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 Nos. 13-1169 & 13-1170

NORTH EASTERN PRECAST, LLC; and 

MASONRY SERVICES, INC. dba MSI,

Respondent.

ON BRIEFS:

Scott Glabman, Senior Appellate Attorney; Heather R. Phillips, Counsel for Appellate 

Litigation; Ann Rosenthal, Associate Solicitor of Labor for Occupational Safety and 

Health; M. Patricia Smith, Solicitor of Labor; U.S. Department of Labor, Washington, DC

For the Complainant

Jonathan W. Greenbaum, Esq., Coburn & Greenbaum PLLC, Washington, DC

For the Respondent

DECISION

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

BY THE COMMISSION:

After conducting a non-enforcement intervention that was converted into an inspection and 

subsequently re-inspecting Respondent’s worksite,1the Occupational Safety and Health 

Administration cited Respondent for multiple violations of construction safety standards as well 

as two willful violations that address work in proximity to high-voltage power lines (Willful 

 

1 The parties have stipulated that Northeastern Precast, LLC (“NEP”) and MSI are a single 

employer for purposes of this proceeding under the Occupational Safety and Health Act of 1970, 

29 U.S.C. §§ 651-678. The companies have overlapping ownership and were both involved in the 

events that formed the basis for the citations at issue. For ease of reference, we use “Respondent” 

to refer to the cited single employer and use either MSI or NEP when referencing information 

specific to one of the companies.
2

Citation 2, Items 1 and 2).

2

 Following a hearing, Administrative Law Judge Keith E. Bell affirmed 

both violations as willful and rejected Respondent’s argument that the violations were duplicative. 

The judge assessed the $61,600 proposed penalty for each violation. 

The only issues on review are whether the judge erred in his determination that these 

violations were not duplicative and the appropriateness of the penalty assessed.3 For the reasons 

that follow, we reverse the judge’s finding that the two violations were not duplicative, vacate Item 

2, and assess a penalty of $70,000 for Item 1.

 

2 OSHA issued MSI and NEP separate citations that allege violations of the same standards and 

are largely identical. In stipulating that MSI and NEP constitute a single employer, the parties 

agree that they are “subject to a single set of citations and proposed penalties.” Specifically, the 

parties have stipulated that the citations issued to NEP (Docket No. 13-1169) are “consolidated 

with the analogous citation items that [were] issued to MSI in this matter, with the resulting 

consolidated citation items being against [Respondent] as a single employer, and with the resulting 

proposed penalty for each consolidated citation item consisting of the penalty originally proposed 

against MSI.” Thus, only the citations issued to MSI (Docket No. 13-1170) remain at issue. In 

this respect, we consider the citations issued to NEP withdrawn by the Secretary. 

3 The judge’s decision to affirm both violations as willful is not at issue on review. Thus, the 

“chilling” nature of the facts, upon which our colleague unduly focuses at the expense of 

established case law, is relevant only to the extent that they bear on whether the violations are 

duplicative. Our colleague’s biggest issue seems to be with these facts, not our application today 

of the law to them. In an exercise of what appears to be judicial activism, our colleague not only 

misconstrues Commission precedent and disregards the Secretary’s concession, but she raises 

arguments relating to the Commission’s authority to vacate duplicative violations that have not 

been raised or briefed by either party.

Further, while our colleague claims in her dissenting opinion that our decision today fails to 

“confront the Commission’s confusing and conflicting precedent” on duplicativeness and “exceeds

the Commission’s limited authority under the Act” to apply the duplicativeness doctrine, it is she 

who appears to propose a new test made up out of whole cloth by suggesting that the Commission 

may vacate duplicative citations only where the employer has proven that affirming both violations 

would violate its due process rights—a concept not previously discussed in Commission precedent 

on this issue. In fact, the Secretary notes only that there is “tension” on this issue in our precedent, 

but then he expressly states that “[t]he Commission need not resolve this tension to decide this 

case[.]” As such, we question the prudence of raising these issues sua sponte and without the 

benefit of the parties’ views, particularly where those issues implicate longstanding Commission 

precedent. To borrow from Justice Blackmun, “the adversary process functions most effectively 

when we rely on the initiative of lawyers” to raise and address issues. New Jersey v. T.L.O., 468 

U.S. 1214, 1216 (1984) (Blackmun, dissenting from order).
3

BACKGROUND

In the summer of 2012, Respondent was engaged by Vordonia Contracting & Supplies 

Corp./Alma Realty Corporation to erect steel, set precast concrete planks, and lay block and brick 

at a mixed retail/residential construction project in Valley Stream, New York. The plans called 

for Respondent to use a crane to hoist and install concrete planks that would form the floors of a 

five-story building. 

Respondent had employees working in several locations near the corner of Brooklyn 

Avenue to the north and Fourth Street to the east. Power lines owned by the Long Island Power 

Authority (“LIPA”) ran along both streets and shared a common utility pole at the corner of Fourth 

Street and Brooklyn Avenue. The corner utility pole was approximately ten degrees out of plumb, 

causing the power lines at the northeast corner to encroach over the footprint of the building under 

construction. The power lines in question consisted of both “primary” and “secondary” power 

circuits. The primary power circuit, located along the top of the utility poles, consisted of three 

separate wires or “phases” that carried up to 13.2 kilovolts of electricity. The secondary power 

circuit, located lower on the utility poles, consisted of one wire that carried up to 240 volts. 

In the spring of 2012, before Respondent’s work began on the project, James Sal Herrera, 

one of Respondent’s owners, met with Patricio Solar, Vordonia’s in-house architect and designated 

representative for the project. Herrera noted that the power lines on both Fourth Street and 

Brooklyn Avenue appeared to be less than ten feet from the building, and therefore, they needed

to be addressed to enable Respondent to perform its work in compliance with OSHA standards. 

Solar raised the matter with LIPA in a May 25, 2012 letter, in which he requested an on-site 

inspection of the power lines in question. Guerson Carelus, a design planner and customer 

planning representative for LIPA, subsequently visited the worksite and informed Solar that the 

Brooklyn Avenue line could be de-energized, but the Fourth Street line would have to be relocated 

because de-energizing it would result in cutting power to other customers along the street. Carelus 

also informed Solar that LIPA required payment of the fees associated with both de-energization 

and relocation of the power lines before it would take any action.

4

 

4 LIPA representatives testified that both as a matter of company safety policy and in compliance 

with New York state law, LIPA would not insulate live power lines where workers would be 

working within ten feet of them. Such lines had to be either de-energized or relocated. 
4

In the months preceding OSHA’s inspection, Respondent received two cease-and-desist 

orders from LIPA. In July 2012, Jermaine Clarke, a design engineer supervisor for LIPA, visited 

the worksite and noticed that Respondent’s crane, which was located on Brooklyn Avenue, was 

operating closer than ten feet from the energized power line along Brooklyn Avenue. Clarke issued 

a cease-and-desist order to Solar requiring that work be stopped. Shortly thereafter, Vordonia paid 

LIPA to de-energize and place grounding devices on the Brooklyn Avenue line.

5

 In August 2012, 

Carelus again visited the worksite and observed the crane, now located on Fourth Street, lifting 

loads over the energized Fourth Street power line. Carelus requested that the work stop because 

the crane was being operated in dangerous proximity to the live power line. On August 23, 2012, 

Carelus issued a second cease-and-desist order to Solar, stating that all work should be ceased “in 

proximity to high voltage electric lines located on Fourth Street . . . .” That same day, LIPA 

issued a “notice to proceed with activities in proximity to high voltage electric lines” on Brooklyn 

Avenue, which were now de-energized. The crane was subsequently moved back to Brooklyn 

Avenue and work resumed.

Around this time, Solar had discussions with LIPA regarding the cost of relocating the 

Fourth Street power line, which was estimated to be $70,000. Vordonia’s owner attempted to 

negotiate the price with LIPA while the line remained energized and work continued. According 

to Solar, Respondent frequently raised the status of the Fourth Street power line with Vordonia 

between August and December 2012 because the building had begun to encroach on the wires at 

its northeast corner after it rose higher than two stories. Solar spoke with Respondent about halting 

construction until the issue of de-energization or relocation of the live power line was resolved and 

suggested that employees work on the opposite side of the building for the time being. Solar 

testified that Respondent stated in response that “the building needs to come up as one, based on 

how steel gets strapped in together and how the [concrete] planks tie in.”6 Respondent stated to 

Solar that it would have to stop working if the issue was not resolved. 

 

5 The parties stipulated that the power lines located on the Brooklyn Avenue side of the worksite 

were de-energized by September 2012. 

6 According to James Sal Herrera, after LIPA’s December 6, 2012 referral to OSHA, Respondent 

asked the project engineers about the possibility of continuing construction on only one half of the 

building, and the engineers advised against it. Because of the way the steel was designed to tie in 

together, the engineers recommended that each level of the building rise simultaneously. 
5

On December 1, 2012, OSHA CO Brian Calliari conducted a follow-up visit to the project 

to determine whether hazards that OSHA had previously identified during a “non-enforcement 

intervention” following Hurricane Sandy—none of which related to the power lines—had been 

addressed.7 By that point, Respondent had completed foundation and steel erection work, and it 

was engaged in masonry block and precast concrete plank installation on the building’s third floor. 

The crane, still located on Brooklyn Avenue, was lifting planks over the de-energized line on 

Brooklyn Avenue and bringing them within eight feet of the energized Fourth Street power line,

before setting them in place. The CO testified that such electrical hazards exceeded the scope of 

OSHA’s non-enforcement intervention; therefore, the intervention was converted into an 

enforcement inspection. 

Before conducting an opening conference, the CO informed Respondent’s superintendent, 

Manuel Herrera, that the energized Fourth Street power line posed an imminent danger to 

employees engaged in crane operations and requested that the employees be removed. After the 

employees were removed, the CO held an opening conference initially with Manuel Herrera and 

then later with James Sal Herrera. A phone conference was also held with Solar. The CO told 

both Herreras that, until the power line was moved, the planks should not be installed along the 

Fourth Street side of the building but instead staged outside the worksite or installed in another 

part of the building where employees and equipment could be kept at a safe distance from the 

energized line. The CO testified that James Sal Herrera told him that the planks, which were still 

on the delivery trucks, could not be staged outside the worksite and a return of the planks to the 

plant would result in additional expense. James Sal Herrera also told the CO that Respondent 

would continue to install the planks in other areas of the project and would not encroach upon the 

Fourth Street power line. 

Despite this representation, after the CO left the worksite on December 1, 2012,

Respondent continued to install planks on the third floor along the Fourth Street side of the 

building, moving from the south side of the project towards the northeast corner, where a portion 

of the live Fourth Street power line crossed directly over the building. As the plank installation 

 

7

In the aftermath of the hurricane, which hit Long Island, New York, at the end of October 2012, 

OSHA states that it assumed a non-enforcement role and conducted “interventions,” where COs

observed recovery operations, identified hazards, and familiarized employees and employers with 

OSHA standards. 
6

progressed toward the northeast corner, the crane got progressively closer to the line. In addition, 

on December 3, four employees began installing an engineered fall protection system along the 

Fourth Street side of the building in preparation for masonry work that was to take place.8 

From December 4 to 5, 2012, employees built up the block masonry wall on the third floor 

along Fourth Street, moving from the south side of the project towards the northeast corner.

Respondent also continued to build the masonry wall at the northeast corner of the building. As 

the masonry wall was vertically erected, it too came closer to the energized Fourth Street power 

line. At that point, the innermost of the three wires that made up the primary Fourth Street circuit 

crossed the plane of the wall under construction. Not letting that stand in the way of construction 

of the wall, Respondent encircled the innermost wire of the energized line (forming a ten-squareinch hole in the wall) and then continued building the wall above the energized power line! Where 

the wire passed through the wall, the wire was covered with an insulation-like material of a type 

normally used on water pipes in plumbing systems. The material provided no protection against 

the risk of electrocution posed by the power line. James Sal Herrara testified it was “more than 

likely” that one of Respondent’s employees placed it on the line. 

When LIPA representative Clarke arrived at the site on December 5, 2012, to his dismay,

he observed that the wall had been constructed around part of the live Fourth Street line. 

Concerned that his earlier warnings had been ignored and that Respondent would again resume 

work after he left, Clarke called the police to shut down the worksite. Clarke also issued a third 

cease-and-desist order to Solar, requiring that all work activity be stopped “immediately.” After 

LIPA referred the matter to OSHA, CO Calliari returned to the site on December 6. He observed 

that work had continued along the Fourth Street side of the building after the December 1 OSHA 

inspection and that part of the energized Fourth Street line was captured within the masonry wall. 

He also observed that the fall protection system erected along the north and east sides of the third 

floor was immediately adjacent to the Fourth Street power line. The CO re-opened his inspection, 

which resulted in the Secretary alleging additional violations, including the two willful citation 

items at issue here. At some time after December 6, 2012, Vordonia paid LIPA $70,000 to relocate 

the Fourth Street power line. 

 

8 This fall protection system consisted of cables that employees strung across metal stanchions 

they installed near the edge of the building. 
7

DISCUSSION

A. Duplicativeness 

Under Item 1, the Secretary alleges a violation of 29 C.F.R. § 1926.416(a)(1). This 

provision, which is part of OSHA’s construction electrical standards, provides:

No employer shall permit an employee to work in such proximity to any part of an 

electric power circuit that the employee could contact the electric power circuit in 

the course of work, unless the employee is protected against electric shock by 

deenergizing the circuit and grounding it or by guarding it effectively by insulation 

or other means.

The Secretary alleges four separate instances of employee proximity to the live Fourth Street 

power line: one of which occurred on December 3, 2012, during the installation of the fall 

protection system when the power line was about three feet above employees’ heads; the remaining 

three instances relate to the construction of the masonry block wall on December 4 and 5, 2012, 

when employees came within 4 to 14 inches of the power line. 

Under Item 2, the Secretary alleges a violation of 29 C.F.R. § 1926.1408(a)(2), for failing 

to determine if any part of the crane, load line, or load could get closer than 20 feet of an overhead 

power line. If the crane could get closer than 20 feet, employers have three options under the cited 

provision for compliance: de-energize and ground the power line; ensure that no part of the 

equipment, load line, or load (including rigging and lifting accessories) comes closer than 20 feet 

to the power line; or utilize a table in the provision to determine the minimum approach distance 

to the power line based on its voltage.9 29 C.F.R. § 1926.1408(a)(2)(i)-(iii). The Secretary alleges 

that this violation occurred on December 1, 2012, when Respondent did not comply with any of 

the cited provision’s three options and the crane came within approximately 8 feet of the energized 

Fourth Street power line.

10

Violations are duplicative where the abatement of one violation necessarily results in the 

abatement of the other. See Flint Eng’g & Constr. Co., 15 BNA OSHC 2052, 2056-57 (No. 90-

2873, 1992). The Commission has also found that violations are duplicative where they require 

 

9

In this case, the minimum approach distance utilizing the table would have been ten feet from

the Fourth Street power line, based on the power line having a capacity of 13.2 kV of electricity. 

See 29 C.F.R. § 1926.1408, Table A.

10 Our dissenting colleague repeatedly contends that Respondent failed to comply with the crane 

standard for many months. However, the Secretary limited the cited conduct for this alleged 

violation to one day; thus, any broader period of time of noncompliance has no relevance here.
8

the same abatement conduct, see J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2207 (No. 87-2059, 

1993); where they involve substantially the same violative conduct, see Cleveland Consol., Inc., 

13 BNA OSHC 1114, 1118 (No. 84-696, 1987); or where they involve the same abatement. E. 

Smalis Painting Co., 22 BNA OSHC 1553, 1561 (No. 94-1979, 2009) (citing Capform, Inc., 13 

BNA OSHC 2219, 2224 (No. 84-0556, 1989), aff’d, 901 F.2d 1112 (5th Cir. 1990)). Violations 

are not duplicative where they involve standards directed at fundamentally different conduct, J.A. 

Jones Constr., 15 BNA OSHC at 2207, or where the conditions giving rise to the violation are 

separate and distinct. H.H. Hall Constr. Co., 10 BNA OSHC 1042, 1046 (No. 76-4765, 1981). 

Here, the inquiry falls within the category of duplicative violations that may involve the same 

abatement.11 Capform, 13 BNA OSHC at 2224. 

In rejecting Respondent’s claim of duplicativeness, the judge found that the violations at 

issue addressed the same general hazard of electrocution but the conditions giving rise to the 

violations were separate and distinct. In considering whether the same abatement measure could 

abate both violations, the judge relied on Commission precedent regarding the multi-employer 

worksite defense to conclude that because Respondent lacked the authority or ability to relocate 

the Fourth Street power line, the company neither controlled nor created the conditions underlying 

the violations. See, e.g., Electric Smith, Inc. v. Sec’y of Labor, 666 F.2d 1297, 1298 (9th Cir. 

1982); Capform, Inc., 16 BNA OSHC 2040, 2041-42 (No. 91-1613, 1994). As a result of his 

 

11 While our dissenting colleague claims that our opinion “latches on to the line of cases that focus 

exclusively on abatement” without “acknowledging . . . conflicting precedent,” she ignores the 

evolution of our case law that has led to defining violations as duplicative solely in terms of 

abatement: “violations may be found duplicative where the standards cited require the same 

abatement measures, or where abatement of one citation item will necessarily result in the 

abatement of the other item as well.” Rawson Contractors, 20 BNA OSHC 1078, 1082 (No. 99-

0018, 2003); General Motors Corp., 22 BNA OSHC 1019, 1024 (No. 91-2834E & 91-2950, 2007; 

AKM LLC, 23 BNA OSHC 1414,1425 (No. 06-1990, 2011), vacated, 675 F.3d 752 (D.C. Cir. 

2012). Indeed, despite her attempt to portray the case law as lacking consistency, as she describes 

it in “Appendix A” to her dissenting opinion, our precedent has reached a common conclusion that 

violations are not duplicative when “abatement of one of the violative conditions . . . would not 

have abated the other violative condition.” Westar Mechanical, Inc., 19 BNA OSHC 1568, 1572

(No. 97-0226, 2001) (consolidated). Our opinion here today neither adds anything nor subtracts 

anything from this jurisprudence. However, our colleague’s dissenting opinion, which attempts to 

make a quagmire out of an orderly and fair test for determining duplicativeness, would read better 

in the pages of a law review than in the context of a judicial opinion. Further, our decision today 

better serves the regulated community than our colleague’s view, which if adopted by the 

Commission would be sure to create more uncertainty than answers.
9

finding, the judge rejected relocating the line as a method of abatement for purposes of analyzing 

duplicativeness; instead, he considered whether Respondent had “take[n] feasible alternative 

measures to protect its employees from the energized line.” See, e.g., Peterson Brothers Steel 

Erection Co. v. Sec’y of Labor, 26 F.3d 573, 579 (5th Cir. 1994); Seibel Modern Manufacturing 

& Welding Corp., 15 BNA OSHC 1218, 1228 (No. 88-821, 1991). With respect to the crane 

violation, the judge considered the two measures presented by the CO to Respondent while the 

Fourth Street power line remained energized: staging the planks in another area of the worksite or

keeping the crane a safe distance from the energized power line. With respect to the electrical 

violation, the judge stated that the violative condition could have been partially abated by staging 

the planks at another part of the project; however, abatement would also require halting 

construction of the wall. Since one of these measures alone could not have fully abated both 

violations, he concluded that the violations were not duplicative.

On review, Respondent claims that this was error because the hazardous condition for both 

items was the proximity of the overhead power line and the abatement for both items consisted of 

removing and relocating the power line. In response, the Secretary concedes that the violations 

were ultimately abated by removing and relocating the Fourth Street power line, but he contends, 

as the judge found, that because Respondent lacked the ability and authority to remove the line, 

this method of abatement is irrelevant to determining whether the violations were duplicative. The 

Secretary also echoes the judge’s conclusion that the abatement measures within Respondent’s 

control were separate and distinct for each citation item. 

We find that the judge, in considering the violations at issue, erred in limiting his 

consideration of what constituted abatement. Abatement is defined as “action by an employer to 

comply with a cited standard.” 29 C.F.R. § 1903.19(b)(1). Here, that action was removing and 

relocating the energized power line. This is the very measure the Secretary expressly concedes on 

review abated both violations.

12

 That Respondent itself could not implement this abatement in no 

 

12 Our dissenting colleague claims that “even if the power lines were relocated to the opposite side 

of Fourth Street, the crane’s boom would still have been able to come within 20 feet of the lines[.]” 

Given that there are no measurements or scaled drawings of the worksite in the record, there is no 

evidentiary basis for this conclusion. Furthermore, the Secretary’s concession that relocating the 

line would have abated both violations means the Secretary also concedes that the relocated line 

would have been beyond the 20-foot zone. The Secretary’s concession on this issue does not 

permit our colleague’s contrary conclusion. See Christian Legal Soc. Chapter of the University of 
10

way limits its assertion of duplicativeness or our analysis of the issue. Indeed, there is no precedent 

that restricts this defense to abatement methods the cited employer alone controls. Applying the 

judge’s rationale here would mean that only Vordonia, which was cited for the same violations 

under the same standards as Respondent, could claim duplicativeness on the basis of the single 

method the Secretary admits constituted abatement for both violations.13 Not only does logic defy 

that result, it would be patently unfair. 

Moreover, neither of the actions considered by the judge as “feasible alternative measures”

would have permitted Respondent to continue work along the Fourth Street side of the building 

while the energized line remained in place. The measures offered to Respondent by the CO were 

only available until the line was either de-energized (which the Secretary concedes was not 

feasible) or relocated. Like the CO, Solar also suggested that Respondent work on the “opposite 

side” of the building (along Rockaway Avenue), but he admitted that this was simply a way for 

Respondent’s employees to keep doing the installation work until the live power line was 

“resolved” (i.e., de-energized or relocated); in the end, working on the opposite side of the building 

was not a viable option because, as Solar explained, “the building need[ed] to come up as one, 

based on how the steel gets strapped in together and how the planks tie in.” Likewise, “staging” 

the planks in a different part of the worksite would only have delayed the installation work that 

had to be done along Fourth Street. To complete construction of each successive level of the 

building, the planks had to eventually be installed by the crane, including the area adjacent to 

Fourth Street. Not even moving the crane from its location on Brooklyn Avenue would have 

abated the crane violation because the crane’s load line and rigging still had to hoist planks to the 

work area in proximity to the energized power line. In short, none of these measures would have 

constituted abatement of the crane violation. 

 

California, Hastings College of Law v. Martinez, 561 U.S. 661, 677-8 (2010) (“[F]ormal 

concessions . . . have the effect of withdrawing a fact from issue and dispensing wholly with the 

need for proof of the fact. Thus, a judicial admission . . . is conclusive in the case.”). Our opinion 

today gives effect to the Secretary’s promulgated definition of what constitutes “abatement” and 

the Secretary’s concession herein; it does not seek to expand the Commission’s authority under 

the Act. 

13 Vordonia was cited for three violations, two of which were characterized as willful and alleged 

under the same provisions at issue here: §1926.416(a)(1) and § 1926.1408(a)(2). These citations 

(Docket No. 13-1167) were settled on December 19, 2014.
11

Abatement of the electrical violation was subject to the same constraint. Building the wall 

and setting the concrete planks for installation required Respondent’s employees to work adjacent 

to the energized Fourth Street power line—changes in the timing or, in the case of the planks, the 

location of the materials, would have merely delayed the inevitable proximity to the energized 

power line. Since the Fourth Street power line not only came within a few feet of this part of the 

project but actually crossed the plane of what was to be the building’s exterior wall, the only way 

for Respondent to comply with the cited electrical standard was to either de-energize or relocate 

the Fourth Street line. Since de-energization was not feasible, relocation of the line was again the 

only available abatement method. Therefore, we find that both violations could be abated by the 

same (and only) method.14

Based upon the foregoing, we conclude that these violations are duplicative.15 

Accordingly, we vacate the crane violation and affirm the electrical violation.16 See, e.g., E. Smalis 

 

14 Our dissenting colleague, while stating that our conclusion is not supported by Commission 

precedent, goes on to craft what would be new precedent by listing a “panoply of factors” 

previously not articulated under our case law that she would consider on the issue of 

duplicativeness. As previously noted, it appears that our colleague’s dissenting opinion embarks 

on an odyssey of policy, particularly given that her contentions venture beyond the parties’ 

arguments and stipulations. 

15 Our finding of duplicativeness should not be construed as a conclusion that condones the 

Respondent’s flagrant violations and course of conduct that flouts the requirements of the Act.

16 Our dissenting colleague states that by vacating the crane violation, we have “immunized the 

company from being cited for a repeat violation of the crane standard in the future” and that 

preventing OSHA from using this tool in a future enforcement action against this employer 

“undermines the most fundamental purpose of the Act.” We disagree. A violation is properly 

classified as repeated under section 17(a) of the Act if, at the time of the alleged repeated violation, 

there was a Commission final order against the same employer for a substantially similar violation. 

