ex. C-86). One of the counterweights weighed 10 tons or 20,000 pounds. (Tr. 534, Ex. C-95). The forklifts in use were model 1044C-54 Series II. (Tr. 534-535, Ex. C-87). The outriggers were not deployed which could have increased the stability of the lift. (Tr. 548). The CSHO testified that, based on the extension of the booms and the angle of operations, the load charts for that forklifts indicated that the maximum allowable load capacity for the procedure was 11,000 pounds. (Tr. 540-544, Ex. C-5). The lift exceeded the combined capacity of the forklifts by 9,000 pounds. (Tr. 544). Therefore, Respondent violated the applicable American National Standard Institute (ANSI) standard which requires that forklift operators “[h]andle only loads within the rated capacity of the truck.” ANSI B56.1-1969 §605(b) (Ex. C-42 at p 7, ¶ 605B).

The CSHO further testified that he observed a hydraulic hose failure on one of the two forklifts used during the hoisting operations. (Tr. 544-545). He asserted that the hose ruptured immediately after the second counterweight was loaded. There was foaming liquid where the internal hydraulic fluid penetrated through the outer jacket of the hose. The foam had emulsified from the pressure of the release. (Tr. 546). He explained that all forklifts, boom and fork operations and the outrigger operations are dependent upon a single hydraulic system. (Tr. 545).

Respondent asserts that it operated according to an engineer’s drawing which called for two forklifts. Therefore, it operated in good faith in compliance with those drawing. Respondent’s argument is without merit.

The CSHO testified that the plan relied on by Respondent was not followed and that it was not representative of the manner in which the forklifts were configured. Specifically, the drawing reflects the crane as originally manufactured. However, the forklift used had been modified with an eight-foot vertical adjusting mass at the connection to the forklift. (Tr. 536-537, Ex. C-4). Most importantly, the plan signed off on by the engineer was for an eight ton lift, not a ten ton lift. (Tr. 536-537). Therefore, the lift exceeded the engineered plan used by Respondent by two tons. Respondent did not rebut the CSHO’s testimony. Respondent’s assertion of good faith is without merit and I find that the evidence establishes that Respondent violated the standard as alleged

The CSHO testified that exposed employees included laborers, the truck operators, and Manuel Herrera himself, who admitted to operating one of the powered industrial trucks. (Tr. 546-547). Manuel Herrera was present during the lift operations. (Tr. 546). I find that he knew, or with the exercise of reasonable diligence could have known of the violative condition.

The Secretary proposed a penalty of $6,160 penalty for this item. The CSHO testified that the results of a lift failure would likely be death or serious injury. The violation was properly characterized as serious. Also, the severity of the violation was high. (Tr. 547). The probability of an accident was considered to be “greater” because of the amount of weight exceeding the limits. On this basis, the Secretary arrived at an unadjusted gravity-based penalty of $7,000. After applying the statutory adjustments, the Secretary arrived at a proposed penalty of $6,160. I find that the Secretary properly considered the statutory factors in arriving at the proposed penalty, and it is assessed.

Citation 1, item 6 alleges that Respondent seriously violated 29 CFR § 1926.602(d) on the ground that, on or about December 6, 2012

The employee operating the JLG Lull Telehandler Rough Terrain Fork Lift #10, Model # 1044C-54 Series II, Serial # 0160029366, to load crane counterweights was not a qualified fork lift operator.

The cited standard requires that powered industrial truck drivers be trained in accord with the standard for powered industrial trucks at 29 CFR §1910.178(l) which provides:

(l) Operator training. (1) Safe operation. (i) The employer shall ensure that each powered industrial truck operator is competent to operate a powered industrial truck safely, as demonstrated by the successful completion of the training and evaluation specified in this paragraph (l).

(ii) Prior to permitting an employee to operate a powered industrial truck (except for training purposes), the employer shall ensure that each operator has successfully completed the training required by this paragraph (l), except as permitted by paragraph (l)(5).Merits

The evidence establishes that Respondent is a construction contractor and was operating powered industrial trucks. Therefore, Respondent was required to ensure that its truck operators were properly trained. The cited standard applies.

During the inspection, the CSHO interviewed employee Louis Lara and observed him in one of the forklifts during the tandem lift operation. (Tr. 550-551). After being asked several general questions about safety, the CSHO directly asked Lara if he had any powered industrial truck or forklift training. Lara replied that he had no such training. (Tr. 551). Manuel Herrera, who was present during the interview, told the CSHO that Lara was not operating the forklift. Rather, Herrera asserted that he was operating it and that Lara was only sitting in the machine. However, the CSHO testified that Lara operated one of the two forklifts involved in the tandem lift. (Tr. 588).

James Sal Herrera testified that Lara had been trained to operate the forklift. Herrera asserted that Lara had operated forklifts before coming to work for Respondent. (Tr. 749). He further testified that when Lara came to work for Respondent, he had to be trained on their machines, which were different than the type Lara was used to driving. (Tr.749). According to Herrera, Lara was trained by one of his brothers and received a yearly refresher course along with all the other forklift operators. (Tr. 749).

