UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

April 15, 1987

ORDER

The Commission grants the Secretary’s motion to withdraw his citation and complaint as to item 1 of willful citation 2. The Commission vacates the direction for review of the judge’s report, thereby allowing that report to become the final order of the Commission as to the other citation items.

FOR THE COMMISSION:

Ray H. Darling, Jr.

Executive Secretary

April 15, 1987

NOTICE OF WITHDRAWAL OF CITATION AND COMPLAINT

Comes now the Secretary of Labor, by and through counsel, and withdraws the citation for violation of Section 5(a)(1) of the Act and the pertinent part of the complaint issued to respondent in the above captioned case.

1. The citation issued to respondent alleged a willful violation of the general duty clause (Section 5(a)(1)) for failure to protect workmen at lower levels from the hazard of falling materials during placing and removal of forms. A proposed penalty of $10,000 was assessed.1

2. A hearing on respondent’s notice of contest was held before Administrative Law Judge Joe D. Sparks on February 13, and 14, 1986.

3. The judge issued his decision and order on July 31, 1986 affirming the citation as alleged but reducing the classification from willful to serious. Accordingly, the judge also modified the proposed penalty to $900.00. Thereafter, respondent filed a timely Petition for Review which was granted on September 19, 1986 by Chairman Buckley.

4. On November 17, 1986, the Commission issued a briefing order. Respondent filed its brief in a timely fashion and certified that a copy had been mailed to the Secretary’s counsel in Washington, D.C. For unexplained reasons, however, the Secretary did not receive a copy of the brief and did not become aware of its existence until notified by telephone by respondent’s counsel during the week of February 23, 1987. Thereafter, the Secretary requested and was granted a thirty day extension of time until April 1, 1987.

5. NOW, the Secretary, after further review of the case and after discussions with respondent and with OSHA, and upon respondent’s representation that it will bear its own costs, hereby withdraws the citation for violation of Section 5(a)(1) of the Act and the pertinent part of the complainant previously issued to respondent.

Respectfully submitted,

GEORGE R. SALEM Solicitor of Labor

CYNTHIA L. ATTWOOD Associate Solicitor for Occupational Safety and Health

DANIEL J. MICK Counsel for Regional Trial Litigation

ANTONY F. GIL Attorney for the Secretary

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

August 20, 1986

APPEARANCES:

Ken S. Welsch, Esquire, Office of the Solicitor, U.S. Department of Labor, Atlanta, Georgia, on behalf of complainant.

Michael F. Swick, Esquire, Wasson, Sours and Harris, Atlanta, Georgia, on behalf of respondent.

DECISION AND ORDER

SPARKS, Judge:

A fatal accident at the Atlanta Plaza construction site on July 18, 1985, led to an investigation to determine compliance with the Occupational Safety and Health Act (the “Act”). Respondent, the forming subcontractor on the project, was issued serious, willful and repeat citations.

I.

The following alleged violations remain at issue:2

1) Willful citation number two, item one, which alleges a violation of section 5(a)(1) in that the workmen were not protected from falling materials.

2) Serious citation number one, item one, which charges that respondent violated 29 C.F.R. § 1926.21(b)(2) by failing to instruct employees in the recognition and avoidance of unsafe conditions.

3) Serious citation number one, item two, which alleges that the perimeters of floors were not guarded as required by 29 C.F.R. § 1926.500(d)(1).

  4) Serious citation number one, item three, which alleges that there was a large hole in a platform in violation of 29 C.F.R. § 1926.700(a).

5) Repeat citation three, item one, which charges a violation of 29 C.F.R. § 1926.252(c) in that scrap lumber, waste materials and rubbish were not removed from the work area as the work progressed.

II.

The Atlanta Plaza is an office building and parking complex located at 950 East Paces Ferry Road across the street from the Lenox Square Mall and the Marta Lenox station. In July 1985, work had reached the 24th floor of the office building and ten parking levels had been built.

