“SECRETARY OF LABOR,Complainant,v.WILLIAMS ENTERPRISES, INC.,Respondent.BUILDING AND CONSTRUCTION TRADESDEPARTMENT, AFL-CIO,Intervenor.OSHRC Docket No. 85-0355_DECISION_Before: BUCKLEY, Chairman, and WALL, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(j), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”). It wasestablished to resolve disputes arising out of enforcement actionsbrought by the Secretary of Labor under the Act and has no regulatoryfunctions. _See_ section 10(c) of the Act, 29 U.S.C. 659(c).At issue is whether Deputy Chief Administrative Law Judge Irving Sommercommitted reversible error in precluding Williams Enterprises, Inc. frompresenting the testimony of an expert witness, James W. Woods. Also atissue is whether the judge erred in failing to grant Williams a newtrial and in relying on previous OSHA citations to Williams in findingthat various violations were \”willful.\”Williams was the steel erection subcontractor for the construction of anaddition to Coolidge High School in Washington, D.C. On September 25,1984, Part of the steel framework that Williams had erected collapsed,killing one Williams employee and injuring two others. OSHA investigatedthe accident and issued citations alleging, among other things, fivewillful violations of steel erection standards. The judge affirmed allfive willful items and assessed the proposed penalty of $9,000 for eachone. Williams petitioned the Commission for review of the judge’sdecision, and that petition was granted.In a Preliminary Decision and Briefing Order of October 6, 1986, theCommission held that the judge’s ruling precluding Woods’ testimony waserror. The judge had ruled that Williams had failed to properly identifyWoods as a witness before the hearing in accordance with the judge’sorders. However, the Commission found that Williams had complied withthe judge’s orders. The Commission also noted, however, that William,had not made an offer of proof of Woods’ testimony, so that theCommission could not determine whether the judge’s error wasprejudicial. It issued a briefing order instructing Williams to specifyin detail the testimony Woods would give if permitted to testify and toexplain how that testimony, if credited, would affect the judge’sfindings of fact and conclusions of law. The briefing order alsoinstructed Williams to specify any exceptions it had to the Judge’sdecision other than the exclusion of Woods’ testimony. Williams has madea proffer of Woods’ testimony and has specified as additional errors thejudge’s failure to grant a new trial and his reliance on previouscitations issued to Williams.Having previously ruled that the judge’s preclusion of Woods’ testimonywas error, we must now determine whether that error was harmless. _See_Federal Rule of Civil Procedure 61; 29 C.F.R. ? 2200.2(b) (Federal Rulesapply to Commission proceedings); 29 U.S.C. ? 661(g).[[1]]. In a civilcase such as this, \”He who seeks to have a judgment set aside because ofan erroneous ruling carries the burden of showing that prejudiceresulted\”. _Palmer v. Hoffman_, 318 U.S. 109, 116, 63 S.Ct. 477, 482(1943).[[2]]The judge’s error was harmless if Woods’ proffered testimony could nothave changed the outcome of the case even if given the maximum credit itwould be legally entitled to receive. Woods’ proffered testimony relatesto four items of citation 2: items, 2, 3, 4, and 5. Those items concernthe number of bolts required for structural steel members, the measuresrequired to stabilize steel columns and trusses, and loads on trusses.Williams does not take exception to the judge’s disposition of themerits of any other citation items. In determining whether Woods’testimony could have changed the outcome of the case, we have exercisedour authority, as the ultimate finder of fact,[[3]] to determine whetherthe existing record supports the judge’s disposition of items 2, 3, 4,and 5, and to then determine whether Woods’ proffered testimony, ifgiven the maximum credit to which it would be entitled, would changethat disposition. Having done so, we conclude that the judge’s error washarmless as to all four items. We affirm his disposition of items 2, 3and 5. We modify his disposition of item 4, finding that violationwillful but reducing the penalty to $4,500 for reasons unrelated toWoods’ proffered testimony.Williams was erecting the structural steel framework for a gymnasiumwhich was to have a high roof and a large open expanse underneath. Thebuilding was to have a rectangular framework of structural steel columnsand beams around its perimeter. The roof was to be supported by trusses(also called \”joists\”) set on top of the beam-and-column framework andspanning the width of the structure. Metal decking atop the trusseswould form the roof.Each truss was about 130 feet long and had to be lifted atop thebeam-and-column framework, which was about 40 feet high, by means of acrane. Generally the trusses were connected (bridged) in pairs on theground before being lifted and placed on the perimeter beams. Williamshad started at the west end of the structure and had set a number oftrusses in place from west to east. This work proceeded withoutincident. Williams then began to do the same thing from the east side ofthe structure. It was setting the trusses with a crane inside thestructure, and planned to set as many trusses as possible that way, thenremove that crane by means of an opening it had left on the north sideof the structure and bring in a larger crane to set the remainingtrusses from outside the north side.Starting at the easternmost end, Williams placed nine trusses, workingeast to west. The tenth truss was to run between two columns, which weshall designate as 9N (for north)[[4]] and 9S (for south). That trusswas to be bolted to the two columns. While Williams’ foreman TommyNichols and its ironworker Mark White were attempting to line up theholes at column 9N to place the bolts, the column toppled outward andsome of the steel framework, including trusses 5 through 9, fell to theground. Nichols was killed and White badly injured. Another employee onthe ground was also injured when struck by a failing truss._Item 2–Number of Bolts Required For Final Placing of Structural Members_.The cited standard ? 1926.751(a), provides:? 1926.751 _Structural steel assembly_.(a) During the final placing of solid web structural members, the loadshall not be released from the hoisting line until the members aresecured with not less than two bolts, or the equivalent at eachconnection and drawn up wrench tight.Item 2 of citation 2 alleges that Williams violated this standard. Theparties do not dispute that, during the final placing of perimeter beamsby a crane, the beams were released from the crane’s hoisting linebefore they were secured to vertical columns with two bolts. The partiesalso do not dispute that the beams and columns were solid web structuralmembers. [[5]] The parties disputed before Judge Sommer whether the onespecial bolt Williams used at each connection was the \”equivalent\” oftwo bolts within the meaning of section 1926.751(a). Judge Sommer foundthat it was not. We agree.In constructing the steel framework of the building, Williams boltedcolumns to concrete footings. Beams were then lifted into place using acrane, bolted to the columns, and released from the crane’s hoistingline. Williams’ policy, which was followed on many, if not all, beam andcolumn connections in the framework, was to install one bolt perconnection before releasing the beam from the hoisting line. Later,after the framework was properly plumbed, the additional bolts requiredby the construction specifications were to be installed.Williams’ president, Frank Williams, Jr., testified that it was standardindustry practice to use one bolt per connection during the initialphase of steel erection. He noted that the standard does not absolutelyrequire the use of two bolts but permits employing \”the equivalent.\”Relying on a manual published by the American Institute for SteelConstruction (\”AISC\”), which he described as \”the standards group forthe steel industry for many, many years,\” Williams’ president testifiedthat the type of bolt they were using, a high-strength bolt, was theequivalent of the two bolts mentioned in the standard. The AISC manualsaid: \”unless high-strength bolts or other special types of bolts andwashers are specified, common bolts are furnished.\” The manual also,according to Williams’ president, stated that high-strength bolts havetwice the tensile strength of common machine bolts. Therefore, in hisview, the standard’s unqualified reference to bolts meant that thestandard contemplated common bolts, and since one high-strength bolt hadtwice the tensile strength of one common bolt, a single high-strengthbolt was the equivalent of the two bolts required by the standard.[[6]]However, on cross-examination, Williams’ president was questioned aboutthe difference between bearing connections and shear connections. In abearing connection, the beam rests on top of a column and thus bearsdown on the column. In a shear connection, the beam is bolted to a plateon the face of the column. Williams read from the AISC manual that in ashear connection, the high-strength bolt has only 1.5 times the strengthof the common bolt. Williams’ president admitted that his previoustestimony that high-strength bolts had twice the strength of commonbolts applied to bearing connections, not shear connections. Yet, manyof the connections here were shear connections.As a result, the judge found that Williams did not use the equivalent oftwo bolts in each connection, and he affirmed this item. On review,Williams does not expressly renew its argument that one high-strengthbolt is the equivalent of two bolts. Williams does, however, argue thatthe use. of a single bolt did not cause or contribute to the collapse ofthe structure. It also proffers the testimony of Mr. Woods that \”the useof one bolt instead of two in no way caused or contributed toinstability or the later collapse of the structure.