United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW 

COMMISSION

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

Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v. OSHRC Docket No. 17-0483

CECO CONCRETE CONSTRUCTION, LLC, 

Respondent.

ON BRIEFS:

Amy S. Tryon, Senior Attorney; Charles F. James, Counsel for Appellate Litigation; Edmund C. 

Baird, Associate Solicitor for Occupational Safety and Health; Kate S. O’Scannlain, Solicitor of 

Labor; U.S. Department of Labor, Washington, DC

For the Complainant

Angelo M. Filippi, Esq., Kelley Kronenberg, Fort Lauderdale, FL 

For the Respondent

DECISION

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

BY THE COMMISSION:

Ceco Concrete Construction, LLC, is a nationwide structural concrete construction 

company. On September 1, 2016, a Ceco employee died after falling from the 16th floor of a 

building under construction in West Palm Beach, Florida. Following the accident, the 

Occupational Safety and Health Administration conducted an inspection and issued Ceco a fouritem, serious citation, of which only two items—Items 3 and 4—are at issue on review. Item 3 

alleges a violation of 29 C.F.R. § 1926.703(a)(1) for failing to design formwork to withstand 

vertical and lateral loads from wind gusts. Item 4 alleges a violation of 29 C.F.R. § 1926.703(b)(6) 

for failing to properly secure a formwork table’s legs and anchor plates to the building’s concrete 

floor. 
2

Following a hearing, Administrative Law Judge John B. Gatto affirmed both citation items 

and assessed the proposed $12,675 penalty for each violation. For the following reasons, we also 

affirm both violations, but on different grounds than the judge, and assess a single grouped penalty 

of $12,675. 

BACKGROUND

Ceco was subcontracted to build the concrete structure for a 20-story condominium 

building in West Palm Beach, Florida. This work required installing and removing formwork—

the molds used to hold wet concrete—on each floor of the building, including the installation of 

pre-built formwork tables around the floor’s perimeter. Ceco placed each table individually and 

then tied them together, at which point workers poured the layer of concrete that would form the 

new floor. Once the poured concrete had cured sufficiently, Ceco released each perimeter table 

by first lowering its legs several inches and then detaching it from the concrete floor. A crane with 

a special attachment called a “C-picker” was then used to remove and lift the table into the same 

position on the floor above. Each floor, including the interior formwork that is not at issue here,

took approximately a week to construct. 

Ceco’s written procedures for installing perimeter tables are set forth in a manual titled 

“CEFCO E-Z Panel System: Basic Installation and Stripping Using the CH3850 C-Picker,” 

commonly referred to by the company as its “best practices manual.” According to those 

procedures, as well as testimony from Ceco officials, the formwork tables are secured in several 

steps. When a table is first placed into position with the C-picker, workers drill a hole at each of 

the table’s two interior legs and drive form spikes into the holes. These form spikes are designed 

to prevent the table from being knocked off the building as the C-picker is withdrawn. Before 

detaching the C-picker, workers perform a rough grading of the table, extending its legs until they 

are approximately the correct height. 

Once the C-picker is detached, workers secure the table against potential wind by attaching 

nylon ratchet straps to baseplates anchored to the concrete floor. The best practices manual directs 

workers to attach the ratchet straps’ base plates to the concrete using half-inch drop-in or cast-in 

anchors. The manual allows for the substitution of bolts of equivalent strength for drop-in anchors 

in some instances, but it specifies that workers should not deviate from using half-inch drop-in 

anchors when securing corner tables. Once set, anchored, and leveled, the tables remain in place 
3

for some variable period of time before they are ultimately tied together and connected to the 

interior formwork. 

On the day of the accident, Ceco was in the process of moving the perimeter formwork 

tables from the 15th to the 16th floor. On the 16th floor, a three-person crew consisting of two 

Ceco employees and a foreman was setting and securing the formwork tables as they were placed. 

Just prior to the accident, the crew set in place a corner table with an atypical design where one 

side of the 12-foot-long table had a six-foot cantilever, three times larger than the opposite side’s 

two-foot cantilever. The crew installed form spikes into the legs of the corner table, known as 

Table 27, then graded the table by adjusting its height. To secure the table, the crew attached two 

ratchet straps and anchored each strap’s base plate with two half-inch wedge bolts. After the Cpicker was detached, a worker was attempting to adjust one of Table 27’s legs when the table fell 

off the building, dragging him with it and breaking his personal fall protection device. The worker 

died from the fall. 

DISCUSSION

To prove a violation, the Secretary must show by a preponderance of the evidence that (1) 

the cited standard applies, (2) its terms were violated, (3) an employee was exposed to the violative 

condition, and (4) the employer knew or could have known of the condition with the exercise of 

reasonable diligence. Astra Pharm. Prods., Inc., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981), 

aff’d in pertinent part, 681 F.2d 69 (1st Cir. 1982); see also ComTran Grp. v. U.S. Dep’t of Labor, 

722 F.3d 1304, 1308 (11th Cir. 2013). The cited standards for both items at issue on review are 

performance standards. See Worcester Steel Erectors, Inc., 16 BNA OSHC 1409, 1419 (No. 89-

1206, 1993) (discussing section 1926.703(a)(1)). Performance standards “require an employer to 

identify the hazards peculiar to its own workplace and determine the steps necessary to abate 

them.” Thomas Indus. Coatings, Inc., 21 BNA OSHC 2283, 2287 (No. 97-1073, 2007) (citing 

Lowe Constr. Co., 13 BNA OSHC 2182, 2185 (No. 85-1388, 1989)). In other words, when faced 

with complying with a performance standard, employers are required to address the hazards that a 

“reasonably prudent employer” would recognize. See Associated Underwater Servs., 24 BNA 

OSHC 1248, 1250 (No. 07-1851, 2012) (citing W.G. Fairfield Co., 19 BNA OSHC 1233, 1235 

(No. 09-0344, 2000), aff’d, 285 F.3d 499 (6th Cir. 2002); Thomas Indus. Coatings, 21 BNA OSHC 

at 2287 (“[P]erformance standards . . . are interpreted in light of what is reasonable.”) (citation 

omitted)).
4

Item 3

Section 1926.703(a)(1) states that “[f]ormwork shall be designed, fabricated, erected, 

supported, braced and maintained so that it will be capable of supporting without failure all vertical 

and lateral loads that may reasonably be anticipated to be applied to the formwork.” 29 C.F.R. 

§ 1926.703(a)(1). The Secretary alleges in the citation that Ceco violated this provision because 

the formwork at the worksite “was not designed to withstand vertical and lateral loads due to wind 

gusts.” (emphasis added). On review, Ceco challenges only the judge’s findings regarding

noncompliance and knowledge. 

Noncompliance

The judge found noncompliance on the basis that Ceco failed to design the individual 

formwork tables for lateral loads, including wind loads, for the period of time before the tables 

were tied together. Ceco asserts this was error, pointing to the Commission’s decision in 

Worcester Steel—the only Commission precedent addressing the cited provision—and arguing the

Secretary was required to prove the formwork as erected was not strong enough to support 

reasonably anticipated wind loads. 

We disagree. In Worcester Steel, the employer was cited for failing to erect metal decking 

to support all reasonably anticipated loads, not for failing to design the decking to do the same. 

