United States of America

 

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20^th Street, N.W., Ninth Floor

Washington, DC 20036-3457

 

SECRETARY OF LABOR,

	

 

Complainant,

	

 

v.

	

        OSHRC Docket No. 12-0318

TORRE MACKLE GROUP, LLC,

	

        

Respondent.

	

 

 

FINAL ORDER

 

Former Administrative Law Judge Ken S. Welsch issued a Decision and
Order in this case affirming the citation item at issue, and
subsequently, that decision was directed for review. On August 15, 2014,
the Respondent notified the Commission of its decision to withdraw its
notice of contest of the citation and proposed penalty pursuant to
Commission Rule 102, 29 C.F.R. § 2200.102. Because the Respondent has
withdrawn its notice of contest in this case, the Commission vacates the
Administrative Law Judge’s Decision and Order.

SO ORDERED.

                                                                  BY
DIRECTION OF THE COMMISSION

 

                                                                  

 

                                                                  

Dated: August 20,
2014                           /s/                                                              

                                                                  John
X. Cerveny

                                                                  Executive
Secretary





------------------------------------------------------------------------



UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1924 Building – Room 2R90, 100 Alabama Street, S.W.

Atlanta, Georgia 30303-3104




Secretary of Labor,

	

 


          Complainant

	

 


           v.

	

OSHRC Docket No. 12-0318


Torre Mackle Group, LLC,

	

Simplified Proceedings


          Respondent.

	

 



Appearances:


Brooke D. Werner McEckron, Esquire, Office of the Solicitor, U. S.
Department of Labor, Atlanta, Georgia

For Complainant


Vincent F. Vaccarella, Esquire, Law Office of Vincent Vaccarella, Fort
Lauderdale, Florida

For Respondent


Before: Administrative Law Judge Ken S. Welsch


                                                 DECISION AND ORDER


Torre Mackle Group, LLC (TMG) is a construction managing company located
in Coral Gables, Florida. On November 16, 2011, a safety compliance
officer with the Occupational Safety and Health Administration (OSHA),
in response to a referral from the police department, initiated an
inspection into a secretary’s head injury at the Mt. Sinai Medical
Center in Miami, Florida. At the time of the injury on November 15,
2011, the secretary was sitting at her desk in the Office of Human
Resources while a TMG employee, standing on a ladder in an adjacent
office, attempted to catch a concrete core in a bucket that had been
drilled through the roof. Instead, the employee lost control of the
29-pound concrete core and it fell through the tile ceiling above the
secretary’s desk. It struck the secretary on top of the head; causing
bleeding.

As a result of the OSHA inspection, TMG received a serious citation on
December 27, 2011. The citation alleges that TMG violated 29 C.F.R. §
1926.501(c)(3) for failing to barricade the area where employees were
exposed to falling objects such as a concrete cylindrical core. The
citation proposes a penalty of $ 3,000.00. TMG timely contested the
citation.

The Secretary of Labor’s motion, filed May 9, 2012, to allege, in the
alternative, a violation of 29 C.F.R. § 1926.100(a) for failing to
provide protective helmets, was granted at the hearing. The amendment
did not change the nature of the alleged violation and hazard (Tr. 9,
13). /Paschen Contractors, Inc./, 14 BNA OSHC 1754, 1757 (No. 84-1285,
1990). Also, TMG was unable to show prejudice as evident by it not
needing the record kept open to offer additional evidence (Tr. 19, 200).

The hearing, designated for simplified proceedings pursuant to 29 C.F.R.
§ 1926.2200 /et Seq/., was held on May 15, 2012, in Miami, Florida. The
hearing was reconvened on June 26, 2012 to receive the testimony of the
Director of Human Resources who was unable to attend the May 15 hearing
because of a personal emergency (Tr. 19). The parties stipulated
jurisdiction and coverage (Tr. 5). The parties filed post-hearing briefs
on July 26, 2012.

TMG denies the alleged violation. It argues that the cited standards do
not apply to the working conditions and the medical center employee was
not a covered employee. Also, TMG claims the required safety measures
were impermissible and inappropriate. As an affirmative defense, TMG
asserts unpreventable employees misconduct.

For the reasons discussed, TMG’s serious violation of § 1926.501(c)(3)
is affirmed and a penalty of $ 3,000.00 is assessed.

