United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

 

SECRETARY OF LABOR,

Complainant,

v. OSHRC Docket No. 08-0866

SOUTHERN PAN SERVICES CO.,

Respondent.

ON BRIEFS:

Ronald J. Gottlieb, Attorney; Heather R. Phillips, Counsel for Appellate Litigation; Joseph M. 

Woodward, Associate Solicitor; M. Patricia Smith, Solicitor; U.S. Department of Labor, 

Washington, DC 

 For the Complainant 

Mark A. Waschak, J. Larry Stine, and Elizabeth K. Dorminey; Wimberly, Lawson, Steckel, 

Schneider & Stine, P.C., Atlanta, GA

 For the Respondent

DECISION AND REMAND

Before: ROGERS, Chairman; ATTWOOD and MACDOUGALL, Commissioners.

BY THE COMMISSION:

Southern Pan Services Company, a concrete formwork contractor, installed the shoring 

and formwork for a six-story concrete parking structure, which was part of a project known as 

Berkman Plaza II, in Jacksonville, Florida. On December 6, 2007, part of the structure collapsed 

during a concrete pour, fatally injuring one Southern Pan employee and seriously injuring 

another Southern Pan employee along with more than twenty other workers involved in the 

project. After conducting an inspection of the worksite, the Occupational Safety and Health 

Administration issued Southern Pan two citations—a two-item serious citation and a two-item 

willful citation—alleging violations of the Occupational Safety and Health Act of 1970, 29 

U.S.C. §§ 651-678. OSHA proposed a total penalty of $125,000. Following a hearing, former
2

Administrative Law Judge Ken S. Welsch issued a decision in which he vacated both of the 

serious citation items, and vacated one item and affirmed the other item of the willful citation, 

for which he assessed a penalty of $40,000.1 

Only the two willful citation items are at issue on review. The Secretary challenges the 

judge’s decision to vacate Willful Citation 2, Item 1, which alleges a violation of 29 C.F.R. 

§ 1926.701(a) (placement of construction loads), and Southern Pan challenges his decision to 

affirm Willful Citation 2, Item 2, which alleges a violation of 29 C.F.R. § 1926.703(a)(2)

(availability of formwork plans at jobsite). For the following reasons, we set aside the judge’s 

decision in full as to Item 1 and in part as to Item 2, and remand the case to the Chief Judge for 

reassignment and further proceedings. 

BACKGROUND

In January 2006, construction of a new six-story parking garage and adjacent 

condominium tower began at the Berkman worksite. The project owner, Berkman Plaza II, LLC, 

hired architecture firm Pucciano and English, Incorporated and general contractor Choate 

Construction Company to oversee the project. Pucciano and English employed the project’s 

Engineer of Record, who prepared “signed and sealed” structural drawings for the project.

2

 

Choate hired various subcontractors, including A.A. Pittman and Sons, a concrete finishing 

company, and Southern Pan. Southern Pan was contractually responsible for: (1) obtaining 

shoring and reshoring3drawings for both the garage and tower; (2) building the formwork; and 

(3) placing concrete for some of the vertical pours, but not the horizontal pours. It is undisputed 

that placing the concrete for the horizontal pours—including the pour that resulted in the 

collapse—was Pittman’s responsibility.

 

1

Judge Welsch has since retired from the Review Commission.

2 Drawings are signed and sealed (or stamped) by an engineer after the engineer has reviewed 

them and determined they are adequate.

3 A “shore” is defined by OSHA regulations as “a supporting member that resists a compressive 

force imposed by a load.” 29 C.F.R. § 1926.700(b)(7). It is placed on the level immediately 

below that which is currently being built and is used to support the formwork before and during 

the concrete pour. “Reshoring” is defined as “the construction operation in which shoring 

equipment (also called reshores or reshoring equipment) is placed, as the original forms and 

shores are removed, in order to support partially cured concrete and construction loads.” 29 

C.F.R. § 1926.700(b)(6). It is placed on the completed levels below and does not support the 

structure, but carries the load of the wet concrete placed above.
3

Southern Pan hired Patent Engineering to provide the signed and sealed drawings for the 

shoring and reshoring that were available at the worksite. Patent’s plans show that the 

formwork, which would hold the poured concrete for the garage, was to be supported by shoring 

and reshoring that extended all the way down to the ground. Once installed, the shoring and 

reshoring, as well as the formwork, were subject to two levels of scrutiny. Universal 

Engineering Sciences was hired by Southern Pan to inspect the shoring and reshoring to 

determine whether these components were correctly constructed according to Patent’s drawings. 

Synergy Structural Engineering was hired by Berkman to serve as the project’s threshold 

inspector and was required to provide periodic inspections at different stages of the construction 

process to ensure that: (1) the construction of all load-bearing components complied with the 

permit documents; and (2) the shoring and reshoring conformed to the shoring and reshoring 

plans. 

Even though Patent’s plans showed that shoring or reshoring was to extend down to the 

ground until the end of the construction phase, Southern Pan removed reshoring from the first, 

second, and third levels of the garage over three different days in October and November of 

2007, well before the end of construction, but it neither made nor requested changes to Patent’s 

drawings to reflect the removal. James Smith, Southern Pan’s superintendent for the project, 

testified that the reshoring was removed because he believed that Timothy Postma, Southern 

Pan’s senior project manager, wanted to switch the shoring method, which instead of shoring to 

the ground, would shore the top level and reshore only the two levels immediately below it 

(known as the “one-over-two method”).4 On November 7 and 20, 2007, Choate and Pittman 

placed two concrete pours in the garage without incident. However, during the next pour 

(known as 6A) on December 6, 2007, the garage collapsed.

DISCUSSION

Before turning to the two citation items at issue on review, we first address Southern 

Pan’s claim that certain material redacted by the Secretary in a document provided to the 

 

4

Smith admitted at the hearing that it became apparent later that the switch to the one-over-two 

method was based on a misunderstanding between him and Postma. Postma had told Smith to 

rotate the “material,” and Smith assumed that meant he should switch to what “we always did at 

one over two, one shoring over reshoring . . . .” Smith later learned that Postma had intended for 

him “to rotate his aluminum and plywood,” but not to remove any reshoring. Postma testified 

that he had always intended the garage to be shored to the ground.
4

company during discovery was not, as alleged by the Secretary, protected by the deliberative 

process privilege and should have been produced in discovery.

I. Deliberative Process Privilege

In May 2008, a structural engineer in OSHA’s National Directorate of Construction 

Office prepared a report (“Report”) for OSHA regarding the garage collapse at the Berkman 

worksite. In response to Southern Pan’s discovery request for OSHA’s entire investigative file, 

the Secretary produced the Report with portions of the text redacted. The Secretary claimed that 

the redacted material was protected by the deliberative process privilege. Southern Pan filed a 

Motion to Compel seeking, among other things, the disclosure of portions of the redacted 

material. After conducting an in camera review of the Report, the judge issued an order denying 

Southern Pan’s motion. He upheld the claim of privilege as asserted in a Declaration submitted 

by OSHA’s Deputy Assistant Secretary and found that Southern Pan had not established a need 

for the redacted material sufficient to overcome the privilege. The judge also stated that “there is 

nothing in this [R]eport or in these conclusions . . . that I would use to form any basis for my 

decision.” Therefore, he admitted the unredacted portions of the Report into evidence but sealed 

the redacted portions as confidential.

On review, Southern Pan contests the judge’s ruling, raising various challenges to the 

Secretary’s assertion of the deliberative process privilege. However, we agree with the judge

that the Secretary properly invoked the privilege in withholding the redacted information in the 

Report. It is well-settled that the deliberative process privilege “allows the government to 

withhold documents and other materials that would reveal ‘advisory opinions, recommendations 

and deliberations comprising part of a process by which governmental decisions and policies are 

formulated.’ ” In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997) (citation omitted). The

purpose of the privilege “ ‘is to prevent injury to the quality of agency decisions’ by allowing 

government officials freedom to debate alternative approaches in private.” Id. (quoting NLRB v. 

Sears, Roebuck & Co., 421 U.S. 132, 151 (1975)). In deciding whether material is protected 

under the deliberative process privilege, courts consider whether the material is “predecisional”

and whether it is “deliberative.” Hinckley v. United States, 140 F.3d 277, 284 (D.C. Cir. 1998). 

We find that the report is both predecisional and deliberative.

The material here is predecisional as it preceded the Secretary’s decision to cite Southern 

Pan. In addition, the material is deliberative, because it does not consist of mere factual 
5

conclusions, as Southern Pan contends, but rather contains communications that are “part of the 

agency give-and-take by which the decision itself [was] made.” Id. It contains the OSHA 

engineer’s personal opinions of how certain employers performed their contractual duties, as 

well as his conclusions about what caused the garage collapse. Fed. Trade Comm’n v. Warner 

Commc’ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984) (finding district court erred in ordering 

disclosure of agency memoranda that was predecisional and contained analyses and 

recommendations at “the heart of the deliberative and policymaking process”). The OSHA 

engineer provided the information at the request of OSHA’s Region IV Administrator to assist its

Jacksonville Area Office in determining whether to issue citations in this case. See Stone & 

Webster Constr. Inc., 23 BNA OSHC 1939, 1942, 2009-12 CCH OSHD ¶ 33,222, p. 55,980 (No. 

10-0130, 2012) (consolidated) (“predecisional materials pertaining to the government’s decision 

to cite, or not to cite, an employer for a particular alleged violation are within the scope of the 

[deliberative process] privilege”). Accordingly, the Secretary had a substantial legal basis for 

applying the privilege. See Donald Braasch Constr., Inc., 17 BNA OSHC 2082, 2086, 1995-97 

CCH OSHD ¶ 31,259, p. 43,868 (No. 94-2615, 1997) (finding dismissal unwarranted where 

Secretary had a substantial legal basis for failing to disclose and there was no evidence of 

contumacy).

Contary to Southern Pan’s argument, the Secretary did not waive the privilege. The 

Secretary timely filed a Declaration, objecting to production of the redacted material, just a few 

weeks after receiving Southern Pan’s Motion to Compel, which was the first time Southern Pan 

requested production of the redacted portions of the Report. See In re Sealed Case, 121 F.3d at 

741 (stating that a party has no obligation “to formally invoke its privileges in advance of the 

motion to compel”). In addition, the judge correctly found that the information had no bearing 

on whether the company was in compliance with the cited standards.

5 Cf. Frazee Constr. Co., 1 

 

5 Given this finding, we note that even if the judge had erred in allowing the Secretary to redact 

this information under the deliberative process privilege any such error would have been

harmless. See Woolston Constr. Co., 15 BNA OSHC 1114, 1122, 1991-93 CCH OSHD 

¶ 29,394, p. 39,573 (No. 88-1877, 1991) (finding harmless any error the judge may have made in 

not granting stay because willful character of violation largely established by undisputed facts), 

aff’d without published opinion, No. 91-1413, 1992 WL 117669 (D.C. Cir. May 22, 1992); Pratt 

& Whitney Aircraft, 9 BNA OSHC 1653, 1658, 1981 CCH OSHD ¶ 25,359, p. 31,505 (No. 

13401, 1981) (“The judge’s error in not allowing P & W to examine withheld material was . . . 
6

BNA OSHC 1270, 1274, 1973-74 CCH OSHD ¶ 16,408, pp. 21,301-02 (No. 1343, 1973)

(agency’s exculpatory information must be disclosed absent proof of privilege).

For all of these reasons, we affirm the judge’s conclusion that the redacted material was 

protected under the deliberative process privilege. We turn now to the individual citation items.

II. Willful Citation 2, Item 1 – 29 C.F.R. § 1926.701(a) (construction loads)

Under this item, the Secretary alleges that Southern Pan failed to determine “based on 

information received from a person qualified in structural design” that the garage at the Berkman 

worksite was capable of supporting the load imposed by pour 6A. The cited standard states that 

“[n]o construction loads shall be placed on a concrete structure or portion of a concrete structure 

unless the employer determines, based on information received from a person who is qualified in 

structural design, that the structure or portion of the structure is capable of supporting the loads.” 

29 C.F.R. § 1926.701(a). 

The judge vacated this item, finding that based on the plain language of the cited standard 

and the preamble to the final rule, the requirements of the standard apply only to “the employers 

directly responsible for the concrete operation”—in this case Choate, the general contractor, and 

Pittman, the concrete finishing subcontractor. He rejected the Secretary’s claim that a clause in 

the subcontract between Choate and Southern Pan made Southern Pan contractually responsible 

for placing the concrete load on the structure because he found that nothing in the clause shifted 

“responsibility for the concrete operations to the formwork subcontractor.” Thus, he concluded 

that the cited standard did not apply. 

