THIS CASE IS NOT A FINAL ORDER OF THE REVIEW COMMISSION AS IT IS PENDING COMMISSION REVIEW
Occupational Safety and Health Review Commission
Washington, D. C. 20036-3457
SECRETARY OF LABOR, Complainant, v. Respondent.
SECRETARY OF LABOR,
OSHRC Docket No 07-0437
For the Complainant For the Respondent:
Michael D. Shoen, Esq. John B. Brown, Esq.
Karla S. Jackson, Esq. Grant H. Teegarden, Esq.
U. S. Department of Labor Ronald M. Gaswirth, Esq.
Office of the Solicitor Gardere Wynn Sewell, LLP
Before: John H. Schumacher
Administrative Law Judge
Decision and Order
This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et. seq. (2009); hereinafter called “the Act”) to review a citation issued by the Secretary of Labor pursuant to section 9 (a) of the Act and a proposed assessment of penalty issued pursuant to section 10 (c) of the Act. By citation issued February 12, 2007 pursuant to an inspection of Respondent’s worksite during the period August 14, 2006 to February 12, 2007, the Secretary cited Respondent for two willful violations of the Act and proposed a total penalty in the amount of $126,000. Respondent filed a timely notice of contest and The Complainant filed a complaint with the Review Commission. Respondent filed an answer to the complaint and, along with its prehearing statement, admits the jurisdictional allegations of the complaint and generally denies the remaining allegations. A five-day hearing was conducted during the period September 9, 2009 to September 15, 2009, and the parties have submitted post hearing briefs and reply memoranda. The matter is now ripe for decision.
On the morning of August 14, 2006,
Mr. Omar Navarro, an employee of Mike’s Trucking, arrived at Respondent’s
worksite known as the Dallas Mercantile Complex, which consisted of several
buildings. This site was located in downtown
Meanwhile, on the 19th floor of the building being demolished (The Dallas Securities Building) Mr. Alvarro Navarro, Respondent’s employee, was operating a bobcat with a front bucket attachment, and moving debris. The debris consisted of large chunks of concrete, steel beams and other debris which had accumulated as a result of the demolition of the next higher floor. While working near the edge of the building, Alvarro Navarro’s bobcat struck a steel beam approximately twelve feet in length which was buried under a pile of concrete rubble. The beam, in turn, struck a partial concrete block and sandstone wall approximately eight inches high and cemented at the outer perimeter of the floor. The momentum of the beam dislodged the concrete and sandstone blocks causing them to fall nineteen stories to street level, plus another two stories to the bottom of the pit area immediately adjacent to the building. The falling debris crashed through the roof of the truck cab driven by Mr. Omar Navarro and he sustained fatal injuries. Mr. Oliva, standing next to the truck, was also fatally injured by the falling debris.
After the ensuing investigation, the Complainant concluded that workers on Respondent’s job site were exposed to falling objects, and that the Respondent had not implemented adequate protective measures. The Complainant also concluded that Respondent allowed materials to be dropped over the exterior walls of the structure, without taking measure to assure that the area would be effectively protected.
As a result of this occurrence, the Complainant issued the noted citation to Respondent alleging that Respondent willfully violated sections 29 C.F.R. § 1926.501(c) (2009) (failure to protect workers from falling objects) and § 1926.852(a) (failure to ensure that a debris drop area outside the exterior walls of a structure is effectively protected).
Respondent, established in 1910, is
the oldest demolition company in the country and has demolished over 90,000
structures. It specializes in
demolishing large structures such as refineries, power plants, mining projects,
bridges, and multiple story buildings throughout the country (TR 575) including
floor-by-floor demolition which was being performed at the current
worksite. The worksite consisted of the
demolition of the 32-story
Pursuant to the demolition plan, each building was to be demolished floor-by-floor with debris dumped into interior “chutes” which were formerly elevator shafts. There were two types of demolition; the so called “soft demolition” which consisted of gutting the interior of the building and “hard demolition” which consisted of dismantling the skeleton of the building; that is, the structural steel and concrete. The demolition plan called for a scaffold to be erected completely around each building from ground floor to the top floor with a “box containment” constructed on the scaffold at the top two levels (TR 71 Ex. c-5). The box containment consisted of ¾ inch plywood placed as the floor of the scaffold and either ½ or ¾ inch plywood on the exterior side (TR 76) consisting of 4’ x 8’ sheets (TR 84 Ex. C-40) The purpose of the box containment system was to catch any debris or objects that might fall over the edge of the building during demolition (TR 76). The top scaffold level was the primary containment and the scaffold below was the secondary containment for debris that was not contained at the upper level. The box containment was to be constructed without any gaps, in order to prevent debris from falling over the side. In addition, a net was placed on the exterior side of the scaffold as further protection against falling debris. Respondent considers the box containment system and screen netting to be the most effective system for protecting employees from falling objects (TR 84, 85; Ex. C-5). On August 12, 2006, scaffolding, the box containment and screen netting were not in place on the side of the Dallas Securities Building (the Main Street side), where debris fell over the side of the building resulting in the death of two workers.
The Complainant called 13 witnesses to testify and Respondent called one witness. The relevant and material testimony of the witnesses is summarized below.
