United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

 Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket Nos. 98-0755 and 98-1168

AVCON, INC., VASILIOS SAITES, and 

NICHOLAS SAITES, 

BRIDGESTONE/FIRESTONE, Respondents.

APPEARANCES: 

Peter J. Vassalo, Jordana Wilson, and Laura Fargas, Attorneys; Daniel J. Mick, Counsel for 

Regional Trial Litigation; Donald G. Shalhoub, Deputy Associate Solicitor; Joseph M. 

Woodward, Associate Solicitor; Judith E. Kramer, Acting Solicitor; U.S. Department of Labor, 

Washington, DC 

 For the Complainant 

Paul A. Sandars, III; Lum, Danzis, Drasco, Positan & Kleinberg, LLC, Roseland, New Jersey 

 For the Respondent 

DECISION AND ORDER 

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

BY THE COMMISSION: 

Avcon Incorporated (“Avcon”) is a New Jersey corporation engaged in the business of 

poured-in-place concrete construction. This case involves a worksite in Hackensack, New 

Jersey, where Avcon was building an eighteen-story apartment complex called “Excelsior II.” 

Following an inspection of the worksite conducted between October 1997 and April 1998, the 

Occupational Safety and Health Administration (“OSHA”) issued Avcon one serious citation and 

one willful citation alleging multiple violations of the Occupational Safety and Health Act of 

1970 (“OSH Act” or “Act”), 29 U.S.C. §§ 651-678, with a total proposed penalty of $134,000 
2

(Docket No. 98-0755).

1

 After a second inspection of the same worksite conducted between April 

1998 and June 1998, OSHA issued Avcon another serious citation with a total proposed penalty 

of $6,000 (Docket No. 98-1168). All of the citations were timely contested and the two matters 

were consolidated for consideration by Administrative Law Judge Covette Rooney.

On November 20, 1998, the Secretary filed motions to amend her complaints in both 

cases seeking to add two individuals as Respondents: Vasilios (“Bill”) Saites, Avcon‟s president 

and director; and Nicholas (“Nick”) Saites, Bill‟s son and an Avcon assistant superintendent. 

Thereafter, the Saiteses filed a response to the Secretary‟s amendment motions, urging the judge 

to deny the motions. The judge granted the Secretary‟s motions, and following a hearing on 

these matters, issued a decision in which she affirmed the nine citation items now at issue on 

review and assessed a total penalty of $77,800.

2

In her decision, the judge again rejected claims by the Saiteses that they were not proper 

parties to these matters. She found that the record evidence established that the Saiteses

“maintained control over the worksite [,]” and that they were “employers” within the meaning of 

section 3(5) of the OSH Act. According to the judge, “Avcon‟s corporate form was a mere 

formality” and, therefore, it was appropriate to hold the Saiteses individually liable for the 

OSHA citations and penalties at issue in both cases. For the following reasons, Bill and Nick 

Saites are dismissed from these cases as respondents, all but one of the nine citation items on 

review are affirmed, and a total penalty of $77,350 is assessed.

3

 

ANALYSIS

I. Secretary’s Motions to Amend 

We turn first to the Respondents‟ threshold claim on review that the judge erred in 

allowing the Secretary to amend her complaints to add the Saiteses as parties to the case more 

than six months after the occurrence of the violations, contrary to section 9(c) of the OSH Act. 

Section 9(c) states that “[n]o citation may be issued . . . after the expiration of six months 

 

1

The Secretary subsequently amended this proposed penalty amount to $121,800 to reflect an 

additional reduction for Avcon‟s size.

2

These nine citations items arise solely under Docket No. 98-0755. 

3 We deny the motion for oral argument made by Respondents, as the record and briefs are 

sufficient to decide the case. MetWest, Inc., 22 BNA OSHC 1066, 1067 n.2, 2008 CCH OSHD 

¶ 32,942, p. 53,776 n.2 (No. 04-0594, 2007), aff’d, 560 F.3d 506 (D.C. Cir. 2009).
3

following the occurrence of any violation.” 29 U.S.C. § 658(c). It is undisputed that the 

Secretary‟s motions to amend were filed approximately ten months from the date of the most 

recent violation observed in Docket No. 98-0755, and six months and eight days from the most 

recent violation observed in Docket No. 98-1168.4

Commission Rule 34 permits the Secretary to amend her citation or proposed penalty in 

her complaint. But neither this Rule nor any other Commission Rule provides a mechanism for 

the Secretary to amend her complaint once it has been filed and the amendment is sought after 

the statute of limitations has expired.

5

 In the absence of a specific Commission Rule, the Federal 

Rules of Civil Procedure (“FRCP”) must be applied. See 29 U.S.C. § 661(g); Commission Rule 

2, 29 C.F.R. § 2200.2(b) (requiring application of FRCP in the absence of a specific Commission 

Rule). Here, the only rule under the FRCP that would allow the Secretary to amend her 

complaint more than six months after the occurrence of a violation is FRCP 15(c). See Vergona 

Crane Co., 15 BNA OSHC 1782, 1783-84 n.3, 1991-93 CCH OSHD ¶ 29,774, p. 40,496 n.3

(No. 88-1745, 1992) (“even if Jo-Le-Ron had been the only appropriate entity to cite, an 

amendment of the pleadings to name it as employer would be permissible under” Rule 15(c));

see also CMH Co., 9 BNA OSHC 1048, 1050-55, 1980 CCH OSHD ¶ 24,967, p. 30,821 (No. 

78-5954, 1980) (allowing the Secretary “to conform the pleadings to the proof” to substitute a 

 

4

The citations at issue under Docket No. 98-0755 were issued on April 7, 1998, and alleged

violations that were observed between October 9, 1997 through January 7, 1998. The citations at 

issue under Docket No. 98-1168 were issued on June 23, 1998, and alleged violations that were 

observed between April 28, 1998 through May 12, 1998.

5 Respondents claim on review that the Commission lacks jurisdiction to review this case under 

section 9(c) of the Act because the Secretary never actually issued citations to Bill or Nick Saites 

as individuals. This assertion is without merit. The Secretary did issue timely citations to Avcon 

for the violations alleged here and, as noted above, the Commission‟s rules allow the application 

of FRCP 15(c) to permit the Secretary to amend these citations through her complaint more than 

six months after the violation occurred. Indeed, the Commission has construed section 9(c) as a 

statute of limitations rather than an absolute jurisdictional bar to the issuance of a citation after 

six months. See Duane Smelser Roofing Co., 4 BNA OSHC 1948, 1950, 1976-77 CCH OSHD 

¶ 21,387, p. 25,674 (No. 4773, 1976) (“Section 9(c) prohibits the issuance, not the amendment, 

of an original citation more than six months after the occurrence of a violation.”), aff’d in part, 

rev’d in part, 617 F.2d 448 (6th Cir. 1980); see also Yelvington Welding Serv., 6 BNA OSHC 

2013, 2016, 1978 CCH OSHD ¶ 23,092, p. 27,905 (No. 15958, 1978) (“The 180[-]day period is 

treated as a statute of limitation[s] . . . .”).
4

new party more than six months after the occurrence of a violation by way of a Rule 15(c) 

amendment). 

At the time the Secretary moved to amend her complaints in this case, FRCP 15(c) set 

forth the following requirements for an amendment to a pleading to relate back to the original 

pleading date:

(c) Relation Back of Amendments. An amendment of a pleading relates 

back to the date of the original pleading when

(1) relation back is permitted by the law that provides the statute of 

limitations applicable to the action, or

(2) the claim or defense asserted in the amended pleading arose out of the 

conduct, transaction, or occurrence set forth or attempted to be set forth in 

the original pleading, or

(3) the amendment changes the party or the naming of the party against 

whom a claim is asserted if the foregoing provision (2) is satisfied and, 

within the period provided by Rule 4(m) for service of the summons and 

complaint, the party to be brought in by amendment (A) has received such 

notice of the institution of the action that the party will not be prejudiced in 

maintaining a defense on the merits, and (B) knew or should have known 

that, but for a mistake concerning the identity of the proper party, the action 

would have been brought against the party.

Fed. R. Civ. P. 15(c) (1998) (stylistic revisions made in 2007).

6 Respondents specifically claim 

that the Secretary‟s amendments failed to satisfy the requirements of FRCP 15(c)(3).

7

 Based on 

 

6

The Secretary filed her motions to amend under FRCP 15(a), which unlike FRCP 15(c), does 

not allow a party to relate its pleading back to the date of the original pleading. However, courts 

have inclusively considered all subsections of FRCP 15 when determining the propriety of an 

amendment. See generally Dole v. Arco Chemical Co., 921 F.2d 484 (3d Cir. 1990) (allowing 

the Secretary to amend her complaint under FRCP 15(a) to allege a violation of another standard 

beyond the six-month limitations period); Arthur v. Maersk, Inc., 434 F.3d 196 (3d Cir. 2006) 

(considering an amendment under both subsections (a) and (c) of FRCP 15, notwithstanding the 

District Court‟s reliance solely on subsection (c)). Thus, we do not consider the Secretary‟s sole 

reliance on FRCP 15(a) to be determinative here.

7 Unlike her colleagues, Commissioner Attwood would only reach the merits of Respondents‟ 

“relation back” claim under FRCP 15(c) after first determining whether the judge correctly found 

that Avcon was the Saiteses‟ alter ego. The record here shows that following the Secretary‟s 

issuance of the citations to Avcon—one of which she hand delivered directly to Nick Saites—

Bill Saites filed both of Avcon‟s notices of contest using letterhead that identified Avcon‟s 

business address as a home that Bill Saites owned in which Nick Saites lived rent-free. The 

Secretary filed, and the judge granted, the motions to amend the complaints to add the Saiteses 

after the end of the limitations period but well before the hearing commenced. And there is no 

dispute that both the corporate and individual respondents fully participated in the litigation of all 
5

our review of the record, we conclude that the Secretary has not met the “knowledge of mistake” 

requirement because she failed to show that the Saiteses knew or should have known that but for 

a mistake concerning identity they would originally have been cited individually.

8

The Supreme Court recently addressed this specific requirement in Krupski v. Costa 

Crociere, 130 S.Ct. 2485 (2010). There, the Court held that relation back under FRCP 15(c) 

depends on what the party to be added knew or should have known, and not on the amending 

party‟s knowledge or its timeliness in seeking amendment. Id. at 2493-96. The Court instructed, 

“[w]hen the original complaint and the plaintiff‟s conduct compel the conclusion that the failure 

to name the prospective defendant in the original complaint was the result of a fully informed 

decision as opposed to a mistake concerning the proper defendant‟s identity, the requirements of 

 

issues. Particularly in these circumstances, Commissioner Attwood would find that if the record 

also establishes that Avcon was the Saiteses‟ alter ego under a veil-piercing analysis, the judge 

properly granted the Secretary‟s motions to amend the complaints to add the Saiteses as 

individuals under FRCP 15(a) (Amendments Before Trial). In this regard, Commissioner 

Attwood notes that “[w]hen a corporation is deemed the „alter ego‟ of an individual, then those 

entities are considered to be one and the same under the law: „the corporation‟s acts must be 

deemed to be [the individual‟s] own.‟ ” Patin v. Thoroughbred Power Boats, Inc., 294 F.3d 640, 

653-54 & n. 18 (5th Cir. 2002) (citation omitted); cf. Nelson v. Adams USA, Inc., 529 U.S. 460, 

465-68 (2000) (rejecting post-judgment amendment to impose liability against corporation‟s 

unnamed officer/owner, specifically noting that neither circuit court nor plaintiff sought to 

impose such liability by piercing the corporate veil); Goodman v. Praxair, Inc., 494 F.3d 458, 

474-75 (4th Cir. 2007) (finding wholly-owned subsidiary of cited corporation “knew or should 

have known” within the limitations period that it was a proper party where its close relationship 

with cited entity and representation by same attorneys warranted imputing knowledge of the 

claim against it when original complaint was served). Indeed, as the Secretary explicitly argued 

below, if Avcon is the individual respondents‟ alter ego, the two are “indistinguishable.” If the 

record here establishes that Avcon is, in fact, the Saiteses‟ alter ego, Commissioner Attwood 

would find that the judge permissibly exercised her discretion to grant the Secretary‟s motions to 

amend the complaints under FRCP 15(a), and that the relation-back provision contained in Rule 

15(c) is inapposite. See Krupski v. Costa Crociere, 130 S.Ct. 2485 (2010) (noting that 

amendment under rule 15(a) is discretionary). Accordingly, Commissioner Attwood does not 

join in her colleagues‟ analysis below applying Rule 15(c), and would reach the merits of the 

veil-piercing issue in order to determine whether the judge properly granted the Secretary‟s 

motions to amend the complaints.

8

The other two requirements of FRCP 15(c)(3) have been established here. The original 

complaints and the amended complaints involved the same contested OSHA citations. And it is 

undisputed that Nick Saites obtained notice of the first set of citations when they were handdelivered to him, and that Bill Saites was aware of all the citations because he filed the notices of 

contest in each case.
6

Rule 15(c)[] are not met.” Id. at 2496 Thus, the relevant inquiry here is whether the Saiteses

should have realized that the Secretary‟s failure to name them in the original complaints was the 

result of a mistake by the Secretary as to the legitimacy of Avcon as the cited employer.

Here, we see nothing in the original complaints that would have alerted the Saiteses that 

the Secretary made a mistake in failing to name them. There is no language in these documents

that suggests the Secretary was under a misimpression that Avcon was exclusively responsible 

for the violations and was issuing the citations to them for that reason. Cf. Krupski, 130 S.Ct. at 

2497 (concluding that it was clear from original complaint “that Krupski meant to sue the 

company that „owned, operated, managed, supervised and controlled‟ the ship on which she was 

injured [citation omitted] and also indicated (mistakenly) that Costa Cruise performed those roles

. . . .”). Unlike the plaintiff in Krupski, the Secretary initially named Avcon, a party that was, in 

fact, legally responsible. Cf. id. (“because the face of the complaint plainly indicated such a 

misunderstanding, respondent‟s contention is not persuasive”).9 

The Secretary also failed to provide any basis in her motions to amend the complaints to 

even suggest that the Saiteses should have realized that her failure to cite them initially resulted 

from a mistake concerning the identity of the proper party. Both of the Secretary‟s amendment 

motions are supported by fundamentally the same affidavit of William G. Staton, an attorney 

with the U.S. Department of Labor. This affidavit simply lists a number of Saites-owned 

companies that have defaulted on payment of OSHA penalties in connection with more than 

thirty prior citations. Notwithstanding this pattern of default spanning a period of twenty-five

years, the Secretary had never previously cited either one of the Saites individually and there is 

no information in the affidavits that would have led the Saiteses to believe that this particular 

time was different from any other, i.e., that the Secretary “mistakenly” failed to cite them for 

these particular citations. Given her longstanding consistent behavior, it is more likely the 

Saiteses would have concluded that the Secretary intended to continue to cite the corporation.

And as the Secretary has declined our invitation to brief this issue as specifically identified in the 

 

9 We note that when the Secretary moved to amend the complaints, she sought to add, rather than 

substitute, the Saiteses as Respondents.
7

Commission‟s briefing notice for this case, we are unaware of any basis to view the issue—for 

which she carries the burden—any differently.

10

 

Under these circumstances, we conclude that the Secretary has failed to show there was a 

reason for the Saiteses to believe that her decision not to initially cite them was a “mistake” 

rather than “fully informed.” See Choice Electric Co., 14 BNA OSHC 1899, 1900, 1987-90 

CCH OSHD ¶ 29,141, p. 38,940 (No. 88-1393, 1990) (“general rule in administrative 

proceedings [is] that the moving party has the burden of proof”) (citing Section 7(c), 

Administrative Procedure Act, 5 U.S.C. § 556(d)); see also Sarasota Concrete Co., 9 BNA 

OSHC 1608, 1612 and n.9, 1981 CCH OSHD ¶ 25,360, p. 31,531 and n.9 (No. 78-5264, 1981) 

(same), aff’d, 693 F.2d 1061 (11th Cir. 1982). Accordingly, we find that the judge erred in 

granting the Secretary‟s motions to amend the complaints to add Bill and Nick Saites as parties

more than six months after the occurrence of the violations and dismiss both individuals from 

these cases as respondents.