About 3:00 p.m. on July 18, 1985, [name redacted] an employee of PPG, another subcontractor, working at the perimeter of the 18th floor was hit by lumber falling from above. He lost his balance and fell to his death.3

Compliance Officer Robert Harrison began an inspection of the project shortly after the accident.

III.

A.

Willful citation number two, item one, charges a violation of section 5(a)(1) of the Act, the general duty clause, because workmen were not protected from falling materials.4 A penalty of $10,000 was proposed.

The requirements of a general duty violation are well established. Sharon Steel Corp. OSAHRC , 12 BNA OSHC 1539, 1985 CCH OSHD ¶ 27,423 (No. 80–7251, Nov. 19, 1985):

To prove that an employer violated section 5(a)(1), the Secretary must first show that a condition or activity in the employer’s workplace presents a hazard to employees. Aluminum Co. of America, 82 OSAHRC 24/E10, 11 BNA OSHC 1520, 1522–23, 1983–84 CCH OSHD ¶ 26,526, pp. 33, 794–95 (No. 78–3157, 1983). He must then prove that the cited employer or the employer’s industry recognizes the hazard. Davey Tree Expert Co., 84 OSAHRC 11/D11, 11 BNA OSHC 1898, 1984 CCH OSHD ¶ 26,852 (No. 77–2350, 1984). The Secretary must further prove that the hazard is likely to cause death or serious physical harm and that feasible means exist to eliminate or materially reduce the hazard. Phillips Petroleum Co., 84 OSAHRC 2/E7, 11 BNA OSHC 1776, 1779, 1983–84 CCH OSHD ¶ 26,783, p. 34,524 (No. 78–1816, 1984), aff’d, No. 84–1425 (10th Cir. Sept. 19, 1985).

At the time of the accident, a crew of respondent’s employees was stripping or wrecking a concrete form at the northwest corner of the 20th floor (Tr. 161). David Stevens was leadman of the crew and was on the floor where the form was being removed. Willard Ball and Chris Sass were at the corner removing the lumber comprising the form. Two other crew members were below acting as spotters. One spotter was on P–10, the top level of the parking deck, and the other was located on Oak Valley Street (Tr. 161–162). The form was supported by four shores which held it in place (Ex. C–9; Tr. 163). The first three shores were removed without incident; but, when the fourth shore was removed, some of the lumber fell.5 Respondent contends the materials which fell were not those which struck [name redacted], because it did not come from the roof area or consist of small scrap pieces as described by Wilcox and the four by sixes from the form fell into the street not on the side of the building where was working (Tr. 462). The record does not indicate, however, that any other work was being performed on the roof or in the area. It is not necessary to decide whether it was a portion of respondent’s form which struck [name redacted] as he and any other person working near the perimeter was clearly exposed to the risk of falling materials during respondent’s stripping operations. The death of [name redacted] demonstrates that potential death or serious injury would result from the hazard. Respondent recognized the hazard to workers on the site during the stripping operation and took measures to control the risks (Tr. 461). The measures included scheduling the stripping after many other workers had finished work for the day, marking the danger areas with warning tape, and deploying two employees as “spotters” to maintain a visual lookout for persons entering the danger area (Tr. 457). The Secretary contends those measures were inadequate and suggests that catch platforms and debris nets were a feasible means to abate the hazard.

The record indicates that the spotter system is widely used in the construction industry during stripping operations. The Secretary’s expert witness agreed that spotters, if obeyed, are an effective safety measure (Tr. 308). Special circumstances made the system ineffective on the Atlanta Plaza job. First, although respondent contends it only scheduled stripping activities after other employees had finished for the day, it is clear that such was not the case. Employees of PPG were working during the stripping operations as well as others. Moreover, the record demonstrates that workers had ignored the spotters and the warning tape and had entered the danger area. The problem had reached such proportions that respondent’s vice-president had written to complain of the safety hazard being created by people ignoring the spotters and tape, and the general contractor had complained of the falling debris from respondent’s operations.6 Correspondence between Formwork Services and the general contractor, Charter Builders, Inc., demonstrates that both knew that the stripping operations were hazardous to others. Respondent’s vice-president, G.L. Grimes, in a letter dated May 31, 1985, stated as follows (Ex. C–14):

We have experienced cases already where we have warned other trades (such as PPG) to move out from below our operations and they have refused to do so. We can not accept responsibility for the injury of such persons, especially after they have been warned.