Under Commission precedent, however, the focus of the Secretary’s burden of proving 

that the cited standard applies pertains to the cited conditions, not the particular cited employer. 

See, e.g. Ryder Transp. Servs., 24 BNA OSHC 2061, 2064, 2014 CCH OSHD ¶ 33,412, 

p. 57,383 (No. 10-0551, 2014) (concluding “that the Secretary has failed to establish that the 

cited general industry standard applies to the working conditions here”); KS Energy Servs., Inc., 

22 BNA OSHC 1261, 1267, 2004-08 CCH OSHD ¶ 32,958, p. 53,924 (No. 06-1416, 2008)

(finding “the cited . . . provision was applicable to the conditions in KS Energy’s traffic control 

zone”), aff’d, 701 F.3d 367 (7th Cir. 2012); Active Oil Serv., Inc., 21 BNA OSHC 1092, 1094, 

2004-09 CCH OSHD ¶ 32,802, pp. 52,486-7 (No. 00-0482, 2005) (finding “that the confined 

 

harmless, because P & W could not have made any meaningful use out of the withheld 

material.”). 
7

space standard applies to the cited conditions” because “the vault was a confined space”); Arcon, 

Inc., 20 BNA OSHC 1760, 1763, 2002-04 CCH OSHD ¶ 32,728, p. 51,896 (No. 99-1707, 2004)

(“In order to establish a violation, the Secretary must show that the standards applied to the cited 

conditions.”). Since the Berkman project involved the placement of a load on the garage’s 

concrete structure, § 1926.701(a) clearly applies to the cited conditions. Thus, contrary to our 

dissenting colleague’s contention, the issue before us has nothing to do with whether the cited 

standard is applicable. That element of the Secretary’s burden has been established. What 

remains at issue is determining the nature of Southern Pan’s compliance obligations under the 

cited provision given the circumstances of this case. 

We agree with the Secretary’s contention on review that this question is answered by

long-standing Commission precedent holding that an employer whose own employees are 

exposed to a hazard or violative condition—an “exposing employer”—has a statutory duty to 

comply with a particular standard even where it did not create or control the hazard. See AnningJohnson Co., 4 BNA OSHC 1193, 1198-99, 1975-76 CCH OSHD ¶ 20,690, p. 24,784 (No. 3694, 

1976) (consolidated) (holding that the exposure of a subcontractor’s “employees to a condition 

that the employer knows or should have known to be hazardous, in light of the authority or 

‘control’ it retains over its own employees, gives rise to a duty under section 5(a)(2) of the 

Act . . . .”). Here, the evidence unequivocally establishes that Southern Pan was an exposing 

employer. Two Southern Pan employees were on the fifth floor of the garage during the 6A pour

observing the formwork to ensure it was compliant and stable. See Jackson Constr. Co., 5 BNA 

OSHC 1608, 1610, 1977-78 CCH OSHD ¶ 21,981, p. 26,491 (No. 13843, 1977) (finding that 

carpenters working on the floor below the pour “had access to the zone of danger created by the 

violation”) (citation omitted). Therefore, both employees, one of whom died as a result of 

injuries sustained in the garage collapse, were exposed to the violative condition. And as an 

exposing employer, Southern Pan was required to “do what [was] ‘realistic’ under the 

circumstances to protect its employees from the hazard to which a particular standard is 

addressed, even though literal compliance with the standard may [have been] unrealistic.” 

Anning-Johnson Co., 4 BNA OSHC at 1199, 1975-76 CCH OSHD at p. 24,784 (footnote 

omitted); see also Capform, Inc., 16 BNA OSHC 2040, 2042, 1993-95 CCH OSHD ¶ 30,589, p. 

42,356 (No. 91-1613, 1994) (addressing “multi-employer worksite defense” and finding 

exposing employer responsible for violation it did not create or control because it failed to take 
8

“reasonable alternative steps to protect its employees”); Capform Inc., 13 BNA OSHC 2219, 

2222, 1987-90 CCH OSHD ¶ 28,503, p. 37,776 (No. 84-0556, 1989) (rejecting employer’s 

asserted multi-employer worksite defense and noting that “[t]he . . . defense does not alter the 

general rule that each employer is responsible for the safety of its own employees.”) (citation 

omitted), aff’d per curiam, 901 F.2d 1112 (5th Cir. 1990) (unpublished); Mark A. Rothstein, 

Occupational Safety and Health Law (2014 ed., § 7:7) (“Although still maintaining that a 

noncontrolling employer is in violation when its employees are exposed to hazards,” the 

Commission created the multi-employer worksite defense, holding that an exposing “employer is 

not in violation if it did not and could not with the exercise of reasonable diligence know of the 

hazard” and permitting “an employer to escape liability by taking realistic abatement measures, 

even though [they] may fall short of literal compliance with applicable standards.”). 

This has been Commission precedent for nearly forty years, but our dissenting colleague 

chooses to ignore these fundamental principles and, instead, poses what she apparently believes 

is something of a conundrum—asking how Southern Pan could violate the cited standard when, 

as even the Secretary concedes, only Choate and Pittman were obligated to make the 

determination the standard requires. The Commission clearly answered this long ago: 

[E]ach employer has primary responsibility for the safety of its own employees. 

Simply because a subcontractor cannot himself abate a violative condition does 

not mean it is powerless to protect its employees. It can, for example, attempt to 

have the general contractor correct the condition, attempt to persuade the 

employer responsible for the condition to correct it, instruct its employees to 

avoid the area where the hazard exists if this alternative is practical, or in some 

instances provide an alternative means of protection against the hazard . . . . In 

the absence of such actions, we will still hold each employer responsible for all 

violative conditions to which its employees have access. 

Grossman Steel & Alum. Corp., 4 BNA OSHC 1185, 1189, 1975-76 CCH OSHD ¶ 20,691, 

p. 24,791 (No. 12775, 1975) (footnote omitted); see Associated Underwater Servs., 24 BNA 

OSHC 1248, 1251, 2012 CCH OSHD ¶ 33,198, p. 55,750 (No. 07-1851, 2012) (“Commission 

precedent require[s] an employer to detect and assess the hazards to which its employees may be 

exposed, even those it did not create.”) (citation omitted); D. Harris Masonry Contracting, Inc. 

v. Dole, 876 F.2d 343 (3d Cir. 1989); DeTrae Enters., Inc. v. Sec’y of Labor and OSHRC, 645 

F.2d 103 (2d Cir. 1981); Bratton v. OSHRC, 590 F.2d 273 (8th Cir. 1979); Cent. of Ga. R. Co. v. 
9

OSHRC, 576 F.2d 620 (5th Cir. 1978).6 In short, an employer’s compliance duty under the Act 

is undeniable when its own employees are exposed. OSH Act § 5(a)(2), 29 U.S.C. § 654(a)(2) 

(“Each employer . . . shall comply with occupational safety and health standards promulgated 

under this Act.”). The only question is what measures the employer can reasonably take to 

protect its employees, and such measures must be identified by the Secretary to satisfy his 

burden of proving noncompliance.

Our dissenting colleague makes a number of seemingly plausible arguments but they are 

all variations of her flawed premise—that this case is about applicability rather than compliance. 

Her position further suggests a fundamental disagreement with our multi-employer precedent, 

but that precedent is well-settled and firmly grounded in the statute.7 Because Southern Pan 

exposed its employees to a hazard, it is of no moment that Southern Pan was unable to abate the 

violation itself or, as was the case here, that another employer might be charged with abating the 

 

6 Accordingly, as these cases make clear, our dissenting colleague’s claim that Southern Pan 

lacked notice of its compliance obligation to its own employees is without merit. Moreover, one 

of the measures the Secretary claims Southern Pan should have taken to protect its employees—

“obtain the necessary information from a shoring engineer and provide it to Choate and 

Pittman”—is an obligation that was expressly set forth in Southern Pan’s contract with Choate. 

Thus, Southern Pan clearly had notice of its obligation.

7 Our colleague points to a dissent to the Commission’s decision in Southeast Contractors, Inc., 

1 BNA OSHC 1713, 1716, 1973-74 CCH OSHD ¶ 17,787, p. 22,149 (No. 1445, 1974), rev’d,

512 F.2d 675 (5th Cir. 1975), and the per curiam decision by the Fifth Circuit adopting the 

dissent’s reasoning, claiming that we have chosen to ignore this forty-year precedent. We 

disagree. First, Southeast Contractors is inapposite, as its focus was the existence of an

employer-employee relationship not, as is the case here, exposing employer liability under the 

multi-employer worksite doctrine. Moreover, whatever view the dissenting commissioner 

expressed in that case, it is by no means precedent. Commission precedent is not found in any

commissioner’s dissenting opinion, nor does it reside in a per curiam decision by a Court of 

Appeals that found favor with it. Our precedent is found in Commission decisions in which a 

majority of commissioners have adopted a rule of law. See e.g. Summit Contractors, Inc., 23 

BNA OSHC 1196, 2009-12 CCH OSHD ¶ 33,079 (No. 05-0839, 2010), aff’d per curiam 442 

Fed App’x 570 (D.C. Cir. 2011) (unpublished); Grossman Steel & Alum. Corp., 4 BNA OSHC at 

1189, 1975-76 CCH OSHD at p. 24,791. And although this case arises in the Eleventh Circuit, 

as the Berkman worksite was located in Florida and Southern Pan’s corporate headquarters are in 

Georgia, the Commission has specifically held that the Fifth Circuit case relied on by our 

colleague does not “preclude us from following Commission precedent” regarding the multiemployer worksite doctrine in cases arising in the Eleventh Circuit. See McDevitt Street Bovis, 

Inc., 19 BNA OSHC 1108, 1110-12 & nn.9-12, 2000 CCH OSHD ¶ 32,204, p. 48,780-81 & 

nn.9-12 (No. 97-1918, 2000).
10

condition. Gregory N. Dale & P. Matthew Shudtz, eds., Occupational Safety and Health Law 

(3d ed. 2013, Ch. 3.III) (“OSHA must show that a condition that violates a standard existed. 

This element does not require proof that the cited employer itself violated the standard, i.e., that 

the cited employer created the violative condition; OSHA need prove only that a violative 

condition existed, regardless of who or what caused it.”). An employer in Southern Pan’s 

position still has an obligation to make reasonable efforts to protect its employees from a hazard. 

And contrary to our dissenting colleague’s claim, the Secretary has done nothing to upset an 

exposing employer’s responsibility to its own employees when, in the preamble to the cited 

provision, he explained that the concrete operator rather than an engineer-architect is responsible 

for the standard’s construction-load placement determination. Indeed, the concrete operator 

places the load and bears responsibility for employee safety; it is unquestionably a “creating 

employer.” The Secretary, however, did not state that the concrete operator’s responsibility for 

employee safety belonged to it alone, nor did the Secretary relieve an exposing employer of its 

obligation to protect its own employees. 

Thus, the issue for consideration is whether, under applicable precedent, Southern Pan 

made reasonable efforts to protect the two employees exposed to the violative condition. E.g.,

Associated Underwater, 24 BNA OSHC at 1251, 2012 CCH OSHD at p. 55,750. Because the 

judge never addressed the Secretary’s contention that Southern Pan violated the cited provision 

as an exposing employer, he did not resolve the issue of Southern Pan’s compliance obligations 

under the standard.8 Accordingly, we remand this case for a determination of whether the 

 

8

The Secretary contends on review that compliance with the cited provision required Southern 

Pan to take the following measures:

(1) obtain the necessary information from a shoring engineer and provide it 

to Choate and Pittman, and (2) verify before the pour that Pittman or Choate 

had determined that the structure could support the wet concrete load, on 

the basis of information from Southern Pan’s shoring engineer or from 

another qualified source if Southern Pan was unable or unwilling to meet its 

contractual obligation to provide these contractors with the necessary 

information from its shoring engineer.

Cf. David Weekley Homes, 19 BNA OSHC 1116, 1119, 2000 CCH OSHD ¶ 32,203, p. 48,775

(No. 96-0898, 2000) (vacating citation issued to general contractor on multi-employer worksite 

where Secretary “failed to define what would have constituted compliance for [cited employer] 

under the circumstances and how [its] conduct was deficient”).
11

Secretary has established that Southern Pan failed to take reasonable measures to comply with 

the standard as an exposing employer. 