Respondent also asserts that Lara, whose native language is Spanish, speaks only broken English. (Tr. 748). As a result, it contends that the CSHO was not able to effectively communicate with him. The CSHO testified that, while Lara might have been a Spanish speaker, when interviewed, he spoke English. (Tr. 588).

I find that the preponderance of the evidence establishes that that Lara operated the forklift without the proper training. The CSHO testified that Lara was operating the forklift. (Tr. 588). Had Lara been merely sitting in it, he could have communicated that to the CSHO during the interview. Similarly, Lara could have told the CSHO that he received training from one of the Herrera brothers. Indeed, Manuel Herrera was present during the interview of Lara. If Lara had been trained by him or one of his other brothers, nothing prevented him from correcting Lara. This is especially so if there had been a language problem that prevented Lara from fully understanding the question or providing a coherent answer. Finally, when the CSHO inquired about Lara’s training, Herrera’s response was only that it was like “driving a truck.” (Tr. 552).

Respondent could have rebutted the Secretary’s prima facie showing of a violation by introducing documentary evidence to demonstrate that Lara had been trained; or it could have called Lara to testify and explain his training. Respondent did neither. Moreover, James Sal Herrera’s assertion that Lara was trained by his brothers fails to establish the nature or sufficiency of the training.

Supervisor, Manuel Herrera was present at the time Lara was operating the forklift. As the supervisor and superintendent, he knew or with the exercise of reasonable diligence could have known that Lara was not properly trained. Therefore, Respondent had knowledge of the violation. At a minimum, Lara and Manuel Herrera were exposed to the hazard posed by an untrained operator operating the forklift.

The Secretary proposed a penalty of $4,400 for this violation. The evidence establishes that the violation was serious. The CSHO testified that the severity of the violation was high because death or serious harm could result from an accident that occurred because the forklift was operated by an untrained operator. (Tr. 559). The CSHO also testified that the probability of an accident was “lesser,” resulting in a gravity-based penalty of $5,000. After applying the aforementioned statutory factors, the Secretary proposed a penalty of $4,400. I find that the Secretary properly considered the statutory factors, and that the proposed penalty is appropriate.

Citation 1, item 7 alleges a serious violation of 29 CFR §1926.1408(e) on the grounds that on or about December 1, 2012:

(a) On the east side of the building, the employer assumed that the overhead primary and secondary lines located on Fourth Street overhead primary and secondary power lines located on Fourth Street were de-energized where a crane was operating;

(b) On the east side of the building, the employer did not confirm with the utility owner/operator that the overhead power lines located on Brooklyn Avenue continued to be de-energized where the crane was operating.

(e)Power lines presumed energized. The employer must assume that all power lines are energized unless the utility owner/operator confirms that the power line has been and continues to be de-energized and visibly grounded at the worksite.

The evidence establishes that Respondent is a construction contractor and that, at all relevant times, it was working near and around overhead power lines. The standard applies.

As discussed in Citation 2, item 2, the evidence demonstrates that Respondent’s crane was operating in proximity to both the Fourth Street and Brooklyn Avenue power lines. The evidence also establishes that Respondent failed to confirm that the overhead power lines were de-energized. To the contrary, when he saw that jumpers were placed on the lines, James Sal Herrera “assumed” that they were de-energized. (Tr. 716, 730-731, 807). Indeed, Herrera admitted that he never specifically asked if the lines were energized and was never told by Solar which lines were de-energized. (Tr. 728). Moreover, when told by Solar that he would take care of the matter, Herrera simply concluded that they were no longer an issue. (Tr. 781).

That the Brooklyn Avenue lines were de-energized reduces the gravity of the violation of instance (b), but does not exculpate Respondent. The standard requires the employer to “confirm” that the lines are de-energized and presupposes that, without such confirmation, the lines may be energized. The purpose of the standard is to eliminate the margin of error.

After Hurricane Sandy struck the area, there were widespread power outages. (Tr. 242). The power was restored on Long Island by the end of November. (Tr. 243). Despite the widespread damage that could have affected the grounds, and repairs which could have inadvertently re-energized the Brooklyn Avenue lines, Respondent assumed, but never confirmed, that the Brooklyn Avenue lines remained de-energized, (Tr. 624). Rather, the evidence is that Respondent fully relied on Solar to take care of the matter and never contacted LIPA to confirm that the power remained out on Brooklyn Avenue. (Tr. 702). Finally, Manuel Herrera told the CSHO that, in clear violation of the standard, he believed it was all right to work around power lines unless specifically told that the lines were energized. (Tr. 433). The evidence establishes that Respondent failed to comply with the cited standard.