The hazard to workers and the ineffectiveness of its system was thereby recognized by respondent because it did not in the circumstances of this case prevent workers from being exposed to the hazard of falling debris.7 Respondent was creating the hazard by permitting the debris to fall and, therefore, can not escape responsibility by contending that others refused to heed the warnings (Tr. 545–546).

The Secretary suggests that debris nets would have been a feasible means to abate the hazard, but G.L. Grimes, respondent’s vice-president, asserts such nets would impede operations and could not be properly attached on the corners (Tr. 572–585). The Secretary’s expert witness, Victor S. Kelly, former Corporate Safety Director of J.A. Jones Construction Company, is familiar with form work and the safety systems used to protect employees including spotters, debris nets and catch platforms. He was a knowledgeable and candid witness. He is familiar with nets and catch platforms used on such projects as the Chemical Bank and AT & T Buildings in New York, the Transcon Tower in Houston, Phillips Petroleum Building and Galleria Hotel. Catch platforms are constructed of plywood and extend out approximately four feet from around the building to catch materials falling from above (Tr. 291). They are placed in position about one floor below where the work is taking place (Tr. 291). On the Atlanta Plaza project, Kelly was of the opinion that drape or debris nets would have been an effective means to eliminate or reduce the hazard of falling materials (Ex. C–17, C–18, C–19, C–20; Tr. 296–297, 300). Kelly was confident it could be properly fitted around the corners of the Atlanta Plaza building (Tr. 304–305). Kelly agreed that “spotters” could be effective when they are obeyed but on this project were ignored (Tr. 110, 301, 308).

The evidence as a whole indicates that the hazard of falling materials during form work operations is known throughout the construction industry and by respondent. Spotters can provide effective warning to prevent employees from entering a danger zone and being exposed to such hazard, but the effectiveness is reduced with the height of the building which lengthens the distances and impedes communications between the wrecking crew and the spotters. There had been a breakdown of the spotter system at the Atlanta Plaza job so that employees were ignoring the warnings. Moreover, there is no evidence that [name redacted], the deceased worker, was seen or warned by the spotters prior to being hit.8 Kelly’s, the Secretary’s witness, testimony is convincing that debris nets would have provided a feasible means to eliminate or substantially reduce the hazard. Respondent violated section 5(a)(1), the general duty clause, by failing to furnish employment and a place of employment which was free of recognized hazards.

The Secretary charges that the violation was willful and proposed a penalty of $10,000. The Review Commission has established the following criteria for a willful violation [Asbestos Textile Co., OSAHRC , 12 BNA OSHC 1062, 84 CCH OSHD ¶ 27,101 (No. 78–3831, 1984) ]:

To establish that a violation was willful, the Secretary must show that it was committed with intentional, knowing or voluntary disregard for the requirements of the Act or with plain indifference to employee safety. See, e.g., D.S. & L. Caruso, Inc., 84 OSAHRC , 11 BNA OSHC 2138, 2142, 1984 CCH OSHD ¶ 26,985, p. 34,694 (No. 79–676, 1984); Duquesne Light Co., 84 OSAHRC , 11 BNA OSHC 2033, 2040, 1984 CCH OSHD ¶ 26,959, p. 34,603 (No. 79–1692, 1984, pets. for rev. filed, Nos. 84–3530 & 84–3538 (3d Cir. Aug. 20 & 28, 1984). It is not enough for the Secretary simply to show carelessness or a lack of diligence in discovering or eliminating a violation, nor is a willful charge justified if an employer has made a good faith effort to comply with a standard or eliminate a hazard even though the employer’s efforts are not entirely effective or complete. Marmon Group Inc., 84 OSAHRC , 11 BNA OSHC 2090, 1984 CCH OSHD ¶ 26,975 (No. 79–5363, 1984), pet. for rev. filed, No. 84–2193 (8th Cir. Sept. 17, 1984), citing Mobile Oil Corp., 83 OSAHRC , 11 BNA OSHC 1700, 1983 CCH OSHD ¶ 26,699 (No. 79–4802, 1983).

