“SECRETARY OF LABOR,Complainant.v.CARABETTA ENTERPRISES, INC.,Respondent.OSHRC Docket No. 89-2007DECISIONBefore: FOULKE, Chairman WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:In 1988, a compliance officer from the Occupational Safety and HealthAdministration (\”OSHA\”), of the United States Department of Labor,inspected a construction project in Malden, Massachusetts, and citedCarabetta Enterprises, Inc. (\”Carabetta\” or \”the Company\”), for willfulnoncompliance with 29 C.F.R. ? 1926.7150(b)(2)(1), a steel erectionstandard pertaining to fall protection.[[1]] Carabetta contested thecitation and argued that the cited standard is arbitrary andunenforceably vague that here was no violation of the standard, and thatthere was certainly no willful violation. On a stipulated record, thecase came before a Commission administrative law judge, who upheld thestandard’s enforceability, found a willful violation, and affirmed thecitation.[[2]] For the reasons that follow, we affirm the Commissionjudge’s decision.I. \/The Evidence\/The stipulated record on which the judge decided the case consists ofthe citation, the notice of contest, the complaint and answer, as wellas a statement of stipulations and two affidavits. One affidavit is bythe compliance officer, and the other affidavit is by Ralph Carabetta,the Company’s vice president.The stipulated record reveals that three Carabetta employees wereperforming skeletal steel erection work it the seventh story level of abuilding designed for 8- to 10-foot stories. A floor existed threestories tile seventh story level, or approximately 28 to 30 feet belowwhere the employees were working, but there was no floor two storiesbelow the employees. According to Carabetta, this condition existedbecause of the particular method of skeletal steel erection, whichprogresses in \”three story increments\” or \”modules.\” For the purpose oferecting three stories at a time. Carabetta was using 28- to 30-footcolumns and was connecting the top ends with beams before anyintermediate floors were installed. Thus, when the OSHA complianceofficer observed the employees, there were no intermediate floors.The 1988 inspection was not Carabetta’s first. Twice in 1986 and once in1987, the compliance officer had inspected another of Carabetta’s steelerection projects, located in Revere, Massachusetts. After each priorinspection, Carabetta had received a citation for violation of thestandard cited in this case, ? 1926.750(b)(2)(i). OSHA classified thefirst citation as other-than-serious, but the next two were repeated.All three have become final orders. Also, after the 1988 inspectioninvolved in this case, the compliance officer observed Carabetta\”complying with the two floor regulation\” at the Revere jobsite.II. The ViolationA. The Parties’ Arguments and the Commission Judge’s DecisionCarabetta contends that ? 1926.750(b)(2)(i) is arbitrary andunenforceably vague because it treats similar situations differently.For structures having two stories per 30 feet above an existing floor(i.e., structures having 15 foot stories), the standard deems theexisting floor to be sufficient fall protection, but for structureshaving three stories per 30 feet above an existing floor (i.e.,structures having 8- to 10-foot stories), the standard requires anadditional floor, located two stories below the tier on which employeesare working. Carabetta regards this difference as inexplicable and wouldhave the standard interpreted to permit the 30-foot fall distance inboth instances.[[3]]In response, the Secretary explains that the standard’s 30-foot falldistance is a maximum that serves a special and limited purpose, i.e.,to allow certain steel erectors — those who are erecting buildingshaving widely spaced stories, up to 15 feet apart — to install onlyevery other floor, not every floor, as fall protection for theemployees. The standard does not, however, establish an unvarying30-foot fall distance applicable to all other steel erectors, and thelanguage of the standard makes this plain. The standard contains analternative fall distance of \”two stories . . . whichever is less,\” toensure that all steel erectors install every other floor. Thus, anemployer in Carabetta’s position, erecting a building having floors only8 to 10 feet apart, must install every other floor and thereby reducethe fall distance below the 30-foot maximum. The Secretary concludesthat Carabetta is essentially asking the Commission to rewrite thestandard according to Carabetta’s own idea of a fair and reasonable fallprotection requirement, rather than the Secretary’s.The Secretary further asserts that Carabetta actually understood thestandard as limiting the fall distance to two stories: \”This case is notabout respondent’s inability to understand the standard’s requirements.Rather, it is about respondent’s decision, because it disagreed withthose requirements. Simply to ignore them.