The CSHO testified that Respondent’s failure to confirm that the lines were de-energized exposed all the employers on the site to the hazard of posed by energized power lines. (Tr. 555-557)

James Sal Herrera claimed that he was not aware that he was required to confirm that the lines were de-energized (Tr. 729, 731). Whether or not employers are aware of a reasonable interpretation of an OSHA regulation and fully understand it, they are charged with knowledge and are responsible for compliance. Ed Taylor Constr. Co. v. OSHRC, 938 F.2d 1265, 1272 (11th Cir. 1991). Accordingly, the evidence establishes that Respondent knew or with the exercise of reasonable diligence could have known of the violative condition.

The Secretary proposed a penalty of $6,160 for the violation. The CSHO testified that the severity of the violation was high because of the likelihood could have resulted in death or serious and permanent injury. (Tr. 555). Therefore, the violation was properly characterized as serious.

According to the CSHO, the probability of an accident was greater because of the proximity of the cranes to both the Fourth Street and Brooklyn Avenue power lines, and because the Fourth Street power line was energized. (Tr. 555-556). This resulted in a gravity based penalty of $7,000. (Tr. 558). The CSHO also testified that the statutory factors of size, history and good faith were applied as discussed supra, resulting in a proposed penalty of $6,160. (Tr. 558-559).

Respondent asserts that this violation, along with Citation 1, items 4 and 8 are duplicative of the violations contained in Citation 2. This issue will be discussed, infra.

Citation 1, item 8 alleges that, on or about December 1, 2012, Respondent violated 29 CFR §1926.1408(g)(1) on the grounds that employees were not trained to recognize the hazards; the method to prevent contact; or the procedures to follow in the event that contact was made with the power lines. On the east side of the third floor of the worksite, employees were setting precast concrete floor planks with the crane, within 8 feet of overhead primary and secondary power lines. The primary power lines were energized with 13,200 volts phase to phase and the secondary power lines were energized within 120-240 volts phase to ground.

(g) Training. (1) The employer must train each operator and crew member assigned to work with the equipment on all of the following:

(i) The procedures to be followed in the event of electrical contact with a power line. Such training must include:

(A) Information regarding the danger of electrocution from the operator simultaneously touching the equipment and the ground.

(B) The importance to the operator's safety of remaining inside the cab except where there is an imminent danger of fire, explosion, or other emergency that necessitates leaving the cab.

(D) The danger of the potentially energized zone around the equipment (step potential).

(E) The need for crew in the area to avoid approaching or touching the equipment and the load.

(ii) Power lines are presumed to be energized unless the utility owner/operator confirms that the power line has been and continues to be deenergized and visibly grounded at the worksite.

(iii) Power lines are presumed to be uninsulated unless the utility owner/operator or a registered engineer who is a qualified person with respect to electrical power transmission and distribution confirms that a line is insulated.

(iv) The limitations of an insulating link/device, proximity alarm, and range control (and similar) device, if used.

(v) The procedures to be followed to properly ground equipment and the limitations of grounding.

The evidence establishes that Respondent is a construction contractor and that it was performing work in the proximity of an energized power line. The standard applies.

During the inspection, the CSHO learned from interviews with Superintendent, Manuel Herrera and other employees that employees who worked with crane equipment at the site had not received training on such topics as hazard recognition, preventive measures to take in case of contact with an energized line, personal protective equipment, how to respond in the event of contact, and other topics set forth in the cited standard. (Tr. 561-562). Similarly, James Sal Herrera testified that he did not tell his nephew and crane operator, Chris Herrera, that he would be working around power lines. (Tr. 719-721). When asked if he thought it important that the crane operator be informed that he would be working around power lines, James Sal Herrera replied that “hindsight is always 20/20.” (Tr. 721). Moreover, Manuel Herrera told the CSHO that he received some prior OSHA training and was aware of the training requirements. However, he did not provide any training to the employees with respect to crane operations in proximity to power lines. (Tr. 561-562). The evidence establishes that Respondent failed to comply with the standard.

All employees who worked around the crane were exposed to the hazard of electrocution. (Tr. 561). The violation was properly characterized as serious. Also, Respondent knew, or with the exercise of reasonable diligence could have known that it failed to provide its employees with the requisite training.

The evidence establishes that the violation exposed employees to the hazard of electrocution. The violation was serious. The Secretary proposed a penalty of $4,400 for the violation. The CSHO testified that, because employees were exposed to the hazard of electrocution, the severity of the violation was high. (Tr. 563). However, the probability of an accident caused by the violation was rated as “lesser,” resulting in a gravity-based penalty of $5,000. After considering the statutory factors, the Secretary proposed a penalty of $4,400. I find that the proposed penalty is appropriate, and it is assessed.

Citation 1, item 9 alleges that Respondent committed a serious violation of 29 CFR §1926.1412(c)(1) on the grounds that, on December 1, 2012, Respondent’s Liebherr Mobile Crane, Model #LTM 1200-5.2 268 Ton, Serial # 070 495, was not inspected by a qualified person after it was assembled.

(1)Upon completion of assembly, the equipment must be inspected by a qualified person to assure that it is configured in accordance with manufacturer equipment criteria.

The evidence establishes that Respondent is a construction contractor and that crane operator Anthony Ferrara assembled the crane on December 1, 2012. The standard applies.