11

II. Serious Citation 1, Items 1a and 1b: 29 C.F.R. §§ 1910.1200(e)(1), (h)(1) (hazard 

communication)

The Secretary cited Avcon for two alleged serious violations of the hazard 

communication standard: for failing to “develop, implement, and/or maintain” a written hazard 

communication program under 29 C.F.R. § 1910.1200(e)(1) (Item 1a), and for failing to provide 

“effective information and training” to its employees regarding the hazardous chemicals at the 

 

10 Although the Secretary did provide some analysis of the amendment issue before the judge in 

her opposition to Respondents‟ Motion to Dismiss Claims Against Vasilios N. Saites and 

Nicholas Saites, she did not indicate in her briefs on review that she wanted to rely on that 

analysis before the Commission. Even though Respondents addressed the amendment issue in 

their opening brief to the Commission, the Secretary did not respond to these arguments in her 

subsequently filed opening brief nor did she explain her reasons for not doing so.

11 Because Bill and Nick Saites are no longer parties to this matter, the issue of their individual 

liability for the citations in question is moot. Likewise, we need not address the Secretary‟s 

Motion to Take Notice of Judicial Admissions in Related Proceedings, in which she asks us to 

take judicial notice of the Saiteses‟s testimony in the separate matter of Avcon Inc., Altor, Inc., 

Vasilios Saites, and Nicholas Saites, OSHRC Docket No. 99-0958. See Thomas Indust. Coatings

Inc., 21 BNA OSHC 2283, 2288-89, 2008 CCH OSHD ¶ 32,937, p. 53,735 (No. 97-1073, 2007) 

(citing General Motors Corp., Electro-Motive Div., 14 BNA OSHC 2064, 2071, 1991-93 CCH 

OSHD ¶ 29,240, p. 39,163 (No. 82-630, 1991) (consolidated) (finding it unnecessary to decide 

whether employer‟s failure to provide access to exposure records was “serious” under the Act, 

where no party‟s rights would be adversely affected)).
8

worksite under 29 C.F.R. § 1910.1200(h)(1) (Item 1b). The Secretary grouped these items and 

proposed a penalty of $900. The judge affirmed the items as alleged and assessed the proposed 

penalty. 

The hazard communication standard requires an employer to “develop, implement, and 

maintain at each workplace[] a written hazard communication program . . . .” 29 C.F.R. 

§ 1910.1200(e)(1). The program must include a “list of the hazardous chemicals known to be 

present using an identity that is referenced on the appropriate material data safety sheet . . . .” 

29 C.F.R. § 1910.1200(e)(1)(i). Employers must also “provide employees with effective 

information and training on hazardous chemicals in their work area” and inform them of the 

“location and availability of the written hazard communication program, including the required 

list(s) of hazardous chemicals . . . .” 29 C.F.R. §§ 1910.1200(h)(1), (h)(2)(iii). 

At the outset, we note that Avcon has failed to address the hazard communication 

training item (Item 1b) in its briefs to the Commission, even though the company sought review 

of the item in its petition for discretionary review and our briefing notice specifically asked the 

parties to discuss it. Accordingly, we deem this item abandoned by Avcon. See Midwest 

Masonry, Inc., 19 BNA OSHC 1540, 1543 n.5, 2001 CCH OSHD ¶ 32,428, p. 49,994 n.5 (No. 

00-0322, 2001) (employer deemed to have abandoned argument permitted by Commission‟s 

briefing notice by not addressing it in brief on review); Ragnar Benson, Inc., 18 BNA 

OSHC 1937, 1938, 1999 CCH OSHD ¶ 31,932, p. 47,371 (No. 97-1676, 1999) (“The 

Commission need not review an issue abandoned by a party.”).

With respect to the hazard communication program item (Item 1a), the Secretary alleged, 

and Avcon does not dispute, that Avcon‟s written program lacked a list of the hazardous 

chemicals employees used at the worksite.12 Instead, Avcon contends that the judge erred in 

affirming the item because she “ignored” Avcon‟s development and use of a written hazard 

communication program. However, it is Avcon that has ignored its own failure to include 

gasoline, oxygen, acetylene, and propane on its required list of onsite hazardous chemicals even 

though it also does not dispute that these substances are hazardous chemicals that were used by 

its employees. Indeed, as Nick Saites acknowledged, the program only “told the employees how 

to handle materials, and if there was an accident, what to do.” Although he also testified that 

 

12 Neither party introduced the written hazard communication program into evidence.
9

material safety data sheets (“MSDS‟s”) were kept in the same binder with Avcon‟s hazard 

communication program, the cited provision clearly differentiates between the hazardous 

chemicals list and the MSDS‟s, which are separately required. 29 C.F.R. § 1910.1200(e)(1)(i) 

(requiring that the list of hazardous chemicals reference the MSDS‟s that identify the chemicals); 

see also Atl. Battery, 16 BNA OSHC 2131, 2182, 1993-1995 CCH OSHD ¶ 30,636, p. 42,499 

(No. 90-1747, 1994) (noting that the list must include “those chemicals for which the employer 

is required to obtain an MSDS”). Under these circumstances, we conclude that Avcon failed to 

develop and maintain a written hazard communication program that meets all of the 

requirements of the cited standard. See Safeway Store No. 914, 16 BNA OSHC 1504, 1514-15, 

1993-1995 CCH OSHD ¶ 30,300, pp. 41,747-48 (No. 91-373, 1993) (affirming violation of 

§ 1910.1200(e)(1) where employer failed to include a hazardous chemical present at its site in its 

hazard communication program list and affirming violation of separate MSDS requirement).

Avcon has challenged neither the characterization nor the penalty proposed for the 

grouped items. Accordingly, we affirm the items as serious and assess the $900 proposed 

penalty. 

III. Serious Citation 1, Item 2: 29 C.F.R. § 1926.20(b)(1) (safety program)

In this item, the Secretary alleged that Avcon failed to maintain an adequate accident 

prevention program (“safety program”). The Secretary based this item on evidence that Avcon‟s 

supervisors permitted and participated in conduct that violated various OSHA standards, and on 

alleged insufficiencies in Avcon‟s written program, including its origin as an OSHA guidance 

document that “was in no way tailored or adapted to a company engaged in shoring, form work, 

or concrete pouring.” The judge affirmed the violation, finding that management tolerated and 

participated in noncompliance with OSHA standards, “which . . . indicated that there was no 

program to bring workers into compliance,” and that Avcon‟s safety program did not address 

measures for detecting and correcting hazards and was not communicated to employees “in a 

manner which [would] let the employees know what precautions to take when they encountered 

potentially dangerous situations.” She assessed the $3,000 proposed penalty.

The cited standard requires an employer to “initiate and maintain” a safety program for 

its employees engaged in construction work. 29 C.F.R. § 1926.20(b)(1). Under the standard, 

“an employer may reasonably be expected to conform its safety program to any known duties”

and the “safety program must include those measures for detecting and correcting hazards which 
10

a reasonably prudent employer similarly situated would adopt.” Northwood Stone & Asphalt, 

Inc., 16 BNA OSHC 2097, 2099, 1993-1995 CCH OSHD ¶ 30,583, p. 42,349 (No. 91-3409, 

1994) (citation omitted), aff’d without published opinion, 82 F.3d 418 (6th Cir. 1996); R & R 

Builders, Inc., 15 BNA OSHC 1383, 1387, 1991-1993 CCH OSHD ¶ 29,531, p. 39,860 (No. 

88-282, 1991). Evidence that an employer allows employees to work in unsafe conditions may 

indicate that an employer‟s safety program is inadequate under § 1926.20(b)(1). E.L. Davis 

Contracting Co., 16 BNA OSHC 2046, 2048, 1993-1995 CCH OSHD ¶ 30,579, p. 42,338 (No. 

92-35, 1994).

On review, Avcon argues that the judge erred in finding that the requirements of the cited 

provision were not met, claiming that the substance of its safety program was communicated to 

Avcon‟s foremen, who in turn discussed the contents with the employees. Avcon misses the 

point. First, Avcon fails entirely to address the judge‟s finding that its written program, which is 

in evidence, was generic and lacked site-specific guidance concerning the actual hazards 

employees could encounter on this worksite. Indeed, our review of the written program shows, 

for example, that it makes no mention of fall hazards from unprotected sides and edges—a 

principal issue at this worksite—and that it requires “everyone on the job” to wear hard hats “at 

all times,” a requirement the evidence shows Avcon routinely ignored. As the judge found, 

“[g]eneral instructions, such as „be safe‟ or „think safe,‟ fall short of the standard‟s 

requirements.” See W.G. Fairfield Co., 19 BNA OSHC 1233, 1237, 2000 CCH OSHD ¶ 32,216, 

p. 48,866 (No. 99-0344, 2000) (finding “superficial” treatment of relevant hazard inadequate to 

establish compliance with safety program requirement), aff’d, 285 F.3d 499 (6th Cir. 2002). 

And, regardless of whether these communications took place, Avcon does not dispute the judge‟s 

findings that Avcon‟s supervisors tolerated and participated in noncompliance with OSHA 

standards and Avcon‟s own safety rules. Indeed, Compliance Officer (“CO”) Angelo Signorile 

testified that throughout the inspection he observed various Avcon supervisors—including Bill 

and Nick Saites, as well as several foremen—in situations where they were exposed to fall 

hazards but did not use fall protection. Similarly, OSHA Assistant Area Director Phil Peist

testified that Bill Saites failed to wear a hardhat during the inspection. Peist also testified that 

Avcon‟s foremen stood by and watched as employees violated OSHA standards, or committed 

violations themselves. 
11

We conclude that Avcon supervisors‟ personal involvement in such pervasive safety 

violations demonstrates a severe weakness in Avcon‟s safety program that further supports a 

finding that Avcon failed to comply with the cited standard. E.L. Davis, 16 BNA OSHC at 

2047-48, 1993-1995 CCH OSHD at pp. 42,337-38 (affirming serious violation of 

§ 1926.20(b)(1) where employees, under direct supervision of company owner, worked in 

excavation without hardhats or safety shoes); Archer-Western Contractors, Ltd., 15 BNA 

OSHC 1013, 1017, 1991-1993 CCH OSHD ¶ 29,317, p. 39,378 (No. 87-1067, 1991) (“A 

supervisor‟s involvement in the misconduct is strong evidence that the employer‟s safety 

program was lax.”), aff’d without published opinion, 978 F.2d 744 (D.C. Cir. 1992). 

Avcon has challenged neither the characterization nor the penalty proposed for this 

citation item. Accordingly, we affirm the violation as serious and assess the $3,000 proposed 

penalty.

IV. Serious Citation 1, Items 8a and 8b: 29 C.F.R. §§ 1926.451(b)(1), (e)(1) (scaffold)

The Secretary cited Avcon for failing to fully plank a scaffold under 29 C.F.R. 

§ 1926.451(b)(1) (Item 8a), and for failing to provide the requisite access to that scaffold under 

29 C.F.R. § 1926.451(e)(1) (Item 8b). The Secretary grouped these items and proposed a penalty 

of $900. The judge affirmed the items as alleged and assessed the proposed penalty.

On review, Avcon argues first that neither of the cited provisions applies because the 

equipment in question was not a “scaffold.” Under 29 C.F.R. § 1926.450(a), a “scaffold” is 

defined as “any temporary elevated platform (supported or suspended) and its supporting 

structure . . . used for supporting employees or materials or both.” 29 C.F.R. § 1926.450(b). 

“Platform” is defined as “a work surface elevated above lower levels . . . .” Id. CO Signorile 

testified that he observed an Avcon employee working from a single wooden plank that was on 

two brackets mounted to a formwork wall, approximately six feet above the floor of an elevator 

shaft. Between the formwork and the plank was an approximately 20-inch gap. 

While this testimony provides only a rudimentary picture of the equipment and its use, 

we find it establishes that the equipment meets the standard‟s definition of a “scaffold.” See 

Armstrong Steel Erectors, Inc., 17 BNA OSHC 1385, 1389, 1995-1997 CCH OSHD ¶ 30,909, 

p. 43,032 (No. 92-262, 1995) (“[W]hether a surface constitutes a scaffold is a question of fact to 

be answered by comparing the definition of a scaffold to the characteristics of the surface in 

question.”). This plank qualifies as a scaffold because it was elevated, served as a work surface 
12

for the Avcon employee observed by the CO, and was also temporary, as it was attached to 

formwork that was installed for a limited purpose and time period. Id. (finding “painters‟ picks” 

were both platforms and scaffolds because they were “working spaces for persons, elevated 

above the surrounding floor” and “were moved frequently during the job and would be removed 

from the worksite when steel erection was completed”).

In arguing that CO Signorile‟s testimony is insufficient to establish that the plank was a 

scaffold, Avcon relies on testimony from Nick Saites that the plank was a “working platform” 

rather than a scaffold, “wasn‟t six feet off the ground,” and that “it was part of the elevator form 

work and the form work had a horizontal member nailed to it and with uprights . . . .” These 

points are unavailing. First, Nick Saites did not explain what he meant by a “working platform”;

he only distinguished this scaffold from other types of scaffolds used at the site that were made 

with metal pipes, frames, and cross braces. Second, although his testimony does differ from that 

of CO Signorile as to the precise height of the plank, Nick Saites indicated only that it was 

positioned at an elevation slightly less than 6 feet. Even if his testimony were credited, it fails to 

establish that the plank was not “elevated.”13 Finally, to the extent the CO testified that the plank 

was supported by two brackets mounted to the formwork, his testimony is consistent with the 

scaffold standard‟s definition of a “form scaffold.”14 Nick Saites‟s testimony, which was both 

that the platform was “part of the elevator form work” and was “a horizontal member nailed to 

[the formwork] and with uprights,” lacks sufficient clarity to be considered inconsistent with the 

CO‟s testimony.15 We therefore find that the equipment constitutes a scaffold under the 

standard.

 

13 Indeed, Commissioner Attwood notes that Nick Saites‟s testimony actually confirms that the 

platform was “elevated” and supports, rather than undermines, the Secretary‟s contention that the 

scaffold standard applies.

14 A “form scaffold” is “a supported scaffold consisting of a platform supported by brackets 

attached to formwork.” 29 C.F.R. § 1926.450(b).

15 Commissioner Attwood notes that Nick Saites did not state that the platform was “a horizontal 

member nailed to [the formwork] with uprights,” but stated that “the form work had a horizontal 

member nailed to it . . . .” (Emphases added.) And when subsequently asked to specifically 

describe how the “platform” “attached to th[e] form work,” Saites testified that “[t]here were 

pieces of wood that were nailed to the form work for the wall, that extended out horizontally, and 

they had vertical posts beneath them and a plank on top.” In Commissioner Attwood‟s view, not 
13

Although the Secretary has established the general applicability of the scaffold standard, 

she has not shown that the cited planking provision applies as alleged under Item 8a. Section 

1926.451(b)(1) requires that “[e]ach platform on all working levels of scaffolds shall be fully 

planked or decked between the front uprights and the guardrail supports . . . .” The provision 

assesses the “fully planked” criteria with respect to the space “between the front uprights and the 

guardrail supports.” Here, the witnesses‟ sketchy descriptions of the scaffold—unaccompanied

by photographs or illustrations—fail to demonstrate the existence or location of uprights or 

guardrail supports. The CO did not mention uprights at all, Nick Saites only cryptically referred

to them in describing the brackets supporting the scaffold, and neither witness‟s testimony 

touched on guardrail supports. Without such evidence, we are unable to find that this scaffold 

was of the type intended to be covered by the cited provision and, therefore, vacate this item.

As to Item 8b, the cited provision prescribes the required means of employee access 

when the scaffold platform is more than two feet above or below a point of access. 16 29 C.F.R. 

§ 1926.451(e)(1). The testimony of both CO Signorile and Nick Saites establishes that the 

scaffold was more than two feet above the floor of the elevator shaft. The access requirements of 

§ 1926.451(e)(1) were therefore applicable. As to whether these requirements were met, the CO 

testified that he observed an Avcon employee climbing “steel flanges [on the formwork] . . . like 

steps” to get onto the scaffold. These flanges were “approximately a half[-]inch wide” or less. 