\” There was a violation, theSecretary argues inasmuch as Carabetta did not install either temporaryfloors or safety nets, did not establish the infeasibility of theseforms of fall protection, and did not establish the infeasibility of anyalternative measure, such as safety belts.The Commission judge, Administrative Law Judge Richard DeBennedetto,held that ? 1926.750(b)(2)(i) is \”plain\” because it explicitly requireseither a floor (\”within two stories or 30 feet, whichever is less.\”) ora safety net (as prescribed by ? 1926.750(b)(1)(ii), incorporated byreference in the cited standard). Because Carabetta \”had a choice\” toimplement either form of abatement, but chose to omit both, the judgefound a violation. He specifically rejected Carabetta’s claim that thestandard is unenforceably vague as applied to three-story modulesemploying 28- to 30-foot columns, inasmuch as the standard’s intent torequire a floor every two stories or 30 feet, \”whichever is less,\” isunmistakably clear on the face of the standard.B. AnalysisWe note that nowhere in Carabetta’s arguments or in Carabetta’saffidavit is there any assertion that the Company actually misunderstoodthe standard’s most basic requirements, i.e., for a temporary floor twostories below the tier on which employees are working or for a safetynet in lieu of a temporary floor if the fall distance exceeds 25 feet.Moreover, the standard’s language establishing these two requirements issufficiently plain to be enforceable in the case of an employer whoseevidence and arguments demonstrate awareness of these overall dutiesestablished by the standard. Carabetta’s arguments only demonstratedisagreement with these duties. Inasmuch as the standard indisputablyapplied. its terms were not met (this employer had not installed eitherfloors or safety nets), employees were exposed to fall hazards, and thisemployer actually knew of the hazardous conditions, the Secretary hasestablished a violation. See. e.g.. Walker Towing Corp., 14 BNA OSHC2072, 2074, 1991 CCH OSHD ? 29,239. p. 39,157 (No. 87-1359, 1991),citing Astra Pharmaceutical Prod., Inc., 9 BNA OSHC 2126, 2129, 1981 CCHOSHD ? 25,578. pp. 31,899-31,900 (No. 78-6247, 1981) (the Secretary’sburden of proof).Carabetta asserts that it was essentially infeasible to install atemporary floor two stories below the employees, and Carabetta’saffidavit contains evidentiary statements in support of that position. Even if we were to find, however, that Carabetta could not haveinstalled any intermediate floors until the tops of the columns wereconnected with beams, Carabetta has not established an affirmativedefense of infeasibility. There is no evidence demonstrating theinfeasibility of either a safety net, as required by the cited standard,or safety belts, as an alternative measure. See, e.g., Seibel ModernMfg. & Welding Corp., 15 BNA OSHC 1218, 1226-28, 1991 CCH OSHD ? 29,422, pp. 39, 682-85 (No. 88-821, 1991) (the employer’s two burdens ofproof as to infeasibility); Walker Towing Corp., 14 BNA OSHC at 2077-78,1991 CCH OSHD at pp. 29,160-61 (economic infeasibility). Moreover, thecompliance officer’s affidavit states that, after the inspection in thiscase, he observed that Carabetta was complying with the standard at itsRevere worksite. [[4]]Carabetta’s arguments against the citation in this case reflect afundamental disagreement with the standard’s requirements as applied tothe mode of steel erection being employed in this case, i.e., the \”threestory increments\” or \”modules.\” An employer who disagrees with astandard, on the basis that its particular requirements are arbitrary orinappropriate, has two options. The employer may apply for avariance. See Walker towing Corp., 14 BNA OSHC at 2079 n.11, 1991 CCHOSHD at p. 39,162 n.11 (discussion of the variance option); StoneContainer Corp., 14 BNA OSHC 1757, 1760, 1987-90 CCH OSHD ? 