\”In our preliminary decision, we ordered Williams to specify how Mr.Woods’ proffered testimony was relevant to each citation item. Inarguing that Mr. Woods’ testimony is relevant, Williams points to threeissues of fact that it claims Mr. Woods’ testimony would relate to:willfulness; good faith; and the cause of the accident. In arguing thatthe cause of the accident is relevant, Williams states that theSecretary \”made causation relevant\” by alleging that the citedviolations \”contributed to the cause and severity of the accident . . ..\” It also notes that the judge relied on causation between the accidentand the violations in assessing the gravity of the violation andassessing penalties.We have many times held, and in our preliminary decision again pointedout, that the cause of an accident is not necessarily relevant towhether a standard was violated. _E.g._, _Towne Construction Co._, 86OSAHRC __\/__, 12 BNA OSHC 2165, 2188 n. 7, 1986 CCH OSHD ? 27,760, p.36,310 n. 7 (No. 83-1262, 1986); _Concrete Construction Corp._, 76OSAHRC 47\/A2, 4 BNA OSHC 1133, 1135, 1975-76 CCH OSHD ? 20,610, p.27,644 (No. 2490, 1976). The circumstances of an accident may provideprobative evidence of whether a standard was violated. However, Williamsdoes not claim that the circumstances of the accident shed light on theequivalency issue. We therefore are not convinced that Mr. Woods’testimony would be relevant to the question of violation. Willfulness,good faith and gravity must, however, be taken into account in assessinga penalty. We shall therefore discuss Williams’ proffer on these pointswhen we discuss the appropriateness of the judge’s penalty assessment.Williams also represents that Woods would testify that, as to item 2 andeach of the other alleged violations in question here, what Williams did\”in its plan of erection was normal industry practice . . . .\”Specifically as to item 2, Woods’ proffered testimony is that \”the useof one high-strength bolt is common practice in the industry.\” Thisproffer is, however, beside the point of whether violations of the citedstandards occurred. That an employer’s conduct conformed to normalindustry practice is not relevant if the standard unambiguouslyprescribed different conduct. _See_ _Cleveland Consolidated, Inc._, 87OSAHRC __\/__, 13 BNA OSHC 1114, 1117, 1987 CCH OSHD ? 27,829, p.36,428-29 (No. 84-696, 1987) and cases cited. Inasmuch as the standardcited here is specific and unambiguous, Williams’ proffer is irrelevantto the violation issue. We therefore affirm item 2 of citation 2._Item 3–Unstabilized Column_Item 3 of citation 2 alleges that Williams violated 29 C.F.R. ?1926.751(c)(1). That standard provides:In steel framing, where bar joists are utilized, and columns are notframed in at least two directions with structural steel members, a barjoist shall be field-bolted at columns to provide lateral stabilityduring construction.The trusses Williams was installing to support the gymnasium roof are\”bar joists\” within the meaning of this standard. It is undisputed thatcolumn 9N was not framed in at least two directions and that a truss wasnot field-bolted to the column to provide lateral stability duringconstruction. Although Williams’ employees were attempting to bolt atruss between column 9N and column 9S at the time of the collapse,Williams had performed construction work before it attempted tolaterally stabilize column 9N: It had previously laid trusses on thebeams supported by columns 9N and 9S.[[7]]Williams does not dispute that it violated the standard. Instead, itclaims that compliance was, infeasible. An employer may defend against acitation on that basis. _Dun-Par Engineered Form Co._, 86 OSAHRC__\/__,12 BNA OSHC 1949, 1986 CCH OSHD ? 26,650 (No. 79-2553, 1986),_appeal filed_, No. 86-2365 (8th Cir. October 30, 1986). According toWilliams’ president, if a truss had first been bolted between columns 9Nand 9S, then in order to place the remaining five trusses in that bay,Williams would have had to reach over that truss with the crane it thenhad at the site, which was beyond that crane’s capacity.The difficulty with this evidence is that it assumes that all tentrusses had to be set using the particular crane that was then at thesite. It is the duty of an employer to use equipment that permits him tocomply with the Secretary’s standard. If performing the constructionwork required the use of a larger crane, Williams was required to useone. Moreover, Williams’ president testified that a larger crane wouldeventually have to be brought to the site to set the trusses in thecenter of the gymnasium after the smaller crane had been moved outsidethe structure’s perimeter. This larger crane would obviously have hadthe capacity to set trusses while situated outside the perimeter. Thecompany offered no reason, and none is apparent, why a truss could nothave been bolted between columns 9N and 9S before the five trusses toits east were erected, and a larger crane used to set the intermediatetrusses. Photographic exhibits in evidence indicate that there would beno impediment to locating a crane outside the perimeter on the northside, adjacent to the ultimate location of those five trusses. In sum,Williams did not demonstrate that compliance with the standard would beinfeasible.Woods’ proffered testimony on this item reiterates the claim that thetrusses had to he erected in the order Williams erected them due to thelimitations of the smaller crane. Nothing in the proffer adds to theevidence already in the record, and thus the proffered testimony doesnot affect our view that infeasibility was not proven.Woods’ other proffered testimony as to this item is related to items 4and 5. Williams states that Woods would testify that the collapse ofcolumn 9N was due to lateral force imposed on it by foreman Nichols intrying to connect truss 10 to the Column, and that the decking placed onthe trusses made column 9N more resistant to collapse than if none hadbeen there. Woods also would testify that \”the same accident would haveoccurred if this truss had been erected first in the sequence [and] itwould have taken _less_ lateral force than that exerted by IronworkerNichols to trigger the collapse.\” (Emphasis in original.)However, even if correct, this proffer is not relevant to whether aviolation occurred. Again, the essential point of the profferedtestimony is that the violation of the standard did not increase thelikelihood of the particular collapse that occurred. But it does nottend to disprove that the specific terms of the standard were violated.It is true that column 9N would remain somewhat unstable until the trusswas bolted to it. That is unavoidable and is the reason for thestandard. It may also be true that each truss to the East of column 9Npartially stabilized the column as it was erected. But the standardspecifically requires the column to be fully stabilized before otherconstruction work is done, not partially stabilized in steps. Wetherefore affirm item 3 of citation 2._Item 4–Joist Bridging_.The cited standard, ? 1926.751(c)(2), provides:Where longspan joists or trusses, 40 feet or longer, are used, a centerrow of bolted bridging shall be installed to provide lateral stabilityduring construction prior to slacking of hoisting line.The parties do not dispute that Williams employed 130-foot-long trussesand that, before the slacking of a crane’s hoisting line, a center rowof bolted bridging was not installed to provide lateral stability duringconstruction.Bridging is used to prevent the bending or bowing of long trusses, whichcould cause them to become detached from the beams to which they werebolted or welded and fall to the ground. The standard requires a singlecenter row of bridging to provide lateral stability to the trusses andprevent them from bowing. Here, due perhaps to the great length of thetrusses, the design of the building provided for five rows of bridgingconnecting each truss to the next one, and connecting them all to theperimeter beams running parallel to them. A single row of this bridgingconsists of an angle iron running from the top chord of one truss to thebottom chord of the adjacent truss, along with a second angle iron goingfrom the bottom chord of the first truss to the top chord of the secondtruss. Thus, the two angle irons would form an \”x.\” Where an angle ironmeets a truss, it would be bolted to the truss.To erect the trusses at this jobsite, Williams first connected five rowsof bridging between each pair of trusses while the trusses were on theground. The company then lifted this \”boxed pair\” of trusses to rooflevel with the crane. Photographic exhibits show that some bridging hadalso been completed between the first \”boxed pair\” of trusses (trusses 1and 2) and the second \”boxed pair\” (trusses 3 and 4). These four trussesremained standing after the collapse. The remaining trusses fell to theground (except for the tenth truss, which was being erected at the timeand remained suspended from the crane after the collapse).[[8]]The record shows that there was no bridging in at least two locations:between the first truss and the beam at the eastern end of the building,and between the fourth and fifth trusses. The fourth truss remained inplace after the collapse and exhibited no sign that it had been bridgedto the fifth truss.The judge found that Williams Enterprises failed to comply with thestandard based on the complete absence of bridging between the firsttruss and the beam adjacent to it and between the fourth and fifthtrusses. We agree. Section 1926.751(c)(2) requires a center for ofbridging and it obviously means a complete row. Thus, the gaps in thebridging found by the judge, are contrary to the standard’s requirement.Williams proffers that Woods would testify as to item 4 that \”hisrecommended plan of erection, and the one followed in this instance,would have been to put up the trusses in pairs with connecting bridgingbetween the pairs, and then place metal decking on those trusses toprovide lateral stability pending the placement of additional bridgingafter all. the trusses are up.\” Williams’ proffer also states that thisis the \”normal sequence\” of construction and that \”in [Woods’]professional engineering opinion . . . placing bridged trusses in pairsas was done here is consistent with the meaning of 29 CFR ? 1926.751.\”Williams also represents that Mr. Woods would have testified that \”inhis professional opinion it was not safe or feasible to put up theremaining bridging until all the trusses were placed and properlyaligned.