Avcon does not contend that it provided any of the means of access specified in the

standard. Rather, it argues that there were no Avcon employees attempting to access the 

scaffold, which obviated the need for a ladder or other means of access. Relying on testimony 

from Nick Saites, Avcon asserts that, contrary to CO Signorile‟s testimony, there was no steel in 

the formwork wall except for “snap ties” that go through both the wall and its wooden walers, 

holding the wall together during the concrete pour. According to Nick Saites, these snap ties 

could not have been used for accessing the scaffold because each is only “an eighth[-]inch 

 

only is this testimony not inconsistent with the CO‟s testimony, it actually appears to corroborate 

it. 

16 For any scaffold platform more than two feet “above or below a point of access,” the employer 

must use one of these means of access: “portable ladders, hook-on ladders, attachable ladders, 

stair towers (scaffold stairways/towers), stairway-type ladders (such as ladder stands), ramps, 

walkways, integral pre-fabricated scaffold access, or direct access from another scaffold, 

structure, personnel hoist, or similar surface . . . .” 29 C.F.R. § 1926.451(e)(1).
14

diameter piece of metal.” Based on the judge‟s general credibility finding in favor of the CO and 

her implicit crediting of his testimony over that of Nick Saites on this issue, we find that the 

CO‟s testimony is sufficient to establish the violation. We therefore affirm this item.

Avcon challenged neither the characterization nor the penalty for this item. Accordingly, 

we affirm Item 8b as serious. Having vacated Item 8a, we find that a reduction of the proposed 

penalty amount is appropriate and, therefore, assess a penalty of $450 for this item. See, e.g.,

Manganas Painting Co., 21 BNA OSHC 1964, 2000, 2004-2009 CCH OSHD ¶ 32,908, 

p. 53,414 (No. 94-0588, 2007) (reducing penalty by pro-rata amount after vacating one item in 

each of two grouped items).

V. Citation 1, Item 9; Citation 2, Items 2a through 2c: 29 C.F.R. § 1926.501(b)(1) 

(fall protection)

Background

For the Excelsior II project, Avcon created three types of formwork into which it poured 

the concrete for the building‟s floors, supporting columns, and balconies. Vertical wooden 

“legs” were erected to support layers of horizontal wooden beams called “stringers” upon which 

plywood “decking” was placed. To the already formed interior and exterior columns whose 

plywood forms protruded through the decking from the completed floor below, Avcon added 

more plywood formwork, then placed rebar horizontally on the decking and vertically inside the 

column forms, before pouring concrete onto the decking and into the column forms. Avcon also 

formed and poured concrete for the balconies on each floor when that particular floor was being 

formed and poured. 

This work was performed on a four-day cycle. On the first and second days, Avcon‟s 

carpenters installed the legs, stringers, decks and column forms, while its ironworkers inserted 

the rebar. On day three, Avcon employees poured concrete for 60 percent of the floor, while 

other employees continued framing the remaining portion of the floor, and on day four, 

employees poured concrete for the remainder of the floor. The employees then stripped the 

formwork from the hardened concrete for use on the next level, and installed additional vertical 

legs or “reshores” below the newly poured floor to provide support. These reshores were left in 

place for 28 days or until three floors were poured, whichever was greater. The concrete 

generally achieved 90 percent of its strength during this period. 

On review are four citation items (Serious Citation 1, Item 9, and Willful Citation 2, 

Items 2a through 2c), each of which allege a violation of 29 C.F.R. § 1926.501(b)(1) based on 
15

Avcon‟s failure to provide fall protection for employees erecting and stripping formwork near 

the unguarded perimeters of several floors. Under these citation items, the Secretary alleged a 

total of 24 violative instances, all of which were affirmed by the judge.17 For the following 

reasons, we affirm all 24 instances. 

Discussion

A. Applicability

The Secretary cited Avcon under each item for failing to provide guardrail systems, 

safety net systems, or personal fall arrest systems to “employee[s] on a walking/working surface 

. . . with an unprotected side or edge which is 6 feet (1.8 m) or more above a lower level,” as 

prescribed by 29 C.F.R. § 1926.501(b)(1). On review, Avcon does not dispute that it failed to 

provide the specified fall protection to the employees in question and that it had knowledge of 

the alleged conditions. Avcon does, however, challenge the applicability of the “unprotected 

side or edge” provision of the standard to the cited conditions. Avcon claims that its employees 

were engaged in “leading edge” work and, therefore, a different provision, 29 C.F.R. 

§ 1926.501(b)(2)(i), that specifically addresses employees engaged in leading edge work, would 

apply.18 As defined by the standard, leading edge work occurs at “the edge of a floor, roof, or 

 

17 Under Item 9, there are 16 instances at issue; under Items 2a through 2c, there are eight 

instances. We note that the judge‟s decision incorrectly references instances g and h in Citation 

2, Item 2c as instances a and b.

18 Avcon also contends that the judge erred in affirming the fall protection violations because the 

CO failed “to identify the floor where an alleged violation occurred, the number of employees 

affected and how close an employee was to the edge of the floor.” This argument lacks merit. 

As the judge found, these facts were established by credible testimony from the CO. While 

Avcon‟s witnesses did offer a different interpretation of what the photographic and videotape 

evidence depicted, their testimony did not undermine the CO‟s testimony. Indeed, as the judge 

stated, most of the testimony presented by Avcon‟s witnesses was “based on what the witness 

believed the photo [or videotape] depicted when he viewed the[m] at the trial,” and not on his 

observations at the time these were taken or recorded. The judge also found that the CO‟s 

testimony “was corroborated by the statements of other compliance officers,” and the conditions 

depicted on a videotape recorded by CO Richard Brown were “confirmed by on-site visits and 

interviews.” Although Avcon argues that the CO‟s testimony relative to employee exposure was 

unreliable because he “made his observations . . . from 100 to 400 feet,” it cites no specific 

evidence to support its claim. See A.L. Baumgartner, 16 BNA OSHC 1995, 2001, 1994 CCH 

OSHD ¶ 30,554, pp. 42,276-77 (No. 92-1022, 1994) (rejecting the employer‟s arguments 

regarding the CO‟s alleged flawed observations and testimony in the absence of specific rebuttal 

evidence).
16

formwork for a floor or other walking/working surface (such as the deck) which changes 

location as additional floor, roof, decking, or formwork sections are placed, formed or 

constructed.” 29 C.F.R. § 1926.500(b) (emphasis added). As discussed below, we conclude that 

the unprotected side or edge provision applies to some of the cited instances, and the leading 

edge provision applies to the others. 

1. Unprotected Side or Edge Instances

Based on our review of the record, we find that in 19 of the 24 cited instances, the 

employees at issue were covered by the cited provision, which addresses fall protection from an 

unprotected side or edge. Contrary to Avcon‟s contention, none of the activities these employees 

were engaged in can be considered leading edge work. First, the evidence shows that the 

employees referenced in Citation 1, Item 9 (instances a, c, d, h, i, p, q), and in Citation 2, Item 2a 

(instances c and e) and Item 2c (instance g), were stripping formwork and removing excess 

concrete. Although Avcon maintains that leading edge work is not complete until after “all 

formwork and temporary components have been removed,” the judge found this assertion to be 

inconsistent with the plain language of the “leading edge” definition set out in § 1926.500(b). 

We agree, as the reach of this provision is clear. By definition it is limited to circumstances in 

which the walking/working surface “changes location as additional floor, roof, decking, or

formwork sections are placed, formed or constructed.” It does not extend to the formwork 

stripping and reshore removal at a completed edge that was underway in the circumstances cited 

here. 29 C.F.R. § 1926.500(b); see Unarco Commercial Prods., 16 BNA OSHC 1499, 1502, 

1993-95 CCH ¶ 30,294, p. 41,732 (No. 89-1555, 1993) (stating “the test for the applicability of 

any statutory or regulatory provision looks first to the text and structure of the statute or 

regulations whose applicability is questioned”) (citations omitted). Thus, we find that the 

employees at issue under these instances were not engaged in constructing a leading edge—they 

were working at an unprotected edge and, therefore, covered by the cited provision, 

§ 1926.501(b)(1). 

Second, the evidence shows that the employees referenced in Citation 1, Item 9 

(instances b, f, g, and k) were setting up column forms, storing materials, installing steel stringers 

for a yet-to-be constructed balcony, and framing a balcony; and the employees in Citation 2, 

Item 2a (instance d), Item 2b (instance a), and Item 2c (instance h), were bending protruding 

rebar, picking up metal brackets, and picking up stripped lumber and steel brackets. Although 
17

these activities occurred at the edge of either a floor or balcony, none of the employees were 

engaged in advancing the edge of the surface on which they were working. Rather, the record 

shows that these activities only took place after the surface had been fully poured. See 29 C.F.R. 

§ 1926.500 (noting that “[a] leading edge is considered to be an „unprotected side and edge‟ 

during periods when it is not actively and continuously under construction”). See generally A.J. 

McNulty & Co., Inc., 19 BNA OSHC 1121, 1130, 2000 CCH OSHD ¶ 32,209, p. 48,810 (No. 

94-1758, 2000) (finding a leading edge activity only where “a piece [of the leading edge] is 

actually being installed”), aff’d, 283 F.3d 328 (D.C. Cir. 2002). Thus, we find that the 

employees at issue under these instances were also not constructing a leading edge but rather 

were working at an unprotected edge and, therefore, covered by § 1926.501(b)(1).

Finally, the evidence shows that the employees referenced in Citation 1, Item 9 (instance 

j), and in Citation 2, Item 2a (instance b), were standing on the seventh floor—a completed 

surface—and were engaged in framing work as part of the process of constructing the eighth 

floor above them. Although these employees were, in a technical sense, “constructing a leading 

edge,” they were not performing their work on the same level as the leading edge. Rather, these

employees were working from the completed floor below “on a walking/working 

surface . . . with an unprotected side or edge.” Under these circumstances, their work is covered 

by the literal wording of the cited provision, and it would be illogical to apply the leading edge 

provision. See Manganas Painting Co., 21 BNA OSHC at 1977, 2004-09 CCH OSHD at p. 

53,394 (noting principle of statutory interpretation that disfavors absurd results) (citation 

omitted). Thus, we find that the employees at issue under these instances were covered by the 

unprotected side and edge provision, § 1926.501(b)(1).

Accordingly, the conditions alleged in 19 of the 24 instances at issue under these citation 

items were properly cited as violations of the unprotected side or edge provision of the fall 

protection standard, § 1926.501(b)(1).

2. Leading Edge Instances

We find that the remaining five instances at issue all involve employees who were 

engaged in constructing a leading edge. Specifically, the record shows that the employees 

referenced in Citation 1, Item 9 (instances m and n), and in Citation 2, Item 2a (instance a) were 
18

framing floor sections, and, in the case of instance n, also “setting up” or forming a balcony.19 

Because the edge of the floor or formwork changed location as these employees performed their 

work, their activities fall within the definition of leading edge work. Similarly, some of the 

employees referenced in Citation 1, Item 9 (instances l and o) were framing the floor or the deck 

and, therefore, were also performing leading edge activities. Therefore, the fall protection 

requirements of § 1926.501(b)(1) cannot apply to these instances. Rather, the nearly identical 

fall protection requirements of the leading edge provision, § 1926.501(b)(2)(i), cover these 

employees.20 For the following reasons, we find it appropriate to amend the pleadings, sua 

sponte, to allege under each of these five instances a violation of this more specifically 

applicable provision. See N.Y. State Elec. & Gas Corp. v. Sec’y of Labor, 88 F.3d 98, 104 (2d 

Cir. 1996) (stating that FRCP 15(b) “requires no motion or formal amendment of the pleadings”) 

(citing Howell v. Cataldi, 464 F.2d 272, 275 (3d Cir. 1972)). 

The Commission has recognized that amendments, including those made sua sponte, 

“ „are routinely permissible where they merely add an alternative legal theory, but do not alter 

the essential factual allegations contained in the citation . . . .‟ ” N.Y. State Elec. & Gas Corp., 

17 BNA OSHC 1129, 1132, 1993-95 CCH OSHD ¶ 30,745, p. 42,709 (No. 91-2897, 1995)

(citation omitted), aff’d in pertinent part, 88 F.3d at 104. Amendments under FRCP 15(b)(1)21

 

19 Unlike instances g and k under Citation 1, Item 9, discussed above, there is no evidence with 

regard to instance n to indicate that the floor had been poured when this formwork was being set 

up. Indeed, Nick Saites testified that “the balconies [were] framed along with the deck as 

[Avcon employees were] going along.”

20 Section 1926.501(b)(2)(i) provides:

(i) Each employee who is constructing a leading edge 6 feet (1.8 m) or more 

above lower levels shall be protected from falling by guardrail systems, safety net 

systems, or personal fall arrest systems . . . .

21 This rule provides: 

(b) Amendments During and After Trial.

(1) Based on an Objection at Trial. If, at trial, a party objects that evidence is 

not within the issues raised in the pleadings, the court may permit the 

pleadings to be amended. The court should freely permit an amendment 

when doing so will aid in presenting the merits and the objecting party 

fails to satisfy the court that the evidence would prejudice that party‟s 

action or defense on the merits. The court may grant a continuance to 

enable the objecting party to meet the evidence.
19

are allowed “ „[e]ven if a party objects to the use of evidence in support of an unpleaded charge 

. . . [provided] the objecting party does not suffer prejudice.‟ ” Nuprecon LP dba Nuprecon 

Acquisition, LP, 22 BNA OSHC 1937, 1938-1939, 2004-09 CCH OSHD ¶ 33,034, p. 54,386

(No. 08-1037, 2009) (emphasis added) (citation omitted); see Morrison-Knudsen Co./Yonkers 

Contracting Co., 16 BNA OSHC 1105, 1113, 1993-95 CCH OSHD ¶ 30,048, p. 41,268 (No. 

88-572, 1993) (rejecting employer‟s claim that sua sponte amendment to an uncited standard 

“deprived the employer of a defense, i.e., the inapplicability of the cited standard, and thereby 

produced prejudice to the employer”); see also A.L. Baumgartner Constr. Inc., 16 BNA OSHC 

1995, 1997, 1994 CCH OSHD ¶ 30,554, p. 42,272 (No. 92-1022, 1994) (upholding post-hearing 

sua sponte amendment by the judge where no prejudice shown). In determining whether a party 

has been prejudiced, the Commission looks “at whether the party had a fair opportunity to defend 

and whether it could have offered any additional evidence if the case was retried.” Nuprecon, 22 

BNA OSHC at 1939, 2004-09 CCH OSHD at p. 54,386 (citations omitted). 

Based on our review of the record here, we find that amending to the more specifically 

applicable standard would not implicate different facts or prejudice Avcon. The record shows 

that the material facts in each instance remain substantially the same. Avcon plainly admitted as 

much in its briefs, both before the Commission and the judge, noting that “the cited references 

[to the activities in the citations], by their very terms, related to leading edge work . . . .” 

(Emphasis added.) Moreover, these are the facts that the parties tried and that Avcon argued all 

along supported the applicability of the leading edge standard. The nearly identical requirements 

of the unprotected edge standard and the leading edge standard—employees “shall be protected 

from falling” by the use of conventional fall protection—further militate against a finding of 

prejudice. See Dole v. Arco Chem. Co., 921 F.2d 484, 488 (3rd. Cir. 1990) (finding no prejudice 

where amended complaint “is based upon facts and circumstances which do not differ 

significantly from those underlying the Secretary‟s original [complaint]” and “[t]he evidence 

required to meet [the] new allegations is substantially similar to that which was originally 

required”). 

And because Avcon would not acquire any new affirmative defenses under the amended 

citations, it lost no opportunity to present any defense-related evidence beyond that which it

already introduced. See Morrison-Knudsen, Inc., 16 BNA OSHC at 1114, 1993 CCH OSHD at 

p. 41,269 (finding no prejudice, in part, because the defenses raised in the employer‟s post-
20

hearing brief and on review had equal application to the amended citation). Indeed, the primary 

defense Avcon raised to the original citations—infeasibility—has equal applicability to the 

leading edge standard. Although § 1926.501(b)(1), unlike § 1926.501(b)(2)(i), does not contain 

specific language regarding the infeasibility defense, its applicability to Subpart M as a whole is 

well-established. See, e.g., A.J. McNulty & Co., Inc., 19 BNA OSHC at 1129, 2000 CCH OSHD 

at p. 48,810. 