See, e.g., Jersey Steel Erectors, 16 BNA OSHC 1162, 1167-68, (No. 90-1307, 1993), aff’d without 

published opinion, 19 F.3d 643 (3rd Cir. 1994). Although the Secretary typically establishes a 

prima facie case of substantial similarity by showing that both violations are of the same standard, 

the Secretary may also show substantial similarity when violations are not of the same standard by 

presenting “evidence that the violations involve similar hazards.” Potlatch Corp., 7 BNA OSHC 

1061, 1063 (No. 16183, 1979). With the issuance of this decision, Respondent’s violation of 

§ 1926.416(a)(1) (the employee proximity standard) becomes a Commission final order against 

Respondent. Therefore, if Respondent is cited for a violation of § 1926.1408(a)(1) (the crane 

proximity standard) in the future, the Secretary could prove that the crane violation should be 

characterized as repeat by establishing that it involves a hazard similar to that of the previously 

affirmed § 1926.416(a)(1) violation—proximity to electrical power lines. 
12

Painting Co., 22 BNA OSHC at 1584 (vacating 20 out of 203 willful allegations as duplicative; 

affirming 51 willful allegations and assessing penalties; and vacating 132 willful allegations on 

other grounds); Manganas Painting Co., Inc., 21 BNA OSHC 1964, 1996 (No. 94-0588, 2007) 

(vacating 8 out of 28 willful allegations as duplicative; affirming 15 willful allegations and 

assessing penalties; and vacating 3 willful allegations on other grounds). 

B. Penalty

“In assessing penalties, section 17(j) of the OSH Act, 29 U.S.C. § 666(j), requires the 

Commission to give due consideration to the gravity of the violation and the employer’s size, 

history of violation, and good faith.” Burkes Mech., Inc., 21 BNA OSHC 2136, 2142 (No. 04-

0475, 2007). “Gravity is a principal factor in the penalty determination and is based on the number 

of employees exposed, duration of exposure, likelihood of injury, and precautions taken against 

injury.” Siemens Energy & Automation, Inc., 20 BNA OSHC 2196, 2201 (No. 00-1052, 2005)

(citation omitted). 

Here, the Secretary proposed a penalty of $61,600 for each willful violation. In assessing 

the proposed penalty amounts, the judge relied on testimony from the CO that the severity was 

“high” because, given the voltages involved, death or serious physical injury was likely to result.17 

The CO rated the probability of an accident occurring as “greater,” based on the number of 

employees exposed and the duration of exposure. As a result, the CO considered the overall 

gravity to be “high,” resulting in a gravity-based penalty of $70,000 for each violation. This 

amount was then reduced by 20 percent based on MSI’s size (51 employees) and the resulting 

amount was increased by 10 percent based on MSI’s prior violation history—the CO testified that 

since 2000, MSI has been inspected 28 times and issued 96 citations, including multiple citations 

 

Moreover, a future citation involving the hazards identified in this case might also be characterized 

as willful. Given the company’s record of prior citations, along with the item affirmed here, the 

Secretary would certainly be able to show that Respondent was well aware of the requirements of 

both proximity standards. Falcon Steel Co., 16 BNA OSHC 1179, 1188 (No. 89-2883 & 89-3444, 

1993). Furthermore, indifference as well as disregard would presumably exist if, for example, the 

company made a conscious decision not to comply with the Act for economic reasons, as it did in 

this case. Id.

17 The judge also specifically rejected Respondent’s argument that assessing the proposed penalty 

amounts would cripple it, finding that Respondent “introduced no financial statements to support 

its contention . . . [and] [i]n any event, financial hardship . . . is not a statutory criterion for 

determining the appropriateness of a penalty.” 
13

for serious and repeat violations, all of which were settled. Given that the inspections in this case 

resulted in citations for serious, repeat, and willful violations, Respondent was given no credit for 

good faith. 

We agree that the gravity of the electrical violation was high and under the circumstances 

present in this case, accord that factor more weight than the other penalty factors. Natkin & Co. 

Mech. Contractors, 1 BNA OSHC 1204, 1205 n.3 (No. 401, 1973) (“Gravity, unlike good faith, 

compliance history and size, is relevant only to the violation being considered in a case and 

therefore is usually of greater significance. The other factors are concerned with the employer 

generally and are considered as modifying factors.”); see also E.R. Zeiler Excavating, Inc., 24 

BNA OSHC 2050, 2057 (No. 10-0610, 2014); E. Smalis Painting Co., Inc., 22 BNA OSHC at 

1582; Capform, Inc., 19 BNA OSHC 1374, 1378 (No. 99-0322, 2001), aff’d, 34 F. App’x 152 (5th 

Cir. 2002) (unpublished); Caterpillar, Inc., 17 BNA OSHC 1731, 1734 (No. 93-373, 1996), aff’d

122 F.3d 437 (7th Cir., 1997); Valdak Corp., 17 BNA OSHC 1135,1138 (No. 93-0239, 1995), 

aff’d 73 F. 3d 1466 (8th Cir., 1996); Trinity Indus., Inc., 15 BNA OSHC 1481, 1483 (No. 88-2691, 

1992). In addition, we see no reason to adjust the penalty for either size or prior history. 

Specifically, any reduction that might be considered for size is offset by the evidence of a 

substantial prior citation history. Finally, for the same reasons identified by the CO, a reduction 

for good faith is not warranted. Therefore, we find that a penalty of $70,000 is appropriate. 

ORDER

We vacate Willful Citation 2, Item 2, affirm Willful Citation 2, Item 1, and assess a penalty 

of $70,000.

SO ORDERED.

/s/

Heather L. MacDougall

Chairman

/s/

James J. Sullivan, Jr.

Dated: February 28, 2018 Commissioner
14

ATTWOOD, Commissioner, dissenting:

Because I have concluded that, in the circumstances of this case, the Commission lacks 

authority to vacate either of the proven willful citation items on the grounds that they are 

duplicative, I dissent. 

BACKGROUND

The facts of this case are chilling—and, at this stage of the proceeding, largely undisputed.1 

Respondent was the masonry subcontractor on a construction project located at the corner of 

Brooklyn Avenue and Fourth Street in Valley Stream, New York. Over a four-month period, from 

July until early December 2012, Respondent periodically operated a crane within mere feet of 

energized power lines in flagrant violation of OSHA’s crane standard, exposing employees to an 

 

1 The “chilling” nature of this case relates to the fact that many human lives were put at grave risk 

due to Respondent’s egregious violation of two separate safety regulations at the worksite. The 

majority’s failure to understand the importance of this fact speaks for itself.
15

electrocution hazard.2 And on three days in December, Respondent also exposed a number of its 

employees to an electrocution hazard in violation of the proximity to electrical power circuits’ 

standard. 

The relevant facts begin in the spring of 2012. In May, a representative of the Long Island 

Power Authority (LIPA) informed the general contractor, Vordonia Contracting & Supplies 

Corp./Alma Realty Corporation, that it must have the power lines along Brooklyn Avenue deenergized before it commenced work in proximity to those lines. He also informed Vordonia that 

the Fourth Street power lines could not be de-energized and would have to be relocated if work 

were to be conducted near those lines. Apparently because of cost considerations, Vordonia—

with the full knowledge of Respondent—did not have the lines de-energized (Brooklyn Avenue)

or moved (Fourth Street) prior to beginning construction. 

 

2 This is the unscaled depiction of the worksite contained in DOL Exhibit 26a.
16

In July, a LIPA representative observed Respondent operating a crane (which was then 

situated on Brooklyn Avenue) within 10 feet of the energized Brooklyn Avenue power lines and 

issued a cease-and-desist order requiring that the Brooklyn lines be de-energized before work 

proceeded. Sometime thereafter Vordonia paid to have a section of the Brooklyn Avenue power 

lines de-energized. Inexplicably, however, Respondent relocated the crane to the Fourth Street 

side of the project, which also had energized power lines, and proceeded to lift materials over the 

Fourth Street lines. This action resulted in LIPA issuing Respondent a second cease-and-desist 

order on August 23rd, barring it from using the crane within 10 feet of the energized Fourth Street 

lines. On the same date, because the Brooklyn Avenue power lines had been de-energized, LIPA 

lifted the July cease-and-desist order, thus allowing Respondent to return the crane to its previous 

Brooklyn Avenue location.3 

On December 1st, two OSHA compliance officers initiated an inspection of the 

construction site, where Respondent was in the process of using the crane to hoist precast concrete 

floor planks to be installed on the third floor of the project. The COs observed that Respondent 

was lifting the concrete planks over the (de-energized) Brooklyn Avenue lines and bringing them 

within 8 feet of the (energized) Fourth Street lines before setting them down. Photographic 

evidence shows employees placing their hands on the load to guide it as it was lowered into place. 

The COs informed Respondent’s superintendent/foreman that the Fourth Street lines posed an 

imminent danger to employees and asked that Respondent cease operation of the crane and remove 

all employees working in dangerous proximity to the lines. The COs then proceeded to inspect 

the site, which resulted in the issuance of citations for several violations, including the crane 

violation at issue here.4 Respondent’s owner assured the COs that the crane would not lower any 

 

3 Therefore the parties’ stipulation that the Brooklyn Avenue lines were de-energized in September 

2012 cannot be accurate.

4 The citation, as amended, provides:

29 C.F.R. 1926.1408(a)(2): The employer, where any part of the equipment, load 

line, or load (including rigging and lifting accessories), if operated up to the 

equipment’s maximum working radius in the work zone, could get closer than 20 

feet to a power line, failed to meet the requirements in Option (1), Option (2), or 

Option (3) of this section:

(a) Worksite, east side of building, third floor – Employees hoisted and 

set precast concrete floor planks with a Liebherr Mobile Crane . . . 
17

more planks near the Fourth Street lines but would work elsewhere on the project. However, after 

the COs left the site, Respondent continued to lift and place planks progressively closer to the 

northeast corner of the building and the Fourth Street power lines, one of which, because the 

supporting power pole located at the corner was out of plumb, ran directly over the northeast corner 

of the building. 

Between OSHA’s visit on December 1st and December 5th, Respondent completed laying 

the floor planks for the third floor along the Fourth Street side of the building and started building 

a masonry block wall along the northeast corner where Brooklyn Avenue intersected Fourth Street. 

Incredibly, when the height of the wall exceeded the height of the Fourth Street power lines, 

Respondent’s employees merely covered a portion of the energized line that intersected the wall 

with the type of insulation plumbers use to protect water lines from the cold and, creating a 5-by5 inch hole in the wall, built the wall around the intruding energized power line! Respondent’s 

employees also installed a fall protection system along the Fourth Street side of the building, which 

again required coming within inches of the energized power lines.

On December 5th, a LIPA representative arrived at the site and discovered the energized 

Fourth Street power line running through the wall of the building. Shocked by what he saw, and 

concerned that Respondent would resume work after he left the site, he called the police to shut 

down the project.5 He also issued a third cease-and-desist order to the general contractor requiring 

that it “MUST IMMEDIATELY CEASE AND DESIST ALL WORK ACTIVITY.” In addition, 

he referred the matter to OSHA, and an OSHA CO returned on December 6th and continued the 

inspection begun on December 1st. As a result, OSHA issued a second set of violations to 

Respondent, including the other willful violation at issue in this case, which alleged that on 

 

where the rigging came within approximately 8 feet of the overhead 

primary and secondary power lines operating up to 13,200 volts (13 

Kv) phase to phase, on or about 12/1/12. The employer did not 

confirm that the powerlines had been deenergized and visibly 

grounded at the worksite; nor did the employer follow the 

requirements of 29 CRF 1926.1408(b) to ensure that either 20 foot 

clearance or applicable minimum approach distance was maintained 

from the power lines.

5 One LIPA representative testified that he “had never seen anything so horrendous” in his life.
18

December 3rd, 4th, and 5th employees on the third floor were working variously within 3 feet, 12 

inches, 14 inches, and 4 inches of the energized Fourth Street power lines.

DISCUSSION

Review in this case is limited to a single issue: whether the crane violation and proximity 

to electrical power circuits violation, both of which the judge affirmed as willful, are duplicative 

of each other.6 The majority concludes that because in the circumstances of this case the two 

violations could only have been abated by the same action—relocating the Fourth Street lines 

across the street from the construction project—the violations are duplicative and one must be 

vacated.7 

I disagree with the majority’s conclusion for two principal reasons. First, their opinion 

does not confront the Commission’s confusing and conflicting precedent on this issue. As a result, 

the majority analyzes whether the violations are duplicative using a framework that lacks a sound 

legal foundation. Second, given the only legal foundation upon which the duplicativeness doctrine 

must rest, the majority, in vacating one of these proven violations on duplicativeness grounds, 

exceeds the Commission’s limited authority under the Act—a statute that vests the Secretary, not 

the Commission, with the type of prosecutorial discretion that is really at issue here.8

 

6

I note that unlike the majority, the discussion throughout my dissent is not tailored to “better 

serve[] the regulated community,” but is instead properly focused on upholding Commission 

precedent and effectuating the principal purpose of the Act. See 29 U.S.C. § 651(b) (“The 

Congress declares it to be the purpose and policy . . . to assure so far as possible every working 

man and woman in the Nation safe and healthful working conditions . . . .”).

7 The Secretary has conceded that relocating the power lines would have abated both violations. 

But a close examination of the record evidence reveals that relocating the power lines could not 

possibly have abated the crane violation. This is because even if the power lines were relocated 

to the opposite side of Fourth Street, the crane’s 240-foot boom would obviously still have been 

able to come within 20 feet of the lines, and thus Respondent would have been required to take 

additional actions under the standard beyond relocating the lines before it began crane operations 

at the worksite. See 29 C.F.R. § 1926.1408(a)(2). Despite the majority’s assertion to the contrary, 

I acknowledge the Secretary’s concession and assume for purposes of my analysis that relocating 

the power lines would have actually abated both violations. 

8 Though cited only for its conduct over three days in December, it cannot be ignored that over a 

period of many months, until LIPA had the police shut down the site, Respondent had used the 

crane in close proximity to energized powerlines and therefore exposed numerous employees to 

an electrocution hazard. Indeed, had Respondent taken action on December 1st to protect the 

employees exposed to electrocution as a result of the crane violation, the employees working along 
19

I. Commission Precedent

Let there be no doubt: the majority’s decision to vacate the crane standard violation as 

duplicative of the proximity to electrical power circuits standard violation is without precedent, 

and if followed, would vastly expand the reach of the duplicativeness doctrine. As the following 

analysis demonstrates, Commission precedent provides no rational justification for finding 

duplicativeness here.

As early as 1974, the Commission analyzed whether two violations of closely related 

standards were duplicative of each other. Koppers Co., Inc., 2 BNA OSHC 1354, 1354-55 (No. 

3449, 1974) (finding violations of two standards related to respiratory protection not duplicative 

because allegations were made with respect to different individuals and on different bases). 

However, in the ensuing years, the Commission has neither articulated the source of its authority 

to vacate a violation as duplicative nor been consistent in its approach to potentially duplicative 

citations. In some decisions, the Commission has framed its analysis purely in terms of 

abatement—finding that violations were duplicative because abatement of one necessarily abated 

the other. E. Smalis Painting Co., 22 BNA OSHC 1553, 1561 (No. 94-1979, 2009); Manganas 

Painting Co., Inc., 21 BNA OSHC 1964, 1976 (No. 94-0588, 2007); Capform, Inc., 13 BNA 

OSHC 2219, 2224 (No. 84-0556, 1989).9 In other cases, the Commission largely ignored 

abatement, but found the violations were duplicative because the standards regulated substantially 

the same violative conduct. Lee Way Motor Freight, Inc., 4 BNA OSHC 1968, 1970 (No. 10699, 

1977); Alpha Poster Serv., Inc., 4 BNA OSHC 1883, 1884-85 (No. 7869, 1976); Safeway Stores, 

Inc., 2 BNA OSHC 1439, 1440 (No. 454, 1974) (consolidated), vacated on reconsideration on 

other grounds, 3 BNA OSHC 1123 (1975). And, in yet another line of cases, the Commission has 

found that abatement of one violation would abate the other violation, but nonetheless concluded 

that the violations were not duplicative because either the standards addressed fundamentally 

different conduct or because the Secretary had the authority under section 5(a)(2) of the Act to cite 

 

the Fourth Street side of the building on December 3rd-5th would not have been exposed to the 

hazard. It is Respondent’s inaction regarding the crane violation that led inextricably to the 

proximity to power circuit violation.

9 To avoid cluttering this opinion with lengthy footnotes describing the specific circumstances of 

each Commission decision that discusses the duplicativeness issue, I have attached as “Appendix 

A” a chart of all of those decisions, together with brief descriptions of the duplicativeness issues 

addressed in each. 
20

both violations notwithstanding that abatement was the same. H.H. Hall Constr. Co., 10 BNA 

OSHC 1042, 1046 (No. 76-4765, 1981); Wright & Lopez, Inc., 10 BNA OSHC 1108, 1112 (No. 

76-256, 1981); Dec-Tam Corp., 15 BNA OSHC 2072, 2085-86 (No. 88-523, 1993); Burkes Mech., 

Inc., 21 BNA OSHC 2136 (No. 04-475, 2007); see also Hoffman Constr. Co., 6 BNA OSHC 1274, 

1275 (No. 4182, 1978).10

Three decisions dramatically illustrate the Commission’s historical failure to engage in a 

rigorous analysis of the duplicativeness issue. In Stimson Contracting Co., 5 BNA OSHC 1176, 

1178 (No. 13812, 1977), the employer was cited for exposing its employees to a trench that was 

not properly shored, sheeted, braced, sloped, or otherwise supported in violation of 29 C.F.R. 

§ 1926.652(b), and for failing to sheet-pile, shore, or brace the trench to resist extra pressure due 

to a superimposed load caused by heavy equipment located near the trench, in violation of 29 

C.F.R. § 1926.651(q). Two Commissioners held that, because § 1926.651(q) requires shoring, 

sheeting, bracing, or sloping precautions that go beyond those required by § 1926.652(b), when 

both standards are cited regarding the same trench, compliance with § 1926.651(q) presupposes 

compliance with § 1926.652(b). The Commission held that “[w]hen both standards are violated 

the failure to comply with § 1926.652(b) is included within the violation of 29 C.F.R. 

§1926.651(q). Citing an employer [for] noncompliance with both standards is, therefore, 

duplicative.” Stimson, 5 BNA OSHC at 1178. The Commission therefore vacated the item 

alleging noncompliance with §1926.652(b). 

Four years later, the Commission overruled Stimson in H.H. Hall, 10 BNA OSHC at 1046, 

which involved the same fact pattern as Stimson and violations of the same two standards. The 

Commission overruled Stimson “to the extent that it requires the Commission to vacate a citation 

or an item of a citation on the grounds that one violation is included within another cited violation”:

Although a worksite condition may violate more than one standard, section 5(a)(2) 

of the Act requires an employer to comply with all standards applicable to a 

hazardous condition even though the abatement requirements of two applicable 

standards may be satisfied by compliance with the more comprehensive standard. 

Thus, there is no unfair burden imposed on an employer when the same or closely 

related conditions are the subject of more than one citation item and a single action 

may bring an employer into compliance with the cited standards. . . . Despite the 

 

10 In what might be considered a fourth line of cases, the Commission has analyzed abatement as 

a means of determining whether the standards at issue were aimed at fundamentally different 

conduct. Cleveland Consol., Inc., 13 BNA OSHC 1114, 1118 (No. 84-696, 1987); J.A. Jones

Constr. Co., 15 BNA OSHC 2201, 2207-08 (No. 87-2059, 1993).
21

fact that the violations alleged in this case, operation of heavy equipment near an 

excavation and improper support of trench walls, result in the same general 

hazard—collapse or cave-in—the conditions giving rise to the violations are 

separate and distinct. Accordingly, we conclude that Hall’s simultaneous 

noncompliance with two standards is not necessarily duplicative. 

H.H. Hall, 10 BNA OSHC at 1046.11

In 1989, the Commission, for the third time, faced a fact pattern identical to Stimson and 

H.H. Hall and violations of nearly identical standards. Capform, 13 BNA OSHC at 2219. 

Capform’s employees were working in a 25- to 30-foot deep excavation, while a 100-ton crane 

was positioned at the top of the unshored side of the excavation. That side collapsed, killing one 

employee. Capform was cited under §1926.651(c)12 for not guarding the unshored wall and under 

§1926.651(q) for not protecting the excavation from the extra pressure exerted on it by the crane. 

Although the Commission relied on H.H. Hall for the proposition that §1926.651(q) does not 

require additional proof that the presence of the crane actually created extra pressure, it ignored 

the unmistakable holding in that case when it came to ruling on the duplicativeness question. 

Using language reminiscent of the overruled part of Stimson, the Commission held: “If Capform 

had complied with section 1926.651(q) by sheet-piling, shoring, or bracing the wall, Capform 

would also necessarily have been in compliance with the less stringent requirements of section 

1926.651(c).” Capform, 13 BNA OSHC at 2224. The Commission therefore vacated the 

§ 1926.651(c) violation as duplicative. 

 

11 The Commission stated, however, that it “has wide discretion in the assessment of penalties for 

distinct but potentially overlapping violations and it is appropriate to assess a single penalty for 

overlapping violations as the Commission has done in the past.” H.H. Hall, 10 BNA OSHC at 

1046. See footnote 22 for my discussion of grouping for penalty purposes.

12 Section 1926.651(c), which applied to “excavations,” was similar to 29 C.F.R. § 1926.652(b) 

(cited in Stimson and H.H. Hall), which applied to “trenches”—a specific type of excavation. 
22

Although many subsequent decisions have cited H.H. Hall,

13 and a few have cited 

Capform,

14 no Commission decision has attempted to reconcile the two cases. Thus, if it were not 

irrational to assume so, one might think that both cases are good law, and the same two violations 

of nearly identical sets of standards are either duplicative because compliance with one standard 

“would also necessarily [be] compliance with the less stringent standard,” Capform, 13 BNA 

OSHC at 2224, or not duplicative because “the conditions giving rise to the violations are separate 

and distinct.” H.H. Hall, 10 BNA OSHC at 1046. The Commission’s decision in Flint 

Engineering & Construction, 15 BNA OSHC 2052 (No. 90-2873, 1992), as well as the majority’s 

opinion here, would appear to support this result by citing both cases. Thus, in Flint the 

Commission stated, with no apparent sense of irony:

In H.H. Hall . . . the Commission held that the fact that [non]compliance with two 

standards resulted in the same general hazard does not render them duplicative. In 

Capform . . . the Commission vacated one of the two citations under the former 

 

13 Wright & Lopez, Inc., 10 BNA OSHC 1108, 1112 (No. 76-256, 1981); R&R Builders Inc., 15 

BNA OSHC 1383, 1391-92 (1991) (quoting duplicativeness discussion in “leading case” H.H. 

Hall, but distinguishing it in assessing separate penalties for two citation items that require 

different forms of abatement “and use of one form does not necessarily provide complete 

abatement in the circumstances”); Dec-Tam Corp., 15 BNA OSHC 2072, 2086 (No. 88-0523, 

1993) (quoting H.H. Hall and affirming separate but related violations and assessing combined 

penalty); A.J. Baumgartner Const., 16 BNA OSHC 1995, 1998 (No. 92-1022, 1994) (noting that 

under H.H. Hall “the Commission is not required to vacate duplicative items,” finding separate 

violations of the same standard, and assessing separate penalties); S.A. Healy, 17 BNA OSHC 

1145, 1158 (No. 89-1508, 1995) (directing judge on remand to determine whether two citation 

items that both allege a “non-approved light fixture at segment 479” are “in fact duplicative as 

they appear to be and if so, he shall make an appropriate disposition to ensure that a double penalty 

is not assessed for a single instance of violation.”); Andrew Catapano Enters., 17 BNA OSHC 

1776, 1786 n.20 (No. 90-0050,1996) (consolidated) (distinguishing H.H. Hall regarding grouping 

for penalty purposes and assessing separate penalties for each cited violation); The Halmar Corp., 

18 BNA OSHC 1014, 1019 (No. 94-2043, 1997) (citing H.H. Hall for proposition that “there is no 

requirement to group penalties even when closely related conditions are the subject of more than 

one citation item and a single action may bring an employer into compliance with the cited 

standards.”); Burkes Mech., Inc., 21 BNA OSHC 2136, 2142 (No. 04-0475, 2007) (citing H.H. 

Hall for proposition that “items [are] not duplicative even though the abatement requirements of 

two applicable standards may be satisfied by compliance with more comprehensive standard”).

14 Trinity Indus., 20 BNA OSHC 1051, 1064 (No. 95-1597, 2003) aff’d, 107 F. App’x 387 (5th 

Cir. 2004) (unpublished) (citing Capform for proposition that citations are duplicative when they 

involve substantially same violative conduct and require same means of abatement); MJP Constr. 

Co., 19 BNA OSHC 1638, 1647 (No. 98-0502, 2001) aff’d, 56 F. App’x 1 (D.C. Cir. 2003) 

(unpublished) (distinguishing Capform).
23

trench standards since compliance with one necessarily resulted in compliance with 

the other.

Flint, 15 BNA OSHC at 2057. 

Without acknowledging this conflicting precedent and the Commission’s historical failure 

to engage in reasoned or consistent analysis of the duplicativeness issue, the majority latches on 

to the line of cases that focus exclusively on abatement and proclaims that is the framework that 

applies here.15 I disagree. Although the Commission’s approach to potentially duplicative 

violations has been inconsistent, the circumstances underlying every case in which duplicativeness 

has been found (as well as the cases in which duplicativeness has been rejected) point to the 

relevance of factors in addition to abatement, even in those cases in which the Commission 

discussed nothing else. Thus, in every case in which the Commission has found violations to be 

duplicative, the standards at issue were closely related, usually sister-standards (i.e., subprovisions of the same parent standard), and regulated the same or very similar workplace 

conditions and conduct. See Alpha Poster Serv., 4 BNA OSHC at 1884-85; Lee Way Motor 

Freight, 4 BNA OSHC at 1970; Stimson, 5 BNA OSHC at 1178; U.S. Steel, 10 BNA OSHC 2123, 

 

15 The majority argues that my discussion of Commission precedent analyzes issues “not raised or 

briefed by either party.” This, frankly, is nonsense. The Secretary argued the following in his 

brief before the Commission: 

Gen. Motors [22 BNA OSHC 1019, 1024 (Nos. 91-2834, 2007] is in tension with the Hall 

– Dec Tam line of cases, which holds that violations arising from separate and distinct 

conditions are not duplicative, even if they could have been cured by the same abatement 

measures. The Commission need not resolve this tension to decide this case since the 

willful violations are not duplicative under either the same violative conditions or the same 

abatement test. To the extent that the Commission must choose between these conflicting 

precedents, the Hall – Dec Tam line of cases should prevail since it is based on the statutory 

requirement in the specific duty clause that employers shall comply with all applicable 

OSHA standards. 29 U.S.C. § 654(a)(2); Hall, 10 BNA OSHC at 1046. 