The CSHO testified that, on December 1, 2012, Anthony Ferrara, told him that he forgot to inspect the crane after assembling it that day. (Tr. 564-566). Ferrara told the CSHO that the crane was last inspected several days earlier on a separate job. (Tr. 564-566). When the CSHO asked him for documentation for the most recent crane inspection, Ferrara produced from the crane a “Crane Operator Daily Inspection Checklist” dated November 29, 2012, which was from a different worksite. (Tr. 565-566, Ex. C-70). In a subsequent interview, several months later, Ferrara recanted his earlier statement and asserted that the crane was inspected on December 1, 2012. (Tr. 606-607). Superintendent, Manuel Herrera, told the CSHO that he had not spoken to the crane operator to ensure that the crane was inspected as required. (Tr. 566-567).

The Secretary established a prima facie violation and Respondent failed to rebut the Secretary’s evidence. Respondent refers to the testimony of an NEP crane operator Saul Herrera

that he inspect[s] the crane each day and completes a daily inspection log. I find that Saul Herrera’s testimony had no probative value. First, Saul Herrera did not operate the crane at issue. (Tr. 672). Second, his testimony was inconsistent and contradictory. According to Herrera, when he first started working at the site, the Fourth Street line was already moved. (Tr. 677). However, the evidence establishes that the line was not moved until after the December 6 visit of the CSHO. Indeed, in his deposition, Herrera stated that he was not at work when OSHA showed up. (Tr. 681). Yet, in his deposition, he also stated that he first learned from that they were power lines when OSHA showed up. (Tr. 681). He did not explain how he could have learned anything during the OSHA inspection when he did not show up until after the inspection.

He then testified that, when he first got to the site, he did not notice the overhead power lines. (Tr. 679). Yet, he explained that when he got to the site, he too thought the power lines were telephone lines because in New York City, where he usually works, power lines are buried underground and phone lines are above ground

. (Tr. 680). Moreover, while Saul Herrera testified that it was Respondent’s regular practice to conduct a daily inspection, he could not testify from his own knowledge whether Ferrara conducted that inspection on December 1, especially since he asserted that he did begin work at the site until after that date.

James Sal Herrera testified that Respondent’s normal operating procedure after assembling a crane is to conduct a walk around inspection, check everything, and make sure that it’s working before starting operations. (Tr. 685). However, Ferrara was not called to testify and Respondent did not produce the relevant log book to the CSHO.

The evidence indicates that these log books are normally kept in the crane and are readily accessible to the driver. (Tr. 675). If Ferrara had filled out the log books for December 1, he failed to explain why he failed to produce them when asked by the CSHO. Further, if there was a language issue that kept Ferrara from understanding the request, Manuel Herrera was present during the interview and could have produced the logs.

Manuel Herrera was the supervisor on the site. He told the CSHO that he had not spoken with Ferrara to ensure that the crane was properly inspected. (Tr. 566-567). Manuel Herrera also told the CSHO that he doesn’t talk to the crane operator. Rather, the operator shows up and sets up the crane. Herrera also told the CSHO that, when the crane is ready, the operator informs him that he is ready to work. Aside from that, there is no other interaction between himself and the crane operator. (Tr. 566-567). This failure to perform his supervisor functions constitutes a lack of reasonable diligence and demonstrates that, with the exercise of such diligence, Respondent could have known that Ferrara failed to conduct the requisite inspection.

The CSHO also testified that the failure to conduct the post assembly inspection exposed all the employees in and around the crane to the possibility of a catastrophic failure of the jib or a displacement of a counterweight. (Tr. 567).

At the hearing, Respondent attempted to introduce what it claimed were log sheets for the crane. Although Respondent refers to them in its brief, at the hearing the Secretary objected to its use because they were not produced during discovery. (Tr. 686-692). When asked to explain its failure to produce the sheets during discovery, Respondent refused to do so in open court, and insisted that he provide an explanation off the record. (Tr. 687-688). Reminding Respondent that this was a public hearing, this Court refused to allow it. (Tr. 687-688).

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

These inspection records were made by Respondent. It knew the records existed and who had custody of them. Therefore, it cannot claim that the evidence was newly discovered. Yet, during discovery, Respondent failed to indicate to the Secretary that these documents existed and that it was making a good faith effort to obtain them or an acceptable copy for use at the hearing. This constituted a lack of diligence which warranted exclusion. Cf. U.S. v. Schwartzbaum, 527 F.2d 249, 254 (2d Cir. 1975)(finding burden on party seeking new trial that it could not, with due diligence, have discovered the evidence before, or at the latest, at trial); U.S. v. Costello, 255 F.2d 876, 879 (2d Cir. 1958)(opining it fundamental that defendant seeking a new trial under any theory must satisfy the district court that the material asserted to be newly discovered is in fact such and could not with due diligence have been discovered before or, at the latest, at the trial).