Accordingly, we amend sua sponte under FRCP 15(b)(1) Citation 1, Item 9 (instances l,

m, n, and o), and Citation 2, Item 2a (instance a) to allege violations of § 1926.501(b)(2)(i).

B. Infeasibility

On review, Avcon contends that the judge erred in rejecting its affirmative defense of 

infeasibility. Before turning to the merits of its defense, we first address Avcon‟s challenges to 

the judge‟s rulings on two discovery requests regarding evidence of infeasibility—one filed by 

the Secretary, which the judge granted, and one by Avcon, which she denied. For the following 

reasons, we reject Avcon‟s challenges and affirm the judge‟s rulings.

1. Secretary’s Request for Rebuttal Testimony

On April 7, 1999, the judge issued a scheduling order directing the parties to provide a 

joint prehearing statement by May 17, 1999, that included a list of all expert witnesses to be 

called at the hearing. In response, only Avcon listed an expert witness, who it identified as Leo 

DeBobes. During the hearing, which commenced in May 1999, the Secretary announced for the 

first time her intention to call an expert witness to rebut Avcon‟s infeasibility defense. Avcon 

objected to the Secretary‟s request and asked to depose the witness if the judge permitted the 

testimony. On September 23, 1999, the judge issued an order: (1) directing the Secretary to 

disclose the expert witness‟s identity if the “expert is being called solely to rebut testimony 

offered by [Avcon‟s] fact witnesses with regard to its affirmative defenses”; and (2) permitting 

Avcon to introduce surrebuttal evidence “[i]f any new issue is raised during the course of this 

witness‟s testimony.”22 The Secretary subsequently revealed to Avcon the identities of her two 

rebuttal witnesses, Matthew Burkart and Daniel Paine, and Avcon deposed both of them on 

 

22

 This order was a clarification of an order the judge issued on the matter the previous day, 

September 22, 1999.
21

November 9 and 10, 1999. Burkart and Paine, accepted by the judge as experts, testified at the 

hearing on December 6 and 8, 1999.

On review, Avcon asserts that the judge‟s decision to allow the Secretary‟s rebuttal 

witnesses to testify impaired its ability to prepare and defend its claim that compliance with the 

cited standards was infeasible. This assertion lacks merit. Although Avcon initially objected to 

the judge‟s decision to allow the Secretary‟s rebuttal testimony by claiming prejudice, it did not 

request a continuance, which would have remedied any prejudice by providing Avcon the time 

needed to further prepare its defense. Because Avcon failed to seek a continuance, its claim of 

prejudice is unavailing. See United Cotton Goods, Inc., 10 BNA OSHC 1389, 1390, 1982 CCH 

OSHD ¶ 25,928, p. 32,454 (No. 77-1894, 1982) (finding any prejudice to employer could easily 

have been cured by requesting a continuance) (discussing Brown & Root, Inc., Power Plant 

Division, 8 BNA OSHC 1055, 1059, 1980 CCH OSHD ¶ 24,275, p. 29,569 (No. 76-3942, 

1980)). 

We also find no merit in Avcon‟s claim that it was deprived of a reasonable opportunity 

to present its case because the Secretary‟s two rebuttal witnesses were allowed to testify on 

issues beyond the scope of Avcon‟s defense. As discussed below, the Secretary‟s rebuttal 

witnesses raised no new issues in their testimony, addressing only issues that had been raised by 

Avcon‟s own witnesses. Nor has Avcon explained how any resulting prejudice was not cured by 

it having been given an opportunity to depose the Secretary‟s witnesses nearly a month before 

their hearing testimony. “Prejudice arises where the moving party achieves an unfair advantage 

or where the opposing party is deprived of a fair opportunity to present evidence.” Bland 

Construction Co., 15 BNA OSHC 1031, 1042-43, 1991 CCH OSHD ¶ 29,325, p. 39,402 (No. 

87-922, 1991) (citing Dole v. Arco Chemical Co., 921 F.2d at 488). Neither of those 

circumstances was present here. Avcon‟s only specific claim of prejudice—that the judge 

allowed the Secretary to introduce exhibits that were not disclosed in pretrial submissions, but 

were “handed to [Avcon‟s] counsel just prior to disclosure at trial”—also fails because Avcon 

not only had advance notice of the Secretary‟s theories from earlier depositions, it also had an

opportunity to cross-examine these witnesses regarding the exhibits introduced during their 

testimony. See Brown & Root, Inc., Power Plant Division, 8 BNA OSHC at 1059, 1980 CCH 

OSHD at p. 29,569 (finding Secretary‟s delay in making amendment does not warrant its denial 

because opposing party had adequate opportunity to prepare and present its defense) (citations 
22

omitted); cf. Reed Engineering Group Inc., 21 BNA OSHC 1290, 1291, 2004-09 CCH OSHD 

¶ 32,862, p. 53,088 (No. 02-0620, 2005) (remanding case to allow employer additional time to 

conduct discovery where Commission found that judge‟s granting of Secretary‟s amendment 

prejudiced employer). Under these circumstances, there is no basis upon which to overturn the 

judge‟s decision to allow the Secretary‟s rebuttal witnesses to testify.

2. Avcon’s Request for Surrebuttal Testimony

In a scheduling order issued to the parties on October 21, 1999, the judge stated that she 

would allow surrebuttal testimony only if: (1) the Secretary‟s rebuttal witnesses raise new issues 

broadening the scope of the case; or (2) any surrebuttal testimony could discredit the Secretary‟s 

rebuttal testimony. On November 10, 1999, Avcon sent a letter to the judge stating its intent to 

offer surrebuttal testimony by Louis Nacamuli, a professional engineer. In a subsequent order, 

the judge reiterated that she would only allow surrebuttal testimony if the Secretary‟s witnesses

raise new issues and stated her intent to control the remainder of the trial so as not to permit any 

new issues. The Secretary then notified the judge by letter that she objected to allowing Avcon 

to present surrebuttal testimony. At the hearing, after one of the Secretary‟s rebuttal witnesses 

testified, Avcon renewed its surrebuttal request by asserting that the witness‟s testimony had 

raised new issues. The judge disagreed and rejected Avcon‟s request. 

Avcon now asserts that “justice was not served” by the judge‟s denial of its request to 

allow surrebuttal testimony because the judge‟s rejection of its infeasibility defense was “based 

entirely on the [Secretary‟s] rebuttal [evidence].” This argument finds no support in the record. 

The judge made a specific finding that the testimony of Avcon‟s proffered expert, DeBobes, did 

not establish Avcon‟s infeasibility defense which, as discussed below, was Avcon‟s burden. 

Furthermore, the topics on which Avcon requested an opportunity to present surrebuttal were not 

“new,” but involved issues that had already been addressed by its witnesses. See Bowman v. 

General Motors Corp., 427 F. Supp. 234, 240 (E.D. Pa. 1977) (finding that a trial judge may 

limit rebuttal “testimony to that which is precisely directed to rebutting new matter or new 

theories . . . .”). Under these circumstances, there is no basis upon which to overturn the judge‟s 

decision to disallow surrebuttal testimony.

3. Merits of Infeasibility Defense

Avcon alleges that it was infeasible to provide the required fall protection for each of the 

instances listed in Serious Citation 1, Item 9 and Willful Citation 2, Items 2a through 2c for two 
23

main reasons. First, it contends that the use of safety nets and fall arrest and restraint systems 

was infeasible because the plans and specifications for the project did not include structural 

embedments to allow for the installation of nets, and the form work and plywood decks were not 

designed to anchor fall arrest and restraint systems. Second, as a practical matter, Avcon 

maintains that embedding anchors in the concrete was not possible because the concrete was not 

sufficiently cured to support the use of safety nets, fall arrest or restraint systems. 23 Avcon 

further claims that it could only use guardrail systems in certain areas of the worksite. 

Avcon‟s arguments implicate two related concepts of infeasibility. The first is the 

affirmative defense of infeasibility which, under Commission precedent, requires an employer to 

show that: “(1) the means of compliance prescribed by the applicable standard would have been 

infeasible, in that (a) its implementation would have been technologically or economically 

infeasible or (b) necessary work operations would have been technologically or economically 

infeasible after its implementation, and (2) there would have been no feasible alternative means 

of protection.”

24

 V.I.P. Structures, Inc., 16 BNA OSHC 1873, 1874, 1993-95 CCH OSHD 

¶ 30,485, p. 42,109 (No. 91-1167, 1994) (citations omitted). 

The second concept of infeasibility implicated here is an exception to the fall protection 

requirements of the leading edge standard. Under 29 C.F.R. § 1926.501(b)(2)(i), an employer is 

permitted to “develop and implement a fall protection plan which meets the requirements of 

paragraph (k) of § 1926.502,” when the employer shows “that it is infeasible or creates a greater 

hazard to use” guardrail systems, safety net systems, or personal fall arrest systems.25 29 C.F.R. 

 

23 Although Avcon also argues that use of these fall protection methods would have exposed its 

employees to a greater hazard, this issue was not included in our briefing notice and, therefore, 

we decline to address it here. See Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1535 n.4, 1991-

93 CCH OSHD ¶ 29,617, p. 40,097 n.4 (No. 86-360, 1992) (consolidated) (“Ordinarily the 

Commission does not decide issues that are not directed for review.”). 

24 Because Avcon does not argue that compliance with the fall protection standard would cause a 

“severe adverse economic effect,” we consider its claims as arising solely in the context of 

technological infeasibility. See, e.g., State Sheet Metal Co., 16 BNA OSHC 1155, 1161, 1993-

95 CCH OSHD ¶ 30,042, p. 41,227 (No. 90-1620, 1993) (consolidated) (noting that compliance 

was not economically infeasible where employer failed to demonstrate that complying with 

standard would have a “severe adverse economic effect”). 

25 This provision notes that: 
24

§ 1926.501(b)(2)(i). For the following reasons, we find that Avcon has not established the 

affirmative defense, nor has it proved the applicability of the exception to the leading edge 

standard. 

To prove infeasibility, Avcon relied solely on the testimony of a number of lay witnesses, 

all of whom were its own employees, and on the testimony of DeBobes, the company‟s proffered

expert witness. The judge found that Avcon‟s employee witnesses were ill-equipped to address 

the technical questions surrounding the conditions at the worksite. We agree with her decision to 

disregard this testimony. The record shows that the employees were clearly “unfamiliar with 

OSHA‟s fall protection standards” and their “opinions were offered without any supporting 

scientific or professional data or tests.” See Peterson Bros. Steel Erection Co., 16 BNA OSHC 

1196, 1204, 1993-95 CCH OSHD ¶ 30,052, p. 41,304 (No. 90-2304, 1993) (stating that the 

Commission “cannot accept unsubstantiated conclusions as proof”), aff’d, 26 F.3d 573 (5th Cir. 

1994). 

Nor can Avcon rely on the testimony of DeBobes to establish infeasibility. We agree 

with the judge‟s conclusion that DeBobes “has no specialized knowledge . . . relevant to this 

case: the feasibility of fall protection on high-rise concrete construction projects.” Indeed, 

DeBobes testified that: (1) he had worked on only one high-rise poured-in-place concrete 

construction project—a nuclear plant project that took place from 1977 to 1981; (2) he had never 

before designed a fall protection system or assessed the structural integrity of anchorage points to 

be used for fall protection on a multi-story poured-in-place concrete structure; and (3) he did not 

know the type of concrete Avcon used at the Excelsior II worksite. See generally United States 

Steel Corp. v. OSHRC, 537 F.2d 780, 783 (3d Cir. 1976) (“Expert testimony need not be 

accepted even if uncontradicted.”). Given these deficiencies, we find that the record supports the 

judge‟s conclusion that DeBobes‟s testimony “does not establish the affirmative defense of 

 

There is a presumption that it is feasible and will not create a greater hazard 

to implement at least one of the above-listed fall protection systems. 

Accordingly, the employer has the burden of establishing that it is 

appropriate to implement a fall protection plan which complies with 

§ 1926.502(k) for a particular workplace situation, in lieu of implementing 

any of those systems. 

29 C.F.R. § 1926.501(b)(2)(i) (note). 
25

infeasibility and/or impossibility.” Indeed, DeBobes‟s testimony would not even make out a 

prima facie case of infeasibility, which is Avcon‟s burden whether it claims infeasibility as an 

affirmative defense to the unprotected side or edge provision, or as an exception to the leading 

edge provision of the fall protection standard. A.J. McNulty & Co., Inc., 19 BNA OSHC at 

1129-34, 2000 CCH OSHD at pp. 48,810-15 (imposing burden of proof on employer to establish 

infeasibility); Modern Continental/Obayashi v. OSHRC, 196 F.3d 274, 282 (1st Cir. 1999) 

(stating that “ „where a specific duty standard contains the method by which the work hazard is 

to be abated, the burden of proof is on the employer to demonstrate that the remedy contained in 

the regulation is infeasible under the particular circumstances‟ ”); Kaspar Wire Works, Inc., 18 

BNA OSHC 2178, 2194, 2000 CCH OSHD ¶ 32,134, p. 48,420 (No. 90-2775, 2000) (“The 

Commission has repeatedly held . . . that „the party claiming the benefit of an exception to the 

requirements of a standard has the burden of proof of its claim.‟ ”) (citations omitted), aff’d, 268 

F.3d 1123 (D.C. Cir. 2001).26 

Therefore, we conclude that Avcon failed to establish that the use of fall protection at the 

Excelsior II worksite was infeasible under either the affirmative defense or the standard‟s 

exception. Accordingly, we affirm Citation 1, Item 927 and Citation 2, Items 2a through 2c, as 

amended supra. 

C. Willful Characterization

On review, Avcon challenges the judge‟s decision to affirm the Secretary‟s willful 

characterization of Citation 2, Items 2a through 2c. Specifically, Avon contends that the test for 

willfulness in the Third Circuit, to which this case could be appealed, places a higher burden of 

proof on the Secretary, which the judge did not consider and the Secretary failed to meet. Avcon 

also argues that the company simply had a “good faith disagreement with OSHA” regarding the 

 

26 We note that even if Avcon had established a prima facie case, we agree with the judge‟s 

finding that the testimony of the Secretary‟s witnesses, Burkart and Paine, which showed that at 

least one of the required means of fall protection would have been feasible, “was very credible 

and . . . support[ed]” rejecting Avcon‟s infeasibility defense. 

27

 We affirm the judge‟s characterization of Avcon‟s failure to provide prescribed fall protection 

under Citation 1, Item 9 as serious, noting that Avcon has not challenged the characterization of 

this item on review. See KS Energy Servs. Inc., 22 BNA OSHC 1261, 1268 n.11, 2004-09 CCH 

OSHD ¶ 32,958, p. 53,925 n.11 (No. 06-1416, 2008) (affirming the alleged characterization 

where the issue was not in dispute). 
26

interpretation and feasibility of the fall protection standard, which essentially negates any finding 

of willfulness. We reject both of these arguments and affirm these citation items as willful. 

“The hallmark of a willful violation is the employer‟s state of mind at the time of the 

violation—an „intentional, knowing, or voluntary disregard for the requirements of the Act or . . . 

plain indifference to employee safety.‟ ” Kaspar Wire Works, Inc., 18 BNA OSHC at 2181, 2000 

CCH OSHD at p. 48,406 (citation omitted). “A willful violation is differentiated by heightened 

awareness of the illegality of the conduct or conditions and by a state of mind of conscious 

disregard or plain indifference . . . .” Hern Iron Works, Inc., 16 BNA OSHC 1206, 1214, 

1993-95 CCH OSHD ¶ 30,046, p. 41,257 (No. 89-433, 1993). This state of mind is evident 

where “the employer was actually aware, at the time of the violative act, that the act was 

unlawful, or that it possessed a state of mind such that if it were informed of the standard, it 

would not care.” AJP Constr. Inc. v. Sec’y of Labor, 357 F.3d 70, 74 (D.C. Cir. 2004) (emphasis 

and citations omitted). A willful characterization is not justified, however, if an employer has 

“ „a good faith, albeit mistaken, belief that particular conduct is permissible.‟ ” Manganas 

Painting Co., 21 BNA OSHC at 1991, 2004-09 CCH OSHD at p. 53,406 (citation omitted).