Moreover, my discussion below of the Commission’s authority to vacate a citation on 

duplicativeness grounds is an issue that is always before the Commission. This is because 

administrative agencies, like the Commission, possess only those powers conferred upon them by 

statute. See Soriano v. United States, 494 F.2d 681, 683 (9th Cir. 1974) (“[A]n administrative 

agency is a creature of statute, having only those powers expressly granted to it by Congress or 

included by necessary implication from the Congressional grant.”). Thus, the absence of objection 

by the Secretary cannot possibly serve as authorization to vacate either of the citations in this case 

on duplicativeness grounds.
24

2131-33 (No. 77-3378, 1982); Cleveland Consol., 13 BNA OSHC at 1118; Capform, 13 BNA 

OSHC at 2224; Trinity Indus., 20 BNA OSHC 1051, 1064 (No. 95-1597, 2003); Manganas, 21 

BNA OSHC at 1964; E. Smalis, 22 BNA OSHC at 1561. See Appendix A. Therefore, the 

Commission has never, before today, found that two violations of separate and distinct standards—

that regulate completely different workplace conduct—are duplicative solely because they could 

have been abated by the same action. 

The majority’s proclamation that the inquiry here “falls within the category of duplicative 

violations that may involve the same abatement” vastly expands upon the very limited 

circumstances in which the Commission has previously found violations to be duplicative. Put 

simply, abatement may be relevant to the inquiry, but many Commission cases show that 

abatement alone does not dictate the outcome. See Trinity, 20 BNA OSHC at 1064 (violations 

duplicative where they involve substantially same violative conduct and require the same means 

of abatement); see also H.H. Hall, 10 BNA OSHC at 1046 (employer’s “simultaneous 

noncompliance” with two related standards “not necessarily duplicative” where “conditions giving 

rise to the violations are separate and distinct”); Hoffman, 6 BNA OSHC at 1275 (separate citations 

affirmed where violations involved two separate scaffolds); Koppers, 2 BNA OSHC at 1354-55 

(separate citations appropriate where they involve “different factual situations”).16 As I discuss in 

 

16

 The majority, in an attempt to counter my argument that Commission case law on this issue is 

conflicting and confusing, states that “our precedent has reached a common conclusion that 

violations are not duplicative when “abatement of one of the violative conditions . . . would not 

have abated the other violative condition” and cites to Westar Mechanical, Inc., 19 BNA OSHC 

at 1572. This selective quotation, however, fails to acknowledge the Commission’s full analysis 

of all the facts it relied on to reach its conclusion that two citations for violation of the very same 

standard were not duplicative. The Commission’s full analysis is as follows:

Although . . . the excavations here were not “entirely different and separate,” we 

conclude that there were sufficient distinctions between the two alleged violations 

of section 1926.652(a)(1) to warrant the conclusion that the Secretary acted within 

the scope of her discretion in treating them as separate violations of the standard 

and of the Act . . . . Essentially, the distinctions we rely on are . . . the excavation 

at issue in [one citation] and the trench at issue in [the other citation] had been dug 

on two separate days in two different locations; with some relatively minor 

exceptions, the excavation had been backfilled and that operation had been 

completed before digging of the trench began; and, again with relatively minor 

exceptions, the work and the work environment differed significantly on July 16 

and July 17 (digging a rectangular excavation and installing a manhole in it, as 

compared to digging a long, narrow trench and laying and connecting piping in it). 
25

detail below, the two violations at issue here arise out of entirely different conditions and involve 

such different factual situations that to vacate one on duplicativeness grounds constitutes plain 

error. 

In the first item, the Secretary cites Respondent for willfully violating § 1926.416(a)(1) by 

allowing employees to work in close proximity to energized power lines. Section 1926.416(a)(1) 

is located in “Subpart K—Electrical,” which contains the “electrical safety requirements that are 

necessary for the practical safeguarding of employees involved in construction work.” The 

standard states:

No employer shall permit an employee to work in such proximity to any part of an 

electric power circuit that the employee could contact the electric power circuit in 

the course of work, unless the employee is protected against electric shock by 

deenergizing the circuit and grounding it or by guarding it effectively by insulation 

or other means.

Thus, the standard regulates the conditions associated with employee proximity to energized 

electrical circuits at construction worksites.

In the second item, the Secretary cites Respondent for willfully violating 

§ 1926.1408(a)(2), which is located in an entirely separate subpart of the C.F.R., “Subpart CC—

Cranes and Derricks in Construction,” and applies to equipment, specifically “power operated 

equipment, when used in construction, that can hoist, lower and horizontally move a suspended 

load.” The standard requires that “[b]efore beginning equipment operations, the employer must”:

Determine if any part of the equipment, load line or load (including rigging and 

lifting accessories), if operated up to the equipment’s maximum working radius in 

the work zone could get closer than 20 feet to a power line. If so, the employer 

must meet the requirements in Option (1), Option (2), or Option (3) in this 

section . . . .

 

In addition, as emphasized by the Secretary in her arguments on review, abatement 

of the cave-in hazard that existed in the excavation on July 16 would not have 

abated the cave-in hazard that existed in the trench on July 17. Under these 

circumstances, we conclude that the two contested citations clearly “do not involve 

‘the same offense . . . and that the Secretary accordingly acted within the scope of 

her authority in issuing them.

Westar Mechanical, 19 BNA OSHC at 1572 (citations omitted). Differences in the work being 

performed, in the work environment, and in the days on which the violations occurred are a few 

of the “panoply of factors” that I cite and which the majority criticizes. 
26

The standard then lists the options.17 Thus, this standard regulates the conditions associated with 

operation of a crane in proximity to energized power lines and sets out a number of steps that an 

employer must take before crane operations begin and while they continue. 

There is simply no way to read these two standards as substitutes for one another.18 Section 

1926.1408(a)(2) requires proactive action by employers “before” the work begins—thus a 

violation occurs when, prior to beginning work, an employer fails to determine whether any part 

of a crane could come within 20 feet of a power line.19 And where an employer does determine 

that part of a crane can come within 20 feet of a power line, it is required to comply with one of 

the standard’s three options, each of which impose additional obligations and duties on the 

employer. Section 1926.416(a)(1), on the other hand, requires no proactive steps before work 

begins and provides a relatively simple instruction: ensure that employees cannot contact 

energized electrical circuits during the course of their work. 

Beyond the obvious differences between the requirements of the cited standards, there are 

two other significant ways in which these proven violations do not duplicate each other. First is 

the manner in which the violations occurred. In all the Commission cases in which citations were 

found duplicative, the violations occurred at the same time. See Appendix A. Here, however, the 

violative conditions existed on different days and in different areas of the worksite. The violations 

of § 1926.416(a)(1) occurred on December 3rd, 4th, and 5th, whereas the violation of 

§ 1926.1408(a)(2) occurred “on or about” December 1st. Because, as the photographic evidence 

 

17 The full text of the standard can be found in Appendix B to this opinion.

18 In all the cases cited by the majority, compliance with one of the cited standards would also 

ordinarily presuppose or substitute for compliance with the other cited standard. See E. Smalis, 22 

BNA OSHC at 1561; J.A. Jones, 15 BNA OSHC at 2207; Flint, 15 BNA OSHC at 2056-57; 

Capform, 13 BNA OSHC at 2224; Cleveland Consol., 13 BNA OSHC at 1118; H.H. Hall, 10 

BNA OSHC at 1046. As discussed below, however, it is clear from the terms of the standards at 

issue here that compliance with one would not ordinarily presuppose or substitute for compliance 

with the other.

19 As the record in this case establishes, Respondent violated this standard beginning at least as 

early as July 2012, when LIPA issued its first cease-and-desist order regarding Respondent’s 

operation of the crane in close proximity to the energized Brooklyn Avenue power lines. The 

record does not establish just how many days thereafter Respondent was in violation of the crane 

standard, but it was in violation when, in August 2012, LIPA issued another cease-and-desist order 

regarding Respondent’s operation of the crane in close proximity to the energized Fourth Street 

lines, and again on December 1, 2012, when OSHA began its inspection. 
27

establishes, Respondent had not even begun to construct the masonry wall on the northeast corner 

of the third floor on December 1st, the violation of § 1926.416(a)(1) did not even exist when the 

violation of § 1926.1408(a)(2) occurred. Second, not all of the same employees were exposed to 

both violations. The violation of § 1926.416(a)(1) exposed only those employees installing the 

fall protection system or constructing the building’s north wall, whereas the violation of 

§ 1926.1408(a)(2) exposed every employee working in proximity to the crane, including the crane 

operator and those employees guiding the crane’s loads. 

The Commission has made clear that, where violations occur on different dates and in 

different locations, or expose different employees to the violative conditions, the Secretary may 

issue a separate citation for each violation. MJP Constr. Co., 19 BNA OSHC 1638, 1647 (No. 98-

0502, 2001), aff’d, 56 F. App’x 1 (D.C. Cir. 2003) (unpublished) (holding that the Secretary may 

appropriately cite separate violations of the same standard where each individual instance occurred 

on separate dates, times, and locations); Westar Mech., Inc., 19 BNA OSHC 1568, 1572 (No. 97-

0226, 2001) (consolidated) (finding “sufficient distinctions between the two alleged violations” to 

“warrant the conclusion that the Secretary acted within the scope of her discretion in treating them 

as separate violations of the [same] standard and of the Act”); Andrew Catapano Enters., 17 BNA 

OSHC 1776, 1786 n.20 (No. 90-0050,1996) (consolidated) (distinguishing “multiple-prosecution 

cases” relied upon by Catapano because they involved a respondent being tried more than once for 

what courts found to be “the same offense”); Hoffman, 6 BNA OSHC at 1275-76 (finding it within 

Secretary’s discretion as prosecutor under Act to cite separate violations of the same standard 

where conditions occurred at separate parts of worksite); J.A. Jones, 15 BNA OSHC at 2207 

(affirming separate violations of standard where judge found violations on different floors and at 

different locations on floors). If, as the Commission has held, the Secretary may cite employers 

for violations of the same standard when the violative conduct occurs on separate dates or 

locations, or when the conduct exposes different employees to a hazard, it seems a forgone 

conclusion that the Secretary may also cite Respondent for violating two different standards on 

different dates, in different locations, and exposing different employees to an electrocution hazard. 

In sum, contrary to the majority’s assertion, their holding today is not supported by 

Commission precedent. The Commission has never held that two willful violations of separate 

and distinct standards aimed at different conduct, that occurred on different dates, and exposed 
28

employees working in entirely different circumstances, are duplicative solely because they could 

only have been abated by the same action. 

II. Commission Authority

Today the majority votes to vacate a proven willful citation item. As I have argued above, 

it does so based on its application of an unsupported, inconsistently applied, and thus 

fundamentally incoherent theory—that, because abatement of the two citation items would have 

been the same, those citation items necessarily duplicate each other. Although I do not quarrel 

with the assertion that in appropriate circumstances—which do not exist here—the Commission 

may vacate “duplicative” citations, I conclude that it can do so only when to affirm both citations 

would violate due process.20 In the absence of a showing that substantive due process rights have 

been violated, the Secretary’s broad power of prosecutorial discretion in issuing both proven 

citations items must prevail. Here, there is no evidence to support a conclusion that it would be 

fundamentally unfair to hold Respondent liable for both violations. Moreover, vacating the crane 

citation item in the circumstances of this case undermines an essential purpose of the Act. 

Therefore, I conclude that the Commission lacks the authority to vacate the crane citation item on 

duplicativeness grounds.

 

20 The Commission has asserted the authority to vacate an otherwise proven citation in other 

circumstances, all of which similarly share a due process or fundamental fairness element or 

involve an assertion that compliance with a standard would be contrary to the purposes of the Act: 

(1) when compliance with a regulation would result in a greater hazard to employees, see Gen. 

Steel Fabricators, Inc., 5 BNA OSHC 1768, 1770-71 (No. 13646, 1977) (requiring that employer 

prove that hazard of compliance with standard is greater than hazard of noncompliance, alternative 

means of protecting employees are unavailable, and variance application would be inappropriate); 

(2) when compliance is infeasible, see Atl. & Gulf Stevedores, Inc., 534 F.2d 541, 555 (7th Cir. 

1976) (respondent must prove that literal compliance with terms of cited standard was infeasible 

under existing circumstances, and alternative protective measure was used or there was no feasible 

alternative measure); (3) when the violation is the result of unpreventable employee misconduct, 

see Jensen Constr. Co., 7 BNA OSHC 1477, 1479 (No. 76-1538, 1979) (requiring that employer 

prove “that it has established work rules designed to prevent the violation, has adequately 

communicated th[ose] rules to its employees, has taken steps to discover violations, and has 

effectively enforced the rules when violations have been discovered”); and (4) when principles of 

collateral estoppel or res judicata dictate, see Caterpillar Tractor Co., 12 BNA OSHC 1768, 1769 

(No. 80-4061, 1986) (purpose of collateral estoppel is to foreclose relitigation of issues already 

litigated and decided); and Copomon Enters., LLC, 601 F. App’x 823, 827 (11th Cir. 2015), 

(unpublished) (citation barred by res judicata). 
29

Although the Act grants the Commission substantial fact-finding authority, its ability to 

vacate an otherwise proven citation is limited by the Act’s unique administrative structure. Unlike 

most other federal regulatory programs, in which rulemaking, enforcement, and adjudication are 

combined into a single administrative authority, the Act separates enforcement and rulemaking 

from adjudication and assigns these functions to two different agencies. The Secretary of Labor, 

through OSHA, is charged with setting and enforcing workplace health and safety standards, and 

the Commission is charged with carrying out adjudicatory functions under the Act. See 29 U.S.C. 

§§ 655, 657, 658, 661. 

Unlike other adjudicatory panels that exist within a unitary, or non-bifurcated structure 

(e.g., the Securities and Exchange Commission, the Federal Trade Commission, the National 

Labor Relations Board, and the Federal Communications Commission), this Commission cannot 

use “its adjudicatory power to play a policymaking role” because, unlike those other agencies, 

“Congress did not invest the Commission with the power to make law or policy.” Martin v. 

Occupational Safety & Health Review Comm’n (CF&I), 499 U.S. 144, 154 (1991). The 

Commission’s authority therefore is a narrow one; it is charged with “making authoritative 

findings of fact” and “applying the Secretary’s standards to those facts in making a decision.” Id. 

In other words, it serves only as a “neutral arbiter” of disputes arising out of the Secretary’s 

enforcement action. Cuyahoga Valley Ry. Co. v. United Transp. Union, 474 U.S. 3,7 (1985). See 

also Soriano v. United States, 494 F.2d 681, 683 (9th Cir. 1974) (“[A]n administrative agency is 

a creature of statute, having only those powers expressly granted to it by Congress or included by 

necessary implication from the Congressional grant.”). 

The Secretary, on the other hand, is vested with full policymaking authority under the Act, 

including the power to create and modify health and safety standards, 29 U.S.C. § 655, to render 

authoritative interpretations of those standards, CF&I, 499 U.S. at 152, and to exercise 

prosecutorial discretion in determining when it is appropriate to issue or withdraw a citation for 

violation of those standards. 29 U.S.C. § 658; CF&I, 499 U.S. at 152; Cuyahoga, 474 U.S. at 6-

7. This is an important distinction; a unitary agency such as the NLRB would presumably have 

the power to create a duplicativeness doctrine to apply to its cases, and could do so either through 

rulemaking or adjudication. The Commission, on the other hand, because it is not a policymaking 

body, is limited to measuring claims of duplicativeness against the requirements of due process 

and associated notions of fundamental fairness. Given that the Commission may not “use its 
30

adjudicatory powers to play a policymaking role,” the Secretary’s exercise of his explicit statutory 

mandate to enforce valid and proven citations pursuant to the Act and its standards cannot be 

disturbed unless it runs afoul of some higher authority. See CF&I, 499 U.S. at 154. 

In the case of the duplicativeness doctrine, that higher authority is due process. See 

Catapano, 17 BNA OSHC at 1778-80 (holding multiple citations for violations of trenching 

standards at several different sites committed on different days not violation of due process). The 

doctrine ensures that in enforcing the Act, the Secretary does not violate substantive due process 

rights by citing an employer multiple times—i.e., by “piling on”—for what was essentially one 

violation.21 Thus, the Commission can only vacate a proven violation on duplicativeness grounds 

when it would be fundamentally unfair to the employer, or otherwise violate due process to affirm 

it.22 

The majority does not acknowledge this constraint on its power and instead arrogates to 

the Commission the authority to vacate one of the two proven citation items at issue here because, 

on the particular facts of this case, each violation could only have been abated by the same action—

relocating the Fourth Street power line. The measures that might have been taken to abate each 

 

21 The Commission’s decision in S.A. Healy, 17 BNA OSHC 1145 (No. 89-1508, 1995), presents 

an example of this type of (probably inadvertent) “piling on.” OSHA issued two items in a citation, 

both of which alleged a non-approved light fixture at “segment 479.” Suspecting that there might 

not be two non-approved light fixtures at that location, the Commission ordered that, on remand, 

“the judge shall determine whether these two items are in fact duplicative as they appear to be and 

if so, he shall make an appropriate disposition to ensure that a double penalty is not assessed for a 

single instance of violation.” Similarly, in United States Steel Corp., 10 BNA OSHC 2123, 2133-

34 (No. 77-3378, 1982), the Commission vacated an alleged overexposure violation as duplicative 

of specific engineering control and respirator violations. See also Trinity, 20 BNA OSHC at 1064 

(vacating one of two citations for training violations because only deficiency established by both 

citations was with regard to failure to train on same substance’s potential for eye and skin 

irritation). 

22 The Commission does possess discretion under section 17(j) to group penalties for related 

violations. 29 U.S.C. § 666(j); H.H. Hall, 10 BNA OSHC at 1046. Thus, to the extent there may 

be overlap between the two citation items at issue here, the violations could be grouped for penalty 

purposes. However, given the egregious behavior of the Respondent in this case, I would find no 

reason to do so. See MJP, 19 BNA OSHC at 1649 (affirming separate penalties for two related 

citations, given employer’s “utterly cavalier and inexcusable disregard for the safety of its 

employees”); Westar Mech., 19 BNA OSHC at 1583-84 (Commissioner Eisenbrey finding “no 

justification for Commission to exercise its discretionary authority to assess a single combined 

penalty” for two trench violations where respondent “has a history of exposing its employees to 

life-threatening hazards on what appears to have been a regular and recurring basis” and failed “to 

take even rudimentary precautions to protect workers”).
31

violation could be a relevant consideration for the Commission in making its due process

determination, and in some cases duplicative abatement alone might indeed establish the requisite 

unfairness. But the fact that Respondent could only have abated both violations by taking the same 

action does not necessarily establish that it is fundamentally unfair to affirm both violations. As 

the Commission stated in H.H. Hall, the “leading case” on the issue of duplicativeness (see R&R 

Builders, 15 BNA OSHC at 1383), “the Act requires an employer to comply with all standards 

applicable to a hazardous condition even though the abatement requirements of two applicable 

standards may be satisfied by compliance with the more comprehensive standard.” H.H. Hall, 10 

BNA OSHC at 1046. In that case, the Commission noted that the conditions giving rise to the two 

violations were “separate and distinct” and found that “there is no unfair burden imposed on an 

employer when the same or closely related conditions are the subject of more than one citation 

item and a single action may bring an employer into compliance with the cited standards.” This 

passage has been repeatedly quoted by the Commission in subsequent cases (see R&R Builders, 

15 BNA OSHC at 1383; Dec-Tam Corp., 15 BNA OSHC 2072, 2081 (No. 88-523, 1993); Burkes 

Mech., 21 BNA OSHC at 2142), and the case has been favorably cited in other decisions as well 

(see A.L. Baumgartner Constr., Inc., 16 BNA OSHC 1995, 1998 (No. 89-1508, 1995); J.A. Jones, 

15 BNA OSHC at 2207, Wright & Lopez, 10 BNA OSHC at 1112; S.A. Healy, 17 BNA OSHC at 

1145; Halmar, 18 BNA OSHC at 1014). 

As my discussion in Section I above highlights, there are numerous facts, in addition to the 

identity of abatement, that could in any given case be relevant to determining whether affirmance 

of two citations would violate due process notions of fundamental fairness. These include: 

• whether the conditions giving rise to the violations are separate and distinct 

(see H.H. Hall, 10 BNA OSHC at 1046);

• whether the two standards violated are closely related, “sister standards” (as 

was the case in every previous Commission decision finding 

duplicativeness, see Appendix A); 

• whether the two violations occurred on the same date and at the same 

location (see J.A. Jones, 15 BNA OSHC at 2207; Catapano, 17 BNA OSHC 

at 1778; Westar Mechanical, Inc., 19 BNA OSHC at 1572); 

• whether the same employees were exposed to the hazards involved in the 

two violations (see, e.g., Koppers, 2 BNA OSHC at 1354-55);
32

• whether the facts supporting both violations are the same, or are different 

(see, e.g. Koppers, 2 BNA OSHC at 1354-55 (allegation made “on a 

different basis”));

• whether the employer acted in good faith (see Catapano, 17 BNA OSHC at 

1778-8); and

• whether compliance with one standard would ordinarily presuppose or 

substitute for compliance with the other (see H.H. Hall, 10 BNA OSHC at 

1046). 

My evaluation of the facts in this case in light of the full panoply of factors that are relevant to the 

issue of due process under Commission case law leads to the unmistakable conclusion that 

affirmance of both violations would result in no unfairness to Respondent. First, on December 

1st, when OSHA initiated its inspection, Respondent had failed to comply with the crane standard 

for at least five months, in violation of two LIPA cease and desist orders, and continued doing so 

even after Respondent’s managers assured OSHA that it would abate the hazard by keeping the 

crane at least 20 feet away from the Fourth Street power lines. On the other hand, the instances 

that comprise the proximity to energized powerlines violation occurred on December 3rd-5th, and 

had no connection with the crane standard’s requirements or the facts surrounding the crane 

standard violation.23 Indeed, photographic evidence shows that construction of the masonry wall 

on the third floor at the northeast corner of the building had not even begun when OSHA was onsite on December 1st. Thus, as noted above, these violative conditions occurred on different dates 

and existed independently of each other—the crane operated at the worksite without regard to the 

employees working on the wall near the northeast corner (and, in fact, operated for a long period 

of time before those employees could have ever begun work in close proximity to the Fourth Street 

power lines), and the employees near the northeast corner performed their work without regard to 

 

23 That citation item specifies that: (a) on December 3rd, employees who were installing a fall 

protection system along the north and east sides of the third floor worked directly under and three 

feet from the energized Fourth Street power line; (b) on or about December 4th, employees 

constructing the masonry block wall on the north and east sides of third floor came within 

approximately 12 inches of the energized line; (c) on or about December 5th, employees 

constructed the wall on the northeast corner of the third floor between the primary power lines and 

the secondary power lines, coming within four inches of the primary power lines and 14 inches 

from the secondary power lines; and (d) on or about December 5th, employees constructed the 

masonry block wall around an energized primary power line, coming within four inches of that 

line. 
33

the operation of the crane. The only thing common to these two violations were the overhead 

powerlines, which did not by themselves constitute a violation. Moreover, as I have noted above, 

at n. 8, had Respondent taken action on December 1st to protect the employees exposed to 

electrocution as a result of the crane violation, the employees working near the northeast corner 

on December 3rd-5th would not have been exposed to the hazard. It is Respondent’s inaction

regarding the crane violation that led inextricably to the proximity to power circuit violation.

Second, as discussed above, the two cited standards here are not closely related and 

regulate entirely different workplace conditions. The crane standard concerns the safe operation 

of cranes and required Respondent to take a series of detailed steps prior to as well as after 

beginning work with the crane in order to protect employees from an electrocution hazard. The 

proximity standard, however, concerns only employee proximity to electricity and does not 

mandate any advance preparation. Under the proximity standard, Respondent’s only obligation 

was to keep employees away from the energized powerlines unless they were otherwise protected.

Third, some of the employees who were exposed to an electrocution hazard as a result of 

the crane standard violation were not exposed to an electrocution hazard as a result of the proximity 

violation and vice versa. Thus, Respondent’s failure to address the crane standard violation on 

December 1st meant that more employees were exposed to electrocution hazards over an additional 

six days.

In short, this is an employer with an extensive history of OSHA violations; that, over a 

period of months, repeatedly thumbed its nose at enforcement efforts designed to protect its 

employees from the dangers of electrocution; that assured OSHA it would comply with the crane 

standard but never did; and that knowingly exposed more employees to those electrocution dangers 

by permitting them to, among other things, build a wall around and within inches of a 7,620-volt 

primary power line.24 Thus, Respondent has not been unfairly cited for what is essentially one bad 

act—the essence of duplicative citations—it has been cited for two willful violations of distinct 

standards that occurred independently of each other at the worksite. There is simply nothing unfair 

about that. 