                                                            /The Inspection/

TMG is in business as a general construction manager. In 2011, the Mt.
Sinai Medical Center contracted TMG to manage the replacement of windows
and a new roof for the Ascher Building. The Ascher Building is two
stories and contains the medical center’s administrative offices
including Payroll and Human Resources offices on the second floor. TMG
assigned a project manager to oversee the project and contracted
subcontractors to perform the work. TMG also assigned two full-time
employees to work on the project (Tr. 71, 95, 148, 161-162, 188).

As part of the new roof project, additional pipes needed to be installed
through the concrete roof to increase the drainage of rainwater. TMG
contracted a core drilling contractor to drill several holes through the
roof and a plumbing contractor to install the new drain pipes (Tr. 46, 172).

On November 7, 2011, TMG’s project manager e-mailed the medical center’s
construction manager that it would “commence the chipping/core drilling
of the roof drains starting Monday, November 14^th ” (Exh. C-9). The
e-mail also stated that a TMG employee assisting in the core drilling
(identified as “our superintendent”) “should be getting in contact with
each of the departments on the 2^nd floor and trying to work out a plan
of action to see what times work best for the individuals affected by
the work.” The e-mail advised that the work would last one week, “with
the majority of the noisy work (chipping/core drilling) being completed
by Tuesday.” Pursuant to its agreement with the medical center, if an
employee needed to be temporarily evacuated from the area, the TMG
employee was to speak directly with the affected employee, the
supervisor, or contact the hospital’s construction manager (Tr. 150).

On November 14, 2011, the core drilling work began. While the core
drilling contractor drilled three holes through the roof, the plumber,
on the second floor, standing on a 6-foot ladder held by the TMG
employee, caught the drilled concrete core (a cylindrical concrete
block) in a 5-gallon bucket (Tr. 68, 76). During this process, there is
no evidence that any employee was exposed to a falling core or what, if
any, precautions were taken to prevent employee exposure.

On November 15, 2011, because the plumber was unavailable, the TMG
employee who had assisted him was assigned by TMG’s project manager to
catch the concrete core while the other TMG employee held the ladder
(Tr. 51, 67, 194-195). As determined by the plumber, the core hole
drilled in the roof this day was located directly above the secretary’s
desk in the Office of Human Resources (Exh. C-2; Tr. 46). Because her
desk could not be moved, the two TMG employees decided to set up in the
adjacent Director’s office (Exh. C-1; Tr. 43, 72, 229). After removing
the nearest ceiling tile to the wall, the TMG employee stood on top of
the 6-foot ladder holding the bucket underneath the concrete roof where
the core was expected to be drilled (Tr. 73). The employee had to lean
over the wall that separated the Director’s office and the secretary’s
work area, holding the bucket against the roof (Tr. 42). The office
ceiling was 9-feet above the floor and there was an additional 4 feet
from the office ceiling to the roof (Tr. 97).

After the hole was drilled, the TMG employee lost control of the
concrete core when it dropped into the bucket. The core fell through a
ceiling tile above the secretary’s desk. As described by the TMG
employee, the “bucket knocked out of my hand when the concrete core fell
– The impact was so great that it didn’t come down, but rather it flew
away from me – it went into the bucket, but when it landed, it never
really came on a vertical plane, but rather it flew on a horizontal
plane away from me” (Tr. 62). He claimed that his “arms were getting
tired from holding them up too long because it was taking too long for
it to come thru, much longer than before” (Tr. 77).

The secretary, who was sitting at her desk on the other side of the
wall, was struck on the left side of the head; causing bleeding. She was
taken to the medical center for treatment (Tr. 228, 231). The concrete
core measured 7 3⁄4 inches in diameter, 6 3⁄4 inches in length, and weighed
29 pounds (Exhs. C-6, C-7; Tr. 101-102). The accident occurred at
approximately 9:30 a.m. (Tr. 193).

  The TMG employee testified that he had not been trained on how to
perform the task. “I saw what Pablo [the plumber] did before, so that’s
about where I placed the bucket, according to what I experienced the day
before” (Tr. 79). Also, he claimed that he told the secretary that
“we’re going to drill. You need to remove yourself from this area and
we’ll let you know when we’re done” (Tr. 79). According to his
testimony, he advised the secretary at least twice to leave the area but
she kept returning to her desk (Tr. 54-55). The secretary denied
receiving any instruction to leave her desk (Tr. 130).

