“Docket No. 85-0355 SECRETARY OF LABOR, Complainant, v. WILLIAMS ENTERPRISES, INC., Respondent.BUILDING AND CONSTRUCTION TRADES DEPARTMENT, AFL-CIO, Intervenor.OSHRC Docket No. 85-0355DECISION Before: BUCKLEY, Chairman, and WALL, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(j), section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). TheCommission is an adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”). It was established toresolve disputes arising out of enforcement actions brought by the Secretary of Laborunder the Act and has no regulatory functions. See section 10(c) of the Act, 29U.S.C. 659(c).At issue is whether Deputy Chief Administrative LawJudge Irving Sommer committed reversible error in precluding Williams Enterprises, Inc.from presenting the testimony of an expert witness, James W. Woods. Also at issue iswhether the judge erred in failing to grant Williams a new trial and in relying onprevious OSHA citations to Williams in finding that various violations were\”willful.\”Williams was the steel erection subcontractor for theconstruction of an addition to Coolidge High School in Washington, D.C. On September 25,1984, Part of the steel framework that Williams had erected collapsed, killing oneWilliams employee and injuring two others. OSHA investigated the accident and issuedcitations alleging, among other things, five willful violations of steel erectionstandards. The judge affirmed all five willful items and assessed the proposed penalty of$9,000 for each one. Williams petitioned the Commission for review of the judge’sdecision, and that petition was granted.In a Preliminary Decision and Briefing Order ofOctober 6, 1986, the Commission held that the judge’s ruling precluding Woods’ testimonywas error. The judge had ruled that Williams had failed to properly identify Woods as awitness before the hearing in accordance with the judge’s orders. However, the Commissionfound that Williams had complied with the 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 was prejudicial. It issued abriefing order instructing Williams to specify in detail the testimony Woods would give ifpermitted to testify and to explain how that testimony, if credited, would affect thejudge’s findings of fact and conclusions of law. The briefing order also instructedWilliams to specify any exceptions it had to the Judge’s decision other than the exclusionof Woods’ testimony. Williams has made a proffer of Woods’ testimony and has specified asadditional errors the judge’s failure to grant a new trial and his reliance on previouscitations issued to Williams.Having previously ruled that the judge’s preclusionof Woods’ testimony was error, we must now determine whether that error was harmless. SeeFederal Rule of Civil Procedure 61; 29 C.F.R. ? 2200.2(b) (Federal Rules apply toCommission proceedings); 29 U.S.C. ? 661(g).[[1]]. In a civil case such as this, \”Hewho seeks to have a judgment set aside because of an erroneous ruling carries the burdenof showing that prejudice resulted\”. Palmer v. Hoffman, 318 U.S. 109, 116, 63S.Ct. 477, 482 (1943).[[2]]The judge’s error was harmless if Woods’ profferedtestimony could not have changed the outcome of the case even if given the maximum creditit would be legally entitled to receive. Woods’ proffered testimony relates to four itemsof citation 2: items, 2, 3, 4, and 5. Those items concern the number of bolts required forstructural steel members, the measures required 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 havechanged the outcome of the case, we have exercised our authority, as the ultimate finderof fact,[[3]] to determine whether the existing record supports the judge’s disposition ofitems 2, 3, 4, and 5, and to then determine whether Woods’ proffered testimony, if giventhe maximum credit to which it would be entitled, would change that disposition. Havingdone so, we conclude that the judge’s error was harmless as to all four items. We affirmhis disposition of items 2, 3 and 5. We modify his disposition of item 4, finding thatviolation willful but reducing the penalty to $4,500 for reasons unrelated to Woods’proffered testimony.Williams was erecting the structural steel frameworkfor a gymnasium which was to have a high roof and a large open expanse underneath. Thebuilding was to have a rectangular framework of structural steel columns and beams aroundits perimeter. The roof was to be supported by trusses (also called \”joists\”)set on top of the beam-and-column framework and spanning the width of the structure. Metaldecking atop the trusses would form the roof.Each truss was about 130 feet long and had to belifted atop the beam-and-column framework, which was about 40 feet high, by means of acrane. Generally the trusses were connected (bridged) in pairs on the ground before beinglifted and placed on the perimeter beams. Williams had started at the west end of thestructure and had set a number of trusses in place from west to east. This work proceededwithout incident. Williams then began to do the same thing from the east side of thestructure. It was setting the trusses with a crane inside the structure, and planned toset as many trusses as possible that way, then remove that crane by means of an opening ithad left on the north side of the structure and bring in a larger crane to set theremaining trusses from outside the north side.Starting at the easternmost end, Williams placed ninetrusses, working east to west. The tenth truss was to run between two columns, which weshall designate as 9N (for north)[[4]] and 9S (for south). That truss was to be bolted tothe two columns. While Williams’ foreman Tommy Nichols and its ironworker Mark White wereattempting to line up the holes at column 9N to place the bolts, the column toppledoutward and some of the steel framework, including trusses 5 through 9, fell to theground. Nichols was killed and White badly injured. Another employee on the ground wasalso injured when struck by a failing truss.Item 2–Number of Bolts Required For Final Placingof Structural Members. The cited standard ? 1926.751(a), provides:? 1926.751 Structural steel assembly.(a) During the final placing of solid web structuralmembers, the load shall not be released from the hoisting line until the members aresecured with not less than two bolts, or the equivalent at each connection and drawn upwrench tight.Item 2 of citation 2 alleges that Williams violatedthis standard. The parties do not dispute that, during the final placing of perimeterbeams by a crane, the beams were released from the crane’s hoisting line before they weresecured to vertical columns with two bolts. The parties also do not dispute that the beamsand columns were solid web structural members. [[5]] The parties disputed before JudgeSommer whether the one special bolt Williams used at each connection was the\”equivalent\” of two bolts within the meaning of section 1926.751(a). JudgeSommer found that it was not. We agree.In constructing the steel framework of the building,Williams bolted columns to concrete footings. Beams were then lifted into place using acrane, bolted to the columns, and released from the crane’s hoisting line. Williams’policy, which was followed on many, if not all, beam and column connections in theframework, was to install one bolt per connection before releasing the beam from thehoisting line. Later, after the framework was properly plumbed, the additional boltsrequired by the construction specifications were to be installed.Williams’ president, Frank Williams, Jr., testifiedthat it was standard industry practice to use one bolt per connection during the initialphase of steel erection. He noted that the standard does not absolutely require the use oftwo bolts but permits employing \”the equivalent.\” Relying on a manual publishedby the American Institute for Steel Construction (\”AISC\”), which he described as\”the standards group for the steel industry for many, many years,\” Williams’president testified that the type of bolt they were using, a high-strength bolt, was theequivalent of the two bolts mentioned in the standard. The AISC manual said: \”unlesshigh-strength bolts or other special types of bolts and washers are specified, commonbolts are furnished.\” The manual also, according to Williams’ president, stated thathigh-strength bolts have twice the tensile strength of common machine bolts. Therefore, inhis view, the standard’s unqualified reference to bolts meant that the standardcontemplated common bolts, and since one high-strength bolt had twice the tensile strengthof one common bolt, a single high-strength bolt was the equivalent of the two boltsrequired by the standard.[[6]]However, on cross-examination, Williams’ presidentwas questioned about the difference between bearing connections and shear connections. Ina bearing connection, the beam rests on top of a column and thus bears down on the column.In a shear connection, the beam is bolted to a plate on the face of the column. Williamsread from the AISC manual that in a shear connection, the high-strength bolt has only 1.5times the strength of the common bolt. Williams’ president admitted that his previoustestimony that high-strength bolts had twice the strength of common bolts applied tobearing connections, not shear connections. Yet, many of the connections here were shearconnections.As a result, the judge found that Williams did notuse the equivalent of two bolts in each connection, and he affirmed this item. On review,Williams does not expressly renew its argument that one high-strength bolt is theequivalent of two bolts. Williams does, however, argue that the use. of a single bolt didnot cause or contribute to the collapse of the structure. It also proffers the testimonyof Mr. Woods that \”the use of one bolt instead of two in no way caused or contributedto instability or the later collapse of the structure.