Some personal identifiers have been redacted for privacy purposes.

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. 21-0142 

REVOLUTION ERECTING, LLC.

and its successors, 

 Respondent. 

 

APPEARANCES: 

 

Jeremy K. Fisher, Esquire 

Daniel Miller, Esquire

Department of Labor, Office of the Solicitor, Atlanta, Georgia 

For the Secretary

Angelo M. Filippi, Esquire 

Kelley Kronenberg, Fort Lauderdale, Florida 

For Respondent 

BEFORE: 

Dennis L. Phillips 

 Administrative Law Judge 

DECISION AND ORDER

I. Background 

This proceeding is before the Occupational Safety and Health Review Commission (the 

Commission) pursuant to § 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 
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§ 659(c) (the Act). On July 13, 2020, OSHA’s Compliance Safety and Health Officer (CO) 

Michael Marquez1 and later in September 2020, CO Reginald Benson,2 inspected a residential 

construction worksite in Naples, Florida. (Tr. 34-35; Joint Preh’g Statement, ¶ D, 1, 4). BCB 

Homes (BCB) was the general contractor at the site. (Tr. 36-37; Ex. C-25). BCB hired Morca 

Construction Services, Inc. (Morca Construction) and Ott Welding. (Tr. 25-26, 36-37; Ex. C25). Morca Construction was hired to pour and install concrete columns on the first floor, along 

with the tie beams3 to which hollow core slabs4 were to be attached. Morca Construction hired 

American Precast LLC (American Precast) (also known as Mellor & Sons, Inc. (Mellor & 

Sons)) to fabricate the hollow core slabs. (Tr. 26, 36-37; Ex. C-25). American Precast and 

Mellor & Sons fabricated the hollow core slabs offsite. (Tr. 26, 36-37). The owner of 

American Precast and Mellor & Sons, Victor Mellor, hired Revolution Erecting, LLC

(Revolution or Respondent) to install the hollow core slabs.

5

 (Tr. 19-20, 36-37, 90-91, 332-34, 

342; Ex. C-25). Ott Welding was hired to install steel ledger angles,6

 which supported the 

1 CO Marquez is no longer employed at OSHA. (Tr. 50).

2 CO Benson has been an OSHA CO for approximately 16 years. (Tr. 33-34). He has conducted more than 700 

OSHA inspections at construction work sites. (Tr. 34). 3 The photograph at Exhibit C-6 shows a tie beam at “D”. (Tr. 70; Ex. C-6, at D). CO Benson testified that Mr. Phil 

Nanna (sometimes spelled “Nana”), a safety consultant for BCB, told him that the segment of the tie beam he 

photographed at the storage facility in September 2020 “was taken from the tie beam that the ledger angle was 

affixed to that had collapsed.” (Tr. 124). 4 Dr. Bryan Ewing, the Secretary’s expert, testified that hollow core slabs are typically precast, four-foot-wide 

planks, with several voids within the depth of the slabs. He testified that each hollow-core slab weighed 6,536 

pounds. He said they are horizontal structural members typically used for roofs or floors. (Tr. 194-95, 239). The 

photograph at Exhibit C-9 shows hollow core slabs laying atop concrete at the west [left] side of the photograph and 

in the background two hollow core slabs are shown leaning on a tie beam. (Tr. 72; Ex. C-9). CO Benson testified 

that hollow-core slabs range from about 29 to 30 feet in length. He said they are “usually more than nine feet or 

more up.” (Tr. 67, 94; Exs. C-1, at E, C-3). 5 CO Benson testified that Revolution’s job at the worksite was to, using a crane, install the hollow core slabs by 

laying them down one by one next to each other and insuring they fit. Revolution was also to put cement between 

the slabs to enjoin the slabs and make sure there were no openings between them for water proofing purpose. (Tr. 

90-91). 6

 A ledger angle was a L-shaped steel section with holes and a 90-degree angle. Here, the vertical leg of the ledger

angle was anchored into concrete using “expansion anchors”, where the drawings called for the use of mechanical 

screw bolts, that were inserted before the concrete had cured. Dr. Ewing said doing so can lead to micro cracks 

within the concrete and premature failure of the tie beam. The ledger angle supported the hollow core slab on the 

vertical leg of the angle. The weight of the hollow core slabs is transferred to the foundation through the slabs 
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hollow core slabs. (Tr. 37-38, 108, 195). American Structural Engineering (ASE) was the 

engineer of record. (Ex. C-37). 

At about 2:00 p.m. to 3:30 p.m., Saturday, July 11, 2020, following the installation of the 

hollow core slabs and the placement of sixty cement bags on top of the slabs, a collapse occurred

at the worksite exposing Respondent’s employees to crushing hazards.7

 (Tr. 40-41, 340-41, 358; 

Exs. C-1 through C-23, R-D). The OSHA inspection was initiated because of the collapse and 

resulting injuries to two Respondent’s employees. (Tr. 34-35, 39-41). On July 13, 2020, OSHA 

CO Marquez visited the worksite and conducted an opening conference as part of OSHA’s 

inspection. (Tr. 34-35, 51-52). CO Marquez took many photographs at the worksite. (Tr. 50-

52, 61; Exs. C-1 through C-11, C-17 through C-23). 

CO Benson replaced CO Marquez8 as the OSHA CO assigned to the inspection and a few 

days before September 14, 2020, he visited the worksite and a storage facility where pieces of 

material that came from the worksite were stored. At the storage site, CO Benson took 

photographs of material that came from the worksite. (Tr. 48-49, 53-54; Exs. C-12 through C16). 

resting on the ledger angle, up through the ledger angle and through anchor bolts, through connections to the tie 

beam to the supporting columns, and from the columns to the foundation. (Tr. 65-73, 195-96, 204-09, 218; Exs. C4, at A, C-6, at A, C-10, at A, C-18, at A, C-20, at A; Resp’t Br. at 3). Dr. Ewing testified that ledger angles were 

also anchored into tie beams before the concrete had reached its design strength. (Tr. 205). A ledger angle that fell 

down with a hollow core slab is shown on the ground at the photograph contained at Exhibit C-10, at A. (Tr. 73; Ex. 

C-10, at A). The photograph at Exhibit C-16 shows a ledger angle with a hole that had been enlarged to allow a bolt 

to pass through. Dr. Ewing testified that irregular bolt hole sizes cause loads to be unevenly distributed on 

individual bolts. (Tr. 76-77, 209-10, 287-88; Ex. C-16, at A). Dr. Ewing testified that the hole for the bolt needed 

to be one sixteenth of an inch larger than the diameter of the bolt. (Tr. 287-88). One of the ledger angles on a tie 

beam that collapsed supported by shoring poles is shown on the ground at the worksite. (Tr. 79-80; Ex. C-17, at A 

and B). The photograph at Exhibit C-18 shows a ledger angle on the ground and cement bags under a collapsed 

hollow core slab. (Tr. 80; Ex. C-18, at A). The holes in the ledger angle were to align with the bolts that were

inserted inside the wood foundation (also referred to as forms) which supported the tie beam prior to concrete being 

poured. (Tr. 81). Dr. Ewing testified that the photograph at Exhibit C-18 shows the continued practice of making 

field cut holes in a ledger angle located at the worksite. (Tr. 212; Ex. C-18). 7 Mr. Lopez said the accident occurred after he finished installing the core slabs. (Tr. 355, 364, 367). The Court 

finds that the accident occurred after sixty cement bags had been placed on top of the hollow core slabs. 8

 CO Benson conferred with CO Marquez concerning CO Marquez’s initial findings and photographs. (Tr. 34-35). 
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After the completion of OSHA’s inspection, OSHA issued a citation and notification of 

penalty (Citation) to Revolution on January 11, 2021, for two serious violations. OSHA asserts 

that on or about July 11, 2020, Respondent’s employees were exposed to crushing hazards due to 

hollow core slabs not being adequately supported, cement bags being placed on top of the hollow 

core, and ledger angles not being installed per the engineer’s plans. See Citation. The violations 

alleged noncompliance with OSHA’s safety regulations at Subpart Q - Concrete and Masonry 

Construction, 29 C.F.R. § 1926.700 et seq. OSHA proposed a penalty of $8,096 for the two 

violations. 

On February 9, 2021, Revolution timely contested the Citation. A two-day trial was held 

in Naples, Florida on October 26, 2021, and October 27, 2021. Three witnesses testified at the 

trial: CO Benson; Dr. Ewing;9 and Marcos Lopez (Mr. Lopez), an owner of Revolution.10 (Tr. 

9 The parties stipulated that Dr. Ewing was qualified to testify as an expert in structural engineering. (Tr. 163-64, 

191). The Court also found Dr. Ewing to be qualified to testify as an expert witness in structural engineering. (Tr. 

191). Dr. Ewing is a structural engineer with the OSHA Office of Construction within the Department of Labor. 

(Tr. 152-53). He has been a structural engineer with OSHA for approximately 6 years. (Tr. 153). Dr. Ewing has a 

Bachelor of Science in Civil Engineering with structural emphasis, a Master of Science in Civil Engineering with 

structural emphasis, and a Doctor of Philosophy in Civil Engineering focused on unbonded post-tension and clay 

brick masonry from North Carolina State University. (Tr. 161-62; Ex. C-41 at 1). Prior to working for OSHA, he 

worked in antiterrorism and force protection design for Baker Risk Engineering. (Tr. 156). Dr. Ewing assists in 

accident investigations, forensic engineering, rule-making, and general engineering questions. (Tr. 153). He has 

assisted in over fifty OSHA investigations with the majority of investigations involving the failure of concrete 

structures. (Tr. 153). Dr. Ewing is licensed as a professional engineer in the State of California. (Tr. 157; Ex. C-41

at 1). Additionally, Dr. Ewing sits on the American Society of Civil Engineers committee and serves as the OSHA 

liaison to the committee. (Tr. 158). At the trial, Respondent objected to the admissibility of his expert report, 

Exhibit C-41, on the basis of hearsay and presented two cases after the trial to support his objection. (Tr. 219-22). 

Expert reports often contain inadmissible hearsay. While Rule 703 of the Federal Rules of Evidence authorize 

experts to proffer opinions based on inadmissible facts or data, the inadmissible information contained in the expert 

reports is not thereafter automatically admissible. See Fed. R. Evid. 703. However, a court may decide to admit the 

materials upon which experts rely “to assist the factfinder in assessing the basis of the expert’s testimony.” United 

States of Am. v. Philip Morris USA Inc., No. 99-2496 (PLF), 2021 WL 4318113, at *2 (D.C. Cir. Sept. 23, 2021). 

Where, as here, the judge sits as the trier of fact, the typical concerns contemplated by rules of inadmissibility are 

diminished because “it is presumed that the judge will understand the limited reason for the disclosure of the 

underlying inadmissible information and will not rely on that information for any improper purpose.” Williams v. 

Ill., 567 U.S. 50, 69-70 (2012). Here, the Court was inclined to admit the expert report at trial for purposes of aiding 

it in assessing the basis of Dr. Ewing’s testimony relating to the technical and complex issues in this case. The 

Court is capable of not relying on inadmissible information within the report for improper purposes. Dr. Ewing’s 

expert report at Exhibit C-41 was admitted. (Tr. 224). 10 Mr. Lopez testified at the trial with a Spanish language interpreter. He said that neither he nor [redacted], or a

third employee, Manolo (no last name given), who were at the worksite on July 11, 2020, ever received any formal 
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33, 332). Post-hearing briefs were filed by both parties, as was a reply brief from Respondent. 