29,064,p.38,817 (No. 88-130, 1990) (other than a judicially-created defense ora settlement agreement that excuses strict compliance, the only legalexcuse for noncompliance is a variance). The employer may also seek tohave the Secretary alter her standard through rule-making proceedings.See 29 U.S.C. ? 665(b)(1) (The Secretary may …modify…anyoccupational safety or health standard…[w]henever the Secretary, uponthe basis of information submitted…by an interested person, [or] arepresentative of any organization of employers[.]…determines that arule should be promulgated. . .\”). Such alterations to OSHA’s safetystandards cannot, however, be obtained in adjudicatory proceedingsbefore the Commission, which only concerns itself with the employer’salleged violation of an existing standard. In these proceedings,employers cannot question a standard’s wisdom. See Austin Engg. Co., 12BNA OSHC 1187, 1188, 1984-85 CCH OSHD ? 27,189, p. 35,099 (No. 81-168,1985), citing Van Raalte Co. 4 BNA OSHC 1151, 1152, 1975-76 CCH OSHD ?20,633, p. 24,698 (No. 5007,1976) (the Commission lacks power toquestion the wisdom of a standard). See also Secretary of Labor v. OSHRC(CF & I Steel Corp.), 941 F.2d 1051, 1059 n.10 (10th Cir. 1991) (\”[a]nemployer may not simply substitute its judgment for that of OSHA . . .despite its subjective belief that an agency interpretation isinvalid\”); Phoenix Roofing, Inc. v. Secretary of Labor. 874 F.2d 1027,1031 (5th Cir. 1989) (\”[i]t would also be improvident for us to … sendemployers the message that they [can] ignore the obvious mandates of thesafety regulations and independently determine what, if any, measuresshould be undertaken in a given situation\”).[[5]] Accordingly, theCommission has no basis on which to entertain Carabetta’s claims that ?1926.750(b)(2)(1) is unfair.WillfulnessThe Commission judge upheld OSHA’s willful classification on the basisof the three prior citations and Carabetta’s continued noncompliance:\”Carabetta knew or should have known that there was a substantialcertainty of receiving another citation should it continue to erect abuilding’s framework without providing the tall protection [that was]required.\” Carabetta argues that a willful classification is unjustifiedin view of the standard’s inconsistencies and contends that evidence ofprior violations is insufficient evidence of willfulness. The Secretaryargues that from the three prior citations concerning this standard.Carabetta can be deemed to have had a strong awareness of it and that,in view of its plain requirements, Carabetta cannot \”seriously\” assertany \”good-faith misunderstanding\” of it. In the secretary’s view,Carabetta simply made a \”conscious decision not to comply\” at all –disregarding both floors and safety nets — because of the convenienceof ignoring the fall protection requirements. The Secretary classifiesthe violation as willful because an employer’s decision to substituteits own opinion for a standard demonstrates willfulness.Willfulness is established with evidence that an employer knowledgeableof a standard’s requirement either violated it intentionally or showedplain indifference to employee safety. Brock vs. Morello Bros. Constr.,809 F.2d 161, 163-64 (1st Cir. 1987) (\”Morello\”); accord. E.L. Jones andSon, Inc., 14 BNA OSHC 2129, 2133, 1991 CCH OSHD ? 29,264, p. 39,232(No.87-8, 1991) (\”intentional disregard for the requirements of the Actor plain indifference to employee safety\” establishes willfulness). Anemployer’s mere familiarity with an applicable standard does notestablish willfulness. See Wright and Lopez, Inc., 8 BNA OSHC 1261,1265, 1980 CCH OSHD ? 24,419, p. 29,777 (No. 76-3743, 1980). Instead,willfulness is established by such familiarity combined with either anactual awareness, at the time of the act, that it was \”unlawful,\” or a\”state of mind … such that, if he were informed of the [standard], hewould not care.\” Morello, 809 F.2d at 164.Willfulness is negated by evidence that \”the employer had a good faithopinion that the violative condition[] conformed to the requirements ofthe cited standard.\” Gdlang Corp., 14 BNA OSHC 1789, 1791, 1987-90 CCHOSHD ? 29,080, p. 38,870 (No. 85-319, 1990). The test of good faith insuch cases is an objective one, i.e., whether the employer’s beliefconcerning the factual matters in question had been reasonable under allof the circumstance. In other word’s, the employer’s belief must havebeen \”nonfrivolous.\” See Secretary of Labor v. Union Oil of Cal. 869F.2d 1039, 1047 (7th Cir. 1989), citing Morello. 