A. Keith Knudslien
Mr. Knudslien, at the time of the hearing, had been employed by Respondent for 18 years. He was a general superintendent responsible for overall supervision of multiple job sites including the Dallas Mercantile Complex site at the time of the accident. He visited the worksite approximately one or two times a month. His duties included oversight for the jobsite in terms of manpower and coordinating work activities with the individual job site superintendents. As general superintendent, he was Respondent’s highest ranking employee at each site for which he was responsible (TR 38), and, in particular, he was Respondent’s highest ranking supervisor at this worksite.  Although he was not present at this worksite on a full time basis, he was present at the site on August 14, 2006 on the 19th floor when the accident occurred
Mr. Knudslien acknowledged that Respondent’s demolition plan required that scaffolding be erected completely around each building to be demolished with a “box containment” system constructed on the top two floors of the buildings. As each floor was demolished, the containment system was to be lowered one floor so that there were always two floors of “box containment” and netting which served as the primary means of protecting employees from falling objects and debris (TR 72 Ex. C-40). According to Knudslien, the demolition plan called for a tower crane to be used to remove debris from each succeeding top floor of the buildings. The tower crane was to be erected in the pit area. However, the crane was not used and an exterior “chute” was designed to drop debris, especially steel debris and other large debris, over the edge of each floor being demolished (TR 87-88)
The decision to use an exterior chute
in that manner was initiated by Knudslien and was a major departure from the
demolition plan (TR 88, 175). This
decision was made, according to Knudslien, because the scaffold could not be
erected on the
In his capacity as General Superintendent, approximately one month before the accident Mr. Knudslien approved the use of the exterior chute for dumping steel. He left the task of developing safety procedures relating to the use of the chute to the site superintendent Randall Cook (TR 92). Mr. Cook did not tell Mr. Knudslien what, if any, safety procedures he (Cook) had established for using the so-called exterior chute (TR 92). Knudslien stated that because the box containment system was not installed as planned, a radio communication system was established to enable supervisors at the top level to notify personnel in the pit that debris was to be dumped over the side of the building (TR 105-107). However, there was no safe area in the pit that was designated as a retreat for employees when exterior dumping was to occur (TR 109-110).
In addition to the radio communication system, Knudslien was aware of a so-called “six-foot rule.” In the absence of the scaffold and box containment system, employees were not allowed to work within six feet of the open edge of the building when personnel were in the pit area (TR 111-112). However, in the event that employees worked within six feet of the edge, a radio communication to the employees in the pit to that effect was to be initiated by the floor superintendent. (TR 112-113). This rule also applied to the multiple bobcats that were operated on the top floor (TR 93 Ex. C-69). This rule was never reduced to writing (TR 111) and there were no markings in the floor, nor were there flags, wires, tapes or other boundary markings delineating the six-foot area. (TR 157-158). Moreover, according to Knudslien, there was no requirement that work must stop on the top floor when employees were in the pit (TR 134). However, as a further safety measure, in addition to the radio communication protocol and the six foot rule, Mr. Knudslien made the decision to leave the bottom course of concrete block of the demolished wall in place to serve as a toe board at the outer perimeter of the Main Street side of the building which did not have the scaffold and box containment system in place (TR 159, 161-162, 182-183). The so called “toe board” was approximately 12 inches high and 8 inches wide and consisted of concrete block and sandstone blocks cemented to the perimeter floor above the pit area (TR 181-185). Knudslien believed that leaving the bottom course of concrete block in place complied with the requirements of 29 C.F.R. §1926.501(c)(2009) (TR 192-193).
Mr. Knudslien was on the 19th floor at the time of the accident; however, his back was turned when it occurred (TR 143). Mr. Randall Cook, the job superintendent, was responsible for supervising the work of employees and to ensure that they complied with the six foot rule. (TR 112-113). Although he had a radio, he did not hear any radio communications between anyone prior to the accident (TR 144, 150-151). He observed Alvarro Navarro operating a bobcat with a front-end loader attachment moving debris on the 19th floor (TR 153-154). Knudslien agreed that Alvarro Navarro caused the bobcat to strike a steel beam which, in turn, struck the concrete wall left in place, causing the concrete blocks and sandstone to fall into the pit area (TR 156-157).
B. Randall Cook
Mr. Randall Cook was the site superintendent at the Dallas Mercantile Complex demolition site. He was Respondent’s highest ranking official at the site and, except for the occasions when the general superintendent Keith Knudslien was on site, was responsible for all work activities performed on behalf of Respondent (TR 229). The one exception was in the area of safety where the project safety officer, Kyle Coffman, who was on site, had the authority to overrule any decision if he believed it created unsafe working conditions (TR 229).
Mr. Cook stated that the demolition plan required that scaffolding and the box containment system be constructed on all sides of the Dallas Securities Building including the Main Street side and he agreed that the box containment system and netting were an extremely effective safety measure in the demolition industry as protection against falling objects (TR 252-253). The scaffolding was erected by subcontractor Patent Scaffolding (TR 233).
The demolition plan originally required
that large pieces of steel, such as steel beams, were to be lowered from the
top floor by crane. The crane to be used
for this purpose, a “rubber tower crane,” was unique and unusual (TR
326-327). However, at the last minute
“it couldn’t happen” (TR 327) and Cook looked for another crane as a
replacement. Due to the busy
construction business in the
The demolition plan also originally required
that scaffolding and the box containment system were to be installed completely
On the day of the accident, Mr. Cook was on the 19th floor and had assigned himself as spotter for the bobcat operator, Alvarro Navarro. Cook had instituted the six foot rule which prohibited any work within six feet of the roof edge where box containment was not in place (TR 309-310). There were no markings, barriers or other means designating the prohibited six foot work area (TR 315). At the time of the accident, he had his back turned away from Navarro (TR 277). He had been notified that a truck had entered the pit (TR 276) but he allowed work to continue at the upper level and in the pit (TR 260). Navarro operated the bobcat for approximately two hours prior to the accident with employees working in the pit area (TR 354). He stated that the six foot rule had been instituted about one week before the accident but had not been put in writing (TR 261). Mr. Cook randomly picked six feet because he thought it was a safe distance (TR 262). The rule had not be established by Respondent at any of its other worksites and he knows of no other demolition company that uses the so called six foot rule as a safety device (TR 263). Navarro was within six feet of the edge of the building (TR 274) and the steel beam struck by the bobcat operated by Navarro pushed a portion of the toe board wall over the edge of the building (TR 343).
With respect to the radio communication system, Cook stated that all supervisors and spotters had radios set at the same frequency which allowed them to monitor all transmissions (TR 275-277). Mr. Kevin Oliva, Respondent’s designated spotter in the pit, also had a radio. Mr. Oliva was standing by the truck in the pit when he was fatally injured (TR 275-276).