The key issues in dispute are: a) whether and when a condition at the worksite presented 

a hazard; b) whether the standards applied to the cited conditions; c) whether Respondent knew, 

or with the exercise of reasonable diligence, could have known of the hazardous conditions; and 

d) whether Complainant has met all the elements of its claims in connection with the alleged 

violations. As set forth below, the Court finds the Secretary has proven his prima facie case and 

both items of the serious Citation are affirmed and a total penalty of $8,096 is assessed by the 

Court for the following reasons. 

II. Jurisdiction

Based upon the record, and the joint prehearing statement, the Court finds Respondent, at 

all relevant times, was engaged in a business affecting commerce and was an employer within 

the meaning of sections 3(3) and 3(5) of the Act, 29 U.S.C. §§ 652(3) and (5). (Tr. 20-21; J. Pre 

Hr’g Statement, ¶ E, at 4; Answer at ¶ I, at 1; Resp’t Findings of Fact and Conclusion of Law 

(Resp’t Br.), at 1). The Court finds the Commission has jurisdiction over the parties and subject 

matter jurisdiction in this case pursuant to section 10(c) of the Act.

III. Findings of Fact 

A. Stipulated Facts

The parties stipulated to the following fact. The location of the incident was 1 Sabre 

Lane Road, Naples, Florida 34102 (worksite). (Tr. 19-20; J. Pre Hr’g Statement, ¶ D, 1, at 4). 

B. Respondent 

Revolution is a family-owned construction company with its principal place of business 

at 1302 Mimosa Avenue, Immokalee, Florida 34142. (Tr. 332-33). The company provides 

training or schooling in structural design. Marcos Lopez is referred to herein as Mr. Lopez and [redacted] is referred 

to herein as [redacted]. Mr. Lopez did not have any certification in structural design. (Tr. 325-32, 343-44, 354). 
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construction services, including the installation of hollow core slabs. (Tr. 36-37, 90-91, 332-

33). Mr. Lopez is an owner of Revolution. (Tr. 332-33). Revolution has six employees, 

including Mr. Lopez. (Tr. 88-89, 102). 

C. The Worksite and Accident

Mr. Lopez testified that BCB was in charge of building the home and making sure 

everything was okay. (Tr. 335). BCB’s project superintendent was Patrick Nash (Mr. Nash).11 

(Tr. 37). On July 10, 2020, Revolution began installing some of the hollow core slabs to 

construct the second-floor foundation of the structure.12 (Tr. 35-36, 91-92, 333-35). Mr. Lopez 

determined that some of the slabs failed to meet the prescribed length and Mellor & Sons was 

informed that some of the slabs were not the correct size. (Tr. 46-47, 91-92). Additional slabs, 

of the correct size, were delivered to the worksite on July 11, 2020, and Revolution continued 

installing them. (Tr. 91-92). After placing the hollow core slabs atop the ledger angles, 

Revolution was to put a concrete cement mix between the slabs to seal the edges for 

weatherproofing purposes.13 This was called “[g]routing the cavities in between the hollowcore-slabs.”14 (Tr. 36, 90-91, 205). Cement bags15 were placed on top of the hollow core by 

Mellor & Sons/American Precast’s on-site crane operator at the direction of Mr. Lopez.16 (Tr. 

11 Mr. Nash is not a structural engineer. (Tr. 304). Mr. Lopez never asked Mr. Nash if he had any training in 

structural design. (Tr. 343).

12 Mr. Lopez told CO Benson that “once Victor Mellor calls him to tell him to come meet him at the site, that’s 

when he knows that it’s time to install the hollow core slabs.” (Tr. 93, 99). 13 The building design also called for another two inches of topping slab to be poured over the entire floor, but this 

had not yet occurred before the floor collapsed. (Tr. 92-93, 205, 340-41, 352-53; Exs. C-1, C-23, R-D). 14 Dr. Ewing estimated the grouting would take Respondent two or three days to do it by hand. Mr. Lopez planned 

to start grouting on July 11, 2020. (Tr. 205-06, 340). 15 The photograph at Exhibit C-3, at A, shows a row of cement bags laying on top of a fallen hollow-core slab. (Tr. 

66-67; Ex. C-3, at A). The photograph at Exhibit C-10, at B, shows a row of about 10 to 11 cement bags, which

were on top of a hollow core slab before it collapsed, laying on top of hollow-core slabs that had fallen to the 

ground. (Tr. 72-73; Ex. C-10, at B). The photograph at Exhibit C-11 also shows cement bags at “A” on the ground. 

(Tr. 73-74; Ex. C-11, at A). 16 Dr. Ewing testified that Respondent needed “to know the strength of the concrete prior to loading or subjecting 

the concrete to construction loads.” (Tr. 299).
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40, 93, 339-40; Ex. R-A, at 3, Answer to Interrogatory (Int.) No. 3). Immediately after the 

cement bags were lowered and placed on the hollow core slabs, the hollow core slabs collapsed 

endangering three of Revolution’s workers and seriously injuring two. (Tr. 92).

Manolo and Mr. Lopez were starting to mix cement to fill the grout when the accident 

occurred. (Tr. 355). Mr. Lopez was located at “C”, [redacted] was located at “D”, and Manolo 

was located at “E” on the photograph at Exhibit C-17 at the time of the accident.17 (Tr. 356; 

Ex. C-17, at C, D, E). Both Mr. Lopez and [redacted] fell to the ground from atop the second 

floor. (Tr. 368). 

Both Mr. Lopez and [redacted] required hospitalization and surgery as a result of the 

hollow core slabs collapsing. Mr. Lopez was hospitalized [redacted]. (Tr. 87-88, 339-41, 352-

53, 359). [redacted] was also hospitalized [redacted]. (Tr. 359). 

D. CO Benson’s OSHA Inspection 

 In September 2020, CO Benson headed to the worksite to continue the OSHA 

inspection. (Tr. 35-36). CO Benson testified he was able to determine which employers were 

involved in the construction of the residential structure. (Tr. 35-38; Ex. C-25). CO Benson met 

with Mr. Nanna at a storage facility to take photographs of a tie beam used in the construction 

of the structure. (Tr. 38-39, 125). Photographs were taken specifically of the holes in the tie 

beam where wedge anchors bolts18 had been installed. (Tr. 38-39; Exs. C-12 through C-13). 

CO Benson measured the depth of two holes in one of the collapsed tie beams at three inches 

and a quarter.19 (Tr. 75-77; Exs. C-12 through C-13). CO Benson testified that Ott Welding 

17 Manolo was about 10 to 15 feet from Mr. Lopez when the accident occurred. Manolo was not injured. (Tr. 355). 18 A wedge anchor bolt is also commonly referred to as a “bolt” (Tr. 69). 19 CO Benson testified that his investigation revealed that the bolts delivered to the worksite were not the correct 

size. (Tr. 85-86). Dr. Ewing testified that the drawing package from the engineer specified that a six-inch bolt be 

used and that this did not occur. (Tr. 205-07; Ex. C-39). CO Benson testified that the manufacturer dictated that the 

bolts were to be inserted around six to six- and one-half inches. (Tr. 75-77, 103). A purchase order provided to CO 

Benson by Ott Welding showed that it ordered 80 wedge anchor bolts that were 3/4x6-1/4 inches in size from TCS 
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was responsible for installing the ledger angles with the wedge anchor bolts. (Tr. 86). He said 

the wedge anchors had not been installed correctly or per the manufacturer’s design 

specifications.20 (Tr. 39). CO Benson also testified that Ott Welding used “different washers 

that did not come with the wedge anchor bolts, which the manufacturers say that you need to 

use those specific washers because it’s designed to do what it needs to do.” (Tr. 68, 71, 96-97, 

103; Ex. C-6, at B). He said Ott Welding used a larger washer on the hole on the east side of 

the ledger angle because the washer that came with the bolt would go through the larger hole 

and not work. (Tr. 71-72; Exs. C-6, at B, C-7 through C-8). Dr. Ewing said that washers ensure 

the bearing capacity between the nut and the vertical leg of the ledger angle. He said that if the 

bearing surface is not adequate, connections may prematurely fail. He said that the tolerances 

around the bolt holes needed to be tight “to make sure that the load transfer between the ledger 

angle and the tie beam can be completed successfully and safely.”21 Dr. Ewing testified that 

these washers installed on the ledger angle were visible prior to the hollow-core slabs being 

on March 27, 2020. Dr. Ewing testified that five and three-quarters inch bolts were found at the worksite. He was 

told these were possibly used to connect the ledger angles to the tie beams. He said these bolts were not allowed to 

be used in concrete in the fashion used. (Tr. 85-86, 104, 267-71; Ex. C-38). CO Benson testified that the hole 

measurements “showed that the hole was not deep enough inside the tie beam to meet the manufacturer’s

specification of the anchor bolt.” Dr. Ewing testified that the bolts needed to be embedded about five and a half 

inches into the side of the tie beam. He said that photographs taken by CO Benson showed that the depth of the 

holes for the bolts were measured at three and a quarter to three and a half inches. Dr. Ewing said that the lesser 

embedment “would weaken a connection for sure because the connection is a function of the embedment.” (Tr. 77, 

206-07; Exs. C-12 through C-13). CO Benson said the failure to properly embed the wedge anchors bolts “would be 

one of the contributing factors to make an assessment to recommend” the issuance of a citation for a violation of 28 

C.F.R. §1926.704(a) [Citation 1, Item 2]. CO Benson further testified that he would recommend the issuance of a 

citation for a violation of that standard if it was the only issue. (Tr. 129-130). He said that the failure to properly 

embed the anchors was a contributing factor in creating a struck-by hazard. (Tr. 127). 20 CO Benson testified that Mr. Nanna told him that the section of the tie beam at the storage facility “was taken 

from the tie beam that the ledger angle was affixed to that had collapsed.” (Tr. 124). CO Benson testified that 

wedge anchors were installed by Ott Welding in the tie beam section stored in the storage facility prior to concrete 

being poured and that contributed to the creation of a hazard. (Tr. 132-33). He stated that he believed that had Ott 

Welding followed the manufacturer’s recommendations regarding the installation of the wedge anchors “that would 

have given the structural stability to the wedge angles which then would have supported the hollow core.” (Tr. 132-

33).

21 Dr. Ewing said that the construction drawings did not call for “slotted holes” which allow tie beams to slide back 

and forth and could cause inadequate load transfer. He said these cut holes within the ledger angle were visible 

before hollow-core slabs were installed. (Tr. 212-14; Ex. C-16, at A).
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installed. (Tr. 210-12; Ex. C-6, at B). CO Benson determined that the hollow core slabs fell 

because ledger angles were not correctly installed on the tie beams, non-compliant wedge 

anchor bolts were used to connect the ledger angles to the tie beams, and excessive weight of 

cement bags was placed atop the hollow core slabs. (Tr. 39-40). 

 CO Benson said the cement bags were placed on top of the hollow core slabs by Mellor 

& Sons’ on-site crane at the direction of Mr. Lopez. (Tr. 40-41). CO Benson’s testimony was 

corroborated by Mr. Lopez. Mr. Lopez testified:

Q So when the accident occurred you had finished installing the core slab in that 

area?

A Yes.

Q Who called for the cement to be brought up? 

A The cement comes from the same company and is sent with the hollow core. 

The same company sends it.

Q I understand. At some point though the cement was brought up and it's placed 

on top of the hollow core; correct? 

A Yes.

Q Okay. And who was it that called for that cement to be brought up and placed 

on top of the hollow core? 

A I did. 

 (Tr. 339). 

CO Benson said as many as 20 to 60 bags22 of cement were placed on top of the hollow core 

slabs. (Tr. 39-40). Mr. Lopez testified that each bag of cement weighed 50 pounds.23 (Tr. 339-

40). Dr. Ewing opined that the second-floor collapse involved the weight of: 1) the hollowcore slabs, 2) human beings, and 3) cement bags. (Tr. 299-300). 