16 BNA OSHC at 1409; see 29 C.F.R. § 1926.703(a)(1) (“Formwork shall be designed, fabricated, 

erected, supported, braced and maintained . . . ” (emphasis added).) “[E]rected” and “designed”

are two different elements of the standard and we cannot interpret them to have interchangeable 

meanings.1 The Secretary did not contest the adequacy of the company’s design plans in 

Worcester Steel but instead pointed to the company’s deviation from those plans in erecting the 

decking and argued that the deviation established a violation. Id. at 1417-18. In vacating the 

citation, the Commission rejected this argument, holding that the company’s deviation from its 

design plan did not establish a violation—rather, “the Secretary has the burden to show that, more 

1 In this regard, Ceco’s proffered reading of Worcester Steel also runs afoul of § 1926.703(a)(1)’s 

plain language. Requiring the Secretary to always demonstrate the insufficiency of erected

formwork would effectively eliminate any meaningful distinction between the provision’s separate 

requirements that employers design formwork to withstand reasonably anticipated loads, and then 

erect and maintain the formwork to do the same. See Jesco, Inc., 24 BNA OSHC 1076, 1078 (No. 

10-0265, 2013) (citing Am. Fed’n of Gov’t Emps., 803 F.2d 737, 740 (D.C. Cir. 1986)) (explaining 

that a “standard must be read as a coherent whole and, if possible, construed so that every word 

has some operative effect”). 
5

likely than not, the erected formwork was not strong enough to support the reasonably anticipated 

load.” Id. at 1419. 

In contrast to Worcester Steel, the citation here alleges that Ceco failed to design the 

formwork to withstand reasonably anticipated wind loads. Thus, the Commission’s analysis in 

Worcester Steel is only relevant in the sense that it requires the Secretary to prove that Ceco either 

lacked a design or its design was inadequate. But it does not, as Ceco claims, require the Secretary 

to prove that the formwork as erected was not capable of withstanding all reasonably anticipated 

loads. Rather, the Secretary can prove a violation of § 1926.703(a)(1) by demonstrating that an 

employer failed to adequately account for reasonably anticipated wind loads when designing its 

formwork, even if the formwork as ultimately erected was sufficient to withstand such loads. 

Turning to Ceco’s design plans, the company points to the procedures laid out in its best 

practices manual and argues that the Secretary failed to prove they were insufficient. At the 

hearing, however, OSHA’s expert witness, structural engineer Gopal Menon, testified that the 

procedures addressing the formwork’s design were at a minimum plainly inadequate for Table 27, 

which was the corner table being placed at the time of the accident. This was because it had 

“asymmetrical cantilevers—six feet on one end of the table and just two feet on the other,” and 

therefore even “the slightest wind” could topple it over. Menon testified that Ceco’s design was 

flawed based on wind estimates from the American Society of Civil Engineering. He used those 

estimates to calculate that formwork at an elevation of 150 feet in West Palm Beach reasonably 

could be subjected to winds of 150 to 170 miles per hour. Menon explained that in calculating 

these wind speeds he accounted for the relatively brief amount of time that each formwork table 

would stand separate from and unattached to the surrounding formwork.

Ceco introduced no evidence, expert or otherwise, to rebut Menon’s testimony regarding 

the reasonably anticipated lateral wind loads at the worksite. And the company’s director of 

engineering, Eric Eder, testified that just prior to the hearing, a former Ceco engineer informed 

him the manual’s procedure for securing individual formwork tables during the installation process 

was designed to withstand sustained winds of 90 miles per hour and gusts of up to 115 miles per 

hour.2

 Eder was the only witness for Ceco to testify about what lateral wind speeds individual 

2 Counsel for Ceco attempted to question Eder about Menon’s wind speed estimates, but the judge 

correctly ended the line of questioning following an objection from the Secretary that Ceco had 

not offered Eder as an expert witness.
6

formwork tables could withstand.3 Thus, Menon’s unrebutted expert testimony regarding the 

anticipated wind speeds, together with Eder’s testimony regarding the best practices manual’s 

actual design capacity, establishes that Ceco’s design for the perimeter tables was inadequate.

Finally, although Ceco provides no evidence to rebut Menon’s expert testimony, the 

company nonetheless asserts his testimony should not be credited, pointing to statements Menon 

made at the hearing—specifically that he “did not look into the [manual’s] design” and did not 

“know whether what is provided in [it was] sufficient.” But taken in context, it is clear that both 

of Menon’s statements were predicated on the fact that Ceco had failed to respond to the 

Secretary’s discovery request for the engineering calculations that went into developing the 

manual. See N. Landing Line Constr. Co., 19 BNA OSHC 1465, 1473 (No. 96-0721, 2001) 

(“[D]eficiencies in [the employer’s] response should be taken as establishing that there was no 

such evidence, not that the Secretary failed to carry her burden.”) (citing Ocean Elec. Corp. v. 

Sec’y of Labor, 594 F.2d 396, 403 n. 4 (4th Cir. 1979). Thus, in stating he “did not look into the 

design,” Menon was simply acknowledging that there was nothing for him to “look into.” The 

same is true with respect to Menon’s testimony regarding the manual’s sufficiency—with no

engineering calculations on which to base an opinion, it is hardly surprising that Menon was unable 

to draw firm conclusions in this regard. 

Although the record does not establish what wind speeds were present on the day of the 

accident or even that wind actually caused Table 27 to topple over, the testimony of Menon and 

Eder establishes that adequate wind speeds were not accounted for in the design of the formwork.

This is sufficient to demonstrate a violation of the standard.4 For all these reasons, we find the 

3 We note that Ceco’s design engineer for the project, Carolina Kumanchik, was not called to 

testify at the hearing but asserted generally during a deposition that the procedures in the 

company’s best practices manual were sufficient for the individual formwork tables. In making

this assertion, however, she conceded that she did not recall making any load calculations for 

specific tables at the project. Likewise, Kevin Peterson, Ceco’s regional safety director 

responsible for this project, testified that he did not know what calculations were made in 

developing the table anchoring system. During discovery, the Secretary requested that Ceco 

provide documentation of the engineering calculations that went into designing the manual’s best 

practices, but received no response. 

4 The Commission has long held that “[d]etermining whether the standard was violated is not 

dependent on the cause of the accident.” Am. Wrecking Corp., 19 BNA OSHC 1703, 1707 n.4 (No. 

96-1330, 2001) (consolidated), aff’d in relevant part, 351 F.3d 1254 (D.C. Cir. 2003). It is 
7

Secretary established that Ceco failed to comply with the cited provision because the company did 

not design the formwork tables to withstand the reasonably anticipated wind speeds at the worksite. 

Knowledge

To establish knowledge, the Secretary must prove that the employer knew or, with the 

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

Jacobs Field Servs. N. Am., 25 BNA OSHC 1216, 1218 (No. 10-2659, 2015). Here, the judge 

found that Ceco had actual knowledge because the foreman at the worksite knew the individual 

formwork tables were not designed to withstand lateral wind loads and nevertheless exposed 

himself and his crew to the hazard of a table falling. On review, Ceco reasserts essentially the 

same argument it made with respect to noncompliance—that the judge erred in finding knowledge 

because the Secretary failed to demonstrate the employer’s installation process was actually

insufficient. We reject that argument for the same reasons set forth above.

We do, however, agree with Ceco that the judge erred in finding actual knowledge based 

on the foreman’s awareness of the conditions at the worksite. As discussed above, the violative 

condition here was Ceco’s failure to adequately design the formwork, not a failure by the foreman 

or his crew to erect or install it in accordance with the company’s design. Because there is nothing 

in the record showing that the foreman was involved in the company’s design process, or otherwise 

had knowledge that the company’s design was inadequate, there is no knowledge to impute.