809 F.2d at 165.As we have discussed, the basis requirements of the cited standard wereplain, and it is undisputed in this case that Carabetta actuallyunderstood the standard’s plain meaning. i.e., to require a temporaryfloor below the employees or a safety net to protect against fallingmore than 25 feet. Also, from the three earlier citations, issued withinthe period of one year, Carabetta knew that OSHA was applying thestandard according to its plain meaning. There is no direct evidencethat, when Carabetta omitted to install the requisite fall protection.Carabetta did so with the \”state of mind\” of which Morello speaks. RalphCarabetta’s affidavit gives rise to an inference of such a state ofmind, however. It explicitly states that \”Respondent is undertaking aprocedure that is the most reasonable approach in light of the systembeing used.\” In other words, realizing what the standard required,Carabetta decided instead to take a different \”reasonable approach,\”more compatible with its steel erection methods. Although Carabetta hadalready been informed that its approach was \”unlawful.\” Carabettacontinued with it. Furthermore, since Carabetta’s approach was differentthan that plainly required by the standard, Carabetta cannot have had areasonable, good faith belief that it was conforming the standard. Inparticular, Carabetta did not provide alternative fall protection andhas not established the infeasibility of every relevant alternative. Infact, the whole point of the Carabetta’ challenge in this case appearsto be that Carabetta was not conforming precisely because of a beliefthat the standard’s requirement for temporary floors is unfair in thecircumstances. We therefore classify the violation as willful.OrderAccordingly, we affirm the Commission judge’s decision affirming thewillful citation and assessing a penalty of $5,000. The penalty is notin issue, the parties having stipulated that $5,000 is appropriate ifthe violation is classified as willful.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDATED: December 18, 1991————————————————————————SECRETARY OF LABOR, Complainantv.CARABETTA ENTERPRISES, INC. Respondent.OSHRC DOCKET NO. 89-2007_DECISION AND ORDER_This case was presented on stipulated facts comprising the writtenstatements of John DiRienzo, the compliance officer who inspected theworksite in question on July 22, 1988, and Ralph Carabetta, vicepresident of Carabetta Enterprises, Inc. (Carabetta). These statementsestablish that on July 22, 1988, Carabetta was in the process oferecting the steel frame of a building in Malden, Massachusetts, wherethree employees were observed installing vertical columns on the seventhstory level without any fall protection; there was no planked orsubstantial floor at either the sixth or fifth story level, and thepotential fall distance was approximately 28 to 30 feet.Carabetta was cited for willful violation of the steel constructionstandard at 29 C.F.R. ? 1926.750(b)(2)(i) which reads:Where skeleton steel erection is being done, a tightly planked andsubstantial floor shall be maintained within two stories or 30 feet,whichever is less, below and directly under that portion of each tier ofbeams on which any work is being performed, except when gathering andstacking temporary floor planks on a lower floor, in preparation fortransferring such planks for use on an upper floor. Where such a flooris not practicable, paragraph (b) (1) (ii) of this section applies.Carabetta was previously cited by OSHA for violating the same standardin April 1986, August 1986 and again in February 1987. The citationsarose out of the same construction site in Revere, Massachusetts, andbecame final orders of the Commission. On the last two occasions, thecitations were characterized as \”repeated.\”Carabetta’s steel framework procedure entails \”modules of approximately30 feet\”, according to Ralph Carabetta:4. In order to insure proper alignment and efficient use of the system,beams must then be placed around the perimeter to tie 4 such columns atabout the 28 foot level and to allow for two intermediate stories ofabout 8 foot each between that level and the tightly planked or pouredfloor at the base of the column.5. At that particular point in time, there are workers working for abrief period at a level 28 feet above the floor below. As quickly as isfeasible, beams are then placed for the lowest intermediate (9 feetabove the column base) floor and the necessary planking is placed atthat level.It is contended that because of the framework procedure used byCarabetta, the planked-floor requirement was \”not practicable\” withinthe meaning of the 750(b)(2)(i) standard; that \”it is quite unclear howparagraph (b)(1)(ii) of this section applies, as stated in theregulations.