 

24 The record establishes that from 2000 to 2012, at least 96 OSHA citations were affirmed against 

Respondent, including violations pertaining to electrical hazards.
34

Finally, the majority’s decision to vacate the crane standard violation also serves to 

undercut a fundamental purpose of the Act, as evidenced by the penalty framework set out in 

section 17(a).25 29 U.S.C. § 666(a). This section authorizes the Secretary to characterize 

violations as “willful” or “repeated” and propose a penalty up to ten times greater than that of an 

ordinary violation. By vacating the crane citation item, the majority today has done more than 

simply relieve Respondent of liability in this case—it has immunized the company from being 

cited for a “repeat” violation of the crane standard—with an associated higher penalty—in the 

future. As the facts of this case bluntly demonstrate, some employers require the use of every 

possible enforcement tool to eliminate even the most obvious of workplace hazards.26 By 

preventing OSHA from using this tool in a future enforcement action against this employer, the 

majority undermines the most fundamental purpose of the Act, which is to prevent employees from 

being exposed to unsafe working conditions in the first place.27 In light of the outrageously 

dangerous behavior of this employer, the majority’s decision to vacate the crane citation item is 

nothing short of egregious. 

In sum, the Commission’s authority to vacate a proven violation on duplicativeness 

grounds is limited by the bifurcated structure of the Act, which entrusts the Secretary, not the 

Commission, with the discretion to determine when to issue and prosecute a citation. Because 

 

25 Section 17(a) states: 

Any employer who willfully or repeatedly violates the requirements of section 5 of 

this Act, any standard, rule, or order promulgated pursuant to section 6 of this Act, 

or regulations prescribed pursuant to this Act, may be assessed a civil penalty of 

not more than $70,000 for each violation, but not less than $5,000 for each willful 

violation.

29 U.S.C. § 666(a).

26 As the Fourth Circuit noted regarding repeat citations, “[i]ntrinsic within the statutory scheme 

of enforcement is the overall policy of providing employers with incentives to comply with the 

safety requirements of the Act.” George Hyman Constr. Co. v. Occupational Safety & Health 

Review Comm’n, 582 F.2d 834, 841 (4th Cir. 1978).

27 Citing Potlatch Corp., 7 BNA OSHC 1061, 1063 (No. 16183, 1979), the majority argues that 

vacating the crane standard citation will not prevent a future Commission from finding that a future 

crane standard violation should be characterized as repeat based on Respondent’s violation of the 

proximity violation. I would only note that I have found no Commission decision finding repeat 

violations under such circumstances. As I have explained elsewhere in my dissent, the two 

standards are significantly different in focus and application. 
35

affirmance of these two proven citation items would result in no unfairness to Respondent, and 

would not otherwise violate due process, I conclude the Commission is without the authority to 

vacate one of them. 

For all these reasons, I dissent.

/s/

Cynthia L. Attwood

Dated: February 28, 2018 Commissioner
36

Appendix A

Case Name and Cite Cited Standard(s) Commission Holding

The nine cases in which the Commission found a citation item to be duplicative are highlighted in gray.

Koppers Co., Inc., 

2 BNA OSHC 1354

(No. 3449, 1974)

29 C.F.R. §§ 1910.93, 

1910.134(a)(2)

The Commission held that two citations for violations of two different standards 

related to respiratory protection were not duplicative because each citation related 

to different employees and involved different facts.

Safeway Stores, Inc.,

2 BNA OSHC 1439

(No. 454, 1974) 

(consolidated),

vacated on reconsideration 

on other grounds, 3 BNA 

OSHC 1123 (1975)

29 C.F.R. 

§§ 1910.178(k)(1), 

1910.178(m)(7)

The Commission considered whether violations of two separate standards, both 

requiring brakes to be set and wheel chocks to be placed on trucks, trailers or 

railroad cars during loading or unloading by powered industrial trucks, were 

duplicative. Commissioner Van Namee voted to vacate one of the citation items

because both standards “require precisely the same conduct” and thus, in his view, 

the two citation items merge “to constitute a single violation . . . .” Chairman 

Moran agreed to vacate one of the citation items, but on other grounds. 

Commissioner Cleary dissented, explaining that the citations were not duplicative 

because one standard “controls the operation of the truck trailer, requiring that it 

be secured . . . to prevent its movement during” loading and unloading, while the 

other “controls the operation of the powered industrial truck, requiring that certain 

conditions exist before an employer permits its operator to drive onto a 

trailer . . . .”

Alpha Poster Serv., Inc.,

4 BNA OSHC 1883

(No. 7869, 1976)

29 C.F.R. 

§§ 1910.106(e)(2)(iv)(a), 

1910.106(e)(2)(iv)(d)

The Commission, without further elaboration, held that two citations, one for 

failure to transfer flammable liquids using safety cans and the other for failure to 

keep flammable liquids in covered containers, were duplicative because they 

“involve[d] substantially the same violative conduct.” 

Lee Way Motor Freight, 

Inc.,

4 BNA OSHC 1968

(No. 10699, 1977)

29 C.F.R. 

§§ 1910.22(b)(1), 

1910.30(a)(2)

The Commission held that two citation items relating to the condition of portable 

dock plates were “essentially duplicative,” but did not provide any further analysis 

or explanation. 
37

Case Name and Cite Cited Standard(s) Commission Holding

Granite-Groves, 

5 BNA OSHC 1100

(No. 10677, 1977)

29 C.F.R. 

§§ 1926.651(w), 

1926.700(b)(2)

The Commission held that two citations, one for failing to provide guardrails and 

the other for failing to cover or protect protruding rebars were not duplicative 

because “the conditions covered by the two citations, although related, [were] 

independent.” 

Stimson Contracting Co.,

45

5 BNA OSHC 1176

(No. 13812, 1977)

29 C.F.R. 

§§ 1926.651(q), 

1926.652(b)

The Commission held that the two citation items relating to cave-in protection 

were duplicative because compliance with § 1926.651(q), the more stringent 

standard, always “presupposes” compliance with § 1926.652(b), the less stringent 

standard. 

Sletten Constr. Co.,

6 BNA OSHC 1091

(No. 11028, 1977)

29 C.F.R. 

§ 1926.500(b)(1)

The Commission held that two citation items for violation of the same provision 

of the fall protection standard were not duplicative because each cited violation 

“required a different means of abatement” under the standard. 

Hoffman Constr. Co., 

6 BNA OSHC 1274

(No. 4182, 1978)

29 C.F.R. 

§ 1926.451(a)(4)

The Commission held that separate citations for violation of the same provision of 

the scaffold standard were not duplicative because the citations involved “different 

and separate scaffolds,” and it was within the Secretary’s “discretion as the 

prosecutor under the Act” to prosecute multiple violations of the same standard. 

H.H. Hall Constr. Co., 

10 BNA OSHC 1042

(No. 76-4765, 1981)

29 C.F.R. 

§§ 1926.651(q), 

1926.652(a)

The Commission held that two citation items relating to cave-in protection were 

not duplicative even though abatement of the more stringent one would abate the 

other, explaining that “[a]lthough a worksite condition may violate more than one 

standard, section 5(a)(2) of the Act requires an employer to comply with all 

standards applicable to a hazardous condition even though the abatement 

requirements of two applicable standards may be satisfied by compliance with the 

more comprehensive standard.”

 

45 Overruled by H.H. Hall Constr. Co., 10 BNA OSHC 1042 (No. 76-4765, 1981).
38

Case Name and Cite Cited Standard(s) Commission Holding

Wright & Lopez, Inc., 

10 BNA OSHC 1108

(No. 76-256, 1981)

29 C.F.R. 

§§ 1926.652(c), 

1926.652(e)

The Commission, citing to H.H. Hall, held that two citation items relating to the 

cave-in protection standard were not duplicative simply because abatement was 

the same. The Commission determined, however, that it was appropriate under 

the circumstances to “assess a single penalty for [the] overlapping violations.” 

United States Steel Corp.,

10 BNA OSHC 2123

(No. 77-3378, 1982)

Multiple

Two Commissioners considered whether a multitude of different sets of citations 

and citation items were duplicative, finding some were duplicative, some were not, 

and disagreeing as to the disposition of others. Their analysis does not set out a 

test or rationale for determining whether a citation is duplicative.

Cleveland Consol., Inc.,

13 BNA OSHC 1114

(No. 84-696, 1987)

29 C.F.R. 

§§ 1926.400(c)(1), 

1926.400(c)(2)

The Commission held two citation items relating to employee proximity to 

electrical circuits were duplicative because they “involve[d] substantially the same 

violative conduct” and “as a practical matter” the way by which the employer 

would comply with one standard would bring it into compliance with the other. 

Capform, Inc.,

13 BNA OSHC 2219

(No. 84-0556, 1989)

29 C.F.R. 

§§ 1926.651(c), 

1926.651(q)

The Commission held that two citation items relating to cave-in protection were 

duplicative because if the employer had complied with § 1926.651(q), the more 

stringent standard, it would necessarily have been in compliance with 

§ 1926.651(c), the less stringent standard. 

R&R Builders, Inc.,

15 BNA OSHC 1383

(No. 88-0282, 1991)

29 C.F.R. 

§§ 1926.105(a), 

1926.500(d)(1)

The Commission cited to H.H. Hall as the “leading case” on duplicativeness and 

held that two fall protection citation items were not duplicative and that it was not 

appropriate to assess a single penalty because “the cited standards require different 

forms of abatement and use of one form does not necessarily provide complete 

abatement in the circumstances.” 

Flint Eng’g & Constr. Co.,

15 BNA OSHC 2052

(No. 90-2873, 1992)

29 C.F.R. 

§§ 1926.651(j)(2), 

1926.652(a)(1)

The Commission held that two citation items relating to cave-in protection were 

not duplicative because the employer “could not meet [each] standard with one 

abatement effort” and “the hazards and their respective abatement methods are 

sufficiently distinct so as to constitute separate violations deserving of separate 

penalties.” 
39

Case Name and Cite Cited Standard(s) Commission Holding

Dec-Tam Corp.,

15 BNA OSHC 2072

(No. 88-523, 1993)

29 C.F.R. 

§§ 1910.1001(d)(1)(ii), 

1910.1001(d)(5)

and

29 C.F.R. 

§§ 1910.1001(f)(1)(i), 

1910.1001(k)(1)

The Commission examined two different sets of potentially duplicative citation 

items, one set involving the monitoring requirements of the asbestos standard and 

the other involving asbestos removal and housekeeping requirements. The 

Commission held that neither set was duplicative even though abatement was the 

same for the standards in each set. In its analysis, the Commission cited to H.H. 

Hall and explained that “it is clear that the Secretary is not barred from enforcing 

both standards” because “section 5(a)(2) of the Act requires an employer to 

comply with all standards applicable to a hazardous condition even though the 

abatement requirements of two applicable standards may be satisfied by 

compliance with the more comprehensive standard.” 

J.A. Jones Constr. Co.,

15 BNA OSHC 2201

(No. 87-2059, 1993)

29 C.F.R. §§ 1926.20, 

1926.500

The Commission held that two citations, one for failing to institute a safety 

program and one for failing to install or provide fall protection, were not 

duplicative because they did not require the same abatement conduct, and thus 

were directed at fundamentally different conduct. 

A.L. Baumgartner Constr., 

Inc.,

16 BNA OSHC 1995

(No. 92-1022, 1994)

29 C.F.R. 

§§ 1926.403(i)(2)(i), 

1926.416(e)(1)

The Commission cited to H.H. Hall and held that “because the Commission is not 

required to vacate duplicative items,” there was no prejudice to the employer by 

the judge’s sua sponte amendment of the Complaint to include an additional 

citation item for separate violation of the same standard.

S.A. Healy Co.,

17 BNA OSHC 1145

(No. 89-1508, 1995)

Not provided

The Commission did not determine whether two citation items relating to a nonapproved light fixture were duplicative, but cited to H.H. Hall and remanded the 

case to the judge to determine whether the citation items that “both allege a nonapproved light fixture at segment 479” are “in fact duplicative as they appear to 

be and if so, [to] make an appropriate disposition to ensure that a double penalty 

is not assessed for a single instance of violation.”
40

Case Name and Cite Cited Standard(s) Commission Holding

Andrew Catapano Enters.,

17 BNA OSHC 1776

(No. 90-0050, 1996) Multiple

The Commission held that the Secretary’s issuance of citations for each instance 

of violations that occurred at different work sites and on different days did not 

violate due process. The Commission also declined to assess a single grouped 

penalty for each violation, citing the high gravity of the violations and the lack of 

good faith on the part of the employer who the Commission found had been 

“warned by OSHA’s compliance officers at the first inspection that it was not 

complying with certain standards,” but yet “violated the same standard over and 

over again.” 

The Halmar Corp.,

18 BNA OSHC 1014

(No. 94-2043, 1997)

29 C.F.R. 

§§ 1926.550(15)(i), 

1926.550(15)(iv)

The Commission held that two violations of separate provisions of the crane 

standard were not duplicative “[b]ecause the violations involve[d] different 

violative conduct with different means of abatement.” The Commission assessed 

separate penalties for each violation, explaining that “there is no requirement to 

group penalties even when closely related conditions are subject of more than one 

citation item and a single action may bring an employer into compliance with the 

cited standards.” 

Kaspar Wire Works, Inc.,

18 BNA OSHC 2178

(No. 90-2775, 2000)

29 C.F.R. 

§§ 1910.217(e)(1)(i), 

1910.217(e)(1)(ii)

The Commission held that two citation items relating to the inspection of power 

presses were not duplicative because “the standards pertain to different power 

press components and provide for different inspection frequencies” such that “it 

would be possible for [the employer] to fully comply with either one of the cited 

standards and still fail to satisfy all of the requirements of the other.”

 

MJP Constr. Co., Inc.,

19 BNA OSHC 1638

(No. 98-0502, 2001)

29 C.F.R.

§§ 1926.501(b)(2), 

1926.501(b)(2)(ii), 

1926.501(b)(3)

The Commission held that the Secretary may appropriately cite separate violations 

of the same standard where each individual instance occurred on separate dates, 

times, and locations.

Westar Mech., Inc.,

19 BNA OSHC 1568

(No. 97-0226, 2001) 

(consolidated)

29 C.F.R. 

§ 1926.652(a)(1)

The Commission held there were “sufficient distinctions between the two alleged 

violations” of the same cave-in protection standard to “warrant the conclusion that 

the Secretary acted within the scope of her discretion in treatment of them as 

separate violations of the standard and of the Act.” 
41

Case Name and Cite Cited Standard(s) Commission Holding

Trinity Indus., Inc.,

20 BNA OSHC 1051

(No. 95-1597, 2003) aff’d 

on other grounds, 107 F. 

App’x 387 (5th Cir. 2004) 

(unpublished)

29 C.F.R. 

§§ 1915.12(d)(iii), 

1915.12(d)(4)(ii)

The Commission concluded that two citation items relating to the training 

requirements of the confined spaces in shipyards standard were duplicative 

because “the only training deficiency established by the Secretary” was the same 

for each citation item. 

Rawson Contractors, Inc.,

20 BNA OSHC 1078

(No. 99-0018, 2003)

29 C.F.R. 

§§ 1926.652(a)(1), 

1926.651(a)

The Commission declined to review whether two citation items relating to cavein protection were duplicative because the issue was not argued before the judge, 

but noted that if it were to consider the issue, it would find the violations were not 

duplicative because abatement of one citation item would not necessarily abate the 

other citation item.

Major Constr. Corp., Inc.,

20 BNA OSHC 2109 (No. 

99-0943, 2005) Not provided The Commission held that the Secretary may cite “multiple instances of violation of the same standard based on different times or different places of occurrence.” 

Burkes Mech., Inc.,

21 BNA OSHC 2136

(No. 04-475, 2007)

29 C.F.R. 

§§ 1910.147(c)(4)(i), 

1910.261(b)(1)

The Commission held that two citation items, one for failure to comply with 

OSHA’s lockout/tagout standard and the other for failure to comply with the 

lockout provision of the pulp, paper, and paperboard mills standard, were not 

duplicative even though abatement was the same. The Commission explained that 

violations are duplicative ‘ “where the standards cited require the same abatement 

measures, or where abatement of one citation item will necessarily result in the 

abatement of the other item as well, ” ’ but nonetheless concluded that, because 

the lockout/tagout standard “primarily focuses on an employer’s specific 

procedures for controlling hazardous energy, including verification” whereas the 

pulp, paper, and paperboard mills standard is “solely concerned with the act of 

locking out the machinery and equipment,” the two citations items were not 

duplicative. 

Manganas Painting Co. 

Inc.,

21 BNA OSHC 1964

29 C.F.R. 

§§ 1926.62(c)(1), 

1926.62(f)(1)

The Commission held that two separate citations of the lead standard regarding 

the same worker, one for overexposure to lead and the other for respirator non-
42

Case Name and Cite Cited Standard(s) Commission Holding

(No. 94-0588, 2007) use, were duplicative because abatement of each citation (use of a respirator) was 

the same. 

Gen. Motors Corp.,

22 BNA OSHC 1019

(No. 91-2834E, 2007)

29 C.F.R. 

§§ 1910.147(c)(1), 

1910.147(c)(4)(i), 

1910.147(c)(4)(ii)

The Commission held that separate citation items relating to the lockout/tagout 

standard, one for failure to establish an energy control program and two others for 

failure to implement prescribed components of that program, were not duplicative 

because abatement was not the same. The Commission explained that 

“establishing a fully compliant energy control program would not abate a failure 

to implement the components of that program, nor would implementation of 

required energy control procedures abate a failure to establish a program.”

E. Smalis Painting Co.,

22 BNA OSHC 1553

(No. 94-1979, 2009)

29 C.F.R. 

§§ 1926.62(c)(1), 

1926.62(e)(1)

The Commission held that separate citations of two closely-related provisions of 

the lead standard were duplicative because abatement of both required the 

implementation of adequate engineering, work practice and administrative 

controls for protection of the same individuals from overexposure to lead.

AKM LLC d/b/a Volks 

Constructors

23 BNA OSHC 1414 

(No. 06-1990, 2011), 

vacated on other grounds, 

675 F.3d 752 (D.C. Cir. 

2012)

29 C.F.R. 

§§ 1904.29(b)(2), 

1904.29(b)(3)

The Commission held that violations of two closely-related provisions of 

OSHA’s record keeping standard were not duplicative because the provisions 

were aimed at collecting “fundamentally different” information and abatement of 

one would not necessarily abate the other. 
43

Appendix B

29 C.F.R. § 1926.1408 Power line safety (up to 350 kV)—equipment operations.

(a) Hazard assessments and precautions inside the work zone. Before 

beginning equipment operations, the employer must:

(1) Identify the work zone by either:

(i) Demarcating boundaries (such as with flags, or a device such as a range limit device or 

range control warning device) and prohibiting the operator from operating the equipment past 

those boundaries, or

(ii) Defining the work zone as the area 360 degrees around the equipment, up 

to the equipment's maximum working radius.

(2) Determine if any part of the equipment, load line or load (including rigging and lifting 

accessories), if operated up to the equipment's maximum working radius in the work zone, could 

get closer than 20 feet to a power line. If so, the employer must meet the requirements in Option 

(1), Option (2), or Option (3) of this section, as follows:

(i) Option (1) - Deenergize and ground. Confirm from the utility owner/operator that the 

power line has been deenergized and visibly grounded at the worksite.

(ii) Option (2) - 20 foot clearance. Ensure that no part of the equipment, load line, 

or load (including rigging and lifting accessories), gets closer than 20 feet to the power line 

by implementing the measures specified in paragraph (b) of this section.

(iii) Option (3) - Table A clearance.

(A) Determine the line's voltage and the minimum approach distance permitted under 

Table A (see § 1926.1408).

(B) Determine if any part of the equipment, load line or load (including rigging and lifting 

accessories), while operating up to the equipment's maximum working radius in the work 

zone, could get closer than the minimum approach distance of the power line permitted 

under Table A (see § 1926.1408). If so, then the employer must follow the requirements 

in paragraph (b) of this section to ensure that no part of the equipment, load line, 

or load (including rigging and lifting accessories), gets closer to the line than the minimum 

approach distance.

(b) Preventing encroachment/electrocution. Where encroachment precautions are required 

under Option (2) or Option (3) of this section, all of the following requirements must be met:

(1) Conduct a planning meeting with the operator and the other workers who will be in the area 

of the equipment or load to review the location of the power line(s), and the steps that will be 

implemented to prevent encroachment/electrocution.
44

(2) If tag lines are used, they must be non-conductive.

(3) Erect and maintain an elevated warning line, barricade, or line of signs, in view of 

the operator, equipped with flags or similar high-visibility markings, at 20 feet from the power 

line (if using Option (2) of this section) or at the minimum approach distance under Table A 

(see § 1926.1408) (if using Option (3) of this section). If the operator is unable to see the 

elevated warning line, a dedicated spotter must be used as described in § 1926.1408(b)(4)(ii) in 

addition to implementing one of the measures described in §§ 1926.1408(b)(4)(i), (iii), (iv) and 

(v).

(4) Implement at least one of the following measures:

(i) A proximity alarm set to give the operator sufficient warning to prevent encroachment.

(ii) A dedicated spotter who is in continuous contact with the operator. Where this measure 

is selected, the dedicated spotter must:

(A) Be equipped with a visual aid to assist in identifying the minimum clearance distance. 

Examples of a visual aid include, but are not limited to: A clearly visible line painted on 

the ground; a clearly visible line of stanchions; a set of clearly visible line-of-sight 

landmarks (such as a fence post behind the dedicated spotter and a building corner ahead 

of the dedicated spotter).

(B) Be positioned to effectively gauge the clearance distance.

(C) Where necessary, use equipment that enables the dedicated spotter to communicate 

directly with the operator.

(D) Give timely information to the operator so that the required clearance distance can be 

maintained.

(iii) A device that automatically warns the operator when to stop movement, such as a range 

control warning device. Such a device must be set to give the operator sufficient warning to 

prevent encroachment.

(iv) A device that automatically limits range of movement, set to prevent encroachment.

(v) An insulating link/device, as defined in § 1926.1401, installed at a point between the end 

of the load line (or below) and the load.

(5) The requirements of paragraph (b)(4) of this section do not apply to work covered by 

subpart V of this part.
 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

 Washington, DC 20036-3457

 

THOMAS E. PEREZ, Secretary of Labor,

United States Department of Labor,

 

Complainant,

 v. OSHRC DOCKET NO. 13-1169

NORTH EASTERN PRECAST LLC,

 Respondent.

 

THOMAS E. PEREZ, Secretary of Labor,

United States Department of Labor 

 Complainant, 

 v.

MASONRY SERVICES, INC. dba MSI

 Respondent.

 OSHRC DOCKET NO. 13-1170

Appearances:

Daniel Hennefeld, Esq. 

United States Department of Labor, Office of the Solicitor,

New York, New York

For the Secretary

Jonathan W. Greenbaum, Esq.

Coburn & Greenbaum, PLLC

Washington, D.C.

For the Respondent

Before: Keith E. Bell

 Administrative Law Judge
2

DECISION AND ORDER

This proceeding is before the Occupational Safety and Health Review Commission (the 

Commission) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29 

U.S.C. §§651-678 (OSH Act or the Act). Following an inspection of Respondents’ worksite in 

Valley Stream, New York, the Secretary of Labor (Secretary), through the Occupational Safety 

and Health Administration (OSHA), issued three citations to North Eastern Precast LLC (NEP), 

alleging various willful, serious and other-than-serious violations of the Act. OSHA also issued 

four citations to Masonry Services, Inc. (MSI), alleging various willful, repeat, serious and otherthan-serious violations. Both employers filed a timely notice of contest, bringing this matter 

before the Commission. 

Before the hearing, all parties stipulated that, because both MSI and NEP have 

overlapping ownerships and were working at the same site, they should be treated as a single 

employer, subject to a single set of citations1. According to the stipulation, each citation item 

issued to NEP is consolidated with the analogous item issued to MSI and the penalties originally 

issued to MSI will be considered the proposed penalties for the consolidated items. (Ex. J-1, ¶

4). The numbering system for the citations issued to MSI will be preserved for the consolidated 

citations. Hereafter, MSI and NEP will be collectively referenced as Respondent, except where 

circumstances require reference to either of the employers alone. Also, employees allegedly 

exposed to the violations will be considered to be employees of Respondent. Id.

A hearing was held in New York City on October 21-22, 2014. The parties filed posthearing briefs. For the reasons set forth below, all citations and proposed penalties are affirmed. 

 

1 The general contractor, Vordonia Contracting & Supplies Corp,/Alma Realty Corp., was also issued citations that 

were timely contested. (Docket No. 13-1167). That case was originally consolidated with these two cases. Before 

the hearing, however, Vordonia settled the matter with the Secretary and that case is no longer before the 

Commission. (Tr. 6).
3

Jurisdiction

Based upon the record, I find that, at all relevant times, MSI and NEP were engaged in a 

business affecting commerce and were employers within the meaning of sections 3(3) and 3(5) 

of the Act. (NEP Answer ¶¶ I, III; MSI Answer ¶¶ I, III, Ex. J-1, ¶ 5). I also find that the 

Commission has jurisdiction over the parties and subject matter in this case. (Ex. J-1, ¶1)

Background

In the summer of 2012, Respondent contracted with Vordonia Contracting & Supplies 

Corp,/Alma Realty Corp. (Vordonia) to provide the masonry work at a mixed retail/residential 

construction project in Valley Stream, a town on Long Island, New York. (Tr. 253, Ex. J-1, ¶ 9). 