The Secretary, however, has proven constructive knowledge. The record establishes that 

Ceco, with the exercise of reasonable diligence, could have determined both the reasonably 

anticipated wind speeds at the worksite, as well as its best practices manual’s design capacity. See 

Wiley Organics, Inc. d/b/a Organic Tech., 17 BNA OSHC 1586, 1597 (No. 91-3275, 1996), aff’d, 

124 F.3d 201 (6th Cir. 1997) (“An employer has a general obligation to inform itself of the hazards 

present at the worksite and cannot claim lack of knowledge resulting from its own failure to make 

use of the sources of information readily available to it.”) (citations omitted). Ceco engineer 

Carolina Kumanchik designed the formwork tables for the project and conceded she had not 

performed any lateral load calculations for individual formwork tables. As for Eder, he considered 

lateral load calculations for individual tables unnecessary for any regular-sized table that could 

stand on its own. Moreover, Eder explained that he only learned of the tables’ lateral wind load 

therefore not necessary for the Secretary to demonstrate that wind was the actual cause of the 

accident to prove the violation of §1926.703(a)(1).
8

design capacity just days before the hearing. This evidence demonstrates that Ceco failed to 

reasonably assess its method of securing formwork tables against reasonably anticipated lateral 

wind loads. Indeed, a reasonable review or inquiry by Ceco into the design of its best practices 

manual would have revealed—as Eder himself learned days before the hearing—that the manual 

did not account for lateral winds of over 150 miles per hour. Likewise, Ceco’s engineers could 

have calculated, as OSHA’s expert did, the reasonably anticipated wind speeds. Accordingly, we 

find the Secretary has demonstrated that Ceco should have known of the violative condition.

For these reasons, we affirm the violation of § 1926.703(a)(1) alleged in Item 3. 

Item 4

Section 1926.703(b)(6) states that “[a]ll base plates, shore heads, extension devices, and 

adjustment screws shall be in firm contact, and secured when necessary, with the foundation and 

the form.” 29 C.F.R. § 1926.703(b)(6). The Secretary alleges in the citation that Ceco violated 

the provision because “the anchorage of the table form legs to the concrete floor was not properly 

secured with the required bolts.” On review, Ceco challenges only the judge’s findings with regard 

to noncompliance. Specifically, the judge contrasted Ceco’s actual efforts to secure the tables with 

the procedures set forth in its best practices manual:

According to Ceco’s Best Practices Manual, the company 

considered securing the base plates to the foundation to be necessary 

and provided specific instructions to its employees to do so. Any 

deviation from the Best Practices Manual required approval from a 

Ceco engineer. Ceco’s employees deviated from the Best Practices 

Manual without consultation with an engineer. The [c]ourt 

concludes Ceco violated the cited standard. 

Ceco claims that the judge erred in concluding the company’s failure to follow the bolting 

procedures in its best practices manual or consult an engineer about deviating from the best 

practices violated the standard.5 Ceco further asserts that the Secretary failed to demonstrate its 

deviation resulted in a hazard because the half-inch wedge bolts the company used to secure the 

formwork tables’ ratchet straps were at least as strong as the half-inch drop-in anchors required by 

the best practices manual.

5 According to Ceco, the Commission’s holding in Worcester Steel similarly applies to 

§ 1926.703(b)(6), and therefore the Secretary must demonstrate that any deviations in Ceco’s 

method of anchoring formwork tables actually created a hazard. As discussed above, the measure 

of compliance for this standard is reasonableness, not whether Ceco followed its own internal 

design plans. 
9

We agree with the company that the judge failed to apply the correct legal test in analyzing 

this element of the Secretary’s case but find that noncompliance is nonetheless established here.

As a performance standard, § 1926.703(b)(6) states the objective to be achieved—ensure that “[a]ll 

base plates, shore heads, extension devices, and adjustment screws shall be in firm contact, and 

secured when necessary, with the foundation and the form”—not the means for achieving it. 

29 C.F.R. § 1926.703(b)(6); see, e.g., Cent. Fla. Equip. Rentals, Inc., 25 BNA OSHC 2147, 2152 

(No. 08-1656, 2016) (identifying 29 C.F.R. § 1926.602(a)(3)(i) as a performance standard). Thus, 

the appropriate inquiry here is not whether Ceco complied with its own best practices manual, but

whether the company made reasonable efforts to secure the base plates and other equipment against 

reasonably expected loads. See Thomas Indus. Coatings, 21 BNA OSHC at 2287 (“Because 

performance standards . . . do not identify specific obligations, they are interpreted in light of what 

is reasonable.”). 

Reframing the inquiry under the correct legal test, the record demonstrates that Ceco’s 

efforts to secure its formwork tables, and Table 27 in particular, were not reasonable. As explained 

above, Eder testified that the manual’s procedures were only sufficient to secure tables against 

lateral wind loads of up to 115 miles per hour, well shy of the 150-170 mile-per-hour winds that 

Menon testified could reasonably be expected at the West Palm Beach worksite. On cross 

examination, Menon conceded that substituting two wedge bolts in place of a single drop-in anchor 

could have increased the base plates’ compressive strength from 9,000 to 9,560 pounds per square 

inch. But even accepting Ceco’s contention that substituting two wedge bolts in place of a dropin anchor could have increased the total compressive strength of the ratchet straps’ base plates, 

that substitution does not appear sufficient to bridge the shortfall of the underlying design of the 

formwork. Furthermore, Menon asserted that Ceco’s undisputed practice of reusing the wedge 

bolts could have reduced the bolts’ strength. He noted that the wedge bolts here appeared to pull 

out of the concrete holes smoothly without cracking or damaging the surrounding concrete, 

suggesting the bolts were not properly gripping the concrete at the outset.

6 Finally, although the 

occurrence of the accident alone is not dispositive, lacking any evidence of some other 

6 We note that while Menon testified that reusing the bolts would theoretically weaken them, there 

is no conclusive evidence that was the case for Table 27’s bolts. In any event, Ceco’s use of the 

bolts instead of drop-in anchors does not automatically establish a violation. Rather, the basis of 

the violation is that Ceco’s design, including its drop-in anchor requirement, did not account for 

the reasonably anticipated wind speeds.
10

extraordinary intervening event, the fact that Table 27 pulled free of the concrete slab and fell off 

the 16th floor of the building is strong evidence that Ceco’s efforts to secure the table to the 

concrete slab were not reasonable.

For all these reasons, we find that Ceco failed to make reasonable efforts to secure the 

formwork tables’ baseplates against reasonably expected loads. Accordingly, we affirm the

violation of § 1926.703(b)(6) alleged in Item 4.

7

PENALTY

Ceco has not challenged on review the penalty assessed by the judge for each violation. 

However, both violations involve essentially the same hazard—a formwork table detaching and 

falling during the construction process—and stem from effectively the same violative conduct—

Ceco’s failure to design the formwork to withstand reasonably anticipated wind gusts. 

7 Ceco did not contest the judge’s finding of knowledge with respect to Item 4 in its petition for 

discretionary review. See Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1535 n.4 (No. 86-0360, 

1992) (consolidated) (“Ordinarily the Commission does not decide issues that are not directed for 

review.”) 
11

Under these circumstances, we find it appropriate to group the violations for penalty 

purposes and assess a single $12,675 penalty. See 29 U.S.C. § 666(j); Hackensack Steel Corp., 20

BNA OSHC 1387, 1394 (No. 97-0755, 2003) (citing H.H. Hall Constr. Co., 10 BNA OSHC 1042, 

1046 (No. 76-4765, 1981) (assessing a single penalty for distinct but overlapping violations)). 

SO ORDERED.

/s/

Cynthia L. Attwood

Chairman

/s/

James J. Sullivan, Jr.