Mr. Cook acknowledged that he never referred to the first course of concrete block remaining at the building perimeter as a toe board prior to the accident. (TR 289-290) Moreover, in one instance Mr. Cook acknowledged that there were no areas designated in the pit to prevent employees from going into the area where debris was being dropped (TR 293); however, he later stated that such an area had been designated (TR 292-293).
Mr. Cook was somewhat lacking as witness and his demeanor was not that of a person who was completely thorough in his responses on direct examination. Moreover, on cross examination, most of his testimony was simply an affirmative response to Respondent’s counsel’s leading questions. Although he was on cross examination and, of course, Respondent’s counsel had the right to ask leading questions, it was difficult if not impossible to assess this witness’s credibility on cross examination, particularly since the witness was a high ranking management official and clearly not hostile to Respondent’s counsel. See Fed. R. Evid. 611(c) It would have been more helpful in assessing credibility to hear the witness testify rather than counsel. The same observations apply to the cross examinations of Mr. Knudslien and Mr. Marquez.
C. Albert Marquez
Mr. Marquez, at the time of the accident, had been Respondent’s employee for approximately 25 years and a foreman for nine years. He was a foreman at this worksite since its inception and had authority to order a work stoppage if he saw “something unsafe” (TR 387-388, 440). He had extensive experience with “floor-by-floor” demolition similar to this worksite (TR 438). His work activities included attending daily safety meetings and acting as interpreter for non-English speaking employees. He also toured the worksite on a daily basis conducting visual inspection to make sure that “everything is safe” (TR 440-443). He considered himself to be a “competent person” within the meaning of OHSA standards (TR 388).
On August 12, 2006, the work crew was
engaged in “hard demolition” of the 20th floor of the
During the morning of August 14, 2006, he was proceeding to the Company trailer across the street from the worksite when he noticed the truck driven by Omar Navarro, of Mike’s Trucking, approaching the work area (TR 423). By radio, he told Kevin Oliva that the truck was approaching and to let it enter the ramp. Mr. Oliva acknowledged the transmission (TR 423). He also notified either Mr. Knudslien or Mr. Cook by radio of the presence of the truck in the ramp area (TR 424) and the pit area needed to be cleared. He received a call from Cook acknowledging the transmission (TR 425).
Mr. Marquez agreed that it was Company policy that all work must stop in the pit and on the 19th floor to allow the flagger (Oliva) to “let the truck in down the ramp” (TR 425, 428). He also stated that Cook, the supervisor, was required to notify workers on the 19th floor of the presence of the truck in the pit and to stop all work, both demolition and clean up, in that area (TR 427). Upon the work stoppage, the flagger was to be notified by Cook to let the truck into the pit. (TR 426). All radio transmissions were relayed on the same frequency and could be heard by all employees who had radios. Mr. Marquez did not hear Mr. Cook tell employees on the 19th floor to stop work (TR 426). Moreover, Marquez stated that Cook should not have allowed Alvarro Navarro to continue working with the bobcat while the truck was in the pit (TR 428).
D. Terry Lancaster 
Mr. Lancaster was employed by Patent Construction Company during the period of 1997 to August 12, 2006, as a field superintendent. His employer specialized in the erection of scaffold (TR 505). His employer had a subcontract to erect scaffolding completely around this worksite and he supervised that work activity (TR 464-468). The contract called for the erection of scaffolding from ground level to the top floor of each building and included the installation of netting on the exterior side of the scaffolding (TR 469-472). Cleveland Wrecking Company was to install the box containment system on the scaffold (TR 472). The purpose of the netting was to contain debris created by demolition (TR 472).
At some point prior to August 12,
2006 (TR 487), Mr. Knudslien and Mr. Cook asked Mr. Lancaster whether the scaffold
ramp opening in the building leading to the pit area on the
E. Andrew Varga
Mr. Varga is Respondent’s Vice-President for Corporate Health and Safety and a Director of Business Development. He has been so employed since May 2000 and he reports directly to Respondent’s president. His duties include monitoring the effectiveness of the safety program and supervising safety engineers and on-site safety officers employed by Respondent (TR 523). He is the highest ranking person responsible for overall safety and he works closely with superintendents on site (TR 577). Moreover, on-site safety officers reported directly to him, including Kyle Coffman and Steven Brighman who were safety officers at this worksite (TR 524).
Mr. Varga stated that Respondent had
written safety standards for its demolition activities as well as safety
management standards that controlled its demolition activities (TR 525, Ex. C-3). These plans were developed by Respondent’s parent
company, URS. Respondent also had a site
specific demolition plan for this worksite (TR 526, Ex. C-5). This document
describes the method of demolition (TR 529).
Varga noted that the demolition plan and the safety plan are separate
documents; however, the plans are “utilized jointly” (TR 528). Respondent’s health and safety plan for the
Mr. Varga stated that the box
containment system complied with section J of Ex. C-3, the Code of Safety for
Demolition Practices which “would have been the canopy portion” (TR 563-564)
required by the document as it applied to this worksite. Mr. Varga acknowledged that the canopy was in
place on all sides of the building except the
His discussion with Coffman also
included his concerns that the operation was effectively protected. He was assured that it was and he approved
the change in the demolition plan to eliminate the scaffold box containment
system on the
Mr. Varga was made aware of the radio communication system at the site but he was not aware of the six-foot rule (TR 572-573). He was not involved in the decision to use the so-called “toe board” (TR 582). However, notwithstanding the accident, he believes that it was a correct decision to use the bottom course of the wall as a toe board (TR 583-584). Moreover, he is aware of a “number of situations” where employees are working above and below at the same time (TR 586). He could not recall other demolition projects involving 20 story buildings with over-the-side dump chutes and pit areas (TR 587).
By his demeanor and responses to certain questions, Mr. Varga exhibited a selective memory regarding critical events. See Fed. R. Evid. 608.