On November 16, 2011, based on a referral from the Miami Police
Department, an OSHA safety compliance officer initiated an inspection
(Tr. 88). After arriving at the Ascher Building, the compliance officer
photographed the Human Resources offices and interviewed the medical
center and TMG employees (Tr. 90). The tile above the secretary’s desk
had been replaced and the area cleaned up (Tr. 90-91).

As a result of the OSHA inspection, TMG received the serious citation at
issue on December 27, 2011 for failing to place a barricade at the
secretary’s work area.

                                                           DISCUSSION

The Secretary has the burden of proof.

In order to establish a violation of an occupational safety or health
standard, the Secretary has the burden of proving: (a) the applicability
of the cited standard, (b) the employer’s noncompliance with the
standard’s terms, (c) employee access to the violative conditions, and
(d) the employer’s actual or constructive knowledge of the violation
(/i.e., /the employer either knew or, with the exercise of reasonable
diligence could have known, of the violative conditions).

 

/Atlantic Battery Co., /16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

TMG stipulates that the construction standards are applicable to the
core drilling work performed on November 15, 2011. If a violation is
found, TMG also agrees the violation is properly classified as serious
and the penalty of $ 3,000.00 is reasonable (Conference Order dated May
8, 2011; Tr. 5).

                                                    SERIOUS CITATION

                                         Alleged Violation of §
1926.501(c)(3)

The citation alleges that “[O]n or about 11/15/2011, the company did not
barricade an area where employees were exposed to falling objects such
as concrete debris and a concrete cylindrical core.”

Section 1926.501(c)(3) provides:

(c)/Protection from falling objects./ When an employee is exposed to
falling objects, the employer shall have each employee wear a hard hat
and shall implement one of the following measures.

 

           * * * * * * * * * * * * *

(3) Barricade the area to which objects could fall, prohibit employees
from entering the barricaded area, and keep objects that may fall far
enough away from the edge of a higher level so that those objects would
not go over the edge if they were accidentally displaced.

 

In the alternative, the Secretary alleges that “[O]n or about
11/15/2011, the company did not protect an employee with a protective
helmet when that employee was working in an area where there was a
possible danger of head injury from a falling concrete cylindrical core.”

Section 1926.100(a) provides:

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.

 

           There is no dispute the medical center secretary was struck
on the head by the concrete core that had been drilled through the roof.
The location of the core drilling was directly above the secretary’s
desk. The door between the Director’s office and the secretary’s work
area was open (Exh. C-2; Tr. 248). The Director, who sat at her desk
near the opposite wall from the drilling, could not see the secretary
(Tr. 238). There were no barricades placed around the secretary’s desk
(Tr. 51-52, 233).

                                       /Application of §
1926.501(c)(3)or §1926.100(a)/

The standard at § 1926.501(c)(3) is more specific to the alleged unsafe
condition at issue than § 1926.100(a) and therefore deemed the
appropriate standard. /McNally Construction & Tunneling Co.,/ 16 BNA
OSHC 1879, 1880 (No 90-2337, 1994) (If the same hazard is addressed by
two standards, the more specific standard preempts the application of
the other standard). Both standards address the potential for head
injuries from falling objects. However, § 1926.100(a) applies to other
hazards to the head from flying or falling objects, impact, and
electrical shock and burns. The standard requires protective helmets to
protect against such hazards.

Section 1926.501(c)(3), on the other hand, addresses only injuries to
the head from falling objects. It requires a hard hat and the
implementation of additional measures such as barricades to protect
employees from such hazard. The standard addresses more closely the
hazard identified by OSHA in this case, /i.e./ a falling concrete core
and the means of abatement, /i.e/. a barricade.

Section 1926.501(c)(3) is the applicable standard.

                                 /TMG was the Responsible Employer /

The only employee exposed to the alleged overhead hazard on November 15,
2011, was the medical center secretary who was struck on the head by the
concrete core (Tr. 17-18, 27-28, 111-112). Footnote
<javascript:WPShow('WPFootnote1',%20WPFootnote1%20)> A central issue in
dispute is whether TMG, as construction manager, should be held
responsible for the safety of an employee of the property owner who
contracted TMG to perform the drainage work. No Review Commission cases
were identified that specifically addressed the issue.