 CO Benson said that through the course of his investigation, he determined the hollow 

22 CO Benson said the crane operator told him that he had lifted 60 cement bags atop the hollow core slabs. The 

Court finds that 60 cement bags were atop the hollow core slabs when the accident occurred. (Tr. 40). 

23 CO Benson testified that he had been told that the bags weighed between 84 to 98 pounds each. (Tr. 40). He said 

he believed that the cement bags placed “4,500 or 4,800 pounds” of additional weight on top of the hollow core 

slabs. (Tr. 94-95). Dr. Ewing described the bags as “80-pound bags of cement.” (Tr. 204; Ex. C-20). The Court 

finds that the cement bags weighed an average of 87 pounds calculated by the average of 80, 84, and 98 lbs. = 262

lbs. /3 = 87 lbs. Accordingly, the Court finds that the cement bags placed 5,220 pounds of added weight atop the 

hollow core slabs at the time of the accident.
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core slabs fell due to incorrect installation of the ledger angles with the wedge anchors. (Tr. 39-

40). CO Benson said that prior to the installation of the hollow core slabs, there was a design 

change24 that resulted in Mr. Nash making a decision to install wedge anchors on the forms 

prior to the concrete pour. (Tr. 39-40, 95-97, 114, 131). Installing the wedge anchors prior to 

the pour did not allow for the proper expansion as the concrete cured around the anchors.25 (Tr. 

95-97, 113-14). CO Benson testified that Dr. Ewing determined that as the concrete cured the 

wedge anchors shifted causing the openings of the ledger angles to not fully align with all of the 

wedge anchor bolts.26 (Tr. 94-95). CO Benson further testified that Ott Welding had installed 

the ledger angles after the concrete pour, and after there was an effort to align them properly. 

(Tr. 95-97). This approach necessitated the usage of bolts that were non-compliant with the 

design plans. These bolts were not installed per the manufacturer’s requirements. (Tr. 38-40, 

84-86, 94-95; Exs. C-37-38). 

 Dr. Ewing asked for the compressive strength test for the concrete that was used in the 

tie beam shown at photograph C-1, at B, where the failure occurred. (Tr. 317-18; Ex. C-1, at 

B). Dr. Ewing testified, based upon interviews with BCB’s Mr. Nanna and concrete 

compressive strength reports27 forwarded to him, that the concrete in the tie beams involved in 

24 CO Benson testified at trial that someone decided to use wedge anchor bolts instead of another type of anchor. 

(Tr. 123).

25 CO Benson testified that he was not able to determine who installed the wedge anchor bolts prior to the pour. But

he did say Revolution did not do it. (Tr. 110-11, 131). He also said that at his pre-trial deposition he agreed with 

counsel that “[t]here would be no way for me [counsel] to when I’m [counsel] installing the hollow core to 

determine whether or not the bolts were sufficiently embedded into the tie beam.” (Tr. 126-27). 26 Wedge anchor bolts are used “to attach the ledger angle onto the tie beam.” (Tr. 68, 82-83, 218; Exs. C-5, C-6, at 

B, C-21). The photograph at Exhibit C-21 shows holes at the bottom of a tie beam that were there from anchor bolts 

that fell down from the tie beams that had earlier been installed inside the tie beam to affix the ledger angle. (Tr. 82-

83; Ex. C-21). 27 Dr. Ewing’s expert report states that he reviewed the compressive strength report dated July 13, 2020. (Ex. 41, at 

2, ¶5). At trial, and without any compressive strength report before him, Dr. Ewing testified that “if he remembered 

correctly” he received only the compressive strength report dated July 7, 2020 (Ex. C-39 at 1). The Court finds that 

Dr. Ewing also had and reviewed the compressive strength report dated July 13, 2020 (Ex. C-39 at 2), when he 

prepared his expert report dated August 16, 2021. Dr. Ewing testified that his expert report is “based upon the 
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the collapse had not reached the appropriate level of cure to support loads.28 (Tr. 173-75, 202-

05; Exs. C-39, C-41). The concrete compressive strength reports indicated that the pounds per 

square inch of strength had not been reached prior to the installation of the hollow core slabs. 

(Tr. 215-17; Ex. C-39). Dr. Ewing testified that when pouring concrete, sampling molds are 

taken for later testing. (Tr. 200-01, 215-17). Periodically throughout the concrete curing 

process, these samples are tested for their strength. (Tr. 215-17). Dr. Ewing stated the reason 

for these tests is to determine when the formwork29 supporting the concrete can be stripped 

away as the concrete reached the desired structural strength. (Tr. 215). Here, the engineer’s 

concrete drawing package required a structural strength of 75% of the minimum concrete 

strength of 4,000 psi before the formwork could be removed. (Tr. 203-05, 215-16; Ex. C-37). 

Dr. Ewing determined the concrete strength had not reached the desired strength in order for the 

formwork to be removed or for the hollow core slabs to be installed. (Tr. 215-17). Dr. Ewing 

testified that the rate of curing for concrete is “dependent on a lot of things” and “specific to the 

situation.” He said factors that affect the rate at which concrete in a tie beam cures include: 1) 

size of the tie beam, 2) relative humidity, 3) temperature of concrete when delivered to the 

worksite, 4) water/cement ratio of the concrete, 5) any kind of mixtures added to the concrete, 

6) how the concrete was cured; e.g. was it wet cured or was it sprayed constantly, and 7) the 

environment. (Tr. 200). 

CO Benson testified that he worked with Dr. Ewing during his investigation and that he 

compressive strength reports.” (Tr. 172-74; Exs. 39, 41, at 2¶5). The Court finds that Dr. Ewing received both 

compressive strength reports found at Exhibit 39. (Tr. 275-76; Ex. C-39). 28 CO Benson also testified that after considering the compressive strength report he too “came to the conclusion 

that the concrete was not at its full strength at the time of the removal of the forms, and they are not at the full 

strength at the time of the accident.” (Tr. 86-87; Ex. 40). He testified that he learned from Dr. Ewing’s report that 

the weight placed on top of the ledger angles was too much for the ledger angles to carry. (Tr. 137).

29 29 C.F.R. § 1926.700(b)(2) defines “Formwork” as “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.” 
- 12 - 

and Dr. Ewing determined: 

That the ledger angles were not installed properly, that there was no inspection 

conducted prior to the hollow-core slabs being placed. On the ledger angles, that 

the strength of the concrete was not at its percentage where it needed to be, and 

the bolts were installed incorrectly where they were installed before the pour, 

which the manufacturer states that they needed to be installed after the pour to 

properly align the ledger angles.30 

We also determined that because of the shifting of the wedge anchors after the 

pour, that the openings of the ledger angles did not align with all the bolts, so they 

had to make modifications in the field. And due to the weight of the cement bags, 

which I believe weighed from 4,500- or 4,800-pounds additional weight on top of 

the hollow core, was the contributing factor of that hollow-core fail, to fall down 

due to the incorrect installation of the ledger angles. 

(Tr. 94-95, 98, 182, 184).

Dr. Ewing testified at trial:

Q. Dr. Ewing, did you form an opinion as to the cause of the – the cause of the 

accident in this case?

A. Yes, I did. The contributing factors for this incident was the improper 

selection of the anchor used to connect the ledger – the ledger angle to the tie 

beam, improper embedment depth of that anchor, improper field cutting of the 

bolt holes of the ledger angle, the concrete had not reached its design strength yet, 

and also improper shoring of the ledger angle while concrete was still curing. 

(Tr. 193, 218-19). 

Dr. Ewing testified that the photograph at Exhibit C-1 shows at the bottom of a tie beam 

(at “B”) several locations of concrete pullouts (at “G”) where anchor bolts inserted through a 

ledger anchor shown on the ground (at “J”) had once been. He also said that several shoring 

poles (sometimes referred to as “posts”), maroon in color, are shown at “H”, as well as a fallen 

hollow core slab at “E”. (Tr. 197-98; Ex. C-1). Dr. Ewing opined that there was inadequate 

shoring and said that:

on the top of the shoring post [at C-1 and C-2] there’s a horizontal piece of 

lumber. The horizontal piece of lumber is holding up the tie beam as it cures. 

30 Dr. Ewing testified at trial that he had testified at his deposition that the manner the wedge anchor bolts were 

installed resulted in a reduction in the strength of the connection between the ledger angle and the tie beam. (Tr. 

182). 
- 13 - 

And in this case, we have ledger angles that were attached to the side of the tie 

beam and none of this lumber members extend under those ledger angles. So 

there’s no way – the only thing that’s connecting the ledger angle to the tie beam 

are the mechanical anchors every two feet. And while the concrete is curing, 

those mechanical anchors aren’t capable of supporting the applied load. 

So if there is proper shoring, this lumber – this lumber member at the top of the 

shore31 post would either extend under the ledger angle or there’d be a separate 

shoring system to support the hollow-core slab while the tie beam cures. 

(Tr. 201-03; Exs. C-1, C-2).

Dr. Ewing testified that the presence of shoring at the worksite indicated that the concrete was 

not strong enough to support its own weight causing the need to be careful about the load 

applied and how it is supported because the concrete has not obtained its design strength. (Tr. 

203-04, 225). Dr. Ewing testified “[i]f I were to come onto a site and I see shoring posts, that’s 

going to be the number one question I’m asking is what is the strength of this concrete, when 

was it poured, and can I get these concrete tests to verify its strengths.”32 (Tr. 230, 320). He 

said he would have liked “to get some kind of confirmation from the cylinder test if that 

concrete actually has been cured enough to proceed with construction.” (Tr. 219). He said that 

the presence of shoring or forming was visible during the installation of hollow-core slabs as 

shown in the photograph at Exhibit C-1. (Tr. 193, 204; Ex. C-1, at H). Dr. Ewing further stated 

if the general contractor said to him that the concrete had adequately cured, he could not rely on 

that representation and he would, instead, ask for the concrete strength test reports, especially 

when you see shoring posts. (Tr. 230-31, 244). 

 At trial, Mr. Lopez acknowledged that formwork for “the bottom parts of the tie 

beams”; i.e., shoring poles, was present at the worksite when he started installing hollow core 

slabs. (Tr. 337). He said that was “pretty normal” for shoring to be there. (Tr. 337, 345). He 

31 29 C.F.R. § 1926.700(b)(7) defines “Shore” as “a supporting member that resists a compressive force imposed by 

a load.”

32 Mr. Lopez did not know when any of the tie beams had been poured. (Tr. 347).
- 14 - 

also said he saw ledger angles that looked to be normal. (Tr. 338). 

 The Citation issued to Revolution was based on two instances identified as Citation 1, 

Item 1 and Citation 1, Item 2. (Tr. 97-100; Citation). CO Benson testified that Citation 1, Item 

1 was recommended due to Respondent’s decision to put cement bags on top of the hollow core 

slabs before an inspection was done of the ledger angles and anchor bolts, or a copy of the 

concrete strength report was requested.33 (Tr. 98). He testified that Citation 1, Item 2 was 

recommended based on the incorrect installation of the ledger angles with the anchor bolts. (Tr. 

99-100).

IV. Secretary’s Burden of Proof

To establish a violation of an OSHA standard, the Secretary must prove: (1) the cited 

standard applies; (2) the terms of the standard were violated; (3) one or more employees had 

access to the cited condition; and (4) the employer knew, or with the exercise of reasonable 

diligence could have known, of the violative condition. Astra Pharm. Prods., No. 78-6247, 1981 

WL 18810, at *4 (OSHRC, July 30, 1981), aff’d in relevant part, 681 F.2d 69 (1st Cir. 1982). 