Contrary to Avcon‟s assertion, both the Commission and the Third Circuit have held that 

the Third Circuit‟s definition of “willful” differs little from that used by the Commission and 

most other circuits. See George Campbell Painting Corp., 17 BNA OSHC 1979, 1982, 1995-97 

CCH OSHD ¶ 31,293, p. 43,978 (No. 93-984, 1997) (quoting Universal Auto Radiator Manuf. 

Co. v. Marshall, 631 F.2d 20, 23 (3d Cir. 1980) (holding that there is little, if any, difference 

between the approaches of the Third Circuit and other circuits); see also Frank Irey, Jr., Inc. v. 

OSHRC, 519 F.2d 1200, 1207 (3d Cir. 1975) (holding that a willful violation is characterized by 

a “deliberate [flouting] of the Act” or by “an obstinate refusal to comply”). Thus, we reject 

Avcon‟s claim that the Third Circuit‟s test for willfulness is inconsistent with the Commission‟s 

test.

Turning to the judge‟s analysis, we find that the evidence supports her characterization of 

these items as willful. As the judge found, Avcon had a heightened awareness of OSHA‟s 

standards requiring fall protection. This awareness was based on (1) discussions that CO 

Signorile had with the Saiteses and other supervisory personnel, and (2) both Bill and Nick 

Saites‟s awareness of OSHA‟s fall protection requirements from earlier OSHA inspections of 

other Saites-owned companies‟ worksites. Indeed, the record shows that during the first few 
27

days of his inspection of the Excelsior II worksite in October 1997, CO Signorile personally 

explained the requirements of OSHA‟s fall protection standard to the Saiteses and other Avcon 

supervisors—Dominic Paniscotti and Bob Gallagher, who were foremen, Frank Cataliato, the 

carpenter shop steward, and Frank Georgiana, the general carpenter foreman at the worksite. See 

Pentecost Contracting Corp., 17 BNA OSHC 1953, 1955, 1995-97 CCH OSHD ¶ 31,289, p. 

43,964-65 (No. 92-3788, 1997) (finding Secretary established heightened awareness by CO‟s 

testimony that he reviewed the excavation standards with employer‟s supervisors). In fact, 

during an early conversation with Nick Saites, CO Signorile provided him with a copy of the fall 

protection standard, its preamble, and handouts pertaining to fall protection equipment. At that 

time, Nick Saites admitted that he was familiar with the need for employees to be tied off. And 

Signorile testified that during a subsequent conversation, foreman Gallagher admitted that he and 

other employees were not wearing fall protection and that he should have told the employees to 

wear fall protection. 

The record also demonstrates that the Saiteses were well aware of the fall protection 

standard‟s requirements based on their prior work experience and previous interactions with 

OSHA. See MJP Constr. Co., 19 BNA OSHC 1638, 1648, 2001 CCH OSHD ¶ 32,484, p. 

50,308 (No. 98-0502, 2001) (finding supervisors are chargeable with knowledge of the 

standard‟s requirements based on their prior work experience, wherever that experience 

originates), aff’d, 56 F. App‟x 1 (D.C. Cir. 2003) (unpublished). OSHA Assistant Area Director 

Peist testified that in 1986, he discussed fall protection with Nick Saites during his inspection of 

Cornicon, a Saites-owned company. And CO Brian Donnelly stated that he had similar 

discussions with the Saiteses during his December 1990 inspection of Saites-owned Astro 

Concrete‟s worksite. Both Cornicon and Astro Concrete were cited for serious violations of the 

fall protection requirements under 29 C.F.R. §§ 1926.105(a) and 1926.500(d)(1) (1979).28

 

28 Avcon asserts that the judge erred in relying on the prior citation history of other Saites-owned 

companies because these earlier citations were based on different fall protection standards than 

the one cited here. Although the language found in 29 C.F.R. § 1926.105(a) and 29 C.F.R. 

§ 1926.500(d)(1) (1979) is not identical to that in the cited provision, these provisions are 

substantially similar and, therefore, were properly considered by the judge in assessing 

willfulness. See Dakota Underground Inc. v. Sec’y of Labor, 200 F.3d 564, 567 (8th Cir. 2000) 

(stating that “[p]ast violations of similar, but not necessarily identical, regulatory provisions” 

show an employer‟s knowledge as to the regulation‟s requirements and the consequences of a 
28

As CO Signorile testified, despite this heightened awareness, Avcon management and 

supervisory personnel consciously disregarded OSHA‟s fall protection requirements on the three 

dates referenced under these citation items when both of the Saiteses as well as Avcon 

supervisors either observed, or themselves participated in, numerous fall protection violations.

See Calang Corp., 14 BNA OSHC 1789, 1791, 1793-94, 1987-90 CCH OSHD ¶ 29,080, 

p. 38,871 (No. 85-0319, 1990) (finding violation willful when employer “ignore[d] OSHA‟s 

requirements after the inspector correctly explained them to him”) (citing Donovan v. Williams 

Enterprises, Inc., 744 F.2d 170, 180 (D.C. Cir. 1984) (finding employer‟s failure to heed CO‟s 

“warnings and advice” establishes “ „intentional disregard of‟ and „plain indifference to‟

OSHA‟s [requirements]”)). This knowledge, conduct, and inaction on the part of Avcon‟s 

management is imputable to Avcon. See Conie Constr. Co., 16 BNA OSHC 1870, 1872, 1993-

95 CCH OSHD ¶ 30,474, p. 42,090 (No. 92-0264, 1994) (imputing foreman‟s knowledge of the 

violative condition to the company), aff’d, 73 F.3d 382 (D.C. Cir. 1995); Pride Oil Well Serv., 15 

BNA OSHC 1809, 1814, 1991-93 CCH OSHD ¶ 29,807, p. 40,583 (No. 87-692, 1992) (“The 

actual or constructive knowledge of the employer‟s foreman or supervisor can be imputed to the 

employer.”). 

Finally, Avcon‟s contention that its failure to provide fall protection for its workers was 

based on a mere misunderstanding with OSHA finds no support in this record. The standards 

cited here required Avcon to provide fall protection to its employees, many of whom were 

working at heights above 60 feet. The only exception to this requirement—a showing that the use 

of such protection was infeasible—was not established here. Not only did Avcon fail to prove 

infeasibility, the record shows that it did not make a good faith attempt to provide an alternative 

method of protecting its employees against falls based on its alleged belief that fall protection 

was not feasible. Indeed, despite the life-threatening injuries that its employees would almost 

certainly have sustained if they had fallen from the heights that existed at this worksite, Avcon 

failed to take any serious steps toward compliance. It did not preplan for the use of fall 

 

failure to comply) (citations omitted); see also Blue Ridge Erectors v. OSHRC, 261 F. App‟x 

408, 412 (3d Cir. 2008) (unpublished) (finding that where employer had been previously cited 

for noncompliance with the steel erection standard applicable before 2001, it was not 

unreasonable for Commission to conclude that employer showed plain indifference by failing to 

comply with the subsequently promulgated steel erection standard).
29

protection, or consult with a professional engineer or any other knowledgeable person regarding 

safety options, other than inquiring into the cost of safety nets. Nor did Avcon seek permission 

from the project engineer on this site to embed anchorages or other fall protection equipment. In 

light of this, we cannot find that Avcon‟s alleged belief, that fall protection was infeasible, was 

held in good faith. Indeed, this evidence further supports our conclusion that Avcon had a 

cavalier attitude towards employee safety. See Valdak, 17 BNA OSHC 1135, 1139, 1993-95

CCH OSHD ¶ 30,759, p. 42,741 (No. 93-0239, 1995), aff’d, 73 F.3d 1466 (8th Cir. 1996). For 

all of these reasons, we affirm the judge‟s characterization of Items 2a through 2c as willful.

D. Penalties

Avcon has not challenged the penalty amounts proposed by the Secretary for Serious 

Citation 1, Item 9 and Willful Citation 2, Items 2a through 2c. Based on our review of the record 

and the penalty factors set forth under § 17(j) of the Act, 29 U.S.C. § 666(j), we find that the 

$3,000 proposed penalty for Serious Citation 1, Item 9, and the $70,000 proposed grouped 

penalty for Willful Citation 2, Items 2a through 2c, are appropriate here. See generally KS 

Energy Servs. Inc., 22 BNA OSHC 1261, 1268 n.11, 2004-09 CCH OSHD ¶ 32,958, p. 53,925 

n.11 (No. 06-1416, 2008) (assessing proposed penalty amount where issue not in dispute on 

review).

CONCLUSIONS OF LAW 

The judge‟s ruling granting the Secretary‟s motions to amend the complaints to add Bill 

and Nick Saites as parties more than six months after the occurrence of the violations is vacated, 

and these two individuals are dismissed from the case as respondents. We affirm the judge‟s 

rulings on two motions regarding rebuttal and surrebuttal testimony, and affirm her rejection of 

Avcon‟s alleged infeasibility defense regarding the fall protection violations. In addition, we 

amend Citation 1, Item 9 (instances l, m, n, and o), and Citation 2, Item 2a (instance a) to allege 

violations of 29 C.F.R. § 1926.501(b)(2)(i). Finally, we conclude that Avcon committed willful 

violations of 29 C.F.R. §§ 1926.501(b)(1), (b)(2)(i), and serious violations of 29 C.F.R. 

§§ 1910.1200(e)(1), (h)(1), 1926.20(b)(1), 1926.451(e)(1), and 1926.501(b)(1), (b)(2)(i). 
30

ORDER

We affirm Serious Citation 1, Items 1a and 1b, 2, 8b, and 9, and we vacate Item 8a. We 

also affirm Willful Citation 2, Items 2a through 2c. We assess a total penalty of $77,350, as 

follows: Serious Citation 1, Items 1a and 1b - $900 (grouped); Item 2 - $3,000; Item 8b - $450; 

and Item 9 - $3,000; Willful Citation 2, Items 2a through 2c - $70,000 (grouped). 

SO ORDERED.

 

/s/_____________________________

Thomasina V. Rogers

Chairman

/s/_____________________________ 

Horace A. Thompson III 

Commissioner 

/s/_____________________________ 

Cynthia L. Attwood

Dated: April 5, 2011 Commissioner
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SECRETARY OF LABOR, 

Complainant, 

v. DOCKET NOS. 98-0755 and 98-1168 

AVCON, INC., VASILIOS SAITES, and 

NICHOLAS SAITES, 

Respondents. 

Appearances 

William J. Staton, Esq. Paul A. Sandars, III, Esq. 

Noelle Fischer, Esq. Lum, Danzis, Drasco, Positan & 

Office of the Solicitor Kleinberg, LLC 

U.S. Department of Labor 103 Eisenhower Parkway
 

New York, New York Roseland, New Jersey 07068
 

Before: Judge Covette Rooney 

DECISION AND ORDER 

This proceeding is before the Occupational Safety and Health Review Commission 

(“the Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act 

of 1970, 29 U.S.C. § 651 et seq. (“the Act”). The respondent corporation, Avcon Inc, 

(Avcon) admits that it is an employer engaged in business affecting commerce and that it 

is subject to the requirements of the Act. At all times relevant to this action, Avcon 

maintained a worksite at Prospect Avenue in Hackensack, New Jersey. This worksite was 

an eighteen story, poured-in-place, reinforced concrete structure. 

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As the result of an inspection at Avcon’s worksite on April 7, 1998, the 

Occupational Safety and Health Administration (OSHA) issued the respondent 

corporation one citation alleging sixteen serious violations and one citation alleging four 

willful violations (Docket No. 98-0755). The total proposed penalty for the citations was 

$134,00.00. As the result of a second OSHA inspection at the same construction 

worksite, on June 23, 1998 Avcon was issued one citation alleging four serious violations 

(Docket No. 98-1168). The total proposed penalty for these violations was $6,000.00. 

Avcon timely contested all citations and the proposed penalties. On July 10, 1998, 

the Secretary filed her complaint in Docket No. 98-0755, and on August 26, 1998 she 

filed her complaint in Docket No. 98-1168. Avcon filed its answers on September 3, 1998 

and October 19, 1998, respectively. On November 20, 1998, the Secretary moved to 

amend both complaints to add Vasilios Saites and Nicholas Saites as individual 

respondents. On December 21, 1998, Respondents filed a motion in opposition to this 

amendment. By order dated December 22, 1998, I granted the Secretary’s motion. On 

January 28, 1999, Respondents’ filed an answer to the amended complaint. 

The hearing in this matter was held in New York, New York on May 24-28, June 

1-4, July 20-23, September 13-17, October 18-19, November 1-5, and December 6-8, 

1999. On May 26, 1999, the parties stipulated that Avcon employed less than 100 

employees, and the Secretary amended the penalty proposed in Docket No. 98-0755 to 

reflect a 10% additional reduction for size (Tr. 437, 441-42). Accordingly, the total 

amended proposed penalty in Docket No. 98-0755 is $121,800, of which $102,000 is 

proposed for the alleged willful violations. Additionally, on September 13, 1999, the 

Secretary moved without objection to withdraw Citation 1, Item 6 in Docket No. 98-0755 

(Tr. 2410). This Motion was granted. Both parties have submitted post-hearing briefs 

and reply briefs. 

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Background 

The record shows that Vasilios (“Bill”) Saites and his son Nicholas (“Nick”) Saites 

have extensive experience in the concrete industry. They have each owned and/or worked 

with several reinforced concrete high rise construction companies, all of which were 

incorporated in New Jersey. Bill is presently the president, sole officer, and director of 

Altor, Inc. (Altor) and Avcon. Both companies build reinforced concrete high-rise 

structures, and were subcontractors on the Excelsior Two worksite. Nick has degrees in 

civil engineering and law. He is licensed as an attorney in New Jersey, and represents the 

shareholders of both Altor and Avcon. Both Bill and Nick were on the subject worksite 

on a regular basis (Tr. 25-28, 30-39,109-113, 289-90, 4118-24, 4139, 4151). Nick held 

the position of Assistant Superintendent for Avcon (Tr. 110). Although Bill was usually 

present at the Avcon worksite, during December 1997 he was not on site because he was 

in the hospital with pneumonia (Tr. 109, 280). 

Bill is also the former president of two other reinforced concrete high rise 

construction companies, Astro Concrete, Inc. (Astro), where he worked between 1961 

and 1983, and WNS Construction, Co. (WNS), where he worked in 1982 and 1983. As a 

student, Nick worked part-time, or during the summer, for these corporations. In 1982 or 

1983, WNS filed for bankruptcy. In 1983, Bill sold to Astro to Nick. To this date, Nick 

remains owner and president of Astro. Between 1985 and 1991, Bill worked as a project 

superintendent, and also as an estimator, for Astro. In 1985 or 1986, Nick started a new 

concrete construction company, Cornicon, Inc.(Cornicon), of which he was the president, 

sole officer, director, and a shareholder. Cornicon stayed in business only until 1987. 

Bill worked at Cornicon in a supervisory position. The principal place of business of 

Avcon, Altor, and Astro, and the former place of business of WNS and Cornicon, is 193 

Calvin Street, Westwood, New Jersey. This is also Nick’s home address. (Tr.26-34, 38­

53, 58, 123-25, 4124-25, 4118-20; Ex. C-4 and C-5) 

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The Excelsior Two Project 

Excelsior Two is an eighteen story apartment building located near Excelsior One, 

another apartment building. A restaurant separates the two buildings. Excelsior Two has a 

swimming pool and health club below it, and a four-story parking garage in the back (Tr. 

72). In 1987, Astro, which was then owned by Nick Saites, began construction of 

Excelsior Two. Bill Saites was a supervisor for Astro at the time (Tr. 46-47, 254-55). 

The general contractor for the Excelsior Two construction was Tenwood Construction 

(Tenwood), a company that Bill Saites had worked with on many occasions (Tr. 260-61). 