Commissioner

/s/

Amanda Wood Laihow

Dated: February 26, 2021 Commissioner
United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

100 Alabama St. S.W

Building 1924 Room 2R90

Atlanta, GA 30303-3104

SECRETARY OF LABOR,

Complainant,

v. OSHRC Docket No. 17-0483

CECO CONCRETE CONSTRUCTION, LLC,

Respondent.

DECISION AND ORDER

COUNSEL: 

Dane L. Steffenson, Attorney, Office of the Solicitor, U.S. Department of Labor, Atlanta, GA, 

for Complainant. 

Angelo Filippi, Attorney, Kelley Kronenberg, Fort Lauderdale, FL, for Respondent. 

JUDGE: John B. Gatto, United States Administrative Law Judge. 

I. INTRODUCTION

In September 2016, the Department of Labor’s Occupational Safety and Health 

Administration (OSHA) conducted a fatality investigation involving an employee of Ceco 

Concrete Construction, LLC (Ceco) at an apartment building under construction in West Palm 

Beach, Florida (worksite), and subsequently issued a four-item citation to Ceco for alleged

violations of the Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C. §§ 651–678, 

with proposed penalties of $50,700.00.

1 After Ceco timely contested the citation, the Secretary of 

1 The Secretary of Labor has delegated his authority under the Act to the Assistant Secretary for Occupational 

Safety and Health, who heads OSHA, and has delegated exclusively to the Solicitor of Labor the responsibility for 

bringing legal proceedings under the Act and the determination of whether such proceedings are appropriate in a 

given case. See Order No. 1–2012 (77 FR 3912). The terms “Secretary” and “OSHA” are used interchangeably 

herein. The Assistant Secretary has authorized OSHA’s Area Directors to issue citations and proposed penalties. See

29 C.F.R. §§ 1903.14(a) and 1903.15(a).
2

Labor (Secretary) filed a formal complaint2 with the Commission charging Ceco with violating the 

Act and seeking an order affirming the citation and proposed penalties. The Secretary 

subsequently withdrew Item 2 prior to trial, which reduced the Secretary’s total proposed penalty 

to $38,025.00 (Pretrial Order, ¶ 11). A bench trial was held in Miami, Florida.3

There is no dispute that jurisdiction of this action is conferred upon the Commission by 

section 10(c) of the Act, 29 U.S.C. § 659(c), or that Ceco is an employer engaged in a business 

affecting commerce within the meaning of section 3(5) of the Act, 29 U.S.C. § 652(5) (Compl. ¶¶ 

I-II; Answer ¶¶ I-II). After hearing and carefully considering all the evidence and the arguments 

of counsel, the Court issues this Decision and Order, which constitutes its final disposition of the 

proceedings.4 For the reasons indicated infra, the Court VACATES Item 1 and AFFIRMS Items 

3 and 4. 

II. BACKGROUND

Ceco was the formwork5 contractor for an apartment building under construction at the 

worksite where its scope of work included installing and removing formwork, installing rebar, and 

placing concrete for decks and columns. The formwork consisted of aluminum legs connected by 

“windows” to form a table that would fit between columns. Concrete was poured on the formwork 

to create the decks. Interior forms were assembled on the deck. Perimeter forms, or tables, were 

assembled on the ground and reused on each floor (Tr. 278-280). 

The perimeter tables had four legs; each leg had a screw jack that allowed crews to raise 

or lower it to level the table. After the poured concrete hardened sufficiently, stripping crews 

removed the formwork by lowering the table several inches to remove tie-down straps. When the 

crew was ready on the level above, the crane operator lifted the table an inch or two, using a “Cpicker” attached to the crane. The crane operator then raised the table to the level above and set it 

down in the spot located above where it was set below (Tr. 61-62, 281-282).

2 The citation at issue was attached to the complaint as an exhibit. Commission Rule 30(d) provides that “[a] copy 

of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.” 29 C.F.R § 2200.30(d). 3 In addition to the trial testimony, the record includes the November 15, 2017, deposition of Aubrey Dunham, a 

Senior Project Engineer for Ceco, and the November 17, 2017, deposition of Carolina Kumanchik, Ceco’s Design 

Engineer for the worksite (Pretrial Order, ¶ 14; see also Tr. 19-20). 4 If any finding is in truth a conclusion of law, or if any stated conclusion is in truth a finding of fact, it shall be 

deemed so. 5 “Formwork” means “the total system of support for freshly placed or partially cured concrete, including the mold 

or sheeting (form) that is in contact with the concrete as well as all supporting members including shores, reshores, 

hardware, braces, and related hardware.” 29 C.F.R § 1926.700(b)(2).
3

On September 1, 2016, three Ceco employees were working on the 16th level (the 15th story 

since the number 13 was omitted in numbering the floors) of the planned 20 story building. Ceco 

Foreman Luis Gutierrez and two of Ceco’s carpenters (the Decedent and Martin Perez Mendez)

were in the process of installing a large piece of formwork designated as Table 27.6

 At 

approximately 1:30 p.m., after being released by the C-picker of the crane that had hoisted it into 

place, Table 27 fell from the 16th level to the street below, dragging with it the Decedent (Tr. 41-

42, 64-65).

OSHA’s West Palm Beach area office received notification of the accident and assigned 

Compliance Safety and Health Officer Luis San Miguel to conduct a fatality investigation of the 

incident. San Miguel arrived at the construction site at approximately 4:30 p.m. the day of the 

accident and held an opening conference with representatives of Kast, the general contractor, and 

Ceco (Tr. 41-42). San Miguel interviewed employees (including the foreman and laborer who had 

been working with the Decedent), the Decedent’s next of kin who had arrived at the site, 

responding police officers, and the medical examiner. San Miguel also reviewed Ceco’s formwork 

plans, its Best Practices Manual, its safety plan, and its safety manual (Tr. 49-51; see also Ex. J-1, 

Ex. J-2, Ex. J-4, J-6, Ex. C-2). At approximately 5:15 p.m., San Miguel went to the 16th level of 

the building, accompanied by representatives of Kast and Ceco and took photographs (Tr. 53).

San Miguel returned the next day and went back to the 16th level, again accompanied by 

Kast and Ceco representatives, as well as Gutierrez and Mendez, who had been present the day 

before when Table 27 swept the Decedent off the building. San Miguel conducted further 

interviews with the two employees while examining the worksite at that level (Tr. 103-105). 

Based on his investigation, San Miguel recommended the Secretary cite Ceco for violating four 

construction standards. The Secretary did so on March 1, 2017. As noted supra, only Items 1, 3, 

and 4 of the citation remain at issue. 

III. ANALYSIS

The fundamental objective of the Act is to prevent occupational deaths and serious injuries. 

Whirlpool Corp. v. Marshall, 445 U.S. 1, 11 (1980). The Commission serves as a “neutral arbiter” 

between the Secretary and cited employers. Cuyahoga Valley Ry. Co. v. United Transp. Union, 

474 U.S. 3, 7 (1985). Thus, Congress vested the Commission with the “adjudicatory powers 

6 The parties stipulated that Luis Gutierrez, Martin Perez Mendez, and the Decedent were Ceco’s employees on or 

about September 1, 2016, and Gutierrez was Ceco’s foreman. (See Pretrial Order, Attach. C.)
4

typically exercised by a court in the agency-review context.” Martin v. Occupational Safety and 

Health Review Comm'n (CF&I Steel Corp.), 499 U.S. 144, 151, 154 (1991).