F. Alvarro G. Navarro
Mr. Navarro had been Respondent’s employee for four years. He did not receive any training to become a bobcat operator but he was learning “little by little” by on-the-job-training (TR 597). He had seen a bobcat training manual and tried to read it but he does not understand English very well (TR 610). He attended a safety meeting conducted by the supervisors on the morning of August 14, 2006. Prior to the accident, he had been working on site for a week (TR 598-599). His supervisors had advised him at the safety meeting to stay three feet from the edge of the building (TR 602, 608, 621-622) (TR 604-605, 608). Mr. Cook told him that employees would be working in the pit area (TR 605-606, 622).
On August 14, 2006, Alvarro Navarro proceeded to the 19th floor after the safety meeting to begin work (TR 599). Navarro stated that the steel was supposed to be separated from the concrete by other employees (TR 599) and he was to move only “clean concrete without any steel attached to it” (TR 600). He was to place the concrete in a pile (TR 613). Navarro believed that the pile of concrete that he was working on was free of steel (TR 601). At that time he knew that people and trucks were in the pit area (TR 602). He followed his instructions to remain three feet from the edge of the building (TR 602). Mr. Cook also observed him working three or more feet from the edge (TR 603). The steel beam that Alvarro Navarro hit with the bobcat was covered with concrete and he was not aware that it was there (TR 604). He did not have a radio and he relied upon Mr. Cook to direct him (TR 605).
G. Seth Ackland
Mr. Ackland was employed by Hensel
Phelps Construction Company as a project manager on August 14, 2006, at this worksite
(TR 636). He described his work
activities as “working with the owner, working with the designer, doing the
bidding, getting the subcontractors brought under contract, working through the
pay applications, change orders, helping to support the superintendent to
manage the job” (TR 636). He had daily
interaction with Misters Knudslien and Cook (TR 639). It was his understanding that Respondent
intended to place scaffolding, box containment and netting completely around
He became aware that scaffolding would
not be erected on the
H. Robert Comer
Mr. Comer, an employee of Hensel Phelps, was the project superintendent at this worksite. His job duties were to oversee the work, maintain a schedule and communicate with subcontractors (TR 715).
Mr. Comer had a conversation with Mr. Cook during early August 2006, wherein he was informed that Respondent would not erect the scaffold on the Main Street side of the Dallas Securities Building as planned because of “footing in the bottom” and they could not get the truck entrance door height engineered with the type of scaffolding being used (TR 722, 791). He asked Cook to submit the modification to the original demolition plan in writing; however, the written revision was never received (TR 722, 725). Comer stated that Cook told him that in the absence of the scaffold, a work rule would be put in place prohibiting any work in the pit area if there was any work on the building (TR 723). Respondent would remove employees from the pit if there was any work above the pit (TR 723-724).
Comer was aware that the box
containment system was protection against falling debris (TR 724) and he knew
that it had been used successfully at another worksite (TR 726). Comer stated that during a morning safety
meeting he heard a discussion regarding the stoppage of work activities when a
truck entered the pit area. He stated
that all work activity on the
Mr. Comer stated that he was informed
by Mr. Cook (TR 736, 775) that no work was to be performed within 15 feet of
the edge of the unscaffolded side of the building when employees were in the
pit area (TR 738, 745, 775). On the
morning of August 14, 2006, at the top floor of the
With respect to the exterior steel chute, Mr. Comer stated that it was formed by three exterior sides of the building and was used principally to dump steel into the pit (TR 771-778). The work rule established by Respondent prohibited any employees in the pit area when workers were dumping steel over the side (TR 772).
I. James Spellman
During August 2006, Mr. Spellman was employed by Hensel Phelps as a loaned employee under the supervision of Respondent (TR 801). Commencing August 1, 2006, he worked in the pit area of the demolition site loading debris into trucks with a track hoe machine owned by Respondent (TR 804-806). The debris included carpet, sheet rock, concrete and similar building materials (TR 807). He was working in the pit on August 14, 2006, and he observed debris being dumped into the pit area from the sixth floor of the building (TR 810, 812, 873, Ex. 56). A track loader was another machine operated in the pit which pushed the debris into a pile which he, in turn, loaded into the bed of the truck (TR 812-813). When trucks arrived at the site, Kevin Oliva guided the trucks down the ramp (TR 813, 815) and retrieved “weight tickets” from the driver (TR 815). Oliva also assisted him by alerting him when he was overloading the truck (TR 816).
On August 14, 2006, he attended the morning safety meeting and does not recall receiving any warning that employees would be working overhead that day (TR 826, 828, 830). His supervisor that day was Alberto Marquez (TR 826). He commenced his work in the pit at approximately 7:00 AM and he had loaded three trucks before the accident occurred at 10:00 AM (TR 834). It was normal for the truck driver to stay in the truck while being loaded (TR 835). He observed the truck involved in the accident approach the worksite and he radioed Mr. Oliva of its presence. He did not hear any radio transmissions from Mr. Marquez or anyone else that day regarding trucks in the pit area (TR 837). He had placed two bucket loads into the truck when the accident occurred (TR 839). He observed the body of the truck driver and radioed Marquez to come to the pit (TR 845). He had not received any radio transmissions from the top of the building that work was being stopped on top (TR 848-849). Mr. Spellman stated that he normally received a radio transmission when steel was to be dropped over the side of the building and he moved to a safe area (TR 855-856). He was not instructed to move to a safe area on August 14, 2006 (TR 869).
J. Clayton Marnell
Mr. Marnell is an equipment operator and was working in the pit area of the demolition site. His job was to move debris into a pile which in turn was placed in a truck by another machine (TR 910-913). Randy Cook was his supervisor. He attended the safety meeting the morning of August 14, 2006 and after the meeting Randy Cook told him to stay away from the concrete chute where he normally parked his machine because there was a loose wall or loose debris on the top of the building (TR 946, 966). Cook wanted him to keep his machine from that area “in case the wall came over” (TR 946). He complied with Mr. Cook’s instructions (TR 948). This area was the same location where Messrs Oliva and Navarro were fatally injured (TR 949).