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

V. Multi-Employer Citation Worksite Policy

A. Respondent does not Contest the Applicability of the Multi-Employer Citation Worksite 

Policy

In its Reply Brief, Respondent states that it “does not contest the applicability of this 

[OSHA’s Multi-Employer Citation] policy.” (Resp’t Reply Br. at 7). Instead, Respondent 

argues that under the aforementioned policy, BCB, Ott Welding, and Morca Construction should 

33 CO Benson testified that he did not determine whether or not anybody had the concrete strength report at the time 

of the accident because he was not the compliance officer then. But he said, “Somebody had it.” (Tr. 144; Ex. 39). 

Mr. Lopez never requested to see any compressive strength report. (Tr. 344).
- 15 - 

be cited.34 (Resp’t Reply Br. at 3, 7-8). Respondent asserts Ott Welding and/or BCB should be 

cited for the improper selection of the wedge anchors. It asserts that Ott Welding or Morca 

Construction were responsible for the improper embedment of the anchors. It further asserts that 

Ott Welding35 was responsible for the ledger angles, and BCB was responsible for monitoring 

the concrete strength and directing the removal of formwork and shoring.36 (Resp’t Reply Br. at 

3). The Court need not adjudicate here whether or not BCB, Ott Welding, or Morca 

Construction may have violated the Act. Even if any of them did, it would not excuse 

Respondent’s obligations to comply with the Act. The Court finds that OSHA’s Multi-Employer 

Citation Worksite Policy is applicable to Respondent and its arguments to the contrary are

rejected.

B. Respondent was both a Creating and Exposing Employer for Citation 1, Item 1, and an 

Exposing Employer for Citation 1, Item 2. 

Under OSHA’s multi-employer enforcement policy, an exposing employer who created 

the violation may be cited for the violation as a creating employer. See OSHA Instruction 

Directive Number CPL 2-0.124, Multi-Employer Citation Policy, ¶ XB-C (Dec. 10, 1999) (CPL 

2-0.124).37 CPL 2-0.124, ¶ XC2 also provides that an exposing employer is citable, even if the 

violation was created by another employer, if it: “(1) knew of the hazardous condition or failed 

to exercise reasonable diligence to discover the condition, and (2) failed to take steps consistent 

34 OSHA issued Mellor & Sons a Citation and Notification of Penalty under the multi-employer citation policy. (Ex. 

R-A. at 3, Answer to Int. 3). 35 CO Benson testified that OSHA issued a hazard alert letter to Ott Welding relating to 29 C.F.R. § 1926.704(a). 

(Tr. 131-32). 36 Dr. Ewing stated “shoring” is what they reference to the post, calling them shoring posts. “Formwork” is what is 

used to support the concrete as it is being cast. (Tr. 216-17, 225-27). 37 Here, Respondent was both a Creating and Exposing Employer as to Citation 1, Item 1 that prematurely installed 

the hollow core slabs and directed the placement of 60 bags of cement atop the hollow core slabs without first 

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

capable of supporting the load, thereby exposing its employees to crushing hazards. Respondent had the authority to 

allow the concrete more time to cure before it began installing the hollow core slabs and placing the cement bags on 

top of them.
- 16 - 

with its authority to protect its employees.”38 Id.; S. Pan Serv. Co., 25 BNA OSHC 1081, 1085 

(No. 08-0866, 2014) (“an employer whose own employees are exposed to a hazard or violative 

condition – an ‘exposing employer’ – has a statutory duty to comply with a particular standard 

even where it did not create or control the hazard.”) aff’d, 685 F. App’x 692 (11th Cir. 2017) 

(unpublished); Capform, Inc., 16 BNA OSHC 2040, 2042 (No. 91-1613, 1994) (addressing 

“multi-employer worksite defense” and finding exposing employer responsible for violation it 

did not create or control because it failed to take “reasonable alternative steps to protect its 

employees”). Respondent was cited as an exposing employer under OSHA’s Multi-Employer 

Citation Worksite Policy.39 

The Commission’s application of the Multi-Employer Citation Worksite Policy is well 

established. See S. Pan Serv. v. DOL, 685 F. App’x 692, 695 (11th Cir. 2017) (unpublished) 

(multi-employer worksite doctrine found applicable in the Eleventh Circuit under the exposingemployer doctrine); Anning-Johnson Co., 4 BNA OSHC 1193, 1198-99 (No. 3694, 1976) 

(consolidated). An employer whose own employees are exposed to a hazard, is an exposing 

employer, has a statutory duty to comply with a standard even if it did not create or control the 

hazard. See Anning-Johnson Co., 4 BNA OSHC at 1198-99. 

As in Southern Pan Services, Respondent’s own employees were exposed to a hazard

here. Three Revolution employees had just finished installing hollow core slabs and placing 

sixty cement bags on top of the slabs when the worksite structure collapsed on July 11, 2020. 

(Tr. 40-41, 339-41, 352-53; Exs. C-1, C-23, R-D). Mr. Lopez testified the concrete slabs had 

38 Here, Respondent was also an Exposing Employer as to Citation 1, Item 2 because it failed to exercise reasonable 

diligence to discover that the hollow core slabs were not adequately supported where ledger angles were not 

installed per the engineer’s plans; thereby compromising the structural integrity of the tie beams upon which the 

hollow core slabs were seated. Respondent had the authority to allow the concrete more time to cure before it began 

installing the hollow core slabs on the ledger angles. Respondent also failed to take adequate steps consistent with 

its authority to protect its employees.

39 See Exhibit R-A, at 3, Answer to Int. 3.
- 17 - 

fallen on himself and [redacted] severely injuring them both. (Tr. 339-41, 352-53). Three

employees, including [redacted], were exposed to the violative conditions described in the 

Citation. As an exposing employer, Revolution was required to “do what [was] ‘realistic’ under 

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

addressed, ....” Anning-Johnson Co., 4 BNA OSHC at 1199; see also Capform, Inc., 16 BNA 

OSHC at 2042. 

Respondent argues its efforts were “realistic under the circumstances.” (Resp’t Reply Br. 

at 4-5). Photograph C-1 shows maroon colored shoring poles supporting a tie beam following 

the floor collapse and on the tie beam behind where the failure occurred. Shoring poles were 

used to support the weight of the tie beam during its curing process. (Tr. 197-99, 320; Exs. C-1, 

at H, C-2). Shoring poles are used to hold up the concrete in tie beams while the concrete is 

curing and developing strength so that a tie beam does not collapse under its own weight. CO 

Benson testified that shoring supports the cement structure that is being poured and being cured 

to keep it and maintain it from collapsing until it is at its full capacity where they then can 

remove the shoring poles. (Tr. 64-65, 199). Dr. Ewing testified that the American Concrete 

Institute (ACI) has several manuals that are used for designing concrete structures. (Tr. 158-59). 

Dr. Ewing testified that here the structural engineer specified that forms on the concrete can be 

removed at 75 percent of the 28-day minimum strength of 4,000 psi, i.e., at 3,000 psi.40 Dr. 

40 Specifically, the Structural Notes for the project stated:

FORMWORK AND SHORING: 

Form work supporting structural concrete (beams, slabs, etc.) may not be removed until the 

concrete has attained 75% of the 28-day design minimum strengths. Determination of the in place 

concrete strength shall be determined by laboratory testing of concrete cylinders. ... 

CONCRETE: 
- 18 - 

Ewing stated that these were the required strengths of the concrete. (Tr. 199-201, 214-216, 295; 

Exs. C-37, C-39). He said that the

“strength of the bolted connection is a function directly proportional to the 

concrete strength. As you lower the concrete strength, the connection loses its 

capacity, and it gets weaker. So it’s important for the concrete to reach its 

designed strength so the connection connect as intended by the structural 

engineer.” (Tr. 214). 

Dr. Ewing opined that on July 11, 2020 the concrete strength was approximately 2,600 

psi at the time of the incident, so it had not reached the desired strength yet for the forms to be 

removed per the construction documents. (Tr. 215-16, 295-296; Ex. C-39). He said, “until the 

concrete has been shown to reach 75 percent strength, you are not allowed to remove the 

formwork or the shoring supporting, that green concrete or that concrete that’s still curing.” (Tr. 

296; Ex. C-37). Consequently, he concluded: 

the structure’s stability is compromised because the concrete is not strong enough 

to transmit the load from the ledger angle into the concrete beam. So you’re 

going to have the failure condition right there in that load path. So the load from 

the hollow-core slab would not be able to complete its intended load path by the 

structural engineer from where it’s resting down to the foundation, and you would 

get a failure there at the connection of the concrete.

(Tr. 216). 

All concrete shall be placed in accordance with the American Concrete Institute “Building Code 

Requirements for Structural Concrete” (ACI-318).

The following minimum design stresses shall be met:

CAST IN PLACE CONCRETE:

 ... 

 Beams, Elevated Slabs .............f’c - 4000 psi

The concrete stresses listed above are based on a 28 day compressive strength as determined by 

laboratory testing of concrete cylinders.

... 

Concrete shall be placed and cured to ACI standards and specifications.

(Tr. 200-02; Ex. C-37). 
- 19 - 

 Dr. Ewing testified that after one bolt failed the weight previously on that bolt was 

thereafter carried by additional bolts resulting in an “unzipping effect” across the ledger angle 

causing all the bolts that were two feet apart along the tie beam to fail and the ledger angle to fall

to the ground. (Tr. 286). Dr. Ewing saw the failure pattern in photographs of the tie beam. He 

said he could not tell which bolt failed first, but he can say “the series of bolts did fail.” (Tr. 

286-87, 291-94, 298; Exs. C-1, at G, I, J, C-4, at A). Dr. Ewing opined that the failure occurred 

at the ledger angle that was bolted into the tie beam that was located on the photograph at Exhibit 

C-1, at “G”.41 (Tr. 291; Ex. C-1, at G). 

The photograph at Exhibit C-2 also shows two shoring poles with lumber above them 

supporting a concrete structure. (Tr. 66, 199; Ex. C-2). Similarly, the photograph at Exhibit C-3 

shows shoring poles leaning in on a tie beam. (Tr. 66; Ex. C-3). The photograph at Exhibit C-9 

shows shoring poles supporting at least a portion of lumber under a tie beam at A and B. (Tr. 72, 

231-33; Ex. C-9, at A, B, D). The photographs at Exhibits C-11, C-21 through C-23 also show 

shoring polls. (Tr. 72-74, 83-84; Exs. C-11, C-21 through C-23). 

Mr. Lopez testified that American Precast scheduled Respondent, along with American 

Precast’s crane operator and driver, to work at the site on Friday, July 10, 2020. (Tr. 336, 348; 

Ex. R-A, at 3, Answer to Int. 3). After he arrived at the worksite at about 2:00 p.m., Mr. Lopez 

walked around for about ten minutes because as he said he was “in charge.” (Tr. 349-50, 357). 

He noticed nothing unusual regarding the shoring of the tie beams or the ledger angles. He 

looked to see that all of the bolts were on the ledger angles, but did not determine whether the 

correct bolts had been used because “that’s not my job.” (Tr. 349-52). Mr. Lopez testified that 

41 Dr. Ewing testified that the concrete for the failed tie beam was poured on July 7, 2020. (Tr. 297-98, 311-12; Ex. 

C-39 at 2). The Court relies on Dr. Ewing’s testimony that he was told during interviews that the concrete for the tie 

beams located where the failure occurred was poured on July 7, 2020 notwithstanding Respondent’s argument that it 

may have been poured on June 29, 2020. (Tr. 297-98, 311-12; Ex. C-39 at 2; Resp’t Br. at 15). 
- 20 - 

at about 2:00 p.m. he asked Mr. Nash at the worksite “if everything was ready in order for us 

[Respondent] to begin to work ....” Mr. Lopez said Mr. Nash said, “Yes.” (Tr. 336, 344-45, 

363-64). [redacted], Manolo, and Daniel Leal, a hollow core slab installer, were with Mr. Lopez 

at the worksite. (Tr. 357-58). Mr. Lopez then installed five or six hollow-core slabs42 and 

departed the worksite at about 5:00 p.m. to 6:00 p.m.43 (Tr. 336, 345, 357). 