Where, as here, the alleged willful violation is of the general duty clause, the Secretary’s burden of proof is even more difficult. The Review Commission has stated as follows [Kus-Tum Builders, Inc., 81 OSAHRC 97/B2, 10 BNA OSHC 1128, 1981 CCH OSHD ¶ 25,738 (No. 76–2644, 1981)]:

The Secretary’s burden of proving willful conduct is notably more difficult when an employer is charged with a willful violation under a general standard or “the general duty clause,” section 5(a)(1), rather than a specific standard. St. Joe Minerals Corp. d/b/a St. Joe Lead Co. v. OSHRC & Marshall, 647 F.2d 840 (8th Cir.1981). In particular, a more concrete evidentiary showing is required to prove willfulness in this context. Where a willful violation of section 5(a)(1) is alleged, the Secretary has the burden of proving the employer’s intentional disregard of or its plain indifference to its statutory duty to furnish a workplace free from recognized hazards that are causing or likely to cause death or serious physical harm. Id. at 848. Thus, “there must be evidence, apart from that establishing knowledge of the hazard, from which we may reasonably conclude that the employer intentionally disregarded or was indifferent to the safety of the workplace.” Id. at 848–849.

The evidence fails to show the intentional disregard or plain indifference required to prove a willful violation. The record shows that respondent was concerned about the hazard presented by the falling materials and urged greater cooperation from other contractors. Although Formwork failed to take the action which the hazardous circumstances required, it is attributable to a careless failure to take a realistic view of the circumstances rather than intentionally disregarding those circumstances. The evidence supports the conclusion that the violation was serious not willful. Considering the gravity of the hazard, which is great, and the size and history of the employer, no reduction of penalty is warranted. The company did show some good faith in its efforts to make its spotter system effective, justifying an appropriate penalty of $900 for the violation.

B.

Serious citation number one, item one, charges a violation of 29 C.F.R. § 1926.21(b)(2) by failing to instruct employees in the recognition and avoidance of unsafe conditions9 under the following conditions:

(a) Tower 20 at NW Corner—Employees are not trained in use of safety belts and the need for tieing off when work goes on at the edge of a building. On or about 7–18–85.

  (b) Tower 20 at NW Corner—Employees are not trained in proper wrecking procedures in that employees allow and purposely cause material to fall over the side of the building during wrecking operations. On or about 7–18–85.

The evidence is overwhelming that the employees wrecking the form work on July 18, 1985, were working at the perimeter of the building without being tied off or having other means of protection (Tr. 166–168). The parties agreed upon the entry of a serious violation with a penalty of $1,000 for such conditions (Tr. 540–541). Superintendent Thompson acknowledged that the company did not have a written safety program (Ex. C–21, p. 45). The leadman is responsible for teaching safety along with other facets of the job (Ex. C–21, pp. 43–44). Respondent points out that the standard requires only that the employer instruct its employees regarding safety and not that it enforce its instructions. Dravo Engineers and Constructors, OSAHRC , 11 BNA OSHC 2010, 1984 CCH OSHD ¶ 25,930 (No. 81–748, 1984). Respondent’s witnesses testified that safety meetings were held and safety problems discussed (Tr. 432–433, 452–454, 519–520). Leadman Stevens remembers safety meetings and that a rule requiring the wearing of safety belts was discussed. He did not remember, however, whether laborer Chris Sass was present at the meeting (Tr. 454). Sass testified he did not receive instructions regarding the wearing of safety belts. He stated as follows (Tr. 169):

Q. Now, at the time that you were doing the stripping on July the 18th, did Mr. Stevens say anything to you about wearing safety belts or not wearing safety belts?