Mr. Marnell viewed the video clips taken at 9:00 AM on August 14, 2006 at the worksite and stated that the video depicted a bobcat dropping “something off the side, maybe steel” ((TR 970) into the pit (TR 971). He did not receive any notification that day that debris was to be dropped off the building (TR 971). Mr. Marnell assumed that he was in his machine at the time the video was taken (TR 975, 976). He agreed that he received a radio message that steel was going to be dumped and he believed that he was in a safe area (TR 976-978).
K. Kyle Coffman
Mr. Coffman was Respondent’s on-site safety officer at this worksite. He was responsible for ensuring compliance with all applicable safety regulations. Respondent submitted a site-specific safety plan with the general contractor. Mr. Varga, the Safety Director, was responsible for creating and updating the safety plan (TR 993-995). The safety plan prohibited dropping materials outside the exterior wall of the building “unless the area is effectively protected” (TR 995-996). A demolition plan was also developed which was revised from time to time. All revisions were to be in writing and placed in a three ring binder with the demolition plan (TR 997-998).
Patent Construction Company erected the scaffold around the buildings to be demolished. The box containment system was constructed by Respondent (TR 1002) and was designed to catch anything that fell to the exterior of the building (TR 1001). The netting on the exterior of the scaffold was put in place by Patent Construction. As each floor was demolished, the scaffold, box containment and netting would be adjusted one floor down (TR 1002-1003). Based upon his experience in the demolition industry, the box containment and netting are extremely effective in controlling falling debris and dust containment (TR 1004).
The scaffolding was not erected
around the entire
Mr. Coffman was informed by Mr. Cook that the bottom course of concrete block was to be used as a “toe board” (TR 1016). He tested the strength of the toe board after the accident by kicking it and he concluded that it was strong enough to serve as a toe board (TR 1019). He is not aware of any strength tests being performed on the toe board by anyone prior to the accident (TR 1020). He never heard that the first course of the wall was to serve as a toe board in any safety meetings he attended nor does he know when and how it was determined that the wall was to serve as a toe board (TR 1020).
With respect to the six-foot rule, it was Mr. Coffman’s understanding that machines were suppose to move debris six feet back from the wall before other machines collected the debris (TR 1024). Coffman agreed that the six foot rule was a safety measure; however, it was not in the written safety plan (TR 1024-1025). On the day of the accident Mr. Cook was the “spotter” for bobcat operator Alvarro Navarro. It was Mr. Cook’s responsibility to ensure that Mr. Navarro did not violate the six foot rule. He had observed employees work within six feet of the edge of the building; however, he never disciplined an employee for that violation (TR 1029).
L. Paul Tarango
Mr. Tarango is employed by Mike’s Trucking Company and was employed as a dispatcher at the time of the accident (TR 1038). As part of his duties he visited this worksite to make sure his drivers “were doing what they were supposed to be doing” at the site (TR 1041). At a time prior to any hauling of debris by his trucks, he had a conversation with Mr. Cook regarding his safety concerns for his employees with respect to falling debris (TR 1042). He was aware that the trucks were to be backed into the pit area under the Dallas Securities Building (TR 1042-1043) and wanted assurance that debris would not fall on the trucks (TR 1047). He was told that no work would be performed on the upper floors when the truck was in the pit and no debris would fall from the building (TR 1048), 1059, 1066). Moreover, it was his understanding that the load area was to be twenty feet into the pit away from the exterior wall of the building (TR 1060-1061). However, Mr. Tarango acknowledged that in a statement given to OSHA investigators during December, 2006, he stated that Mr. Cook did not tell him that work would not be performed at the upper levels of the building when trucks were in the pit (TR 1070, 1075).
M. Jack Rector
Mr. Rector is a compliance officer with the Occupational Safety and Health Administration and was assigned to investigate the accident which occurred at this worksite (TR 1079-1081). Mr. Rector was not at the site prior to or at the time of the accident and has no personal knowledge of the events prior to or at the time of the accident. As part of his investigation he took photographs of the worksite and interview statements. As a result of his investigation, two willful citations were issued to Respondent and the proposed penalty was reduced by 10% because Respondent had no history of previous violations in the three year period preceding the accident (TR 1097).
N. Oscar Chaparro
Mr. Chaparro has been employed by Respondent for eight years as a laborer and a bobcat operator (TR 1275). He was aware that he could not get closer than six feet to the side of the building that did not have scaffolding (TR 1275). At the safety meeting the morning of August 14, 2006, he was informed that there was a lot of debris on the top floor and to be careful along the edge. While working as a bobcat operator on the nineteenth floor on August 14, 2006, he noticed a large amount of concrete debris, steel beams and reinforcing bars (TR 1277). Both Mr. Knudslien and Mr. Cook stated at the safety meeting that morning that the leading edge wall was loose (TR 1278). Both men stated that the employees had to exercise a higher degree of safety (TR 1280).
O. James Knorpp
Mr. Knorpp was the only witness called by Respondent. He is a former OSHA official and is currently self-employed as a safety consultant. He was accepted as an expert witness. Mr. Knorpp testified that in his opinion Respondent did not violate any OSHA standards, particularly the standards cited, at the time of the accident.
To prove a violation of an OSHA standard, the Secretary must show by a preponderance of the evidence that (1) the cited standard applies; (2) the employer failed to comply with the terms of the standard; (3) employees had access to the violative conditions; and (4) the employer either knew or could have known with exercise of reasonable diligence of the violation.