\” Finally, we are told that Woods would testify that \”since nobridging existed between the pairs of trusses and the east end of thebuilding, less steel fell as a result of the collapse\” and the absenceof bridging did not contribute to the collapse.This proffer is insufficient. First, Woods’ \”recommended plan oferection\” or the \”normal sequence\” of steel erection violates thespecific terms of the standard. Such testimony would not establish anaffirmative defense to the citation. Second, Woods’ proffered opinionthat it was \”not safe or feasible\” to put up the remaining bridginguntil all the trusses were placed and properly aligned is not explained,despite our instruction that Williams summarize \”in detail\” thetestimony Woods would give. It is the employer’s burden to prove thatcompliance with a specific standard, like the one here, would beinfeasible. _E.g._, _Dun-Par Engineered Form Co._, 86 OSAHRC __\/__, 12BNA OSHC 1962, 1966-67, 1986 CCH OSHD ? 27,651, pp. 36,033-2, -3 (No.82-928, 1986). Williams has proffered no facts that would support aclaim that compliance would not have been feasible in this case and wereject the proffer for this reason. _See_, _e.g._, _Miller v. Poretsky_,595 F.2d 780, 785 (D.C. Cir. 1978) (exclusion of evidence notprejudicial where proffer is insufficient). _Samuel H. Moss, Inc. v.FTC_, 148 F.2d 378, 380 (2d Cir. 1945) (exclusion of testimony notharmful where proffered testimony did not address essential issue).Indeed, the fact that some bridging had been installed between trusses 2and 3 and must have been installed after those trusses were placed onthe beams under Williams’ method of erection is substantial evidencethat compliance with the standard was feasible.The same is true of Woods’ proffered assertion that compliance with thestandard would not have been \”safe.\” This assertion too is entirelyunexplained. Moreover, it is insufficient. There are situations where nomeans of compliance is completely safe. The Commission has thereforeheld that to make out an affirmative defense in this regard, theemployer must show not only that compliance with a standard would createa hazard but that compliance would create _greater_ hazards thannoncompliance. _See_ _Dun-Par_, 12 OSHC at 1967, 1986 CCH OSHD at p.36,033-3. Williams has not proffered such a showing, however.Even if we were to assume that it would not have been \”safe or feasible\”to have put up the remaining bridging until all the trusses were placedand properly aligned, the proffer does not establish that Williams couldnot have placed and properly aligned all the trusses before it placeddecking on top of them. It appears unlikely that placing heavy bundlesof decking on the trusses, as Williams did, would have made them easierto align. Moreover, if it was necessary, as Woods’ proffer suggests, toproperly align the trusses before installing the remaining bridging,there appears to be no reason why the trusses in one bay could not beproperly aligned and the bridging installed before the trusses in thenext bay were erected. Here, however, the trusses in the first bay atthe eastern end of the building were lacking a complete center row ofbridging while those in the second bay were being installed.As to Woods’ proffered opinion that \”placing bridged trusses in pairs aswas done here is consistent with the meaning of 29 CFR ? 1926.751,\” itmay be that the initial placing of trusses in \”boxed pairs,\” rather thanindividually, is consistent with the standard. However, the standardalso plainly requires a continuous center row of bridging \”beforeslacking of hoisting line,\” and Williams admittedly did not do this. Itsbridging procedures as a whole did not comply with ? 1926.751.Woods’ remaining proffered testimony merely asserts that the violationwas unrelated to the collapse, which we already have held irrelevant towhether a violation existed. Item 4 is therefore affirmed._Item 5 — Bundles of Decking on Trusses_.The cited standard, ? 1926.751(c)(3), provides as follows:No load shall be placed on open, web steel joists until these securityrequirements are met.There is no dispute that loads had been placed on open web steel joists.Bundles of the steel decking that would ultimately form the roof of thegymnasium were lifted to roof level and were resting on the trusses atthe time of the collapse. The bundles each weighed about 3,000 pounds.Three bundles were placed on the four trusses at the eastern end of thebuilding. Five or six bundles of decking had been placed on the nextfive trusses and fell when those trusses fell. It is also undisputedthat the trusses were \”open web steel joists.\”It also does not seem to be disputed that these loads were placed on thetrusses before the standards’ other security requirements were met. TheSecretary’s expert witness in structural steel, Matthew Burkart,testified that the security requirements to which the standard refersare the bolting, column stabilization, and truss bridging requirementscited in the three items discussed above. Burkart’s testimony isconsistent with the purpose and organization of the standards. Thebolting, column stabilization, and truss bridging standards arerequirements intended to assure that the structural members of thebuilding–the beams, columns, and trusses–are adequately supportedduring the construction work. They are therefore \”security requirements\”within the plain meaning of those words. Also, Williams does not arguethat \”security requirements\” has any meaning other than that to whichBurkart testified. Nor does Williams establish an infeasibility defense,its president admitting on cross-examination that the placement of loadson the trusses could have waited until after bridging was completed.Inasmuch as Williams had not complied with the bolting, columnstabilization, and truss bridging requirements, the present recordindicates that Williams was not permitted by section 1926.751(c)(3) toplace the bundles of steel decking on the trusses.Williams’ proffer does not change this conclusion. Williams representsthat Mr. Woods would testify that \”joists bridged in pairs and theplacement of steel decking across the top chords of the joists addedstability to the entire chord system and did not and could not havecaused or contributed to the collapse of column [9N].\” As we have said,such proffers are irrelevant to whether the standard was violated. Weare also told that Woods would testify that the testimony of theSecretary’s experts that the decking had a destabilizing effect on thestructure \”is not, supportable in engineering logic.\”[[9]] Even if thiswere so, it falls far short of proffering an affirmative defense toWilliams’ violation of the standard. For one thing, Williams does notproffer a showing that compliance with ? 1926.751(c)(3) would havecreated greater hazards than noncompliance. We therefore affirm item 5._Willfulness_We now determine whether the violations were willful, and whether Woods’proffered testimony would affect our decision on this issue, if giventhe maximum credit it would be legally entitled to receive.A violation is willful if committed \”with intentional, knowing orvoluntary disregard for the requirements of the Act or with plainindifference to employee safety.\” _Asbestos Textile Co._, 84 OSAHRC48\/B12, 12 BNA OSHC 1062, 1063, 1983-84 CCH OSHD ? 27,101, pp. 34,948(No. 79-3831, 1984). It is not enough for the Secretary to show that anemployer was aware of conduct or conditions constituting a violation;such evidence is necessary to establish any violation, serious ornonserious. Section 17(k) of the Act, 29 U.S.C. ? 666(k). _E.g._, _TowneConstruction Co._, 12 BNA OSHC at 2190, 1986 CCH OSHD at p. 36,312 (No.83-1262, 1986). _See_ _Frank Irey, Jr. Inc. v. OSHRC_, 519 F.2d 1200,1207, _aff’d_ _on other grounds on rehearing en banc_, 519 F.2d 1215(3rd Cir. 1974), _aff’d on other grounds sub nom. Atlas Roofing Co. v.OSHRC_, 430 U.S. 442 (1977) (\”It is obvious from the size of the penaltywhich can be imposed for a ‘willful’ infraction–ten times that of a’serious’ one–that Congress meant to deal with a more flagrant type ofconduct than that of a ‘serious’ violation\”). A willful violation isdifferentiated by a heightened awareness–of the illegality of theconduct or conditions–and by a state of mind–conscious disregard orplain indifference. There must be evidence that an employer knew of anapplicable standard or provision prohibiting the conduct or conditionand consciously disregarded the standard. Without such evidence offamiliarity with the standard’s terms, there must be evidence of suchreckless disregard for employee safety or the requirements of the lawgenerally that one can infer that if the employer had known of thestandard or provision, the employer would not have cared that theconduct or conditions violated it. It is therefore not enough for theSecretary simply to show carelessness or lack of diligence indiscovering or eliminating a violation; nor is a willful chargejustified if an employer has made a good faith effort to comply with astandard or eliminate a hazard, even though the employer’s efforts arenot entirely effective or complete. _See_ _Brock v. Morello BrothersConstruction, Inc._, 809 F.2d 161, 163-65 (1st. Cir. 1987), and casescited therein; _Asbestos Textile Co._; _Marmon Group Inc._, 84 OSAHRC27\/C2, 11 BNA OSHC 2090, 2092, 1984-85 CCH OSHD ? 26,975, p. 34,643 (No.79-5363, 1984); _Mel Jarvis Construction Co._, 81 OSAHRC 89\/B13, 10 BNAOSHC 1052, 1981 CCH OSHD ? 25,563 (No. 77-2100, 1984).Judge Sommer found that Williams’ actions demonstrated \”a plainindifference and conscious disregard . . . to the safety requirements ofthe Act,\” and thus were willful. He relied on evidence of previouscitations to Williams for similar violations;[[10]] on its president’sknowledge of the standards; on the fact that Williams admittedly is thelargest steel erector in the Washington, D.C. area; and on its sitesupervisors’ knowledge of the conditions constituting violations. Inaddition, the judge relied on the lack of safety training ofnon-supervisory employees.We agree with the judge that the violations were willful for thefollowing reasons. In evaluating willfulness, a primary consideration isthe employer’s attitude toward the Act and the standards adopted underit, Mr. Williams, the president of the company, testified that he hadbeen familiar with the standards since their adoption. However, when Mr.Williams discussed the placing of decking on the trusses, he suggestedthat this was permissible because it was as safe as the measuresrequired by section 1926.751(c)(3), although the standard unambiguouslyprohibits what Mr. Williams would permit. The company does not claim andmade no attempt to show that it had obtained a variance from thestandard under section 6(d) of the Act, 29 U.S.C. ? 