On remand, if it is determined that Southern Pan failed to comply with § 1926.701(a), the 

judge should also determine whether the Secretary has established that Southern Pan knew or 

should have known of the conditions giving rise to the violation. Contour Erection & Siding 

Sys., Inc., 22 BNA OSHC 1072, 1073, 2004-09 CCH OSHD ¶ 32,943, p. 53,787 (No. 06-0792, 

2007) (stating that the Secretary must prove that the employer knew or, with the exercise of 

reasonable diligence, should have known of the conditions constituting the violation). In the 

event the Secretary bases his case for knowledge on the imputation of superintendent Smith’s 

knowledge of his own misconduct, i.e. his failure to take steps to obtain and provide the required 

information, we direct the judge to determine on remand whether this case falls within the scope

of the Eleventh Circuit’s recent decision in ComTran Grp., Inc. v. U.S. Dep’t of Labor, 722 F.3d 

1304 (11th Cir. 2013). In ComTran, the court held that “the Secretary does not carry [his] 

burden and establish a prima facie case with respect to employer knowledge merely by 

demonstrating that a supervisor engaged in misconduct.” 722 F.3d at 1316. “Rather, ‘employer 

knowledge must be established, not vicariously through the violator’s knowledge, but by either 

the employer’s actual knowledge, or by its constructive knowledge based on the fact that the 

employer could, under the circumstances of the case, foresee the unsafe conduct of the 

supervisor.’ ” Id. (quoting W.G. Yates & Sons Constr. Co. v. OSHRC, 459 F.3d 604, 609 n.8 

(5th Cir. 2006)). Depending on the resolution of this issue, the judge may allow both parties to 

“further develop[]” the record with evidence related to the foreseeability of Smith’s unsafe 

conduct. See ComTran Grp., Inc., 722 F.3d at 1318. If knowledge is established and the 

violation affirmed, the judge must then address whether the violation was properly characterized 

as willful by the Secretary and determine an appropriate penalty. 

III. Willful Citation 2, Item 2 – 29 C.F.R. § 1926.703(a)(2) (formwork drawings)

Under this item, the Secretary alleges that Southern Pan failed to “obtain a reshoring 

drawing, including all revisions, for the reshoring design method of using two levels of reshores, 

exposing employees to a structural collapse hazard.” Section 1926.703(a)(2) provides that 

“[d]rawings or plans, including all revisions, for the jack layout, formwork (including shoring 

equipment), working decks, and scaffolds, shall be available at the jobsite.” The judge affirmed 

the violation, finding that Southern Pan removed shoring and reshoring from the garage without 
12

having a revised plan available on site that allowed for such removal. We find that the Secretary 

established Southern Pan’s noncompliance with the cited provision, but direct the judge on 

remand to determine if the issue of knowledge as presented by this item is affected by the court’s 

decision in ComTran. First, however, we address Southern Pan’s threshold arguments relating to 

preemption. 

Preemption

Southern Pan contends that the Secretary cannot cite it under § 1926.703(a)(2) for its 

alleged failure to have on-site plans allowing for shoring removal because, it claims, that 

provision governs shoring installation; § 1926.703(e), by contrast, specifically governs shoring 

removal and does not require an employer to obtain drawings before removing formwork.9 In 

response, the Secretary maintains that there is nothing in the cited provision that limits its 

requirements to installation and, therefore, “the two provisions impose different, concurrent 

requirements to address different conditions.”10

 

9

Section 1926.703(e) provides:

(1) Forms and shores (except those used for slabs on grade and slip forms) 

shall not be removed until the employer determines that the concrete has 

gained sufficient strength to support its weight and superimposed loads. 

Such determination shall be based on compliance with one of the following:

(i) The plans and specifications stipulate conditions for removal of 

forms and shores, and such conditions have been followed, or

(ii) The concrete has been properly tested with an appropriate 

ASTM standard test method designed to indicate the concrete 

compressive strength, and the test results indicate that the concrete has 

gained sufficient strength to support its weight and superimposed loads.

(2) Reshoring shall not be removed until the concrete being supported has 

attained adequate strength to support its weight and all loads in place upon 

it.

29 C.F.R. § 1926.703(e).

10

 The Secretary urges the Commission to decline consideration of Southern Pan’s preemption 

argument because it was not raised before the judge or in Southern Pan’s petition for review. We 

disagree and find that the preemption argument is properly before us, as the Commission has 

jurisdiction over all issues in a pending case and both parties have briefed the issue on review. 

See Westvaco Corp., 16 BNA OSHC 1374, 1380 n.14, 1993 CCH OSHD ¶ 30,201, p. 41,570-71 

n.14 (No. 90-1341, 1993) (addressing infeasibility because both parties briefed the issue, even 

though employer did not initially raise it in its answer). However, as discussed below, we also 

conclude that Southern Pan’s preemption argument fails on its merits.
13

We find that the text and structure of § 1926.703 support the Secretary’s position. 

Subsection (a) provides general requirements for formwork—including a requirement that all 

drawings for all formwork “shall be available at the jobsite”—and subsections (b), (c), (d), and 

(e) impose other specific obligations concerning the formwork. See Unarco Commercial Prods., 

16 BNA OSHC 1499, 1502, 1993-95 CCH OSHD ¶ 30,294, p. 41,732 (89-1555, 1993) (“[T]he 

test for the applicability of any statutory or regulatory provision looks first to the text and 

structure of the statute or regulations whose applicability is questioned.”). The specific 

obligation imposed by subsection (e) addresses the removal of formwork based either on 

compliance with plans or specifications that stipulate the conditions for the removal of forms and 

shores, or measurement of the concrete’s compressive strength. 

In this respect, the obligation under subsection (a) to have drawings available on the 

jobsite clearly extends to any drawings or plans an employer might develop to comply with 

subsection (e). As such, subsection (e) complements, but does not preempt, subsection (a). 

Indeed, the requirement under § 1926.703(a)(2) to have “[d]rawings or plans, including all 

revisions for the jack layout formwork . . . available at the jobsite” complements the requirement 

under § 1926.703(e)(1)(i) that one method of removing formwork is to follow those onsite “plans 

and specifications stipulat[ing] conditions for removal of forms and shores.” Cf. McNally 

Constr. & Tunneling Co., 16 BNA OSHC 1879, 1883, 1994 CCH OSHD ¶ 30,506, p. 42,170

(No. 90-2237, 1994) (basing its finding of preemption, in part, on a determination that “the two 

standards are not additive and complementary, but instead directly conflicting”), aff’d, 71 F.3d 

208 (6th Cir. 1995). See generally Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98-99 

(1992) (instructing that “the provisions of the whole law” guide the determination as to whether 

the Act preempts a state regulation) (citations omitted). Further, subsection (b)(1)’s requirement 

that employers inspect all shoring equipment before installation to ensure the equipment meets 

the specifications in the formwork drawings is facilitated by subsection (a)(2)’s requirement to 

have all drawings and revisions on site. Accordingly, we conclude that the duties imposed by 

§ 1926.703(a) are not preempted by those imposed by § 1926.703(e).

Compliance

Southern Pan next claims that it had all “available” plans on site and, in any event, it

“fulfilled its responsibilities [under the standard] when . . . Synergy secured the approval of the 

[E]ngineer of [R]ecord . . . by e-mail” for the shoring and reshoring removal. We disagree with 
14

both of these contentions. An employer’s obligation to create a drawing or plan that accurately 

represents the existing formwork is clear from the language of § 1926.703(a)(2), which requires 

that the “[d]rawings or plans, includ[e] all revisions.” Indeed, OSHA has recognized that this 

provision is intended to prevent accidents that could result from improperly erected formwork,

and written plans enable this protective purpose to be met. Concrete and Masonry Construction 

Safety Standards, 53 Fed. Reg. 22,612, 22,624-26 (June 16, 1988) (“Without the drawings or 

plans immediately accessible at the job site, questions regarding the design and integrity of the 

forms or shoring layout cannot be properly addressed.”). As the judge here correctly stated in his 

decision: “The requirement that all plans, including revisions, be present on site is not a mere 

technicality. Formwork is designed to transfer weight from the structure. Prematurely removing 

formwork without an engineer’s revisions exposes employees to structural collapse. Without the 

correct plans on site, crucial information is missing.” See Major Constr. Corp., 20 BNA OSHC 

2109, 2110-11, 2004-09 CCH OSHD ¶ 32,860, p. 53,041 (No. 99-0943, 2005) (affirming 

violation of § 1926.703(a)(2) based on judge’s finding that employer lacked formwork plans,

which exposed employees to hazard of possible collapse), aff’g in relevant part, 2001 WL 

392470, at *36 (OSHRC ALJ, Apr. 19, 2001) (judge’s decision addressing § 1926.703(a)(2)). 

Other subsections in § 1926.703 are written such that the duty to have drawings or plans

“available at the worksite” contemplates that such plans—including any revisions—will be 

reduced to writing. As the Secretary points out, this duty to have revised plans that “exist” is 

clarified by § 1926.703(b)(1)’s requirement that an employer inspect the shoring equipment “to 

determine that the equipment meets the requirements specified in the formwork drawings.” See 

Custom Built Marine Constr. Co., 23 BNA OSHC 2237, 2239, 2013 CCH OSHD ¶ 33,258, 

p. 56,310-11 (No. 11-0977, 2012) (different provisions in a regulation should be read in context 

of regulation as a whole). While § 1926.703(e) creates certain exceptions to this requirement, 

there is no indication that any exception applies to the facts here.

To read the cited provision as Southern Pan urges would allow an employer to dispense 

with any revisions and simply rely on outdated drawings that do not reflect actual conditions at 

the jobsite. See Unarco Commercial Prods., 16 BNA OSHC at 1502, 1993-95 CCH OSHD at 

p. 41,732 (“It is well established that . . . a standard must be construed so as to avoid an absurd 

result.”) (citing Griffith v. Oceanic Contractors, Inc., 458 U.S. 564 (1982)); see also Am. Fed’n 

of Gov’t Emps., Local 2782 v. FLRA, 803 F.2d 737, 740 (D.C. Cir. 1986) (“[R]egulations are to 
15

be read as a whole, with each part or section . . . construed in connection with every other part or 

section.”) (internal quotation marks and citation omitted); E. Smalis Painting Co., 22 BNA 

OSHC 1553, 1580-81, 2009-12 CCH OSHD ¶ 33,303, p. 54,370-71 (No. 94-1979, 2009) 

(interpreting cited provision in context of entire standard and its overall purpose). Such a 

position is unreasonable and would render the standard meaningless.

Contrary to Southern Pan’s claim, we do not find a lack of notice of the requirement to 

have revised plans on site. See S. G. Loewendick & Sons Inc. v. Sec’y of Labor, 70 F.3d 1291,

1297 (D.C. Cir. 1995) (“Congress and the courts require that agency action reflect clear, rational 

decisionmaking that gives regulated members of the public adequate notice of their 

obligations.”) (citations omitted). Smith and Postma both testified that they recognized the 

obligation to have accurate plans available on site inasmuch as they knew not to deviate from the 

original plan before a revision was received. According to Postma, he told his superintendents 

all the time “that the plans had to be on site” and emphasized that the work always needed to be 

done “according to the drawings [because t]he drawings that are on site [are] the Bible of what 

you’re going by.” Smith testified that Southern Pan had contracted with Universal for one 

specific reason—to inspect Southern Pan’s shoring and reshoring and make sure it complied with 

the drawings. Without written, accurate drawings on site, it would have been impossible for 

Universal to assess whether or not the formwork complied with the drawings. Both by the plain 

terms of the standard and Southern Pan’s admission regarding its obligation, we find that 

Southern Pan had prior notice of what was required for compliance with the standard. Diamond 

Roofing Co. v. OSHRC, 528 F.2d 645, 649 (5th Cir. 1976) (noting well-settled principle that a 

regulation should be construed to give effect to the natural and plain meaning of its words).

Equally unavailing is Southern Pan’s argument that it complied with the standard. The 

parties stipulated that Patent provided the sole signed and sealed shoring and reshoring drawings 

for the garage that were available on site and that these drawings included a “typical reshore 

diagram that shows the garage to have shoring and/or reshoring to the ground.” Contrary to the 

on site plans, Southern Pan removed the reshoring on October 22 and 26, several days before the 

Engineer of Record sent his e-mail to Synergy, so it is impossible that the e-mail could have led 

Southern Pan to believe it was in compliance with § 1926.703(a)(2) at that time. In fact, there is 
16

no evidence that Southern Pan even knew of the e-mail’s existence before the garage collapsed.

11

 

When Southern Pan removed reshoring from the garage, changing to the one-over-two method, 

the formwork was no longer consistent with Patent’s on-site drawings; thus, it was not in 

compliance with § 1926.703(a)(2).12

Exposure and Knowledge

We turn now to the remaining elements of the Secretary’s burden of proving a 

violation—that its employees had access or exposure to the violative condition and that Southern 

Pan either knew or could have known of the condition with the exercise of reasonable diligence. 