\”In our preliminary decision, we ordered Williams tospecify how Mr. Woods’ proffered testimony was relevant to each citation item. In arguingthat Mr. Woods’ testimony is relevant, Williams points to three issues of fact that itclaims Mr. Woods’ testimony would relate to: willfulness; good faith; and the cause of theaccident. In arguing that the cause of the accident is relevant, Williams states that theSecretary \”made causation relevant\” by alleging that the cited violations\”contributed to the cause and severity of the accident . . . .\” It also notesthat the judge relied on causation between the accident and the violations in assessingthe gravity of the violation and assessing penalties.We have many times held, and in our preliminarydecision again pointed out, that the cause of an accident is not necessarily relevant towhether a standard was violated. E.g., Towne Construction Co., 86 OSAHRC __\/__,12 BNA OSHC 2165, 2188 n. 7, 1986 CCH OSHD ? 27,760, p. 36,310 n. 7 (No. 83-1262, 1986); ConcreteConstruction Corp., 76 OSAHRC 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 provide probativeevidence of whether a standard was violated. However, Williams does not claim that thecircumstances of the accident shed light on the equivalency issue. We therefore are notconvinced that Mr. Woods’ testimony would be relevant to the question of violation.Willfulness, good faith and gravity must, however, be taken into account in assessing apenalty. We shall therefore discuss Williams’ proffer on these points when we discuss theappropriateness of the judge’s penalty assessment.Williams also represents that Woods would testifythat, as to item 2 and each of the other alleged violations in question here, whatWilliams did \”in its plan of erection was normal industry practice . . . .\”Specifically as to item 2, Woods’ proffered testimony is that \”the use of onehigh-strength bolt is common practice in the industry.\” This proffer is, however,beside the point of whether violations of the cited standards occurred. That an employer’sconduct conformed to normal industry practice is not relevant if the standardunambiguously prescribed different conduct. See Cleveland Consolidated, Inc.,87 OSAHRC __\/__, 13 BNA OSHC 1114, 1117, 1987 CCH OSHD ? 27,829, p. 36,428-29 (No.84-696, 1987) and cases cited. Inasmuch as the standard cited here is specific andunambiguous, Williams’ proffer is irrelevant to the violation issue. We therefore affirmitem 2 of citation 2.Item 3–Unstabilized ColumnItem 3 of citation 2 alleges that Williams violated29 C.F.R. ? 1926.751(c)(1). That standard provides:In steel framing, where bar joists are utilized, andcolumns are not framed in at least two directions with structural steel members, a barjoist shall be field-bolted at columns to provide lateral stability during construction.The trusses Williams was installing to support thegymnasium roof are \”bar joists\” within the meaning of this standard. It isundisputed that column 9N was not framed in at least two directions and that a truss wasnot field-bolted to the column to provide lateral stability during construction. AlthoughWilliams’ employees were attempting to bolt a truss between column 9N and column 9S at thetime of the collapse, Williams had performed construction work before it attempted tolaterally stabilize column 9N: It had previously laid trusses on the beams supported bycolumns 9N and 9S.[[7]]Williams does not dispute that it violated thestandard. Instead, it claims that compliance was, infeasible. An employer may defendagainst a citation on that basis. Dun-Par Engineered Form Co., 86 OSAHRC __\/__,12BNA OSHC 1949, 1986 CCH OSHD ? 26,650 (No. 79-2553, 1986), appeal filed, No.86-2365 (8th Cir. October 30, 1986). According to Williams’ president, if a truss hadfirst been bolted between columns 9N and 9S, then in order to place the remaining fivetrusses in that bay, Williams would have had to reach over that truss with the crane itthen had at the site, which was beyond that crane’s capacity.The difficulty with this evidence is that it assumesthat all ten trusses had to be set using the particular crane that was then at the site.It is the duty of an employer to use equipment that permits him to comply with theSecretary’s standard. If performing the construction work required the use of a largercrane, Williams was required to use one. Moreover, Williams’ president testified that alarger crane would eventually have to be brought to the site to set the trusses in thecenter of the gymnasium after the smaller crane had been moved outside the structure’sperimeter. This larger crane would obviously have had the capacity to set trusses whilesituated outside the perimeter. The company offered no reason, and none is apparent, why atruss could not have been bolted between columns 9N and 9S before the five trusses to itseast were erected, and a larger crane used to set the intermediate trusses. Photographicexhibits in evidence indicate that there would be no impediment to locating a craneoutside the perimeter on the north side, adjacent to the ultimate location of those fivetrusses. In sum, Williams did not demonstrate that compliance with the standard would beinfeasible.Woods’ proffered testimony on this item reiteratesthe claim that the trusses had to he erected in the order Williams erected them due to thelimitations of the smaller crane. Nothing in the proffer adds to the evidence already inthe record, and thus the proffered testimony does not affect our view that infeasibilitywas not proven.Woods’ other proffered testimony as to this item isrelated to items 4 and 5. Williams states that Woods would testify that the collapse ofcolumn 9N was due to lateral force imposed on it by foreman Nichols in trying to connecttruss 10 to the Column, and that the decking placed on the trusses made column 9N moreresistant to collapse than if none had been there. Woods also would testify that \”thesame accident would have occurred if this truss had been erected first in the sequence[and] it would have taken less lateral force than that exerted by IronworkerNichols to trigger the collapse.\” (Emphasis in original.)However, even if correct, this proffer is notrelevant to whether a violation occurred. Again, the essential point of the profferedtestimony is that the violation of the standard did not increase the likelihood of theparticular collapse that occurred. But it does not tend to disprove that the specificterms of the standard were violated. It is true that column 9N would remain somewhatunstable until the truss was 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 9N partiallystabilized the column as it was erected. But the standard specifically requires the columnto be fully stabilized before other construction work is done, not partially stabilized insteps. We therefore 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 center row of bolted bridging shall be installed to provide lateral stabilityduring construction prior to slacking of hoisting line.The parties do not dispute that Williams employed130-foot-long trusses and that, before the slacking of a crane’s hoisting line, a centerrow of bolted bridging was not installed to provide lateral stability during construction.Bridging is used to prevent the bending or bowing oflong trusses, which could cause them to become detached from the beams to which they werebolted or welded and fall to the ground. The standard requires a single center row ofbridging to provide lateral stability to the trusses and prevent them from bowing. Here,due perhaps to the great length of the trusses, the design of the building provided forfive rows of bridging connecting each truss to the next one, and connecting them all tothe perimeter beams running parallel to them. A single row of this bridging consists of anangle iron running from the top chord of one truss to the bottom chord of the adjacenttruss, along with a second angle iron going from the bottom chord of the first truss tothe top chord of the second truss. Thus, the two angle irons would form an \”x.\”Where an angle iron meets a truss, it would be bolted to the truss.To erect the trusses at this jobsite, Williams firstconnected five rows of bridging between each pair of trusses while the trusses were on theground. The company then lifted this \”boxed pair\” of trusses to roof level withthe crane. Photographic exhibits show that some bridging had also been completed betweenthe first \”boxed pair\” of trusses (trusses 1 and 2) and the second \”boxedpair\” (trusses 3 and 4). These four trusses remained standing after the collapse. Theremaining trusses fell to the ground (except for the tenth truss, which was being erectedat the time and remained suspended from the crane after the collapse).[[8]]The record shows that there was no bridging in atleast two locations: between the first truss and the beam at the eastern end of thebuilding, and between the fourth and fifth trusses. The fourth truss remained in placeafter the collapse and exhibited no sign that it had been bridged to the fifth truss.The judge found that Williams Enterprises failed tocomply with the standard based on the complete absence of bridging between the first trussand the beam adjacent to it and between the fourth and fifth trusses. We agree. Section1926.751(c)(2) requires a center for of bridging and it obviously means a complete row.Thus, the gaps in the bridging found by the judge, are contrary to the standard’srequirement.Williams proffers that Woods would testify as to item4 that \”his recommended plan of erection, and the one followed in this instance,would have been to put up the trusses in pairs with connecting bridging between the pairs,and then place metal decking on those trusses to provide lateral stability pending theplacement of additional bridging after all. the trusses are up.