Respondent argues that Mr. Lopez relied on Mr. Nash’s brief, affirmative response that 

the site was ready for him to install the hollow core.44 (Resp’t Reply Br. at 4-5). However, Mr. 

Lopez never inquired as to whether the concrete had properly cured, had the proper compressive 

strength, or could handle the weight of the large number of cement bags that were to be put on 

the hollow core slabs. (Tr. 345-47, 350-51, 366). Mr. Lopez also did not ask anyone if the 

design plans for the building had been changed. (Tr. 345-46). Mr. Lopez testified that he spoke 

with BCB and American Precast contractors at the worksite on July 10, 2020, but was unaware 

of, and never inquired, if any of them had experience in structural design. (Tr. 342-43). Mr. 

Lopez never asked to speak with a structural engineer. He said that it was “not part of [his] job.” 

(Tr. 345). He also never spoke with Ott Welding or Morca Construction. (Tr. 345). He testified 

that in his 15 years of experience installing hollow-core and working with cement,45 he had 

never spoken to a structural engineer regarding a project. (Tr. 333, 351). Mr. Lopez said that he 

had installed concrete hollow core slabs many times before. (Tr. 336-37). 

42 Mr. Lopez later stated that he put two hollow core slabs on Friday. (Tr. 360). 43 Respondent returned on Saturday, at about 9:00 to 10:00 a.m. because some of the hollow core slabs were too 

short and had to be re-ordered. (Tr. 347-48, 358). Mr. Nash was not at the worksite on Saturday, July 11, 2020. 

(Tr. 350).

44 CO Benson testified that during his pre-trial deposition, he agreed with Respondent’s counsel that Mr. Nash had 

told him that concrete had been poured for three days, had apparently already cured, and was not a concern. (Tr. 

122). At trial, CO Benson testified that Mr. Nash never told him that he [Nash] had told Mr. Lopez that the concrete 

had cured and was ready to go. (Tr. 148).

45 Before that, Mr. Lopez poured concrete slabs and installed tile flooring and carpentry. (Tr. 333).
- 21 - 

Respondent failed to take reasonable alternative steps to protect its employees. The 

Secretary has the burden of identifying the measures the employer can reasonably take to protect 

its employees. S. Pan Serv. Co., 25 BNA OSHC at 1086; S. Pan Serv. Co., 26 BNA OSHC 

1005, 1009 (No. 08-0866, 2016) (ALJ’s decision on remand). The Secretary has done so here. 

Respondent never inquired whether the concrete had properly cured, had the proper compressive 

strength, or could handle the weight of the cement bags being placed on top of the hollow core 

slabs. (Tr. 345-47, 350-51). Mr. Lopez did not consult with any individual with qualifications in 

structural design before installing the hollow core slabs and directing the cement bags to be 

placed atop the hollow core slabs. (Sec’y Br. at 5-6). Mr. Lopez testified that he never reviewed 

any compressive strength reports or design plans or spoke with a structural engineer.46 (Tr. 344-

46, 350). Mr. Lopez had access to these reports and plans, but never reviewed them because he 

said it was not part of his job. (Tr. 86-87, 92-93, 344-46, 350). 

Every employer has a primary responsibility for the safety of its own employees. See

Grossman Steel & Aluminum Corp., 4 BNA OSHC 1185, 1189 (No. 12775, 1975). (Simply 

because a subcontractor cannot himself abate a hazardous condition does not mean it is 

powerless to protect its employees.). Here, Respondent failed to protect its employees and failed 

to take any alternative actions to protect them. Under applicable Commission precedent, 

Revolution was an exposing employer. It was an exposing employer in both instances of the 

46 Mr. Lopez testified:

Q. Did you ever review any compressive strength reports?

A. No, because that’s not part of what that pertains to what I do. That’s something that they do.

Q. And who do you mean by “they”?

A. The people in charge of the building.

Q. Did you request any compressive strength reports?

A, No, because that’s not part of my thing. I go in and I ask if it is ready.

(Tr. 344). 
- 22 - 

Citation due to two of its employees having been exposed to, and injured by, the violative 

conditions at the worksite. (Tr. 40-41, 339-41, 352-53). 

VI. Citation 1, Item 1

The Secretary alleges that Respondent violated 29 C.F.R. § 1926.701(a), which reads: 

Construction loads. No construction loads shall be placed on a concrete structure 

or portion of a concrete structure unless the employer determines, based on 

information received from a person who is qualified in structural design, that the 

structure or portion of the structure is capable of supporting the loads. 

The Citation alleges:

On or about 07/11/2020, at 1 Sabre Lane, in the city of Naples, FL, employees 

were exposed to crushing hazards when the employer did not ensure that the 

hollow core slabs were capable to support workers installing the slabs and a pallet 

of cement bags that was stored on top of the hollow core. 

A. The Standard Applies 

Commission precedent dictates “the focus of the Secretary’s burden of proving that the 

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

Inc., 20 BNA OSHC 1760, 1763 (No. 99-1707, 2004) (“In order to establish a violation, the 

Secretary must show that the standards applied to the cited conditions.”) aff’d, 142 F. App’x 662 

(4th Cir. 2005) (unpublished). The Secretary has met his burden here. See S. Pan Serv. v. DOL, 

685 F. App’x at 695 (11th Circuit affirming the Commission’s decision to apply 29 C.F.R. 

§ 1926.701(a) to “exposing employer.”); KS Energy Servs., Inc., 22 BNA OSHC 1261, 1267 

(No. 06-1416, 2008) (finding “the cited ... provision was applicable to the conditions in KS 

Energy’s traffic control zone”). 

Revolution is a construction company that was providing construction and masonry 

services, including the installation of hollow core slabs, when the violation occurred. (Tr. 36-37, 

90-91, 332-33). It is undisputed that Respondent was hired to perform construction and masonry 
- 23 - 

services in installing hollow core slabs on the worksite. (Tr. 36-37, 90-91, 332-33). The 

construction services Revolution performed fall under the purview of Part 1926, Subpart Q, 

Section 700 – Concrete and Masonry Construction. The scope of the aforementioned Subpart 

sets forth requirements to “protect all construction employees from the hazards associated with 

concrete and masonry construction operations performed in workplaces....” 29 C.F.R. 

§1926.700(a). 

The cited standard at 29 C.F.R. § 1926.701(a) applies to Respondent. It is undisputed 

that Respondent had been hired to install hollow core concrete slabs at the worksite. (Tr. 19-20, 

36-37, 39, 90-91, 333-34; JPS, ¶ D, 1, at 4; Ex. C-25). The worksite was a residential structure 

consisting of mostly concrete construction, about 8,000 square feet in size. (Tr. 35, 194, 333-

34). The structure was supported by “a combination of concrete masonry, regular cast-in plates 

concrete, and then also several types of precast planks were used as well.” (Tr. 194). After

installing all of the hollow core slabs on ledger angles in the area marked with “F” on the 

photograph at Exhibit C-17, Respondent admits to directing cement bags be placed on top of 

the slabs. (Tr. 36, 40-41, 91-92, 339-41, 348-49, 367-68; Ex. C-17, at F). The resulting

collapse of the concrete structure seriously injured two of Respondent’s employees. (Tr. 40, 

339-41, 352-53). The Court finds that the evidence establishes that the cited standard applies to 

Respondent and shows that Respondent was both a creating and exposing employer as to 

Citation 1, Item 1. 

B. Respondent Failed to Comply with the Standard 

On July 11, 2020, Respondent installed hollow core slabs and was about to put a cement

mix between the slabs at the worksite. (Tr. 36, 90-92). At the direction of Mr. Lopez, the Court 

has found that 60 cement bags weighing about 87 pounds were then placed on top of the hollow 
- 24 - 

core slabs. (Tr. 40, 339-40, 366).47 The hollow core slabs collapsed shortly thereafter injuring 

two of Respondent’s employees. (Tr. 340-41, Exs. C-1, C-23, R-D). 

Respondent failed to take reasonable steps to discover the hazardous condition and 

protect its employees. At no time before placing cement bags on top of the hollow core slabs 

and subsequent collapse did Respondent determine, from a person who is qualified in structural 

design, that the structure was capable of supporting loads. He never spoke with a structural 

engineer. Mr. Lopez testified that he did not ask anyone if the design plans of the building had 

been changed or if any of the contractors had experience in structural design. Mr. Lopez 

admitted he never asked to speak with a structural engineer before instructing the cement bags 

be placed on the hollow core slabs. He never inquired whether the concrete had properly cured, 

had the proper compressive strength, or could handle the weight of the cement bags. Mr. Lopez 

never asked anybody if it was okay to put the weight of the cement bags on top of the hollow 

core slabs. He never asked if the ledger angles had been properly connected to the tie beams. 

Respondent failed to review any of the available construction plans, engineering reports, or 

concrete compressive strength reports before directing cement bags be placed on the hollow 

core slabs.48 (Tr. 40, 339-40, 342-47, 350-51, 366; see also fn 6, herein). 

Respondent argues that it was relying on the other higher tier contactors to ensure that the 

concrete had been poured, set correctly, and was ready for hollow core slabs to be placed.49 (Tr. 

47 Mr. Lopez testified that Respondent placed five or six 50-pound cement bags on top of the hollow core slabs. (Tr. 

339-40). The Court rejects this testimony as to weight and quantity as unsupported by other more persuasive 

evidence. 

48 Respondent argues that Respondent “reviewed the drawings for the installation of the hollow core.” (Resp’t 

Reply Br. at 3). The testimony Respondent cites to does not support its position. Mr. Lopez testified as follows: 

Q When you were hired by American Precast, did you ask to see any structural drawings of the building?

A No, not a design. The only thing that they sent to me are the blueprints for the hollow core. 

(Tr. 344).

Mr. Lopez never says he reviewed any structural drawings for the building being constructed. (Tr. 344). 49 CO Benson testified that Mr. Lopez told him:
- 25 - 

92; Resp’t Br. at 13-16). Respondent’s reliance on other contractors is misplaced. With respect 

to this standard, Respondent is both a creating and exposing employer. It has the primary 

responsibility for the safety of its own employees. See Grossman Steel & Aluminum Corp., 4 

BNA OSHC at 1189; Capform, Inc., 16 BNA OSHC at 2042. 

29 C.F.R. § 1926.701(a) calls for no construction loads to be placed on a concrete 

structure until information is received from a “person who is qualified in structural design” that 

the structure is capable of holding such loads. 29 C.F.R. § 1926.701(a). Here, failing to inquire 

whether the concrete structure, including ledger angles, was capable of supporting the hollow 

core slabs and cement bags, based on information from an individual qualified in structural 

design, is a violation of 29 C.F.R. § 1926.701(a). 

The Court finds that Respondent violated the standard. 