See Astra Pharm Prods., Inc., 9 BNA OSHC 2126, 2129, 1981 CCH OSHD ¶ 25,578, p. 31,900

(No. 78-6247, 1981) aff’d in pertinent part, 681 F.2d 69 (1st Cir. 1982). Exposure has been 

established because Southern Pan’s employees were removing reshoring without having revised 

drawings on site; therefore, they were exposed to the hazard of a possible structural collapse. 

Regarding knowledge, however, the Eleventh Circuit’s decision in ComTran could affect the 

judge’s finding of actual knowledge, which he based on superintendent Smith’s admission that 

Southern Pan “did not have a revised plan on site” and acknowledgment that “OSHA required it 

[to] have one.” In this regard, the judge appears to have imputed Smith’s knowledge of his own 

failure to obtain the required revised plan. Thus, on remand, the judge should consider whether 

the knowledge issue as presented by this citation item is affected by ComTran, and depending on 

the judge’s resolution of this issue, may allow both parties to “further develop[]” the record with 

evidence related to Southern Pan’s foreseeability of Smith’s misconduct. See ComTran, 722 

F.3d at 1318. Accordingly, we conclude that Southern Pan failed to comply with 29 C.F.R. 

§ 1926.703(a)(2), but we direct the judge on remand to reconsider whether the Secretary has 

established knowledge. If knowledge is established, the judge should reconsider whether the 

violation was properly characterized as willful and determine an appropriate penalty. 

 

11 We also question whether the e-mail itself would be sufficient to satisfy the requirements of

the cited provision. Synergy’s inquiry seeking reassurance about the removal of shoring should 

have been directed to Patent, which was specifically responsible for the sealed drawings and, in 

any event, elicited only a vague single-word reply from the Engineer of Record – “[c]orrect” –

that did not result in a revision of Patent’s on-site drawings.

12 Unlike the other willful citation item, Southern Pan’s duty under this standard—to ensure that 

drawings “be available at the jobsite”—does not arise under a theory of multi-employer liability. 

Rather, the compliance obligation imposed by § 1926.703(a)(2) falls primarily on Southern Pan, 

because it was contractually responsible for obtaining those drawings.
17

ORDER

We vacate the judge’s decision as to Item 1, and vacate his decision in part as to Item 2, 

and remand this case to the Chief Judge for reassignment and further proceedings consistent with 

this decision.

SO ORDERED.

/s/

Thomasina V. Rogers

Chairman

/s/

Cynthia L. Attwood

Dated: December 18, 2014 Commissioner
18

MACDOUGALL, Commissioner, concurring in part and dissenting in part:

I join the majority’s opinion with regard to its discussion of the deliberative process 

privilege and Citation 2, Item 2, which alleges a violation of 29 C.F.R. § 1926.703(a)(2) 

(availability of formwork plans at jobsite). However, it is clear to me that the judge’s wellreasoned approach to Citation 2, Item 1 was correct on the merits, and he properly vacated this 

item, which alleges a violation of 29 C.F.R. § 1926.701(a) (placement of construction loads), 

because the standard is inapplicable to Southern Pan.1 Accordingly, I dissent from the majority’s 

opinion regarding this citation item. 

As a preliminary determination, the Secretary’s burden of proving a violation of a cited 

standard, as always, is whether the standard applies to the cited condition.

2

In other words, it 

must be possible for the cited employer, in this case Southern Pan, to violate the standard. Here, 

as the judge properly concluded, the plain language of the standard indicates that the only 

employers subject to the standard are those placing the construction loads. The preamble to the 

final rule clarifies that § 1926.701(a) applies to an employer “directly responsible for the 

concrete operations.”3 That employer is not Southern Pan.4

 

1 The judge found that, based on the plain language of the standard and the preamble to the final 

rule, the requirements of the standard apply only to “the employers directly responsible for the 

concrete operation”—in this case, the general contractor and the concrete finishing 

subcontractor.

2

The Secretary has the burden of proving: (1) the applicability of the cited standard; (2) the 

employer’s noncompliance with the standard’s terms; (3) employee access or exposure to the 

violative conditions; and (4) the employer’s actual or constructive knowledge of the violation (in 

other words, that the employer either knew, or with the exercise of reasonable diligence could 

have known, of the violative conditions). Ormet Corp., 14 BNA OSHC 2134, 2135, 1991-93 

CCH OSHD ¶ 29,254, p. 39,199 (No. 85-0531, 1991). The Commission has found “no reason to 

alter the Secretary’s burden of proof because the [alleged] violation arises at a common 

construction site.” Anning-Johnson Co., 4 BNA OSHC 1193, 1198, 1975-76 CCH OSHD 

¶ 20,690, p.24,783 (No. 3694, 1976) (consolidated) (a case oft-cited in my colleagues’ majority 

opinion).

3

In 1988, OSHA revised its regulations concerning concrete formwork. The preamble to the 

final rule states:

After carefully considering all the comments and testimony received, OSHA has 

decided to delete the requirement for the specified engineer-architect services. 

This decision is based on the comments and testimony received which indicates 

that engineer-architects frequently do not consider construction loads in the 

design, nor do they approve their placement on partially completed structures. 
19

My colleagues do not disagree with my conclusion that Southern Pan is not directly 

responsible for concrete operations. Rather, the majority remands this case for a determination 

as to whether Southern Pan violated § 1926.701(a) as an “exposing employer” under the multiemployer worksite doctrine. However, the Secretary’s multi-employer citation policy rests upon 

section 5(a)(2) of the Act, 29 U.S.C. § 654(a)(2), which provides that an employer “shall comply 

with occupational safety and health standards promulgated under this [Act].” As Chairman 

Rogers noted in her concurring and dissenting opinion in C.T. Taylor Co., Inc. and Espirit 

Constructors Inc., 20 BNA OSHC 1083, 1094, 2002-04 CCH OSHD ¶ 32,659, p. 51,347 (No. 

94-3241, 2003) (consolidated), the multi-employer worksite doctrine “serves to allocate 

responsibility and liability among multiple corporate actors.” What the majority opinion fails to 

acknowledge here is that in promulgating § 1926.701(a), the Secretary has already determined 

that in the multi-employer construction worksite the allocation of responsibility and liability 

under this specific standard is limited to those placing the construction load; specifically, “the 

person directly responsible for the concrete operations.” Concrete and Masonry Construction 

Safety Standards, 53 Fed. Reg. 22,612, 22,617 (June 16, 1988) (preamble to final rule); see 

Martin v. Am. Cyanamid Co., 5 F.3d 140, 145 (6th Cir. 1993) (holding preamble to regulation 

 

However, OSHA believes that it is still important that someone be responsible for 

performing this service. Therefore, OSHA is requiring that the employer make 

the determination that the structure or portion of the structure is capable of 

supporting the construction loads. The employer must make this determination on 

the basis of information received from a person qualified in structural design. 

This revision also places responsibility for employee safety with the person 

directly responsible for the concrete operations.

Concrete and Masonry Construction Safety Standards, Final Rule, 53 Fed. Reg. 22,612, 22,617

(June 16, 1988) (preamble to final rule) (emphasis added). It is this emphasized language that is 

the focus of Southern Pan’s argument that the Secretary has not proven that the cited standard 

applies.

4

I would adopt the findings and conclusions of the judge in this regard. Even under an argument 

that Southern Pan has the burden to show that the cited standard did not apply to it as the 

concrete formwork contractor, e.g., C.J. Hughes Constr. Inc., 17 BNA OSHC 1753, 1756, 1995-

97 CCH OSHD ¶ 31129, p. 43,476 (No. 93-3177, 1996) (“A party seeking the benefit of an 

exception to a legal requirement has the burden of proof to show that it qualifies for that 

exception.”), I would find that Southern Pan has shown that it is excepted from the scope of the 

cited regulation. See also United States v. First City Nat’l Bank of Houston, 386 U.S. 361 

(1967); FTC v. Morton Salt Co., 334 U.S. 37 (1948) (the party who claims the benefit of an 

exception has the burden of proving its entitlement thereto).
20

may be consulted in determining administrative construction and meaning of regulation); Phelps 

Dodge Corp., 11 BNA OSHC 1441, 1444, 1983-84 CCH OSHD ¶ 26,552, p. 33,920 (No. 80-

3203, 1983) (stating standard’s “preamble is the best and most authoritative statement of the 

Secretary’s . . . intent”), aff'd, 725 F.2d 1237 (9th Cir. 1984). Extending liability to additional 

employers is thus contrary to the language of the standard. Additionally, as I discussed in my 

concurring opinion in Ryder Transp. Servs., 24 BNA OSHC 2061, 2064, 2014 CCH OSHD 

¶ 33,412, p. 57,383 (No. 10-0551 2014), I do not believe that the Secretary’s Multi-Employer 

Citation Policy5can be used as a tool to reach an employer otherwise excluded from the 

application of a standard. In viewing the facts, the plain language of the standard and its 

preamble, and the required elements of proof, I conclude that the Secretary cannot meet his

burden of proving that the cited standard applies to Southern Pan.

My colleagues assert that my analysis expressed herein ignores forty years of 

Commission precedent and the “fundamental principle” that an employer always has an 

obligation to protect its own employees from a known hazard. The majority’s reasoning misses 

the mark. This case is not about the indisputable proposition that an employer has a duty to 

protect employees under all applicable standards; rather, it is about the question of whether a

specific standard applies in the first place. Further, in claiming there is forty years of 

Commission precedent in support of the majority’s opinion, my colleagues fail to cite a single 

Commission case that holds an employer responsible, even as an “exposing employer,” for 

violating a specific-duty standard that charges only certain, specifically identified employers 

with responsibility for the working conditions addressed by it. My colleagues depart from longstanding Commission precedent that it is the Secretary’s burden to prove the standard applies to 

the cited condition (see footnote 2, supra); further, “there can be no violation of the Act by a 

respondent for failure to comply with a standard which charges some other employer with the 

duty of implementing the standard.” Se. Contractors, Inc., 1 BNA OSHC 1713, 1716, 1973-74

CCH OSHD ¶ 17,787, p. 22,149 (No. 1445, 1974) (dissent by Chairman Moran adopted on 

 

5

The multi-employer citation policy states that more than one employer can be cited on a multiemployer worksite: “On multi-employer worksites (in all industry sectors), more than one 

employer may be citable for a hazardous condition that violates an OSHA standard.” OSHA 

Instruction CPL: CPL 2-0.124, Multi-Employer Citation Policy (Dec. 10, 1999) reprinted in

1999 Transfer Binder, CCH OSHD ¶ 13,924 at p. 25,031 (emphasis added). Again, even 

pursuant to its own terms, more than one employer may be cited but only if the standard applies. 
21

appeal, 512 F.2d 675 (5th Cir. 1975) (per curiam)).6See also Unarco Commercial Prods., 16 

BNA OSHC at 1499, 1993-95 CCH OSHD at p. 41,729 (vacating citation based on the plain 

language of the standard, and stating that “the test for the applicability of any statutory or 

regulatory provision looks first to the text and structure of the statute or regulations whose 

applicability is questioned”) (citations omitted). Thus, I conclude that the judge correctly found 

that the cited standard is inapplicable to Southern Pan.

Given the plain language of the cited standard and the preamble to the final rule, which 

clearly contemplated but then rejected a broader application of the standard, I would find it 

fundamentally unfair to apply the cited standard to Southern Pan.7 An employer lacking fair 

notice of a standard cannot be found in violation of the Act for failure to comply with that 

standard.8 E.g., S.G. Loewendick & Sons Inc. v. Sec’y of Labor, 70 F.3d 1291, 1297 (D.C. Cir. 

 

6

The Eleventh Circuit has held that Fifth Circuit decisions like Southeast Contractors, which 

were issued prior to October 1, 1981, are considered binding precedent in the Eleventh Circuit. 

See Bonner v. City of Prichard, Alabama, 661 F.2d 1206, 1209 (11th Cir. 1981). Consequently, 

the holding in Southeast Contractors should be applied here. See Kerns Bros. Tree Serv., 18 

BNA OSHC 2064, 2067, 2000 CCH OSHD ¶ 32,053, p. 48,003 (No. 96-1719, 2000) (“Where it 

is highly probable that a Commission decision would be appealed to a particular circuit, the 

Commission has generally applied the precedent of that circuit in deciding the case─even though 

it may differ from the Commission’s precedent.”) (citing 29 U.S.C. §§ 660(a) and (b)). While in 

McDevitt Street Bovis, Inc., 19 BNA OSHC 1108, 1111, 2002-04 CCH OSHD ¶ 32,204, p. 