The Court of Appeals for the Eleventh Circuit where the action arose7 has held, “the 

Secretary will make out a prima facie case for the violation of an OSHA standard by showing (1) 

that the regulation applied; (2) that it was violated; (3) that an employee was exposed to the hazard 

that was created; and importantly, (4) that the employer ‘knowingly disregarded’ the Act's 

requirements.” ComTran Grp., Inc. v. U.S. Dep't of Labor, 722 F.3d 1304, 1307 (11th Cir. 2013).

A. Item 1

The cited standard in Item 1, 1926.502(d)(15), provides in relevant part that “[a]nchorages 

used for attachment of personal fall arrest equipment shall be ... capable of supporting at least 

5,000 pounds (22.2 kN) per employee attached[.] 29 C.F.R. § 1926.502(d)(15). The Secretary 

alleges that Ceco violated the cited standard because on the day of the fatality, Ceco’s employees 

allegedly “anchored their fall protection arrest system to the bracings of the nearby formwork 

tables without ascertaining the capacity of the bracings to withstand a force of 5,000 pounds.” 

(Compl. Ex. A at 6 of 11). 

(1) Whether Cited Regulation Applies to Cited Conditions

Section 1926.502(d)(15) is found under Subpart M—Fall Protection of the Construction 

Standards, which sets forth the requirements for fall protection in construction workplaces. As 

indicated supra, at the time of the fatality, Ceco was engaged in construction work activities 

involving the placement of formwork at the worksite. Therefore, the cited standard applies to the 

cited conditions. 

(2) Whether Requirements of Cited Regulation Were Violated

The Secretary contends Gutierrez and Mendez anchored their self-retracting lifelines to the 

frames of formwork tables adjacent to Table 27, which, according to the Secretary’s expert, were 

not capable of supporting 5,000 pounds. Ceco disputes the Secretary’s claim, arguing Gutierrez 

7 Under the Act, an employer may seek review in the court of appeals in the circuit in which the violation occurred, 

the circuit in which the employer’s principal office is located, or the District of Columbia Circuit. 29 U.S.C. § 660(a). 

The Secretary may seek review in the circuit in which the violation occurred or in which the employer has its principal 

office. 29 U.S.C. § 660(b). The citation was issued in West Palm Beach, Florida, and Ceco’s principal place of business 

is in Tampa, Florida (Compl. ¶ III; Answer ¶ III), both in the Eleventh Circuit. “[I]n general, ‘[w]here it is highly 

probable that a Commission decision would be appealed to a particular circuit, the Commission has ... applied the 

precedent of that circuit in deciding the case—even though it may differ from the Commission's precedent.’” Dana 

Container, Inc., 25 BNA OSHC 1776, 1792 n.10 (No. 09- 1184, 2015), aff’d, 847 F.3d 495 (7th Cir. 2017) (citation 

omitted). Therefore, the Court applies the precedent of the Eleventh Circuit in deciding the case, where it is highly 

probable that a Commission decision would be appealed to.
5

and Mendez were tied off to columns, which the Secretary does not argue was inadequate to 

support 5,000 pounds. Thus, whether the requirements of the cited standard were violated hinges 

on which of the parties’ contradictory scenarios the Court credits.

Ceco had stretched red barricade tape some distance from the perimeter of the 16th level. 

Only the three Ceco employees setting the tables were permitted past the tape. Ceco had also 

erected a wooden guardrail between the red barricade tape and the edge of the 16th level. Anyone 

going past the guardrail was required to use a personal fall arrest system (Tr. 55-56; see also Ex. J6, Ex. C-8, p. 23). 

Ceco’s safety rules also require its employees working on perimeter tables to tie off to 

approved anchorage points using self-retracting lifelines. Ceco installed over 100 embedded 

adapter straps on each level and at the bases of columns at the worksite. Ceco’s employees could 

tie off directly to the columns or to the embedded adapter straps (Tr. 282-83, 301-02). Attached to 

the frame of a table adjacent to Table 27 were red straps. Gutierrez told San Miguel the straps 

were already attached to the table when it was raised from the 15th level (Tr. 124). 

San Miguel interviewed Gutierrez and Mendez on September 1, 2016, the day of the 

accident, wrote down their answers to his questions, and gave them the statements to read and sign. 

Both told him they were tied off to columns while working earlier that day on the 16th level, in 

compliance with Ceco’s safety plan and the cited standard. The length of the self-retracting 

lifelines they were using was 30 feet, and the self-retracting lifelines were hooked to straps attached 

to the bottom of the columns. Both employees identified the columns on either side of Table 27 

at the edge of level 16 as the ones they attached their self-retracting lifelines (Tr. 98-99, 128-30, 

135-37; see also Ex. J-4, Ex. J-6).

San Miguel returned to the site the next day at approximately 9:30 a.m., and went back up 

to the 16th level, accompanied by Gutierrez and Mendez, among other Ceco representatives. San 

Miguel testified he asked Gutierrez and Mendez again what anchorage points they used. They

repeated to San Miguel they had been tied off to columns the day before (Tr. 106). San Miguel 

again wrote down the statements of the employees and had them sign the statements. Nothing in 

the statements reflects that San Miguel had any questions about their stated anchorage points (Tr. 

107). 

San Miguel admitted that Gutierrez and Mendez told him that after the accident occurred, 

each of them removed his self-retracting lifeline “and left it up there at the scene.” (Tr. 123.) This 
6

is consistent with evidence gathered by Frederick Fischer, a crime scene investigator for the City 

of West Palm Beach Police Department, that arrived at the worksite on September 1, 2016, at 

approximately 2:10 p.m. “to document the scene as it appeared after the accident” (Tr. 72-73). He 

took photographs on the 16th level at approximately 3:00 p.m., more than two hours before San 

Miguel arrived on that level (Tr. 74). Police Photograph 14 shows two self-retracting lifeline 

devices lying on the floor. One of them is attached to a strap that appears to be embedded in a 

column (this is not the column the employees identified as one they were using at the time of the 

accident) (Ex. C-7, p. 14). San Miguel admitted at trial Photograph 14 shows physical evidence 

that employees were properly tied off to columns, rather than improperly to the formwork frames. 

(Tr. 141-45.) However, he testified he did not observe the two self-retracting lifelines lying on 

floor when he arrived on the 16th level. 

San Miguel testified he observed red straps on the formwork frame that he thought 

Gutierrez and Mendez had used to tie off. Kevin Peterson is the regional safety director for Heico 

Construction Group, and he is responsible for the safety programs of Ceco, a “sister company” of 

Heico (Tr. 260-61). Peterson was asked if thought it was unusual that a strap attached to a selfretracting lifeline was hanging from a frame, which is not an approved anchorage point. He stated,

I don't find it unusual. These straps are laying all over the job site. And as an

example, somebody walking through a stripping floor, that strap is no longer

needed on those elevations, they're already installed. They might hang it up. They

might hang it up somewhere. And we tell them repeatedly that – with [selfretracting lifelines], don't throw them on the floor. I mean treat it -- I mean this is

your protection for your life and don't throw it on the floor, don't leave it out in the 

rain. Take care of it. And so, you know, I see retractables, I see straps, I see a lot 

of things hung from tables, windows, boxes, including lunch boxes.

(Tr. 289.)

Mendez never wavered in his statements to OSHA that he had tied off to a column the day 

of the accident. Gutierrez was also consistent in his two signed statements to OSHA and in his 

OSHA interview that he had tied off to a column. The only evidence indicating Gutierrez was 

improperly tied to the formwork frame is San Miguel’s testimony that Gutierrez responded “Yes” 

when he said to him, “[Y]ou guys were anchored to those red straps on the brace of the tables.” 