655(d).Similarly, as to section 1926.751 (a)’s requirement (cited in item 2)that two bolts be used, Mr. Williams offered such insubstantial reasonsfor the violation that we can only conclude that he failed to take thestandard seriously. As we have said, the standard, which requires twobolts or the \”equivalent,\” is a \”security requirement\” within themeaning of a closely-related standard, section 1926.751(c)(3). Anemployer familiar with the standards, as Mr. Williams was, could notconclude in good faith that he was permitted to use only one-boltconnections on the theory that they could be done in such a way as toprevent trusses from rolling when employees walked on them, or that asingle high- strength bolt is the equivalent of two, when the veryindustry booklet he relied on stated expressly that this equivalence didnot obtain in the shear connections that Mr. Williams knew were employedhere. Such inattention to the purpose of the standard and the criticaldetails of safety are, given Mr. Williams, long familiarity with thesteel erection standards, strongly indicative of a disregard for thestandard.The same is true of the testimony of Mr. Williams (and Mr. Woods’sproferred testimony) as to item 3 that securing a bar joist to column 9Nto give it two-way stability before setting intermediate trusses was notfeasible because the crane at the site could not perform the work. Thatassumes that Williams had to use that particular crane for the work. Asdiscussed above, a larger crane could have been used for this work.Williams may not disregard a standard simply because it has failed torent the necessary equipment.With regard to the failure to complete bridging (item 4) as well as thedecking violation (item 5), Mr. Williams testified:I’m not bragging, but I think I am probably as experienced in the steelerection business as anybody in the United States, and from the day thatI have been around this business, even until today, you put joists up,you put bridging between the two adjacent joists, which is exactly whatwas done on this project. You’ve got a pair of joists with bridgingbetween them. You’ve got an opening and another pair of joists withbridging between them, and you land the decking on top of it. . . . Iwould do the same thing tomorrow.That Mr. Williams approved the leaving of an opening between one boxedpair of trusses and the next shows indifference to whether ??1926.751(c)(2) and (3) are followed on his jobs.This attitude towards OSHA’s standard’s was shared by a number ofWilliams’s supervisors. Superintendent Ward, who reported directly toMr. Williams, was regularly present during the erection of the steel. Hesaw it as it went up. He obviously knew that only one bolt was used perconnection, for that was Williams’ normal procedure and would in anyevent have been apparent when Ward saw the framework being erected. Hesaw that decking had been placed on the steel frame before securityrequirements had been met. He undoubtedly knew that the trusses were tobe erected in sequence and that column 9N would remain unstabilizedwhile trusses 5-9 were erected in the same bay. He was present on thejob site on September 21 when column 9N was framed in only one directionand, from the obviousness of the condition and his presence, we inferthat he knew of the fact.[[11]]Ward did testify, however, that he thought that the framing wascorrectly done. The testimony demonstrates either that Williams has donelittle to educate its top managers such as Ward in the requirements ofOSHA’s standards or that those managers do not take the standardsseriously. Williams seems to have never taken to heart the very firstparagraph of its safety program:Safety starts at the top and it must have the active support of topmanagement. Too often, safety plans are allowed to deteriorate from lackof interest by top management.The safety program administered for Williams by Alexander Czernowskiinvolved safety meetings and the distribution of copies of safety rulesto supervisors, but no safety instructions to its non-supervisoryemployees at the site, as judge Sommer found in affirming a violation of? 1926.21(b)(2), a finding that is not contested on review. Moreover,safety specialist Czernowski was unaware whether the foreman at thesite, Nichols, had had any safety training, and he had never spoken to him.The conduct of Williams’s supervisors also showed an unwillingness toprovide a margin of safety for employees. On Thursday, September 20,five days before the collapse, D.C. building inspector Ross Lawsoncomplained to foreman Nichols, who directed the steel erection forWilliams, and Art Durrah, a representative of the general contractor,that the steel was not aligned properly, that additional cables wereneeded to correct the situation and that the bar joists needed to betied in to the perimeter beams. Nichols and Durrah promised to makewhatever corrections were required. However, the conditions were notrectified before the collapse.On September 21, Gary Mercer, another representative of the generalcontractor, questioned Nichols about why decking had been placed on thetrusses and why the bridging between the trusses was incomplete. Thatsame day, and again early on September 25, Williamson told Nichols thatplacing the decking at that stage was not the proper procedure.According to Williamson, Nichols \”just kind of laughed and went aheadand did it anyway.\” Williams ironworker Burdette also voiced fears toNichols that the trusses could collapse sideways under the weight of thedecking, and he pointed out that the trusses were visibly bowed.Williams’ superintendent Ward, who had many years of experience in steelerection, visited the jobsite on the 21st. Column 9N and the northeaststairtower were visibly leaning and Ward became aware of the deckingatop the trusses. However, Ward did not ask Nichols to remove thedecking or take steps to comply with any of the standards involved here.Ward testified that he told Nichols by phone on the 24th to stop thesteel erection until the northeast stairtower was secured by cables, andnot to be concerned about the crane being idle. However, Nichols did notfollow that advice.On the morning of the collapse, D.C. safety inspector Lawson, seeingthat the conditions of which he had complained had not been corrected,confronted Nichols and Durrah. He told them the situation was dangerousand that there were not enough bolts in place in the structural members,creating what he termed \”a hinging effect.\” He asked Nichols not toerect steel that day and said he would try to get the job closed downuntil the situation was corrected. (Lawson had no authority to shut thejob down. Only the D.C. Contracting Officer could order that.) Nicholsand Durrah rejected Lawson’s warnings; Nichols proceeded with his workwith several Williams employees, one of whom went up on the beams with him.The record in this case shows that Williams’ management was indifferentto whether it’s jobsite supervisors understood OSHA’s requirements. Italso shows that the supervisor in charge of steel erection deliberatelyand repeatedly ignored warnings of serious safety hazards due to theviolative conditions.Williams proffers that Woods would testify that its procedures on thisjob were consistent with the normal practice in the steel erectionindustry and that none of the conditions endangered the stability of thestructure. Williams also asserts that Woods’ proffered testimony wouldestablish that even if Williams exercised poor judgment, it did notdisregard known risks or hazards, and showed good faith, making awillful characterization of the violations inappropriate. A violation isnot willful if the employer had a good faith opinion that the violativeconditions conformed to the requirements of the cited standard. However,the test of an employer’s good faith for these purposes is an objectiveone–whether the employer’s belief concerning a factual matter orconcerning the interpretation of a standard was reasonable under thecircumstances. _E.g._, _Kus-Tum Builders, Inc._, 81 OSAHRC 97\/82, 10 BNAOSHC 1128, 1132, 1981 CCH OSHD ? 25,738, p. 32,106 (No. 76-2644, 1981).Even if it is true, as Williams asserts, that it followed commonindustry practice, that would not change our conclusion. The standardscited here are specific and unambiguous, and Williams could not havebelieved in good faith that it was complying with them._Penalties_We now analyze whether the judge’s penalty assessments for items 2through 5, which were the same proposed by the Secretary, wereappropriate based on this record, and whether Woods’ testimony, if fullycredited, would affect our conclusions. Section 17(j) of the Act, 29U.S.C. ? 