C. Respondent’s Employees Were Exposed to the Hazard

The Commission’s test for hazard exposure requires the Secretary to “show that it is 

reasonably predictable either by operational necessity or otherwise (including inadvertence), 

that employees have been, are, or will be in the zone of danger.” Delek Refin., Ltd., 25 BNA 

OSHC 1365, 1376 (No. 08-1386, 2015) aff’d in relevant part, 845 F.3d 170 (5th Cir. 2016); 

Gilles & Cotting, 3 BNA OSHC 2002 (No. 504, 1976).50

The zone of danger is the “area surrounding the violative condition that presents the 

Q. And do you recall him [Lopez] telling you [Benson] anything about any preparations or inspections he [Lopez] 

had made before beginning the work?

A. He said that that’s not what he does, that he doesn’t do that inspection, that when they call the company up to 

deliver the slabs, he’s relying on them to make sure that everything is okay.

(Tr. 92, 147-48). 50 In Gilles & Cotting, Inc., the Commission rejected the “actual exposure” test, which required evidence that 

someone observed the violative conduct, in favor of the concept of “access”, which focuses on the possibility of 

exposure under the conditions. See Gilles & Cotting, Inc., 3 BNA OSHC at 2002 (holding “that a rule of access 

based on reasonable predictability is more likely to further the purposes of the Act than is a rule requiring proof of 

actual exposure”). 
- 26 - 

danger to employees.” Boh Bros. Constr. Co., LLC, 24 BNA OSHC 1067, 1085 (No. 09-1072, 

2013) (citing RGM Constr. Co., 17 BNA OSHC 1229, 1234 (No. 91-2107, 1995)). The zone of 

danger is determined by the hazard presented by the violative condition and is normally the area 

surrounding the violative condition that presents the danger to employees which the standard is 

intended to prevent. Id., at 1234; Gilles & Cotting, Inc., 3 BNA OSHC at 2003. 

Respondent’s employees were directly exposed to a hazardous condition when hollow 

core slabs were set upon ledger angles that were improperly bolted into tie beams made up of 

cement that was not sufficiently cured, and cement bags were placed on the concrete hollow 

core slabs without first determining if the structure was capable of supporting the bags. (Tr. 40-

41, 339-41; Exs. C-1, C-23, R-D). The Commission has long held that exposure is met by an 

employee’s mere access to a hazardous situation. Id. Here, it is undisputed Respondent’s 

employees had access to and installed hollow core slabs that had cement bags placed on top. 

(Tr. 40-41, 339-41; Exs. C-1, C-3, at A, C-23, R-D). 

Further, it is undisputed that two of Respondent’s employees were severely injured 

when the worksite structure collapsed. (Tr. 40, 352-53). The victims’ actual exposure to the 

hazardous condition and resulting injuries also establishes exposure. See S & G Packaging, 

Co., LLC , 19 BNA OSHC 1503, 1506 (No. 98-1107, 2001) (injuries establish actual exposure 

to the violative condition). The is no real dispute that employees were exposed to the hazardous 

conditions. (Sec’y Br. at 8). 

The Court finds that Respondent’s employees were exposed to a hazardous condition. 

D. Respondent Had Knowledge of the Hazard 

To prove a violation the Secretary must show that the cited “employer either knew or, 

with the exercise of reasonable diligence, could have known of the presence of the violative 
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condition." Pride Oil Well Serv.,15 BNA OSHC 1809, 1814 (No. 87-692, 1992). An employer 

is required to make a reasonable effort to anticipate the particular hazards to which its 

employees may be exposed during the course of their scheduled work. Automatic Sprinkler 

Corp. of Am., 8 BNA OSHC 1384, 1387 (No. 76-5089, 1980). When determining whether an 

employer has been reasonably diligent, the Commission considers “several factors, including 

the employer’s obligation to have adequate work rules and training programs, to adequately 

supervise employees, to anticipate hazards to which employees may be exposed, and to take 

measures to prevent the occurrence of violations.” Precision Concrete Constr., 19 BNA OSHC 

1404, 1407 (No. 99-0707, 2001). 

An employer’s awareness of the violation may be shown through actual or constructive 

knowledge of said violation. It is not necessary to show the employer knew or understood the 

condition was hazardous. Phoenix Roofing, Inc., 17 BNA OSHC 1076, 1079-1080 (No. 90-

2148, 1995). “[An] employer’s duty is to take reasonably diligent measures to inspect its 

worksite and discover hazardous conditions; so long as the employer does so, it is not in 

violation simply because it has not detected or become aware of every instance of a hazard.” 

Ragnar Benson, Inc., 18 BNA OSHC 1937, 1940 (No. 97-1676 1999). An employer is not 

automatically aware of a hazard in plain view, especially if not observed by a supervisory 

employee. Cent. soya de P. R., Inc. v. Sec’y of Labor, 653 F.2d 38, 39 (1st Cir. 1981); 

Cranesville Block Co., Inc./Clark Div., No. 08-0316, 2012 WL 2365498, at *10 (OSHRC June 

12, 2012) (consolidated). The actual or constructive knowledge of a foreman or supervisor can 

generally be imputed to the employer. Tampa Shipyards, 15 BNA OSHC 1533, 1537 (No. 86-

368, 1992) (consolidated.) (citing A.P. O'Horo Co., 14 BNA OSHC 2004, 2007 (No. 85-369, 

1991); N&N Contractors, Inc., 18 BNA OSHC 2121, 2123 (No. 96-0606, 2000) aff’d, 255 F.3d 
- 28 - 

122 (4th Cir. 2001); 

The Secretary contends that the “evidence in this case establishes that Respondent had 

both actual and constructive knowledge of the hazards due to the company’s decision to not 

comply with the standard.” (Sec’y Br. at 9). The Court agrees that Respondent had actual 

knowledge of the crushing hazard associated with Citation 1, Item 1.51 One of Respondent’s 

owners, Mr. Lopez, knew, and therefore Respondent knew, it was placing construction loads; 

i.e. hollow core slabs and cement bags, on a concrete structure without first determining, 

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

was capable of supporting the loads. Mr. Lopez proceeded with the installation of hollow 

core slabs starting on July 10, 2020, and he continued until he was done doing so on July 11, 

2020 knowing he had not spoken with a qualified person in structural design that the concrete 

structure was capable of supporting the hollow core slabs and the cement bags. See Payne & 

Howard Glass Co., No. 81-1466, 1983 WL 23745, at *7 (OSHRCALJ, May 19, 1983) 

(imputing knowledge to Respondent when Respondent’s foreman was at the worksite and all 

of the facts giving rise to the violative condition were readily discoverable by sight if due 

diligence had been exercised); K M Eng’g Co., No. 15699, 1976 WL 22000, at *6 

(OSHRCALJ, July 13, 1976) (finding that a defective and excessively worn boom block 

shackle on a sideboom tractor could have been discovered by Respondent in the exercise of 

due diligence). 

When the Secretary shows that a supervisor had actual knowledge of the violation, 

such knowledge is generally imputed to the employer. See Ga. Elec. Co. v. Marshall, 595 

51 Alternatively, to any extent required, the Court also finds that Respondent had constructive knowledge of the 

violative condition and hazard. The Court finds Respondent failed to exercise reasonable diligence to discover the 

violative condition and failed to take steps consistent with its authority to protect its employees. 
- 29 - 

F.2d 309, 321 (5th Cir.1979); N.Y. State Elec. & Gas Corp., 88 F.3d 98, 105 (2d Cir. 1996); 

Access Equip. Sys., Inc., 18 BNA OSHC 1718, 1726 (No.95-1449, 1999). But see ComTran 

Grp., Inc. v. U.S. Dep’t of Labor, 722 F.3d 1304, 1316 (11th Cir. 2013) (“employer 

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

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

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

supervisor.’’). As an owner and the person “in-charge” of Revolution working on the actual 

worksite, Mr. Lopez’s knowledge is imputed to Respondent. (Tr. 349-50, 357). See Tampa 

Shipyards, 15 BNA OSHC at 1537. Mr. Lopez knew his lack of qualifications in structural 

design, and he knew he had never spoken to a structural engineer regarding a project in his 

fifteen years of experience installing hollow-core slabs and working with cement. (Tr. 333, 

351). It was readily foreseeable that he would not do so here at the worksite. 

The Court finds that the evidence shows Respondent had actual knowledge of the 

violative conditions associated with Citation 1, Item 1. The Secretary has proven all elements 

of his prima facie case. 

VII. Citation 1, Item 2

The Secretary alleges that Respondent violated 29 C.F.R. § 1926.704(a), which reads: 

Requirements for precast concrete.52 Precast concrete wall units, structural 

framing, and tilt-up wall panels shall be adequately supported to prevent 

overturning and to prevent collapse until permanent connections are completed. 

The Citation alleges:

On or about 07/11/2020, at 1 Sabre Lane, in the city of Naples, FL, employees 

were exposed to crushing hazards due to the hollow core slabs not being 

adequately supported where the ledger angles were not installed per engineer's 

plans compromising the structural integrity of the beams. 

52 29 C.F.R. § 1926.700(b)(5) defines “Precast concrete” as “concrete members (such as walls, panels, slabs, 

columns, and beams) which have been formed, cast, and cured prior to final placement in a structure.” 
- 30 - 

A. The Standard Applies 

As previously addressed, the hazards associated with concrete and masonry construction 

operations and the construction services Respondent performed fall under the purview of Part 

1926, Subpart Q, Section 700. The standard cited at Citation 1, Item 2 is 29 C.F.R. § 

1926.704(a), Requirements for precast concrete. The standard requires precast concrete units 

and structural framing, including hollow core slabs, to be adequately supported to prevent the 

possibility of collapse until permanent connections have been made. It is undisputed that 

Respondent had been hired to install hollow core concrete slabs at the worksite. (Tr. 19-20, 36-

37, 39, 90-91, 333-34; JPS, ¶ D, 1, at 4; Exs. C-25, R-D, at 6, ⁋ A). Precast concrete hollow core 

slabs had just been installed at the worksite to construct the second-floor foundation of the 

structure at the time of the incident. (Tr. 35-36, 333-34). After Respondent installed the 

concrete hollow core slabs, Respondent’s Mr. Lopez admits to directing cement bags be placed 

on top of the hollow core slabs. (Tr. 36, 40-41, 91-92, 339-40). 

The Court finds that the precast concrete hollow core slabs were not adequately 

supported to prevent collapse when the accident occurred where ledger angles were not 

properly installed in tie beams whose structural integrity was compromised. The Court finds 

that the evidence establishes that the cited standard applies to Respondent. See Dillingham 

Constr. Pac. Basin LTD, 19 BNA OSHC 1069, 1070-71 (No. 99-0787, 2000) (ALJ) (29 C.F.R. 

§ 1926.704(a) standard applies to prime contractor who was responsible for the installation of 

precast concrete members, i.e. beams, that fell because they were not adequately supported by 

welding the components together to prevent collapse.). 

B. Respondent Failed to Comply with the Standard 

On July 11, 2020, Respondent finished installing hollow core slabs on the concrete 
- 31 - 

structure at the worksite. (Tr. 36, 90-92). At the direction of Mr. Lopez, sixty 87-pound 

cement bags were then placed on top of the hollow core slabs. (Tr. 40, 339-40). The flooring 

then collapsed injuring two of Respondent’s employees due to the hollow core slabs not being 

adequately supported. (Tr. 340-41; Exs. C-1, C-23, R-D). 