After completion of the foundation work on Excelsior Two, funding was lost and the 

project was discontinued for approximately ten years (Tr. 46-47, 71, 255). In 1997, the 

building owner obtained funding for completion of the project through the U.S. 

Department of Housing and Urban Development (HUD). Tenwood was again hired as 

general contractor (Tr. 46-47). 

After Tenwood resumed duties on the Excelsior Two project in 1997, its president, 

James Canino, contacted Bill Saites regarding the reinforced concrete work (Tr. 43, 255). 

At that time, Bill was president of Altor. Bill had known Mr. Canino for almost thirty 

years as a result of doing business together (Tr. 255-56, 259). Their discussions regarding 

the Excelsior Two project concerned primarily the price for the reinforced concrete work 

(Tr. 256-57). Nick Saites read the proposed contract, discussed the contract price with his 

father, and made amendments to it (Tr. 38, 40, 42-44). 

Nick and his father also discussed the fact that minority participation would be 

needed on this project because it had been financed by the Department of Housing and 

Urban Development. Subsequent to that conversation, In January 1997, Avcon was 

incorporated. It qualified as a minority contractor because Bill’s wife, Cornelia, owned 

51% of Avcon stock. (Tr.46, 288) Nick testified that the incorporation of Avcon came 

about as the result of several concerns, one being the need for participation by a minority 

contractor. Another concern was limiting personal liability, including potential OSHA 

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liability. This concern affected the allocation of Avcon stock. Nick explained: 

In this business there is a lot of individual liability, this is a perfect 

example. If OSHA were to obtain a judgment against my father, they 

would be able to take the shares of Avcon and if Avcon had been owed any 

money they would be able to levy on those receivables, so it's generally a 

good idea in this business if you work in this business not to own the shares 

of the company (Tr. 48). 

Bill is not a shareholder of Altor (Tr. 305). Nick is not a shareholder of Altor or Avcon 

(Tr. 204). 

On August 8, 1997, Altor entered into a subcontract with Tenwood to perform 

reinforced concrete work on the Excelsior Two project. (Ex. C- 4). On August 18, 1997, 

Altor subcontracted all labor and the use of a crane to Avcon. However, Altor retained 

responsibility for materials. Nick reviewed both contracts, and Bill executed the contracts 

for both parties in his capacity as president of both Altor and Avcon. (Tr. 38, 40, 45; Ex. 

C-5). 

As noted above, the principal place of business of Altor and Avcon is Nick Saites’ 

residence. Both companies are operated out of one large room in the basement of Nick’s 

home. One full-time office employee works for both companies and is paid by both 

companies. Altor pays her salary and back-charges Avcon for any work she performs for 

that company. Other than one part-time worker, the remaining office workers are family 

members who work for Altor and whose salaries are paid by Altor (Tr. 53-57). Only Bill 

can sign checks for Altor or Avcon. However, a stamp with his signature can be used (Tr. 

57-58). Cornelia, the majority shareholder of Avcon, performs office work (Tr. 292), but 

is not authorized to sign checks (Tr. 294). 

Nick testified that both he and his father are paid minimal salaries in connection 

with the Excelsior Two project. Nick is paid $300 per week, and Bill $100. Nick 

acknowledged that one reason for such low salaries is to maintain cash flow in the 

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company. (Tr. 123-25). A journeyman carpenter on the Excelsior Two project is paid 

$24.00 per hour, or approximately $960.00 per week (Tr. 126). Nick Saites was not paid 

for the legal services he provided to Altor or Avcon (Tr. 232). However, he testified that 

he is hoping to receive some form of additional compensation for his work at the site 

from both Altor and Avcon (Tr. 135-36). Bill Saites testified that "whatever [money] is 

left" from the Excelsior Two project "I'm going to get" (Tr. 275-76). 

In August 1997, Bill began to recruit foremen for the Excelsior Two project. He 

called Frank Georgiana and asked him to come and run the job as general carpenter 

foreman. (Tr. 2938, 3080-82, 3084). Bill and Frank had known each other since 1964, 

and Frank had worked as a general carpenter foreman for WNS and Astro (Tr. 268-69, 

3055, 4136). Bill also contacted Robert Carbone, who he had known for 20 years, to join 

the Excelsior Two project as ironworker foreman (Tr. 268, 3392, 4136). Carbone had 

worked for Astro, WNS, and Cornicon (Tr. 3264-64). Bill then hired Jim Cavalier as 

laborer foreman, and Jerry O’Brien as cement finishing foreman. Bill had worked with 

them before, and had known Cavalier for fifteen years and O’Brien for 30 years. (Tr. 

270-71, 4136) Employees for the Excelsior Two project were hired from a union hall 

(Tr. 65). The employees' wages were established by union contract (Tr. 304). Each trade 

had at least one foreman and a shop steward (Tr. 108-09). Avcon paid the salaries of the 

employees and their union benefits with checks signed by Bill Saites (Tr. 192, 303). 

Avcon’s Construction Process 

Each floor of Excelsior Two is 306 feet 6 inches long and 80 feet wide, or 

approximately 24,000 square feet, with balconies protruding on all four sides of the 

building (Tr. 2095, 2100). Floors three through seventeen of the structure are identical, 

except that the third floor has no balconies (Tr. 2083, 2095). The height of each of these 

"typical" floors is eight feet one inch (Tr. 2094, 2104). 

Excelsior Two was constructed with steel reinforced concrete. This type of 

construction involves pouring concrete into wooden form work, which is then removed, 

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or "stripped," from that level, dismantled, and lifted to another level, after which the 

process is repeated. Vertical 4" x 4" wooden poles, or "legs," are erected, which support 

layers of perpendicular, horizontal wooden beams called "low stringers," "high stringers," 

and "ribs." (Tr. 2083-84, 2087-91, 2104) This method of construction has been in use for 

approximately 40 years. (Tr. 2935-36, 3065-66) 

Exhibit R-108 depicts a cross-section of the form work that was employed on the 

Excelsior Two project. Each leg is four feet on center (or one leg per sixteen square feet), 

thus requiring the installation of more than 1,000 legs per floor during the erection of the 

deck and the form work below the deck (Tr. 2095, 2098). Exhibit R-108 shows that 4' x 8' 

sheets of 5/8" plywood were laid out horizontally on top of the ribs to form the "deck" 

(Tr. 2084). Below the plywood deck, 145 interior and exterior columns were formed 

with plywood (Tr. 2100, 2103, 2109; Ex. R-109). The plywood had column holes cut in 

it through which the columns protruded (Tr. 2065). Two-thirds of the columns were 

located directly at the perimeter of the building (Tr. 2103, 2118). Reinforcing steel, or 

rebar, was placed vertically inside the column forms and horizontally on the deck before 

concrete was poured. The concrete was poured on the deck and into the column forms 

below at the same time. (Tr. 2105). 

At the Excelsior Two project, concrete was poured on a "four day cycle." This 

meant that every four days the concrete work for an entire floor would be completed. (Tr. 

2061, 2081). On the first and second days of the cycle, carpenters installed the legs, 

stringers, column forms, and deck, while ironworkers installed the rebar. On the third day 

of the cycle, 60% of the concrete was poured. On the fourth day, the remaining 40% of 

the concrete was poured. The same cycle was repeated for each floor (Tr. 2081-82). 

After the concrete cured, carpenters stripped the wooden form work from the 

concrete surfaces - both from the vertical columns and from the deck - and removed all 

legs, stringers and ribs below the deck. (Tr. 2118-19) The stripped lumber was stacked 

by laborers in bays along one side of the building to be hoisted by crane to the next level 

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to be re-installed again. (Tr. 2118-19, 2127) After the stripping operation was completed, 

additional vertical legs, called "reshores,” were erected below the newly poured deck. 

Reshores were left in place under each of the last three poured decks for twenty-eight 

days to distribute the weight of the concrete during curing. Concrete generally achieves 

90% of its strength in 28 days (Tr. 2119, 4156, 4473). Some reshores were located along 

the perimeters of the building (Tr. 2121; Ex. C-65). 

When concrete needed to be poured at the Excelsior Two worksite, it was 

delivered to the deck in a bucket that was hoisted by a tower crane (Tr. 2131). The same 

tower crane also delivered wood, reinforcing steel, clamps and other materials to the deck 

(Tr. 855-57). Buckets of concrete were received by laborers who released concrete from 

the bottom of the bucket and spread it on the deck (Tr. 2131). Ironworkers received 

bundles of reinforcing steel, sometimes in double loads, i.e., one bundle attached to a 

lower hook and another bundle directly over it attached to an upper hook (Tr. 2680-82). 

The operator of the tower crane received his directions from a signalman on the deck with 

whom he was in contact through a walkie-talkie (Tr. 2127). 

DISCUSSION 

A. Were Vasilos and Nicholas Saites properly cited as employers? 

In examining this issue it is important to look at the congressional purpose and 

policy stated in the Act, which was “to assure as far as possible every working man and 

woman in the Nation safe and healthful working conditions and to preserve our human 

resources.” 29 U.S.C. §651(b). In order to carry out this purpose Congress has imposed 

upon employers the duty to furnish “each of his employees employment and a place of 

employment which are free from recognized hazards that are causing or are likely to 

cause death or serious physical harm to his employees.” 29 U.S.C. §655(a)(1). 

Furthermore, the enforcement scheme under the Act and the assessment of penalties is 

directed at employers. 29 U.S.C. §§652(b)(2), 655(a) and 666. Only an employer can be 

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found responsible for violations that affect the safety and health of its “employees,” i.e., 

those with whom a party has an employment relationship. Van Buren-Madawaska Corp., 

13 BNA OSHC 2157, 2158 (No. 87-214, 1989). The Review Commission and the courts 

have recognized that officers and directors of a corporate entity may be “employers” 

within the meaning of the Act, along with the corporate entity itself. The existence of a 

corporate entity does not shield its officers and directors from personal liability where 

they exercise full control over the working conditions of the corporation’s employees and 

have the authority to abate violations of the Act. 

The Act defines the term “employer” as a person engaged in a business affecting 

commerce who has employees and the term “person” as “one or more individuals, 

partnerships, associations, corporations, business trusts, legal representatives, or any 

organized group of person.” 29 U.S.C. §§652(4) and (5). The Review Commission in 

Griffin & Brand of McAllen, Inc., 6 BNA OSHC 1702, 1702 (No. 14801, 1978) 

recognized that the term “employer” is a term of art contained in remedial legislation and, 

as such, is to be defined according to the statutory context in which it is found and the 

practical realities of the employment relationship being scrutinized. To effectuate the 

purpose of the Act, in considering whether an employment relationship exists, the Review 

Commission has placed primary reliance upon who has control over the work 

environment such that abatement of the hazards can be obtained. Abbonizio Contractors, 

Inc., 16 BNA OSHA 2125, 2126 (No. 91-2929, 1994); Vergona Crane Co., 15 BNA 

OSHC 1728, 1784 (No. 88-1745, 1992);Loomis Cabinet Co., 15 BNA OSHC 1782, 1784 

(88-1745, 1992); Van Buren-Madawaska Corp., supra; MLB Industries, Inc., 12 BNA 

1525, 1527 (No. 83-321, 1985). In making such a determination, the Review Commission 

has applied an “economic realities test.” This test involves consideration of the following 

questions: (1) whom do the workers consider their employer; (2) who pays the workers' 

wages; (3) who has the responsibility to control the workers; (4) does the alleged 

employer have the power to control the workers; (5) does the alleged employer have the 

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power to fire, hire, or modify the employment condition of the workers; (6) does the 

workers' ability to increase their income depend on efficiency rather than initiative, 

judgment, and foresight; and (7) how are the workers' wages established. Griffin & Brand 

of McAllen, Inc., at 1703 1 Under this economic realities test, no single factor determines 

whether an employment relationship exists. Van Buren, supra at 2161. 

The issue of control over the corporation and its operations by a corporate officer 

and director has been addressed by several district courts in the context of criminal 

proceedings arising under the Act. In United States v. Pinkston-Holler, Inc., 76-33-CR6 

(D. Kan. Aug.16,1976), an unofficially reported case at 4 BNA OSHA, 1697, 1699, a 

defendant, vice-president of the defendant corporation, sought to dismiss an information 

filed against him on the grounds that § 666(e) 2 prescribes penalties only for “employers” 

who violated the Act. He contended that he only conducted business for the defendant 

1 An ALJ applied these same factors in determining what party was the employer in Louis 

Sinisgalli et al, 17 BNA OSHC 1849 (No. 94-2981, 1996). In that case the Secretary issued 

citations to five corporations and one individual following an accident at an excavation site. The 

cited individual, Louis Sinisgalli, maintained that, although he was the owner of three of the cited 

corporations, all of the workers at the site were employees of one of the cited corporations, 

Metro, for which he occasionally served as an unpaid consultant. However, Sinisgalli admitted 

that he hired several contractors, including Metro, to perform the work in question. Sinisgalli 

hired three individuals to work at the site, all of whom had previously performed work either for 

Metro or for one of several corporations he owned. These workers had been paid in cash either 

by Sinisgalli or by the owner of Metro. Sinisgalli instructed the workers on how to perform the 

work which resulted in the accident. The ALJ found that Sinisgalli maintained control of the 

working conditions at the trailer park on the days in question, and that he should be held 

responsible as the employer for all of the violations. 

2 Section 666(e) provides that “Any employer who willfully violates any standard, rule, or 

order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to 

this Act, and that violation caused death to any employee, shall, upon conviction, be punished by 

a fine of not more than $10,000 or by imprisonment for not more than six months, or by both; 

except that if the conviction is for a violation committed after a first conviction of such person, 

punishment shall be by a fine of not more than $20,000 or by imprisonment for not more than one 

year, or by both.” 

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corporation and did not employ anyone in his own right. The court recognized that it was 

first necessary to find that the corporate official was an “employer” within the meaning of 

the Act before applying the criminal sanctions of § 666(e). Again, in U. S. v. Cusack, 

806 F. Supp. 47, 51 (D. NJ. 1992), the court was confronted with the issue of whether a 

corporate officer or director could be an “employer” within the meaning of the criminal 

sanctions provision of the Act, § 666(e). The court found that, although the defendant’s 

business was incorporated, he ran this business as a sole proprietorship. The court 

concluded that: 

[A]n officer’s or director’s role in a corporate entity (particularly a small 

one) may be so pervasive and total that the officer or director is in fact the 

corporation and is therefore an employer under §666(e). To conclude that 

such a person cannot be held liable under OSHA’S criminal provisions 

would strip §666(e) of much of its force when applied to closely held 

corporations where, as in the present case, the owner and principal officer 

is also the person actively supervising the work in which OSHA regulations 

were violated. In such a case it would seem that Congress’ intent is 

implemented by recognizing the reality of the situation and treating the 

officer and director as the employer.3 

Additionally, the district court in Cusack cited with approval the holdings and dicta in 

U.S. v. Doig, 950 F.2d 411 (7th Cir. 1991) and U.S. v. Shear, 962 F.2d 488 (5th Cir. 

1992), two cases in which company supervisors were unsuccessfully indicted under 18 

U.S.C. § 2(a) for allegedly aiding and abetting criminal violations of the Act pursuant to § 

3 The defendant alone hired and fired its employees and decided how much to pay them, 

he signed the employees’ paychecks; he established his own pay and changed it at will; he made 

all the bids for jobs; he ordered all necessary materials; and directed where, when and how work 

would proceed; he ran the business out of his private home and had unrestricted discretion to 

operate the company as he saw fit; and when he abandoned the company, it ceased operations. 

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666(e). Although each court concluded that Congress did not intend to impose such 

liability on corporate employees under the aiding and abetting statute, each court also 

stated in dicta that a corporate officer or director could be an "employer" for purposes of 

violations pursuant to § 666(e). 

In the context of civil enforcement proceedings, Chairman Cleary in Life Science, 

supra, similarly emphasized the importance of construing the employment relationship at 

issue in a manner which would effectuate the remedial purposes of the Act. Chairman 

Cleary made the following observation: 

Under these circumstances, it would be inadequate to look 

only to the corporate principal Life Science. We must also 

look directly to the executive officers and directors whose 

direction and influence over employees and their working 

conditions were as great as the titular employer. If they could 

not be held directly accountable for their actions in this case, 

the primary statutory relief -- the protection of the lives and 

health of the working men and women of the Nation -- would 

be frustrated [citation omitted]. 