666(j), states that in assessing penalties the Commission is togive \”due consideration\” to the size of the employer’s business, thegravity of the violation, the employer’s good faith, and his history ofprevious violations. Judge Sommer assessed $9,000 for each willfulviolation he found. He based this on what he termed the severe gravityof each violation, the previous citations to Williams, Williams’complete familiarity with the steel erection standards, the lack ofmonitoring in its safety program and the lax attitude of itssupervisors and management toward compliance with the standards.Williams protests those penalty assessments based on the failure to takeinto account Woods’ testimony and the judge’s reliance on the previouscitations.We conclude that the violation cited in item 4 was of relatively lowergravity than the others. There was Considerable testimony that the trusssystem was unstable, but most of this testimony concerned the bundles ofdecking on tile trusses, the violation cited in item 5. In order toevaluate the gravity of item 4, we must disregard evidence related toitem 5. The express purpose of the truss bridging standard is to provide\”lateral stability\” to the trusses. To achieve this end, the standardrequires a complete row of center bridging. Williams did not install acomplete row of bridging, but it did install considerable bridging, insome respects more than the standard requires. Compliance with thestandard could be had by installing a single row of continuous bridgingdown the center of the trusses, which were about 130 feet long. Thatwould have left about 65 feet on each side of the center of each trusswith no intermediate bridging. If there were bowing or swaying in those65-foot sections, great lateral stress might be placed on theconnections at the ends of the trusses. The four additional rows ofbridging would appear to provide considerable stability even withouteach truss being connected to two other trusses. As we have said,Williams cannot substitute its own plan of erection for that required bythe standard, but the fact that its plan of erection at least partiallyachieved the standard’s purpose reduces the gravity of the violation. Infact, two of the trusses cited for lack of continuous bridging, trussesone and four, withstood the collapse of the structure. In thecircumstances, we assess a penalty of $4,500 for this violation.As to items 2, 3 and 5, the evidence of record amply supports thejudge’s penalty assessments. We find no error and affirm the judge’sfinding. In assessing the gravity of the violations, we must considerthe hazards against which the standards are designed to protect anddetermine the degree to which the employer’s noncompliance exposedemployees to those hazards. Essentially, Williams’ position, asexpressed through the testimony of its president at the hearing and inits proffer of Woods’ testimony, is that these violations were of lowgravity because they did not contribute to the instability of thestructure. We note that the proffer regarding the irrelevance of theviolations to the accident is entirely lacking in specifics, as is therest of the proffer, contrary to our instructions to Williams tosummarize Woods’ expected testimony \”in detail.\” Williams’ argumentcould be taken to mean that the structure was just as stable as it wouldhave been had Williams complied with the standards. If this is whatWilliams’ president meant and what Woods would mean if he so testified,their testimony would be inherently incredible, for it is obvious thatat least to some extent the structure was not as strong as if it hadbeen erected in compliance with the standards. For example, the use ofonly one bolt per connection obviously means that each connection wasnot as secure as if two bolts or the equivalent had been used. As therecord shows, a single high-strength bolt is not equal in strength totwo common bolts in shear connections. As the bolts were the only meansused to connect the beams to the columns, the structure could not havehad the stability intended by the two-bolt standard. Similarly, a columnthat has not been stabilized in two directions cannot be as stable asone that has, and placing additional weight on an inadequately boltedframework, an unstabilized column, and incompletely bridged trussesabout 130 feet long, cannot add stability to those structural members.It requires no particular expertise to recognize that the possibility asteel framework or structural member will collapse before it is fullysecured is enhanced by additional weight on it.Thus, even if the framework here had not collapsed, we would stillconclude that the violations were of high gravity because they increasedthe probability of an accident and worsened its probable consequences.Moreover, the collapse of even a single structural member could havekilled or seriously injured workers either on the framework or on theground below.Even assuming _arguendo_ that the violations were of low gravity,however, the judge’s penalty assessments would be appropriate, givenWilliams’ size, lack of good faith, and its history of willful failureto comply with OSHA steel erection requirements for fall protection.Williams indisputably is a major steel erection firm, the largest in theWashington, D.C., area at the time of this case, with gross revenues of$8,787,680 for 1984 and of $15,452,845 for 1985. Williams’ on-sitesupervisor repeatedly ignored warnings about conditions that we havefound violate steel erection standards. Williams was indifferent towhether its on-site supervisors and employees knew OSHA’s requirements._See_ _also_ discussion of willfulness in _Williams Enterprises_,_supra_ n.10. In the circumstances, we cannot justify reducing thejudge’s penalty assessment of $9,000 for each of willful violations 2, 3and 5._Other Issues_Williams’ objection to the extent of the judge’s reliance on priorcitations in finding willfulness and assessing penalties need not beaddressed here, because we have decided those issues independent of thejudge and given the prior citations the weight we believe they deserve.This leaves only Williams’ claims that it was entitled to a new trial.The first ground for Williams’ new trial request is that the judgepermitted the union to intervene based on a motion filed 11 days beforethe hearing. Williams asserts that the union’s motion was \”late-filed.\”However, the relevant Commission rule at the time allowed a petition forleave to intervene \”at any stage of a proceeding before commencement ofthe hearing before the judge.\” 29 C.F.R. ? 2200.21(a)(1984). The union’spetition was filed timely under both the previous and current Commissionrule. The judge was entitled to grant it in his discretion. 29 C.F.R. ?2200.21(c)(1984).Williams also asserts that the union’s intervention at that pointprecluded Williams from engaging in discovery regarding the issues onwhich the union claimed its participation could assist the judge. Butthe union presented no witnesses or evidence of its own–itsparticipation was limited to briefly questioning witnesses called by theother parties. Therefore, the union’s participation could not haveprejudiced Williams in the preparation or presentation of its case.Finally, Williams claims that it was precluded from full discoveryregarding the credibility of inspector Wiseman, based on the judge’sinitial ruling, about a month before the hearing, that no evidence wouldbe admitted regarding anyone’s visits to the worksite after October 12,1984, following the closing conference between OSHA and Williamsregarding this inspection. Williams claims that Wiseman’s visits afterthat time affect his credibility as a witness because they pertained tothis case and not a later case as Wiseman claimed. We cannot concludethat any substantial rights of Williams were affected by the judge’ shandling of this issue. For example, the judge stated at the hearing:. . . I am willing to keep Mr. Wiseman on the stand the rest of todaywhile you get all the information you are entitled to–anything relevantand probative to this case, . . . . You have all the time you want. Thiscase can go on for the next month . . . . if you find good reason torecess it, I will recess it.Williams has not explained to us specifically why that opportunity wasnot sufficient. Nor does Williams explain how evidence on this pointwould affect the credibility of Wiseman’s testimony would affect theweight of the evidence. The judge apparently nowhere relied onuncorporated testimony by Wiseman regarding the items or issues Williamsdisputes here. For each of these reasons, we reject Williams’ claim ofreversible error. Fed. R. Civ. P. 61.[[12]]Accordingly, we affirm items 2, 3, 4 and 5 of the citation for willfulviolations. We assess a penalty of $9,000 for each of the violations initems 2, 3 and 5, and a penalty of $4,500 for the violation in item 4. Atotal penalty of $31,500 is assessed. The judge’s decision is affirmedin all other respects.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: April 27, 1987————————————————————————WILLIAM E. BROCK, SECRETARY OF LABOR,Complainant,v.WILLIAMS ENTERPRISES, INC.Respondent.DOCKET NUMBER 85-0355Appearances:B. ANNE GWYNN, ESQ.ARTHUR J. AMCHAN, ESQ.U.S. Department of LaborFor the ComplainantDAVID POTTS-DUPRE, ESQ.ELIHU I. LEIFER, ESQ.Sherman, Dunn, Cohen, Leifer &Counts, P.C.For the Intervenor,Building and ConstructionTrades Department, AFL-CIOJAMES BRENT CLARKE, JR., ESQ.For the Respondent._DECISION AND ORDER_Sommer, Judge:On March 12, 1985, Respondent was issued Serious Citation No. 1 allegingviolations of 29 C.F.R. ? 1926.20(b)(1), 29 C.F.R. ? 1926.21(b)(2), 29C.F.R. ? 1926.550(a)(6) and 29 C.F.R. ? 1926.550(b)(2). The Respondentalso was issued Willful Citation No. 2 alleging violations of 29 C.F.R.? 1926.750(b)(2)(i), 29 C.F.R. ? 1926.751(a), 29 C.F.R. ?1926.751(c)(1), 29 C.F.R. ? 1926.751(c)(2) and 29 C.F.R. ?1926.751(c)(3). A penalty of $1800.00 was proposed for the seriousviolations and $45,000.00 for the willful violations. A hearing was heldin Washington, D.C. All parties were represented by counsel who filedpost-hearing briefs. No jurisdictional issues are in dispute, theparties having pleaded sufficient facts to establish the Respondent issubject to the Act and the Commission has jurisdiction of the partiesand of the subject matter._Background_Williams Enterprises, Inc., is engaged in the steel erection business.In September 1984 it was the subcontractor engaged in steel erection fora gymnasium being constructed as an addition to the Coolidge High Schoolin Washington, D.C. On September 25, 1984, while so engaged, a sectionof the structure collapsed resulting in the death of one employee andinjury to others. An OSHA compliance officer investigated the accidentand thereafter issued two citations for violations of the safetystandards which were contested.The gymnasium was being erected on the north side of the schoolbuilding. Williams’ responsibility was the erection of the steelframework. Respondent commenced working from the west to the east, andwhen it was approximately midpoint, work was commenced from east towest; the structure was rectangular in shape and made provision for fourstair towers at each of the corners of the gymnasium. Initially, thesteel framework consisting of columns were set in, which were joined bybeams; thereafter trusses spanning approximately 130 feet in lengthrunning north to south were raised by crane and bolted to the horizontalbeams. Ultimately, the roof of the gymnasium would rest and be supportedby the trusses running the entire length of the area._Alleged Violations__Serious Citation No. 1, items 1(a) and 1(b) – 29 C.F.R. ? 