48,781 (No. 97-1918, 2000), the Commission determined that there is no Eleventh Circuit 

precedent on the multi-employer citation policy, I do not believe that McDevitt Street Bovis and 

the Commission’s recognition of the multi-employer doctrine undermine Southeast Contractors’ 

holding that an employer cannot violate a standard that is inapplicable to it because its duty has 

been specifically charged to a different employer. Moreover, even if Southeast Contractors is 

not binding precedent, I find it persuasive authority. See generally Rule 36-2 of the Eleventh 

Circuit Rules of Procedure (though not binding precedent, an unpublished opinion is of 

persuasive authority); see also Edelman v. Jordan, 415 U.S. 651, 671 (1974) (summary 

affirmances are of some precedential value).

7

The majority opinion cites several cases for the proposition that the element of applicability 

requires the Secretary to show that the standard applies to the cited conditions, rather than the 

cited employer. Upon closer scrutiny, none of the majority’s cited cases support such a ruling,

and none involve a standard like the one here, which, by its plain terms, is limited to a 

specifically identified employer other than the respondent employer. 

8 My colleagues’ analysis suggests that Southern Pan had notice of the standard’s applicability 

because it had notice of its general compliance obligation to its own employees. Certainly there 

is no dispute that Southern Pan had obligations to its own employees under the OSH Act and 

applicable standards. However, this has no reasonable relationship to § 1926.701(a)’s plain 

words, which limit application of this particular standard to a different employer─the employer 
22

1995) (“Congress and the courts require that agency action reflect clear, rational decision making 

that gives regulated members of the public adequate notice of their obligations.”); Diebold, Inc. 

v. Marshall, 585 F.2d 1327, 1335-1339 (6th Cir. 1978); Cardinal Indus., 14 BNA OSHC 1008, 

1011, 1987-89 CCH OSHD ¶ 28,510, p. 37,801 (No. 82-427, 1989). To the extent that the 

Secretary’s choice of language does not effectuate what the Secretary may have intended, the 

remedy lies in further rulemaking by the Secretary rather than the adoption by this Commission 

of an interpretation that is not supported by the standard and its preamble as promulgated. See 

Diamond Roofing v. OSHRC, 528 F.2d 645, 650 (5th Cir. 1976) (regulations cannot be construed 

to mean what an agency intended but did not adequately express).

For these reasons, I conclude that Citation 2, Item 1 was properly vacated. 

/s/

Heather L. MacDougall

Dated: December 18, 2014 Commissioner

 

directly responsible for concrete operations. The majority’s contrary construction cannot be 

expected to guide employers in their conduct. Lisbon Contractors, Inc., 11 BNA OSHC 1971, 

1974, 1984-85 CCH OSHD ¶ 26,924, p. 34,500 (No. 80-97, 1984) (“A construction of a standard 

that bears no reasonable relationship to the standard’s plain words cannot be expected to guide 

employers in their conduct.”). I fear that my colleagues’ opinion today, which imposes a new 

requirement upon employers to comply with every OSHA standard, whether it is applicable to 

them or not, may in effect prove to be counterproductive to the purposes of the Act.
United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1924 Building - Room 2R90, 100 Alabama Street, SW

Atlanta, Georgia 30303-3104

Secretary of Labor,

 Complainant,

 v. OSHRC Docket No. 08-0866

Southern Pan Services Co.,

 Respondent.

Appearances:

Dane Steffenson, Esq., U. S. Department of Labor, Office of the Solicitor, Atlanta, Georgia

For Complainant

J. Larry Stine, Esq., and Mark Waschak, Esq., Wimberly, Lawson, Steckel, Schneider & Stine, P. C., Atlanta,

Georgia

For Respondent

Before: Administrative Law Judge Ken S. Welsch

DECISION AND ORDER

Southern Pan Company (SP) is a concrete formwork contractor. General contractor Choate

Construction Company subcontracted SP to install the shoring and formwork for a new six-story

garage and adjacent condominium tower, known as the Berkman Plaza II project, in Jacksonville,

Florida. On December 6, 2007, the garage collapsed as subcontractor A. A. Pittman and Sons

poured the concrete for the sixth level roof. More than 20 workers were seriously injured, and SP

employee Willie Edwards was killed.

Occupational Safety and Health Administration (OSHA) compliance officer Henry Miller

conducted an inspection of the worksite after the collapse. As a result of the inspection, the

Secretary issued serious and willful citations to SP on June 2, 2008. SP timely contested the

citations. 

Item 1 of citation no. 1 alleges a serious violation of 29 C. F. R. § 1926.21(b)(2), for failing

to instruct each employee in the recognition and avoidance of unsafe conditions. Item 2 of citation
-2-

no. 1 alleges a serious violation of 29 C. F. R. § 1926.703(b)(7), for subjecting shore heads and

similar members to eccentric loading for which they had not been designed. The Secretary proposed

a penalty of $ 2,500.00 for item 1 and $ 5,000.00 for item 2.

Item 1 of citation no. 2 alleges a willful violation of § 1926.701(a), for failing to determine,

based on information received from a person who was qualified in structural design, that the

structure or portion of the structure was capable of supporting the loads. Item 2 of citation no. 2

alleges a willful violation of 29 C. F. R. § 1926.703(a)(2) for failing to have drawings or plans

available at the worksite. The Secretary proposed a penalty of $55,000.00 for item 1 and $ 70,000.00

for item 2. 

The court held an eight day hearing in this matter, from May 18 to May 22, and from July

7 to July 9, 2009, in Jacksonville, Florida. The parties stipulated jurisdiction and coverage (Exh.

J-A). Each party has filed a post-hearing brief. 

SP denies the violations and contends the Secretary failed to present a prima facie case for

each of the alleged violations. In its answer, SP asserted the affirmative defense of unpreventable

employee misconduct. SP no longer asserts that defense (Exh. J-A, ¶ 23).

For the reasons discussed in this decision, the court vacates both items of citation no. 1, and

item 1 of citation no. 2. The court affirms item 2 of citation no. 2, as willful, and assesses a penalty

of $ 40,000.00.

Facts

The parties stipulated to a number of facts which are the primary source of the following

facts, rearranged for narrative purposes (Exh. J-A): 

SP’s corporate headquarters are located in Lithonia, Georgia. Choate hired SP to install the

shoring and formwork on the Berkman Plaza II project. The Berkman Plaza II project, located at 500

E. Bay Street in Jacksonville, Florida, consists of a 23-story condominium tower and a six-story

parking garage. Both structures are constructed with poured-in-place (also referred to as “cast-inplace”) concrete. Construction on the project began in January 2006.

SP began work on the project in March 2006. SP was responsible for obtaining shoring and

reshoring drawings for both the garage and the tower, building the formwork, and placing the

concrete for some of the vertical pours. SP was not responsible for placing the concrete for the
-3-

horizontal pours, which included Pour 6A (6th level, A section), the pour being made at the time of

the collapse.

Various participants were involved in the development and construction of the Berkman

Plaza II project. They include the following:

1. Berkman Plaza II, LLC

Berkman Plaza II, LLC (BPII), is the owner of the project. BPII hired the architect, Pucciano

and English, and the general contractor, Choate. Under the Florida Building Code, BPII is

responsible, as owner, for ensuring that structures pass threshold inspection before proceeding with

safety-critical operations, as determined by state law (Exh. J-18).

2. Choate Construction Company

Choate is the general contractor on the project. Choate’s project manage for the Berkman

Plaza II project was Lawrence Gilbert. Choate hired the subcontractors, including SP, and the

threshold inspector (Tr. 29).

3. Synergy Structural Engineering

Choate hired Synergy Structural Engineering to meet Florida’s threshold inspection law.

Synergy employed the threshold inspectors Eric Cannon and Tim Frazier (Tr. 94-95).

4. Pucciano and English

Pucciano and English is the architecture firm hired by BPII to create the design of the parking

garage. Pucciano and English is responsible for the project manual and specifications, and for the

general construction drawings. The firm hired the project’s engineer, Soheil Rouhi (Tr. 35-36).

5. Soheil Rouhi

Soheil Rouhi is the engineer of record for the project. Rouhi prepared the structural

drawings, and signed and sealed them. He drafted and/or approved the threshold inspection plan.

Rouhi expected the threshold inspector to verify the inspected structure to comply with the approved

plans and drawings, including the shoring and reshoring plans provided by Patent Engineering.

6. Patent Engineering

As the formwork contractor, SP hired Patent Engineering to provide its plans and drawings

for shoring and reshoring on the project. Patent provided the only signed and sealed drawings for

the shoring and/or reshoring. The drawings consisted of ten pages, eight of which were full-size and
1

 By all accounts, Willie Edwards was a dependable, hard-working employee and a man devoted to his family. SP

had recently given him a raise. SP superintendent James Smith stated, “Willie was the one man that would go with

somebody else to make sure it got done, and we could rely on him to do that. He had become a very reliable

employee” (Tr. 213). Hawkins testified Edwards was working the day of the collapse “so he could have a good

Christmas for his children” (Tr. 625). 

-4-

the last two (pertaining to approval of replacing the aluminum beams with 4x4 wood beams) were

on 8.5-inch by 11.5-inch sheets of paper. These drawings were available at the worksite. There were

no other written plans or drawings pertaining to the shoring and/or reshoring for the garage. Patent’s

drawings included a typical reshore diagram that shows the garage to have shoring and/or reshoring

to the ground.

7. Universal Engineering Sciences

SP hired Universal Engineering Sciences, a professional engineering firm, to inspect the

shoring and reshoring to determine whether components were correctly constructed according to the

plans prepared by Patent (Tr. 83).

8. A. A. Pittman and Sons

Choate hired A. A. Pittman and Sons, a concrete finishing company. Pittman and Choate

were responsible for placing the horizontal pours, including Pour 6A. Pittman poured the concrete

slabs in the garage at depths of 8 inches, 16 inches, and 20 inches (Exh. J-11). It poured slabs in the

tower at depths of 8 or 9 inches (Tr. 371). 

On October 22, 2007, SP, when placing shoring under the fifth level of the garage, began to

remove some of the shoring and reshoring from the first level in the section where there were no 20-

inch slabs. On October 26, 2007, SP removed some shoring and reshoring from the second level in

the section where there were no 20-inch slabs. On November 19, 2007, SP started removing some

of the shoring and reshoring between the ground and the third level (referred to as the “high bay

area”).

Pittman performed Pour 5A on November 7, 2007; Pour 5B on November 20; and Pour 6A

on December 6. Pour 6A was for the sixth level roof of the garage. On December 6, at

approximately 6:15 a.m., the parking garage from column line GA to column line GG

(approximately 70% of the garage), collapsed to the ground (“pancaked”) as the concrete was

poured. SP employees Willie Edwards and Roland Hawkins were on the fifth level, below the pour,

ready to clean off any excess concrete. The collapse killed Edwards1 and seriously injured Hawkins

and other contractor employees.
-5-

OSHA’s assistant area director Jeff Romeo and a compliance officer arrived at the site the

day of the collapse. At that time, and for the next several days (the body of Edwards was not

recovered for three days), only rescue personnel were allowed in the garage area. Compliance officer

Henry Miller arrived at the site the following Monday or Tuesday. He was accompanied by

Mohamed Ayub, OSHA’s director of engineering. Miller and Ayub observed the collapsed area

from a manlift on the north side of the garage. They took photographs of the collapsed area. Miller

also conducted interviews and obtained documents from SP (Tr. 772).

As a result of the OSHA inspection, the serious and willful citations were issued to SP on

June 2, 2008.

Citation No. 1

The Secretary has the burden of proving the violation by a preponderance of the evidence.

In order to establish a violation of an occupational safety or

health standard, the Secretary has the burden of proving: (a) the

applicability of the cited standard, (b) the employer’s noncompliance

with the standard’s terms, (c) employee access to the violative

conditions, and (d) the employer’s actual or constructive knowledge

of the violation (i.e., the employer either knew or, with the exercise

of reasonable diligence could have known, of the violative

conditions).

Atlantic Battery Co., 19 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

Item 1: Alleged Serious Violation of § 1926.21(b)(2)

The citation alleges SP “did not instruct the laborers on how to read the plans and drawings

to recognize hazards when removing reshores from a concrete structure.” Section 1926.21(b)(2)

provides:

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.

SP stipulated that § 1926.21(b)(2) applies to the work SP was performing at the worksite

(Exh. J-A, ¶ 13). SP also stipulated it “did not instruct the laborers on how to read the plans and

drawings” (Exh. J-A, ¶ 26). SP contends that the concrete formwork industry does not recognize the

duty to instruct laborers in how to read plans and drawings. SP also contends any violation for
-6-

failing to train Roland Hawkins is barred by the six-month statute of limitationsforOSHA violations.