\” Williams’ profferalso states that this is the \”normal sequence\” of construction and that \”in[Woods’] professional engineering opinion . . . placing bridged trusses in pairs as wasdone here is consistent with the meaning of 29 CFR ? 1926.751.\” Williams alsorepresents that Mr. Woods would have testified that \”in his professional opinion itwas not safe or feasible to put up the remaining bridging until all the trusses wereplaced and properly aligned.\” Finally, we are told that Woods would testify that\”since no bridging existed between the pairs of trusses and the east end of thebuilding, less steel fell as a result of the collapse\” and the absence of bridgingdid not contribute to the collapse.This proffer is insufficient. First, Woods’\”recommended plan of erection\” or the \”normal sequence\” of steelerection violates the specific terms of the standard. Such testimony would not establishan affirmative defense to the citation. Second, Woods’ proffered opinion that it was\”not safe or feasible\” to put up the remaining bridging until all the trusseswere placed and properly aligned is not explained, despite our instruction that Williamssummarize \”in detail\” the testimony Woods would give. It is the employer’sburden to prove that compliance with a specific standard, like the one here, would beinfeasible. E.g., Dun-Par Engineered Form Co., 86 OSAHRC __\/__, 12 BNA OSHC1962, 1966-67, 1986 CCH OSHD ? 27,651, pp. 36,033-2, -3 (No. 82-928, 1986). Williams hasproffered no facts that would support a claim that compliance would not have been feasiblein this case and we reject the proffer for this reason. See, e.g., Millerv. Poretsky, 595 F.2d 780, 785 (D.C. Cir. 1978) (exclusion of evidence not prejudicialwhere proffer is insufficient). Samuel H. Moss, Inc. v. FTC, 148 F.2d 378, 380 (2dCir. 1945) (exclusion of testimony not harmful where proffered testimony did not addressessential issue). Indeed, the fact that some bridging had been installed between trusses 2and 3 and must have been installed after those trusses were placed on the beams underWilliams’ method of erection is substantial evidence that compliance with the standard wasfeasible.The same is true of Woods’ proffered assertion thatcompliance with the standard would not have been \”safe.\” This assertion too isentirely unexplained. Moreover, it is insufficient. There are situations where no means ofcompliance is completely safe. The Commission has therefore held that to make out anaffirmative defense in this regard, the employer must show not only that compliance with astandard would create a hazard but that compliance would create greater hazardsthan noncompliance. 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 trusseswere placed and properly aligned, the proffer does not establish that Williams could nothave placed and properly aligned all the trusses before it placed decking on top of them.It appears unlikely that placing heavy bundles of decking on the trusses, as Williams did,would have made them easier to align. Moreover, if it was necessary, as Woods’ proffersuggests, to properly align the trusses before installing the remaining bridging, thereappears to be no reason why the trusses in one bay could not be properly aligned and thebridging installed before the trusses in the next bay were erected. Here, however, thetrusses in the first bay at the eastern end of the building were lacking a complete centerrow of bridging while those in the second bay were being installed.As to Woods’ proffered opinion that \”placingbridged trusses in pairs as was done here is consistent with the meaning of 29 CFR ?1926.751,\” it may be that the initial placing of trusses in \”boxed pairs,\”rather than individually, is consistent with the standard. However, the standard alsoplainly requires a continuous center row of bridging \”before slacking of hoistingline,\” and Williams admittedly did not do this. Its bridging procedures as a wholedid not comply with ? 1926.751.Woods’ remaining proffered testimony merely assertsthat the violation was 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 asfollows:No load shall be placed on open, web steel joistsuntil these security requirements are met.There is no dispute that loads had been placed onopen web steel joists. Bundles of the steel decking that would ultimately form the roof ofthe gymnasium were lifted to roof level and were resting on the trusses at the time of thecollapse. The bundles each weighed about 3,000 pounds. Three bundles were placed on thefour trusses at the eastern end of the building. Five or six bundles of decking had beenplaced on the next five 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 loadswere placed on the trusses before the standards’ other security requirements were met. TheSecretary’s expert witness in structural steel, Matthew Burkart, testified that thesecurity requirements to which the standard refers are the bolting, column stabilization,and truss bridging requirements cited in the three items discussed above. Burkart’stestimony is consistent with the purpose and organization of the standards. The bolting,column stabilization, and truss bridging standards are requirements intended to assurethat the structural members of the building–the beams, columns, and trusses–areadequately supported during the construction work. They are therefore \”securityrequirements\” within the plain meaning of those words. Also, Williams does not arguethat \”security requirements\” has any meaning other than that to which Burkarttestified. Nor does Williams establish an infeasibility defense, its president admittingon cross-examination that the placement of loads on the trusses could have waited untilafter bridging was completed. Inasmuch as Williams had not complied with the bolting,column stabilization, and truss bridging requirements, the present record indicates thatWilliams was not permitted by section 1926.751(c)(3) to place the bundles of steel deckingon the trusses.Williams’ proffer does not change this conclusion.Williams represents that Mr. Woods would testify that \”joists bridged in pairs andthe placement of steel decking across the top chords of the joists added stability to theentire chord system and did not and could not have caused or contributed to the collapseof column [9N].\” As we have said, such proffers are irrelevant to whether thestandard was violated. We are also told that Woods would testify that the testimony of theSecretary’s experts that the decking had a destabilizing effect on the structure \”isnot, supportable in engineering logic.\”[[9]] Even if this were so, it falls far shortof proffering an affirmative defense to Williams’ violation of the standard. For onething, Williams does not proffer a showing that compliance with ? 1926.751(c)(3) wouldhave created greater hazards than noncompliance. We therefore affirm item 5.WillfulnessWe 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 \”withintentional, knowing or voluntary disregard for the requirements of the Act or with plainindifference to employee safety.\” Asbestos Textile Co., 84 OSAHRC 48\/B12, 12BNA OSHC 1062, 1063, 1983-84 CCH OSHD ? 27,101, pp. 34,948 (No. 79-3831, 1984). It is notenough for the Secretary to show that an employer was aware of conduct or conditionsconstituting a violation; such evidence is necessary to establish any violation, seriousor nonserious. 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 onother grounds on rehearing en banc, 519 F.2d 1215 (3rd Cir. 1974), aff’d on othergrounds sub nom. Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977) (\”It is obviousfrom the size of the penalty which can be imposed for a ‘willful’ infraction–ten timesthat of a ‘serious’ one–that Congress meant to deal with a more flagrant type of conductthan that of a ‘serious’ violation\”). A willful violation is differentiated by aheightened awareness–of the illegality of the conduct or conditions–and by a state ofmind–conscious disregard or plain indifference. There must be evidence that an employerknew of an applicable standard or provision prohibiting the conduct or condition andconsciously disregarded the standard. Without such evidence of familiarity with thestandard’s terms, there must be evidence of such reckless disregard for employee safety orthe requirements of the law generally that one can infer that if the employer had known ofthe standard or provision, the employer would not have cared that the conduct orconditions violated it. It is therefore not enough for the Secretary simply to showcarelessness or lack of diligence in discovering or eliminating a violation; nor is awillful charge justified if an employer has made a good faith effort to comply with astandard or eliminate a hazard, even though the employer’s efforts are not entirelyeffective or complete. See Brock v. Morello Brothers Construction, Inc., 809F.2d 161, 163-65 (1st. Cir. 1987), and cases cited therein; Asbestos Textile Co.; MarmonGroup Inc., 84 OSAHRC 27\/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’ actionsdemonstrated \”a plain indifference and conscious disregard . . . to the safetyrequirements of the Act,\” and thus were willful. He relied on evidence of previouscitations to Williams for similar violations;[[10]] on its president’s knowledge of thestandards; on the fact that Williams admittedly is the largest steel erector in theWashington, D.C. area; and on its site supervisors’ knowledge of the conditionsconstituting violations. In addition, the judge relied on the lack of safety training ofnon-supervisory employees.We agree with the judge that the violations werewillful for the following reasons. In evaluating willfulness, a primary consideration isthe