Moreover, to preserve a claim of error on an evidentiary ruling, the party claiming the error must inform the court of its substance by an offer of proof, unless the substance was apparent from the context. Fed. R. Evid. 103(a)(2). This is especially true when evidence is excluded under FRE 403. In the absence of any proffer that would connect the inspection sheets with the day in question, the evidence has no probative value. U.S. v. Al Jaber, 436 F. App’x. 9, 11 (2d Cir. 2011). Here, Respondent made no such proffer. Therefore, it cannot be determined whether the evidence had any probative value to establish that Respondent actually conducted the required inspections. Indeed, when James Sal Herrera was asked by Respondent’s counsel whether any of the inspection sheets at issue pertained directly to December 1, he either could not or would not answer in the affirmative. (Tr. 612). He testified only that, the night before, he looked through the inspection reports “hoping to find some pertinent information.” (Tr. 692)(emphasis added).

The decision to admit exhibits not revealed during the prehearing stage is a matter left to the discretion of the judge. See Consol. Rail Corp., No. 81-1025, 1982 WL 139716 (O.S.H.R.C.A.L.J. March 11, 1982). Here, Respondent failed to satisfy its burden of establishing either that the evidence had substantial probative value, or that it exercised due diligence in revealing, discovering or obtaining the evidence. Accordingly, it was properly excluded.

Characterization and Penalty

The severity of the violation was considered to be high because of the likelihood of death or serious injury in the event of a catastrophic crane failure due to an inadequate inspection. (Tr. 568). The violation was properly characterized as serious. The probability of an accident was considered to be “lesser,” resulting in a gravity based penalty of $5,000. (Tr. 568). After adjusting for the statutory factors set forth supra, the Secretary arrived at a proposed penalty of $4,400. I find that the Secretary properly considered all relevant factors and that the proposed penalty is appropriate.

Citation 1, item 10

Allegation

Citation 1, item 10 alleges a serious violation of 29 CFR §1926.1424(a)(2)(ii) on the grounds that, on or about December 1, 2012, the swing radius of the Liebherr Mobile Crane was not marked to prevent employees from entering the hazardous area.

The cited standard provides:

(a) Swing radius hazards

(1) The requirements of paragraph (a)(2) of this section apply where there are accessible areas I which the equipment’s rotating superstructure (whether permanently or temporarily mounted) poses a reasonably foreseeable risk of:

(ii) Pinching/crushing an employee against another part of the equipment or another object.

Merits

Respondent is a construction contractor and was using a crane in the proximity of employees. The standard applies.

During the inspection, the CSHO photographed Respondent’s crane set up, with both its forward and rear outriggers deployed. (Tr. 569, Ex. C-57). The CSHO testified that, the riggers would rig each plank and approach the crane. As the superstructure would rotate from west to east, the employees were exposed to being crushed between the counterweight and the outrigger. Also, the riggers would occasionally walk up and approach the superstructure of the crane and communicate with the operator, which placed them between the outriggers. (Tr. 570). According to the CSHO, there were no barriers or warning lines around that area. (Tr. 570). The evidence establishes the violation.

The CSHO testified that Supervisor, Manuel Herrera was present at the site when this was occurring. (Tr. 570-571). Respondent knew, or with the exercise of reasonable diligence could have known of the violative condition.

Characterization and Penalty

The Secretary proposed a penalty of $4,400 for the violation. The severity of the violation was considered high because of the likelihood of death or serious injury in the event that an employee got crushed or pinned between the counterweight and the outrigger. (Tr. 571). The violation was properly characterized as serious.

Despite the potential severity of an injury, the probability was rated as “lesser,” resulting in a gravity based penalty of $5,000 for the violation. (Tr. 571). After applying the statutory factors, discussed supra, the Secretary proposed a penalty of $4,400. I find that the proposed penalty properly reflects the statutory considerations and is appropriate.

Duplicative Defense

In its brief, Respondent asserts that the Citation 2, items 1 and 2 and Citation 1, items 4, 7 and 8 are duplicative and that, at a minimum, the penalties for the duplicative violations should be vacated. (Resp’ts Br. at pp. 6-7, 12).

Under Commission precedent, violations are considered duplicative only where they require the same abatement conduct or where abatement of one citation will necessarily result in abatement of the other item as well. Gen. Motors Corp., 22 BNA OSHC 1019, 1024 (No. 91-2834E, 2007) (consolidated); J.A. Jones Constr. Co., 15 BNA OSHC at 2207; Flint Eng’g & Constr. Co., 15 BNA OSHC 2052, 2056-57 (No. 90-2873, 1992); R & R Builders, 15 BNA OSHC 1383, 1391-92 (No. 88-252, 1991).

Although a worksite condition may violate more than one standard, section 5(a)(2) of the Act requires an employer to comply with all standards applicable to a hazardous condition even though the abatement requirements of two applicable standards may be satisfied by compliance with the more comprehensive standard. Thus, there is no unfair burden imposed on an employer when the same or closely related conditions are the subject of more than one citation item and a single action may bring an employer into compliance with the cited standards. See, H.H. Hall Constr. Co., 10 BNA OSHC 1042, 1046 (No. 76-4765, 1981). I find that the violations were not duplicative.

