“Docket No. 89-2007 SECRETARY OF LABOR,Complainant.v.CARABETTA ENTERPRISES, INC.,Respondent.OSHRC Docket No. 89-2007DECISION Before: FOULKE, Chairman WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:In 1988, a compliance officer from the Occupational Safety andHealth Administration (\”OSHA\”), of the United States Department of Labor,inspected a construction project in Malden, Massachusetts, and cited CarabettaEnterprises, Inc. (\”Carabetta\” or \”the Company\”), for willfulnoncompliance with 29 C.F.R. ? 1926.7150(b)(2)(1), a steel erection standard pertainingto fall protection.[[1]] Carabetta contested the citation and argued that the citedstandard is arbitrary and unenforceably vague that here was no violation of the standard,and that there was certainly no willful violation. On a stipulated record, the case camebefore a Commission administrative law judge, who upheld the standard’s enforceability,found a willful violation, and affirmed the citation.[[2]] For the reasons that follow, weaffirm the Commission judge’s decision.I. The EvidenceThe stipulated record on which the judge decided the caseconsists of the citation, the notice of contest, the complaint and answer, as well as astatement of stipulations and two affidavits. One affidavit is by the compliance officer,and the other affidavit is by Ralph Carabetta, the Company’s vice president.The stipulated record reveals that three Carabetta employeeswere performing skeletal steel erection work it the seventh story level of a buildingdesigned for 8- to 10-foot stories. A floor existed three stories tile seventh storylevel, or approximately 28 to 30 feet below where the employees were working, but therewas no floor two stories below the employees. According to Carabetta, this conditionexisted because of the particular method of skeletal steel erection, which progresses in\”three story increments\” or \”modules.\” For the purpose of erectingthree stories at a time. Carabetta was using 28- to 30-foot columns and was connecting thetop ends with beams before any intermediate floors were installed. Thus, when the OSHAcompliance officer observed the employees, there were no intermediate floors.The 1988 inspection was not Carabetta’s first. Twice in 1986and once in 1987, the compliance officer had inspected another of Carabetta’s steelerection projects, located in Revere, Massachusetts. After each prior inspection,Carabetta had received a citation for violation of the standard cited in this case, ?1926.750(b)(2)(i). OSHA classified the first citation as other-than-serious, but the nexttwo were repeated. All three have become final orders. Also, after the 1988 inspectioninvolved in this case, the compliance officer observed Carabetta \”complying with thetwo 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 and unenforceably vague becauseit treats similar situations differently. For structures having two stories per 30 feetabove an existing floor (i.e., structures having 15 foot stories), the standard deems theexisting floor to be sufficient fall protection, but for structures having three storiesper 30 feet above an existing floor (i.e., structures having 8- to 10-foot stories), thestandard requires an additional floor, located two stories below the tier on whichemployees are working. Carabetta regards this difference as inexplicable and would havethe standard interpreted to permit the 30-foot fall distance in both instances.[[3]]In response, the Secretary explains that the standard’s 30-footfall distance is a maximum that serves a special and limited purpose, i.e., to allowcertain steel erectors — those who are erecting buildings having widely spaced stories,up to 15 feet apart — to install only every other floor, not every floor, as fallprotection for the employees. The standard does not, however, establish an unvarying30-foot fall distance applicable to all other steel erectors, and the language of thestandard makes this plain. The standard contains an alternative fall distance of \”twostories . . . whichever is less,\” to ensure that all steel erectors install everyother floor. Thus, an employer in Carabetta’s position, erecting a building having floorsonly 8 to 10 feet apart, must install every other floor and thereby reduce the falldistance below the 30-foot maximum. The Secretary concludes that Carabetta is essentiallyasking the Commission to rewrite the standard according to Carabetta’s own idea of a fairand reasonable fall protection requirement, rather than the Secretary’s.The Secretary further asserts that Carabetta actuallyunderstood the standard as limiting the fall distance to two stories: \”This case isnot about respondent’s inability to understand the standard’s requirements. Rather, it isabout respondent’s decision, because it disagreed with those requirements. Simply toignore them.