employer’s attitude toward the Act and the standards adopted under it, Mr. Williams,the president of the company, testified that he had been familiar with the standards sincetheir adoption. However, when Mr. Williams discussed the placing of decking on thetrusses, he suggested that this was permissible because it was as safe as the measuresrequired by section 1926.751(c)(3), although the standard unambiguously prohibits what Mr.Williams would permit. The company does not claim and made no attempt to show that it hadobtained a variance from the standard 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 the standard seriously.As we have said, the standard, which requires two bolts or the \”equivalent,\” isa \”security requirement\” within the meaning of a closely-related standard,section 1926.751(c)(3). An employer familiar with the standards, as Mr. Williams was,could not conclude in good faith that he was permitted to use only one-bolt connections onthe theory that they could be done in such a way as to prevent trusses from rolling whenemployees walked on them, or that a single high- strength bolt is the equivalent of two,when the very industry booklet he relied on stated expressly that this equivalence did notobtain in the shear connections that Mr. Williams knew were employed here. Suchinattention to the purpose of the standard and the critical details of safety are, givenMr. Williams, long familiarity with the steel erection standards, strongly indicative of adisregard for the standard.The same is true of the testimony of Mr. Williams(and Mr. Woods’s proferred testimony) as to item 3 that securing a bar joist to column 9Nto give it two-way stability before setting intermediate trusses was not feasible becausethe crane at the site could not perform the work. That assumes that Williams had to usethat particular crane for the work. As discussed above, a larger crane could have beenused 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 (item4) as well as the decking violation (item 5), Mr. Williams testified:I’m not bragging, but I think I am probably asexperienced in the steel erection business as anybody in the United States, and from theday that I have been around this business, even until today, you put joists up, you putbridging between the two adjacent joists, which is exactly what was done on this project.You’ve got a pair of joists with bridging between them. You’ve got an opening and anotherpair of joists with bridging 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 openingbetween one boxed pair 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 bya number of Williams’s supervisors. Superintendent Ward, who reported directly to Mr.Williams, was regularly present during the erection of the steel. He saw it as it went up.He obviously knew that only one bolt was used per connection, for that was Williams’normal procedure and would in any event have been apparent when Ward saw the frameworkbeing erected. He saw that decking had been placed on the steel frame before securityrequirements had been met. He undoubtedly knew that the trusses were to be erected insequence and that column 9N would remain unstabilized while trusses 5-9 were erected inthe same bay. He was present on the job site on September 21 when column 9N was framed inonly one direction and, 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 theframing was correctly done. The testimony demonstrates either that Williams has donelittle to educate its top managers such as Ward in the requirements of OSHA’s standards orthat those managers do not take the standards seriously. Williams seems to have nevertaken to heart the very first paragraph of its safety program:Safety starts at the top and it must have the activesupport of top management. Too often, safety plans are allowed to deteriorate from lack ofinterest by top management.The safety program administered for Williams byAlexander Czernowski involved safety meetings and the distribution of copies of safetyrules to supervisors, but no safety instructions to its non-supervisory employees at thesite, as judge Sommer found in affirming a violation of ? 1926.21(b)(2), a finding thatis not contested on review. Moreover, safety specialist Czernowski was unaware whether theforeman at the site, Nichols, had had any safety training, and he had never spoken to him.The conduct of Williams’s supervisors also showed anunwillingness to provide a margin of safety for employees. On Thursday, September 20, fivedays before the collapse, D.C. building inspector Ross Lawson complained to foremanNichols, who directed the steel erection for Williams, and Art Durrah, a representative ofthe general contractor, that the steel was not aligned properly, that additional cableswere needed to correct the situation and that the bar joists needed to be tied in to theperimeter beams. Nichols and Durrah promised to make whatever corrections were required.However, the conditions were not rectified before the collapse.On September 21, Gary Mercer, another representativeof the general contractor, questioned Nichols about why decking had been placed on thetrusses and why the bridging between the trusses was incomplete. That same day, and againearly on September 25, Williamson told Nichols that placing the decking at that stage wasnot the proper procedure. According to Williamson, Nichols \”just kind of laughed andwent ahead and did it anyway.\” Williams ironworker Burdette also voiced fears toNichols that the trusses could collapse sideways under the weight of the decking, and hepointed out that the trusses were visibly bowed.Williams’ superintendent Ward, who had many years ofexperience in steel erection, visited the jobsite on the 21st. Column 9N and the northeaststairtower were visibly leaning and Ward became aware of the decking atop the trusses.However, Ward did not ask Nichols to remove the decking or take steps to comply with anyof the standards involved here. Ward testified that he told Nichols by phone on the 24thto stop the steel erection until the northeast stairtower was secured by cables, and notto be concerned about the crane being idle. However, Nichols did not follow that advice.On the morning of the collapse, D.C. safety inspectorLawson, seeing that the conditions of which he had complained had not been corrected,confronted Nichols and Durrah. He told them the situation was dangerous and that therewere not enough bolts in place in the structural members, creating what he termed \”ahinging effect.\” He asked Nichols not to erect steel that day and said he would tryto get the job closed down until the situation was corrected. (Lawson had no authority toshut the job down. Only the D.C. Contracting Officer could order that.) Nichols and Durrahrejected Lawson’s warnings; Nichols proceeded with his work with several Williamsemployees, one of whom went up on the beams with him.The record in this case shows that Williams’management was indifferent to whether it’s jobsite supervisors understood OSHA’srequirements. It also shows that the supervisor in charge of steel erection deliberatelyand repeatedly ignored warnings of serious safety hazards due to the violative conditions.Williams proffers that Woods would testify that itsprocedures on this job were consistent with the normal practice in the steel erectionindustry and that none of the conditions endangered the stability of the structure.Williams also asserts that Woods’ proffered testimony would establish that even ifWilliams exercised poor judgment, it did not disregard known risks or hazards, and showedgood faith, making a willful characterization of the violations inappropriate. A violationis not willful if the employer had a good faith opinion that the violative conditionsconformed to the requirements of the cited standard. However, the test of an employer’sgood faith for these purposes is an objective one–whether the employer’s beliefconcerning a factual matter or concerning the interpretation of a standard was reasonableunder the circumstances. E.g., Kus-Tum Builders, Inc., 81 OSAHRC 97\/82, 10BNA OSHC 1128, 1132, 1981 CCH OSHD ? 25,738, p. 32,106 (No. 76-2644, 1981). Even if it istrue, as Williams asserts, that it followed common industry practice, that would notchange our conclusion. The standards cited here are specific and unambiguous, and Williamscould not have believed in good faith that it was complying with them.Penalties We now analyze whether the judge’s penaltyassessments for items 2 through 5, which were the same proposed by the Secretary, wereappropriate based on this record, and whether Woods’ testimony, if fully credited, wouldaffect our conclusions. Section 17(j) of the Act, 29 U.S.C. ? 