Respondent asserts that the four violations could have been abated by relocating the Fourth Street line. However, Respondent did not have the authority or ability to relocate the lines. That was a matter that was between LIPA and Vordonia, the general contractor. Where, on a multi-employer construction worksite, an employer lacks the authority or ability to properly abate a violative condition, that employer must still use alternative measures to protect its employees. Electric Smith, Inc. v. Secretary of Labor, 666 F.2d 1297, 1298 (9^th Cir. 1982); Capform, Inc., 16 BNA OSHC 2040, 2041-42 (No. 91-1613, 1994). Therefore, Respondent was obligated to take feasible alternative measures to protect its employees from the energized line. The evidence demonstrates that, short of removing its employees from the site, Respondent could have protected its employees from each of the cited hazards only by separate and unrelated feasible alternative measures. However, the evidence reveals that Respondent not only failed to take alternative measures, it took no measures at all.

Citation 2, item 2 alleged that Respondent’s crane and its rigging was operating within 10 feet of the energized lines. Among the abatement method for that violation was to have the crane stage the planks along another section of the worksite or otherwise keep the crane and rigging a safe distance from the lines.

Citation 2, item 1 did not involve the crane. Rather it involved the proximity of the lines to employees working on the building. That violation was totally independent of Citation 2, item 2. Even had the crane been removed, which it was not, that violation would have occurred because employees were working inches from the energized lines. As with Citation 2, item 1, part of the hazard could have been eliminated by staging the prefabricated planks at another part of the worksite. However, after the initial inspection, and warnings from the CSHO that the energized lines exposed employees to the hazard of electrocution, Respondent had its employees build a wall literally inches from the energized lines and actually built part of the wall around the lines. This could not be abated by simply changing the staging of the planks. James Sal Herrera testified that he did not discuss the hazard with his foreman and attributed that failure to “poor planning.” (Tr. 791). “Poor planning” does not constitute effective alternative abatement. Respondent should not have proceeded building the wall until it either found a way to do so without exposing its employees to the hazard of electrocution, or halted work until it prevailed upon the Vordonia to have the lines moved.

In Citation 1, item 4, Respondent failed to post signs or otherwise warn employees about the hazards of working near energized lines and failed to identify those lines. Even if Respondent ensured that employees were working a safe distance from the Fourth Street line, it had the obligation to identify and warn employees about those lines, since they remained energized and were in close proximity to the building. Therefore, the violation was not duplicative of the hazards identified in Citation 2.

Citation 1, item 7 prohibits Respondent from assuming that the lines were de-energized. As long as employees or equipment were working near lines, the employer has the duty to specifically confirm that the lines were de-energized. It does not matter if the lines were de-energized, as long as employees were working around power lines. Indeed, even after the Brooklyn Avenue power lines were de-energized, Respondent was required to confirm that fact. Abatement had nothing to do with keeping cranes or employees a safe distance from energized lines.

Finally, Citation 1, item 8 requires that employees working with or around cranes be properly trained about power lines. This obligation does not depend on whether the lines are energized. It is a precautionary standard, to ensure that employees know how to avoid getting too close to a power line and what to do in the event that they make contact with a power line. Also, this item was not duplicative of Citation 1, item 4, which applies to all employees, not those only working around cranes. Item 8 requires special training for employees working around cranes and, therefore, has more specific requirements than item 4 which merely requires that all employees be warned of the hazards posed by the lines.

Despite the fact that the violations alleged in this case, performing work in proximity to an energized power line, result in the same general hazard—electrocution—the conditions giving rise to the violations are separate and distinct. Accordingly, I conclude that Respondent’s non-compliance with the standards is not duplicative. H.H. Hall, 10 BNA OSHC 1042, 1046.

The Commission has wide discretion in the assessment of penalties for distinct but potentially overlapping violations. Id. Here, however, I find that the violations were sufficiently independent to justify separate penalties. Based on the evidence, I find that Respondent’s argument concerning the duplicative nature of certain violations is flawed --- especially as it relates to the two willful items. After the December 1 inspection, Respondent was warned that the crane could not place the planks along Fourth Street and that it should stage the planks elsewhere. Despite assurances that it would heed the CSHO’s warnings, Respondent resumed its hazardous activities as soon as the CSHO left the site without implementing any of the CSHO’s reasonable abatement measures. Moreover, the evidence establishes that it engaged in even more dangerous behavior by having employees erect the masonry wall mere inches from the energized lines. Under these circumstances, to accept Respondent’s assertion that these items are duplicative would ignore the separate, distinct, and potentially fatal hazards to which its employees were exposed.

Citation 3, item 1

Allegation

Citation 3, item 1 alleges a repeat violation of 29 CFR §1926.701(b) on the grounds that, on or about December 1, 2012, on the east side of the third floor of the site, the rebar extending from the masonry block wall along the edge of the building was not guarded where precast concrete floor planks were being set.