CO Benson testified that the hollow core slabs fell due in part to the incorrect 

installation of the ledger angles. (Tr. 39-40). CO Benson and Dr. Ewing described a litany of 

irregularities that occurred when the ledger angles were installed at the worksite by contractors 

other than Respondent that reduced the strength of the connections between ledger angles and 

tie beams. (Tr. 182; see fn 6). CO Benson testified that prior to installation of the hollow core 

slabs, there was a design change53 which resulted in the wedge anchors, which were to hold up 

the ledger angles, being installed prior to the concrete pour.54 (Tr. 94-98, 102, 113-14, 184; see

fn. 6, herein). Thereafter, while attempting to align the holes of the ledger angles with the 

wedge anchor bolts that were installed in the tie beams, it was discovered that the holes were 

not properly aligned. CO Benson further said, “so they [not Respondent] made some 

adjustments with the holes and used different washers that did not come with the bolts.” The 

washers that they [not including Respondent] used were wrong for the bolts. (Tr. 68, 71, 94-98, 

103, 182, 184; Ex. C-6, at B). A contractor, other than Respondent, also made unallowed 

enlarged slotted holes in the ledger angles. (see fn 21, herein). A contractor, other than 

Respondent, used incorrectly sized and irregular bolts to connect the ledger angles to the tie 

53 Respondent argues that BCB’s Mr. Nash’s determination to install the wedge anchors before the pour absolves 

Respondent of any liability. Respondent contends that OSHA should have cited BCB and/or Ott Welding because 

BCB was responsible for the design changes that allegedly created the hazard and Ott Welding because it was 

responsible for the installation of the wedge anchors. (Resp’t Br. at 6-7). These arguments are without merit.

54 CO Benson stated that installing the wedge anchor bolts in the tie beams prior to the pour did not allow the bolts 

to expand as the concrete cured around them, which can also lead to cracking in the surrounding concrete. (Tr. 96-

97, 113-14).
- 32 - 

beams. (Tr. 85-86; see fns 6, 19, herein). Ott Welding used expansion anchors and not 

mechanical screws as required. (see fn 6, herein). A contractor, other than Respondent, 

inadequately shored the ledger angles. (Tr. 193, 201-02, 218-19; Exs. C-1, C-2). All of these 

irregularities were visible to, and discoverable by, Respondent when Mr. Lopez walked around 

the worksite before beginning to install the hollow core slabs. (Tr. 193, 204, 210-14, 283, 302; 

Exs. C-1, at H, C-6, at B, C-16, at A). 

CO Benson and Dr. Ewing also testified that the hollow core slabs fell due in part to the 

concrete in the tie beams and elsewhere not having fully cured. The concrete had only been 

poured on July 7, 2020, just a few days before the accident. (Tr. 215-17). All of these 

irregularities should have given Respondent pause to not proceed to install the hollow core 

slabs and place cement bags on top of them on July 11, 2020. 

The Court finds that the precast concrete hollow core slabs were not adequately 

supported to prevent collapse where ledger angles were not properly installed in tie beams 

whose structural integrity was compromised. 

The Commission has consistently held an employer whose own employees are exposed 

to a hazard, can be cited even if it did not create or control the hazard. See Anning-Johnson 

Co., 4 BNA OSHC at 1198-99; S. Pan Serv. v. DOL, 685 F. App’x at 695; OSHA Instruction 

CPL 2-00.124, at ⁋ XC2. As previously discussed, Respondent failed to exercise reasonable 

diligence to discover the condition of the ledger angles at the worksite and failed to take steps 

within its power to protect its employees. 

The Court finds that 29 C.F.R. § 1926.704(a) applies and Respondent violated it.

C. Respondent Exposed its Own Employees to the Hazard at Citation 1, Item 2

The discussion and rationale previously addressed at Section VIC, herein, likewise 
- 33 - 

apply to employee exposure to a hazardous condition here with regard to Citation 1, Item 2 and 

is incorporated herein. Respondent’s employees were directly exposed to hazardous conditions 

where precast concrete hollow core slabs were not adequately supported to prevent collapse 

where ledger angles were not properly installed in, and connected to, tie beams. (Tr. 40-41, 

339-41; Exs. C-1 to C-23; R-D; see fns. 6, 19-21, 54, herein). The record shows that both Mr. 

Lopez and [redacted] were severely injured from the worksite collapse. (Tr. 40, 339-41, 352-

53). Manolo was also working at the worksite when the accident occurred. These three 

Respondent employees were exposed to the hazardous conditions. 

The Court finds that Respondent exposed three of its employees to the hazard and it was 

an Exposing Employer when it did so at the worksite on July 10-11, 2020. 

D. Respondent Had Constructive Knowledge of the Hazard at Citation 1, Item 2

The Secretary contends that Respondent failed to exercise reasonable diligence to 

discover and to prevent violative conditions and that Respondent therefore had constructive 

knowledge of those conditions. An employer will be deemed to have constructive knowledge 

of a violation that is in plain view. Kokosing Constr. Co., 17 BNA OSHC 1869, 1871 (No. 

92-2596, 1996). The Tenth Circuit has held that constructive employer knowledge exists 

when “[a] diligent foreman checking the safety of his workers should have discovered” the 

hazard. Austin Bldg. Co. v. Occupational Safety and Health Review Comm’n, 647 F.2d 1063, 

1068 (10th Cir. 1981). This consideration of “reasonable diligence” includes an examination 

of the employer’s “obligation to inspect the work area, to anticipate hazards to which 

employees may be exposed, and to take measures to prevent the occurrence.” Frank 

Swidzinski Co., 9 BNA OSHC 1230, 1233 (No. 76- 4627, 1981). Under Commission 

precedent, “reasonable steps to monitor compliance with safety requirements are part of an 
- 34 - 

effective safety program.” Sw. Bell Tel. Co., 19 BNA OSHC 1097, 1099 (No. 98-1748, 

2000), aff’d without published opinion, 277 F.3d 1374 (5th Cir. 2001). This “reasonable 

diligence” cannot simply rely on the assumption that an employee will alert the employer to 

hazards if he observes them. “Reasonable diligence implies effort, attention, and action; not 

mere reliance upon another to make violations known.” N & N Contractors, Inc., 18 BNA 

OSHC at 2124. 

Here, the floor structure collapsed after the weight of hollow core slabs and 60 cement 

bags were set upon ledger angles at the direction of Mr. Lopez that were not properly connected 

to tie beams.

55 The tie beams were made of cement that had not sufficiently cured to achieve 

required strength. Respondent takes issue with Dr. Ewing’s opinion that the comprehensive 

strength reports for the tie beams involved in the collapse indicated that the hollow core slabs 

should not have been placed on the ledger angles.56 (Resp’t Reply Br. at 2). The concrete was 

poured for the tie beams in the area of the collapse on July 7, 2020; only 4 days before the failure 

occurred. The structural notes required the concrete to cure over a period of 28 days before loads 

are placed upon the structures made out of concrete. The strength requirement was prescribed as 

the 28-day minimum strength of 4,000 psi. Using both compressive strength reports, Dr. Ewing 

opined that the concrete had only reached 2,600 psi as of July 11, 2020. The Court finds that the 

55 In its Reply Brief, Respondent asserts that Mr. Lopez did not direct the cement bags be placed atop the hollow 

core slabs. Respondent argues such an accusation is “pure speculation, unsupported by any facts adduced at trial.” 

(Resp’t Reply Br. at 1). Respondent is wrong. Mr. Lopez testified: 

Q. Okay. And who was it that called for that called for that cement to be brought up and placed on top of the 

hollow core?

A. I did.

(Tr. 339). 

56 According to the Secretary, Respondent had access to compressive strength reports, but did not access them. (Tr. 

86-87, 92-93). Mr. Lopez testified that he never reviewed any compressive strength reports because it was not part 

of his job. (Tr. 92, 344-45). The Secretary claims, and the Court agrees, a review of the compressive strength 

reports would have shown the concrete was not at full strength at the time of the accident. (Tr. 86-87; Sec’y Br. at 

4). 
- 35 - 

concrete in the area where the ledger angle connected to the tie beam attained a strength of only 

2,600 psi as of the date and time of the accident and was not sufficiently cured to support the 

weight of hollow core slabs and 60 cement bags. (Exs. C-37, C-39). The structural notes state 

form work supporting structural concrete (beams and slabs) may not be removed until the 

concrete has attained 75% of the 28-day design minimum strength. Determination of the in place 

concrete strength shall be determined by laboratory testing of concrete cylinders. Here, the 

concrete cylinders showed that form work supporting the tie beams and hollow core slabs should 

not have been removed on or before July 11, 2020. The structural notes go on to say that 

“concrete shall be placed and cured to ACI standards and specifications.” Dr. Ewing opined that 

the concrete had not been sufficiently cured at the time of the accident and the evidence shows 

that Dr. Ewing’s opinion is well supported. The Court also finds that Dr. Ewing’s opinion that 

the ledger angles were improperly affixed to the tie beam that collapsed is also well supported 

and Respondent’s argument to the contrary is rejected.57 (See Resp’t Reply Br. at 2). 

Respondent exposed its employees to numerous violative conditions described above in 

Section VIIB that it did not create or control that relate to ledger angles that were not installed 

per engineer’s plans. Respondent failed to exercise reasonable diligence to discover these

violative conditions and take steps within its power to protect its employees from these 

violative conditions. Ignorance is sometimes bliss, but not in this case, and not in the context of 

the Act. An employer attempting to re-direct its own legal obligations under the Act to protect 

its own workers onto other higher tier contractors does so at its own risk.58 

57 The Court does agree with Respondent that Mr. Lopez would not have been able to personally determine precisely 

how far the wedge anchors were embedded in the tie beams on July 10, 2020 during his walk-around the worksite. 

(Resp’t Reply Br. at 8). 

58 Respondent’s arguments that BCB, Morca Construction, and Ott Welding created factors that contributed to the 

floor collapse does not absolve Respondent from its own responsibility and liability under the Act. (Resp’t Reply 

Br. at 3). The Court is finding Respondent violated the two standards based upon its own action or inaction. 

Respondent may have looked at a drawing for the installation of hollow core; but chose to ignore, not seek, or 
- 36 - 

Mr. Lopez testified that he counted the bolts in the ledger angles to ensure that they 

were all there before proceeding with the installation of the hollow core slabs. When doing so, 

with the exercise of due diligence, he should have seen that there were varying sizes and shapes 

of bolts and washers on the ledger angles. He should have seen that there were field cut slotted 

holes in the ledger angles that could cause inadequate load transfer. (Tr. 213). He should have 

seen that the ledger angles were not affixed flush and properly aligned with the tie beams. He 

should have seen that anchor bolts had been sawed off because they were sticking too far out.59 

(Tr. 283). Dr. Ewing testified that “[y]ou would be able to see that the bolts were not as 

described or required in the construction documents.” He said one would have seen threaded 

rods and a nut; and not a bolt as required by the construction drawings.60 (Tr. 302-03). During 

OSHA’s investigation, Mr. Lopez told CO Benson that he does not check to see if the bolts or 

angle clips are installed correctly because he relies on the contractor who contracted with his 

company. (Ex. R-D, at 7, ⁋F). 

With shore posts still in place and the concrete not sufficiently cured, Mr. Lopez should 

have realized that all of these identifiable conditions weakened the effectiveness of the ledger 

angles to hold the hollow core slabs and cement bags. The Secretary argues the partially 

consider practically everything else that was pertinent to the job. Respondent did not do what was “realistic” under 

the circumstances. See S. Pan Serv. v. DOL, 685 Fed. Appx. at 695. There were plenty of available indicia that 

should have given Respondent pause in starting to install hollow core when Mr. Lopez arrived at the worksite. The 

cement was relatively newly poured just 3 days before, shore poles were in place at many places, compressive 

strength reports should have been considered to ascertain what strength had been achieved by July 10, 2020, 

anchor bolts had been sawed off, washers varied, and holes cut into the ledger angles were visible. (Tr. 193, 204,

210-14, 283, 302; Exs. C-1, at H, C-6, at B, C-16, at A). Respondent ignored all of these. 