666(j), states that inassessing penalties the Commission is to give \”due consideration\” to the size ofthe employer’s business, the gravity of the violation, the employer’s good faith, and hishistory of previous violations. Judge Sommer assessed $9,000 for each willful violation hefound. He based this on what he termed the severe gravity of each violation, the previouscitations to Williams, Williams’ complete familiarity with the steel erection standards,the lack of monitoring in its safety\u00a0 program and the lax attitude of its supervisorsand management toward compliance with the standards. Williams protests those penaltyassessments based on the failure to take into account Woods’ testimony and the judge’sreliance on the previous citations.We conclude that the violation cited in item 4 was ofrelatively lower gravity than the others. There was Considerable testimony that the trusssystem was unstable, but most of this testimony concerned the bundles of decking on tiletrusses, the violation cited in item 5. In order to evaluate the gravity of item 4, wemust disregard evidence related to item 5. The express purpose of the truss bridgingstandard is to provide \”lateral stability\” to the trusses. To achieve this end,the standard requires a complete row of center bridging. Williams did not install acomplete row of bridging, but it did install considerable bridging, in some respects morethan the standard requires. Compliance with the standard could be had by installing asingle row of continuous bridging down the center of the trusses, which were about 130feet long. That would have left about 65 feet on each side of the center of each trusswith no intermediate bridging. If there were bowing or swaying in those 65-foot sections,great lateral stress might be placed on the connections at the ends of the trusses. Thefour additional rows of bridging would appear to provide considerable stability evenwithout each truss being connected to two other trusses. As we have said, Williams cannotsubstitute its own plan of erection for that required by the standard, but the fact thatits plan of erection at least partially achieved the standard’s purpose reduces thegravity of the violation. In fact, two of the trusses cited for lack of continuousbridging, trusses one 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 amplysupports the judge’s penalty assessments. We find no error and affirm the judge’s finding.In assessing the gravity of the violations, we must consider the hazards against which thestandards are designed to protect and determine the degree to which the employer’snoncompliance exposed employees to those hazards. Essentially, Williams’ position, asexpressed through the testimony of its president at the hearing and in its proffer ofWoods’ testimony, is that these violations were of low gravity because they did notcontribute to the instability of the structure. We note that the proffer regarding theirrelevance of the violations to the accident is entirely lacking in specifics, as is therest of the proffer, contrary to our instructions to Williams to summarize Woods’ expectedtestimony \”in detail.\” Williams’ argument could be taken to mean that thestructure was just as stable as it would have been had Williams complied with thestandards. If this is what Williams’ president meant and what Woods would mean if he sotestified, their testimony would be inherently incredible, for it is obvious that at leastto some extent the structure was not as strong as if it had been erected in compliancewith the standards. For example, the use of only one bolt per connection obviously meansthat each connection was not as secure as if two bolts or the equivalent had been used. Asthe record shows, a single high-strength bolt is not equal in strength to two common boltsin shear connections. As the bolts were the only means used to connect the beams to thecolumns, the structure could not have had the stability intended by the two-bolt standard.Similarly, a column that has not been stabilized in two directions cannot be as stable asone that has, and placing additional weight on an inadequately bolted framework, anunstabilized column, and incompletely bridged trusses about 130 feet long, cannot addstability to those structural members. It requires no particular expertise to recognizethat the possibility a steel framework or structural member will collapse before it isfully secured is enhanced by additional weight on it.Thus, even if the framework here had not collapsed,we would still conclude that the violations were of high gravity because they increasedthe probability of an accident and worsened its probable consequences. Moreover, thecollapse of even a single structural member could have killed or seriously injured workerseither on the framework or on the ground below.Even assuming arguendo that the violationswere of low gravity, however, the judge’s penalty assessments would be appropriate, givenWilliams’ size, lack of good faith, and its history of willful failure to comply with OSHAsteel erection requirements for fall protection. Williams indisputably is a major steelerection firm, the largest in the Washington, D.C., area at the time of this case, withgross revenues of $8,787,680 for 1984 and of $15,452,845 for 1985. Williams’ on-sitesupervisor repeatedly ignored warnings about conditions that we have found violate steelerection standards. Williams was indifferent to whether its on-site supervisors andemployees knew OSHA’s requirements. See also discussion of willfulness in WilliamsEnterprises, supra n.10. In the circumstances, we cannot justify reducing thejudge’s penalty assessment of $9,000 for each of willful violations 2, 3 and 5.Other IssuesWilliams’ objection to the extent of the judge’sreliance on prior citations in finding willfulness and assessing penalties need not beaddressed here, because we have decided those issues independent of the judge and giventhe prior citations the weight we believe they deserve. This leaves only Williams’ claimsthat it was entitled to a new trial.The first ground for Williams’ new trial request isthat the judge permitted the union to intervene based on a motion filed 11 days before thehearing. Williams asserts that the union’s motion was \”late-filed.\” However, therelevant Commission rule at the time allowed a petition for leave to intervene \”atany stage of a proceeding before commencement of the hearing before the judge.\” 29C.F.R. ? 2200.21(a)(1984). The union’s petition was filed timely under both the previousand current Commission rule. The judge was entitled to grant it in his discretion. 29C.F.R. ? 2200.21(c)(1984).Williams also asserts that the union’s interventionat that point precluded Williams from engaging in discovery regarding the issues on whichthe union claimed its participation could assist the judge. But the union presented nowitnesses or evidence of its own–its participation was limited to briefly questioningwitnesses called by the other 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 fromfull discovery regarding the credibility of inspector Wiseman, based on the judge’sinitial ruling, about a month before the hearing, that no evidence would be admittedregarding anyone’s visits to the worksite after October 12, 1984, following the closingconference between OSHA and Williams regarding this inspection. Williams claims thatWiseman’s visits after that time affect his credibility as a witness because theypertained to this case and not a later case as Wiseman claimed. We cannot conclude thatany substantial rights of Williams were affected by the judge’ s handling of this issue.For example, the judge stated at the hearing:. . . I am willing to keep Mr. Wiseman on the standthe rest of today while you get all the information you are entitled to–anything relevantand probative to this case, . . . . You have all the time you want. This case can go onfor the next month . . . . if you find good reason to recess it, I will recess it.Williams has not explained to us specifically whythat opportunity was not sufficient. Nor does Williams explain how evidence on this pointwould affect the credibility of Wiseman’s testimony would affect the weight of theevidence. The judge apparently nowhere relied on uncorporated testimony by Wisemanregarding the items or issues Williams disputes here. For each of these reasons, we rejectWilliams’ claim of reversible error. Fed. R. Civ. P. 61.[[12]]Accordingly, we affirm items 2, 3, 4 and 5 of thecitation for willful violations. We assess a penalty of $9,000 for each of the violationsin items 2, 3 and 5, and a penalty of $4,500 for the violation in item 4. A total penaltyof $31,500 is assessed. The judge’s decision is affirmed in all other respects.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: April 27, 1987WILLIAM 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 Complainant DAVID POTTS-DUPRE, ESQ. ELIHU I. LEIFER, ESQ. Sherman, Dunn, Cohen, Leifer &Counts, P.C. For the Intervenor, Building and Construction Trades Department, AFL-CIOJAMES BRENT CLARKE, JR., ESQ.For the Respondent.DECISION AND ORDERSommer, Judge:On March 12, 1985, Respondent was issued Serious Citation No. 1 alleging violations of 29C.F.R. ? 1926.20(b)(1), 29 C.F.R. ? 1926.21(b)(2), 29 C.F.R. ? 1926.550(a)(6) and 29C.F.R. ? 1926.550(b)(2). The Respondent also was issued Willful Citation No. 2 allegingviolations 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 serious violations and $45,000.00 for the willfulviolations. A hearing was held in Washington, D.C. All parties were represented by counselwho filed post-hearing briefs. No jurisdictional issues are in dispute, the parties havingpleaded sufficient facts to establish the Respondent is subject to the Act and theCommission has jurisdiction of the parties and of the subject matter.BackgroundWilliams Enterprises, Inc., is engaged in the steelerection business. In September 1984 it was the subcontractor engaged in steel erectionfor a gymnasium being constructed as an addition to the Coolidge High School inWashington, D.C. On September 25, 1984, while so engaged, a section of the structurecollapsed resulting in the death of one employee and injury to others. An OSHA complianceofficer investigated the accident and thereafter issued two citations for violations ofthe safety standards which were contested.The gymnasium was being erected on the north side ofthe school building. Williams’ responsibility was the erection of the steel framework.Respondent commenced working from the west to the east, and when it was approximatelymidpoint, work was commenced from east to west; the structure was rectangular in shape andmade provision for four stair towers at each of the corners of the gymnasium. Initially,the steel framework consisting of columns were set in, which were joined by beams;thereafter trusses spanning approximately 130 feet in length running north to south wereraised by crane and bolted to the horizontal beams. Ultimately, the roof of the gymnasiumwould rest and be supported by the trusses running the entire length of the area.Alleged ViolationsSerious Citation No. 1, items 1(a) and 1(b) – 29C.