The cited standard provides:

(b) Reinforcing steel All protruding reinforcing steel, onto and into which employees could fall, shall be guarded to eliminate the hazard of impalement.

Merits

The evidence establishes that Respondent is a construction contractor and that its employees were working near vertical rebar (Tr. 573, Ex. C-39). The standard applies.

On December 1, 2012, the CSHO observed and photographed employees working near vertically protruding, but unguarded rebar. (Tr. 572-576, Ex. C-39, C-63). Exhibit C-39 shows a laborer engaged in setting a precast plank while in actual physical contact with vertical rebar. (Tr. 573). The rebar was vertical at various heights. (Tr. 573). The CSHO explained that the vertical rebar extended upward out of the masonry block wall from the lower level. These blocks were approximately seven inches wide and the rebar was placed at the center. The edge of the precast plank, when set into its final position, rested on that remaining 3.5 inches. While placing the planks, the employees had to be cognizant of where they landed so that they were placed on the masonry block. This required the employee to get close to the end of a plank to confirm its location before setting it down. The employee could have inadvertently set the plank down, gone past the wall and fallen onto the rebar. (Tr. 575-576).

At the hearing, James Sal Herrera testified that the rebar does not come with caps. Rather, they place plastic rebar caps on the rebar to protect employees from impalement. (Tr. 750, Ex. C-14). He explained that one of the problems is that employees working in the area accidentally knock off the caps. (Tr. 750). When this happens, the employee is supposed to pick up the cap and replace it, but not all employees do so. (Tr. 751).

The photographic evidence supports Herrera’s assertion that protective caps were placed on the rebar. (Exs. C-14, R-4). As noted, supra, in the Second Circuit, when the sufficiency of an employer’s safety program is at issue, the burden is on the Secretary to establish that the program was inadequate. The Secretary met that burden.

Even assuming Herrera’s testimony was sufficient to establish that Respondent had a work rule requiring employees to replace dislodged rebar caps, there is no evidence that the rule was effectively communicated, or that Respondent took steps to either discover violations or effectively enforce those rules when violations were discovered. To the contrary, the evidence demonstrates that only a small percentage of the rebar was capped. Therefore, any rule requiring employees to replaced dislodged caps was honored more in the breach. (See e.g. Exs. C-37, C-39, C-57, C-59, C-63, C-69). The Secretary established that Respondent failed to have an effective work rule.

The uncapped rebar was in plain view. Respondent knew or with the exercise of reasonable diligence could have known that many of the rebar near employees were uncapped and that employees were ignoring any rule to replace the caps.

The evidence establishes that employees were exposed to the hazard of exposure from the uncapped rebar. (Tr. 575, Exs. C-39, C-63, C-64).

Characterization

The Secretary alleged that the violation was repeated.

1. Legal Standard

A violation is repeated if the employer was previously cited for a substantially similar violation and the citation became a final order before the occurrence of the alleged repeated violation. Deep S. Crane & Rigging Co., 23 BNA OSHC 2099, 2105 (No. 09-0240, 2012); Potlatch Corp., 7 BNA OSHC 1061, 1063 (No. 16183, 1979).

Where the citations involve the same standard, the Secretary makes a prima facie showing of “substantial similarity” by showing that the prior and present violations are for failure to comply with the same standard. The burden then shifts to the employer to rebut that showing.

Gem Indus. Inc., 17 BNA OSHC 1861, 1866 (No. 93-1122, 1996), aff’d 149 F.3d 1183 (6th Cir. 1998) (not selected for publication).

2. Analysis

The Secretary established that, on March 31, 2010, MSI was issued a citation for a serious violation of 29 CFR §1926.701(b) for not guarding protruding reinforcing steel. (Tr. 578, Exs. C-53, C-54). Both the standard and the hazard were the same as in the instant case. (Tr. 580). On April 23, 2010, MSI and OSHA executed an informal settlement agreement in which MSI withdrew its Notice of Contest. (Tr. 579, Ex. C-55, Ex. J-1, para. 24). This settlement rendered the citation a final order of the Commission. Accordingly, I find that the Secretary properly cited the violation as repeated.

Penalty

The Secretary proposed a penalty of $5,280. The CSHO testified that the severity of the violation was low. He noted that this was not a situation where employees might fall from an elevated height and be impaled on the rebar. Rather, the hazard was that if an employee contacted a rebar he could suffer a laceration that would require stitches. Therefore, the severity was considered to be low. (Tr. 580). The probability of the violation was considered to be “lesser”, resulting in a gravity-based penalty of $3,000. This penalty was doubled to $6,000 because the violation was repeated. From that gravity-based penalty, the Secretary considered the statutory factors, reducing the proposed penalty to $5280. (Tr. 581). I find that the proposed penalty is consistent with the factors set forth in the Act and is assessed.