1926.20(b)(1)and 29 C.F.R. ? 1926.21(b)(2)_.Respondent was cited for violating 29 C.F.R. ? 1926.20(b)(1), whichreads as follows:It shall be the responsibility of the employer to initiate and maintainsuch programs as may be necessary to comply with this part.The standard at issue in this case, 29 C.F.R. ? 1926.20(b)(1), requiresthat an employer \”initiate and maintain\” a safety program. The plainmeaning of to \”initiate\” is to begin,[[1]] and to \”maintain\” is \”tocontinue\” or \”carry on\”.[[2]] The burden is on the Secretary to provethat the Respondent violated a standard which imposes a duty toinstitute a safety program and keep it ongoing. The evidence isinsufficient to substantiate that this duty was breached. The citationcharges a violation of this standard in that \”management representativesdid not enforce safety policies and there was poor employee awarenessand participation in the program\”. These charges do violence to thenature and plain meaning of the words of the standard, and will not beaccepted. See _Bethlehem Steel Corp. v. OSHRC_, 573 F.2d 157, 161 (6 BNAOSHC 1440, 1444)(3rd Cir. 1978). The evidence shows that the Respondentdid have a safety program which was ongoing. Its safety directortestified to its existence, there was documentary evidence of itsexistence, and some employee verification (although only by supervisorystaff). It was required to do that and nothing more under the standard.Since the standard only requires that a safety program be existent andcarried out and the facts demonstrate this to be so, Respondent did notviolate 29 C.F.R. ? 1926.20(b)(1) and the citation is vacated.Respondent was cited for violating 29 C.F.R. ? 1926.21(b)(2) which readsas follows:The employer shall instruct each employee in the recognition andavoidance of unsafe conditions and the regulations applicable to hiswork environment to control or eliminate any hazards or other exposureto illness or injury.The standard imposes a duty on the employer to instruct employees \”inthe recognition and avoidance of unsafe conditions\”.The evidence establishes that the Respondent’s employees at the CoolidgeHigh School jobsite received no instruction on the dangers present andthe hazards associated with the job they were engaging therein. Thetestimony of employees Williamson (a miscellaneous foreman) (Tr. 253),Burdette (Tr. 277), and White (Tr. 312) forcefully demonstrate that theRespondent did not instruct them in the avoidance of hazards or thedangers inherent in the job they were doing; their testimony reveals nosafety meetings were held at the Coolidge job site. Ward, theRespondent’s superintendent at the job site, in response to a questionas to whether there were \”any safety meetings at the Coolidge job sitefor non- supervisory employees\” stated, \”Not to my knowledge. MaybeTommy did; I didn’t have any meetings there\” (Tr. 491). The evidencefully demonstrates that the Respondent knows it is engaged in ahazardous industry (testimony of its president); its supervisory helpknew of this and observed the employees as they engaged in hazardoussteel erection, yet failed to instruct employees in the recognition andavoidance of unsafe conditions as required. See _National IndustrialConstructors, Inc. v. OSAHRC_, 583 F.2d 1048 (8th Cir. 1978).Accordingly, the citation for violation of 29 C.F.R. ? 1926.21(b)(2) isaffirmed. The hazard in this case is a serious one since working insteel construction exposes the employees to fall hazards fromconsiderable heights. Applying the penalty factors in Section 17(j) ofthe Act, I find that $450.00 to be an appropriate penalty._Serious Citation No. 1, Items 2(b) and 2(c) – 29 C.F.R. ?1926.550(a)(6) and 29 C.F.R ? 1926.550(b)(2)_The standard at issue in this case, 29 C.F.R. ? 1926.550(b)(2), requiresthat a truck crane needs to meet the \”applicable requirements for . . .inspection . . . maintenance . . . as prescribed in the ANSI B-30.51968, Safety Code for Crawler, Locomotive and Truck Cranes\”.The ANSI section states:5-2.1.5 Inspection RecordsWritten, dated and signed inspection reports and records shall be mademonthly on critical items in use such as brakes, crane hooks and ropes.Records shall be kept where readily available.5-2.4 Rope Inspection, Replacement and Maintenance.5-2.4.1 Inspectiona. All running ropes in continuous service should be visually inspectedonce every working day. A thorough inspection of all ropes in use shallbe made at least once a month and a full written, date, and signedreport of rope conditions kept on file where readily available. . . .The evidence shows that the Respondent leased the P&H truck crane foruse on the job, utilizing its own employee as the operator. Thecompliance officer ascertained the crane had been used for three monthsand that there were no reports of inspection available although herequested them. He asked both the crane operator and the Respondent’ssafety director for such inspection reports but received none (Tr. 82,86). The evidence fully demonstrates that there were no inspectionreports available demonstrating the status of rope conditions, nor werethere inspection reports available which recorded brakes, crane hooksand rope conditions. Respondent’s employee operated the crane which wasin use for approximately three months, and as such the duty to exercisereasonable diligence required it to inspect the crane for properfunction and maintenance so as to prevent its operator employee and theother employees connected with the steel erection process from exposureto unsafe conditions if the crane was defective. Absent the inspectionreports required, the Respondent violated 29 C.F.R. ? 1926.550(b)(2).The violation was characterized as serious. It is important to note thatthe violation found was not that there were hazards present in the cranebut that there was no inspection report. The record lacks evidence as tohow long a period daily the crane was used and the number of employeesusing the crane. There is no record of any such previous violationsalthough it is apparent the Respondent uses cranes extensively in itswork. For the record violation herein taking into account all theexisting facts and circumstances, it is apparent that this violationshould be characterized as other than serious, and I so find. No penaltyis assessed.The Secretary withdrew the citation alleging a violation of 29 C.F.R. ?1926.550(a)(6)._Willful Citation No. 2 – item 1 -29 C.F.R. ? 1926.750(b)(2)(i)_[[3]]Respondent was cited for failure to provide fall protection required bythis standard. The citation issued reads:29 C.F.R. ? 1926.750(b)(2)(i): During skeletal steel erection, a tightlyplanked and substantial floor was not maintained within 2 stories or 30feet, whichever is less, below and directly under that portion of eachtier of beams on which work was being performed:(a) Tower for stairway three & four – Employees erection steel wherethere was a potential of falling approximately 46 feet were not providedwith fall protection.The preponderance of the evidence establishes that the Respondentviolated this section. The testimony reveals that employees were workingin the northeast tower (stairway three and four) at a height of 50-60feet without flooring beneath them, no decking or netting, and wereexposed to a fall from such heights. Seba Williamson, one ofRespondent’s foremen, testified there were no nets or decking beneaththe employees working in both the northwest and northeast towers, andmoreover no employees were tied off (Tr. 255-256); this was corroboratedby Burdette and White who were doing connecting work on both towers andunequivocally testified that there was no decking, flooring, planking ornets under them while working up on the steel (Tr. 281-282, 314-315).The hazard of falling from such heights was vividly present and known tothe Respondent. Not only did Williamson, one of the foremen, know of thelack of the necessary fall protection, but this hazardous condition wasknown both to Nichols, a foreman who directed the work and was presentdaily, and Ward, the superintendent who was at the steel erection siteregularly. I was able to observe the Respondent’s employees (Williamson,Burdette and White) as they testified, and all gave the distinctimpression of truthfulness. Their testimony was not discredited norcontradicted by any significant direct evidence nor by any legitimateinferences from the evidence. I find no reason to deny theconclusiveness of their evidence establishing a violation of 29 C.F.R. ?1926.750(b)(2)(i)._Willful Citation No. 2 – item 2 – 29 C.F.R ? 1926.751(a)_The Secretary alleges that Respondent violated 29 C.F.R. ?1926.751(a)[[4]] in that only one bolt was used on connections betweensolid web structural members before releasing the hoisting line of thecrane. Compliance Officer Wiseman inspected the steel structure at theeast end of the premises therein on September 25, 1985, and observed\”more than 50 connections that had only one bolt on the east end of thebuilding\” (Tr. 40, Photograph Gov’t. Exh. 2). His observations wereverified by the men who actually worked on the steel. Williamson, aforeman, testified one bolt was used (Tr. 258) as did Burdette (Tr. 284)and White (Tr. 318). These employees further testified that Nichols,their foreman, was present and fully aware of it. Both Burkart andJaspar, consulting engineers who testified for the Secretary, similarlyfound one bolt was used in numerous connections. The regulatory standardrequires the use of two bolts or the equivalent. The standard beingspecific (requiring two bolts), a prima facie case of violation was madeout by the Secretary, unless the equivalent was shown. Frank Williams,the Respondent’s President, testified that high tension bolts were used,those allegedly being the equivalent of two regular bolts; however hefurther admitted that where there were shear connections using one hightension bolt is not the equivalent of two common bolts.