Astra Pharm. Prod., Inc. 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981),
aff’d 681 F.2d 69 (1st Cir. 1982); Atlas Roofing 430 U.S. 442 (1997). Preponderance of the evidence is defined as
“that quantum of evidence which is sufficient to convince the trier of fact
that the facts asserted by the proponent are more probably true than
false”. Ultimate Dist. Sys. 10 BNA
OSHC 1568, 1570 (No. 79-1269, 1982)(internal quotations omitted). Moreover, reasonable presumptions and
inferences may be drawn based upon the record evidence. See Fed Rules of Evidence Rule 301; Am. Iron
and Steel Inst. v. OSHA, 557 F.d 825, 831 (3d Cir. 1978); Republic Steel
Corp. v. OSHA 448
Based upon its investigation, the Complainant issued the following citations upon Respondent:
Citation 2 Item 1
29 C.F.R. § 1926.501(c) (2009): When an employee is exposed to falling objects, the employer does not implement one of the following measures: (1) Erect toe boards, screens or guardrail systems to prevent objects from falling from higher levels; or (2) Erect a canopy structure and keep potential fall objects far enough from the edge of the higher level so that those objects would not go over the edge if they were accidentally displaced; or (3) Barricade the area to which objects could fall, prohibit employees from entering the barricaded area, and keep objects that may fall far enough from the edge of a higher level so that those objects would not go over the edge if they were accidentally displaced.
This employer did not protect each employee from being struck by falling objects by erection of toe boards, screens, guardrail system, canopy, or effectively barricading the area to which the objects could fall. This violation was most recently observed at its workplace located at 1804 Commerce Street, Dallas, Texas, on or about August 14, 2006, and at times prior thereto, at least two workers, who were on the ground level at the northeast corner of the Dallas building during the clean-up of demolition debris on the 19th floor, were not protected from the hazards of being struck-by falling concrete and brick.
Citation 2 Item 2
29 C.F.R. § 1926.852(a) (2009): No material shall be dropped to any point lying outside the exterior walls of the structure unless the area is effectively protected:
The employer does not protect each employee from being struck by materials that are dropped to areas outside of the exterior walls of the building by use of an enclosed chute. This violation was most recently observed at its workplace located at 1804 Commerce Street., Dallas, Texas on or about August 14, 2006, and at times prior thereto, where workers, who were both working on foot and operating mechanical equipment, were exposed to the hazards of being struck-by demolition debris that was dropped to areas outside the exterior walls of the building.
It is axiomatic that the objective of
the Occupational Safety and Health Act is to eliminate dangerous conditions in
An employer’s efforts at compliance
may be used to demonstrate that the employer had notice of its obligations
under the cited standard. J. A. Jones
In this case, the evidence and all reasonable inferences and presumptions, establishes that Respondent is a national construction company and has been engaged in the demolition of large buildings and other large structures for almost 100 years. Based upon the documentary evidence, it is clear that, over that period of time, Respondent has developed a detailed set of safety standards tracking OSHA standards and directives governing inherently dangerous demolition activities. Based upon those documents, it is beyond dispute that Respondent knew that employees must be protected from falling debris and safe areas must be designated for employees when debris is thrown over the side of a building as required by the cited standards. To ensure a safe workplace, Respondent always prepares a site-specific demolition plan for each job. See Complainant’s Ex. C-1 – C-11. Based upon its lengthy experience and institutional knowledge in the field of demolition, Respondent fits the definition of a reasonably prudent employer familiar with the industry. As a company familiar with the dangers inherent in demolition activities, Respondent, in its written demolition plan for this worksite required the installation of scaffolding and a box containment system completely around each building and the removal of steel beams and other large debris from the top levels by crane. The scaffold and box containment system were designed to protect employees from falling debris and recognized by Respondent’s managerial staff to be highly effective as protection again falling demolition debris. Respondent has established a hierarchy within its managerial team responsible for enforcing the site-specific documents and, when necessary, to alter the site-specific plans only to the extent that such alterations may be accomplished safely; that is, to comply with the “reasonably prudent employer familiar with the industry” test. That hierarchy included Respondent’s management employees Andrew Varga, Vice President for Corporate Safety and Health; Keith Knudslien, General Superintendent of this worksite; Kyle Coffman, this worksite’s safety officer; and Alberto Marquez, foreman of this site. All of these individuals had a responsibility for conducting work activities in a safe manner at the worksite.
Mr. Randall Cook, as site
superintendent, was Respondent’s highest ranking official at the worksite on a
daily basis and was responsible for ensuring compliance with the demolition
plan. It appears that he experienced no
major problems in demolishing the
There is a direct dispute between the testimony of Mr. Cook and Mr. Lancaster on this issue of the feasibility of scaffold erection over the planned opening to allow truck access. Based upon my direct observation of the demeanor of Mr. Cook and Mr. Lancaster as they testified, I find Mr. Lancaster to be the more reliable and believable witness. Additionally, neither Mr. Lancaster nor his company had any vested interest in the outcome of this case. The same may not be said of Mr. Cook or Respondent’s other witnesses.
Mr. Cook realized that he could not dump scrap steel over the side of the building if the scaffold and box containment were in place. He conferred with Mr. Knudslien, Mr. Coffman and Mr. Varga and they all agreed that an exterior steel chute should be used to drop the steel into the pit and eliminate the scaffold/box containment. In lieu of the planned protection against falling debris, Cook, Knudslien, Varga, Coffman, and Marquez testified that one course of concrete block and sandstone at the outer edge of the building was a sufficient “toe board” to protect employees from falling debris. As the evidence has dramatically shown, the decision to forgo the scaffold box containment system, which has been recognized by Respondent as the most effective method for falling debris protection, ultimately resulted in the deaths of two workers. Indeed, the very instrument that Cook states he left in place to prevent falling debris, i.e., the block and sandstone wall, collapsed and became part of the falling debris that caused the instant fatalities. The facts of this case clearly demonstrate that the use of concrete block and sandstone wall in this manner is not what a “reasonably prudent employer familiar with the industry” would use to protect employees from falling debris of the type and nature created at this worksite.
The standard cited, 29 C.F.R. § 1926.501(c) (2009), requires an employer to put in place protective devices commensurate with the hazards present at the site and to protect employees from those hazards. It was incumbent upon Respondent, as a reasonably prudent employer familiar with the demolition industry, to choose the protective devices most appropriate to protect workers against those hazards. Respondent acknowledged that the most effective method to protect employees from falling debris is the scaffold/box containment system (TR 74-75, 563-564). As a matter of expediency based upon unexpected problems at the site, Respondent’s representatives made a knowing decision to eliminate the most effective protection and replace it with the least effective protection that resulted in the death of two workers. Moreover, a 1” x 4” strip of wood to be put in place at the roof edge, as suggested by Respondent’s expert witness, would not constitute sufficient protection against steel beams and large chunks of concrete.