The site was located between Brooklyn Avenue and Fourth Street. Power lines ran along 

both streets and shared a common pole (pole #3)2at the corner of Fourth and Brooklyn. (Ex. C26A). Both lines carried 13.2 kV. (Tr. 64). That pole was approximately 10 degrees out of 

plumb and encroached over the footprint of the building. (Tr. 357, 797, Ex. C-67). The Fourth 

Street line fed electricity from the poles at the site to several downstream customers. Because it

was a dead end line, the power could not be rerouted. (Tr. 68, 168, 206). Therefore, rather than 

de-energizing the line, it had to be moved further from the worksite. (Tr. 69, 206, 286, 318, 320, 

329). However, the power from the Brooklyn Avenue line, between poles 2 and 3, could be 

rerouted and the line de-energized. (Tr. 68, 206)

At a pre-job meeting that summer, James Sal Herrera, one of Respondents’ owners, met 

with Patricio Solar, Vordonia’s in-house architect, and designated representative at the jobsite. 

 

2 At the hearing, the Secretary’s numbering system for the poles differed from the system used by Long Island 

Power Authority (LIPA). All references to pole numbers will be to the official numbering system used by LIPA. 

Exhibit C-26 is a diagram of the site using the Secretary’s numbering method. Exhibit C-26A is the same diagram, 

but reflects the official LIPA pole numbering system. 
4

(Tr. 442-444, 800-801, Ex. J-1, ¶ 11). Herrera testified that, at first, he thought the wires were 

phone lines, but that Solar informed him that they were power lines. (Tr. 718, 801-802). Herrera 

noticed that the power lines on both Fourth Street and Brooklyn Avenue appeared to be less than 

ten feet from the jobsite and might pose a problem as the building went up. Herrera told Solar 

that Vordonia had to move or insulate the power lines to enable Respondent to perform the 

necessary crane work while remaining in compliance with OSHA requirements. (Tr. 442-444, 

699, 801). Solar told him that he would handle the matter because he already had to talk with the 

LIPA to have power brought into the building. (Tr. 699-700). 

In July 2012, Jermaine Clarke, a design engineer supervisor connected with LIPA, visited 

the site. He noted that a crane was located on Brooklyn Avenue close to the Fourth Street side. 

None of the lines along the site were de-energized and he was concerned because the crane was 

operating within 10 feet of the power line on Brooklyn Avenue. (Tr. 91-92). As a result, he 

issued a Cease and Desist Order requiring that the work be stopped until the lines were deenergized. (Tr. 92). Although other unnamed persons were present, Clarke remembered giving 

the Order only to Solar. (Tr. 109). Clarke also posted stickers and tossed flyers on the site 

warning of the dangers of working near high voltage lines. (Tr. 93, Ex. C-24). Shortly after the 

Cease and Desist Order was issued, the Brooklyn Avenue line was de-energized and grounding 

devices were placed on it. (Tr. 68). The Fourth Street line could not be de-energized because 

there was no feed coming from the other side to pick up downstream customers. (Tr. 68). 

Although not explicitly stated in the record, the evidence, as discussed infra, leads to the 

inference that the crane was soon moved from Brooklyn Avenue to Fourth Street. See generally, 

Manganas Painting Co., 21 BNA OSHC 1964, 1981 (No. 94-0588, 2007)(citations 

omitted)(noting “reasonable inferences can be drawn from circumstantial evidence”). However, 
5

it is unclear whether the crane was moved prior or subsequent to the lifting of the Cease and 

Desist Order. 

In August 2012, LIPA representative, Guerson Carelus visited the site. He noticed that 

the crane, now on Fourth Street, was lifting loads over the Fourth Street power line onto the 

construction site. (Tr. 172). He was concerned that workers’ lives were in jeopardy because of 

the proximity of the load to the line. (Tr. 172, 176-177). Carelus requested that the work stop. 

(Tr. 173-174). He gave warning pamphlets in English and Spanish to as many employees as 

possible. (Tr. 178-180). He spoke with someone identified as a supervisor of the crane company 

and told him that they had to take down the crane. (Tr. 174). The next day, August 23, 2012, he 

issued the second Cease and Desist Order. (Tr. 173, Ex. R-2). Carelus delivered the Order to 

Solar and left the site without talking to anybody else. (Tr. 177-178). According to crane 

operator, Anthony Ferrara, both he and Superintendent, Manuel Herrera were informed by LIPA 

that the Fourth Street line was energized and that they had to maintain a safe distance from the 

line. They were also informed that the Fourth Street line could not be de-energized. (Tr. 445-

449). As a result, the crane was moved back to Brooklyn Avenue, where the line was now deenergized. (Tr. 174, 176-177, 194, 319-320). 

Later that day, after the crane was moved to Brooklyn Avenue, the Cease and Desist 

Order was lifted. (Tr. 320, Ex. R-3). The letter removing the Order emphasized that the line 

between poles #2 and #3 on Brooklyn Avenue had already been de-energized and constituted a 

safe work zone. (Ex. R-3). 

Around this time, Solar had conversations with LIPA involving the Fourth Street line 

where they discussed the cost of relocation, which was estimated at $70,000. (Tr. 285-288). 

Solar talked to Respondent about halting construction until the relocation issue was resolved and 
6

suggested that they work on the opposite side of the building. (Tr. 290-291). However, he did 

not explicitly tell them that they couldn’t do any work on the Fourth Street side until the issue 

with LIPA was resolved. (Tr. 295). Although both the Cease and Desist Order and the Notice to 

Proceed specifically stated that the lines carried 13 kV, (Exs. R-2, R-3), Solar testified that he 

didn’t think that anybody understood the danger because they did not know how much current 

was going through the lines or how close they could get without someone getting hurt. (Tr. 295). 

However, he knew from common sense not to get too close to the lines. (Tr. 296). 

On December 1, 2012, Compliance Safety and Health Officer (CSHO), Brian Calliari and 

Senior Compliance Officer, Anthony Campose, began the OSHA inspection. (Tr. 343). At that 

time, Respondent had done some foundation work and steel erection. They were performing 

masonry block and precast concrete plank installation on the third floor. (Tr. 337, 365, Ex. C25). The crane on Brooklyn Avenue was lifting the planks over the Brooklyn Avenue line and 

bringing them within eight feet of the energized Fourth Avenue line before setting them down in 

the worksite. (Tr. 373-374, Ex. C-26A)

Before conducting the opening conference, CSHO Calliari informed 

Superintendent/Foreman, Manuel Herrera that the overhead line on Fourth Street constituted an 

imminent danger to the crane operations and requested that Herrera remove the employees from 

the hazard. (Tr. 348). After the employees were removed, an opening conference was held. (Tr. 

349). Another opening conference was held with Respondent’s owner, James Sal Herrera, and a 

phone conference was held with Solar. (Tr. 349-350). The CSHO told the Herreras that the 

planks should not be installed, but staged outside the worksite or installed at another part of the 

building where they could maintain a safe distance from the line. (Tr. 419-420). James Sal 

Herrera told the CSHO that he would have to eat the cost of returning the trucks with the planks 
7

to the NEP plant and that they could not stage the planks outside of the work area. (T. 420).

James Sal Herrrea told him that they would continue to set the planks in other areas of the 

structure and would not encroach on the energized line. (Tr. 421). The full inspection ensued, 

which resulted in several of the instant citations. (Tr. 351). 

After the OSHA inspectors left the site, and contrary to Herrera’s promise to the CSHO, 

Respondent continued to install planks along Fourth Street, up to and past the northeast corner 

where the power line now hung directly over the building. (Tr. 421-423). James Sal Herrera 

testified that Respondent used a center pick method of lifting the planks, meaning that the 

rigging came down from the crane boom above the center of the load and secured at both ends of 

the load. (Tr. 734, Ex. C-25). As the plank installation progressed toward the northeast corner, 

the crane got progressively closer to the Fourth Street power line. (Tr. 408-410, Ex. C-69). They 

also continued to build the masonry wall at the northeast corner. (Tr. 422-426, Ex. C-14). 

As the masonry wall was erected vertically, it too got closer to the Fourth Street power 

line. (Tr. 409). At some point after the December 1 inspection, the masonry wall exceeded the 

height of the Fourth Street line. Because the common pole3shared by the two lines was out of 

plumb, the line crossed the plane of the wall. Therefore, to continue to build the wall, 

Respondent created a 5 X 5 inch hole in the wall for the line to pass through. (Tr. 85-86, 95, 

222-223, 226, 463-464, Exs. C-14, C-15, C-47). As the line entered the wall, it was covered by 

an insulation type of material. (Tr. 147, 234-235, 305, Exs. C-15, C-84).

When LIPA design engineer Clarke arrived at the site on December 5, he observed that 

Respondent built the wall around the primary wire. He was shocked. Clarke testified that he 

never saw anything like it before and was surprised that nobody was killed. (Tr. 85). Believing

that his earlier warnings were ignored, and concerned that, after he left the site, work would 

 

3 This is designated as “Brooklyn pole #3 (common)” on Exhibit C-26A. 
8

resume, Clarke called the police to shut down the site. (Tr. 156, 299). That day, Clarke also

issued a third Cease and Desist Order to Solar, requiring that all work activity be stopped

“immediately.” (Tr.88-89, Ex. C-13). 

LIPA referred the matter to OSHA. (Tr. 156). CSHO Calliari returned to the site on 

December 6, 2012. (Tr. 422). The CSHO observed that Respondent continued working after his 

inspection and that the Fourth Street power line passed through the masonry wall. He also 

observed that Respondent erected an engineered fall protection system along the north and east 

sides of the third floor. (Tr. 425, 477) He continued his inspection which resulted in the 

Secretary alleging additional violations. 

After December 6, Vordonia paid the $70,000 fee to LIPA and the Fourth Street line was 

relocated. (Tr. 69, 90, 328)

Stipulations

Before the hearing, the parties agreed to the following “Admitted Stipulated Facts and 

Issues of Law”:

1. Jurisdiction of this action is conferred upon the Occupational Safety and Health Review 

Commission by section 10(c) of the Act (the Act).

2. Respondent Masonry Services Inc. dba MSI (MSI), is a corporation organized under the

laws of the State of New York and doing business in the State of New York, maintaining 

a principal office and place of business at 201 Snediker Ave., Brooklyn, NY 11207, is 

and at all times hereinafter mentioned was engaged in construction. 

3. Respondent North Eastern Precast LLC (NEP), a limited liability company organized 

under the laws of the State of New York and doing business in the State of New York, 

maintaining a principal office and place of business at 3963 State Highway 5S, 

Fultonville, NY 12072, is and at all times hereinafter mentioned was engaged in precast 

concrete manufacturing and installation.

4. Respondents MSI and NEP did and do act as a single employer for purposes of the OSH 

Act, and are deemed a single employer in this matter, subject to a single set of citations 

and proposed penalties, such that each citation item that was issued to NEP in this matter 

is consolidated with the analogous citation item that was issued to MSI in this matter, 
9

with the resulting consolidated items being against Masonry Services Inc. dba MSI/North 

Eastern Precast LLC, a single employer (MSI/NEP), and with the resulting proposed 

penalty for each consolidated citation item consisting of the penalty originally proposed 

against MSI. Respondent was the employer of the employees who were allegedly 

exposed to the hazards alleged in the citations issued to MSI and NEP.

5. Many of the materials and supplies used and/or manufactured by MSI/NEP originated 

and/or were shipped from outside the State of New York and MSI/NEP was and is 

engaged in a business affecting commerce within the meaning of sections 3(3) and 3(5) 

of the Act and is an employer within the meaning of section 3(5) of the Act.

6. James Sal Herrera is owner of NEP and is co-owner of MSI.

7. Jaime T. Herrera is the brother of James Sal Herrera and is co-owner of MSI.

8. Manuel Jesus Herrera is the brother of James Sal Herrera.

9. MSI executed a contract in 2012 with Vordonia Contracting & Supplies Corp. (Vordonia) 

for work to be performed by Respondent at a worksite located at 14 Brooklyn Avenue in 

Valley Stream, NY (the Worksite).

10. Vordonia was the general contractor for the work performed at the Worksite.

11. Patricio Solar was Vodonia’s primary representative at the Worksite with whom 

MSI/NEP communicated regularly about the Worksite.

12. Prior to commencing work, James Sal Herrera asked Patricio Solar about the status of the 

power lines on the worksite.

13. MSI/NEP coordinated with Patricio Solar regarding work performed at the Worksite. 

MSI/NEP advised Mr. Solar about the schedule of work, including the delivery of 

concrete floor planks.

14. Individuals who supervised employees of MSI/NEP at the Worksite in 2012 included 

James Sal Herrera and Manuel Jesus Herrera.

15. Individuals who provided personal protective equipment to employees of MSI/NEP at the 

Worksite in 2012 included James Sal Herrera and Manuel Jesus Herrera.

16. In or around September 2012, the power line located on the Brooklyn Avenue side of the 

worksite was de-energized.

17. Respondent performed work at the Worksite on, among other dates, December 1 and 5, 

2012. 

18. Respondent used a Liebherr LTM 1220-5.2 mobile crane at the Worksite in 2012.

19. Respondent possessed a copy of the operating manual/instructions for the Liebherr LTM 

1220-5.2 mobile crane.
10

20. On Saturday, December 1, 2012, Respondent used a Liebherr LTM 1220-5.2 mobile 

crane to hoist and set precast concrete floor planks on the Worksite.

21. On Saturday, December 1, 2012, Respondent had employees engaged in precast concrete 

erection at the Worksite. 

22. Respondent operated a JLG Lull Model 1044C-54 powered industrial truck at the 

Worksite in 2012.

23. Respondent possessed a copy of the operator manual for the JLG Lull Model 1044C-54 

powered industrial truck.

24. On April 23, 2010, MSI executed an Informal Settlement Agreement with OSHA to 

resolve an OSHA citation that had been issued to MSI as a result of OSHA inspection 

number 314087883.

25. Citation 1, Item 4 of the OSHA citation that was issued to MSI as a result of OSHA 

inspection number 314087883 alleged a violation of 29 CFR 1926.701(b). 

(Ex. J-1)

Applicable Law

To demonstrate a prima facie violation of an OSHA standard, the Secretary must prove

that: (1) the standard applies to the facts; (2) the employer failed to comply with the terms of 

that standard; (3) employees had access to the hazard covered by the standard, and (4) the 

employer had actual or constructive knowledge of the violation (i.e. the employer knew, or with 

the exercise of reasonable diligence could have known, of the violative condition). D.A. Collins 

Const. Co., Inc. v. Secretary of Labor, 117 F.3d 691, 694 (2d Cir. 1997); Atl. Battery Co., 16 

BNA OSHC 2131, 2138 (No. 90-1747, 1994). Knowledge or constructive knowledge may be 

imputed to an employer through a supervisory agent. N.Y. State Elec. & Gas Corp v. Secretary 

of Labor, 88 F.3d 98,105 (2d Cir. 1996). 

The Citations

Although the citations issued separately to MSI and NEP essentially allege violations of 

the same standards, there are a few differences. Besides some minor numbering differences, the 
11

repeat violation issued to MSI is cited as other-than-serious to NEP. As agreed to by the parties, 

the repeated charge will be retained as the allegation against the combined entity. For 

convenience, the following chart summarizes the items issued against each party, and the 

resultant merged consolidated citations that are addressed in this decision:

Standard MSI Citation NEP Citation Consolidated

29 CFR 100(a) Citation 1, item 1 Citation 1, item 1 Citation1, items 1

 items a and b 

1926.251(a)(2)(iii) Citation 1, item 2 Citation 1, item 2 Citation 1, item 2

1926.251(c)(9) Citation 1, item 3 Citation 1, item 3 Citation 1, item 3

1926.416(a)(3) Citation 1, item 4 Citation 1, item 4 Citation 1, item 4

1926.602(c)(1)(vi) Citation 1, item 5 Citation 1, item 5 Citation 1, item 5

1926.602(d) Citation 1, item 6 Not issued Citation 1, item 6

1926.1408(e) Citation 1, item 7 Citation 1, item 7 Citation 1, item 7

1926.1408(g)(1) Citation 1, item 8 Citation 1, item 8 Citation 1, item 8

1926.1412(c)(1) Citation 1, item 9 Citation 1, item 9 Citation 1, item 9

1926.1424(a)(2)(ii) Citation 1, item 10 Citation 1, item 10 Citation 1, item 10

1926.416(a)(1) Citation 2, item 1 Citation 2, items 1 Citation 2, item 1

instances a-d instances a-d

1926.1408(a)(2) Citation 2, item 2 Citation 2, item 2 Citation 2, item 2

1926.701(b) Citation 3, item 1 Citation 1, item 6 Citation 3, item 1 

(repeat) (repeat)

1926.502(k)(3) Citation 4, item 1 Citation 3, item 1 Citation 4, item 1
12

Discussion

At the hearing and in their briefs, the parties primarily focused on the willful allegations 

in Citation 2. Because that citation constitutes the heart of this case, and the allegations therein 

are relevant to several other lesser charges, it is discussed first.

Citation 2, item 1 (29 C.F.R. § 1926.416(a)(1))

Allegations

The citation alleges that, from December 3 to December 5, 2012, at various locations 

around the worksite, employees of Respondent were working as close as four inches to the 

energized power line that ran along Fourth Street, carrying 13 kV of electricity, phase to phase. 

The cited standard provides:

(a) Protection of employees. (1) No employer shall permit an employee to work in 

such proximity to any part of an electric power circuit that the employee could 

contact the electric power circuit in the course of work, unless the employee is 

protected against electric shock by de-energizing the circuit and grounding it or 

by guarding it effectively by insulation or other means. 

Merits

There is no dispute that Respondent was engaged in construction work. (Ex. J-1, ¶ 2). 

The evidence also establishes that the Fourth Street power line running along the construction 

site was energized. Accordingly, the standard applies.

Regarding instance (a), the CSHO testified that employees, who installed the engineered 

fall protection system on the third floor, came within three feet of the line. (Tr. 477). That 

distance assumed that the height of an average employee was only five feet. Manuel Herrera 

told the CSHO that the height of the third floor was eight feet. Therefore, the CSHO estimated 

that, a five foot tall employee would be approximately three feet below the power line when 
13

installing the engineered fall protection system. (Tr. 477-478). According to the CSHO, an 

employee more than five feet tall would have been even closer to the line. (Tr. 478).

In instances (b) and (c), based on descriptions given to him by Manuel Herrera, the 

CSHO estimated that employees constructing the masonry block wall on the north and east side 

of the building on December 4, worked approximately 12 inches below the inner-most power 

line on the Fourth Street Circuit. (Tr. 478-479, Ex. C-14). When work continued on December 

5, at the northeast corner of the third floor, employees constructing the masonry block wall 

worked between the inner-most and the middle overhead power line on the Fourth Street circuit. 

(Tr. 479). Based on information provided by Manuel Herrera, the physical dimensions of the 

concrete masonry units, and physical measurements obtained from LIPA, the CSHO estimated 

that employees worked approximately four inches from the primary power line and 14 inches 

from the secondary power line. (Tr. 480). 

In instance (d), the evidence demonstrates that, when the CSHO returned to the worksite 

on Dec. 5, at the north side of the third floor, the wall was actually built around the Fourth Street 

power line and that a sleeve had been placed over that portion of the line entering the wall. (Exs.

C-15, C-84). The CSHO testified that, when building the wall, employees had a phase to phase 

exposure because they were working between the inner-most and the middle overhead power 

lines on the Fourth Street circuit. (Tr. 479). Based on information provided by Respondent and 

line measurements by LIPA, the CSHO estimated that to, to have built the wall in this fashion, 

employees came within four inches of the primary line and approximately 14 inches from the 

secondary power line. (Tr. 479-480). The CSHO also estimated that, to actually capture the line 

in the wall on December 5, employees had to come within four inches of the lines. (Tr. 480-481). 
14

James Sal Herrera admitted that it was likely that the masonry wall was built by his employees. 

(Tr. 784). Also, whoever installed the sleeve on the line had to do so with their hands. (Tr. 305).

The evidence establishes that Respondent violated the standard as alleged and that its

employees were exposed to the hazard posed by the energized Fourth Street power line. 

Characterization

The Secretary alleges and the evidence demonstrates that Respondent knew of the 

violation and that the violation was willful.

1. Legal Standard

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. A. Schonbek & 

Co., v. Donovan, 646, F.2d 799, 800 (2d Cir. 1981); Valdak Corp., 17 BNA OSHC 1135, 1136 

(No. 93-239, 1995), aff’d, 73 F.3d 1466 (8th Cir. 1996) Williams Enterp. Inc., 13 BNA OSHC 

1249, 1256 (No. 85-355, 1987); Asbestos Textile Co., 12 BNA OSHC 1062, 1063 (No. 79-3831, 

1984). There must be evidence that an employer knew of an applicable standard or provision 

prohibiting the conduct or condition and consciously disregarded the standard. Without evidence 

of familiarity with the standard's terms, there must be evidence of such reckless disregard for 

employee safety or the requirements of the law generally that one can infer that if the employer 

had known of the standard or provision, the employer would not have cared that the conduct or 

conditions violated it. Williams Enterp, Inc., 13 BNA OSHC at 1257. 

Willfulness is negated by evidence that the employer had a good faith opinion that the 

conditions in its workplace conformed to OSHA requirements. E.g., Calang Corp., 14 BNA 

OSHC 1789, 1791 (No. 85-319, 1990). The test of good faith is an objective one, i.e., whether 

the employer’s belief concerning the factual matters in question was reasonable under all of the 
15

circumstances. In other words, the employer’s belief must have been “non-frivolous.” MorrisonKnudson, 16 BNA OSHC , 1105, 1127 (No. 88-572, 1993); See Secretary v. Union Oil, 869 F.2d 

1039, 1047 (7th Cir. 1989).

2. Analysis

After the December 1 inspection, Respondent had notice that the Fourth Avenue line was

energized. The CSHO told James Sal Herrera that the line posed a hazard and elicited a promise 

from Herrera that Respondent would avoid the line. (Tr. 419-421). Given the clear warnings 

given to him by the CSHO, I find James Sal Herrera’s assertion that, before December 5, he did 

not know that the Fourth Street line was not de-energized to be self-serving and not credible. (Tr. 

780). James Sal Herrera asserted that he did not know that the wall was built and that, had he 

known what his employees were doing, he would have stopped it. (Tr. 785). However,

Respondent’s superintendent and supervisor, Manuel Herrera was on the site and had authority to 

stop the work. (Tr. 786). Additionally, there were several foremen at the site. (Tr. 786). 

During the December 1 OSHA inspection, Manuel Herrera was clearly informed by the 

CSHO that the Fourth Street line was energized. He knew from his OSHA course work that no 

work should be performed within ten feet of energized power line. (Tr. 433). After asserting that 

he did not know whether the line was energized, he stated that “[t]here was no sign there, so I 

can work there” in a signed statement given to the CSHO. He noted that LIPA drove by, but did 

not stop to tell them that the line was energized. He then stated that “[i]f nobody tells me it’s 

energized, I will go there to work.” (Tr. 433). He continued: “[I]f I look at wires and I don’t 

know what is, I don’t care. If I know it is live, I stay ten feet away. If I don’t know if it is live or 

not, I can go near it.” (Tr. 433-444). 
16

The CSHOs presented multiple options to the Herreras that would have enabled 

Respondent to continue its work until the problems with the Fourth Street line were resolved. 

(Tr. 419). They were told by the CSHOs that they could stage the planks at another area of the 

building, or continue setting planks in other areas of the building where they would not get closer 

than 20 feet from the line. (Tr. 419). James Sal Herrera told the CSHOs that he could not return 

the trucks with the planks back to the upstate NEP plant because there was no money and he 

would have to eat the cost. (Tr. 420). He further indicated that they couldn’t stage the precast 

planks outside of the designated work area. Id. However, Herrera assured the CSHOs that they 

would set planks in safe areas without encroaching within 20 feet of the energized line. (Tr. 421). 

Despite these warnings, and contrary to James Sal Herrera’s assurances, Respondent continued

work in areas where employees were required to come literally within inches of the energized 

line. Indeed, both Manuel Herrera and crane operator Anthony Ferrara, Jr., told the CSHO that 

Respondent resumed its work immediately after the CSHOs left the site. (Tr. 422, 649-651). 

As the work continued, the crew came progressively closer to the line. (Tr. 409). Yet, 

James Sal Herrera testified that he never discussed with his foreman that the work was 

progressing to a point where they would have interference from the Fourth Street power line. (Tr. 

790). When asked why he did not have such conversations, Herrera explained that “I could give 

you a litany of excuses, just poor planning on our part.” (Tr. 791). When considered with the 

other evidence, what Herrera deemed “poor planning” looks more like a genuine lack of care.

Particularly reckless was Respondent’s building of the masonry wall enclosing the power 

line. When Clarke saw the power line passing through the hole in the wall he was shocked. 

Further, he stated that he had never seen anything like it before and wondered how it was 

possible to do something like that without anyone getting hurt or killed. (Tr. 85). LIPA 
17

representative Robert Braccia, who visited the worksite several times, stated that he had “never 

seen anything so horrendous in my [sic] life.” (Tr. 222)

Because Respondent continued to defy the warnings about the danger of the power line,

as manifested by two earlier Cease and Desist Notices, Clarke found it necessary to not only 

issue a third Cease and Desist Notice for the jobsite, but to also contact the local police and the 

township to ensure that Respondent ceased its hazardous activities.(Tr. 156). As previously 

noted, where the employer claims it did not know of the standard, its reckless disregard for 

employee safety can establish that even if actually informed of the hazardous condition, it would

not care. Williams Enterp. Inc., 13 BNA OSHC at 1257. Here, Respondent not only knew of the 

standard, it was also unambiguously informed that it was in violation and that its employees were 

exposed to a potentially fatal hazard. However, the evidence reveals that it did not care.