On November 15, 2011, TMG employees were directly involved in
supervising and performing the core drilling work above the secretary’s
desk. An employer engaged in construction activities is responsible for
both those hazardous conditions to which its own employees at the site
are exposed and those hazardous conditions to which it either creates or
controls and to which employees of other employers are exposed.
/McDevitt Street Bovis, Inc. /19 BNA OSHC 1108, 1109 (No. 97-1918,
2000). This employer’s responsibility has been extended to protect
employees exposed to hazards on non-construction multi-employer
worksites. /Harvey Workover, Inc/., 7 BNA OSHC 1687, 1689 (No. 76-1408,
1979) (The safety of all employees can be achieved if each employer at
multi-employer worksites has the duties to (1) abate hazardous
conditions under its control and (2) preventing its employees from
creating hazards). Therefore, it stands to reason that a project related
non-construction employer’s employee, who is exposed to a construction
hazard and is required to work in the same work area, is afforded the
same protection from hazards created or controlled by a general
contractor as a subcontractor’s employees. Such application does not
imply that passers-by or unrelated third parties exposed to construction
hazards are covered under the Occupational Safety and Health Act (Act).

In this case, the medical center contracted TMG to perform the drainage
work as part of the roof project. The secretary was employed by the
medical center and worked in the Human Resources Office where TMG’s core
drilling work was performed. The secretary was an employee at a
construction worksite during the time of the core drilling. Her
workplace was the same as TMG’s construction worksite. She was exposed
to an overhead hazard.

Under the contract with the medical center, TMG controlled the
construction work at the Ascher Building and was responsible for the
safe removal of the concrete core in the secretary’s work area. The TMG
employee in charge knew the work area was accessible to the secretary
and that she was exposed to an overhead hazard. TMG’s contract held it
responsible to keep medical center employees safe when performing
construction work (Tr. 164). TMG outlined the work plan and determined
when and where the work would take place (Tr. 39, 117, 163, 171). TMG in
this case had a duty to protect from a construction hazard the employee
of the building owner who worked in the unsafe work area controlled by TMG.

TMG’s employees also created the unsafe condition on November 15, 2011
by working over the head of a non-construction employee. TMG assumed the
responsibility to complete the core drilling. TMG, in the absence of the
plumber, became responsible for the protection of the exposed secretary
who worked in same work area. It was responsible for securing the
concrete core and assuring the secretary’s work area was safe from the
overhead hazard. The secretary’s desk was located directly underneath
the core drilling (Exh. C-2). The TMG employee, without first-hand
experience, made the decision to work from the adjacent office, stand on
top of a 6-foot ladder, and to use a bucket to catch a 29-pound concrete
core. He was in charge of the core drilling and supervised the work. He
knew the process was “unsafe” (Tr. 50). He decided not to place a
barricade although there was no clear view of the secretary’s desk.

The Act’s “focus of the compliance duty imposed on an employer is the
employer’s workplace, not any specific employees.” /Summit Contractors,
Inc./, 23 BNA OSHC 1196, 1205 (No. 05-0839, 2010). Once an employer is
deemed responsible for complying with OSHA regulations, it is obligated
to protect employees who work in its workplace. The secretary was in
TMG’s workplace and exposed to a hazard created or controlled by TMG. It
was a common worksite. The secretary’s employer, the medical center,
contracted TMG to perform the drainage work. TMG, as an employer, owed a
duty not only to its own employees but to other employees at the same
worksite when it created and/or controlled the cited conditions. A
construction employer, TMG has a duty to protect the place of employment
including other employees who work at the place of employment, so long
as the employer also has employees at the place of employment.

TMG, as the creating and controlling employer, was responsible to
provide the medical center secretary a safe workplace during the core
drilling.

                                            /Failure to Comply /

There is no dispute that there were no barricades placed around the
secretary’s work area, deterring entry into the danger zone during the
core drilling (Tr. 52). Section 1926.501(c)(3) requires in this case a
hard hat and a barricade. Footnote
<javascript:WPShow('WPFootnote2',%20WPFootnote2%20)> If the secretary
was allowed to work at her desk (zone of danger) during the core
drilling, a hard hat was required. If she did need to work at the desk,
a barricade deterring access to the desk area was required by the
standard. A barricade would prevent her exposure to a falling object.