A. No.

Q. Previous to this, had you ever been told by anybody in the company to wear a safety belt?

A. No.

Q. Had you had any training on wearing safety belts?

A. No, not as far as ...

Thomas Lindsey, a carpenter, also indicated he did not have a safety belt or attend safety meetings (Tr. 241–243). Nevins stated he learned of the safety belt rule after the accident (Tr. 235–237).

The employees’ definite testimony that they did not receive instructions regarding safety belts is entitled to more weight than the general statements of respondent’s witnesses. On the other hand, Sass agreed that he had received instructions as to the proper method of stripping forms (Tr. 175). The Secretary has established a violation of citation one, item 1(a) but not item 1(b). The violation is serious because the lack of instructions could subject employees to fall hazards resulting in death or serious injury.

The Secretary proposes a penalty of $1,000. The gravity of the violation is great because the failure to instruct employees to recognize and avoid the unsafe conditions could be the primary cause that employees were working near the perimeter without protection thus subjecting themselves to the falling hazard. The failure to instruct such employees warrants the maximum penalty of $1,000 even though subitem (b) will be vacated. None of the mitigating factors of size, history or good faith justify a reduction of that penalty.

C.

Serious citation one, item two,10 alleges a violation of 29 C.F.R. § 1926.500(d)(1)11 by failing to protect its employees working at the perimeter with standard guardrails or their equivalent.

The perimeter guards on the Atlanta Plaza were the responsibility of the general contractor, Charter Builders, Inc. It consisted of a single wire rope without any midrail (Tr. 81–82, 101–102, 125–126, 366, 395–396). Photographs show a single-strand rope or cable on the 19th floor with a large unguarded notch in the floor and the single-wire cable down at the northwest corner of the 18th floor (Ex. C–5, A & B, C–6, C–9A; Tr. 27–28). On the 23rd floor, the rope had been taken down (Tr. 26). Although respondent did not create or control the conditions, it is responsible for exposing its employees to such hazards. Giles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975–76 CCH OSHD ¶ 20,448 (No. 504, 1976). The employer is required to take reasonable and realistic measures to abate the hazard or avoid the danger. Grossman Steel and Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975–76 CCH OSHD ¶ 20,691 (No. 12775, 1976); Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975–76 CCH OSHD ¶ 20,690 (No. 3694, 1976).

The compliance officer did not observe any employee exposed to the perimeter during his walk around (Tr. 390). However, the work of the respondent’s crew requires them to work all over the floors including the perimeters (Tr. 167–168, 241–242). It is enough that employees have access to the areas of danger. Compliance Officer Harrison saw respondent’s employees removing pans within two feet of the rope on July 23 (Tr. 345). Respondent’s vice-president acknowledged that employees’ duties would require them to work up to the perimeter of the four floors below the one being poured (Tr. 81–83). Mr. Grimes and superintendent Starling had questioned Charter earlier about the absence of a midrail but had dropped the matter after that condition had not been cited as a violation on a prior OSHA inspection (Tr. 83, 89, 527, 555). Merely raising a question about the problem with the general contractor is not sufficient to avoid responsibility when employees had access to the hazard. Superintendent Starling knew the wire rope was inadequate and instructed his leadmen to tie-off with safety belts when working within the guardrail (Tr. 533–534). If that instruction were given and received by all exposed employees and enforced, it would fulfill Formwork’s responsibility. But as it has been found that employees did not receive instruction to wear safety belts outside the guard, it follows they were not instructed to wear belts when working near the cable. The evidence establishes a violation as alleged. As a fall from those heights would result in death or serious injury the violation is serious.