Citation 4, item 1

Allegation

Citation 4, item 1 alleges that Respondent committed an other-than-serious violation of 29 CFR §1926.502(k)(3) on the grounds that on or about December 1, 2012, employees were engaged in precast erection operations utilizing a controlled access zone, but Respondent did not maintain a copy of the fall protection plan as required by the standard.

The cited standard states in relevant part:

(k) Fall protection plan. This option is available only to employees engaged in leading edge work, precast concrete erection work, or residential construction work (See § 1926.501(b)(2), (b)(12), and (b)(13)) who can demonstrate that it is infeasible or it creates a greater hazard to use conventional fall protection equipment. The fall protection plan must conform to the following provisions.

* * *

(3) A copy of the fall protection plan with all approved changes shall be maintained at the job site.

Merits

The evidence establishes that Respondent was engaged in precast concrete erection work and that it chose to protect its employees with a fall protection plan rather than conventional fall protection. (Tr. 582-583, 758-760, Ex. J-1, para. 21). Therefore, it was required to maintain a copy of its fall protection plan at the worksite. The standard applies.

During the inspection, the CSHO asked James Sal Herrera to see a copy of the plan. No copy of the plan was provided. (Tr. 583). The Secretary made a prima facie showing of a violation of the standard. Respondent offered nothing in rebuttal to explain its failure to produce a written plan. Its failure to either produce the plan or explain its failure to do so leads to the logical inference that no written plan existed. Manganas Painting Co., 21 BNA OSHC at 1981. Therefore, the preponderance of the evidence establishes that Respondent failed to comply with the requirements of the standard.

The CSHO testified that the laborers and signalman were actually working in the fall protection zone and exposed to fall hazards. The crane operator went up to the work area prior to starting hoisting operations and was walking around the immediate area, exposing him to fall hazards. Also, Manuel Herrera admitted to being in the work area earlier in the day and, therefore, was exposed to fall hazards. (Tr. 584-585).

Respondent knew it was using an engineered fall protection plan. Therefore, it knew or, with the exercise of reasonable diligence could have known that it did not maintain a copy of that plan at the worksite. The violation was established.

No penalty was proposed for the violation and none will be assessed.

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.

Conclusion and Order

Based upon the foregoing decision, it is ORDERED that:

1) Citation 1, item 1, alleging a serious violation of 29 CFR §1926.100(a), is AFFIRMED and a penalty of $6,160 is ASSESSED;

2) Citation 1, item 2, alleging a serious violation of 29 CFR §1926.251(a)(2)(iii), is AFFRIMED and a penalty of $6,160 is ASSESSED;

3) Citation 1, item 3, alleging a serious violation of 29 CFR §1926.251(c)(9), is AFFIRMED and a penalty of $4,400 is ASSESSED;

4) Citation 1, item 4, alleging a serious violation of 29 CFR §1926.416(a)(3), is AFFIRMED and a penalty of $6,160 is ASSESSED;

5) Citation 1, item 5, alleging a serious violation of 29 CFR §1926.602(c)(1)(vi), is AFFIRMED and a penalty of $6,160 is ASSESSED;

6) Citation 1, item 6, alleging a serious violation of 29 CFR §1926.602(d), is AFFIRMED and a penalty of $4,400 is ASSESSED;

7) Citation 1, item 7, alleging a serious violation of 29 CFR §1926.1408(e), is AFFIRMED and a penalty of $6,160 is ASSESSED;

8) Citation 1, item 8, alleging a serious violation of 29 CFR §1926.1408(g)(1), is AFFIRMED and a penalty of $4,400 is ASSESSED;

9) Citation 1, item 9, alleging a serious violation of 29 CFR §1926.1412(c)(1), is AFFIRMED and a penalty of $4,400 is ASSESSED;

10) Citation 1, item 10, alleging a serious violation of 29 CFR §1926.1424(a)(2)(ii), is AFFIRMED and a penalty of $4,400 is ASSESSED;

11) Citation 2, item 1, alleging a willful violation of 29 C.F.R. §1926.416(a)(1), is AFFIRMED and a penalty of $61,600 is ASSESSED;

12) Citation 2, item 1, alleging a willful violation of 29 C.F.R. §1926.1408(a)(2), is AFFIRMED and a penalty of $61,600 is ASSESSED;

13) Citation 3, item 1, alleging a repeat violation of 29 CFR §1926.701(b), is AFFIRMED and a penalty of $5,280 is ASSESSED;

14) Citation 4, item 1 alleging an other-than-serious violation of 29 CFR §1926.502(k)(3) is AFFIRMED and $0 penalty is ASSESSED.

SO ORDERED.

/s/

Keith E. Bell

Judge, OSHRC

Dated: September 28, 2015

Washington, D.C.

THOMAS E. PEREZ, Secretary of Labor, United States Department of Labor,
Complainant,
v.	OSHRC DOCKET NO. 13-1169
NORTH EASTERN PRECAST LLC, Respondent.
THOMAS E. PEREZ, Secretary of Labor, United States Department of Labor Complainant, v. MASONRY SERVICES, INC. dba MSI Respondent.	OSHRC DOCKET NO. 13-1170