Respondent asserts that the violation was not willful because, rather than setting forth 

specific minimum distances that must be maintained from a power line, the standard requires 

only that employees not be allowed to work “in such proximity to any part of an electric power 

circuit that the employee could contact the electric power circuit.” This failure of the standard to 

delineate “close proximity” required it to exercise judgment. Respondent also asserts that, 

although the Secretary claimed that the insulation material around the power line was not 

sufficient to insulate it, the material was never tested. Moreover, the voltage of the line was not 

established. (Resp’ts Post Hr’g Br. at 8). 

These arguments are without merit. The evidence establishes that employees worked 

literally inches from the Fourth Street power line. While there may be legitimate judgmental 

differences regarding what constitutes an impermissible “proximity” to a power line, allowing 

employees to come within inches of the line clearly does not constitute a reasonable exercise of 
18

that judgment. Morrison-Knudson, 16 BNA OSHC at 1127. In any event, Respondent was 

warned by the CSHO about the proximity of the crane to the lines and, after assuring him that 

they would maintain an adequate clearance, resumed the hazardous activity as soon as the CSHO 

left the site. Similarly, while the insulation material around the wire was never tested, the 

testimony of both the CSHO and LIPA representative Robert Braccia established that it was not 

a material that was capable of providing any effective insulation of the line. (Tr. 234-235, 454). 

Moreover, regardless of the insulation qualities of the wire cover, employees still had to virtually 

touch the wire to install it. Finally, Respondent’s assertion that the voltage of the line was not 

tested is frivolous. Representatives from LIPA, which owns the lines, testified that the wires 

were energized and carried 7,620 volts in each line or a combined 13.2 kV. (Tr. 79).

Accordingly, I find that the evidence establishes that Respondent willfully violated the 

cited standard as alleged.

Penalty

1 Legal Standard

Section 17(j) of the Act, 29 U.S.C. § 666(j), requires that in assessing penalties, the 

Commission give "due consideration" to four criteria: the size of the employer's business, the 

gravity of the violation, the employer's good faith, and its prior history of violations. Specialists 

of the S., Inc., 14 BNA OSHC 1910 (No. 89-2241, 1990). These factors are not necessarily 

accorded equal weight. Generally speaking, the gravity of a violation is the primary element in 

the penalty assessment. J. A. Jones Constr. Co., 15 BNA OSHC 2201, 2214 (No. 87-2059, 

1993).
19

The gravity of a particular violation depends upon such matters as the number of employees 

exposed, the duration of the exposure, the precautions taken against injury, and the likelihood 

that any injury would result. Id at 2214.

The maximum statutory penalty for a willful violation is $70,000. Section 17(a) of the Act; 

29 U.S.C. §666(a). Based on the factors set forth in Section 17(j) of the Act, the Secretary 

proposed a penalty of $61,600

4

.

2. Analysis

The CSHO testified that gravity is composed of two parameters: severity and probability. 

(Tr. 481). Here, the severity was rated as high because, with voltages of 7,620 volts per line or 

13.2 kV phase to phase, death or serious physical injury was likely to result in the event of an 

accident. (Tr. 481-482). Taking into account the number of employees exposed, and the 

frequency of exposure, the probability of an incident was rated as “greater.” (Tr. 482). The 

CSHO testified that the resulting gravity was high, resulting in a gravity-based penalty of 

$70,000. (Tr. 482). 

With 51 employees for MSI was a small employer and Respondent was given a 20% 

reduction for size. (Tr. 483-484). However, the penalty was increased 10% because it had a 

substantial prior history of OSHA violations. (Tr. 483). Since 2000, Respondent has been

inspected 28 times and issued 96 citations, including multiple serious and repeat violations that 

were either affirmed through settlements or informal settlement conferences. (Tr. 486-487). 

Finally, no credit was given for good faith because the inspection resulted in citations for willful, 

serious and repeat violations. (Tr. 485). 

 

4 Originally, the Secretary assessed a separate penalty of $49,000 for this item against NEP. However, when the 

parties stipulated that the cases be joined, they also agreed that the penalties to be considered would be those 

proposed against MSI. (Joint Pre-Hr’g Statement, p. 12, ¶ 4)
20

Respondent argues that the proposed penalties are excessive and would cripple it. It also 

contends that other willful cases involving similar hazards resulted in lesser penalties. I am not 

persuaded. Respondent has introduced no financial statements to support its contention that the 

proposed penalties would result in financial distress. In any event, financial hardship imposed 

upon Respondent is not a statutory criterion for determining the appropriateness of a penalty. 

Finally, each case stands on its own and involves its own unique facts and circumstances. Other 

cases that resulted in lower penalties are not before this Court. I find that the facts and 

circumstances before this Court justify the penalty proposed by the Secretary. 

Citation 2, item 2 (29 C.F.R. § 1926.1408(a)((2)) 

The Allegation

The citation alleges that on or about December 1, 2012, employees hoisted and set 

precast concrete floor planks with a mobile crane. The rigging came within 8 feet of the 

overhead primary and secondary power lines which carried 13 kV phase to phase. 

The cited standard provides:

(a) Hazard assessments and precautions inside the work zone.

 * * *

(2) Determine if any part of the equipment, load line or load (including rigging 

and lifting accessories), if operated up to the equipment’s maximum working 

radius in the work zone, could get closer than 20 feet to a power line. If so, the 

employer must meet the requirements in Option (1), Option (2), or Option (3) of 

this section as follows:

(i) Option (1)-De-energize and ground. Confirm from the utility owner/operator 

that the power line has been de-energized and visibly grounded at the worksite.

(ii) Option (2)-20 foot clearance. Ensure that no part of the equipment, load line, 

or load (including rigging and lifting accessories), gets closer than 20 feet to the 

power line by implementing the measures specified in paragraph (b) of this 

section.

(iii) Option (3) –Table A clearance. 
21

(Note: Under table A the clearance for lines up to 50 kV is 10 feet. The CSHO explained that 

Option (2) would apply where the employer does not know the voltage of the power line. (Tr. 

490)).

Merits

The evidence establishes that Respondent, who was engaged in construction work, 

operated a crane in proximity to the energized overhead power line on Fourth Street. The 

standard applies.

As previously noted, when the CSHO went to the worksite on December 1, he found that 

the overhead line on Fourth Street constituted an imminent danger and requested that Manuel 

Herrera remove the employees from the hazard. (Tr. 348). Employees were actively engaged in 

setting precast concrete planks. The planks were rigged to a large hydraulic mobile truck crane 

with a 240 foot boom, hoisted over the Brooklyn Avenue circuit, near the Fourth Street power 

line, and placed along the east side of the structure along Fourth Street. (Tr. 365, 370). The 

Fourth Street line could not be de-energized because LIPA was unable to reroute service to its 

downstream customers. (Tr. 206). Therefore, at a minimum, Respondent was obligated to adhere 

to option (3) and maintain a minimum ten foot distance between the crane and the power line. 

Clarke explained that, because the Fourth Street line came so close to the building, it was 

not possible to maintain a ten foot clearance. (Tr. 67). Where the planks were being installed 

near Fourth Street Pole #1, the CSHO observed crane equipment operating less than ten feet 

from the power line. (Tr. 370-371, Exs. C-25, C-46). At that location, the horizontal distance 

from the innermost power line to the face of the building was approximately 4 feet 9 inches. (Tr. 

464, Exs. C-46, C-47 at 3). Where the planks were being installed near the middle of Brooklyn 
22

Pole #3

5

the pole was hanging over the building because it was out of plumb and leaning toward 

the building. (Tr. 364-365, 408-410, Exs. C-26A, C-46 at 2, C-47 at 1, C-69). Therefore, 

employees could not work on the Fourth Street side of the building without creating a proximity 

hazard. (Tr. 70). He testified that the power line posed a proximity hazard to the individual wire 

rope slings supporting the plank, the wire rope spreader assembly, and the planks themselves. 

(Tr. 373-374, 379-380, 386, Exs. C-25, C-61, C-66). The CSHO estimated that the planks and 

rigging came within eight feet of the load. (Tr. 374, 492-494, Ex. C-61). In some instances the 

rigging came even closer. (Tr. 492-494, Exs. C-21, C-60).

The planks themselves were conductive because they contained metal reinforcing 

material and could retain moisture. (Tr. 374, 381). Respondent asserts that the planks did not 

present a hazard because they were cast using a “zero slump mix”

6 which minimizes the 

moisture in the planks. (Tr. 707). However, the CSHO testified that, in his experience, concrete 

created by a zero slump mix still has moisture. (Tr. 617-618). I find that the evidence establishes 

that the planks contained moisture. Even accepting Respondent’s assertion, “minimizing” 

moisture is not the same as “eliminating” moisture. 

Employees who were guiding and setting the planks were touching the load and could 

have been electrocuted if any part of the crane made contact with the power line. (Tr. 379-382, 

385, Ex. C-38). The CSHO further explained that the proximity of the rigging and the planks to 

the power line risked the entire crane superstructure becoming energized. This could have

electrocuted employees located in or around the base of the crane at street level. (Tr. 373-374, 

380-381). Even without actual contact, the proximity of the crane and its components could have 

 

5 As previously noted, Brooklyn Pole #3 was the common pole that carried lines from both the Brooklyn Avenue 

and Fourth Street lines. 

6 A “zero slump mix” refers to the amount of slump cast concrete undergoes during testing. A “zero slump mix” 

generally sets faster and harder than other mixes. (Tr. 617-618, 706-707).
23

allowed it to enter the electric field created by the line, causing an arc flash which could have 

resulted in electrocution. (Tr. 53-54, 225). The record establishes the violation.

Characterization

The Secretary asserts, and the evidence establishes that the violation was willful.

The evidence demonstrates that, from the beginning of the project, Respondent was fully 

aware that the Fourth Street line posed a proximity hazard. Similarly, Respondent

superintendent Manuel Herrera told OSHA that he learned in OSHA classes that a crane must 

maintain a ten foot distance from energized power lines. (Tr. 433). The crane’s operating 

manual, which warned about the hazard of operating cranes near power lines and the minimum 

distance requirements, was used by Respondent at the worksite. (Tr. 454-457, Ex. J-1 at ¶¶ 18-

20, Ex. C-40 at pp. 13-14).

James Sal Herrera and MSI Vice President, Jaime T. Herrera, were aware of the OSHA 

rule that crane equipment cannot come near a power line. (Tr. 799-800, Ex. J-2 at 6-7, 11-13). 

At the pre-job meeting, James Sal Herrera told Solar that both the Fourth Street and Brooklyn 

Avenue power lines would pose a problem as the building went vertical because they were less 

than ten feet from the worksite, and that they had to be moved or insulated to perform the crane 

work. (Tr. 699, 801). In a statement given to the CSHO, James Sal Herrera stated that “I knew 

power lines on Fourth Street and Brooklyn Avenue were less than ten feet and told Patricio 

[Solar] in late summer 2012 meeting.” (Tr. 444) He further stated that he told Solar that 

Vordonia “would have to relocate/insulate the power lines.” (Tr. 442-443, 801). However, 

LIPA’s July Cease and Desist Order7gave Respondent unambiguous notice that none of the lines 

 

7 Even though the Cease and Desist Order was handed to Solar, Respondent had notice of its existence and scope. 

The site was shut down thereby suspending all work including the prime target of the Order --- the RESPONDENT

employees working on the Fourth Street side of the project. Moreover, Clarke posted and handed out to employees 
24

had been de-energized. Respondent asserts that it assumed that Solar would take care of the 

problem. Any assumption that the Fourth Street line was de-energized was fully dispelled in 

August when the second cease and desist notice was issued. 

The August Cease and Desist Order not only provided notice to Respondent that the 

Fourth Street line remained energized, it also put it on notice that it was encroaching into the 

safety zone of the lines. Furthermore, Guerson Carelus testified that on August 23rd, he talked 

with the employees and a supervisor and told them that they were working too close to the wires. 

(Tr. 174-177, 446-447). When the supervisor insisted that he was told by Solar that it was okay 

to work where they were, Carelus told them that the situation was dangerous and people could 

die. (Tr. 177). Carelus informed him that they could work on Brooklyn Avenue, because it was 

de-energized. (Tr. 177). 

 According to Solar, between August and December, Respondent made repeated 

inquiries about LIPA moving the Fourth Street line. (Tr. 320-321). On several occasions, as 

construction neared the Fourth Street power line, Respondent told him that if the line was not 

moved, they would have to pack up and leave until it was time to come back. (Tr. 294-295). 

Solar suggested to them that they work on the side of the building away from Fourth Street. (Tr. 

290-291). Yet, despite the Cease and Desist Orders and its own concerns, and despite its 

expressed awareness that they were operating in violation of the ten foot clearance rule, 

MEP/NEP continued to work on the Fourth Street side of the site in plain indifference to 

employee safety.

Respondent makes several arguments that the violation was not willful. First, it claims

that James Sal Herrera thought that the overhead wires were phone lines, not power lines. It 

 

handbills warning about the hazards of working around power lines. It seems implausible that Respondent did not at 

least inquire as to why its work was shut down. 
25

asserts that 90% of its work was in New York City where the power lines are buried 

underground and, therefore, he was not familiar with overhead power lines. This excuse 

challenges credulity. As noted, it was James Sal Herrera who brought the hazard of the power 

lines to the attention of Patricio Solar at the pre-job meeting. He told Solar that the lines had to 

be either moved or insulated, which clearly establishes that he knew that they were power lines. 

This evidence clearly demonstrates that if Herrera had any misunderstanding about the nature of 

the lines encroaching on the worksite, they were dispelled during this pre-job meeting. Herrera 

was further warned by the August Cease and Desist Order that the Fourth Street power line was 

energized.

Respondent next asserts that it relied on Solar’s assurance that he would resolve the 

problem of the lines with LIPA. However, the August Cease and Desist Order from LIPA 

unmistakably informed Respondent that, while the Brooklyn Avenue line was de-energized, the 

Fourth Street line remained a problem. James Sal Herrera claimed that he saw the red jumpers 

on the common pole and assumed it meant that the Fourth Street line was de-energized. (Tr. 

716, 807). However, those jumpers were on the pole shortly after the July Cease and Desist 

Order was issued. The August Cease and Desist Order was issued because the Fourth Street line 

remained energized. Respondent offers no explanation why the August Cease and Desist Order 

did not put them on notice that the Fourth Street line remained energized. Rather, Respondent

asserts that it just assumed, but never specifically inquired whether the Fourth Street line was deenergized. Indeed, Herrera’s claim that he was so lacking experience with overhead lines that he 

could not tell the difference between phone lines and power lines must be weighed against his 

decision to assume, but not confirm, that the Fourth Avenue line was de-energized. If Herrera 

could not tell the difference between power lines and phone lines, he would not have been able to 
26

tell which circuit the red jumpers indicated was de-energized. His failure to ascertain the status

of the lines while continuing to expose his employees to the hazard of electrocution constituted 

nothing less than a plain indifference to employee safety. 

Respondent asserts that when hurricane Sandy struck in late October 2012, the power was 

knocked out of the area. (Tr. 229-230, 242). It suggests that it did not know that power had been 

restored and believed that the power remained out on the Fourth Street line. This argument is 

without merit. Power was restored to all of Long Island by the end of November. (Tr. 243). 

There is nothing in the record to suggest that Respondent ever inquired whether the power 

remained out. Yet, knowing that if power was restored, it was exposing its employees to the 

hazard of electrocution, it continued working. Again, this demonstrates plain indifference to 

employee safety. 

Respondent’s lack of regard for employee safety was further underscored by its conduct 

after the inspection. During the inspection, the CSHO unambiguously warned Respondent of the 

hazard posed by the Fourth Street line. The CSHO deemed the situation an imminent hazard and 

had Respondent remove its employees from the zone of danger. Respondent promised him that 

work on the Fourth Street side of the site would not continue until the hazard was abated. Yet, 

once the CSHO left the site, Respondent proceeded to completely ignore the warning and its own 

promise and, with reckless disregard to the safety of its employees, resumed work on the Fourth 

Street side. One of the tests for willfulness is whether the employer was actually aware that the 

act was unlawful, or that it possessed a state of mind such that if it were informed of the 

standard, it would not care. Propellex Corp., 18 BNA OSHC 1677, 1684 (No. 96-0265, 1999).

Here, Respondent was informed of the standard and the hazard to which it was exposing its 

employees, however, its actions demonstrated that it simply did not care. 
27

The evidence leads to only one conclusion, that Respondent was plainly indifferent to 

employee safety and that the violation was willful. 

Penalty

As with Citation 2, item 1, the Secretary proposed a penalty of $61,600 for Citation 2, 

item 2. The CSHO testified that the severity of the violation was high because death or serious 

injury could occur as a result of the hazard. The probability was deemed to be greater because of 

the number of employees exposed and the repetitive nature in which exposure occurred. (Tr. 

495-496). As a result, the gravity-based penalty was $70,000. (Tr. 496). The CSHO further 

testified that, as with Citation 2, item 1, a 20% adjustment was made for Respondent’s size, a 

10% increase was made for Respondent’s substantial OSHA history, and no deduction was given 

for good faith. (Tr. 496-497).

I find that the Secretary properly considered the gravity of the violation to be high, and 

that he properly considered the statutory factors when arriving at his proposed penalty. 

Accordingly, a $61,600 penalty is assessed. 

Citation 1, item 1

Allegation

Citation 1, item 1 alleges that Respondent committed a serious violation of 29 CFR 

§1926.100(a) on the grounds that at the east side of the building, on the third floor:

Employees setting precast concrete planks were working near and directly below 

the suspended load without helmets, on or about December 1, 2012. 

The cited standard provides:

(a)Employees working in areas where there is a possible danger of head injury 

from impact, or from falling or flying objects, or from electrical shock and burns, 

shall be protected by protective helmets.
28

Merits

Respondent was engaged in the construction of a multi-level building using, among other 

things, a crane to hoist materials. Therefore, the standard applies.

The CSHO testified that, on December 1, 2012, employees engaged in precast concrete 

construction, were hoisting precast concrete planks with a crane and working near and directly 

below the suspended load, without protective helmets. (Tr. 380, 500, Exs. C-38, C-64). The 

condition was visible from street level and Respondent’s supervisor, Manuel Herrera was present 

at the site. (Tr. 501). 

Also, on December 6, the CSHO witnessed and photographed an employee on a truck, 

working below the booms during a tandem powered electrical truck lift where employees were 

loading counterweights onto a flatbed truck. (Tr. 501-503, 506, Exs. C-85, C-86). This 

condition occurred in front of the worksite, close to the Brooklyn Avenue/Rockaway 

intersection, along Brooklyn Avenue. (Tr. 502). As with the previous instance, Supervisor,

Michael Herrera was present when the CSHO observed the violations. (Tr. 508). The conditions 

exposed the employees to being struck in the head by the planks. (Tr. 380). I find that the 

preponderance of the evidence establishes that the standard was violated as alleged. 

That the violation was committed in full view of Supervisor, Manuel Herrera, establishes 

that, with reasonable diligence, Respondent knew or could have known of the violative 

conditions. 

Affirmative Misconduct Defense

Respondent asserts that the violation was the result of employee misconduct. It points out 

that James Sal Herrera testified that all employees are provided with and required to wear 

protective head gear. (Tr. 747). In most cases, to establish the affirmative defense of 
29

“unpreventable employee misconduct,” the employer must rebut the Secretary’s showing of 

knowledge by proving that: (1) it has established work rules designed to prevent the violation, 

(2) it has adequately communicated these rules to its employees, (3) it has taken steps to discover 

violations, and (4) it has effectively enforced the rules when violations are discovered. E.g., D.A. 

Collins Const. Co., v. Secretary of Labor, 117 F.3d at 695; Rawson Contractors, Inc., 20 BNA 

OSHC 1078, 1081 (No. 99-0018, 2003); Precast Servs., Inc., 17 BNA OSHC 1454, 1455, (No. 

93-2971, 1995), aff'd without published opinion, sub nom Precast Servs. v. Reich, 106 F.3d 401 

(6th Cir. 1997). However, this case arose in and is appealable to the Second Circuit. In N.Y. 

State Elec. & Gas Corp. v. Secretary of Labor, 88 F.3d at 108, the Second Circuit held that,

where the sufficiency of an employer’s safety program is at issue, the burden is on the Secretary 

to establish that the program was not adequate. I find that the Secretary met that burden. 

The evidence establishes that protective hard hats were provided to employees and that 

Respondent had a rule requiring them to be worn. (Tr. 451, 613). Respondent asserts that 

employees gave statements to the CSHO that they are required to wear hard hats. Although 

employee statements were marked for identification, they were not admitted into evidence. 

Rather, portions of their statements were read into the record8. (Tr. 585-586). None of those 

portions related to protective headgear. Although the Secretary did not introduce these 

statements into evidence, nothing prevented Respondent from doing so, if it believed that it 

contained exculpatory information. Moreover, in its brief, Respondent does not cite to any part 

of the statements, either read into the record or not, that would support its assertion. A review of 

the record does reveal that, during cross-examination of the CSHO, a portion of the statement of 

Quacy Jones was read into the record, where the employee stated that “Sal Herrera would make 

 

8 The employees were crane operator, Anthony Ferrara, (Tr. 445-446); rigger, Quacy Jones, (Tr. 450); and

production manager, Paul Hartman. (Tr. 451). The exhibits marked, but not admitted were C-43 (Ferrara); C-43 

(Jones); and C-33 (Hartman). 
30

sure everyone had their hard hats.” (Tr. 451, 613). However, mere words does not a safety 

program make. 

The evidence establishes that James Sal Herrera was not always on the site. (Tr. 783-

786). In his absence, his brother Manuel Herrera had supervisory authority. (Tr. 786). The 

violative conditions occurred in full view of Manuel Herrera. That employees felt free to violate 

the rule in front of their supervisor demonstrate that the rules were not actively enforced. See 

Falcon Steel Co., 16 BNA OSHC 1179, 1194 (No. 89-2883, 1993)(consolidated). There is no 

evidence to suggest that Respondent was enforcing its work rule. I find that the evidence 

adduced by the Secretary, and Respondent’s failure to rebut that evidence by demonstrating that 

it took measures to enforce the work rule, establishes the inadequacy of its safety program. See 

D.A. Collins Constr. Co., 117 F.3d at 695-696.

Characterization and Penalty

The CSHO testified that death or serious physical harm would have likely occurred had 

an employee been struck in the head by a plank. (Tr. 509). The violation was properly 

characterized as serious. 

The Secretary proposed a penalty of $6,160. The CSHO testified that both the severity of 

the violation and the probability of an accident were high. According to the CSHO the 

probability of an accident was “greater” because there were multiple employees repetitively and 

repeatedly exposed to the hazard. (Tr. 509). The Secretary arrived at an unadjusted gravity-based 

penalty of $7,000. (Tr. 509). The same penalty adjustments considered for the willful violations 

were considered here. (Tr. 510). I find that the proposed penalty properly considers the 

statutory factors and that the $6,160 proposed penalty is appropriate. 
31

Citation 1, item 2

Allegation

Citation 1, item 2 alleges that Respondent committed a serious violation of 29 CFR 

§1926.251(a)(2)(iii) on the grounds that the loads did not have permanently affixed markings 

indicating the safe working loads at the following locations:

a) on or about December 1, 2012, on Brooklyn Avenue and the east side of the third 

floor-the wire rope slings used to hoist precast concrete floor planks; 

(b) on or about December 1, 2012, on Brooklyn Avenue and the east side of the third 

floor, the two legged wire rope spreader assembly used between the crane hook and the wire 

rope slings on the load being hoisted; and

(c) on or about December 6, 2012, by Brooklyn Avenue, the endless wire rope sling used 

to load the crane counterweights, which weighed 10 tons (20,000 pounds). 

The cited standard provides:

(a) General

* * *

(2) Employers must ensure that rigging equipment:

* * *

(iii) Not be used without affixed, legible identification markings, required by 

paragraph (a)(2)(i) of this section9. 

Merits

Respondent is a construction contractor and was using rigging equipment for material 

handling. Therefore, the standard applies.

According to the CSHO, it is important for the identification tags to be affixed to the 

equipment because they indicate the types and manner of hitches that could be used. They also 

 

9 The referenced section requires that rigging equipment has “permanently affixed and legible identification

markings as prescribed by the manufacturer that indicate the recommended safe working load.” 29 C.F.R. 

§ 1926(a)(2)(i).
32

indicate the angles and safe working loads that are permitted for that particular piece of 

equipment. (Tr. 513).

The CSHO testified that, in instance (a) and (b), employees were actively engaged in 

hoisting precast planks with a crane. Instance (a) refers to the individual wire rope slings located 

at each end of the precast planks, used to hoist the planks. Some of the slings were missing tags.

(Exs. C-65, C-89). One tag was illegible and the CSHO was unable to read the diameter or safe 

working loads. (Tr. 514-516). The evidence also establishes that there was no tag on the wire 

rope spread assembly as alleged in instance (b). (Tr. 515, Ex. C-65). 