Section 1926.21(b)(2) requires an employer to “instruct its employees in the recognition and

avoidance of those hazards of which a reasonably prudent employer would have been aware.”

Pressure Concrete Constr. Co., 15 BNA OSHC 2011, 2015 (No. 90-2668, 1992). “An employer’s

instructions are adequate under § 1926.21(b)(2) if they are specific enough to advise employees of

the hazards associated with their work and the ways to avoid them.” Model Continental Construction

Co., 19 BNA OSHC 1760 (No. 00-1629, 2001).

Compliance officer Henry Miller testified he recommended the Secretary issue the citation

based on his questioning of SP president Ken Dickey. Dickey told Miller he did not train SP

laborers how to read plans and drawings. Miller did not research whether other formwork

contractors train their employees in reading plans and drawings, and he did not know what the

industry standard for training laborers in reading plans and drawings is (Tr. 953). 

In determining the duty of a “reasonably prudent” employer,

Reasonableness is an objective test which must be determined on the

basis of evidence in the record. Industry standards and customs are

not entirely determinative of reasonableness because there may be

instances where a whole industry has been negligent . . . . However,

such negligence on the part of a whole industry cannot be lightly

presumed. Diebold Inc. v. Marshall, 585 F.2d 1327, 1336 (6th Cir.

1978). It must be proven. 

Ray Evers Welding v. OSHRC, 625 F.2d 726, 732 (6th Cir. 1980).

Patrick Marchman, SP’s safety director, testified it is not the construction industry’s standard

to teach laborers how to read plans and drawings (Tr. 1058). SP president Ken Dickey also stated

it is not the industry standard (Tr. 1124). 

Dr. Stanley Lindsey is a professor of environmental and civil engineering at Georgia Tech

Savannah. He has a Ph.D. in Structural Engineering from Vanderbilt University (Exh. R-8). The

court qualified Dr. Lindsey as an expert in structural engineering and cast-in-place concrete

(Tr. 1222). Dr. Lindsey addressed the issue of training people in how to read plans and drawings:

You know, at Tech, in order to familiarize a student to be able to

really use Auto CAD, to read drawings and to do that sort of thing,

we take them for two semesters and teach them the basis of
-7-

engineeringdrawings and engineering calculations. And, to think that

you’re going to take a laborer out in the field and within ten hours or

a week teach him how to read drawings, that’s not going to happen.

If you could, we certainly wouldn’t be spending two semesters at

Tech doing that. I’ll tell you that right now. We have more important

things to do (Tr. 1187).

The Secretary adduced no evidence establishing it is the formwork industry’s standard to

train laborers to read plans and drawings. Research on this issue failed to turn up a single case where

the Secretary cited an employer for failing to train its laborers to read plans and drawings. Such

training usually requires a certain degree of education and technical training that is beyond what an

employer can reasonably be expected to provide to laborers. The Secretary has failed to establish

§ 1926.21(b)(2) requires employers to train their laborers to read plans and drawings.

Although the citation specifies SP’s alleged violation is not instructing its laborers “on how

to read the plans and drawings,” the Secretary attempts to broaden the alleged violative conduct. In

her post-hearing brief, she states, “SP violated this standard by not training its laborers on all

formwork standards and hazards applicable to their work” (Secretary’s brief, p. 14, emphasis

added).

James Borders is OSHA’s area director of the Jacksonville office (Tr. 843). When asked if

OSHA was contending there is a recognized hazard for failing to train laborers to read plans and

drawings, Borders replied:

No, sir, not so much plans and drawings, but I think the intent here

was that they should be familiar that they do exist and what is the

purpose of those things. The employer does have an obligation, as

the standard says, to educate their employees about what standards

apply to their work. As you know, plans and drawings are very

important to this type of work. I think the intention here was that the

employer had an obligation to make sure that their laborers were

aware that plans existed, that they had to be followed, they had to be

approved and things of that nature (Tr. 866).

Later, Borders was asked if the Secretary cited SP for failing to train its laborers to read plans

and drawings. Borders stated, “I believe the intent was more broader than that. But, yes, that’s what

the alleged violation description said, and it could have been written better than that” (Tr. 889). 
2

 Because the court finds the violative conduct alleged in item 1 is limited to training laborers in reading plans and

drawings, SP’s argument that its alleged failure to train Roland Hawkins is barred by OSHA’s six-month statute of

limitations is moot.

-8-

In her post-hearing brief, the Secretary argues SP knew “that the basis of this training citation

was that SP employees were not ‘trained about the standards that apply to their work’” (Secretary’s

brief, p.15, footnote 10). The Secretary declined to amend the citation to allege SP failed to train

its laborers on all formwork standards and hazards applicable to their work. 

SP did not impliedly consent to try the broader issue of training laborers in all formwork

standards and hazards. Indeed, SP expressly and repeatedly objected to broadening the scope of

the citation (Tr. 279, 384, 627). Counsel for SP stated, “We’ve stipulated to the language in the

citation that we had not trained our hourly employees on any of the blueprints and drawings. We

want to preserve our objections that we’re not trying this by consent, any other issue as to the

training” (Tr. 277). An amendment under Rule 15(b)(2) of the Federal Rules of Civil Procedure

“is proper only if two findings can be made-that the parties tried an unpleaded issue and that they

consented to do so.” McWilliams Forge Co., 11 BNA OSHC 2128, 2129 (No. 80-5868,1984).

The Secretary did not move to amend the citation to allege SP failed to train its laborers on all

formwork standards, and the court declines to do so now sua sponte.

The Secretary has failed to establish a violation of § 1926.21(b)(2). Item 1 is vacated.2

Item 2: Alleged Serious Violation of § 1926.703(b)(7)

The citation alleges the wood blocks SP placed on top of the scaffold jack screw plates “were

not plumb, exposing employees to a structural collapse hazard.” Section 1926.703(b)(7) provides:

Eccentric loads on shore heads and similar members shall be

prohibited unless these members have been designed for such

loading.

SP stipulates § 1926.703(b)(7) applies to the work it was doing at the Berkman Plaza II site

(Exh. J-A, ¶ 13). SP argues the Secretary offered no evidence establishing the wood blocks were not

plumb prior to the garage collapse.

Shoring is placed on the level that currently is being built. It is used to hold the formwork

prior to pouring the concrete (Tr. 467). Reshoring is placed on the completed levels below the
-9-

current level being built. Reshoring does not support the structure itself; its purpose is to carry the

load of the wet concrete placed on the upper level (Tr. 1452). 

SP’s shoring consisted of frame scaffolds of different heights (3 feet, 6inches; 5 feet; and 6

feet) with screw jacks on top of each of the frame’s four corners. Employees could adust the height

of the screw jacks. On top of the screw jacks were shore heads, and on top of the shore heads were

aluminum I-beams that supported 4"x4" laminates placed perpendicular to the I-beams. SP

employees placed plywood on top of the laminates, onto which the concrete was poured (Tr. 238-

239). 

For SP’s reshoring, employees would remove the plywood, the 4"x4" laminates, and the

aluminum I-beams. They would replace these materials with “post-shore heads” (PSHs) or “post

header extensions.” These are 12- inch long 4"x4" wood blocks that employees placed either upright

or lying flat on top of the shore heads. The employees would then adjust the screw jack so that the

PSHs were snug up beneath the previously poured concrete levels (Tr. 270-272).

SP received most of its 4"x4" blocks from SP’s yard in Atlanta, where they were cut with a

table saw. The table saw made a single cut all the way through the wood, so that the cut surface was

smooth and flat. SP superintendent James Smith testified his employees had to cut some 4"x4"s in

the field, using a Skil saw. Smith explained the method for cutting with a Skil saw: “You take a

speed square, mark it all the way around so you have a line, a pencil line, all the way around on

square, cut it through, flip it over and cut it through following the line” (Tr. 274). Sometime this

method left the cut surface uneven. Smith testified he discarded those blocks:

There were a few of them like that on the job, but I would have those

taken away. We wouldn’t use them. [Labor foreman] Drew

[Linderman] knew that we couldn’t use those and would discard them

to the side. If some of his laborers had used them, they would be

swapped out and replaced with the correct ones

. . . . 

If it was a sixteenth of an inch, I would let it go. If it’s threesixteenths of an inch, it got discarded (Tr. 275).

SP’s employees would set aside the rejected 4"x4" blocks. The clean-up crew routinely ran

late on this project, so the rejected blocks were not removed immediately: “Probably not at that

particular moment, no. When the cleanup crew came through, then, yes. Anything lying down,
-10-

4"x4"s or any trash or material that had been cut, laying on a slab, then they would be discarded by

the clean-up crew” (Tr. 275). Smith stated that not all of the wood blocks were used as PSHs. Some

were used as “kickers” to keep the forms in place, some were used for bracing, and some were used

for dunnage (Tr. 342-342). 

The Secretary contends SP used some of these double-cut blocks as PSHs. Because the

surfaces of these PSHs were uneven, the Secretary argues, they did not fit plumb on the shore heads,

causing them to carry an eccentric load. The Secretary relies primarily on the testimony of three

witnesses, John Czerepka, Roland Hawkins, and Mohamed Ayub, to establish SP violated the terms

of § 1926.703(b)(7). 

John Czerepka is a project engineer with Bracken Engineering (Tr. 462). After the garage

collapse, Bracken was hired to “come up with a demolition protocol on how to take apart the

collapsed debris and also the standing portion, and how to save evidence and documentation of that

evidence. . . “(Tr. 463). Czerepka worked with other Bracken employees to remove reshoring from

the structure on the east side of the garage (Tr. 466-467).

Bracken’s employees removed the reshoring assemblies, marked them, and attached them

to the scaffold frames with zip ties. Bracken then placed the units in a storage container (Tr. 468).

Czerepka testified he uncovered hundreds, perhaps thousands, of 4"x4" wooden blocks in the rubble

(Tr. 470). He retained approximately 20 of these blocks, chosen at random, as a representative

sample of blocks on the site (Tr. 473).

Exhibit C-6 is a copy of a photograph showing eleven of the blocks, standing on their ends

(Tr. 476). Czerepka brought two of the blocks to the hearing on May 20, 2009. Using a tape

measure, Czerepka demonstrated a difference of 1⁄4 inch on the surface of one block, and of c inch

on the other (Tr. 485). Czerepka could not say that these two blocks, or the blocks shown in Exhibit

C-6, were used as PSHs. He conceded the two blocks he brought in appeared to be waterlogged,

indicating they were stored on the ground (Tr. 496). 

Roland Hawkins was the SP’s lead carpenter on the vertical crew for the garage. He began

working for SP approximately four months before the collapse (Tr. 616). At the time of the collapse,

Hawkins was standing next to Willie Edwards on the fifth level of the garage, “watching the forms

for leakage or blowouts” (Tr. 617). Hawkins was seriously injured in the collapse. 
-11-

Hawkins testified he observed some of the double cut 4"x4" blocks used by SP employees

(Tr. 630-631): “I would say that there were uneven cut boards used as reshoring; not the majority of

them, but maybe a small percentage, you know. It’s just grab what you can and stick it in there and

go.” Hawkins worked on the leading edge at the top level of the structure most of the time, but he

did occasionally help erect or dismantle reshoring. He also observed the reshoring on the lower

levels as he walked up and down the ramps (Tr. 631, 635). He stated that, as he went up and down

the ramps, he sometimes observed reshoring that was not plumb, “but not to the point where I was

afraid to go to work” (Tr. 632). Hawkins was not questioned as to the date or dates he observed the

PSHs that he thought were out of plumb.

Hawkins testimony regarding to the condition of the wooden blocks is not given weight

because he did not identify the dates of his observations and his memory apparently has been

affected by his injuries and treatment. He candidly discussed his personal problems and when asked

if his memory had been affected since the collapse, Hawkins responded, “Absolutely, yes. . . . It

doesn’t have anything to do with my recollection” (Tr. 636-637, 664).

Superintendent Smith, carpenter foreman JamesFerrell, andSynergy threshold inspector Eric

Cannon all testified that the reshoring was constantly checked for plumbness. If any reshoring was

found out of plumb, it would be corrected immediately (Tr. 340, 740, 1242). 

Smith gave detailed testimony regarding the loads placed on the PSHs. He testified that the

PSHs would on occasion come loose:

If the slab above is being poured and they’re vibrating from

the concrete, hitting the deck from the pump, the vibrators

themselves, and they were only snug tightening them by hand

anyway, and there’s no gauge saying how tight you had to have these

or have them torqued down to a certain strength, there were occasions

where there would be one or two here or there that would work

themselves loose and you had to go back.