59 Although Mr. Lopez did not know how far the anchor bolts had been embedded into the tie beams, he should 

have seen enough indicators to prompt him to ask BCB and/or Ott Welding whether the anchor bolts had been 

adequately embedded. Instead of doing so, he ignored all the warning signs and did nothing. (Tr. 150, 284, 303-

05). 

60 Dr. Ewing testified that contractors [including BCB and Ott Welding] are not able to deviate from the structural 

drawings just because they believe there’s a safety factor and change the design of the concrete. (Tr. 302).
- 37 - 

stripped formwork indicated that the concrete had not reached the proper strength. (Sec’y Br. at 

10-11). Dr. Ewing testified that partially stripped formwork would indicate the concrete had 

not reached its design strength. He said the removal of formwork only indicated that the 

concrete member itself can support its own weight. He also said that the Structural Notes do 

not say a contractor is ready to place loads on the concrete when the formwork is removed. (Tr. 

218-19, 296; Exs. C-9, C-37). Mr. Lopez testified that he did not ask anyone why the 

formwork was still there and perceived it as normal to still be there. (Tr. 345-47). 

Mr. Lopez admits he never reviewed any design plans or compressive strength reports, 

and only looked at blueprints of the hollow core slabs. (Tr. 344, 350). He further testified that 

he never asked to speak with a structural engineer because it was not his job. (Tr. 345-46). Mr. 

Lopez told CO Benson that it was not his responsibility to review any engineering plans. (Tr. 

92). Mr. Lopez never asked to see any structural or design drawings of the concrete structure. 

(Tr. 344-46). Mr. Lopez did not take reasonable steps to determine if the design plans of the 

building had been changed. (Tr. 344-46). He testified that he did not ask anyone if the design 

plans had been changed because it was not his responsibility to. (Tr. 345-46). 

The record reveals Respondent could have known of the presence of the violative 

conditions with the exercise of reasonable diligence. Mr. Lopez spent only about ten minutes 

walking around the site before commencing work. (Tr. 350-51). He never asked anyone, 

including BCB, whether the concrete had properly cured, had the proper compressive strength, 

or could handle the weight of the cement bags. (Tr. 345-47, 350-51; Ex. C-3, at A). He did not 

ask if anyone on the worksite had structural design knowledge. (Tr. 342-43, 345-46). 

Following through with any of the aforementioned actions would have been reasonable under 

the circumstances.
- 38 - 

When the Secretary shows that a supervisor had constructive knowledge of the 

violation, such knowledge is generally imputed to the employer. See Ga. Elec. Co. v. 

Marshall, 595 F.2d at 321; N.Y. State Elec. & Gas Corp., 88 F.3d at 105; Access Equip. Sys., 

Inc., 18 BNA OSHC 1726. As an owner of Revolution working on the actual worksite, Mr. 

Lopez’s constructive knowledge is imputed to Respondent. See Tampa Shipyards, 15 BNA 

OSHC at 1537. 

The evidence shows that the structural integrity of the tie beams was compromised 

because the ledger angles were not installed per the engineer’s plans. Respondent had 

constructive knowledge of the violative conditions that led to the failure of the ledger angles 

and the ensuring collapse of the hollow core slabs. Constructive knowledge of the violative 

condition is established. The Secretary has proven all elements of his prima facie case. 

VIII. Citation 1, Items 1 and 2, were Properly Classified as Serious and the Penalty 

Assessed is Appropriate 

 Section 17(j) of the Act, 29 U.S.C. 666(j), requires the Commission to consider four 

factors in assessing penalties: the gravity of the violation and the employer’s good faith, 

history, and size. The Act does not prescribe how or what weight to apply to the factors. Atlas 

Roofing Co. v. OSHRC, 518 F.2d 990, 1001 (5th Cir. 1975), aff’d, 430 U.S. 442 (1977) (OSHA 

penalties are meant to “inflect pocketbook deterrence”). Penalty assessment requires 

application of administrative discretion. D.S. Grading Co., Inc. v. Sec’y of Labor, 899 F.3d 

1145, 1148 (11th Cir. 1990). The gravity of the violation is generally afforded greater weight in 

assessing an appropriate penalty. Trinity Indus. Inc., 15 BNA OSHC 1481, 1489 (No. 88-2691, 

1992). A violation’s gravity is determined by weighing the number of employees exposed, the 

duration of their hazard exposure, preventative measures taken against injury, and the 

possibility that an injury would occur. J. A. Jones Constr. Co., 15 BNA OSHC 2201, 2214 
- 39 - 

(No. 87-2059, 1993); Kus-Tum Builders, Inc., 10 BNA OSHC 1128, 1132 (No. 76-2644, 1981). 

Under section 17(k) of the Act, 29 U.S.C. § 666(k), a serious violation exists where 

there is substantial probability that death or serious harm could result from a condition that 

exists in a place of employment. The Secretary need not show there was a substantial 

probability an accident would occur, only that if an accident did occur, death or serious physical 

harm could result. Wal-Mart Stores, Inc., v. Sec’y of Labor, 406 F.3d 731, 735 (D.C. Cir. 

2005); Brock v. L.R. Willson & Sons, Inc., 773 F.2d 1377, 1388 (D.C. Cir. 1985); Mosser 

Constr., Inc., 23 BNA OSHC 1044, 1046 (No. 08-0631, 2010). 

In determining whether a hazard is “causing or likely to cause death or serious physical 

harm,” the Commission does not look to the likelihood of an accident or injury occurring, but, 

instead, looks to whether, if an accident occurs, the results are likely to cause death or serious 

harm. See Babcock & Wilcox Co. v. OSHRC, 622 F.2d 1160, 1164 (3d Cir. 1980) (Secretary 

must show that the hazard causes or is likely to cause death or serious injury to an employee); 

Beverly Enters. Inc., 19 BNA OSHC 1161, 1188 (No. 91-3144, 2000) (consolidated) (Secretary 

must show that recognized hazard “causing” or is “likely to cause” “death or serious physical 

harm.”); Waldon Healthcare Ctr., 16 BNA OSHC 1052, 1060 (No. 89-2804)((criteria “is not 

the likelihood of an accident or injury, but whether, if an accident occurs, the results are likely 

to cause death or serious harm.”). 

Here, the record shows that potentially hazardous conditions existed at the worksite and 

resulted in serious harm to two of Respondent’s employees. Respondent’s failure to comply 

with 29 C.F.R. § 1926.701(a) on July 11, 2020, at the worksite in Naples, Florida exposed 

employees to crushing hazards and serious physical injury. The evidence in this case 

establishes that there was a high probability of death or serious bodily harm if an accident 
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occurred. (Tr. 34-35, 39-41, 340-41, 352-53; Exs. C-1, C-23, R-D). Mr. Lopez testified both 

he and [redacted] required hospitalization and surgery for broken bones after the hollow core 

slabs fell on them. (Tr. 352-53). When asked why a serious citation was recommended, CO 

Benson said it was due to employees actually being injured and sustaining very serious injuries. 

(Tr. 40, 101). When asked what the most serious injury would be from a collapse of hollow 

core slabs, CO Benson said “[d]eath.” (Tr. 101). 

The gravity-based penalty proposed for Citation 1, Item 1 was $13,494. The violation 

was assigned a high severity, greater probability, and high gravity. (Tr. 101-02; Ex. R-D at 1). 

The item was assigned high severity because workers were exposed to crushing hazards that 

could cause irreversible injury and/or death. (Tr. 101-02; Ex. R-D at 1). It was assigned a 

greater probability. (Ex. R-D, at 1). The Secretary reduced the proposed gravity-based penalty 

by 70% due to the company’s size. (Tr. 101-02; Ex. R-D at 1). The Secretary did not give any 

reductions for good faith or history. (Tr. 100-02; Ex. R-D at 1). CO Benson testified that no 

good faith reduction was provided because Respondent lacked any safety and health program. 

(Tr. 101). The calculated penalty, taking into consideration the reduction for Respondent’s size, 

for Citation 1, Item 1 is $4,048. (Tr. 100; Ex. R-D at 2). Respondent makes no argument for a 

penalty reduction. 

The gravity-based penalty proposed for Citation 1, Item 2 was $13,494. The violation 

was assigned a high severity, greater probability, and high gravity. The item was assigned high 

severity because workers were exposed to crushing hazards that could cause death or multiple 

fractures resulting in permanent disability. (Tr. 102; Ex. R-D at 5). The Secretary reduced the 

proposed gravity-based penalty by 70% due to Respondent only employing six people. (Tr. 88, 

102; Ex. R-D at 5). The Secretary did not give any reductions for good faith or history due to 
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Respondent’s lack of any safety and health program. (Tr. 100-02; Ex. R-D at 5). The 

calculated penalty for Citation 1, Item 2, after the reduction, is $4,048. (Tr. 102; Ex. R-D at 6). 

Respondent again made no argument for a penalty reduction. 

The Court finds that the proposed penalties for both items are appropriate and assesses

them as proposed. 

IX. Respondent’s Defenses Fail

Respondent pleaded numerous defenses in its Answer.61 Many of these defenses were 

not raised further at trial or in its Post-Trial and Reply Briefs. Affirmative defenses not raised at 

the trial are deemed waived and abandoned by Respondent. Corbesco, Inc. v. Dole, 926 F.2d 

422, 429 (5th Cir. 1991) (Affirmative defenses not argued waived); Ga.-Pac. Corp., 15 BNA 

OSHC 1127, 1130 (No. 89-2713, 1991) (“Commission declines to reach issues on which the 

aggrieved party indicates no interest.”). The Court finds all of these defenses are rejected 

because they either lack merit or have been abandoned, or both. 

X. Conclusion 

 Revolution was a creating and exposing employer as to Citation 1, Item 1. It was an 

exposing employer as to Citation 1, Item 2 as it failed to exercise reasonable diligence to 

discover the violative conditions and failed to take steps consistent with its authority to protect 

its employees. As discussed above, the elements of applicability, employee exposure, violation 

and knowledge of the cited conditions are proved as to both items. 

61 Respondent asserted ten defenses, i.e., (1) standards do not apply, (2) Secretary cannot show Respondent failed to 

comply with standards, (3) isolated instance of employee misconduct of which Respondent had no knowledge or 

could not have reasonably foreseen, (4) lack of employer knowledge, (5) Respondent had work rules that were 

adequately communicated and Employer took steps to discover violations, (6) “Respondent did not participate in, 

have knowledge of or caused the alleged hazards,” (7) Unpreventable or unforeseeable employee misconduct, (8) 

greater hazard defense, (9) compliance functionally impossible, and (10) means of compliance unfeasible. (Answer 

at 2-4). 
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XI. Findings of Fact and Conclusions of Law 

All findings of fact and conclusions of law relevant and necessary to a determination of the 

contested issues have been made above. See Fed. R. Civ. P. 52(a). All proposed findings of fact 

and conclusions of law inconsistent with this decision are denied. 

XII. Order

 Based upon the foregoing findings of fact and conclusions of law, IT IS ORDERED that:

Citation 1, Item 1, alleging a Serious violation of 29 C.F.R. § 1926.701(a), is AFFIRMED and 

the Court assesses a penalty in the amount of $4,048; and

IT IS FURTHER ORDERED that: Citation 1, Item 2, alleging a Serious violation of 29 C.F.R. 

§ 1926.704(a), is AFFIRMED and the Court assesses a penalty in the amount of $4,048. 

SO ORDERED.

 /s/ 

 The Honorable Dennis L. Phillips 

 U.S. OSHRC Judge 

 

Dated: September 26, 2022 

 Washington, D.C.