(Tr. 106-07.) According to San Miguel, as they were preparing to exit the 16th level, San Miguel 

and an emotional Gutierrez had another conversation. San Miguel stated Gutierrez and Mendez

“were still crying. I stood behind because, you know, I -- honestly, I felt for them. . . . And as soon 
7

as we started walking towards the stairs Gutierrez walked with me. And at that point I asked 

[Gutierrez], you know, that you guys were anchored to those red straps on the brace of the tables 

and he told that, yes.” (Tr. 106-107.) San Miguel testified this conversation took place in Spanish 

and no one overheard it (Tr. 107). San Miguel testified that he made a note to himself of this 

conversation when he got to his car. (Tr. 108-109.) However, the record does not reflect San 

Miguel ever asked Gutierrez to amend his written statement to include this alleged admission. 

Significantly, in February of 2017, Gutierrez again stated at a second OSHA interview8 that his 

self-retracting lifeline was anchored to a concrete column and the other two employees were also 

anchored to concrete columns. San Miguel did not challenge Gutierrez on this point and San 

Miguel never brought this purported contradictory statement to the attention of the other OSHA 

personnel in attendance at the interview (Tr. 110-11).

Gutierrez did not testify at trial; thus the Court was not given an opportunity to make a 

credibility determination based on his live testimony. However, it is the Secretary’s burden to 

prove by a preponderance of the evidence that Ceco failed to comply with the requirements of the 

cited standard. There are significant gaps in the evidence. San Miguel did not go to the 16th level 

until approximately 5:15 p.m. on September 1, about 3 hours and 15 minutes after the 1:30

accident. Officer Fischer arrived at the site at approximately 2:10 p.m. but did not start taking 

photographs on the 16th level until around 3:00 p.m. (Tr. 74). It is unknown what workers, if any, 

were on the 16th level approximately 40 minutes after the accident occurred, or what they were 

doing. Gutierrez and Mendez told San Miguel they were told to leave their equipment and go 

down to the street level after the accident. Officer Fischer was uncertain whether anyone moved 

the workers’ equipment between the time of the accident and his arrival on the 16th level. (Tr. 77-

78.)

The Secretary’s claim that the red straps on the table framework next to Table 27 constitute 

“the only physical evidence” of where the employees were tied off is not supported by the 

evidence. As indicated supra, Gutierrez told San Miguel the straps were already attached to the 

frame when it was lifted to the 16th floor. Peterson, the regional safety director, provided a 

8 Ceco’s Counsel referred to it as a deposition. San Miguel referred to it as an interview. It took place in Ceco’s 

Counsel’s office. San Miguel testified most of the questions were from Gopal Menon, an OSHA structural engineer, 

and a Mr. Mohamad, both employees in OSHA’s engineering department in its national office (Tr. 109, 196). Since 

only the parties’ representatives are authorized to appear and represent the parties in Commission proceedings, 

including depositions taken as part of such proceedings, the Court assumes, without deciding, that it was an interview, 

not a deposition.
8

plausible explanation for their presence, stating Ceco’s employees were instructed to hang up the 

straps after using them. Police Photograph 14 shows two self-retracting lifeline devices on the 

16th level, one of which is attached to a strap embedded in a column. None of the witnesses at trial 

were present on the 16th floor between the time of the accident and the arrival of Officer Fischer. 

Officer Fischer testified people were still on level 16 when he arrived at the site and it appeared 

some of the equipment may have been moved. 

Gutierrez and Mendez signed statements in which they stated they were tied off to columns 

on either side of Table 27 the day of the accident. Although San Miguel claims Gutierrez admitted 

to him the next day that he and Mendez were tied off to the table framework, Gutierrez sat for an 

interview attended by San Miguel and stated he was tied off to a column. This statement was not 

refuted or challenged at the interview. The Court concludes the Secretary failed to establish a 

violation of the cited standard by a preponderance of evidence and Item 1 must be therefore 

vacated.

B. Item 3

The cited standard, 1926.703(a)(1), provides:

Formwork shall be designed, fabricated, erected, supported, braced and maintained 

so that it will be capable of supporting without failure all vertical and lateral loads 

that may reasonably be anticipated to be applied to the formwork. Formwork which 

is designed, fabricated, erected, supported, braced and maintained in conformance 

with the Appendix to this section will be deemed to meet the requirements of this 

paragraph.

29 C.F.R. § 1926.703(a)(1). The Secretary alleges in Item 3 that Ceco violated this standard 

because “the formwork was not designed to withstand vertical and lateral loads due to wind gust.” 

(Compl. Ex. A at 8 of 11). For the reasons indicated infra, the Court concludes the Secretary has 

met his burden of establishing a prima facie case for the violation.

(1) Whether Cited Regulation Applies to Cited Conditions

The cited standard is found under Subpart Q—Concrete and Masonry Construction of the 

Construction Standards, which “sets forth requirements to protect all construction employees from 

the hazards associated with concrete and masonry operations” on construction sites. 29 C.F.R. §

1926.700(a). There is no dispute Ceco was engaged in construction work activities involving 

installing and removing formwork, installing rebar, and placing concrete for decks and columns. 

The cited standard applies to the cited conditions. 
9

(2) Whether Requirements of Cited Regulation Were Violated

The Secretary argues that even though Ceco properly included in its formwork design a 

method that would support lateral loads once the individual tables were tied together, the company 

“failed to comply with this standard by failing to design for lateral loads, including wind loads, 

while the individual formwork tables were sitting prior to being tied in to the other tables.” (Sec’y’s 

Br., p. 12) (emphasis added). The Secretary further contends the shape of Table 27 was 

“sufficiently different than many tables and [was made] in such a way that its center of gravity was 

substantially different than most of the other tables, which required an engineer to run a calculation 

to determine how different lateral loads would affect the table and then design the table to 

withstand those loads.” (Id.) 

The Commission has held that in any case brought against an employer under the cited 

standard,

the Secretary has the burden to show that, more likely than not, the erected 

formwork was not strong enough to support the reasonably anticipated load. The 

cited employer can rebut by showing that, more likely than not, the erected 

formwork was strong enough to support such a load. If deviations from 

manufacturer's specifications are relied on, there must be evidence that they 

affected the decking's actual performance or its load-bearing capacity, thereby 

making it unable to support the reasonably anticipated load. Under the plain 

language of the standard, it is not enough for the Secretary simply to presume a 

violation because the deviations would add an element of uncertainty as to the 

strength of the decking

Worcester Steel Erectors, Inc., 16 BNA 1409, 1419 (No. 89-1206, 1993).

Gopal Menon has worked as a structural engineer with Engineering Services in OSHA’s 

Directorate of Construction and was qualified as an expert in structural engineering (Pretrial Order 

¶ 12, Attach. D). He holds a Master of Science degree with specialization in solid mechanics and 

structures. Prior to this case, Menon had investigated at least 25 structural collapses. OSHA 

assigned him to investigate the collapse of Table 27. Menon visited the accident site and viewed 

the wreckage of Table 27 on the street and the existing tables in place on the 16th level. He 

reviewed Ceco’s engineering plans and spoke with Carolina Kumanchik, the Design Engineer (Tr. 

194-196). 

Menon explained the differences between Table 27 and the other tables. Other tables were 

balanced with smaller, equally-sized cantilevers that were typically about 2 feet (Tr. 201-206). 