The Secretary proposes a penalty of $1,000. The potential injury was great, but as there was some protection from the single strand of wire cable, a penalty of $800 is reasonable. There is no evidence supporting reductions for size, history or good faith.

D.

Citation one, item three, alleges a violation of 29 C.F.R. § 1926.700(a)12 ANSI standard A10.4–1970, Section 6.4.4, in that “[g]uardrail did not follow flooring/platform around form in that on the 24th floor next to column G–4 there was a large hole in the platform.”

The evidence is clear that there was an unguarded hole in the wooden platform at the northwest corner of the 24th floor which superintendent Starling thought was caused by the misalignment of the platform (Ex. C–7, pp. 112–113, 254–256). The hole was triangular in shape and was about two feet wide and six or seven feet long. The potential fall was 200 feet or more (Tr. 256). Compliance Officer G.T. Breezley on the walk around on July 22 observed an employee of Tri-Bentley, the concrete finisher working the area “right next” to the hole (Tr. 256, 258). Breezley did not see any of respondent’s employees exposed to the hazard, but the Secretary contends that inasmuch as respondent created the condition, it is responsible for it.

The Review Commission in Union Boiler Co., 83 OSAHRC 11/C7, 11 BNA OSHC 1241, 1983 CCH OSHD ¶ 26,453 (No. 79–232, 1983), stated the following elements of proof:

To prove a violation of section 5(a)(2) of the Act, the Secretary must show by a preponderance of the evidence that (1) the cited standard applies, (2) there was a failure to comply with the cited standard, (3) employees had access to the violative condition, and (4) the cited employer either knew or could with the exercise of reasonable diligence have known of the condition.

Respondent acknowledges that the opening was in its scaffold but asserts that it had not been on the jobsite for several day after the accident and had no knowledge of the condition (Tr. 140, 422–423, 437–438). Respondent also contends it had no employees exposed to the condition. The Secretary has the burden of proving that respondent “ ... either knew or could with the exercise of reasonable diligence have known of the condition.” There is no evidence to suggest that respondent knew of the condition prior to the walk around inspection after the accident. Respondent suggests the hole may have formed during the time it was away from the site but in any event it had no knowledge of it prior to the inspection. The evidence fails to establish the requisite knowledge, so citation one, item three, must be vacated.

E.

Repeat citation number three, item one, alleges a violation of 29 C.F.R. § 1926.252(c)13under the following circumstances:

Tower 20 through Tower 23—Busted plywood formwork, boards with protruding nails, and other trash scattered over floors with no cleared walkways. On or about 7–18–85.

Photographs taken of the 21st and 22nd floors on July 23 show large amounts of lumber, concrete, rebars and other materials littering the floors (Ex. C–11, C–12, Tr. 346–348). Nails are shown protruding through some of the lumber. Compliance Officer Harrison testified that, when he made his accident investigation on July 18 (which is the date stated in the citation), there were no cleared walkways. On the 23rd some walkways had been cleared, but employees still had to go through the debris (Tr. 347–348). Harrison ascertained that respondent’s employees were working at various locations on the debris-litterd floors. A citation charging a similar violation on August 27, 1982, at another of respondent’s projects had become a final order of the Review Commission (Ex. C–15). Respondent acknowledges it uses large quantities of materials in its forming operations but contends that walkways had to be maintained to roll scaffolds and move the jacks across the floors (Tr. 148–149, 563). Respondent also contends that the employee pictured in exhibit C–11 was cleaning up material (Tr. 122). Harrison indicated he saw employees removing pans, and employees carrying material around for various purposes such as clean or stack material or sorting out reusable lumber.

Some of the debris may be attributable to the fact there was not a debris chute on the job. Each subcontractor was to stack its own debris into piles to be removed by Charter. The photographs establish large amounts of litter, yet it is not established how much was Formwork’s responsibility, nor is it shown that its employees were not acting promptly to remove it from the immediate area as the work progressed. The evidence fails to establish a violation by respondent and citation number three must be vacated.