In the present case, Respondents argue that there was not one person in control at 

the Excelsior Two worksite, and that the foremen and shop stewards controlled the work 

and abatement issues (Respondents’ Post Trial Brief, p. 42, Tr. 2021). In support of this 

argument, Respondents adduced much testimony to show that union foremen and shop 

stewards handled the day to day activities on the worksite without having to consult with 

either Bill or Nick before taking any action. For example, employees were hired out of 

the union hall by business agents responding to requests from shop stewards and/or 

foremen; union employees only took direction from other union employees; union 

employees could only be fired by the shop steward and foremen; and foremen ordered 

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materials for the worksite and provided directions.to employees (Tr. 197, 211-12, 

2842876, 2942, 2949,2955,3061, 3078, 3206-07, 3271-74, 3285, 3321-22, 3328, 3464­

65, 3526-27, 3528, 3530-31, 3556, 3796, 4180). Nick and Bill, as nonunion employees, 

could not give directions or orders to union employees. If they wanted something to be 

done, they had to go to the general foreman for the trade (Tr. 2022). 

I find that this evidence does not shield the Respondents from liability. The 

Commission has found that it is not unusual for a company to delegate to supervisory 

employees the authority to hire and fire employees. Therefore the authority of the 

operators to hire and fire does not conclusively establish that the workers considered the 

supervisors to be their employers. Van Buren at 2159. 

In this case, the record establishes that both Bill and Nick maintained control over 

the worksite. Employees, including supervisors, viewed them as in charge. Bill and Nick 

testified that they were at the worksite just about everyday (Tr. 109-10, 279). Bill 

personally obtained the subcontracts and negotiated their prices with Nick’s assistance. 

(Tr. 38, 97) 

The project superintendent for the general contractor, Joseph Greco, coordinated 

and supervised the Excelsior Two construction activities with Bill and Nick (Tr. 73-75). 

In his testimony, Greco acknowledged that he was not aware of the existence of Avcon 

during the construction. He was under the impression that Astro - a company with which 

he knew Bill and Nicks were affiliated - was doing the work at Excelsior Two (Tr. 87­

88). Once the Excelsior Two project was about to begin, Bill started hiring foremen for 

the job. Bill directed these foremen to go out and get men for the project (Tr. 2939, 3069­

71, 3082-86, 3392, 4136-37). The foremen and shop stewards worked with a business 

agent at the union hall to staff the jobs. The nature of the Excelsior Two project was such 

that the work was repetitive, and once the foremen were made aware of the sequence of 

work it was unnecessary for them to report to Bill on a daily basis. Bill testified that he 

instructed Georgiana to make everyone aware of the safety program, and that he relied 

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upon the foremen to supervise their respective crews and institute the safety program (Tr. 

211-12, 237-37, 311-14). Georgiana testified that Nick gave him the safety program and 

told him to keep a copy and make a copy for the shop steward (Tr. 3245). Nick and Bill 

ordered materials such as lumber, harnesses, brooms, shovels, and concrete. The foremen 

discussed their needs for material with Nick (Tr. 146-50, 156, 284-85, 1207, 1295). There 

were occasions Nick and the foremen discussed overtime work or stopping work early 

because of the weather (Tr. 152, 155). 

The record reflects that, although employees testified that they were hired out of 

the union halls, they also viewed Bill and Nick as in control of the worksite. The general 

carpenter foreman, Georgiana, acknowledged that someone from Avcon had the authority 

to fire him (Tr. 3093). When the shop steward, Frank Cataliato, first came onto the site, 

he met with Bill and Nick (Tr. 3792, 3799, 3848-49). Another employee, ironworker 

Nicholas Aemisego, testified that he viewed Bill as the “overseer” for Avcon. He 

observed him on the worksite talking to people (Tr. 3607, 3626). One employee, William 

Kelly, testified that he believed that Nick and Bill were in charge. At the beginning of 

the job, in August, Bill gave out assignments in the absence of a foreman. Kelly said that 

Bill would answer questions about assignments, and if Bill had any special requests he 

would make them known to him (Tr. 1489-90). Kelly stated that as the job progressed 

Bill bounced around and he saw less of him, but he could still hear him because Bill 

always had a bull horn (Tr. 1491). He said that Bill was on the job every day, except 

when he was out in December. Bill was there when employees arrived for and left work 

(Tr. 1492). It is also undisputed that Bill signed all the pay checks on the site (Tr. 57, 

287, 1205, 1224, 2939, 3077, 3795, 3807-08, 4131). 

Bill monitored the employees from a number of locations. Bill was on the 

ground, as well as on the structure, overseeing and directing the work in the company of 

the foremen (Tr. 1100; Ex. C-101). For example, during one OSHA inspection Bill was 

observed on the jobsite with a bull horn talking to employees and assisting employees in 

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retrieving materials which had been hoisted onto the deck (Tr. 856, 1101; Ex. C-101). 

Employees testified that Bill used the bull horn to coordinate activities with the crane 

operator and to communicate with anyone on the worksite (Tr. 3480). He would also use 

the bull horn to call attention to something he did not like (Tr. 1491). Bill testified that he 

was at the job sometimes every day, sometimes three to four times a week, sometimes 

two times a week (Tr. 4139). He believed that some of his men thought he was a 

nuisance because he was picky. He would look around to make sure that things were 

right. He testified that the men would say “the Boss is here.” He viewed himself as the 

boss of Avcon, the person who was running the company (Tr. 4139). 

Although there is no doubt that, if an OSHA compliance officer had insisted that a 

foreman abate a hazard during the inspection, the abatement would have been done, the 

record indicates that it was Bill and Nick with whom abatement issues were discussed 

(Tr. 3229,3284-85, 3322, 3819-20). During the instant inspections the compliance 

officers discussed abatement issues with Bill and Nick (Tr. 482). Bill acknowledged 

during the hearing that the primary responsibility for job site safety was his (Tr. 281). 

Signorile testified that during the inspection he observed Nick directing employees to 

abate conditions which had been observed during the inspection. Nick also yelled at 

employees in an effort to have them remove themselves from hazardous conditions (Tr. 

1244-45, 1865-66, 1876, 1880). During the inspection, Nick and the general contractor’s 

superintendent, Salvatore Maino, discussed who was going to install the cable protection 

to abate the cited conditions (Tr. 1006,1872). Signorile said that during the inspection 

Dominic Paniscotti told him that Nick had given him instructions for a specific 

assignment (Tr. 1292). Frank Georgiana testified that Bill and Nick told him that they 

were making certain changes because the OSHA inspector had requested that they be 

made (Tr. 3148-49). Frank Cataliato testified that when he first started work he had 

received safety literature from Nick. (Tr. 3837) Carbone testified that he would have 

directed any questions about the safety program to either Bill or Nick (Tr. 3400). Nick 

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testified that he had directed the workers to tie off to “whatever” because the compliance 

officer wanted them tied off, and he was trying to comply with the compliance officer’s 

wishes (Tr. 2157). 

Nick and Bill acknowledged control over the worksite. Nick acknowledged that he 

was “the second in command after his father”(Tr. 2877). Nick stated that it was his 

impression that both he and his father could hire and fire someone if they desired (Tr. 

123), although he qualified this statement by stating that in order to fire someone a final 

check had to be issued, which only his father had authority to issue (Tr. 247-50). Nick 

testified that with respect to the sites he is on, he hires, or the company hires, competent 

people. He also makes sure that all necessary safety equipment is provided, and that he, 

the foremen and his father repeatedly tell the men to observe safety rules and be safe (Tr. 

2039). Nick acknowledged that, when his father was out ill for the month of December 

1997, he was the person in charge. He also acknowledged that he coordinated matters 

involving other trades, and coordinated matters such as pours, arrangements for cement, 

and steel inspectors with the superintendent for the general contractor (Tr. 126-27). 

I further find that the Act does not define the term “employer” so as to restrict that 

term to one “employer per worksite” for purposes of effectuating the provisions of the 

Act. 4 In considering Nick’s involvement I believe that the entire picture must be 

examined. In Labadie Coal Co. v. Black, 672 F.2d 92 (D.C. Cir. 1982) the court was 

4 See Life Science Products Company et al, 6 BNA OSHC 1053, 1059 (1977). In that 

case, a two member Review Commission was divided over the issue of the officers’ personal 

liability under federal law in a decision which was accorded the precedential value of an 

unreviewed Judge’s decision. While Commissioner Barnako would have vacated the citations as 

to the corporate officers based on his finding that the officers were not “employer” within the 

meaning of the Act, Chairman Cleary would have affirmed the violations as to both officers as 

well as the corporation. Chairman Cleary found the fact that Life Science was an “employer”, 

does not mean that the individual respondents could not also be considered “employers”. He 

noted that for for purposes of the Act, there was no reason why an employee could not have 

more than a single employer -- “a person, whether by virtue of his control over the physical 

conditions of the worksite or over the employees of another employer, may be considered to be a 

joint employer.” 

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presented with the question of whether the corporation was in fact the alter ego or 

business conduit, of the person in control. The court recognized that 

In many instances, the person "controlling" a close corporation is also the 

sole, or at least a dominant, shareholder. In other cases, the controlling 

person may seek to avoid personal liability by not formally becoming a 

shareholder in the corporation. The question is one of control, not merely 

paper ownership. 

** The fact that the stock may be in [the] wife's name rather than in his may 

be of little consequence in the court's consideration of the entire picture 

[footnote omitted]. 

Id at 97. 5 In this case, although Nick was not an owner, he was a dominant figure in the 

corporation. He is “one of two individuals” who controlled the worksite, and as such was 

an “employer” within the meaning of the Act. 

Additionally, Respondent argues that the Secretary cannot assert personal liability 

against Bill and Nick based upon traditional methods of veil piercing. This argument is 

without merit. The alter ego concept has been defined as a “tool of equity that is 

appropriately utilized ‘when the court must prevent fraud, illegality or injustice, or when 

recognition of the corporate entity would defeat public policy or shield someone from 

liability for a crime.’” Kaplan v. First Options of Chicago, Inc. , 19 F.3d 1503, 1521 (3rd 

Cir. 1994). The Third Circuit, in which the present case also arises, has recognized that 

the corporate form may be disregarded whenever justice or public policy demands. 

5 In Labadie the defendant was director, president, and sole employee of the subject 

corporation. He maintained he had no business relationship with the corporation in his individual 

capacity and could not be held liable for the corporation’s obligations. His wife was the dominant 

shareholder, but the court found he was the dominant figure in the corporation and there was a 

identity of interests between him and the corporation. 

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“Whenever one in control of a corporation uses that control, or uses the corporate assets, 

to further his or her own personal interests, the fiction of the separate entity may be 

properly disregarded.” Ragan v. Tri-County Excavating, Inc., 62 F.3d 501, 508 (3d Cir. 

1995), quoting Ashley v. Ashley, 482. Pa. 228, 393 A.2d 637, 641 (Pa. 1978). 

The Third Circuit has also held that federal law, not state law, governs in matters 

involving the rights of the United States arising under nationwide federal programs. 

United States v. Kimbell Foods, Inc., 440 U.S. 715, 726-27 (1979); Clearfield Trust Co. 

v. United States, 318 U.S. 363, 366 (1943); N.L.R.B. v. Greater Kansas City Roofing, 2 

F.3d 1047, 1051 (10th Cir. 1993); Board of Trustees of the Mill Cabinet Pension Trust 

Fund for Northern California v. Valley Cabinet & Mfg. Co., 877 F.2d 769, 771 (9th Cir. 

1989); United States v. Pisani, 646 F.2d 83, 85-86 (3rd Cir. 1981). Accordingly, federal 

common law alter ego questions should be decided according to the policy of the 

applicable federal statute. In Pisani, supra, the Third Circuit examined this issue in a 

matter where the government brought an action pursuant to a federal statute (Medicare 

program) against a physician to recover Medicare overpayments made to a physician’s 

solely owned corporation. In affirming the judgment against the physician, the court held 

that where a federal statute was the source of the government’s right to recover, federal 

law, rather than state law, controlled the issue. The court held that in a matter involving a 

governmental program a uniform federal rule was needed since state law could frustrate 

specific objectives of the program. Pisani at 83. 

The Pisani court helped fashion a federal rule for piercing the corporate veil, 

recognizing that it would be undesirable to let the rights of the Unites States change 

whenever state courts issued new decisions on piercing the corporate veil. The Pisani 

court and other courts have articulated various factors to help determine whether a 

corporate veil should be pierced. The factors noted by the courts are the failure to 

observe corporate formalities, nonpayment of dividends, the insolvency of the debtor 

corporation at the time of incorporation, siphoning of funds of the corporation by the 

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dominant stockholder, non-functioning of other officers or directors, the absence of 

corporate records, the fact that the corporation has been merely a facade for the 

operations of the dominant stockholder, and, in some cases, whether the corporation has 

been grossly undercapitalized. The courts have added that the situation “must present an 

element of injustice or fundamental unfairness.” Pisani, at 83, 88 (3d Cir. 1981), quoting 

DeWitt Trucks Brokers, 540 F.2d 681, 686-87 (4th Cir. 1976). See also Kaplan v. First 

Options of Chicago, Inc., 19 F. 3d 1503, 1521 (3rd Cir. 1994), aff’d, 514 U.S. 938 

(1995). Additionally, the courts have also held that the application of the rule does not 

depend upon a finding of bad faith, fraud, or intent. Id.; See also Labadie Coal Company 

at 100 (D.C. Cir. 1982).6 

There is also a line of cases which hold that, when a violation of a federal statute 

is at issue, as opposed to common law contract or tort controversy, individual liability 

must be assessed in light of the purposes of the public policies underlying the statute. 

Interests which are identified and protected by federal law should not be thwarted by each 

state’s protective concern for local corporate enterprises. Federal policies are not to be 

defeated by deference to state limitations on corporate liability and reliance on the 

impenetrability of the corporate veil. The Supreme Court has provided some guidance on 

the issue of corporate veil piercing, and has indicated that the corporate form may not 

defeat overriding federal legislative polices. See First National City Bank v. Banco Para 

el Comercio Exterior de Cuba, 462 U.S. 611, 630 (1962); Bangor Punta Operations, Inc. 

v. Bangor & Aroostook R.R., 417 U.S. 703, 713 (1974)(“[T]he corporate form may be 

6 Various courts have viewed these factors as a two-prong inquiry to determine when 

piercing the corporate veil is appropriate: (1) is there such unity of interest and ownership that the 

separate personalities of the corporation and the controlling individual no longer exist; and (2) will 

adherence to the corporate fiction or the failure to disregard the corporate form result in fraud or 

injustice, i.e., if the acts are treated as those of the corporation alone, will an inequitable result 

follow. See N.L.R..B. v. Greater Kansas City Roofing, supra at 1052., Matter of S.I. Acquisition, 

Inc., 817 F. 2d 1142, 1152 (5th Cir. 1987); McKinney v. Gannett Co., 817 F.2d 659, 666 (10th 

Cir. 1987); Labadie, supra., United States v. Standard Beauty Stores, Inc., 561 F. 2d 774, 777 

(9th Cir. 1977). 

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disregarded in the interest of justice when it is used to defeat an overriding public 

policy.”) The Third Circuit in Pisani also followed this theory of piercing the corporate 

veil in order to prevent circumvention of a statute or avoidance of a clear legislative 

purpose. supra at 88. 

Other courts have had the opportunity to examine the issue of corporate veil 

piercing with regard to administrative enforcement actions. These courts have also 

applied the federal veil-piercing rule, and have held that the application of the rule does 

not depend upon a finding of bad faith, fraud, or intent. Thomas v. Peacock, 39 F.3d 493 

(4th Cir. 1994) (ERISA suit filed against corporation and officer and shareholder of 

corporation based upon federal veil-piercing ); N.L.R.B. v. Greater Kansas City Roofing, 

supra. (enforcement of order sought seeking to hold individual shareholder as well as 

successor corporation liable for unfair labor practice judgement); Pel-Star Energy, Inc. v. 