There is no showing that TMG offered a hard hat or installed a
barricade. Its argument that the use of a hard hat and barricade were
impermissible and inappropriate is rejected. Footnote
<javascript:WPShow('WPFootnote3',%20WPFootnote3%20)> The standard
requires them as the means of abatement. There is no showing that TMG
advised the medical center or the Director about the need to keep the
secretary away from the desk or made a request for a barricade or a hard
hat. There is no showing the medical center objected to the abatement.
The Director testified that a rope (barricade) could be placed around
the secretary’s desk without interfering with access to her office (Tr.
237).

Although no barricade was installed, TMG argues that the secretary was
asked to leave her desk by its employee in charge of the core drilling.
The TMG employee testified that he repeatedly told the secretary to
leave her area (Tr. 79). The secretary denied receiving any instructions
to leave (Tr. 130).

           Having considered the witnesses’ demeanor and responsiveness,
the secretary’s denial is given weight as more credible. Her denial is
corroborated to an extent by the Director’s testimony (Tr. 231-232). The
Director did not hear her secretary given an instruction to leave the
desk although the door was open between her office and the secretary’s
work area (Tr. 232-233, 248). She could not see her secretary, but she
could hear her at her desk (Tr. 230). “I could hear her out there” (Tr.
238). “I think she was there most of the time, but she gets up, she’s up
and down, she answers the phone, she goes out front. She may not have
been just sitting there the whole time, but she’s usually there because
she answers my phone” (Tr. 238). The Director testified that she allowed
the secretary to remain at her desk because the TMG employees were in
her office and she did not know the secretary was in the zone of danger
(Tr. 234). “I had no idea that [the secretary] might be exposed to any
dangerous conditions that day” (Tr. 234). TMG’s earlier e-mail to the
medical center only described the work as “noisy” (Exh. C-9).

Also, the circumstances support the secretary’s testimony. It is hard to
imagine a reason why the secretary would remain at her desk if she knew
TMG’s work was being performed directly overhead and she was asked to
leave the area. The TMG employee, however, had a reason to misstate what
transpired because of the injury to the secretary. Also, the employee
acknowledges the secretary repeatedly returned to her desk despite his
instruction. This shows the inadequacy of an instruction and increases
his awareness that the secretary would be at her desk during the core
drilling (Tr. 55). Even knowing she had repeatedly returned to her desk,
the Director was not asked by the TMG employee to keep her away (Tr.
234, 250). Regardless, the standard requires a barricade, not an alleged
instruction.

TMG’s argument that the standard did not apply because the falling
object from the core drilling was intentional and not accidental is
rejected. The standard does not distinguish between an intentional and
an accidental falling object. It applies to any falling object. Footnote
<javascript:WPShow('WPFootnote4',%20WPFootnote4%20)>

           The terms of § 1925.501(c)(3) were violated.

                                            /Employee Exposure/

The secretary was exposed to the hazard of a falling concrete core. The
location of the core drilling was directly above the secretary’s desk
(Exh. C-2; Tr. 45-46). Her desk was in the zone of danger of a falling
object. On November 15, 2011, the secretary, sitting at her desk, was
struck on the head from the falling concrete core. The core which struck
her weighed approximately 29 pounds and fell approximately 13 feet (Tr.
97, 101).

                                         /TMG’s Knowledge/

As the last element of the Secretary’s /prima facia /case, TMG, through
its employee, knew or should have known with an exercise of reasonable
diligence of the violative condition. /Phoenix Roofing, Inc/., 17 BNA
OSHC 1076, 1079-1080 (No. 90-2148, 1995) /aff’d without published
opinion/, 79 F.3d 1146 (5th Cir. 1996). The TMG employee directed the
work and as a supervisor, his knowledge is imputed to TMG. It is
sufficient to establish TMG’s knowledge. /Pride Oil Well Serv/., 15 BNA
OSHC 1809, 1814 (No. 87-692, 1992).