\” There was a violation, the Secretary argues inasmuch as Carabetta didnot install either temporary floors or safety nets, did not establish the infeasibility ofthese forms of fall protection, and did not establish the infeasibility of any alternativemeasure, such as safety belts.The Commission judge, Administrative Law Judge RichardDeBennedetto, held that ? 1926.750(b)(2)(i) is \”plain\” because it explicitlyrequires either a floor (\”within two stories or 30 feet, whichever is less.\”) ora safety net (as prescribed by ? 1926.750(b)(1)(ii), incorporated by reference in thecited standard). Because Carabetta \”had a choice\” to implement either form ofabatement, but chose to omit both, the judge found a violation. He specifically rejectedCarabetta’s claim that the standard is unenforceably vague as applied to three-storymodules employing 28- to 30-foot columns, inasmuch as the standard’s intent to require afloor every two stories or 30 feet, \”whichever is less,\” is unmistakably clearon 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 misunderstood the standard’smost basic requirements, i.e., for a temporary floor two stories below the tier on whichemployees are working or for a safety net in lieu of a temporary floor if the falldistance exceeds 25 feet. Moreover, the standard’s language establishing these tworequirements is sufficiently plain to be enforceable in the case of an employer whoseevidence and arguments demonstrate awareness of these overall duties established by thestandard. Carabetta’s arguments only demonstrate disagreement with these duties. Inasmuchas the standard indisputably applied. its terms were not met (this employer had notinstalled either floors or safety nets), employees were exposed to fall hazards, and thisemployer actually knew of the hazardous conditions, the Secretary has established aviolation. See. e.g.. Walker Towing Corp., 14 BNA OSHC 2072, 2074, 1991 CCH OSHD ?29,239. p. 39,157 (No. 87-1359, 1991), citing Astra Pharmaceutical Prod., Inc., 9 BNA OSHC2126, 2129, 1981 CCH OSHD ? 25,578. pp. 31,899-31,900 (No. 78-6247, 1981) (theSecretary’s burden of proof).Carabetta asserts that it was essentially infeasible to install a temporary floor twostories below the employees, and Carabetta’s affidavit contains evidentiary statements insupport of that position.\u00a0 Even if we were to find, however, that Carabetta could nothave installed any intermediate floors until the tops of the columns were connected withbeams, Carabetta has not established an affirmative defense of infeasibility.\u00a0 Thereis no evidence demonstrating the infeasibility of either a safety net, as required by thecited standard, or safety belts, as an alternative measure.\u00a0 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 of proof as to infeasibility);Walker Towing Corp., 14 BNA OSHC at 2077-78, 1991 CCH OSHD at pp. 29,160-61 (economicinfeasibility).\u00a0 Moreover, the compliance officer’s affidavit states that, after theinspection in this case, he observed that Carabetta was complying with the standard at itsRevere worksite. [[4]]Carabetta’s arguments against the citation in this case reflecta fundamental disagreement with the standard’s requirements\u00a0 as applied to the modeof steel erection being employed in this case, i.e., the \”three storyincrements\” or \”modules.\” An employer who disagrees with a standard, on thebasis that its particular requirements are arbitrary or inappropriate, has two options.\u00a0 The employer may apply for a variance.\u00a0 See Walker towing Corp., 14 BNA OSHCat 2079 n.11, 1991 CCH OSHD 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 or a settlement agreement that excusesstrict compliance, the only legal excuse for noncompliance is a variance). The employermay also seek to have the Secretary alter her standard through rule-making proceedings.See 29 U.S.C. ? 665(b)(1) (The Secretary may …modify…any occupational safety orhealth standard…[w]henever the Secretary, upon the basis of information submitted…byan interested person, [or] a representative of any organization ofemployers[.]…determines that a rule should be promulgated. . .\”). Such alterationsto OSHA’s safety standards cannot, however, be obtained in adjudicatory proceedings beforethe Commission, which only concerns itself with the employer’s alleged violation of anexisting standard. In these proceedings, employers cannot question a standard’s wisdom.See Austin Engg. Co., 12 BNA 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 to question 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]n employer may not simply substitute its judgment for that ofOSHA . . . despite its subjective belief that an agency interpretation is invalid\”);Phoenix Roofing, Inc. v. Secretary of Labor. 874 F.2d 1027, 1031 (5th Cir. 1989)(\”[i]t would also be improvident for us to … send employers the message that they[can] ignore the obvious mandates of the safety regulations and independently determinewhat, if any, measures should be undertaken in a given situation\”).