However, the top of Table 27 extended 6 feet beyond the legs in one direction and only 2 feet 
10

beyond the legs in the other direction, causing it to be eccentrically loaded. Menon opined Table 27 

could “topple because of [the excessive weight], if there is a lateral load. When there is a lateral 

load or if there is some load on—an existing load, the load transferred. It would be more always

on these posts,” nearest the cantilever (Tr. 207).

Although Menon testified Ceco’s design specifications were adequate to withstand 

concrete pours, he also opined there “was no design . . . for the individual tables” to withstand any 

lateral load before they were tied together (Tr. 214). In her deposition testimony, Kumanchik

agreed Table 27 was designed for lateral loads once it was tied in with the other tables. Table 27 

“was designed to hold any concrete vertical and some wind loads. And that also goes into seeing 

that everything is in place, including the straps, and everything is tied down. So getting everything 

as a whole, it’s that the table was designed with taking everything into consideration, including 

the tie downs and everything.” (Kumanchik Deposition, p. 7) (emphasis added). However, 

Kumanchik admitted she did not analyze or make any calculations related to lateral loads for Table 

27, believing straps would be enough to resist any lateral load (Id. at 13-14). 

Aubrey Dunham, Ceco’s Senior Project Executive for the worksite, also acknowledged 

Ceco had no design for Table 27 with respect to lateral loads before it was tied in with the other 

tables. (Dunham Dep., pp. 4, 40-41). Ceco’s counsel also conceded “there was no drawing [of a 

formwork design for Table 27] by the engineers that did that. Because there was the Best Practices.

. . . The Best Practices constitute a design for the anchorage of the table.” (Tr. 185-86.)9

 

Nonetheless, Ceco argues the Secretary failed to establish it was not in compliance with the cited 

standard because he presented no evidence “the procedures in the Best Practices Manual were 

insufficient to anchor the table against anticipated wind loads.” (Resp’t’s Br., p. 18.) 

Eric Eder, Ceco’s Director of Engineering, testified Table 27 was a typical table with 

respect to its “size, the depth that it was, the height, total height, the stability of it, the location,” 

and that cantilevered corner tables were not unusual (Tr. 321, 325). He testified the tables with

the strapping were designed to withstand sustained winds of 90 miles per hour and gusts of 115 

miles per hour (Tr. 330). Likewise, Ceco Safety Director Peterson agreed that Table 27 was not 

“out of the ordinary.” (Tr. 294).

9 According to Ceco’s Best Practices Manual, it “covers the Basic Installation and Stripping procedures for the 

CEFCO E-Z Panel System which can be used with any number of different forming systems.” (Ex. J-1, p. 2).
11

Instructions for setting corner panels (such as Table 27) appear in a yellow box on page 27 

of Ceco’s Best Practices Manual (Ex. J-1). The note in the yellow box states:

Setting corner panels: use form spike method or you must use the deck filler 

option to secure panel before removing CH-3850 C-Picker. After C-Picker is 

removed you MUST use ratchet straps with 1⁄2” drop-in anchors and a shoulder eye 

bolt to secure all corner panels. Form spike: Ultimate is 1180# tension, 2425# 

shear. 1⁄2” Drop-in: Ultimate is 9000# tension, 6640# shear.

(Ex. J-1, p. 27) (emphasis in original.) Menon opined why these instructions were inadequate: 

The table 27 needs to be looked at because it has a six-foot cantilever. I don't know 

what design -- we asked for the design for this --for the best practice document and 

this is something they have for -- that CECO has for all the tables. So we cannot 

have something which can be used for all tables apply to table 27. Unless, unless 

CECO practice says that this can be used for tables with certain cantilevers, certain 

geometry. So I did not see any design associated with this best practice document. 

And I requested CECO and we never received it.

(Tr. 218-19.)

The Court agrees with the Secretary that although Ceco properly included in its formwork 

design a method that would support lateral loads once the individual tables were tied together, the 

company “failed to comply with this standard by failing to design for lateral loads, including wind 

loads, while the individual formwork tables were sitting prior to being tied in to the other tables.” 

(Sec’y’s Br., p. 12.) (emphasis added). Therefore, the Secretary has established a violation of the 

cited standard. 

(3) Whether Employees Were Exposed to Hazard Created

Ceco does not dispute this element of the Secretary’s case. (Pretrial Order, Attach. C, Stip. 

2) It is also evident the three Ceco employees working on the 16th level of Fern Street building 

were exposed to the hazard created by the collapse of Table 27. Therefore, the Secretary has 

established employees were exposed to the hazard created. 

(4) Whether Ceco Knowingly Disregarded Act’s Requirements

As indicated supra, part of the Secretary’s prima facie case for the violation of an OSHA 

standard requires proof “that the employer ‘knowingly disregarded’ the Act's requirements.” 

ComTran, 722 F.3d at 1307. As for the knowledge element, “[t]he Secretary may prove that an 

employer had knowledge of a violation in one of two ways—(1) by imputing the actual or 

constructive knowledge of a supervisor or (2) by demonstrating constructive knowledge based on 

the employer’s failure to implement an adequate safety program.” Samsson Constr., Incorp. v. 
12

Sec'y, U.S. Dep't of Labor, 723 F. App'x 695, 697 (11th Cir. 2018) (citing ComTran, 722 F.3d at 

1311). San Miguel conceded he found no deficiencies in Ceco’s training in fall protection or its 

enforcement of its work rules (Tr. 160-61). Therefore, to establish the knowledge element, the 

Secretary must prove Ceco had knowledge of the violation by imputing the actual or constructive 

knowledge of a supervisor.

Even though Ceco’s employees were setting the formwork in conformance with its Best 

Practices Manual, which Ceco considers its design document, Ceco knew its Best Practices Manual

did not have a drawing of a formwork design for Table 27 with respect to lateral loads before it 

was tied in with the other tables. Foreman Gutierrez and his two subordinate two carpenters 

(Mendez and the Decedent) were in the process of installing formwork designated as Table 27

when the accident occurred. He directly observed the violative conduct of the subordinate 

carpenters. His actual knowledge is imputed to Ceco. ComTran, 722 F.3d at 1316. Further, even 

if Foreman Gutierrez was an “actual malfeasant,” his “rogue” conduct is imputed to Ceco since, 

by his roguish malfeasance, he exposed not only himself but also his subordinates to the hazard. 

Samsson, 723 F. App'x at 698 (citing Quinlan v. Sec’y of Labor, 812 F.3d 832, 841 (11th Cir. 

2016)). Therefore, the Secretary has established Ceco’s knowledge of the violation.10 

Characterization of Violation

The Secretary characterized the violation of the cited standard as serious. A serious 

violation is established when there is “a substantial probability that death or serious physical harm 

could result [from a violative condition] . . . unless the employer did not, and could not with the 

exercise of reasonable diligence, know of the presence of the violation.” 29 U.S.C. § 666(k). Here, 

an employee died because of the collapse of Table 27. The violation is a serious one.

C. Item 4

The cited standard in Item 4, section 1926.703(b)(6), provides that “[a]ll base plates, shore 

heads, extension devices, and adjustment screws shall be in firm contact, and secured when 

necessary, with the foundation and the form.” 29 C.F.R. §1926.703(b)(6). The Secretary alleges 

that Ceco violated this standard because “[b]ase plates, shore heads, extension devices, and 

10 In its brief, Ceco asserts the “defense of unpreventable employee misconduct should apply to the fall protection 

issue,” which is the alleged violation in Item 1 (Resp’t’s Br., pp. 20, 21). Thus, Ceco argues “[a]ssuming that the 

Secretary is able to establish a prima facie case, Respondent contends that the defense of unpreventable employee 

misconduct applies to the violation of Citation 1, Item 1.” (Resp’t’s Br., p. 2). Since Ceco only preserved this defense 

as to Item 1, it has waived it as to the remaining Items. Therefore, the Court declines to address this defense.
13

adjustment screws were not in firm contact, and secured when necessary, with the foundation and 

the form.” (Compl. Ex. A at 9 of 11). More specifically, the Secretary asserts “the anchorage of 

the table form legs to the concrete floor was not properly secured with the required bolts.” (Id.) 