Regarding instance (c), Ex. 90 shows an endless wire rope sling that was one of the two 

slings used to hoist the crane counterweight onto the back of a flatbed truck along the front of 

Brooklyn Avenue. (Tr. 517-518). The sling did not have a tag affixed to it to indicate the safe 

working load or diameters. (Tr. 518). Respondent does not specifically address this item in its 

post-hearing brief. However, at the hearing, James Sal Herrera testified that all the rigging it 

purchased had two tags affixed one on each end of the cable. He speculated that the tags might 

have fallen off. (Tr. 771). Respondent adduced no evidence to indicate that it had a program 

requiring that the tags be regularly checked for the presence and legibility. To the contrary, the 

number of tags missing, together with the lack of legibility of another tag demonstrates that 

Respondent had no program for regularly checking the tags. Therefore, the record establishes 

that Respondent knew, or with the exercise of reasonable diligence could have known of the 

violative condition. 

The failure to comply with the standard was established.

The CSHO testified that the failure to have legible tags affixed to the gear exposed 

riggers, signalmen, and laborers engaged in setting the precast planks to a hazard. (Tr. 518). As
33

to items (a) and (b), he explained that riggers would rig the planks singly or sometimes double on 

the backs of the trucks. Once the slings were placed underneath each end of the plank, it was 

connected to the wire rope spread assembly that was attached to the main load line of the crane. 

Employees would stand, holding the wire rope sling in position until the crane could obtain 

sufficient tension to enable them to let go without the sling moving to the center or coming off 

the end. Once the wire sling attained proper retention, the crane operator would begin to hoist it. 

The riggers would climb down off the trucks while the load was simultaneously hoisted to an 

elevation sufficient to clear the primary circuit on the Brooklyn Avenue side of the site. This 

exposed them to the hazard of being struck in the event that the chocker they used failed because 

they were unknowledgeable about the safe working load. (Tr. 517-520). Laborers and 

signalmen were exposed to the same hazard as the load was being lowered. (Tr. 520).

In instance (c), the employee on the back of the flatbed truck was exposed because he 

was positioning the counterweight. (Tr. 520). Without the tags, none of the employees at the 

work site knew the safe working load or the manner in which the sling could be used to properly 

rig those counterweights during the lift operation. (Tr. 521). 

Characterization and Penalty

The evidence establishes that a sling failure could have resulted in an employee being 

crushed to death. (Tr. 521). Therefore, the violation was properly characterized as serious. 

The Secretary proposed a penalty of $6,160 for this violation. The CSHO testified that 

the probability of an accident was “greater” because of the number of employees exposed. 

Employees were exposed throughout the course of their work and the repetitive nature of the 

activity. (Tr. 521-522). As a result, the Secretary arrived at a gravity based penalty of $7,000. 

According to the CSHO, the Secretary applied the same adjustments for history, good faith and 
34

size made in the previous items in arriving at an adjusted proposed penalty of $6160. I find that 

the Secretary properly applied the statutory factors when arriving at the proposed penalty. 

Therefore, the proposed penalty of $6,160 is assessed. 

Citation 1, item 3

Allegation

Citation 1, item 3 alleges a serious violation of 29 CFR §1926.251(c)(9) on the grounds 

that, on or about December 1, 2012, by Brooklyn Avenue, on the east side of the third floor, the 

“wire rope slings used to hoist the precast concrete planks, weighing up to approximately 11,000 

pounds, were not protected from the sharp edges of the precast concrete floor planks”. 

The cited standard provides that:

(c) Wire Rope

(9)Slings shall be padded or protected from the sharp edges of their loads.

Merits

The evidence establishes that Respondent is engaged in construction work and was using 

slings to lift loads. The standard applies.

The padding prevents the rigging from being damaged. Nylon slings can fray or tear; the 

outer jackets of component slings can tear and expose the internal core. Individual strands or 

entire cores from wire rope slings can suffer abrasion. (Tr. 523). 

The CSHO testified that on December 1, 2012, Respondent used wire rope slings to hoist 

precast planks. The evidence establishes that the planks had sharp edges, but were not padded or 

protected. (Tr. 523, Ex. C-36). As in Citation 1, item 2, employees exposed included riggers, 

laborers and signalmen engaged in hoisting the planks. (Tr. 524-525). Respondent’s supervisor, 

Manuel Herrera, was present during the crane work. (Tr. 525). Therefore, Respondent knew, or 

with the exercise of reasonable diligence could have known of the violative condition. 
35

Respondent does not address the merits of this item in its brief. I find that the preponderance of 

the evidence establishes that Respondent violated the standard as alleged. 

Characterization and Penalty

The Secretary proposed a penalty of $4,400. The CSHO testified that the severity of the 

violation was high because a sling failure could result in death or serious injury. (Tr. 525). 

Therefore, the violation was properly characterized as serious. The probability of an accident 

was rated as lesser, resulting in a gravity-based penalty of $5,000. (Tr. 526). To that penalty, the 

Secretary made the same percentage adjustments as in the earlier discussed violations. I find that 

the Secretary properly considered the statutory factors when proposing the penalty. The proposed 

penalty of $4,400 is assessed. 

Citation 1, item 4

Allegation

Citation 1, item 4 alleges that Respondent seriously violated 29 CFR §1926.416(a)(3) on 

the grounds that at times prior to and including December 21, 2012, on the north and east sides 

of the building on the second and third floors:

Signs were not posted identifying the locations of the overhead primary and 

secondary power lines that were in close proximity to the building. In addition, 

the employer did not warn employees about the hazards or the proper protective 

measures to be taken when they worked in close proximity to the overhead 

primary and secondary power lines.

The cited standard provides:

(a) Protection of employees

(3)Before work is begun the employer shall ascertain by inquiry or direct 

observation, or by instruments, whether any part of an energized electric power 

circuit, exposed or concealed, is so located that the performance of the work may 

bring any person, tool, or machine into physical or electrical contact with the 

electric power circuit. The employer shall post and maintain proper warning 

signs where such a circuit exists. The employer shall advise employees of the 
36

location of such lines, the hazards involved, and the protective measures to be 

taken. 

Merits

The evidence demonstrates that Respondent is a construction contractor. The evidence 

also demonstrates that its employees were working in proximity to the energized line on Fourth 

Street. The standard applies. 

The CSHO testified that there were no signs posted with respect to either the energized 

primary or secondary overhead lines on the Fourth Street side of the work site. (Tr. 527-528).

Moreover, James Sal Herrera testified that employees were not advised about the energized line, 

the hazards involved or the protective measures to be taken. (Tr. 720-722). In his statement 

given to the CSHO, Manuel Herrera stated that when some of the masons and laborers asked him 

about the Fourth Street line, he told them only “not to damage it.” (Tr. 433). Respondent failed 

to comply with the standard. 

As previously discussed, the evidence also demonstrates that Respondent knew, or with 

the exercise of reasonable diligence could have known that the Fourth Street power line was

energized. Both James Sal Herrera and Manuel Herrera knew that they did not provide the 

requisite information to its employees.

Characterization and Penalty

All the employees at the worksite were exposed to the hazard of electrocution because 

they were not informed of the hazard involved in working near energized power lines. (Tr. 528). 

Had the lack of information resulted in an employee getting too close to the energized power 

line, he/she likely would have been electrocuted thereby resulting in death or serious harm. (Tr. 

522). The violation was properly characterized as serious.
37

The Secretary proposed a penalty of $6,160 for this serious violation. (Tr. 528). The 

CSHO testified that, because the violation exposed employees to the hazard of death or serious 

injury by electrocution, the severity of the violation was considered to be high. (Tr. 528). Due to

the number of employees exposed to the hazard, the frequency of the exposure, and the repetitive 

nature of the exposure, the probability of an accident was considered to be greater. (Tr. 528). 

This resulted in a gravity-based penalty of $7,000. After adjusting for Respondent’s size, 

history, and good faith, as discussed earlier, the Secretary proposed a penalty of $6,160. I find 

that the Secretary properly considered the statutory factors and the proposed penalty is 

appropriate.

Respondent asserts that this item, along with Citation 1, items 7 and 8 are duplicative of 

the violations set forth in Willful Citation 1, items 1 and 2. The merits of these assertions will be 

discussed, infra.

Citation 1, item 5

Allegation

Citation 1, item 5 alleges that on or about December 6, 2012, Respondent committed a 

serious violation of 29 CFR §1926.602(c)(1)(vi) on the grounds that

The JLG Lull Telehandler forklifts, Serial #s 0160029366 and 

0160013049, used to load the crane counterweights onto a flatbed truck were 

operated beyond the rated load capacity.

The cited standard provides:

(c) Lifting and hauling equipment(other than equipment covered under subsection 

N of this part).

(1) Industrial trucks shall meet the requirements of § 1926.600 and the following:

(vi) All industrial trucks in use shall meet the applicable requirements of design, 

construction, stability, inspection, testing, maintenance, and operation as defined 

in American National Standards Institute B56.1-1969, Safety Standards for 

Powered Industrial Trucks. 
38

Merits

The evidence establishes that Respondent is a construction contractor and was using 

powered industrial trucks. The standard applies.

On December 6, 2012, the CSHO observed Respondent using two forklifts to 

simultaneously load two counterweights onto the back of a flatbed truck. (Tr. 533, Ex. C-86). 

One of the counterweights weighed 10 tons or 20,000 pounds. (Tr. 534, Ex. C-95). The forklifts 

in use were model 1044C-54 Series II. (Tr. 534-535, Ex. C-87). The outriggers were not 

deployed which could have increased the stability of the lift. (Tr. 548). The CSHO testified that, 

based on the extension of the booms and the angle of operations, the load charts for that forklifts

indicated that the maximum allowable load capacity for the procedure was 11,000 pounds. (Tr. 

540-544, Ex. C-5). The lift exceeded the combined capacity of the forklifts by 9,000 pounds. 

(Tr. 544). Therefore, Respondent violated the applicable American National Standard Institute 

(ANSI) standard which requires that forklift operators “[h]andle only loads within the rated 

capacity of the truck.” ANSI B56.1-1969 §605(b) (Ex. C-42 at p 7, ¶ 605B). 

The CSHO further testified that he observed a hydraulic hose failure on one of the two 

forklifts used during the hoisting operations. (Tr. 544-545). He asserted that the hose ruptured 

immediately after the second counterweight was loaded. There was foaming liquid where the 

internal hydraulic fluid penetrated through the outer jacket of the hose. The foam had emulsified 

from the pressure of the release. (Tr. 546). He explained that all forklifts, boom and fork 

operations and the outrigger operations are dependent upon a single hydraulic system. (Tr. 545).

Respondent asserts that it operated according to an engineer’s drawing which called for 

two forklifts. Therefore, it operated in good faith in compliance with those drawing. 

Respondent’s argument is without merit. 
39

The CSHO testified that the plan relied on by Respondent was not followed and that it 

was not representative of the manner in which the forklifts were configured. Specifically, the 

drawing reflects the crane as originally manufactured. However, the forklift used had been 

modified with an eight-foot vertical adjusting mass at the connection to the forklift. (Tr. 536-

537, Ex. C-4). Most importantly, the plan signed off on by the engineer was for an eight ton lift, 

not a ten ton lift. (Tr. 536-537). Therefore, the lift exceeded the engineered plan used by 

Respondent by two tons. Respondent did not rebut the CSHO’s testimony. Respondent’s 

assertion of good faith is without merit and I find that the evidence establishes that Respondent

violated the standard as alleged10.

The CSHO testified that exposed employees included laborers, the truck operators, and 

Manuel Herrera himself, who admitted to operating one of the powered industrial trucks. (Tr. 

546-547). Manuel Herrera was present during the lift operations. (Tr. 546). I find that he knew, 

or with the exercise of reasonable diligence could have known of the violative condition.

Characterization and Penalty

The Secretary proposed a penalty of $6,160 penalty for this item. The CSHO testified 

that the results of a lift failure would likely be death or serious injury. The violation was properly 

characterized as serious. Also, the severity of the violation was high. (Tr. 547). The probability 

of an accident was considered to be “greater” because of the amount of weight exceeding the 

limits. On this basis, the Secretary arrived at an unadjusted gravity-based penalty of $7,000. 

After applying the statutory adjustments, the Secretary arrived at a proposed penalty of $6,160. I 

 

10 In any event, good faith is a statutory criterion used when determining a penalty and generally is not a defense to a 

violation. Good faith is a defense against a charge of willfulness. Williams Enterp., Inc., 13 BNA OSHC at 1256-

57. However, this item was not alleged to be willful. 
40

find that the Secretary properly considered the statutory factors in arriving at the proposed 

penalty, and it is assessed. 

Citation 1, item 6

The Allegations

Citation 1, item 6 alleges that Respondent seriously violated 29 CFR § 1926.602(d) on 

the ground that, on or about December 6, 201211,

The employee operating the JLG Lull Telehandler Rough Terrain Fork 

Lift #10, Model # 1044C-54 Series II, Serial # 0160029366, to load crane 

counterweights was not a qualified fork lift operator. 

The cited standard requires that powered industrial truck drivers be trained in accord with 

the standard for powered industrial trucks at 29 CFR §1910.178(l) which provides:

(l) Operator training. (1) Safe operation. (i) The employer shall ensure that each 

powered industrial truck operator is competent to operate a powered industrial 

truck safely, as demonstrated by the successful completion of the training and 

evaluation specified in this paragraph (l).

(ii) Prior to permitting an employee to operate a powered industrial truck (except for 

training purposes), the employer shall ensure that each operator has successfully completed the 

training required by this paragraph (l), except as permitted by paragraph (l)(5).Merits

The evidence establishes that Respondent is a construction contractor and was operating 

powered industrial trucks. Therefore, Respondent was required to ensure that its truck operators 

were properly trained. The cited standard applies.

During the inspection, the CSHO interviewed employee Louis Lara and observed him in 

one of the forklifts during the tandem lift operation. (Tr. 550-551). After being asked several 

 

11 The citation originally alleged that the violation occurred on December 1. At the hearing, the CSHO explained 

that the date was entered by mistake and that the alleged violation took place on December 6. (Tr. 552-553). The 

citation was amended without objection to reflect the correct date. (Tr. 553).
41

general questions about safety, the CSHO directly asked Lara if he had any powered industrial 

truck or forklift training. Lara replied that he had no such training. (Tr. 551). Manuel Herrera, 

who was present during the interview, told the CSHO that Lara was not operating the forklift. 

Rather, Herrera asserted that he was operating it and that Lara was only sitting in the machine.

However, the CSHO testified that Lara operated one of the two forklifts involved in the tandem 

lift. (Tr. 588).

James Sal Herrera testified that Lara had been trained to operate the forklift. Herrera 

asserted that Lara had operated forklifts before coming to work for Respondent. (Tr. 749). He 

further testified that when Lara came to work for Respondent, he had to be trained on their 

machines, which were different than the type Lara was used to driving. (Tr.749). According to 

Herrera, Lara was trained by one of his brothers and received a yearly refresher course along 

with all the other forklift operators. (Tr. 749). 

Respondent also asserts that Lara, whose native language is Spanish, speaks only broken

English. (Tr. 748). As a result, it contends that the CSHO was not able to effectively 

communicate with him. The CSHO testified that, while Lara might have been a Spanish speaker, 

when interviewed, he spoke English. (Tr. 588).

I find that the preponderance of the evidence establishes that that Lara operated the 

forklift without the proper training. The CSHO testified that Lara was operating the forklift. (Tr. 

588). Had Lara been merely sitting in it, he could have communicated that to the CSHO during 

the interview. Similarly, Lara could have told the CSHO that he received training from one of the 

Herrera brothers. Indeed, Manuel Herrera was present during the interview of Lara. If Lara had 

been trained by him or one of his other brothers, nothing prevented him from correcting Lara. 

This is especially so if there had been a language problem that prevented Lara from fully 
42

understanding the question or providing a coherent answer. Finally, when the CSHO inquired 

about Lara’s training, Herrera’s response was only that it was like “driving a truck.” (Tr. 552).

Respondent could have rebutted the Secretary’s prima facie showing of a violation by 

introducing documentary evidence to demonstrate that Lara had been trained; or it could have 

called Lara to testify and explain his training. Respondent did neither. Moreover, James Sal 

Herrera’s assertion that Lara was trained by his brothers fails to establish the nature or 

sufficiency of the training. 

Supervisor, Manuel Herrera was present at the time Lara was operating the forklift. As 

the supervisor and superintendent, he knew or with the exercise of reasonable diligence could 

have known that Lara was not properly trained. Therefore, Respondent had knowledge of the 

violation. At a minimum, Lara and Manuel Herrera were exposed to the hazard posed by an 

untrained operator operating the forklift. 

Characterization and Penalty

The Secretary proposed a penalty of $4,400 for this violation. The evidence establishes 

that the violation was serious. The CSHO testified that the severity of the violation was high 

because death or serious harm could result from an accident that occurred because the forklift 

was operated by an untrained operator. (Tr. 559). The CSHO also testified that the probability of 

an accident was “lesser,” resulting in a gravity-based penalty of $5,000. After applying the 

aforementioned statutory factors, the Secretary proposed a penalty of $4,400. I find that the 

Secretary properly considered the statutory factors, and that the proposed penalty is appropriate. 
43

Citation 1, item 7

Allegation

Citation 1, item 7 alleges a serious violation of 29 CFR §1926.1408(e) on the grounds 

that on or about December 1, 2012:

(a) On the east side of the building, the employer assumed that the overhead primary and 

secondary lines located on Fourth Street overhead primary and secondary power lines located on 

Fourth Street were de-energized where a crane was operating;

(b) On the east side of the building, the employer did not confirm with the utility 

owner/operator that the overhead power lines located on Brooklyn Avenue continued to be deenergized where the crane was operating.

The cited standard provides:

(e)Power lines presumed energized. The employer must assume that all power 

lines are energized unless the utility owner/operator confirms that the power line 

has been and continues to be de-energized and visibly grounded at the worksite. 

Merits

The evidence establishes that Respondent is a construction contractor and that, at all 

relevant times, it was working near and around overhead power lines. The standard applies. 

As discussed in Citation 2, item 2, the evidence demonstrates that Respondent’s crane 

was operating in proximity to both the Fourth Street and Brooklyn Avenue power lines. The 

evidence also establishes that Respondent failed to confirm that the overhead power lines were 

de-energized. To the contrary, when he saw that jumpers were placed on the lines, James Sal 

Herrera “assumed” that they were de-energized. (Tr. 716, 730-731, 807). Indeed, Herrera 

admitted that he never specifically asked if the lines were energized and was never told by Solar 
44

which lines were de-energized. (Tr. 728). Moreover, when told by Solar that he would take 

care of the matter, Herrera simply concluded that they were no longer an issue. (Tr. 781). 

That the Brooklyn Avenue lines were de-energized reduces the gravity of the violation of 

instance (b), but does not exculpate Respondent. The standard requires the employer to 

“confirm” that the lines are de-energized and presupposes that, without such confirmation, the 

lines may be energized. The purpose of the standard is to eliminate the margin of error. 

After Hurricane Sandy struck the area, there were widespread power outages. (Tr. 242). 

The power was restored on Long Island by the end of November. (Tr. 243). Despite the 

widespread damage that could have affected the grounds, and repairs which could have 

inadvertently re-energized the Brooklyn Avenue lines, Respondent assumed, but never 

confirmed, that the Brooklyn Avenue lines remained de-energized, (Tr. 624). Rather, the 

evidence is that Respondent fully relied on Solar to take care of the matter and never contacted 

LIPA to confirm that the power remained out on Brooklyn Avenue. (Tr. 702). Finally, Manuel 

Herrera told the CSHO that, in clear violation of the standard, he believed it was all right to work 

around power lines unless specifically told that the lines were energized. (Tr. 433). The evidence 

establishes that Respondent failed to comply with the cited standard. 

The CSHO testified that Respondent’s failure to confirm that the lines were de-energized 

exposed all the employers on the site to the hazard of posed by energized power lines. (Tr. 555-

557)

James Sal Herrera claimed that he was not aware that he was required to confirm that the 

lines were de-energized (Tr. 729, 731). Whether or not employers are aware of a reasonable 

interpretation of an OSHA regulation and fully understand it, they are charged with knowledge 

and are responsible for compliance. Ed Taylor Constr. Co. v. OSHRC, 938 F.2d 1265, 1272 (11th
45

Cir. 1991). Accordingly, the evidence establishes that Respondent knew or with the exercise of 

reasonable diligence could have known of the violative condition.

Characterization and Penalty

The Secretary proposed a penalty of $6,160 for the violation. The CSHO testified that the 

severity of the violation was high because of the likelihood could have resulted in death or 

serious and permanent injury. (Tr. 555). Therefore, the violation was properly characterized as 

serious. 

According to the CSHO, the probability of an accident was greater because of the 

proximity of the cranes to both the Fourth Street and Brooklyn Avenue power lines, and because 

the Fourth Street power line was energized. (Tr. 555-556). This resulted in a gravity based 

penalty of $7,000. (Tr. 558). The CSHO also testified that the statutory factors of size, history 

and good faith were applied as discussed supra, resulting in a proposed penalty of $6,160. (Tr. 

558-559). 

Respondent asserts that this violation, along with Citation 1, items 4 and 8 are duplicative 

of the violations contained in Citation 2. This issue will be discussed, infra.

Citation 1, item 8

Allegation

Citation 1, item 8 alleges that, on or about December 1, 2012, Respondent violated 29 

CFR §1926.1408(g)(1) on the grounds that employees were not trained to recognize the hazards; 

the method to prevent contact; or the procedures to follow in the event that contact was made 

with the power lines. On the east side of the third floor of the worksite, employees were setting 

precast concrete floor planks with the crane, within 8 feet of overhead primary and secondary 
46

power lines. The primary power lines were energized with 13,200 volts phase to phase and the 

secondary power lines were energized within 120-240 volts phase to ground. 

The cited standard provides:

(g) Training. (1) The employer must train each operator and crew member 

assigned to work with the equipment on all of the following:

(i) The procedures to be followed in the event of electrical contact with a power 

line. Such training must include:

(A) Information regarding the danger of electrocution from the operator 

simultaneously touching the equipment and the ground.

(B) The importance to the operator's safety of remaining inside the cab except 

where there is an imminent danger of fire, explosion, or other emergency that 

necessitates leaving the cab.

(C) The safest means of evacuating from equipment that may be energized.

(D) The danger of the potentially energized zone around the equipment (step 

potential).

(E) The need for crew in the area to avoid approaching or touching the equipment 

and the load.

(F) Safe clearance distance from power lines.

(ii) Power lines are presumed to be energized unless the utility owner/operator 

confirms that the power line has been and continues to be deenergized and visibly 

grounded at the worksite.

(iii) Power lines are presumed to be uninsulated unless the utility owner/operator 

or a registered engineer who is a qualified person with respect to electrical power 

transmission and distribution confirms that a line is insulated.

(iv) The limitations of an insulating link/device, proximity alarm, and range 

control (and similar) device, if used.

(v) The procedures to be followed to properly ground equipment and the 

limitations of grounding.

Merits

The evidence establishes that Respondent is a construction contractor and that it was 

performing work in the proximity of an energized power line. The standard applies. 

During the inspection, the CSHO learned from interviews with Superintendent, Manuel 

Herrera and other employees that employees who worked with crane equipment at the site had 

not received training on such topics as hazard recognition, preventive measures to take in case of 

contact with an energized line, personal protective equipment, how to respond in the event of 
47

contact, and other topics set forth in the cited standard. (Tr. 561-562). Similarly, James Sal 

Herrera testified that he did not tell his nephew and crane operator, Chris Herrera, that he would 

be working around power lines. (Tr. 719-721). When asked if he thought it important that the 

crane operator be informed that he would be working around power lines, James Sal Herrera 

replied that “hindsight is always 20/20.” (Tr. 721). Moreover, Manuel Herrera told the CSHO 

that he received some prior OSHA training and was aware of the training requirements. 

However, he did not provide any training to the employees with respect to crane operations in 

proximity to power lines. (Tr. 561-562). The evidence establishes that Respondent failed to 

comply with the standard.

All employees who worked around the crane were exposed to the hazard of electrocution. 

(Tr. 561). The violation was properly characterized as serious. Also, Respondent knew, or with 

the exercise of reasonable diligence could have known that it failed to provide its employees 

with the requisite training.

Characterization and Penalty

The evidence establishes that the violation exposed employees to the hazard of 

electrocution. The violation was serious. The Secretary proposed a penalty of $4,400 for the 

violation. The CSHO testified that, because employees were exposed to the hazard of 

electrocution, the severity of the violation was high. (Tr. 563). However, the probability of an 

accident caused by the violation was rated as “lesser,” resulting in a gravity-based penalty of 

$5,000. After considering the statutory factors, the Secretary proposed a penalty of $4,400. I 

find that the proposed penalty is appropriate, and it is assessed. 
48

Citation 1, item 9

Allegation

Citation 1, item 9 alleges that Respondent committed a serious violation of 29 CFR 

§1926.1412(c)(1) on the grounds that, on December 1, 2012, Respondent’s Liebherr Mobile 

Crane, Model #LTM 1200-5.2 268 Ton, Serial # 070 495, was not inspected by a qualified 

person after it was assembled. 

The cited standard states: 

(c) Post-assembly 

(1)Upon completion of assembly, the equipment must be inspected by a qualified 

person to assure that it is configured in accordance with manufacturer equipment 

criteria.

Merits

The evidence establishes that Respondent is a construction contractor and that crane 

operator Anthony Ferrara assembled the crane on December 1, 2012. The standard applies.