[[5]] Accordingly,the Commission has no basis on which to entertain Carabetta’s claims that ?1926.750(b)(2)(1) is unfair.Willfulness The Commission judge upheld OSHA’s willful classification onthe basis of the three prior citations and Carabetta’s continued noncompliance:\”Carabetta knew or should have known that there was a substantial certainty ofreceiving another citation should it continue to erect a building’s framework withoutproviding the tall protection [that was] required.\” Carabetta argues that a willfulclassification is unjustified in view of the standard’s inconsistencies and contends thatevidence of prior violations is insufficient evidence of willfulness. The Secretary arguesthat from the three prior citations concerning this standard. Carabetta can be deemed tohave had a strong awareness of it and that, in view of its plain requirements, Carabettacannot \”seriously\” assert any \”good-faith misunderstanding\” of it. Inthe secretary’s view, Carabetta simply made a \”conscious decision not to comply\”at all — disregarding both floors and safety nets — because of the convenience ofignoring the fall protection requirements. The Secretary classifies the violation aswillful because an employer’s decision to substitute its own opinion for a standarddemonstrates willfulness.Willfulness is established with evidence that an employerknowledgeable of a standard’s requirement either violated it intentionally or showed plainindifference to employee safety. Brock vs. Morello Bros. Constr., 809 F.2d 161, 163-64(1st Cir. 1987) (\”Morello\”); accord. E.L. Jones and Son, Inc., 14 BNA OSHC 2129,2133, 1991 CCH OSHD ? 29,264, p. 39,232 (No.87-8, 1991) (\”intentional disregard forthe requirements of the Act or plain indifference to employee safety\” establisheswillfulness). An employer’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 suchfamiliarity combined with either an actual 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], he would not care.\” Morello, 809 F.2d at 164.Willfulness is negated by evidence that \”the employer hada good faith opinion that the violative condition[] conformed to the requirements of thecited standard.\” Gdlang Corp., 14 BNA OSHC 1789, 1791, 1987-90 CCH OSHD ? 29,080, p.38,870 (No. 85-319, 1990). The test of good faith in such cases is an objective one, i.e.,whether the employer’s belief concerning the factual matters in question had beenreasonable under all of the circumstance. In other word’s, the employer’s belief must havebeen \”nonfrivolous.\” See Secretary of Labor v. Union Oil of Cal. 869 F.2d 1039,1047 (7th Cir. 1989), citing Morello. 809 F.2d at 165.As we have discussed, the basis requirements of the citedstandard were plain, and it is undisputed in this case that Carabetta actually understoodthe standard’s plain meaning. i.e., to require a temporary floor below the employees or asafety net to protect against falling more than 25 feet. Also, from the three earliercitations, issued within the period of one year, Carabetta knew that OSHA was applying thestandard according to its plain meaning. There is no direct evidence that, when Carabettaomitted to install the requisite fall protection. Carabetta did so with the \”state ofmind\” of which Morello speaks. Ralph Carabetta’s affidavit gives rise to an inferenceof such a state of mind, however. It explicitly states that \”Respondent isundertaking a procedure that is the most reasonable approach in light of the system beingused.\” In other words, realizing what the standard required, Carabetta decidedinstead to take a different \”reasonable approach,\” more compatible with itssteel erection methods. Although Carabetta had already been informed that its approach was\”unlawful.\” Carabetta continued with it. Furthermore, since Carabetta’s approachwas different than that plainly required by the standard, Carabetta cannot have had areasonable, good faith belief that it was conforming the standard. In particular,Carabetta did not provide alternative fall protection and has not established theinfeasibility of every relevant alternative. In fact, the whole point of the Carabetta’challenge in this case appears to be that Carabetta was not conforming precisely becauseof a belief that 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 decisionaffirming the willful citation and assessing a penalty of $5,000. The penalty is not inissue, the parties having stipulated that $5,000 is appropriate if the violation isclassified as willful.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDATED: December 18, 1991SECRETARY OF LABOR,\u00a0 Complainantv.CARABETTA ENTERPRISES, INC.\u00a0Respondent.OSHRC\u00a0 DOCKET NO. 89-2007DECISION AND ORDERThis case was presented on stipulated facts comprising thewritten statements of John DiRienzo, the compliance officer who inspected the worksite inquestion on July 22, 1988, and Ralph Carabetta, vice president of Carabetta Enterprises,Inc. (Carabetta). These statements establish that on July 22, 1988, Carabetta was in theprocess of erecting the steel frame of a building in Malden, Massachusetts, where threeemployees were observed installing vertical columns on the seventh story level without anyfall protection; there was no planked or substantial floor at either the sixth or fifthstory level, and the potential fall distance was approximately 28 to 30 feet.Carabetta was cited for willful violation of the steelconstruction standard at 29 C.F.R. ? 