\” The language of 750 (b)(2)(i) is unambiguous and itsintent is plain. [[1]] It requires a planked and substantial floor\”within two stories or 30 feet, whichever is less\” below a tier of beamson which work is done, and \”[w]here such a floor is not practicable\”safety nets are to be used in accordance with \”paragaph(b)(1)(ii).\”[[2]] Carabetta had a choice: either plank the floor orinstall a safety net at the indicated levels. Carabetta did neither.Carabetta also argues that the standard is \”arbitrary\” because itsframework procedure would be permissible \”where only one intermediatefloor was planned (in other words 14- or 15-foot stories) but is aviolation where two intermediate floors (8- to 10-foot stories) wereplanned.\” It is claimed that \”the distinction is arbitrary andinappropriate in that the danger is as great or greater for workers atthe 28-30 foot level on the two-story module than it is for workers atthe 28-foot level on a three-story module.\” Written statement of RalphCarabetta.As originally promulgated, 29 C.F.R. ? 1926.750(b)(2)(i) required asubstantial floor to be maintained two stories or 25 feet, whichever wasless, below each tier of beams \”on which bolting, riveting, welding, orpainting is being done.\” 39 Fed. Reg. 2015 (1974). The standard wasamended in 1974 by lowering the distance at which a floor must bemaintained from 25 to 30 feet below a beam, and by expanding applicationof the standard from beams \”on which bolting, riveting, welding, orpainting\” is done to beams on which \”any work\” is done. 39 Fed. Reg.24360 (1974).The statement of reasons for the amendments offered by OSHA, publishedJuly 2, 1974, 39 Fed. Reg. 24360 – 24361, consisted in part of thefinding that the 30-foot requirement would bring the \”standard in linewith current designs in steel construction which involve the use of agreater depth of structural beam members.\” It was also indicated thatthe amendments were made in response to comments from participants inthe rulemaking proceeding that the original standard unnecessarilyexcluded from protection some operations or work activities. There is nosuggestion in the standard’s rulemaking process that would lead one toconclude its requirements are arbitrary. Indeed, the \”two stories or 30feet\” requirement — Carabetta’s main concern — is in conformity withsection 6.2 of ANSI A10.13 – 1972:There shall be a tight and substantial floor within two floors or 30feet, which ever is less, below and directly under the portion of eachtier of beams on which bolting, riveting, or welding is being done,except when gathering and stacking temporary floor planks on a lowerfloor, in preparation for transferring such planks for use on upperworking floor….The preamble to ANSI A10.13 – 1972 states: \”An American NationalStandard implies a consensus of those substantially concerned with itsscope and provisions.\” I should think this alone would effectivelyundercut any notion that the requirements of 750(b)(2)(i) are arbitrary.A violation is willful if it was \”an act done voluntarily with either anintentional disregard of, or plain indifference to the Act’srequirements.\” Ensign-Bickford co. v. Occupational Safety & Health, 717F.2d 1419 (D.C. Cir. 1983) (and cases cited therein) cert. denied 466U.S. 937, 104 S.Ct. 1909, 80 L.E.2d 458 (1984) ; A. Schonbek & Co. v.Donovan, 646 F.2d 799 (2d Cir. 1980); S. Zara & Sons Contracting Co., 10BNA OSHC 1334, 1982 CCH OSHD ? 25,892 (No. 78-2125, 1982). A violationis not willful \”if the employer believed in good faith that theviolative condition conformed to the requirement of the cited standard.\”C.N. Flagg & Co. 2 BNA OSHC 1539, 1974-75 CCH OSHD ? 