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), which reads as follows:It shall be the responsibility of the employer toinitiate and maintain such 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), requires that an employer \”initiate and maintain\” a safetyprogram. The plain meaning of to \”initiate\” is to begin,[[1]] and to\”maintain\” is \”to continue\” or \”carry on\”.[[2]] The burdenis on the Secretary to prove that the Respondent violated a standard which imposes a dutyto institute a safety program and keep it ongoing. The evidence is insufficient tosubstantiate that this duty was breached. The citation charges a violation of thisstandard in that \”management representatives did not enforce safety policies andthere was poor employee awareness and participation in the program\”. These charges doviolence to the nature 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 BNA OSHC 1440,1444)(3rd Cir. 1978). The evidence shows that the Respondent did have a safety programwhich was ongoing. Its safety director testified to its existence, there was documentaryevidence of its existence, and some employee verification (although only by supervisorystaff). It was required to do that and nothing more under the standard. Since the standardonly requires that a safety program be existent and carried out and the facts demonstratethis to be so, Respondent did not violate 29 C.F.R. ? 1926.20(b)(1) and the citation isvacated.Respondent was cited for violating 29 C.F.R. ?1926.21(b)(2) which reads as follows:The employer shall instruct each employee in therecognition and avoidance of unsafe conditions and the regulations applicable to his workenvironment to control or eliminate any hazards or other exposure to illness or injury.The standard imposes a duty on the employer toinstruct employees \”in the recognition and avoidance of unsafe conditions\”.The evidence establishes that the Respondent’semployees at the Coolidge High School jobsite received no instruction on the dangerspresent and the hazards associated with the job they were engaging therein. The testimonyof employees Williamson (a miscellaneous foreman) (Tr. 253), Burdette (Tr. 277), and White(Tr. 312) forcefully demonstrate that the Respondent did not instruct them in theavoidance of hazards or the dangers inherent in the job they were doing; their testimonyreveals no safety meetings were held at the Coolidge job site. Ward, the Respondent’ssuperintendent at the job site, in response to a question as to whether there were\”any safety meetings at the Coolidge job site for non- supervisory employees\”stated, \”Not to my knowledge. Maybe Tommy did; I didn’t have any meetings there\”(Tr. 491). The evidence fully demonstrates that the Respondent knows it is engaged in ahazardous industry (testimony of its president); its supervisory help knew of this andobserved the employees as they engaged in hazardous steel erection, yet failed to instructemployees in the recognition and avoidance of unsafe conditions as required. See NationalIndustrial Constructors, Inc. v. OSAHRC, 583 F.2d 1048 (8th Cir. 1978). Accordingly,the citation for violation of 29 C.F.R. ? 1926.21(b)(2) is affirmed. The hazard in thiscase is a serious one since working in steel construction exposes the employees to fallhazards from considerable heights. Applying the penalty factors in Section 17(j) of theAct, I find that $450.00 to be an appropriate penalty.Serious Citation No. 1, Items 2(b) and 2(c) – 29C.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), requires that a truck crane needs to meet the \”applicablerequirements 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 made monthly oncritical items in use such as brakes, crane hooks and ropes. Records shall be kept wherereadily available.5-2.4 Rope Inspection, Replacement and Maintenance. 5-2.4.1 Inspectiona. All running ropes in continuous service should be visually inspected once everyworking day. A thorough inspection of all ropes in use shall be made at least once a monthand a full written, date, and signed report of rope conditions kept on file where readilyavailable. . . .The evidence shows that the Respondent leased theP&H truck crane for use on the job, utilizing its own employee as the operator. Thecompliance officer ascertained the crane had been used for three months and that therewere no reports of inspection available although he requested them. He asked both thecrane operator and the Respondent’s safety director for such inspection reports butreceived none (Tr. 82, 86). The evidence fully demonstrates that there were no inspectionreports available demonstrating the status of rope conditions, nor were there inspectionreports available which recorded brakes, crane hooks and rope conditions. Respondent’semployee operated the crane which was in use for approximately three months, and as suchthe duty to exercise reasonable diligence required it to inspect the crane for properfunction and maintenance so as to prevent its operator employee and the other employeesconnected with the steel erection process from exposure to unsafe conditions if the cranewas defective. Absent the inspection reports required, the Respondent violated 29 C.F.R.? 1926.550(b)(2).The violation was characterized as serious. It isimportant to note that the violation found was not that there were hazards present in thecrane but that there was no inspection report. The record lacks evidence as to how long aperiod daily the crane was used and the number of employees using the crane. There is norecord of any such previous violations although it is apparent the Respondent uses cranesextensively in its work. For the record violation herein taking into account all theexisting facts and circumstances, it is apparent that this violation should becharacterized as other than serious, and I so find. No penalty is assessed.The Secretary withdrew the citation alleging aviolation 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 fallprotection required by this standard. The citation issued reads:29 C.F.R. ? 1926.750(b)(2)(i): During skeletal steelerection, a tightly planked and substantial floor was not maintained within 2 stories or30 feet, whichever is less, below and directly under that portion of each tier of beams onwhich work was being performed:(a) Tower for stairway three & four – Employees erection steel where there was apotential of falling approximately 46 feet were not provided with fall protection.The preponderance of the evidence establishes thatthe Respondent violated this section. The testimony reveals that employees were working inthe northeast tower (stairway three and four) at a height of 50-60 feet without flooringbeneath them, no decking or netting, and were exposed to a fall from such heights. SebaWilliamson, one of Respondent’s foremen, testified there were no nets or decking beneaththe employees working in both the northwest and northeast towers, and moreover noemployees were tied off (Tr. 255-256); this was corroborated by Burdette and White whowere doing connecting work on both towers and unequivocally testified that there was nodecking, flooring, planking or nets 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 to theRespondent. Not only did Williamson, one of the foremen, know of the lack of the necessaryfall protection, but this hazardous condition was known both to Nichols, a foreman whodirected the work and was present daily, and Ward, the superintendent who was at the steelerection site regularly. I was able to observe the Respondent’s employees (Williamson,Burdette and White) as they testified, and all gave the distinct impression oftruthfulness. Their testimony was not discredited nor contradicted by any significantdirect evidence nor by any legitimate inferences from the evidence. I find no reason todeny the conclusiveness 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 29C.F.R. ? 1926.751(a)[[4]] in that only one bolt was used on connections between solid webstructural members before releasing the hoisting line of the crane. Compliance OfficerWiseman inspected the steel structure at the east end of the premises therein on September25, 1985, and observed \”more than 50 connections that had only one bolt on the eastend of the building\” (Tr. 40, Photograph Gov’t. Exh. 2). His observations wereverified by the men who actually worked on the steel. Williamson, a foreman, testified onebolt was used (Tr. 258) as did Burdette (Tr. 284) and White (Tr. 318). These employeesfurther testified that Nichols, their foreman, was present and fully aware of it. BothBurkart and Jaspar, consulting engineers who testified for the Secretary, similarly foundone bolt was used in numerous connections. The regulatory standard requires the use of twobolts or the equivalent. The standard being specific (requiring two bolts), a prima faciecase of violation was made out by the Secretary, unless the equivalent was shown. FrankWilliams, the Respondent’s President, testified that high tension bolts were used, thoseallegedly being the equivalent of two regular bolts; however he further admitted thatwhere there were shear connections using one high tension bolt is not the equivalent oftwo common bolts.[[5]] Williams further testified that in the northeast stair tower\”some connections were shear connections; some of the connections were bearingconnections\” (Tr. 872). The testimony further demonstrated that the one boltconnections were hazardous in that the stability of the structure was compromised andcould have been a contributing cause of the collapse. Accordingly, the violation of 29C.F.R. ? 