The foregoing constitutes findings of fact.

CONCLUSIONS OF LAW

1. Respondent is an employer and is subject to the Act and this proceeding.

2. Respondent violated the following standards under conditions constituting serious violations as alleged in citation number one:

(a) 29 C.F.R. § 1926.21(b)(2)

(b) 29 C.F.R. § 1926.500(d)(1)

3. Respondent violated section 5(a)(1), the general duty clause of the Act, as alleged in citation number two, items one and three, under conditions constituting a serious but not willful violation.

4. Respondent did not violate the following standards alleged in citation number one:

(a) 29 C.F.R. § 1926.700(a)

(b) 29 C.F.R. § 1926.252(a)

5. Respondent did not violate section 5(a)(1) as alleged in citation number two, item two.

6. Respondent did not violate 29 C.F.R. § 1926.252(c) as alleged in repeat citation number three.

7. The following penalties are reasonable and appropriate:

A. Citation No. 1

Item 1 $1,000

Item 2 $800

B. Citation No. 2

Item 1 $900

Item 3 $1,000

ORDER

1. Citation number one, items one and two, are affirmed as serious violations.

2. Citation number two, items one and three, are affirmed as serious violations.

3. Citation number one, items three and four, are vacated.

4. Citation number two, item two, is vacated.

5. Citation number three is vacated.

6. Penalties of $3,700 are assessed.

Dated this 20th day of August, 1986.

JOE D. SPARKS

Judge

1 Other citations were issued as a result of the inspection and contested, but the judge’s disposition of those citations is not before the Commission on review.

2 The Secretary withdrew item two of willful citation number two and item four of serious citation number one. Item three of willful citation number two was amended by agreement to a serious violation with a penalty of $1,000 to which respondent withdrew its notice of contest (Tr. 540–541).

3 Bradley Wilcox was the only eyewitness to the accident. He was at the site to deliver materials and was looking up at the building at the time of the accident. He described it as follows (deposition of Bradley Wilcox, pp. 11–12):

A I was there looking at the building, counting 16 floors to find someone who worked for EMS. At that time I was waiting for someone to come to the edge of the building, they should be watching for me there, and I notice some structures of wood, mixed scrap wood, falling from around the roof area, which caught my eye. At this time I followed the wood down to where I watched and saw it striking a man above the 16th floor that I was looking at.

Q What portion of his body did it hit?

A The shoulder and head area.

Q Okay.

A The wood striking above the man, falling into the building and then striking the man.

Q Okay.

A Causing him to lose his balance and to fall off the building.

Q Okay. Now, why did you say that he lost his balance?

A When the wood struck him he made a movement to keep his balance to stay on the building, and then—which he couldn’t keep his balance—and then falling off the building.

Q How large were the structures of wood that hit him?

A I’d say they were scrap wood, ranging from one to three feet in length, consisting of two by fours, plywood, two by fours.

4 Citation two, item one, alleges as follows:

Section 17(a) of the Occupational Safety and Health Act of 1970 and Section 5(a)(1) of the Occupational Safety and Health Act of 1970: The employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees in that:

(a) Workmen or others at lower levels were not protected from inadvertently falling materials, such as 4 x 4’s, 4 x 6’s, and plywood sheets, during placing and removal of forms in the NW and NE corners of the tower floors. Among other methods, one feasible and acceptable method to correct this hazard is to set up catch platforms in the corners being wrecked out.

5 Chris Sass, a member of the wrecking crew, described the process as follows (Tr. 165–166):

Q. When you removed that shore, did any material come down at that point?

A. Yes, some of the four by sixes on the west side fell into the street.

Q. Do you remember how many fell?

A. Maybe one or two. I think a total of three fell. There was one that was a stray after we pulled the last shore out. I think two fell and then, there was just one hanging there by a nail.