1926.750(b)(2)(i) which reads:Where skeleton steel erection is being done, a tightly plankedand substantial floor shall be maintained within two stories or 30 feet, whichever isless, below and directly under that portion of each tier of beams on which any work isbeing performed, except when gathering and stacking temporary floor planks on a lowerfloor, in preparation for transferring such planks for use on an upper floor. Where such afloor is not practicable, paragraph (b) (1) (ii) of this section applies.Carabetta was previously cited by OSHA for violating the samestandard in April 1986, August 1986 and again in February 1987. The citations arose out ofthe same construction site in Revere, Massachusetts, and became final orders of theCommission. On the last two occasions, the citations were characterized as\”repeated.\”Carabetta’s steel framework procedure entails \”modules ofapproximately 30 feet\”, according to Ralph Carabetta:4. In order to insure proper alignment and efficient use of thesystem, beams must then be placed around the perimeter to tie 4 such columns at about the28 foot level and to allow for two intermediate stories of about 8 foot each between thatlevel and the tightly planked or poured floor at the base of the column.5. At that particular point in time, there are workers workingfor a brief period at a level 28 feet above the floor below. As quickly as is feasible,beams are then placed for the lowest intermediate (9 feet above the column base) floor andthe necessary planking is placed at that level.It is contended that because of the framework procedure used byCarabetta, the planked-floor requirement was \”not practicable\” within themeaning of the 750(b)(2)(i) standard; that \”it is quite unclear how paragraph(b)(1)(ii) of this section applies, as stated in the regulations.\” The language of750 (b)(2)(i) is unambiguous and its intent is plain. [[1]] It requires a planked andsubstantial floor \”within two stories or 30 feet, whichever is less\” below atier of beams on which work is done, and \”[w]here such a floor is notpracticable\” safety nets are to be used in accordance with \”paragaph(b)(1)(ii).\”[[2]] Carabetta had a choice: either plank the floor or install a safetynet at the indicated levels. Carabetta did neither.Carabetta also argues that the standard is\”arbitrary\” because its framework procedure would be permissible \”whereonly one intermediate floor was planned (in other words 14- or 15-foot stories) but is aviolation where two intermediate floors (8- to 10-foot stories) were planned.\” It isclaimed that \”the distinction is arbitrary and inappropriate in that the danger is asgreat or greater for workers at the 28-30 foot level on the two-story module than it isfor workers at the 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 a substantial floor to be maintained two stories or 25 feet, whichever was less,below each tier of beams \”on which bolting, riveting, welding, or painting is beingdone.\” 39 Fed. Reg. 2015 (1974). The standard was amended in 1974 by lowering thedistance at which a floor must be maintained from 25 to 30 feet below a beam, and byexpanding application of the standard from beams \”on which bolting, riveting,welding, or painting\” 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,published July 2, 1974, 39 Fed. Reg. 24360 – 24361, consisted in part of the finding thatthe 30-foot requirement would bring the \”standard in line with current designs insteel construction which involve the use of a greater depth of structural beammembers.\” It was also indicated that the amendments were made in response to commentsfrom participants in the rulemaking proceeding that the original standard unnecessarilyexcluded from protection some operations or work activities. There is no suggestion in thestandard’s rulemaking process that would lead one to conclude its requirements arearbitrary. Indeed, the \”two stories or 30 feet\” requirement — Carabetta’s mainconcern — is in conformity with section 6.2 of ANSI A10.13 – 1972:There shall be a tight and substantial floor within two floorsor 30 feet, which ever is less, below and directly under the portion of each tier of beamson which bolting, riveting, or welding is being done, except when gathering and stackingtemporary floor planks on a lower floor, in preparation for transferring such planks foruse on upper working floor….The preamble to ANSI A10.13 – 1972 states: \”An AmericanNational Standard implies a consensus of those substantially concerned with its scope andprovisions.