1926.751(a) is affirmed.[[6]]Willful Citation No. 2, item 3 – 29 C.F.R. ?1926.751(c)(1)[[7]]The Secretary alleges that Respondent violated thissection in that the bar joist at Column A.9 was not bolted at the column to providelateral stability. The evidence shows that Column A.9 was supported in only one direction(from the east). Trusses 5 through 9 were placed on the beam and stacks of steel deckingweighing approximately 3000 pounds each were placed thereon prior to the stabilizing ofcolumn number 9 so as to secure it in two directions. The lateral instability of theunsupported column plus the weight imposed thereon was a contributing factor in Itscollapse.The testimony of Wiseman, Burkart and Jasper confirmsthese findings. Actually, the Respondent did not deny the presence of lateral instabilityarising from the failure to support Column A.9. Instead, Williams’ president testifiedthat because the crane used would not have been able to reach the area being constructed,it was necessary to place the trusses and steel decking before bolting the joist to Column9. His theory of impossibility to carry out the steel construction in another fashion soas to provide the necessary lateral stability was not proven, and furthermore Williamsadmitted that \”we could have built temporary supports all the way around the A-9column\” to brace it up but did not do so citing its expense. He further stated,\”if it (meaning column A.9) had not been laterally supported in two directions Iwould doubt if it would have moved out.\” Based on the evidence,of record, theviolation is affirmed. Willful Citation No. 2 – item 4 – 29 C.F.R. ?1926.751(c)(2)[[8]]The Secretary alleges the Respondent violated 29C.F.R. ? 1926.751(c)(2) in that a center row of bridging was not provided between amember of the trusses as required. The trusses were over 120 feet long. The evidenceestablishes that there was no bridging between truss number 1 and the beam at the east endof the building (Tr. 594; photograph B of Gov’t. Exh. 3). Furthermore, there was nobridging between truss number 4 and 5 as established by the testimony of Wiseman, Burkartand Jasper. These three individuals saw the fallen steel and the decking thereon and sawno bridging. Additionally, the photographs available starkly reveal no bridging present atnumber 4 truss which remained upright (Tr. 140, 594-6, 654-5, photograph B of Gov’t.Exhibit No. 3). Respondent admits to no bridging between truss number 1 and the east endof the building. His allegation of bridging between truss 4 and 5 was unproven and fliesin the face of the evidence which shows otherwise. Accordingly, the violation 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 deckingwas placed on the trusses before security requirements were met. As previously noted,bundles of metal decking were placed upon the trusses without proper bolting of the steelstructure (absence of two bolts), without assurance of lateral stability of Column A.9,and without adequate bridging of trusses over 120 feet in length. These violations wereknown to both of the Respondent’s supervisors and to management itself. Both Nichols andWard knew or were told of the lack of proper bolting, the bowing of the trusses due toexcess weight of the decking thereon. These actions all contributed to the generalinstability of the steel structure and were violations of the security requirements. Theplacement of the steel decking on the trusses without meeting such security requirementswas a violation of section 1926.751(c)(3), and said violation is affirmed.Alleged Willful Violations under Citation No. 2The Respondent violated the following sections asfound 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 the violations were willful asalleged by the Secretary. To establish that a violation was willful, the Secretary mustshow that it was committed with either an intentional disregard for the requirements ofthe Act or plain indifference to employee safety. See Simplex Time Recorder Co., 85OSAHRC\u00a0\u00a0 \/\u00a0 , 12 BNA OSHC 1591, 1595, 1985 CCH OSHD ? 27,456, p 35,571(No. 82-12, 1985), citing D.A.&L Caruso Inc., 84 OSAHRC\u00a0 \/\u00a0 , 11 BNAOSHC 2138, 2142, 1984 CCH OSHD ? 26,985, p 34,694 (No. 79-5676, 1984).The record supports a conclusion that Respondentshowed an intentional disregard and\/or plain indifference to its duties andresponsibilities under the Act. There is evidence that the Respondent was issued previouscitations for the same or similar violations of the Act. Testimony by the president of theRespondent demonstrated that he was aware of the OSHA steel structural standards. Heacknowledged his company is the largest in the field and has numerous projects ongoing andis aware of the safety requirements. Despite the previous citations, the violations hereinfollowed. Moreover, both the Respondent’s supervisor and superintendent were aware of thedangerous conditions existing, i.e. improper bolting, improper placing of metal decking ontrusses, etc. The Respondent is charged with knowledge of such unsafe conditions andhazards present which his supervisory personnel knew existed and tolerated, and comingwithin the scope of their supervisory responsibility.There was testimony by employees of working atheights over 40 feet without fall protection. This was known to the Respondent’ssupervisors and allowed to continue. These visibly dangerous conditions were known tomanagement and allowed to exist. The Respondent’s president admitted the lateral stabilityof a column could have been strengthened, but apparently the alleged cost would not allowit; thusly, indifference to safety was tolerated. While the company had a safety programit appears only supervisory help were included; employees testified they did notparticipate in such programs and were not instructed as to safety measures on the steel.The evidence as a whole demonstrates a plainindifference and conscious disregard on the part of the Respondent to the safetyrequirements of the Act, and Respondent \”thereby acted willfully\”.The Secretary proposed a penalty of $45,000 for thewillful violations under Citation No. 2. Under Section 17(j) of the Act, the Commissionmust give \”due consideration\” to various factors in determining an appropriatepenalty such as the gravity of the violation, size of the business involved, good faith ofthe employer, and history of previous violations. The gravity of the violations wassevere. One employee died and one was severely injured. The Respondent has been citedpreviously for a similar violation, is fully familiar with the OSHA regulations concerningsteel construction yet allows these violations to persist. Its safety program whileexistent is not monitored to provide daily assistance to employees, and its supervisorsare lax in enforcing OSHA standards, all with knowledge of top management. The penalty of$45,000 is deemed appropriate under all the existing facts and circumstances herein.Findings of FactThe findings of fact contained in this opinion areincorporated herein in accordance with Rule 52 of the Federal Rules of CivilProcedure.[[10]]Conclusions of Law1. Respondent at all times material to thisproceeding was engaged in a business within the meaning of Section 3(5) of the Act.2. Respondent at all times material to thisproceeding was subject to the requirements of the Act and the standards promulgatedthereunder. The Commission has jurisdiction of the parties and of the subject matter.3. Respondent committed serious violations asfollows:Citation No. 1Item 1(b) – 29 C.F.R. ? 1926.21(b)(2)4. Respondent committed willful violations asfollows:Citation No. 2Item 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 violationsas follows:Citation No. 1Items 2(b) & 2(c) – 29 C.F.R. ? 1926.550(b)(2)6. Respondent did not violate the following: Citation No. 1Item 1(a) – 29 C.F.R. ? 1926.20(b)(1)7. The Secretary withdrew item no. 2(a) of CitationNo. 1 alleging violation of 29 C.F.R. ? 1926.550(a)(6).8. Consistent with Section 17(j) of the Act, thefollowing penalties are reasonable and appropriate:Serious Citation No. 1Item 1(b) – $450.00Items 2(b) & 2(c) – no penalty (violation reduced to other than serious)Willful Citation No. 2 Item 1 – $9000 Item 2 – $9000 Item 3 – $9000 Item 4 – $9000 Item 5 – $9000 ORDER1. The allegation of serious violation by theRespondent of the standard set forth at 29 C.F.R. ? 1926.21(b)(2) is AFFIRMED and apenalty of $450.00 is ASSESSED therefor.2. The allegation of willful violations of thestandards set forth at 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) is AFFIRMEDand a penalty of $45,000.00 is ASSESSED therefor. 3. An other than serious violation of 29 C.F.R. ?1926.550(b)(2) is AFFIRMED with no penalty ASSESSED.4. A total aggregate penalty of $45,450.00 isASSESSED herein.IRVING SOMMERJudge, OSHRCDated: July 2, 1986Washington, D.C.\u00a0FOOTNOTES: [[1]] The rule provides:Harmless Error. No error in either, the admission or the exclusion of evidence andno error or defect in any ruling or order or in anything done or omitted by the court orby any of the parties is ground for granting a new trial or for setting aside a verdict orfor vacating, modifying, or otherwise disturbing a judgment or order, unless refusal totake such action appears to the court inconsistent with substantial justice. The court atevery stage of the proceeding must disregard any error or defect in the proceeding whichdoes not affect the substantial rights of the parties.See also Federal Rule of Evidence 103(a), which applies in this case under bothprevious Commission Rule 72, 29 C.F.R. ? 