You know, that was part of the inspection. You checked these

things. This is part of why they had to go through and inspect these,

to make sure. There were things like that that happened. It happens

on every job (Tr. 338-339).
3

 The Secretary also introduced a copy of a photograph taken “a few weeks” before the collapse by Tim Marlow,

SP’s superintendent for the tower (Exh. C-4), which the Secretary claims “unintentionally documented a PSH that

was substantially off-center” (Secretary’s brief, p. 27). Although the PSH does appear to be off-center, the distance

and the angle from which the photograph was taken diminish the accuracy of a conclusive finding. In addition, the

citation alleges PSHs were eccentrically loaded “on or about December 6, 2007.” An out-of-plumb PSH observed “a

few weeks” before that date falls outside the scope of the alleged violation. 

-12-

To ensure the PSHs were put back in plumb, Smith stated:

I had one particular–I usually had one man and I would instruct Drew

to send one man through, “Check all your reshore posts. Make sure

they’re plumb and make sure they’re snug and tight.” (Tr. 340).

Smith testified that as of December 5, 2007, the PSHs had been checked by Univesal and

found to be plumb. To ensure the PSH’s remain plumb, Smith testified:

You go by and you grab it and if it don’t move, it’s good. If

it moves, it’s going to come out of plumb. I mean, it’s real simple

(Tr. 340).

. . . .

We used levels, torpedo levels, two-foot levels, check out our

plumbness. Drew would tote–like I said, when he was with Universal

walking through, he kept a torpedo in his pocket. If he had a question

about something not being plumb, the torpedo level goes on it to find

out (Tr. 341).

Ferrell corroborated Smith’s account. He testified that he, Smith, and Linderman all

participated in the walk-around inspection for Pour 6a. At that time, immediately before the

December 6 pour, all the PSHs “were plumb and straight” (Tr. 1244). 

The testimony of Smith and Ferrell specifically addresses the condition of the site “on or

about December 6, 2007,” as alleged in the citation. It is given more weight regarding the condition

of the PSHs than Hawkins’s testimony, because there is no indication of the date or dates Hawkins

observed the PSHs out of plumb.

The Secretary adduced evidence it obtained after the collapse in an attempt to show the PSHs

were eccentrically loaded before the collapse. Miller took photographs from the manlift of various

PSHs that appeared to him to be out of plumb (Exh. C-10).3 The Secretary rejects any suggestion

the garage collapse may have shaken the PSHs out of plumb. Ayub stated:
-13-

This is not a seismic event. This is not a ground motion

which relates to the whole event of acceleration, and vertical

acceleration and the rotation of the building.

 Here, we are dealing with a collapse. A collapse has taken

place, essentially five bays on the north, and there is damage done to

three bays with the main collapse upward.

That line of shoring which is very close to the fractured slab

surface . . .there could be some distortion and some movement on the

line of the shoring which is closest to where the fracture took place

on the unfailed part.

I was at the site, I observed the unfailed base. There was not

rotation, there was no tilting. It was all standing plumb (Tr. 1570-

1571). 

Dr. Lindsey disagreed with Ayub’s analysis. He testified, “[W]hen the structure collapsed,

. . .what I would consider to be a large amount of force, and very difficult to calculate the exact

quantity of, was exerted on the garage, and it caused the garage to move. And, in moving, it had the

potential and probably the result of that movement, was to displace some of those 4"x4"s that were

in place” (Tr. 1321-1322). He stated there is no scientific basis to say the PSHs were not plumb

prior to the collapse (Tr. 1323). He also stated an engineer could not observe the conditions of the

PSHs post-collapse “and make any viable conclusions about the status of those blocks prior to the

collapse” (Tr. 1434).

Upon consideration of the evidence, the court concludes the Secretary has fallen short of

proving it was more likely than not that PSHs were eccentrically loaded on or about December 6.

The only eyewitness who stated he observed PSHs out of plumb (that were not corrected

immediately) did not give a specific date for his observation. The record establishes SP checked the

PSHs constantly and immediately corrected any that were out of plumb. The threshold inspector

inspected the reshoring before the December 6 pour and found the PSHs to be plumb. Smith, Ferrell,

and Linderman also inspected the reshoring prior to Pour 6A, and observed the PSHs were straight

and plumb. 

The evidence gathered post-collapse also fails to establish the PSHs were eccentrically

loaded pre-collapse. There is no evidence the double cut 4"x4" blocks recovered by Czerepka were

used as PSHs. Smith’s testimony establishes the blocks could have been used as kickers, or bracing,

or dunnage, or were discarded blocks set aside for the clean-up crew to collect. The photographs
-14-

admitted as Exhibit C-10 are insufficient to establish the violation on two counts: first, it is not

possible, based on the photographs, to prove the plumbness or out-of-plumbness of any of the PSHs.

Second, even if the PSHs were conclusively established as being out-of-plumb, the Secretary cannot

establish this condition did not result from the collapse itself. The court does not give weight to

Ayub’s opinion that the collapse could not have generated forces that would cause the PSHs to shift.

Smith testified the PSHs would shift during concrete pours, due to vibrations from the pump and the

vibrators (Tr. 338). Vibrations created by pouring concrete do not exert the force of vibrations

created by the collapse of 70% of the parking garage. In the report Ayub submitted following his

investigation, he states, “The collapse was massive . . .” (Exh. C-15). The enormity of the collapse,

as amply demonstrated in the photographs, supports the expert opinion of Dr. Lindsey, who stated

the collapse most likely caused the PSHs to move. Hawkins, the only witness who was actually in

the garage at the time of the collapse, stated the collapse “was like being in a tornado of steel and

concrete. It was like being in a hurricane of steel and concrete” (Tr. 666).

The Secretary has not established SP failed to comply with the terms of § 1926.703(b)(7).

Item 2 is vacated.

Citation No. 2

Item 1: Alleged Willful Violation of § 1926.701(a)

The original citation alleged SP “did not have a qualified person determine if the formwork

with the additional height added, would be capable of supporting the additional load of the wet

concrete, exposing the employees to a structural collapse hazard.” Upon the Secretary’s motion

 (and over SP’s objection), the court amended the citation to allege SP “did not determine, based on

information received from a person who was qualified in structural design, the concrete garage

structure or portion of the concrete garage structure was capable of supporting the weight of the wet

concrete for pour 6A, exposing employees to a structural collapse hazard.” Section 1926.701(a)

provides:

No construction loads shall be placed on a concrete structure or

portion of a concrete structure unless the employer determines, based

on information received from a person who is qualified in structural

design, that the structure is capable of supporting the load.
-15-

The parties stipulate the Secretary has not issued any interpretations of § 1926.701(a), other

than the preamble to the final rule (Exh. J-A, ¶ 25). SP argues § 1926.701(a) does not apply to it

because SP did not place the load of concrete on the structure. 

In 1988, OSHA revised its regulations concerning concrete formwork in order to eliminate

redundancies, ambiguities, and gaps resulting from prior regulations and the incorporation of ANSI

standards, and to establish a clear set of operating principles for employers in the concrete

construction industry. In the preamble to the final rule, the Secretary states:

After carefully considering all the comments and testimony received,

OSHA has decided to delete the requirement for the specified

engineer-architect services. This decision is based on the comments

and testimony received which indicates that engineer-architects

frequently do not consider construction loads in the design, nor do

they approve their placement on partially completed structures.

However, OSHA believes that it is still important that someone be

responsible for performing this service. Therefore, OSHA is

requiring that the employer make the determination that the structure

or portion of the structure is capable of supporting the construction

loads. The employer must make this determination on the basis of

information received from a person qualified in structural design.

This revision also places responsibility for employee safety with the

person directly responsible for the concrete operations. 

Concrete and Masonry Construction Safety Standards, Final Rule, 53 FR 22612, 22617 (emphasis

added) (Exh. J-20). 

In this instance, the employers directly responsible for the concrete operation are Choate, the

general contractor, and Pittman, the concrete finishing subcontractor. The Secretary concedes that

Choate “would typically be responsible for making sure that a person qualified in structural design

provided information upon which contractors could determine that it was safe to place construction

loads on the structure being built” (Secretary’s brief, p. 30). The Secretary argues, however, that

“SP agreed and was contractually obligated to perform this responsibility for Choate by being the

contractor responsible for hiring the shoring engineer, who would provided the information upon

which this determination could be made via the signed and sealed shoring and reshoring plans” (Id.).
4

 Section 1926.703(a)(1) provides: 

Formwork shall be designed, fabricated, erected, supported, braced and maintained so that it will

be capable of supporting without failure all vertical and lateral loads that may reasonably be

anticipated to be applied to the formwork. Formwork which is designed, fabricated, erected,

supported, braced and maintained in conformance with the Appendix to this section will be

deemed to meet the requirements of this paragraph.

-16-

 The Secretary relies on paragraph 12 of Exhibit B of SP’s subcontract with Choate to

support her argument that the contract shifts the obligation of compliance with § 1926.701(a) from

Choate to SP. Paragraph 12 states:

Furnish, install, and maintains all necessary shoring and reshoring.

Furnish all necessary shore and reshore inspections. Furnish shoring

and reshoring drawings, sealed by engineer.

SP argues that the obligation to comply with § 1926.701(a) remained with Choate and

Pittman, and further argues that the employers fulfilled that obligation when Choate hired Synergy

as its threshold inspector. 

The court agrees that SP was not responsible for the placement of the concrete load on the

structure. The contents of paragraph 12 of the subcontract do not shift responsibility for the concrete

operations to the formwork subcontractor. Paragraph 12 of the subcontract essentially paraphrases

the requirements of § 1926.703(a)(1), with which SP is obligated to comply.4 

The Secretary stipulated, “A. A. Pittman was the concrete finisher and along with Choate was

responsible for placing the horizontal pours, including Pour 6A” (Exh. J-20 ¶ 9). With this

stipulation, the Secretary has undercut her case that § 1926.701(a) applies to SP. The plain language

of the standard indicates the employer placing the construction load is the employer to whom the

standard applies. The preamble to the final rule further clarifies that the § 1926.701(a) applies to the

employer “directly responsible for concrete operations.” In the present case, that employer was not

SP.

Item 1 of citation no. 2 is vacated.
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Item 2: Alleged Willful Violation of § 1926.703(a)(2)

The citation alleges SP “did not obtain a reshoring drawing, including all revisions, for the

reshoring design method of using two levels of reshores, exposing employees to a structural collapse

hazard.” 

Section 1926.703(a)(2) provides:

Drawings or plans, including all revisions, for the jack layout,

formwork (including shoring equipment), working decks, and

scaffolds, shall be available at the jobsite.

SP stipulates § 1926.703(a)(2) applies to the work it was doing at the Berkman Plaza II site

(Exh. J-A, ¶ 13). SP argues it had all existing plans and drawings available at the site. The dispute

is whether SP was required to have a revised plan on site once it removed reshoring from the lower

levels, which was contrary to the plans on site. 

The stipulations pertinent to this issue are (Exh. J-A):

1. Southern Pan was responsible for obtaining shoring and reshoring drawings for

both the garage and tower, building the formwork and placing the concrete for some

of the vertical pours. (¶ 7)

2. Southern Pan hired Patent to provide it plans and drawings for shoring and

reshoring. (¶ 14)

3. Patent provided the only signed and sealed drawings pertaining to the shoring

and/or reshoring for the garage. These drawings consisted of 10 pages, eight of

which were full-size and the last two (2) pertaining to approval of replacing the

aluminum beams with 4x4 wood beams were on 8.5" by 11.5" sheets of paper. These

drawings were available at the worksite. There were no other written plans or

drawings pertaining to the shoring and/or reshoring for the garage. (¶ 15)

4. The Patent drawings included a typical reshore diagram that shows the garage to

have shoring and/or reshoring to the ground. (¶ 16)

5. Southern Pan removed some of the shoring and reshoring from the first level in

the non-20" section of the garage beginning on or about October 22, 2007. (¶ 17)

6. Southern Pan was removing some shoring and reshoring from the second level of

the non-20" section of the garage on or about October 26, 2007. (¶ 18)
5

 When a structure is shored and reshored to the ground, it creates “a load path that would take the wet concrete to

the ground” (Tr. 123). That way, the reshoring is carrying the weight of the wet concrete, rather than the structure

itself. If reshoring is removed, the weight of the wet concrete is transferred to the structure (Tr. 124-125).