[[5]] Williamsfurther testified that in the northeast stair tower \”some connectionswere shear connections; some of the connections were bearingconnections\” (Tr. 872). The testimony further demonstrated that the onebolt connections were hazardous in that the stability of the structurewas compromised and could have been a contributing cause of thecollapse. Accordingly, the violation of 29 C.F.R. ? 1926.751(a) isaffirmed.[[6]]_Willful Citation No. 2, item 3 – 29 C.F.R. ? 1926.751(c)(1)_[[7]]The Secretary alleges that Respondent violated this section in that thebar joist at Column A.9 was not bolted at the column to provide lateralstability. The evidence shows that Column A.9 was supported in only onedirection (from the east). Trusses 5 through 9 were placed on the beamand stacks of steel decking weighing approximately 3000 pounds each wereplaced thereon prior to the stabilizing of column number 9 so as tosecure it in two directions. The lateral instability of the unsupportedcolumn plus the weight imposed thereon was a contributing factor in Itscollapse.The testimony of Wiseman, Burkart and Jasper confirms these findings.Actually, the Respondent did not deny the presence of lateralinstability arising from the failure to support Column A.9. Instead,Williams’ president testified that because the crane used would not havebeen able to reach the area being constructed, it was necessary to placethe trusses and steel decking before bolting the joist to Column 9. Histheory of impossibility to carry out the steel construction in anotherfashion so as to provide the necessary lateral stability was not proven,and furthermore Williams admitted that \”we could have built temporarysupports all the way around the A-9 column\” to brace it up but did notdo so citing its expense. He further stated, \”if it (meaning column A.9)had not been laterally supported in two directions I would doubt if itwould have moved out.\” Based on the evidence,of record, the violation isaffirmed._Willful Citation No. 2 – item 4 – 29 C.F.R. ? 1926.751(c)(2)_[[8]]The Secretary alleges the Respondent violated 29 C.F.R. ? 1926.751(c)(2)in that a center row of bridging was not provided between a member ofthe trusses as required. The trusses were over 120 feet long. Theevidence establishes that there was no bridging between truss number 1and the beam at the east end of the building (Tr. 594; photograph B ofGov’t. Exh. 3). Furthermore, there was no bridging between truss number4 and 5 as established by the testimony of Wiseman, Burkart and Jasper.These three individuals saw the fallen steel and the decking thereon andsaw no bridging. Additionally, the photographs available starkly revealno bridging present at number 4 truss which remained upright (Tr. 140,594-6, 654-5, photograph B of Gov’t. Exhibit No. 3). Respondent admitsto no bridging between truss number 1 and the east end of the building.His allegation of bridging between truss 4 and 5 was unproven and fliesin the face of the evidence which shows otherwise. Accordingly, theviolation of 29 C.F.R. ? 1926.751(c)(2) is affirmed._Willful Citation No. 2 – item 5 – 29 C.F.R. ? 1926.751(c)(3)_[[9]]The violation alleged is that a load of steel decking was placed on thetrusses before security requirements were met. As previously noted,bundles of metal decking were placed upon the trusses without properbolting of the steel structure (absence of two bolts), without assuranceof lateral stability of Column A.9, and without adequate bridging oftrusses over 120 feet in length. These violations were known to both ofthe Respondent’s supervisors and to management itself. Both Nichols andWard knew or were told of the lack of proper bolting, the bowing of thetrusses due to excess weight of the decking thereon. These actions allcontributed to the general instability of the steel structure and wereviolations of the security requirements. The placement of the steeldecking on the trusses without meeting such security requirements was aviolation of section 1926.751(c)(3), and said violation is affirmed._Alleged Willful Violations under Citation No. 2_The Respondent violated the following sections as found above: 29 C.F.R.? 1926.750(b)(2)(i), 29 C.F.R. ? 1926.751(a), 29 C.F.R. ?1926.751(c)(1(), (2) and (3). The final question is whether theviolations were willful as alleged by the Secretary. To establish that aviolation was willful, the Secretary must show that it was committedwith either an intentional disregard for the requirements of the Act orplain indifference to employee safety. See _Simplex Time Recorder Co._,85 OSAHRC \/ , 12 BNA OSHC 1591, 1595, 1985 CCH OSHD ? 27,456, p35,571 (No. 82-12, 1985), citing _D.A.&L Caruso Inc._, 84 OSAHRC \/ ,11 BNA OSHC 2138, 2142, 1984 CCH OSHD ? 26,985, p 34,694 (No. 79-5676,1984).The record supports a conclusion that Respondent showed an intentionaldisregard and\/or plain indifference to its duties and responsibilitiesunder the Act. There is evidence that the Respondent was issued previouscitations for the same or similar violations of the Act. Testimony bythe president of the Respondent demonstrated that he was aware of theOSHA steel structural standards. He acknowledged his company is thelargest in the field and has numerous projects ongoing and is aware ofthe safety requirements. Despite the previous citations, the violationsherein followed. Moreover, both the Respondent’s supervisor andsuperintendent were aware of the dangerous conditions existing, i.e.improper bolting, improper placing of metal decking on trusses, etc. TheRespondent is charged with knowledge of such unsafe conditions andhazards present which his supervisory personnel knew existed andtolerated, and coming within the scope of their supervisory responsibility.There was testimony by employees of working at heights over 40 feetwithout fall protection. This was known to the Respondent’s supervisorsand allowed to continue. These visibly dangerous conditions were knownto management and allowed to exist. The Respondent’s president admittedthe lateral stability of a column could have been strengthened, butapparently the alleged cost would not allow it; thusly, indifference tosafety was tolerated. While the company had a safety program it appearsonly supervisory help were included; employees testified they did notparticipate in such programs and were not instructed as to safetymeasures on the steel.The evidence as a whole demonstrates a plain indifference and consciousdisregard on the part of the Respondent to the safety requirements ofthe Act, and Respondent \”thereby acted willfully\”.The Secretary proposed a penalty of $45,000 for the willful violationsunder Citation No. 2. Under Section 17(j) of the Act, the Commissionmust give \”due consideration\” to various factors in determining anappropriate penalty such as the gravity of the violation, size of thebusiness involved, good faith of the employer, and history of previousviolations. The gravity of the violations was severe. One employee diedand one was severely injured. The Respondent has been cited previouslyfor a similar violation, is fully familiar with the OSHA regulationsconcerning steel construction yet allows these violations to persist.Its safety program while existent is not monitored to provide dailyassistance to employees, and its supervisors are lax in enforcing OSHAstandards, all with knowledge of top management. The penalty of $45,000is deemed appropriate under all the existing facts and circumstances herein._Findings of Fact_The findings of fact contained in this opinion are incorporated hereinin accordance with Rule 52 of the Federal Rules of Civil Procedure.[[10]]_Conclusions of Law_1. Respondent at all times material to this proceeding was engaged in abusiness within the meaning of Section 3(5) of the Act.2. Respondent at all times material to this proceeding was subject tothe requirements of the Act and the standards promulgated thereunder.The Commission has jurisdiction of the parties and of the subject matter.3. Respondent committed serious violations as follows:_Citation No. 1_Item 1(b) – 29 C.F.R. ? 1926.21(b)(2)4. Respondent committed willful violations as follows:_Citation No. 2_Item 1 – 29 C.F.R. ? 1926.750(b)(2)(i)Item 2 – 29 C.F.R. ? 1926.751(a)Item 3 – 29 C.F.R. ? 1926.751(c)(1)Item 4 – 29 C.F.R. ? 1926.751(c)(2)Item 5 – 29 C.F.R. ? 1926.751(c)(3)5. Respondent committed other than serious violations as follows:_Citation No. 1_Items 2(b) & 2(c) – 29 C.F.R. ? 1926.550(b)(2)6. Respondent did not violate the following:_Citation No. 1_Item 1(a) – 29 C.F.R. ? 1926.20(b)(1)7. The Secretary withdrew item no. 2(a) of Citation No. 1 allegingviolation of 29 C.F.R. ? 1926.550(a)(6).8. Consistent with Section 17(j) of the Act, the following penalties arereasonable and appropriate:_Serious Citation No. 1_Item 1(b) – $450.00Items 2(b) & 2(c) – no penalty (violation reduced to other than serious)_Willful Citation No. 2_Item 1 – $9000Item 2 – $9000Item 3 – $9000Item 4 – $9000Item 5 – $9000_ORDER_1. The allegation of serious violation by the Respondent of the standardset forth at 29 C.F.R. ? 1926.21(b)(2) is AFFIRMED and a penalty of$450.00 is ASSESSED therefor.2. The allegation of willful violations of the standards set forth at 29C.F.R. ? 1926.750(b)(2)(i), 29 C.F.R. ? 1926.751(a), 29 C.F.R. ?1926.751(c)(1), 29 C.F.R. ? 1926.751(c)(2) and 29 C.F.R. ?1926.751(c)(3) is AFFIRMED and a penalty of $45,000.00 is ASSESSEDtherefor.3. An other than serious violation of 29 C.F.R. ? 1926.550(b)(2) isAFFIRMED with no penalty ASSESSED.4. A total aggregate penalty of $45,450.00 is ASSESSED herein.IRVING SOMMERJudge, OSHRCDated: July 2, 1986Washington, D.C. FOOTNOTES:[[1]] The rule provides:_Harmless Error_. No error in either, the admission or the exclusion ofevidence and no error or defect in any ruling or order or in anythingdone or omitted by the court or by any of the parties is ground forgranting a new trial or for setting aside a verdict or for vacating,modifying, or otherwise disturbing a judgment or order, unless refusalto take such action appears to the court inconsistent with substantialjustice. The court at every stage of the proceeding must disregard anyerror or defect in the proceeding which does not affect the substantialrights of the parties._See also_ Federal Rule of Evidence 103(a), which applies in this caseunder both previous Commission Rule 72, 29 C.F.R. ? 