2200.72 (1984), and new Commission Rule 71, 51Fed. Reg. 32002, 32026 (Sept. 8, 1986), to be codified 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 excludes evidence unless asubstantial right of the party is affected, . . . . The question whether substantial rights have been harmed has been stated as follows:It comes down on its face to a very plain admonition: ‘Do not be technical, wheretechnicality does not really hurt the party whose rights in the trial and in its outcomethe technicality affects.’Kotteakos v. United States, 328 U.S. 750, 760, 66 S.Ct. 1239, 1246 (1946).[[2]] Williams relies on the test of prejudicialerror stated in Gaither v. United States, 413 F.2d 1061, 1079 (D.C. Cir. 1969).However, that case concerned misstatements of the evidence by a prosecutor to a jury in acriminal trial. When, as in Gaither, a reviewing court determines whether a trialjudge’s error in a case tried to a jury was prejudicial, it must consider the potentialfor the error to have affected the jury’s verdict. In our proceedings, however, we are theultimate finder of fact, and we need therefore consider only whether the judge’s errorwould affect our own decision in determining whether that error is prejudicial. In a caselike this, where the judge erroneously excluded certain evidence, we can determine whetherthat evidence, if admitted, would alter our findings of fact. That is a much differentinquiry from determining whether the evidence could have altered the findings made byanother body such as a jury. Accordingly, Gaither is inapposite.[[3]] Little Beaver Creek Ranches, Inc., 82OSAHRC 36\/A2, 10 BNA OSHC 1806, 1810, 1982 CCH OSHD ? 26,125, p. 32,878 (No. 77-2096,1982).[[4]] The record contains numerous designations forthis column, including column 9, column A9, column A.9, column A1-9, column 9A, and columnG-9. We will simply refer to it as column 9N.[[5]] Williams does not dispute this, but maintainsthat Judge Sommer thought the trusses also were solid web members. The beams and columnswere solid web members within the meaning of the standard because their top and bottomflanges were connected with a solid web of steel. By contrast, the trusses were not solidweb members; their top and bottom flanges were connected with an open framework of angleirons. We find no basis in the judge’s decision to conclude that Judge Sommer was confusedon this point; in particular, the page of his decision cited by Williams contains nothingto support Williams’ argument.[[6]] At the hearing, Williams suggested that its onebolt was the equivalent of two bolts for another reason: that it met the standard’ssupposed purpose of preventing the beam from rolling if it was walked on. We are, however,not convinced that that was the standard’s only purpose. As we shall discuss below withrespect to item 5, this standard imposes what section 1926.751(c)(3) terms a\”security requirement,\” that is, a requirement that structural steel members aresecure before loads are placed on them. Moreover, testimony introduced by Williams wasthat to prevent rolling, beams had to be bolted at their top holes. The beams Williamsinstalled, however, were sometimes not bolted at their top holes, as photographs inevidence show.[[7]] There was a total of nine trusses to the eastof columns 9N and 9S. Apparently, however, the Secretary’s concern was with the fivetrusses to the immediate east of those two columns. The other four trusses were farthereast in a separate bay–that is, a rectangular section of the structure with a column ateach corner. All columns in that easternmost bay (10N, 10S, 11N and 11S) had been framedin two directions, and they did not collapse. However, the five trusses in the bay boundedby columns 9N, 9S, 10N and 10S had been set without first field-bolting a bar joistbetween columns, 9N and 9S so that those columns would be framed in two directions. TheSecretary’s expert in structural steel, Matthew Burkart, testified that this constitutedthe violation:[T]he the violation exist[s] because [Williams] had previously erected four joists thatsit on that beam [connecting columns 9N and 10N] and put decking on top of them beforethey secured that last column [9N] from moving.[[8]] The state of the bridging that had existedbetween the trusses that fell is not completely clear from the record.[[9]] The basis for Woods’ view is that the downwardforce exerted by the weight of the steel decking would tend to prevent perimeter columnsfrom tilting away from the structure and that the load-bearing capacity of the trusses farexceeded the weight imposed. In Woods’ opinion, the weight of the decking made thecollapse more difficult because it increased the resistance to Nichols’ attempt to movecolumn 9N laterally at the time it collapsed.Though it plays no part in our finding, we are puzzled at this proffer. It appears tocontradict the testimony of Williams’ president that the load on a column is related tothe deviation of the column from the vertical times the weight on the column; histestimony suggests that once a column starts to lean, the weight on it accentuates theleaning even more.[[10]] The Secretary introduced in evidence fiveprevious citations to Williams (three from the Secretary, two from the State of Maryland)for noncompliance with the steel erection standard at ? 1926.750(b)(2)(i). One of thosecitations was affirmed and a willful violation found by the Commission and the D.C.Circuit. Williams Enterprises, Inc., 83 OSAHRC 26\/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 those citations was affirmed and a serious violation found by theCommission. Williams Enterprises, Inc., 78 OSAHRC 80\/D12, 6 BNA OSHC 1696, 1978 CCHOSHD ? 23,064 (No. 76-1801, 1978). Judge Sommer found, with respect to item 1 of citation2, that Williams had willfully violated ? 1926.750(b)(2)(i), the same Standard cited inthe previous citations.[[11]] Although Ward denied knowing that the bridgingwas incomplete, he had every opportunity to see it on September 21 when he observed thedecking directly above unbridged trusses and observed the bridging within a boxed pair oftrusses being erected. His testimony indicates that the first four trusses already hadbeen erected, completing the easternmost bay.[[12]] Williams asserts that the judge erred infailing to respond to its motion to him for a new trial, filed the afternoon before hisdecision was docketed with the Commission (he had sent copies of his proposed decision tothe parties about 20 days previously, as is the Commission’s practice). Williams does notexplain how the judge erred in this regard and we will not attempt to determine whether heerred, because any error again was harmless. Fed. R. Civ. P. 61 provides specifically thatno error \”is ground for granting a new trial or for setting aside a verdict . . .unless refusal to take such action appears to the court inconsistent with substantialjustice.\” We have exercised our authority to determine the facts and the merits ofall the disputed issues de novo. Williams’ substantial rights cannot beharmed by our procedure.The Secretary argues that the Commission erred in itspreliminary decision in (1) finding that Williams complied with the judge’s pretrial anddiscovery orders and (2) permitting Williams to proffer the excluded evidence on review.We need not address these issues because the proffer of the excluded testimony has notaffected our dispositions.\u00a0[[1]] The American Heritage Dictionary of theEnglish Language, 1976 Edition, p. 676.[[2]] The American Heritage Dictionary, p.787.[[3]] 29 C.F.R. ? 1926.750(b)(2)(i) provides inpart:(2)(i) Where skeleton steel erection is being done, a tightly planked and substantialfloor shall be maintained within two stories or 30 feet, whichever is less, below anddirectly under that portion of each tier of beams 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 shall not bereleased from the hoisting line until the members are secured with not less than twobolts, or the equivalent at each connection and drawn 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 valuesthat you just read from the AISC manual, can you say that using the shear calculations?A. I was reading from the bearing calculation. I believe, when I quoted it earlier in mydirect testimony. I think in the shear calculations, you do have a reduction factor therefor those bolts there were in shear. 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-tensilestrength bolt would not be the equivalent of two common 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 thatthis section does not apply if the structure here is \”tiered\”. This argument isunpersuasive. The standard at section 1926.751 affords no basis for such interpretation.Absent any language restricting its applicability, it would apply to tiered and non-tieredstructures.[[7]] 29 C.F.R. ? 1926.751 Structural steelassembly.*\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *(c)(1) In steel framing, where bar joists are utilized, and columns are not framed inat least two directions with structural steel members, a bar joist shall be field-boltedat columns to provide lateral stability during construction.[[8]] 29 C.F.R. ? 1926.751 Structural steelassembly.*\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *(c)(2) Where longspan joists or trusses, 40 feet or longer, are used, a center row ofbolted bridging shall be installed to provide lateral stability during construction priorto slacking of hoisting line.[[9]] 29 C.F.R. ? 751 Structural steel assembly.*\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *(c)(3) No load shall be placed on open web steel joists until these securityrequirements are met.[[10]] Rule 52. Findings by the Court.(a) Effect. In all actions tried upon the facts without a jury ***, the Court shallfind the facts specially and state separately its conclusions of law thereon. ***. If anopinion or memorandum of decision is filed, it will be sufficient if the findings offact and conclusions of law appear thereon. (Emphasis supplied)”