For the reasons indicated infra, the Court concludes the Secretary has met his burden of 

establishing a prima facie case for a violation.

(1) Whether the Cited Regulation Applies to the Cited Conditions

Section 1926.703(b)(6) is found under Subpart Q—Concrete and Masonry Construction 

of the construction standards, which “sets forth requirements to protect all construction employees 

from the hazards associated with concrete and masonry operations” on construction sites. 29 

C.F.R. § 1926.700(a). Section 1926.703 is captioned Requirements for cast-in-place concrete. At 

the time of the fatality, Ceco was engaged in construction work activities involving the placement 

of formwork at the worksite. The cited standard applies to the cited conditions. 

(2) Whether the Requirements of the Cited Regulation Were Violated

Ceco’s Best Practices Manual requires its employees to secure the formwork tables to the 

foundation: 

Before the C-Picker is removed, the panel must be “fastened” to the floor using 

3/16” form spikes and a washer pin or you must use the deck filler option 

(described on page 10). This will reduce the potential for accidental displacement 

as the C-Picker is removed. (i.e., catching on the panel and dragging closer to the 

edge). 

(Ex. J-1, p. 27) (emphasis in original.) The Best Practices Manual does not indicate how many 

form spikes per base plate should be used or how many base plates should be secured with form 

spikes. The Best Practices Manual also requires formwork to be secured to the foundation to 

prevent movement from wind with a ratchet strap11 over the top of the formwork and connected to 

base plates “with 1⁄2” drop-in or cast-in anchors and a shoulder eye bolt,” and it instructs employees 

to “[c]onsult with engineering for approval to use other methods for securing perimeter panels.” 

(Ex. J-1, p. 27.) The strap is held on each side of the table by connecting it to a base plate screwed 

into the slab with two wedge bolts on diagonal corners of the base plate (Tr. 287, 295). 

On September 1, 2016, Ceco’s three-man crew used 1⁄2-inch diameter bolts that were 

embedded 2 inches deep into the concrete. The substituted bolts had no anchors and went directly 

11 The ratchet strap was also referred to as “wind strap” at trial, which is a three-inch-wide yellow nylon strap (Tr. 

67, 287). 
14

into the concrete. The bolts were reused from floor to floor. In some cases, Ceco used spike nails 

or regular nails. The employees drove the spike nails only part way into foundation to avoid hitting 

the post-tensioning cable in the slab (Ex. C-8, pp. 30-34, 38; Tr. 85-86, 93-94). 

As the Secretary notes, Ceco “used nails instead of form spikes, only put spike nails 

partially into the slab, substituted wedge screws that could be used from floor to floor with half 

the holding capacity of drop-in anchors with bolts, and in some places substituted nails or form 

spikes for the drop-in anchors with a tiny fraction of the holding capacity.” (Sec’y’s Br., pp. 16-

17) (citing Tr. 85-6, 93-4; Ex. C-8 at 29-38). Ceco’s senior project executive, Aubrey Dunham,

conceded the use of spike nails was improper. “No, we should be using bolts.” (Dunham Dep., p. 

46.) San Miguel also testified Kumanchik told him the use of spike nails was improper (Tr. 71).

Ceco argues there is “no dispute that the base plates at issue were in firm contact with the 

deck.” (Resp’t’s Br., p. 20.) However, as indicated supra, the cited standard requires that base 

plates “shall be in firm contact, and secured when necessary, with the foundation and the form.” 

29 C.F.R. §1926.703(b)(6) (emphasis added). According to Ceco’s Best Practices Manual, the 

company considered securing the base plates to the foundation to be necessary and provided 

specific instructions to its employees to do so. Any deviation from the Best Practices Manual

required approval from a Ceco engineer. Ceco’s employees deviated from the Best Practices 

Manual without consultation with an engineer. The Court concludes Ceco violated the cited 

standard. 

(3) Whether Employees Were Exposed to the Hazard Created

The three Ceco employees were working next to the edge of the 16th level. Failure to 

properly secure the base plates created a hazard of Table 27 moving and striking employees or 

dragging them off the edge of the building. Here, the nails used in two of the four legs and the 

bolts used to anchor the ratchet straps all pulled out of the slab when Table 27 fell off the building. 

The employees were exposed to the hazard. 

(4) Whether the Employer Knowingly Disregarded the Act’s Requirements

Foreman Gutierrez was working with the two carpenters as they placed the tables and drove 

in the spike nails and bolts. He directly observed the violative conduct. His actual knowledge is 

imputed to Ceco. ComTran, 722 F.3d at 1316. Further, as indicated supra, even if Foreman 

Gutierrez was an “actual malfeasant,” his “rogue” conduct is imputed to Ceco since he exposed 
15

not only himself but also his subordinates to the hazard. Samsson, 723 F. App'x at 698. Therefore, 

the Secretary has established Ceco’s knowledge of the violation.

Characterization of Violation

The Secretary characterized the violation as serious. As indicated supra, a serious violation 

is established when there is “a substantial probability that death or serious physical harm could 

result [from a violative condition] . . . unless the employer did not, and could not with the exercise 

of reasonable diligence, know of the presence of the violation.” 29 U.S.C. § 666(k). Here, an 

employee died because of the collapse of Table 27. The violation is also a serious one.

IV. PENALTY DETERMINATION

“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.” N. E. Precast, LLC; & Masonry Servs., Inc, 26 BNA OSHC 

2275, 2282 (Nos. 13-1169 and13- 1170, 2018) (citation omitted). “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.” Id. (citations omitted). 

The Secretary and Ceco stipulated that on the day of the accident, Ceco employed 

approximately 1,800 people (Pretrial Order, Attach. C, Stip. 3). Therefore, Ceco is not entitled to 

any penalty reduction based upon size. The Secretary cited Ceco for OSHA violations within the 

previous five years (Tr. 90-91). Therefore, Ceco is also not entitled to any penalty reduction based 

upon history. Ceco had a written safety program and the Court credits Ceco with good faith. 

However, the gravity of the violations are high, and their severity outweighs the other 

factors. An employee was killed, and two other employees were exposed to the hazards created 

by the collapse of Table 27. The likelihood of injury was high. “‘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.’” Natkin & Co. Mech. Contractors, 1 BNA 

OSHC 1204, 1205 n.3 (No. 401, 1973) (quoting N. E. Precast, 26 BNA OSHC at 2282). Giving 

due consideration to the gravity of the violation and Ceco’s size, history of violation, and good 

faith, the Court finds the Secretary’s proposed penalty of $12, 675.00 for Items 3 and $12, 675.00 

for Item 4 is appropriate. Accordingly,
16

V. ORDER

IT IS HEREBY ORDERED THAT Item 1 of the citation is VACATED and no penalty is 

assessed.

IT IS FURTHER ORDERED THAT Item 3 of the citation is AFFIRMED and a penalty of $12, 

675.00 is assessed.

IT IS FURTHER ORDERED THAT Item 4 of the citation is AFFIRMED and a penalty of $12, 

675.00 is assessed.

SO ORDERED.

/s/ John B. Gatto 

John B. Gatto, First Judge

Dated: October 26, 2018

Atlanta, GA