The CSHO testified that, on December 1, 2012, Anthony Ferrara, told him that he forgot 

to inspect the crane after assembling it that day. (Tr. 564-566). Ferrara told the CSHO that the 

crane was last inspected several days earlier on a separate job. (Tr. 564-566). When the CSHO 

asked him for documentation for the most recent crane inspection, Ferrara produced from the

crane a “Crane Operator Daily Inspection Checklist” dated November 29, 2012, which was from 

a different worksite. (Tr. 565-566, Ex. C-70). In a subsequent interview, several months later, 

Ferrara recanted his earlier statement and asserted that the crane was inspected on December 1, 

2012. (Tr. 606-607). Superintendent, Manuel Herrera, told the CSHO that he had not spoken to 

the crane operator to ensure that the crane was inspected as required. (Tr. 566-567). 

The Secretary established a prima facie violation and Respondent failed to rebut the 

Secretary’s evidence. Respondent refers to the testimony of an NEP crane operator Saul 
49

Herrera12 that he inspect[s] the crane each day and completes a daily inspection log. I find that 

Saul Herrera’s testimony had no probative value. First, Saul Herrera did not operate the crane at 

issue. (Tr. 672). Second, his testimony was inconsistent and contradictory. According to 

Herrera, when he first started working at the site, the Fourth Street line was already moved. (Tr. 

677). However, the evidence establishes that the line was not moved until after the December 6 

visit of the CSHO. Indeed, in his deposition, Herrera stated that he was not at work when OSHA 

showed up. (Tr. 681). Yet, in his deposition, he also stated that he first learned from that they 

were power lines when OSHA showed up. (Tr. 681). He did not explain how he could have 

learned anything during the OSHA inspection when he did not show up until after the inspection. 

He then testified that, when he first got to the site, he did not notice the overhead power 

lines. (Tr. 679). Yet, he explained that when he got to the site, he too thought the power lines 

were telephone lines because in New York City, where he usually works, power lines are buried 

underground and phone lines are above ground13. (Tr. 680). Moreover, while Saul Herrera 

testified that it was Respondent’s regular practice to conduct a daily inspection, he could not 

testify from his own knowledge whether Ferrara conducted that inspection on December 1, 

especially since he asserted that he did begin work at the site until after that date. 

James Sal Herrera testified that Respondent’s normal operating procedure after 

assembling a crane is to conduct a walk around inspection, check everything, and make sure that 

it’s working before starting operations. (Tr. 685). However, Ferrara was not called to testify and 

Respondent did not produce the relevant log book to the CSHO. 

The evidence indicates that these log books are normally kept in the crane and are readily 

accessible to the driver. (Tr. 675). If Ferrara had filled out the log books for December 1, he 

 

12 Saul Herrera is the nephew of the principals of Respondent. 

13 Saul Herrera’s assertion that he believed that the power lines were telephone lines mirrors the excuse made by 

owner James Sal Herrera. (Tr. 718, 801-802).
50

failed to explain why he failed to produce them when asked by the CSHO. Further, if there was 

a language issue that kept Ferrara from understanding the request, Manuel Herrera was present 

during the interview and could have produced the logs. 

Manuel Herrera was the supervisor on the site. He told the CSHO that he had not spoken 

with Ferrara to ensure that the crane was properly inspected. (Tr. 566-567). Manuel Herrera 

also told the CSHO that he doesn’t talk to the crane operator. Rather, the operator shows up and 

sets up the crane. Herrera also told the CSHO that, when the crane is ready, the operator informs 

him that he is ready to work. Aside from that, there is no other interaction between himself and 

the crane operator. (Tr. 566-567). This failure to perform his supervisor functions constitutes a 

lack of reasonable diligence and demonstrates that, with the exercise of such diligence,

Respondent could have known that Ferrara failed to conduct the requisite inspection.

The CSHO also testified that the failure to conduct the post assembly inspection exposed 

all the employees in and around the crane to the possibility of a catastrophic failure of the jib or a 

displacement of a counterweight. (Tr. 567). 

The violation was established. 

Excluded Logs

At the hearing, Respondent attempted to introduce what it claimed were log sheets for 

the crane. Although Respondent refers to them in its brief, at the hearing the Secretary objected 

to its use because they were not produced during discovery. (Tr. 686-692). When asked to 

explain its failure to produce the sheets during discovery, Respondent refused to do so in open 

court, and insisted that he provide an explanation off the record. (Tr. 687-688). Reminding 

Respondent that this was a public hearing, this Court refused to allow it. (Tr. 687-688). 
51

Under the Federal Rules of Evidence (FRE) 403:

The court may exclude relevant evidence if its probative value is substantially 

outweighed by a danger of one or more of the following: unfair prejudice, 

confusing the issues, misleading the jury, undue delay, wasting time, or 

needlessly presenting cumulative evidence.

These inspection records were made by Respondent. It knew the records existed and who 

had custody of them. Therefore, it cannot claim that the evidence was newly discovered. Yet, 

during discovery, Respondent failed to indicate to the Secretary that these documents existed and 

that it was making a good faith effort to obtain them or an acceptable copy for use at the hearing. 

This constituted a lack of diligence which warranted exclusion. Cf. U.S. v. Schwartzbaum, 527 

F.2d 249, 254 (2d Cir. 1975)(finding burden on party seeking new trial that it could not, with due 

diligence, have discovered the evidence before, or at the latest, at trial); U.S. v. Costello, 255 

F.2d 876, 879 (2d Cir. 1958)(opining it fundamental that defendant seeking a new trial under any 

theory must satisfy the district court that the material asserted to be newly discovered is in fact 

such and could not with due diligence have been discovered before or, at the latest, at the trial). 

Moreover, to preserve a claim of error on an evidentiary ruling, the party claiming the 

error must inform the court of its substance by an offer of proof, unless the substance was 

apparent from the context. Fed. R. Evid. 103(a)(2). This is especially true when evidence is 

excluded under FRE 403. In the absence of any proffer that would connect the inspection sheets 

with the day in question, the evidence has no probative value. U.S. v. Al Jaber, 436 F. App’x. 9, 

11 (2d Cir. 2011). Here, Respondent made no such proffer. Therefore, it cannot be determined 

whether the evidence had any probative value to establish that Respondent actually conducted 

the required inspections. Indeed, when James Sal Herrera was asked by Respondent’s counsel 

whether any of the inspection sheets at issue pertained directly to December 1, he either could 

not or would not answer in the affirmative. (Tr. 612). He testified only that, the night before, he 
52

looked through the inspection reports “hoping to find some pertinent information.” (Tr. 

692)(emphasis added).

The decision to admit exhibits not revealed during the prehearing stage is a matter left to 

the discretion of the judge. See Consol. Rail Corp., No. 81-1025, 1982 WL 139716 

(O.S.H.R.C.A.L.J. March 11, 1982). Here, Respondent failed to satisfy its burden of establishing 

either that the evidence had substantial probative value, or that it exercised due diligence in 

revealing, discovering or obtaining the evidence. Accordingly, it was properly excluded. 

Characterization and Penalty

The severity of the violation was considered to be high because of the likelihood of death 

or serious injury in the event of a catastrophic crane failure due to an inadequate inspection. (Tr. 

568). The violation was properly characterized as serious. The probability of an accident was 

considered to be “lesser,” resulting in a gravity based penalty of $5,000. (Tr. 568). After 

adjusting for the statutory factors set forth supra, the Secretary arrived at a proposed penalty of 

$4,400. I find that the Secretary properly considered all relevant factors and that the proposed 

penalty is appropriate. 

Citation 1, item 10

Allegation

Citation 1, item 10 alleges a serious violation of 29 CFR §1926.1424(a)(2)(ii) on the 

grounds that, on or about December 1, 2012, the swing radius of the Liebherr Mobile Crane was 

not marked to prevent employees from entering the hazardous area.

The cited standard provides:

(a) Swing radius hazards

(1) The requirements of paragraph (a)(2) of this section apply where there are 

accessible areas I which the equipment’s rotating superstructure (whether 

permanently or temporarily mounted) poses a reasonably foreseeable risk of:
53

(ii) Pinching/crushing an employee against another part of the equipment or 

another object. 

Merits 

Respondent is a construction contractor and was using a crane in the proximity of 

employees. The standard applies. 

During the inspection, the CSHO photographed Respondent’s crane set up, with both its 

forward and rear outriggers deployed. (Tr. 569, Ex. C-57). The CSHO testified that, the riggers 

would rig each plank and approach the crane. As the superstructure would rotate from west to 

east, the employees were exposed to being crushed between the counterweight and the outrigger. 

Also, the riggers would occasionally walk up and approach the superstructure of the crane and 

communicate with the operator, which placed them between the outriggers. (Tr. 570). According 

to the CSHO, there were no barriers or warning lines around that area. (Tr. 570). The evidence 

establishes the violation.

The CSHO testified that Supervisor, Manuel Herrera was present at the site when this 

was occurring. (Tr. 570-571). Respondent knew, or with the exercise of reasonable diligence 

could have known of the violative condition.

Characterization and Penalty

The Secretary proposed a penalty of $4,400 for the violation. The severity of the 

violation was considered high because of the likelihood of death or serious injury in the event 

that an employee got crushed or pinned between the counterweight and the outrigger. (Tr. 571). 

The violation was properly characterized as serious. 

Despite the potential severity of an injury, the probability was rated as “lesser,” resulting 

in a gravity based penalty of $5,000 for the violation. (Tr. 571). After applying the statutory 
54

factors, discussed supra, the Secretary proposed a penalty of $4,400. I find that the proposed 

penalty properly reflects the statutory considerations and is appropriate. 

Duplicative Defense

In its brief, Respondent asserts that the Citation 2, items 1 and 2 and Citation 1, items 4, 

7 and 8 are duplicative and that, at a minimum, the penalties for the duplicative violations should 

be vacated. (Resp’ts Br. at pp. 6-7, 12). 

Under Commission precedent, violations are considered duplicative only where they 

require the same abatement conduct or where abatement of one citation will necessarily result in 

abatement of the other item as well. Gen. Motors Corp., 22 BNA OSHC 1019, 1024 (No. 91-

2834E, 2007) (consolidated); J.A. Jones Constr. Co., 15 BNA OSHC at 2207; Flint Eng’g & 

Constr. Co., 15 BNA OSHC 2052, 2056-57 (No. 90-2873, 1992); R & R Builders, 15 BNA 

OSHC 1383, 1391-92 (No. 88-252, 1991).

 Although a worksite condition may violate more than one standard, section 5(a)(2) of the 

Act requires an employer to comply with all standards applicable to a hazardous condition even 

though the abatement requirements of two applicable standards may be satisfied by compliance 

with the more comprehensive standard. Thus, there is no unfair burden imposed on an employer 

when the same or closely related conditions are the subject of more than one citation item and a 

single action may bring an employer into compliance with the cited standards. See, H.H. Hall 

Constr. Co., 10 BNA OSHC 1042, 1046 (No. 76-4765, 1981). 

I find that the violations were not duplicative.

Respondent asserts that the four violations could have been abated by relocating the 

Fourth Street line. However, Respondent did not have the authority or ability to relocate the 

lines. That was a matter that was between LIPA and Vordonia, the general contractor. Where, on 
55

a multi-employer construction worksite, an employer lacks the authority or ability to properly 

abate a violative condition, that employer must still use alternative measures to protect its 

employees. Electric Smith, Inc. v. Secretary of Labor, 666 F.2d 1297, 1298 (9th Cir. 1982); 

Capform, Inc., 16 BNA OSHC 2040, 2041-42 (No. 91-1613, 1994). Therefore, Respondent was 

obligated to take feasible alternative measures to protect its employees from the energized line. 

The evidence demonstrates that, short of removing its employees from the site, Respondent 

could have protected its employees from each of the cited hazards only by separate and unrelated 

feasible alternative measures. However, the evidence reveals that Respondent not only failed to 

take alternative measures, it took no measures at all. 

Citation 2, item 2 alleged that Respondent’s crane and its rigging was operating within 10 

feet of the energized lines. Among the abatement method for that violation was to have the crane 

stage the planks along another section of the worksite or otherwise keep the crane and rigging a 

safe distance from the lines. 

Citation 2, item 1 did not involve the crane. Rather it involved the proximity of the lines 

to employees working on the building. That violation was totally independent of Citation 2, item 

2. Even had the crane been removed, which it was not, that violation would have occurred 

because employees were working inches from the energized lines. As with Citation 2, item 1, 

part of the hazard could have been eliminated by staging the prefabricated planks at another part 

of the worksite. However, after the initial inspection, and warnings from the CSHO that the 

energized lines exposed employees to the hazard of electrocution, Respondent had its employees 

build a wall literally inches from the energized lines and actually built part of the wall around the 

lines. This could not be abated by simply changing the staging of the planks. James Sal Herrera 

testified that he did not discuss the hazard with his foreman and attributed that failure to “poor 
56

planning.” (Tr. 791). “Poor planning” does not constitute effective alternative abatement. 

Respondent should not have proceeded building the wall until it either found a way to do so 

without exposing its employees to the hazard of electrocution, or halted work until it prevailed 

upon the Vordonia to have the lines moved. 

In Citation 1, item 4, Respondent failed to post signs or otherwise warn employees about 

the hazards of working near energized lines and failed to identify those lines. Even if Respondent 

ensured that employees were working a safe distance from the Fourth Street line, it had the 

obligation to identify and warn employees about those lines, since they remained energized and 

were in close proximity to the building. Therefore, the violation was not duplicative of the 

hazards identified in Citation 2. 

Citation 1, item 7 prohibits Respondent from assuming that the lines were de-energized. 

As long as employees or equipment were working near lines, the employer has the duty to 

specifically confirm that the lines were de-energized. It does not matter if the lines were deenergized, as long as employees were working around power lines. Indeed, even after the 

Brooklyn Avenue power lines were de-energized, Respondent was required to confirm that fact. 

Abatement had nothing to do with keeping cranes or employees a safe distance from energized 

lines.

Finally, Citation 1, item 8 requires that employees working with or around cranes be 

properly trained about power lines. This obligation does not depend on whether the lines are 

energized. It is a precautionary standard, to ensure that employees know how to avoid getting too 

close to a power line and what to do in the event that they make contact with a power line. Also, 

this item was not duplicative of Citation 1, item 4, which applies to all employees, not those only 

working around cranes. Item 8 requires special training for employees working around cranes 
57

and, therefore, has more specific requirements than item 4 which merely requires that all 

employees be warned of the hazards posed by the lines. 

Despite the fact that the violations alleged in this case, performing work in proximity to 

an energized power line, result in the same general hazard—electrocution—the conditions giving 

rise to the violations are separate and distinct. Accordingly, I conclude that Respondent’s noncompliance with the standards is not duplicative. H.H. Hall, 10 BNA OSHC 1042, 1046.

The Commission has wide discretion in the assessment of penalties for distinct but 

potentially overlapping violations. Id. Here, however, I find that the violations were sufficiently 

independent to justify separate penalties. Based on the evidence, I find that Respondent’s 

argument concerning the duplicative nature of certain violations is flawed --- especially as it 

relates to the two willful items. After the December 1 inspection, Respondent was warned that 

the crane could not place the planks along Fourth Street and that it should stage the planks 

elsewhere. Despite assurances that it would heed the CSHO’s warnings, Respondent resumed its 

hazardous activities as soon as the CSHO left the site without implementing any of the CSHO’s 

reasonable abatement measures. Moreover, the evidence establishes that it engaged in even 

more dangerous behavior by having employees erect the masonry wall mere inches from the 

energized lines. Under these circumstances, to accept Respondent’s assertion that these items 

are duplicative would ignore the separate, distinct, and potentially fatal hazards to which its 

employees were exposed.
58

Citation 3, item 1 

Allegation

Citation 3, item 1 alleges a repeat14 violation of 29 CFR §1926.701(b) on the grounds 

that, on or about December 1, 2012, on the east side of the third floor of the site, the rebar 

extending from the masonry block wall along the edge of the building was not guarded where 

precast concrete floor planks were being set. 

The cited standard provides:

(b) Reinforcing steel All protruding reinforcing steel, onto and into which 

employees could fall, shall be guarded to eliminate the hazard of impalement. 

Merits

The evidence establishes that Respondent is a construction contractor and that its 

employees were working near vertical rebar (Tr. 573, Ex. C-39). The standard applies.

On December 1, 2012, the CSHO observed and photographed employees working near 

vertically protruding, but unguarded rebar. (Tr. 572-576, Ex. C-39, C-63). Exhibit C-39 shows a 

laborer engaged in setting a precast plank while in actual physical contact with vertical rebar. 

(Tr. 573). The rebar was vertical at various heights. (Tr. 573). The CSHO explained that the 

vertical rebar extended upward out of the masonry block wall from the lower level. These 

blocks were approximately seven inches wide and the rebar was placed at the center. The edge 

of the precast plank, when set into its final position, rested on that remaining 3.5 inches. While 

placing the planks, the employees had to be cognizant of where they landed so that they were

placed on the masonry block. This required the employee to get close to the end of a plank to 

 

14 This citation is identical to serious Citation 1, item 6 issued to NEP, except that the citation issued to NEP was not 

classified as a “repeat”. However, based on the parties’ stipulation that the citations issued to MSI control for the 

purposes of this case, it is the repeat citation issued to MSI that is before this Court. 
59

confirm its location before setting it down. The employee could have inadvertently set the plank 

down, gone past the wall and fallen onto the rebar. (Tr. 575-576). 

At the hearing, James Sal Herrera testified that the rebar does not come with caps. 

Rather, they place plastic rebar caps on the rebar to protect employees from impalement. (Tr. 

750, Ex. C-14). He explained that one of the problems is that employees working in the area 

accidentally knock off the caps. (Tr. 750). When this happens, the employee is supposed to pick 

up the cap and replace it, but not all employees do so. (Tr. 751). 

The photographic evidence supports Herrera’s assertion that protective caps were placed 

on the rebar. (Exs. C-14, R-4). As noted, supra, in the Second Circuit, when the sufficiency of 

an employer’s safety program is at issue, the burden is on the Secretary to establish that the 

program was inadequate. The Secretary met that burden. 

Even assuming Herrera’s testimony was sufficient to establish that Respondent had a 

work rule requiring employees to replace dislodged rebar caps, there is no evidence that the rule 

was effectively communicated, or that Respondent took steps to either discover violations or 

effectively enforce those rules when violations were discovered. To the contrary, the evidence 

demonstrates that only a small percentage of the rebar was capped. Therefore, any rule requiring 

employees to replaced dislodged caps was honored more in the breach. (See e.g. Exs. C-37, C39, C-57, C-59, C-63, C-69). The Secretary established that Respondent failed to have an 

effective work rule.

The uncapped rebar was in plain view. Respondent knew or with the exercise of 

reasonable diligence could have known that many of the rebar near employees were uncapped

and that employees were ignoring any rule to replace the caps. 
60

The evidence establishes that employees were exposed to the hazard of exposure from 

the uncapped rebar. (Tr. 575, Exs. C-39, C-63, C-64). 

Characterization

The Secretary alleged that the violation was repeated. 

1. Legal Standard

A violation is repeated if the employer was previously cited for a substantially similar 

violation and the citation became a final order before the occurrence of the alleged repeated 

violation. Deep S. Crane & Rigging Co., 23 BNA OSHC 2099, 2105 (No. 09-0240, 2012);

Potlatch Corp., 7 BNA OSHC 1061, 1063 (No. 16183, 1979).

Where the citations involve the same standard, the Secretary makes a prima facie

showing of “substantial similarity” by showing that the prior and present 

violations are for failure to comply with the same standard. The burden then 

shifts to the employer to rebut that showing. 

Gem Indus. Inc., 17 BNA OSHC 1861, 1866 (No. 93-1122, 1996), aff’d 149 F.3d 1183 (6th Cir. 

1998) (not selected for publication).

2. Analysis

The Secretary established that, on March 31, 2010, MSI was issued a citation for a 

serious violation of 29 CFR §1926.701(b) for not guarding protruding reinforcing steel. (Tr. 578, 

Exs. C-53, C-54). Both the standard and the hazard were the same as in the instant case. (Tr. 

580). On April 23, 2010, MSI and OSHA executed an informal settlement agreement in which 

MSI withdrew its Notice of Contest. (Tr. 579, Ex. C-55, Ex. J-1, para. 24). This settlement 

rendered the citation a final order of the Commission. Accordingly, I find that the Secretary 

properly cited the violation as repeated. 
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Penalty

The Secretary proposed a penalty of $5,280. The CSHO testified that the severity of the 

violation was low. He noted that this was not a situation where employees might fall from an 

elevated height and be impaled on the rebar. Rather, the hazard was that if an employee 

contacted a rebar he could suffer a laceration that would require stitches. Therefore, the severity 

was considered to be low. (Tr. 580). The probability of the violation was considered to be 

“lesser”, resulting in a gravity-based penalty of $3,000. This penalty was doubled to $6,000 

because the violation was repeated. From that gravity-based penalty, the Secretary considered 

the statutory factors, reducing the proposed penalty to $5280. (Tr. 581). I find that the proposed 

penalty is consistent with the factors set forth in the Act and is assessed. 

Citation 4, item 1

Allegation

Citation 4, item 1 alleges that Respondent committed an other-than-serious violation of

29 CFR §1926.502(k)(3) on the grounds that on or about December 1, 2012, employees were

engaged in precast erection operations utilizing a controlled access zone, but Respondent did not 

maintain a copy of the fall protection plan as required by the standard. 

The cited standard states in relevant part:

(k) Fall protection plan. This option is available only to employees engaged in 

leading edge work, precast concrete erection work, or residential construction 

work (See § 1926.501(b)(2), (b)(12), and (b)(13)) who can demonstrate that it is 

infeasible or it creates a greater hazard to use conventional fall protection 

equipment. The fall protection plan must conform to the following provisions.

* * *

(3) A copy of the fall protection plan with all approved changes shall be 

maintained at the job site.
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Merits

The evidence establishes that Respondent was engaged in precast concrete erection work 

and that it chose to protect its employees with a fall protection plan rather than conventional fall 

protection. (Tr. 582-583, 758-760, Ex. J-1, para. 21). Therefore, it was required to maintain a 

copy of its fall protection plan at the worksite. The standard applies.

During the inspection, the CSHO asked James Sal Herrera to see a copy of the plan. No 

copy of the plan was provided. (Tr. 583). The Secretary made a prima facie showing of a 

violation of the standard. Respondent offered nothing in rebuttal to explain its failure to produce 

a written plan. Its failure to either produce the plan or explain its failure to do so leads to the 

logical inference that no written plan existed. Manganas Painting Co., 21 BNA OSHC at 1981. 

Therefore, the preponderance of the evidence establishes that Respondent failed to comply with 

the requirements of the standard.

The CSHO testified that the laborers and signalman were actually working in the fall 

protection zone and exposed to fall hazards. The crane operator went up to the work area prior to 

starting hoisting operations and was walking around the immediate area, exposing him to fall 

hazards. Also, Manuel Herrera admitted to being in the work area earlier in the day and, 

therefore, was exposed to fall hazards. (Tr. 584-585). 

Respondent knew it was using an engineered fall protection plan. Therefore, it knew or, 

with the exercise of reasonable diligence could have known that it did not maintain a copy of that 

plan at the worksite. The violation was established. 

No penalty was proposed for the violation and none will be assessed. 
63

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.

Conclusion and Order

Based upon the foregoing decision, it is ORDERED that:

1) Citation 1, item 1, alleging a serious violation of 29 CFR §1926.100(a), is 

AFFIRMED and a penalty of $6,160 is ASSESSED;

2) Citation 1, item 2, alleging a serious violation of 29 CFR §1926.251(a)(2)(iii), is 

AFFRIMED and a penalty of $6,160 is ASSESSED;

3) Citation 1, item 3, alleging a serious violation of 29 CFR §1926.251(c)(9), is 

AFFIRMED and a penalty of $4,400 is ASSESSED;

4) Citation 1, item 4, alleging a serious violation of 29 CFR §1926.416(a)(3), is 

AFFIRMED and a penalty of $6,160 is ASSESSED;

5) Citation 1, item 5, alleging a serious violation of 29 CFR §1926.602(c)(1)(vi), is 

AFFIRMED and a penalty of $6,160 is ASSESSED;

6) Citation 1, item 6, alleging a serious violation of 29 CFR §1926.602(d), is 

AFFIRMED and a penalty of $4,400 is ASSESSED; 

7) Citation 1, item 7, alleging a serious violation of 29 CFR §1926.1408(e), is 

AFFIRMED and a penalty of $6,160 is ASSESSED;

8) Citation 1, item 8, alleging a serious violation of 29 CFR §1926.1408(g)(1), is 

AFFIRMED and a penalty of $4,400 is ASSESSED;

9) Citation 1, item 9, alleging a serious violation of 29 CFR §1926.1412(c)(1), is 

AFFIRMED and a penalty of $4,400 is ASSESSED;

10) Citation 1, item 10, alleging a serious violation of 29 CFR §1926.1424(a)(2)(ii), is 

AFFIRMED and a penalty of $4,400 is ASSESSED;

11) Citation 2, item 1, alleging a willful violation of 29 C.F.R. §1926.416(a)(1), is 

AFFIRMED and a penalty of $61,600 is ASSESSED;

12) Citation 2, item 1, alleging a willful violation of 29 C.F.R. §1926.1408(a)(2), is 

AFFIRMED and a penalty of $61,600 is ASSESSED;

13) Citation 3, item 1, alleging a repeat violation of 29 CFR §1926.701(b), is 

AFFIRMED and a penalty of $5,280 is ASSESSED;
64

14) Citation 4, item 1 alleging an other-than-serious violation of 29 CFR 

§1926.502(k)(3) is AFFIRMED and $0 penalty is ASSESSED.

SO ORDERED. 

/s/

 Keith E. Bell

 Judge, OSHRC

Dated: September 28, 2015

Washington, D.C.