There is evidence that Cook established a “six-foot rule,” that is, no employees were to work within six feet of the edge of the upper level of the building on the pit side when employees were in the pit. However, other testimony suggested that there was also a three-foot rule or a fifteen-foot rule. There was additional testimony that no work at all was to be performed on the upper floor when a truck was in the pit. The record contains conflicting testimony regarding the use of radio transmissions to warn employees of the presence of trucks in the pit and whether such transmissions were made on the day of the fatal accident. Moreover, there is testimony by Cook and others that the bottom course of concrete block was not referred to as a toe board until after the accident. In view of these conflicts, I place no weight upon such testimony.
Thus, the evidence on this record supports the conclusion that Respondent violated the cited standard by removing its recognized effective method for preventing falling debris; that is, a canopy structure in the form of the scaffold/box containment/netting system, thereby creating the hazard of falling debris to which employees were exposed. By removing that protection, Respondent, through its supervisory personnel, failed to act as a reasonably prudent employer familiar with the industry. For these reasons, Citation 2 Item 1 is affirmed.
With respect to Citation 2, Item 2, the evidence supports and tragically demonstrates that Mr. Omar Navarro and Mr. Kevin Oliva on August 14, 2006, were allowed to work in the pit area either on foot (Oliva) or by operating a truck (Navarro) and were exposed to and struck by debris dropped outside the exterior walls of the building. The record is devoid of any evidence to convince the trier of fact that Respondent took affirmative steps to adequately maintain an effective safe area to which these employees were required to retreat before any work was commenced on the floors overhead. Likewise, the record is devoid of any evidence to convince the trier of fact that Respondent took affirmative steps to assure that a formal warning system was in place to warn those employees on the ground of the work activity being performed at higher levels, or that any other formal protective measures were implemented that a reasonably prudent employer familiar with the industry should have provided. Accordingly, Item 2 of Citation 2 is affirmed.
The Secretary asserts that violations
committed by Respondent were “willful.”
Although not defined in the Act, “willful” has been defined by the
Courts as “conscious and intentional disregard of the conditions,” “deliberate
and intentional misconduct,” “utter disregard of consequences,” and other
similar descriptions. See Brock
v. Morello Bros. Constr. Inc., 809 F.2d 161 (1st Cir. 1987). In order to establish a willful violation, it
is necessary to determine the “state of mind” of the employer at the time of
the violations. The standard of proof
requires that the Secretary adduce evidence establishing that the Respondent
displayed an intentional disregard for the requirements of law and made a
conscious, intentional, deliberate and voluntary decision to violate the law or
was plainly indifferent to the requirements of the statute. A. Schenbek and Co. v. Donovan, 646
F.2d 799, 800 (2d Cir. 1981); Morello Bros. 809 F.2d at 164;
The Complainant’s burden to establish a willful violation has been defined by the Commission as follows:
To establish that a violation was willful, the Secretary bears the burden of proving that the violation was committed with either an intentional disregard for the requirements of the Act or with plain indifference to employee safety. Williams Enterprises, Inc., 13 BNA OSHC 1249, 1256-57 (No. 85-355, 1987). There must be evidence that an employer knew of an applicable standard or provision prohibiting the conduct or condition, and consciously disregarded the standard. Hern Iron Works, Inc., 16 BNA OSHC 1206, 1215 (No. 89-433, 1993). A violation is not willful if the employer had a good faith belief that it was not in violation. The test of good faith for these purposes is an objective one – whether the employer’s belief concerning the interpretation of a rule was reasonable under the circumstances. Gen. Motors Electro-Motive Div., 14 BNA OSHC 2064 (No. 82-630, 1991).
Sec’y of Labor v. S. G. Loewendich and Sons, 16 BNA OSHC 1954, 1958 (No. 91-2487, 1994).
However, an employer’s belief that alternative protective measures are superior to the requirements of a safety standard will not relieve that employer of a finding of a willful violation. Sec’y of Labor v. Trinity Indus. Inc., 16 BNA OSHC 1670, 1673 (11th Cir. 1004).
The evidence in this case supports the conclusion that Respondent had a heightened awareness of the requirements of the standard cited. Respondent’s long experience in the demolition industry and its institutional knowledge gained over that period of time has placed it in the unique position of being a leader in the demolition industry. Comprehensive and detailed written preplanning demolition and safety documents prepared for each job site are based upon that experience and institutional knowledge. It is undisputed that Respondent knew that the most effective method for protecting against falling debris was the scaffold/box containment system which complies with the canopy requirement of the standard, (29 C.F.R. § 1926.501(c) (2009). Respondent, by virtue of its detailed demolition documents, knew or should have known that a toe board was insufficient protection against falling debris during floor by floor demolition activities.
Because of unexpected problems faced by Cook, that is, the absence of the crane and the need to widen the ramp entrance through the scaffold, the protection recognized by Respondent as the most effective to protect employees from falling debris was eliminated. Cook also conferred with his superior, Knudslien, who agreed with the decision. Cook then conferred with the site safety officer, Coffman, who registered no objection to the decision. Moreover, foreman Marquez knew of the decision to eliminate the box containment and declined to object. Most importantly, however, is the fact that the highest ranking safety official in the company, Vice President Varga, personally approved of the decision to remove the box containment system. Thus, it cannot be reasonably claimed by Respondent that the decision which directly led to the death of two workers was the unforeseeable act of only one supervisor. That decision was made at the highest safety management level of the company. Notwithstanding their heightened awareness of the requirements of the cited standard to protect employees from falling debris, five levels of supervisory personnel made the conscious decision to disregard those requirements.