19,251 (No. 1409,1975). The test of good faith is an objective one: whether theemployer’s belief was reasonable under the circumstances. WesternWaterproofing Co. v. Marshall, 576 F.2d. 139 (8th Cir. 1978).The record of violating the same standard on three previous occasionsduring the period from April 1986 to February 1987 amply supports the\”willful\” characterization. Carabetta knew or should have known thatthere was a substantial certainty of receiving another citation shouldit continue to erect a building’s framework without providing the fallprotection required by 750(b)(2)(i).FINDINGS OF FACT1. In July 1988, Carabetta was erecting a steel frame building withoutproviding a substantial floor within two stories or 30 feet, or anyother fall protection.2. Carabetta’s employees were exposed to a hazard of falling some 28 to30 feet because of the absence of fall protection, a condition whichcould have resulted in serious injury or death.3. Carabetta’s repeated violations of the same fall-protection standardclearly demonstrates plain indifference to OSHA’s regulation.CONCLUSION OF LAWCarabetta willfully violated the OSH Act by failing to comply with thesteel erection standard 29 C.F.R. ? 1926.750(b)(2)(i).ORDERIt is ordered that the September 14, 1988, citation is affirmed, and thestipulated penalty of $5,000 is assessed.RICHARD DeBENEDETTOJudge, OSHRCDated: April 17, 1990Boston, Massachusetts————————————————————————FOOTNOTES:[[1]] The cited steel erection standard 29 C.F.R ? 1926.750(b)(2)(i),states:Where skeleton steel erection is being done, a tightly planked andsubstantial floor shall be maintained within two stories or 30 feet,whichever is less, below and directly under that portion of each tier ofbeams on which any work is being performed, except when gathering andstacking temporary floor planks on a lower floor. . . . Where such afloor is not practicable, paragraph (b)(l)(n) of this section appliesThe referenced standard, 29 C.F.R. ? 1926 (1)(ii), states:On buildings or structures not adaptable to temporary floors, and wherescaffolds are not used safety nets shall be installed and maintainedwhenever the potential fall distance exceeds two stories or 25 feet. Thenets shall be hung with sufficient clearance to prevent contacts withthe surface of structures below[[2]] Two other citations, serious and repeat were settled and are nolonger involved in the case.[[3]] Carabetta also contends that the cited standard and the standardto which it refers, see supra note 1, employ unenforceably vague termsto inform employers of the circumstances in which safety nets may besubstituted for temporary floors. We need not address these contentions,however, because this employer did not use either form of fallprotection and the employees were working more than 25 feet above thehighest floor, a fall distance that violates either standard. Carabettaasserts that the employees were not working at such a great falldistance, but Carabetta’s own affidavit states: \”[T]o insure properalignment and efficient use of the system [of modules], beams must thenbe placed around the perimeter [of the columns] to tie in 4 such columnsat about the 28 foot level. . . (Emphasis added)[[4]] Inasmuch as Carabetta has agreed to present this case on a record consisting entirely of stipulated facts, and has permitted thisparticular statement by the compliance officer to become part of thestipulation of fact without any further explanation regarding itssignificance or limitation regarding its relevance, we consider thestatement admissible and material to the issue of whether Carabettaestablished an affirmative defense of infeasibility.[[5]] In Phoenix Roofing, the court went on to find a de minimisviolation because the employer’s measures were substantially asprotective as the standard’s. Carabetta had not taken any protectivemeasures, however, that would comply with applicable requirements of thecited standard, the requirement for temporary floors to protect againstfalling more than two stories and the requirement for safety nets toprotect against falling more than 25 feet [[1]] As the Secretary points out in her memorandum at 2, the Districtof Columbia Circuit Court had no problem with noting that the 750(b)(2)(i) standard is \”clear in its requirements.\” _Donovan v. WilliamsEnterprises, Inc._, 744 F.2d 170, 177 (D.C. Cir. 1984); _L.R. Wilson &Sons, Inc. v. Donovan_, 685 F.2d 664, 677 (D.C. Cir. 1982).[[2]] Paragraph (b)(1)(ii), 29 C.F.R. ? 1926.750(b)(1)(ii), reads:On buildings or structures not adaptable to temporary floors, and wherescaffolds are not used, safety nets shall be installed and maintainedwhenever the potential fall distance exceeds two stories or 25 feet. Thenets shall be hung with sufficient clearance to prevent contacts withthe surface of structures below.”