2200.72 (1984), andnew Commission Rule 71, 51 Fed. Reg. 32002, 32026 (Sept. 8, 1986), to becodified at 29 C.F.R. ? 2200.71. Fed. R. Evid. 103(a) provides in part:Error may not be predicated upon a ruling which admits or excludesevidence unless a substantial right of the party is affected, . . . .The question whether substantial rights have been harmed has been statedas follows:It comes down on its face to a very plain admonition: ‘Do not betechnical, where technicality does not really hurt the party whoserights in the trial and in its outcome the technicality affects.’_Kotteakos v. United States_, 328 U.S. 750, 760, 66 S.Ct. 1239, 1246 (1946).[[2]] Williams relies on the test of prejudicial error stated in_Gaither v. United States_, 413 F.2d 1061, 1079 (D.C. Cir. 1969).However, that case concerned misstatements of the evidence by aprosecutor to a jury in a criminal trial. When, as in _Gaither_, areviewing court determines whether a trial judge’s error in a case triedto a jury was prejudicial, it must consider the potential for the errorto have affected the jury’s verdict. In our proceedings, however, we arethe ultimate finder of fact, and we need therefore consider only whetherthe judge’s error would affect our own decision in determining whetherthat error is prejudicial. In a case like this, where the judgeerroneously excluded certain evidence, we can determine whether thatevidence, if admitted, would alter our findings of fact. That is a muchdifferent inquiry from determining whether the evidence could havealtered the findings made by another body such as a jury. Accordingly,_Gaither_ is inapposite.[[3]] _Little Beaver Creek Ranches, Inc._, 82 OSAHRC 36\/A2, 10 BNA OSHC1806, 1810, 1982 CCH OSHD ? 26,125, p. 32,878 (No. 77-2096, 1982).[[4]] The record contains numerous designations for this column,including column 9, column A9, column A.9, column A1-9, column 9A, andcolumn G-9. We will simply refer to it as column 9N.[[5]] Williams does not dispute this, but maintains that Judge Sommerthought the trusses also were solid web members. The beams and columnswere solid web members within the meaning of the standard because theirtop and bottom flanges were connected with a solid web of steel. Bycontrast, the trusses were not solid web members; their top and bottomflanges were connected with an open framework of angle irons. We find nobasis in the judge’s decision to conclude that Judge Sommer was confusedon this point; in particular, the page of his decision cited by Williamscontains nothing to support Williams’ argument.[[6]] At the hearing, Williams suggested that its one bolt was theequivalent of two bolts for another reason: that it met the standard’ssupposed purpose of preventing the beam from rolling if it was walkedon. We are, however, not convinced that that was the standard’s onlypurpose. As we shall discuss below with respect to item 5, this standardimposes what section 1926.751(c)(3) terms a \”security requirement,\” thatis, a requirement that structural steel members are secure before loadsare placed on them. Moreover, testimony introduced by Williams was thatto prevent rolling, beams had to be bolted at their top holes. The beamsWilliams installed, however, were sometimes not bolted at their topholes, as photographs in evidence show.[[7]] There was a total of nine trusses to the east of columns 9N and9S. Apparently, however, the Secretary’s concern was with the fivetrusses to the immediate east of those two columns. The other fourtrusses were farther east in a separate bay–that is, a rectangularsection of the structure with a column at each corner. All columns inthat easternmost bay (10N, 10S, 11N and 11S) had been framed in twodirections, and they did not collapse. However, the five trusses in thebay bounded by columns 9N, 9S, 10N and 10S had been set without firstfield-bolting a bar joist between columns, 9N and 9S so that thosecolumns would be framed in two directions. The Secretary’s expert instructural steel, Matthew Burkart, testified that this constituted theviolation:[T]he the violation exist[s] because [Williams] had previously erectedfour joists that sit on that beam [connecting columns 9N and 10N] andput decking on top of them before they secured that last column [9N]from moving.[[8]] The state of the bridging that had existed between the trussesthat fell is not completely clear from the record.[[9]] The basis for Woods’ view is that the downward force exerted bythe weight of the steel decking would tend to prevent perimeter columnsfrom tilting away from the structure and that the load-bearing capacityof the trusses far exceeded the weight imposed. In Woods’ opinion, theweight of the decking made the collapse more difficult because itincreased the resistance to Nichols’ attempt to move column 9N laterallyat the time it collapsed.Though it plays no part in our finding, we are puzzled at this proffer.It appears to contradict the testimony of Williams’ president that theload on a column is related to the deviation of the column from thevertical times the weight on the column; his testimony suggests thatonce a column starts to lean, the weight on it accentuates the leaningeven more.[[10]] The Secretary introduced in evidence five previous citations toWilliams (three from the Secretary, two from the State of Maryland) fornoncompliance with the steel erection standard at ? 1926.750(b)(2)(i).One of those citations was affirmed and a willful violation found by theCommission and the D.C. Circuit. _Williams Enterprises, Inc._, 83 OSAHRC26\/A2, 11 BNA OSHC 1410, 1420, 1983-84 CCH OSHD ? 26,542, p. 33,880 (No.79-843, 1983), _aff’d_, 744 F.2d 170 (D.C. Cir. 1984). Another of thosecitations was affirmed and a serious violation found by the Commission._Williams Enterprises, Inc._, 78 OSAHRC 80\/D12, 6 BNA OSHC 1696, 1978CCH OSHD ? 23,064 (No. 76-1801, 1978). Judge Sommer found, with respectto item 1 of citation 2, that Williams had willfully violated ?1926.750(b)(2)(i), the same Standard cited in the previous citations.[[11]] Although Ward denied knowing that the bridging was incomplete, hehad every opportunity to see it on September 21 when he observed thedecking directly above unbridged trusses and observed the bridgingwithin a boxed pair of trusses being erected. His testimony indicatesthat the first four trusses already had been erected, completing theeasternmost bay.[[12]] Williams asserts that the judge erred in failing to respond toits motion to him for a new trial, filed the afternoon before hisdecision was docketed with the Commission (he had sent copies of hisproposed decision to the parties about 20 days previously, as is theCommission’s practice). Williams does not explain how the judge erred inthis regard and we will not attempt to determine whether he erred,because any error again was harmless. Fed. R. Civ. P. 61 providesspecifically that no error \”is ground for granting a new trial or forsetting aside a verdict . . . unless refusal to take such action appearsto the court inconsistent with substantial justice.\” We have exercisedour authority to determine the facts and the merits of all the disputedissues _de_ _novo_. Williams’ substantial rights cannot be harmed by ourprocedure.The Secretary argues that the Commission erred in its preliminarydecision in (1) finding that Williams complied with the judge’s pretrialand discovery orders and (2) permitting Williams to proffer the excludedevidence on review. We need not address these issues because the profferof the excluded testimony has not affected our dispositions. [[1]] _The American Heritage Dictionary of the English Language_, 1976Edition, p. 676.[[2]] _The American Heritage Dictionary_, p. 787.[[3]] 29 C.F.R. ? 1926.750(b)(2)(i) provides in part:(2)(i) Where skeleton steel erection is being done, a tightly plankedand substantial 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 . . .[[4]] 29 C.F.R. ? 1926.751 provides:_Structural steel assembly_.a) During final placing of solid web structural members, the load shallnot be released from the hoisting line until the members are securedwith not less than two bolts, or the equivalent at each connection anddrawn up wrench tight.[[5]] By Mr. Amchan at page 873 of transcript:Q. Mr. Williams, I believe on direct examination, you testified that onehigh-tensile-strength bolt was the equivalent of two regular bolts.Using these values that you just read from the AISC manual, can you saythat using the shear calculations?A. I was reading from the bearing calculation. I believe, when I quotedit earlier in my direct testimony. I think in the shear calculations,you do have a reduction factor there for those bolts there were inshear. That’s what the Code says, and that’s what it is.Q. So that when you have a shear connection, using these calculations,using one-tensile strength bolt would not be the equivalent of twocommon bolts?A. Not quite. It is 15,000 versus 10,000; it is one and a half.Q. So it is basically one and half.A. Yes.[[6]] Respondent’s brief at page 16 suggests that this section does notapply if the structure here is \”tiered\”. This argument is unpersuasive.The standard at section 1926.751 affords no basis for suchinterpretation. Absent any language restricting its applicability, itwould apply to tiered and non-tiered structures.[[7]] 29 C.F.R. ? 1926.751 _Structural steel assembly_.* * *(c)(1) In steel framing, where bar joists are utilized, and columns arenot framed in at least two directions with structural steel members, abar joist shall be field-bolted at columns to provide lateral stabilityduring construction.[[8]] 29 C.F.R. ? 1926.751 _Structural steel assembly_.* * *(c)(2) Where longspan joists or trusses, 40 feet or longer, are used, acenter row of bolted bridging shall be installed to provide lateralstability during construction prior to slacking of hoisting line.[[9]] 29 C.F.R. ? 751 _Structural steel assembly_.* * *(c)(3) No load shall be placed on open web steel joists until thesesecurity requirements are met.[[10]] Rule 52. Findings by the Court.(a) _Effect_. In all actions tried upon the facts without a jury ***,the Court shall find the facts specially and state separately itsconclusions of law thereon. ***. If an opinion or memorandum of decisionis filed, it will be sufficient _if the findings of fact and conclusionsof law appear thereon._ (Emphasis supplied)”