Moreover, it has been established by a preponderance of the evidence that Respondent’s management team was insufficiently concerned with employee safety, Williams Enterprises, supra. Unanticipated problems at the worksite and ineffective measures to solve those problems took precedence over prudent safety practices. The totality of the evidence proves that expediency and cost-avoidance took precedence over worker’s health and safety. These problems included the unavailability of the contracted-for crane, the incomplete erection of the scaffolding system, and uneven ground at the ramp area. Thus, although fully aware of the safety measures that were required under the standards, Respondent’s managerial employees were plainly indifferent to those measures and chose the most expedient method to complete the job. For these reasons Citation 2 Item 1 is affirmed as a willful violation.
With respect to Item 2, the decision to remove the box containment system dramatically increased the probability that demolition debris would likely fall into the pit area. This heightened danger was known to Respondent’s management team because of Respondent’s institutional knowledge and long experience in the demolition industry. When the decision was made to allow work to continue at the upper levels, Respondent, notwithstanding its heightened awareness of the potential for falling debris, failed to protect all workers on this site from that debris by requiring employees to leave the pit area where debris could potentially fall. The failure of management to protect employees against this danger when the decision was made to eliminate the box containment protection supports the conclusion that Respondent, through its supervisors, was plainly indifferent to the requirement to protect employees in the pit area from falling debris. See Chao v. OSHRC, 401 F.3d 355 (5th Cir. 2006). For these reasons, Citation 2 Item 2 is affirmed as a willful violation.
Section 17(j) of the Act requires that due consideration must be given to four criteria in assessing penalties: the size of the employer’s business, gravity of the violation, good faith and prior history of violations. In J. A. Jones Constr. Co., 15 BNA OSHC at 2214, the Commission stated:
These factors are not necessarily accorded equal weight; generally speaking, the gravity of a violation is the primary element in the penalty assessment. Trinity Indus., Inc., 15 BNA OSHC 1481, 1483, (No. 88-2681, 1992); Astra Pharm. Prod. Inc., 10 BNA OSHC 2070 (No. 78-6247, 1982). The gravity of a particular violation, moreover, depends upon such matters as the number of employees exposed, the duration of the exposure, the precautions taken against injury, and the likelihood that any injury would result. Kus-Tum Builders, Inc., 10 BNA OSHC 1128, 1132 (No. 76-2644, 1981).
The Secretary proposes a $63,000 penalty for each item for a total proposed penalty of $126,000. The maximum penalty for willful violations is $70,000; thus, the Secretary has reduced the total proposed penalty for both items by $14,000 based upon the fact that Respondent had not been issued a citation with penalties for three years prior to the accident in this case.
As previously stated Respondent has a long history in the demolition industry and has developed a laudable set of written procedures to insure that the work is completed efficiently and safely. I credit Cleveland Wrecking Company for having not been issued a citation with penalties for three years prior to the accident in this case. I also take note that its supervisors conducted daily safety briefings on this work site. In this case, however, ultimately there was a failure by Respondent’s management team to enforce those standards and procedures that may have averted this double fatality. The violations found above were not merely the result of carelessness or inadequate efforts to achieve compliance. Rather, the violations were the result of management’s inability to successfully grapple with unexpected logistical problems at the site in a safe and efficient manner. In order to complete the work, five levels of Respondent’s management raised expediency above safety.
I have carefully considered the entire record of trial and extent to which raising the penalty may have a salutary effect upon the attitude of Respondent’s management and would encourage them to place safety above expediency in the future. On balance, I have concluded that it would not be appropriate to raise any proposed penalty above that proposed by the Secretary. The findings and adjudged penalties in this case should be sufficient to impress upon Respondent and its senior staff the tragic consequences of short-circuiting safety standards.
All findings of fact relevant and necessary to a determination of the contested issues have been made above. Fed. R. Civ. P. 52(a). Respondent is an employer engaged in business affecting commerce within the meaning of section 3(5) of the Act and the Review Commission has jurisdiction over this proceeding. The Complainant’s Motion for Reconsideration relating to the evidentiary rulings in this matter is Denied. All proposed findings of fact and conclusions of law inconsistent with this decision are Denied.
(a) Willful Citation 2, Item 1 is affirmed as a willful violation and a penalty in the amount of $63,000 is assessed thereto.
(b) Willful Citation 2, Item 2 is affirmed as a willful violation and a penalty in the amount of $63,000 is assessed thereto.
JOHN H. SCHUMACHER
Dated: June 28, 2010 Administrative Law Judge
The pit was the former basement of the
 Mr. Alvarro Navarro is not related to Mr. Omar Navarro.
 At the time of the hearing Mr. Knudslien held the position of job site superintendent which is subordinate to the general superintendent.
 The demolition plan Ex. C-5 at page 6 states “Both the box containment system and screen netting are important parts of demolition procedure and have proven to be extremely effective on past floor-by-floor demolition projects that CWC (Respondent) has completed” (TR 85).
 The so-called toe board wall was also left in place at the other three sides of the building where the box containment system and scaffold were in place (TR 194).
 By his demeanor on the stand, Mr. Lancaster appeared to be an experienced and qualified specialist in his field and a highly credible witness.
 In all civil actions and proceedings not otherwise provided for by Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast. See Fed.R.Evid. 301.
 The scrap steel beams could not be dumped into the interior chutes (former elevator shafts) because the uncontrolled tumbling fall of the steel would damage the lower floors and, it is inferred, create hazards to employees working on the lower floors.
 The testimony of Respondent’s expert is at best disingenuous and, at worst, intellectually questionable. It is beyond comprehension that a safety expert would permit the installation of a 1” x 4” strip of lumber to prevent steel beams and other heavy debris, when propelled by a bobcat loader, from falling over the edge of the building. I find this opinion to be incredible and not worthy of any evidentiary weight.
 There is disputed testimony and a video which allege that debris was dumped into the pit area on August 14, 2006, other than the debris which caused the deaths. While these events may be additional instances of violations, it is only necessary for the Secretary to establish that Omar Navarro and Kevin Oliva were exposed to falling debris.