\” I should think this alone would effectively undercut any notion that therequirements of 750(b)(2)(i) are arbitrary.A violation is willful if it was \”an act done voluntarilywith either an intentional disregard of, or plain indifference to the Act’srequirements.\” Ensign-Bickford co. v. Occupational Safety & Health, 717 F.2d 1419(D.C. Cir. 1983) (and cases cited therein) cert. denied 466 U.S. 937, 104 S.Ct. 1909, 80L.E.2d 458 (1984) ; A. Schonbek & Co. v. Donovan, 646 F.2d 799 (2d Cir. 1980); S. Zara& Sons Contracting Co., 10 BNA OSHC 1334, 1982 CCH OSHD ? 25,892 (No. 78-2125, 1982).A violation is not willful \”if the employer believed in good faith that the violativecondition conformed to the requirement of the cited standard.\” C.N. Flagg & Co. 2BNA OSHC 1539, 1974-75 CCH OSHD ? 19,251 (No. 1409, 1975). The test of good faith is anobjective one: whether the employer’s belief was reasonable under the circumstances.Western Waterproofing Co. v. Marshall, 576 F.2d. 139 (8th Cir. 1978).The record of violating the same standard on three previousoccasions during the period from April 1986 to February 1987 amply supports the\”willful\” characterization. Carabetta knew or should have known that there was asubstantial certainty of receiving another citation should it continue to erect abuilding’s framework without providing the fall protection required by 750(b)(2)(i).FINDINGS OF FACT1. In July 1988, Carabetta was erecting a steel frame buildingwithout providing a substantial floor within two stories or 30 feet, or any other fallprotection.2. Carabetta’s employees were exposed to a hazard of fallingsome 28 to 30 feet because of the absence of fall protection, a condition which could haveresulted in serious injury or death. 3. Carabetta’s repeated violations of the same fall-protectionstandard clearly demonstrates plain indifference to OSHA’s regulation.CONCLUSION OF LAWCarabetta willfully violated the OSH Act by failing to complywith the steel erection standard 29 C.F.R. ? 1926.750(b)(2)(i).ORDERIt is ordered that the September 14, 1988, citation isaffirmed, and the stipulated penalty of $5,000 is assessed.RICHARD DeBENEDETTOJudge, OSHRCDated: April 17, 1990Boston, MassachusettsFOOTNOTES: [[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 and substantial floor shallbe maintained within two stories or 30 feet, whichever is less, below and directly underthat portion of each tier of beams on which any work is being performed, except whengathering and stacking temporary floor planks on a lower floor. . . . Where such a flooris not practicable, paragraph (b)(l)(n) of this section applies The referenced standard, 29 C.F.R. ? 1926 (1)(ii), states: On buildings or structures not adaptable to temporary floors, and where scaffolds are notused safety nets shall be installed and maintained whenever the potential fall distanceexceeds two stories or 25 feet. The nets shall be hung with sufficient clearance toprevent contacts with the surface of structures below [[2]] Two other citations, serious and repeat were settled andare no longer involved in the case.[[3]] Carabetta also contends that the cited standard and thestandard to which it refers, see supra note 1, employ unenforceably vague terms to informemployers of the circumstances in which safety nets may be substituted for temporaryfloors. We need not address these contentions, however, because this employer did not useeither form of fall protection and the employees were working more than 25 feet above thehighest floor, a fall distance that violates either standard. Carabetta asserts that theemployees were not working at such a great fall distance, but Carabetta’s own affidavitstates: \”[T]o insure proper alignment and efficient use of the system [of modules],beams must then be 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 ona record\u00a0 consisting entirely of stipulated facts, and has permitted this particularstatement by the compliance officer to become part of the stipulation of fact without anyfurther explanation regarding its significance or limitation regarding its relevance, weconsider the statement 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 deminimis violation because the employer’s measures were substantially as protective as thestandard’s. Carabetta had not taken any protective measures, however, that would complywith applicable requirements of the cited standard, the requirement for temporary floorsto protect against falling more than two stories and the requirement for safety nets toprotect against falling more than 25 feet\u00a0[[1]] As the Secretary points out in her memorandum at 2, theDistrict of Columbia Circuit Court had no problem with noting that the 750 (b)(2)(i)standard is \”clear in its requirements.\” Donovan v. Williams Enterprises,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 where scaffolds are notused, safety nets shall be installed and maintained whenever the potential fall distanceexceeds two stories or 25 feet. The nets shall be hung with sufficient clearance toprevent contacts with the surface of structures below.”