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7. Southern Pan started removing some of the shoring and reshoring between the

ground and the third floor, which is referred to as the high bay area, on or about

November 19, 2007. (¶ 19)

8. Subsequent to the start of construction of garage, Southern Pan provided Choate

multiple copies of the shoring plan described above, but Choate misplaced at least

some of the copies. (¶ 22) (Exh. J-A)

Doug Rose is the Patent shoring engineer who designed the shoring and reshoring plans for

SP (Tr. 110-112). He testified that for all of Patent’s designs, all levels of a structure are shored and

reshored (“to the ground”) (Tr. 118). If SP decides not to shore to the ground, then a separate

engineering firm (SP used Dansco when it requested revised plans for the tower) must calculate and

create an new reshore plan to be signed and sealed. Patent does not create reshore plans that do not

go to the ground (Tr. 122).5

Rose stated that reshoring could not be removed from the structure and still be in compliance

with Patent’s plans because “of Patent’s policy, and that’s the way it was designed” (Tr. 134). Rose

testified Patent’s plans called for the reshoring to be kept in place to the ground until “the end of the

construction phase” (Tr. 142).

TimPostma, SP’s project manager, testified the Patent drawings that showed reshoring going

to the ground were “what was intended to be used” (Tr. 546). Superintendent Smith recognized SP

was required to follow Patent’s plans (Tr. 242): “You don’t deviate from the drawing sets that you

have unless another engineer provides adequate, I guess, paperwork or plans to change things. You

never deviate from the plans, the original things you got, until something else, a revision comes in.”

Despite this recognition, Smith ordered his employees to remove reshoring from the lower

levels of the garage, beginning on October 26, 2007. Smith testified he assumed Postma had

requested Dansco to create a revised reshoring plan, in which, instead of reshoring to the ground, SP

would shore the top level and only the two lower levels (“1-over-2" shoring) (Tr. 243). 

Smith explained how his misunderstanding arose:
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There was a discussion among Tim Postma and Tim Marlow, the

superintendent of the tower, and myself. His drawings, original drawings from

Dansco, had got misplaced through the mail. There was a reordering process going

on with Tim Postma.

In discussing the drawings, I assumed he was doing mine at the same time

because when he was speaking to us, I felt like he was speaking to both of us at the

time and that my drawings were going to be with that second set of drawings for the

tower as well when they came in.

. . . .

[T]hat’s typical on every job. I mean, every job that we’ve done since I’ve

been with Southern Pan, that was the typical procedure (Tr. 244).

. . . .

Patent’s drawings always showed shoring or scaffolding to the ground, the

ground all the way up, whether it’s three stories or fifteen stories.

And, it was typical procedure to have it recalibrated where you could use one

floor of shoring and two floors reshoring, one over two. I had worked with highrises. That was the typical standard thing that was done (Tr. 245).

Postma testified Smith should have checked Patent’s plans that were available at the site

before he removed the reshoring on the lower floors:

Jim Smith should have looked at the drawings and, yes, if Jim Smith

made a mistake and took something out he shouldn’t have taken out,

that was a mistake. And, that’s the reason the other layer of Universal

is there to catch those mistakes, and at that point, if the mistake was

caught, the shoring would have been put back in place and we would

have been back in accordance with the drawings that were on the site

(Tr. 552).

Postma agreed that Smith was qualified to understand the need for shoring plans on site. He

said “No, he’s a qualified superintendent. I have every faith in him to have done exactly as he should

have. It was a mistake.”

SP contends it did not violate the terms of § 1926.703(a)(2) because Synergy, the threshold

inspector, “by e-mail, secured the approval of Rouhi, the engineer of record, for the removal of

reshoring from lower levels except for one area where Rouhi stated that the reshoring should be

retained” (SP’ brief, p. 35). This argument is rejected. Synergy emailed Rouhi after SP began

removing the reshoring because Synergy wanted to clarify whether SP should be doing so
6

 Rouhi’s email was ambiguous. On August 31, 2007, Choate project manager Kirk Gilbert emailed Rouhi, seeking

permission to proceed with construction despite two structural problems in two different bays in the garage. SP had

installed extra reshoring to repair the problems. Rouhi responded, “As long as the shores stay in place I will not

have any problem continuing the project.” On October 30, 2007, Tim Frazier of Synergy emailed Rouhi after

learning SP was removing reshoring: “They are beginning to remove shoring at the garage. Per your email below I

just wanted to clarify that the areas you are requesting to stay shored all the way to the ground are only the bays

where the repair is required, not the entire garage, correct?” Rouhi responded with one word, “Correct” (Exh. J-7). 

Rouhi testified he was not approving the removal of all of the reshoring on the lower levels, but rather advising

Synergy that the additional reshoring should be kept in place in the two bays where there were structural problems

(Exh. C-5a, pp.31-32)

-20-

(Exh. J-7).6 Furthermore, there is no evidence SP knew of the existence of this email prior to the

collapse (Tr. 759-760). 

SP also argues it was not required to have any plans in addition to the Patent plans already

available on site. SP contends, somewhat confusingly, it was not required to provide “mental plans,”

(Tr. 942). It is perhaps best to quote SP verbatim on this point (SP’s brief, p. 36, emphasis in

original):

Complainant’s position appears to be that Southern Pan violated 29

C.F.R. § 1926.703(a)( 2) not because all plans and drawings in

existence were not available at the site, but rather because plans and

drawings that did not exist–had not been created, but in OSHA’s

opinion should have been–were not available. Specifically,

Complainant appears to be arguing that: (1) Patent’s reshoring plans

showed reshoring going all the way to the ground; that (2) Jim Smith

was using the “1-over-2"standard industry practice method, so Jim

Smith must have had a “mental plan” which would, in the Secretary’s

view, require him to stay on site at all times in order to have the “plan

in his head” on site; that (3) Jim Smith had an obligation to revise the

written plans to show removal of reshoring in order to allow him to

leave the site as he did; and that (5) [sic] Smith’s alleged failure to

either remain on site, or in the alternative, create a drawing

constitutes a willful violation of the standard. Such an interpretation

impermissibly contorts the natural meaning of the words in the cited

standard.

SP’s argument is rejected. The Secretary is only arguing point (1) listed above, which is a

fact stipulated to by both parties. The Secretary is not arguing Smith was required to stay on site at

all times so that his “mental plan” was available, nor is she arguing Smith should have drawn up

some plans himself. What she is arguing (and what Smith and Postma both understood at the
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hearing) is that SP needed to have revised shoring and reshoring plans on site before it began

removing the reshoring. Section 1926.703(a)(2) plainly states, “Drawings or plans, including all

revisions” for shoring equipment must be available on site. Patent created a set of plans for SP,

showing reshoring going all the way to the ground. SP decided to alter the way the reshoring was

installed, which required a revised plan to be on site. Both Smith and Postma understood this.

Smith stated, “You never deviate from the plans, the original things you got, until something else,

a revision comes in” (Tr. 242). Postma conceded Smith made a mistake in removing the reshoring

without a revised plan (Tr. 565): “We discuss [plans required to be on site] all the time. It’s an

ongoing discussion. It’s an ongoing discussion even on my job sites with my superintendents when

I’m on the job site. Always according to the drawings. The drawings that are on the site is the Bible

of what you’re going to go by.”

The Secretary has established SP violated the terms of § 1926.703(a)(2). The requirement

that all plans, including revisions, be present on site is not a mere technicality. Formwork is

designed to transfer weight from the structure. Prematurely removing formwork without an

engineer’s revisions exposes employees to structural collapse. Without the correct plans on site,

crucial information is missing. 

SP had actual knowledge of the violation. Smith was the SP’s superintendent for the garage.

Smith admitted SP did not have a revised plan on site, and that he knew OSHA required it have one.

Item 2 of citation no. 2 is affirmed.

Willful Classification

The Secretary classifies this violation as willful. A willful violation is one “committed with

intentional, knowing or voluntary disregard for the requirements of the Act, or with plain

indifference to employee safety.” Falcon Steel Co., 16 BNA OSHC 1179, 1181 (No. 89-2883,

1993). A showing of evil or malicious intent is not necessary to establish willfulness. A willful

violation is differentiated from a nonwillful violation by an employer’s heightened awareness of the

illegality of the conduct or conditions and by a state of mind, i.e., conscious disregard or plain

indifference for the safety and health of employees. General Motors Corp., Electro-Motive Div., 14

BNA OSHC 2064, 2068 (No. 82-630, 1991). 
-22-

The court finds the Secretary has established SP’s violation of § 1926.703(a)(2) was willful.

Superintendent James Smith was responsible for removing the reshoring without having a revised

plan on site. Smith admitted he knew he was not permitted to continue work if he did not have the

revised plans on site. Smith admitted he never saw any revised plans, yet he ordered the reshoring

removed anyway (Tr. 247). “The hallmark of a willful violation is the employer’s state of mind at

the time of the violation- - an intentional, knowing, or voluntary disregard for the requirements of

the Act or ... plain indifference to employee safety.” Kaspar Wine Works, Inc., 18 BNA OSHC 2178,

2181 (No. 90-2775, 2000) aff’d 268 F.2d 1123 (D.C. Cir. 2001). Smith’s testimony demonstrates

his state of mind at the time he ordered his employees to remove the reshoring . He knew he did not

possess revised plans on site, he knew he was not supposed to deviate from the existing plans, and

yet he did so. Smith knowingly disregarded the requirements of the standard.

Smith’s claim he mistakenly assumed the revised plans were in the mail from Dansco, along

with the replacement drawings for the tower is, rejected. Even if the plans were in the mail, Smith

should not have removed the reshoring until the revised plans were on site. No one specifically told

Smith that revised reshoring plans had been ordered or were in the mail. Smith’s mistaken

assumption does not show good faith. 

A willful violation is not 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 were not entirely effective or

complete. L.R. Willson and Sons, Inc., 17 BNA OSHC 2059, 2063 (No. 94-1546, 1997), rev’d on

other grounds, 134 F.3d 1235 (4th Cir. 1998). 

SP’s contract with Universal Engineering Service to inspect the shoring/reshoring does not

show good faith. The test of good faith for these purposes is an objective one; whether the

employer’s efforts were objectively reasonable even though they were not totally effective in

eliminating the violative conditions. Williams Enterp., Inc., 13 BNA OSHC 1249, 1256-57 (No. 85-

355, 1987). SP cannot contract away its responsibility under the standard. Universal was never

given the Patent plans and was only shown the shoring plans SP asked it to inspect. Greg Holtz was

the project engineer for Universal (Tr. 398). He inspected the garage on December 4, 2007, in

preparation for Pour 6A. Holtz testified he never saw reshoring plans, only the shoring plans

(Tr. 408). Smith would verbally tell Holtz what he wanted Holtz to look at. Smith carried what
-23-

were purported to be shoring plans. Holtz states, “[T]here was no need to bring out the plans. He

had them rolled up and said, ‘These are the plans’ and he quickly rolled them back up” (Tr. 409).

The inspections by Universal were not in accordance with the plans on site.

The violation is properly classified as willful.

Penalty Determination

The Commission is the final arbiter of penalties in all contested cases. In determining an

appropriate penalty, the Commission is required to consider the size of the employer’s business,

history of previous violations, the employer’s good faith, and the gravity of the violation. Gravity

is the principal factor to be considered.

The record does not disclose the size of the employer. The Secretary has previously cited SP

for OSHA violations and therefore SP is not entitled to credit for history (Exh. C-11). The Secretary

adduced no evidence of bad faith. 

The gravity of the violation is high. The parties stipulated, “The Secretary does not allege

that any of the alleged violative conditions in this case caused the collapse of the garage,” (Exh. J-A,

¶ 24). However, had the reshoring been in place in accordance with the only reshoring plan on site,

it may have lessened the damage caused by the collapse. A penalty of $ 40,000.00 is assessed. 
-24-

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The foregoing decision constitutes the findings of fact and conclusions of law in accordance

with Rule 52(a) of the Federal Rules of Civil Procedure.

ORDER

Based upon the foregoing decision, it is ORDERED that:

1. Item 1 of citation no. 1, alleging a serious violation of § 1926.21(b)(2), is vacated, and no

penalty is assessed;

2. Item 2 of citation no. 1, alleging a serious violation of § 1926.703(b)(7), is vacated, and

no penalty is assessed;

3. Item 1 of citation no. 2, alleging a willful violation of § 1926.701(a), is vacated, and no

penalty is assessed; and

4. Item 2 of citation no. 2, alleging a willful violation of § 1926.703(a)(2), is affirmed as

willful, and a penalty of $40,000.00 is assessed.

 \s\ Ken S. Welsch 

KEN S. WELSCH 

Administrative Law Judge

Date: March 8, 2010