Q. And what did you do with that one?

A. I knocked that down with a two by four into the street.

Q. Do you know where it fell in the street?

A. I watched it fall down to the street because I was standing behind the column when I did it.

Q. And what about the other two that you referred to? Did you watch them fall?

A. I didn’t see them fall. I mean, as we pulled the shore in, we saw them fall, but we later saw them on the street.

6 Among the correspondence relating to the failure to comply with respondent’s warning system includes the following contained in Exhibit C–14:

1) Letter dated July 17, 1985, from G.L. Grimes, vice-president, Formwork Services, to Charter Builders, Inc., the general contractor, stating that “... Also, would you again caution those walking through our stripping areas that are taped off that they are endangering theirselves.”

2) Report of a safety inspection dated July 8, 1985, by Danny Thompson, respondent’s superintendent that “ ... Have been flagging off areas on the ground while flying tables—but people have been taking them down and walking through the areas.”

3) Letter to Grimes of Formwork Services from McDaniel of Charter Builders, dated June 28, 1985, reporting that the sheetrock foreman had complained of two separate incidents of falling debris on June 27. He was requested to “ ... please reinforce your safety program ... as this continues to be a constant problem.”

4) Letter dated June 17, 1985, to Grimes from McDaniel stating that “I ... can not believe the different people that have approached me about the ever increasing ‘raining of debris’ from your forming operation. I am afraid that serious injury will occur if drastic steps regarding safety are not taken immediately.”

5) Letter from Grimes to Charter Builders dated June 24, 1985, promising to continue to prevent its material from falling and acknowledging that Formwork was responsible for two broken windows.

6) Letter from Grimes to Charter Builders dated May 31, 1985, as follows:

To confirm our telephone conversation with you today, we are writing. We informed you of our concerns about other trades working outside or on the perimeter of the Tower structure below our operations and unprotected by nets or other fall protection. We have experienced cases already where we have warned other trades (such as PPG) to move out from below our operations and they have refused to do so. We can not accept responsibility for the injury of such persons, especially after they have been warned. We request that you inform them of the dangers of working below our operations and demand that they move away from a danger zone when requested.

7 The Secretary contends that the spotter system was also defective when operating at the distances in this case because the only means of communication between the spotters and the form wreckers were voice and hand signals.

8 Although it is not necessary to determine whether the lumber which struck [name redacted] was from work being wrecked, it is clear that he had access to and was exposed to the hazard of falling lumber from the wrecking operation. The reasonable inference from all the available evidence was that he was struck by the falling formwork.

9 Section 29 C.F.R. § 1926.21(b)(2) provides as follows:

The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.

10 Citation one, item two, provides as follows:

29 CFR 1926.500(d)(1): Open-sided floors or platforms, 6 feet or more above adjacent floor or ground level, were not guarded by a standard railing or the equivalent on all open sides:

(a) Tower 23—Perimeter protection completely taken down. On or about 7–18–85.

(b) Tower 3 thru Tower 23—Perimeter protection did not have a midrail in areas where single wire rope was used. On or about 7–23–85.

11 Section 1926.500(d)(1) of 29 C.F.R. states as follows:

(d) Guarding of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(1) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.

12 Section 1926.700(a) of 29 C.F.R. states as follows:

(a) General. All equipment and materials used in concrete construction and masonry work shall meet the applicable requirements for design, construction, inspection, testing, maintenance and operations as prescribed in ANSI A10.9–1970, Safety Requirements for Concrete Construction and Masonry Work.

ANSI Standard A10.9–1970 Section 6.4.4 provides as follows:

Forms intended for use where there is a free fall of over 10 feet shall be equipped with adequate scaffolding and guardrails.

13 Section 1926.252(c) of 29 C.F.R. provides as follows:

(c) All scrap lumber, waste material, and rubbish shall be removed from the immediate work area as the work progresses.