The employee was assigned by the TMG project manager the task of
catching the concrete core and assuring the area was kept clear of
employees. TMG knew the core drilling procedure was unsafe (Tr. 50-51,
176). Although the employee identified his job as laborer, he was placed
in charge of the work by TMG (Tr. 70, 176). On November 15, 2011, he was
delegated supervisory authority at least temporarily. In an e-mail to
the hospital, the employee was referred by TMG as “our superintendent”
in the core drilling process (Exh. C-9). The TMG project manager
described the employee as a field supervisor or superintendent who was
in charge when he was not present (Tr. 95, 189, 190). He expected the
employee to “use his judgment” and he had the authority to stop work if
it was unsafe (Tr. 191). He directed the work of the other TMG employee.
The unsafe condition caused by the core drilling was in plain view.

An employee who has been delegated authority over other employees, even
if only temporarily, is considered a supervisor for the purposes of
imputing knowledge to the employer. /A.P. O’Horo/, 14 BNA OSHC 2004,
2007 (No. 85-369, 1991) (laborer designated as working foreman) /Paul
Betty, d/b/a Betty Brothers/, 9 BNA OSHA 1379, 1382 (No. 76-4271, 1981)
(plasterer functioned as a supervisor).

The employee’s knowledge of the core drilling operation and the failure
to place a barricade is imputed to TMG.

    / /                             /Unpreventable Employee Misconduct/

TMG argues that if a violation is found, it was due to its employee’s
misconduct. TMG asserts unpreventable employee misconduct if the
employee failed to instruct the secretary to leave the area. The
employee knew that he was to instruct workers to leave the area while
the work was performed (Tr. 176).

In order to establish the affirmative defense of unpreventable employee
misconduct, TMG must show that it has (1) established work rules
designed to prevent the violation, (2) adequately communicated these
rules to its employees, (3) taken steps to discover violations, and (4)
effectively enforced the rules when violations are discovered. /American
Sterilizer Co/., 18 BNA OSHC 1082, 1087 (No. 91-2494, 1997).

There is no showing TMG had a work rule on core drilling or placing
barricades. The employee had not received any training by TMG on the
core drilling process. He had only observed the plumbing contractor
perform the job on the previous day (Tr. 79). He had never performed the
job himself. There is no evidence the prior core drilling involved
employees exposed to a hazard. Also, despite the project manager’s trips
to the project once or twice a day for about an hour, there is no
showing that he monitored the employees to assure compliance with TMG’s
safety procedures involving the core drilling process. There is a lack
of evidence of enforcing safety rules through a disciplinary program.

TMG’s unpreventable employee misconduct defense is rejected.

                                                     Serious Classification

TMG’s violation of § 1926.501(c)(3) is classified as serious. A serious
violation under §17(k) of the Act, is where there is a substantial
probability of death or serious physical harm that could result from the
cited condition and the employer knew or should have known with the
exercise reasonable diligence of the presence of the violation.

There is no dispute that a concrete core, weighing 29 pounds and falling
13 feet, could cause serious injury. The secretary was struck on the
head, causing bleeding, and she needed emergency room treatment (Tr.
228). The employee’s knowledge, as a supervisor regarding the failure to
place a barricade, is imputed to TMG. TMG has stipulated and the record
supports a finding that TMG’s violation § 1926.501(c)(3) was serious
under the Act (Tr. 5).

                                            PENALTY CONSIDERATION

The Review Commission is the final arbiter of penalties in all contested
cases. In determining an appropriate penalty, the Commission considers
the size of the employer’s business, history of previous violations, the
employer’s good faith, and the gravity of the violation. Gravity is the
principal factor to be considered.

A penalty of $ 3,000.00 is reasonable for the violation of §
1926.501(c)(3). One employee was exposed to a head injury from a
29-pound concrete core. The record supports and TMG stipulates that a
penalty of $ 3,000.00 was reasonable in this case (Tr. 5).

                        FINDINGS OF FACT AND CONCLUSIONS OF LAW

The foregoing decision constitutes the findings of fact and conclusions
of law in accordance with Rule 52(a) of the Federal Rules of Civil
Procedure.

                                                                ORDER

Based upon the foregoing decision, it is ORDERED that

Serious Citation No. 1:

1.  Item 1, alleged serious violation of § 1926.501(c)(3), is affirmed
and a penalty of $3,000.00, is assessed.


 

SO ORDERED. 

                                                                                        /s/

                                                                             /                     /       

Date:     August 9,
2012                                                          KEN S. WELSCH

                                                                                        Administrative
Law Judge