Unites States Department of Energy, Inc. v. United States Department of Energy, et al, 

890 F.Supp. 532 (W.D. La.1995) (review of Federal Energy Regulatory Commission 

order finding owner personally liable by piercing the corporate veil); William Valentine 

and Sons, Inc., 1989 WL 260666, 46 F.E.R.C.¶ 61,252 (F.E.R.C., 1989), 1989 FERC 

LEXIS 454 (enforcement action under the Department of Energy Organization Act, 

where the three individuals were found jointly and severally liable for violations 

committed by a corporate entity on which they served in various corporate capacities as 

owners, directors and shareholders). 

Guided by the principles set forth in Pisani and the other cases cited above, I find 

that Avcon was so closely tied to the personal interests of Bill and Nick Saites that its 

corporate form may be properly disregarded. The record establishes that Avcon merely 

facilitated the business affairs of Bill and Nick. Avcon did not exist but for the will of 

these two individuals. From the beginning, Avcon was merely a "payroll company" (Tr. 

288) without a personality distinct from that of Bill and Nick. 

In addition, I find that recognition of the corporate entity as the sole employer 

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would defeat public policy: specifically, the assurance of a safe working place for all 

employees. I believe it is necessary to pierce the corporate veil in order to prevent the 

avoidance of the clear legislative intent of the Act. 

The Secretary’s arguments regarding piercing the corporate veil, set forth in her 

Post Hearing Brief (pp. 32-34), are well founded. At the time Bill Saites was first 

contacted by James Canino of Tenwood Construction regarding the Excelsior Two 

project, Avcon did not exist. Nick testified that Avcon was subsequently formed for 

several reasons: (1) to create a minority-owned company for purposes of obtaining HUD 

financing, (2) to generally avoid certain liability, and (3) because he believed that his 

mother would outlive his father. To accomplish the first objective, 51% of Avcon's stock 

was placed with Bill Saites' wife, and he retained the remaining 49%. With respect to the 

second objective, Nick Saites testified that the succession of corporate entities owned by 

him and his father, and the absence of stock ownership by individuals generally, would 

effectively limit personal and corporate liability, including OSHA liability (Tr. 47-48, 

178-79). Nick Saites also testified that "Avcon really had no money," and, therefore, a 

new corporation, Avcrete, Inc. (Avcrete), was formed "six months ago." (Tr. 176-79). 

Regarding the reasons for forming Avcrete, Nick Saites testified as follows (Tr. 178-79): 

You have to remember when OSHA fines you $150,000 on a 

case, you can't take the risk that on the next job you're going 

to make some money and then OSHA is going to come and 

they're going to take all your money. 

Other evidence supports a finding that the companies formed by Bill and Nick 

Saites merely advanced their personal interests. Bill and Nick had been doing business 

together for many years. Their business relationships fell into a pattern. When Bill 

owned Astro, Nick worked for his father (Tr. 30). When Nick purchased Astro, Bill 

worked for his son (Tr. 31). Bill also worked as a supervisor for Cornicon after Nick 

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formed the company in 1985 or 1986 (Tr. 34). Bill assumed the presidency of Avcon in 

1997, and Nick became his "assistant superintendent" (Tr. 110). Bill testified that his son 

also “bestowed” upon him the title of president of Altor, and that he reported only to 

Nick, who was lawyer for Altor (Tr. 290, 294). I also find it significant that Bill did not 

know if his wife had ever seen the contract between Altor and Avcon before he executed 

the contract as president of both companies, and that his wife, the majority shareholder of 

Avcon, was not paid a salary and had no authority to sign checks (Tr. 289, 295). These 

factors provide further support for my finding that Avcon’s corporate form was a mere 

formality. 

As stated above, recognizing Avcon as the sole employer would frustrate at least 

one objective of the Act: holding responsible the entity or individuals in control of the 

health and safety of employees on a worksite. Although their actions do not appear to 

have been fraudulent, Bill and Nick Saites deliberately attempted to avoid liabilities such 

as the OSHA citations and penalties at issue in this case. For this reason, I believe that it 

is appropriate to hold them individually liable for the violations. 

The Secretary’s Burden of Proof 

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

See, e.g., Astra Pharmaceutical Prods., 9 BNA OSHC 2126, 2131 (No. 78-6247, 1981), 

vac'd in part on other grounds, 681 F.2d 69 (1st Cir. 1982). The Commission has defined 

"preponderance of the [*25] evidence" as "that quantum of evidence which is sufficient to 

convince the trier of fact that the facts asserted by a proponent are more probably true 

than false." Ultimate Distrib. Systems, Inc., 11 OSHC 1569, 1570 (1982). 

In order to establish a violation of an occupational safety or health standard, the 

Secretary has the burden of proving: (a) the applicability of the cited standard, (b) the 

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

conditions, and (d) the employer’s actual or constructive knowledge of the violation (i.e. 

the employer either knew or, with the exercise of reasonable diligence, could have known 

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of the violative conditions). Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No, 90­

1747, 1994)7 

“In order for the Secretary to establish employee exposure to a hazard, she must 

show that it is reasonably predictable by operational necessity or otherwise (including 

inadvertence), that employees have been, are, or will be in the zone of 

danger.”Fabricated Metal Prods., 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997); 

Miniature Nut and Screw Corp., 17 BNA OSHC 1557, 1560 (No 93-2535, 1996) (access 

to the condition may be shown by establishing that, during the course of their normal 

work duties, employees might be in the ‘zone of danger’ posed by the condition) The 

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

employees which the standard is intended to prevent.”RGM Constr. Co., 17 BNA OSHC 

1229, 1234(No. 91-2107, 1995). It is sufficient for the Secretary to prove access to the 

zone of danger, rather than actual exposure to the immediate risk of injury or death. 

Donovan v. Adams Steel Erection, Inc., 766 F.2d 804 , 811-812 (3rd Cir. 1985); Phoenix 

Roofing, Inc. 17 BNA OSHC 1076, 1079 (No. 90-2148, 1995) (exposure to a violative 

condition may be established either by showing actual exposure or that access to the 

hazard was reasonably predictable.) 

Review Commission precedent holds that the Secretary can satisfy the burden of 

knowledge of the violative condition by establishing that the employer knew, or with the 

exercise of reasonable diligence could have known, of the presence of the violative 

condition. The actual or constructive knowledge of the employer’s foreman or supervisor 

can be imputed to the employer. Jersey Steel Erectors, 16 BNA OSHA 1162, 1164 (No. 

7 “Reasonable diligence involves several factors, including an 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 OSHA 1230, 1233 (No. 76­

4627, 1981). Other factors indicative of reasonable diligence include adequate supervision of 

employees, and the formulation and implementation of adequate training programs and work 

rules to ensure that work is safe. (citations omitted).” Pride Oil Well Service, 15 BNA OSHA 

1809, 1814 (No. 87-692, 1992) 

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90-1307, 1993) and cases cited therein. Once the Secretary has made a prima facie 

showing that the employer knew or, with the exercise of reasonable diligence, could have 

known of the violative condition, the employer can seek to establish as an affirmative 

defense that it had a thorough safety program which was adequately communicated and 

enforced, and that the violative conduct of the employee was idiosyncratic and 

unforeseeable. Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1537 (No. 86-360, 1992).8 

Docket 98-0755: Inspection No. 301057311 

Citation 1, Item 9 and Citation 2, Items 2a-c: Fall Protection 

29 C.F.R. § 1926.501(b)(1): Each employee on a walking/working surface 

(horizontal and vertical surface) with an unprotected side or edge which is 6 

feet (1.8 m) or more above a lower level shall be protected from falling by 

the use of guardrail systems, safety net systems, or personal fall arrest 

systems. 

As a result of the OSHA inspections at respondents' worksite, respondents were 

issued a total of four (4) citation items alleging serious violations and willful violations of 

the fall protection standard. Citation 1, Item 9 sets forth a total of seventeen (17) serious 

8 The Third Circuit's precedent on the burden of proof of knowledge is explained in 

Pennsylvania Power & Light Co. v. OSHRC (“PP&L”),737 F. 2d 350, 357-58 (3d Cir. 1984), 

where the court held that the Secretary of Labor may not shift to the employer ultimate risks of 

nonpersuasion in cases where the inference of an employer’s knowledge of conduct violating the 

Act is raised only by a supervisor’s misconduct. The court held that "the participation of the 

company's own supervisory personnel may be evidence that an employer could have foreseen and 

prevented a violation through the exercise of reasonable diligence, but it will not, standing alone, 

end the inquiry into foreseeability." Id. The court held that an employer will be "excused from 

responsibility for acts of its supervisory employees" upon a showing "that the acts were contrary 

to a consistently enforced company policy, that the supervisors were adequately trained in safety 

matters, and that reasonable steps were taken to discover safety violations committed by its 

supervisors."Id. (citation omitted). In this matter, Respondents have not raised the issue of 

supervisory misconduct in defense of any of the citations. 

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instances of employees working without fall protection while erecting form work, 

stripping form work, walking, and performing other duties in close proximity to the 

unprotected building perimeter. The alleged violations occurred on elevations ranging 

from the main lobby to the eleventh floor on dates between October 9, 1997 through 

December 15, 1997. Citation 2, Items 2a-2c set forth a total of eight (8) serious and 

willful instances of employees working without fall protection while engaged in erecting 

form work, stripping form work, and performing other duties in close proximity to the 

unprotected building perimeter. The alleged violations occurred on elevations ranging 

from the sixth floor to the thirteenth floor on dates between November 24, 1997 through 

January 7, 1998. 

Applicability of standard 

Respondents assert that the majority of the cited activity was leading edge work 

(except for instances (d), (e), and (f)), and thus, the cited standard is inapplicable. 

(Respondents’ Post Trial Brief, p. 60) Respondents contend that the installation of form 

work or plywood decking is leading edge work, as is the removal or stripping of the 

sections. Respondent argues that the leading edge concept would also apply to the 

creation of form work on balconies, as well as the removal of form work on balconies. 

Respondents assert that this concept was confirmed by their expert, Mr. DeBobes who 

testified that, "leading edge work is completed . . . after all of the forms and all of the 

temporary components have been removed" (Tr.3971). Mr. DeBobes testified that leading 

edge includes not only the framing of the deck, but also the pouring of concrete, the 

stripping of forms and the installation and removal of reshores. (Tr. 3964-71, 4047).9 

The term “leading edge” is defined within the fall protection standard as “the edge 

of a floor, roof, or form work for a floor or other walking/working surface (such as the 

deck) which changes location as additional floor, roof, decking, or form work sections are 

9 I find that Mr. DeBobes’ opinion was not based upon any reliable foundation, and thus 

accord it no weight. See discussion infra. 

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placed, formed, or constructed.” 29 C.F.R. § 1926.500(b). Leading edges that are not 

actively and continuously under construction are considered to be “unprotected sides and 

edges.” Each employee who is constructing a leading edge six feet or more above lower 

levels must be protected from falling by conventional fall protection: guardrail systems, 

safety net systems, or personal fall arrest systems. 29 C.F.R. § 1926.501(b)(2). The 

leading edge standard presumes that it is feasible and will not create a greater hazard to 

implement at least one of the three specified conventional fall protection systems. If an 

employer does not implement one of these systems, it has the burden of establishing that 

it is appropriate to implement a fall protection plan which complies with §1926.502(k) 10 . 

I reject the Respondents’ attempt to expand the term “leading edge” beyond its 

plain meaning. I find that the terms set forth in the definition of leading edge (except with 

respect to a roof) refer to the lower base of the yet-to-be-completed area (i.e., the floor 

and walking/working surface), and that the “edge” refers to the line where that area 

begins or ends. In the instant matter, the leading edge work involved the progressing of 

the plywood deck for each level - laying the deck and erecting the structure upon which 

the plywood deck rested. The leading edge changed each time an additional section of 

plywood deck was set in place. Once the plywood was placed, any further activity in the 

area became work at an unprotected side and edge, and remained such until an additional 

plywood section was added to the deck. My review of the instant matter indicates that no 

10 The fall protection plan, which must be in writing, requires, inter alia, that the employer 

designate all areas where conventional fall protection systems cannot be used as controlled access 

zones, defined with control lines to form a visual and physical barrier preventing an employee 

from inadvertently entering the area immediately adjacent to the leading edge §1926.502(g). The 

plan must also implement a safety monitoring system in those zones if no other alternative 

measure has been implemented.§1926.502(h). Additionally, the plan must ocument the basis for 

the determination that fall protection cannot be used. §1926.502(k). I note that Nick testified that 

he had not ever read the provisions of Section 502(k) prior to or during the instant job (Tr. 2572, 

2578). 

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citations were issued for a lack of protection on leading edges.11 Rather, the citations 

were properly issued for failure to provide adequate fall protection on unprotected sides 

and edges. 

I also find that each citation was issued for work on unprotected sides or edges 

which were six feet or more above the lower levels. In fact, the evidence shows that 

Respondents’ employees worked at unprotected heights of up 115 feet. The Respondents 

did not dispute testimony that such falls would likely result in serious injuries or death 

(Tr. 894, 899, 914, 984, 992, 1003, 1007, 1013, 1017, 1021, 1028, 1029, 1032, 1037, 

1039, 1042, 1046,1047-48). 

The record also establishes that management and supervisory employees had 

knowledge of the violative conditions. The record discloses that the violations were in 

plain view and occurred in the presence of management and supervisory personnel, who 

in many instances were exposed to the same hazards ( Tr.882, 887-88, 890, 894-95, 899, 

905-07, 915, 978, 1011, 1016, 1023, 1037). The record shows that it was common 

practice for supervisory personnel to allow employees to work without fall protection (Tr. 

1011, 2151, 3109, 3285, 3288, 3523 -24, 3569, 3878, 3892, 4250). During the course of 

the trial supervisors readily acknowledged that no nets were used on the project and that 

employees did not wear personal protective equipment (Tr. 952-53, 3285, 3405, 3565). 

This knowledge of the supervisory employees is imputed to the Respondents. 

11 Furthermore, the record clearly established that during the seventeen (17) day OSHA 

inspections, Respondents did not bring up the subject of leading edges, and at the time of the 

inspections no leading edge plan was in place.(Tr. 234-37, 462, 692-93, 2154, 2578-87, 3119-20, 

3447-48, 4298, 4579). Respondents apparently believe that it was incumbent upon OSHA to 

have brought up the subject. However, the language of the standard indicates otherwise. In view 

of the fact that OSHA presumes that it is feasible and will not create a greater hazard to 

implement conventional fall protection systems at leading edges, I find no error on OSHA’s part 

in failing to bring up the subject. The standard places the burden on the employer to establish that 

it is not feasible and will create a greater hazard to implement a fall protection plan. I further find 

that the alleged unwritten“leading edge fall protection program” described by Nick failed to 

comply with the requirements of 1926.502(k). 

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In addition, I find no reason to excuse the Respondents from the acts of its 

supervisory employees. These acts occurred in plain view of Respondents without any 

objection. The record does not reflect that the cited conditions were contrary to any 

consistently enforced company policy. In fact, it is Respondents’ position that the manner 

in which the employees were observed working was consistent with an unwritten 

company policy on working near edges (Tr. 2166-2208, 4151-52, 4176-78). I find no 

evidence that at the time of the inspection Respondents had in good faith promulgated 

any work rule or safety program addressing fall protection. Additionally, the record 

reflects that the foremen and sub-foremen were not trained in safety matters and were not 

familiar with safety requirements for fall protection (Tr. 3115-21, 3159, 3196, 3240, 

3370-33, 3405). Furthermore, the record contains no evidence that Respondents took any 

steps to discover safety violations. 

Next, I will address the specific violations of the fall protection standard. I find 

that the Secretary has proven by a preponderance of evidence that the cited standard 

was violated and that Respondents’ employees were exposed to the cited conditions in 

each of the instances discussed below. 

Before I address the specific violations of the fall protection standard, however, I 

note that at trial Respondents attempted to discredit compliance officer Signorile’s 

testimony regarding his observations at the Excelsior Two worksite. Nonetheless, I find 

that Signorile’s testimony is credible. Many of Signorile’s observations were made during 

the course of a walkaround in the presence of the individual Respondents and supervisory 

personnel. Signorile testified to the events of the inspection and the statements which 

Respondents and their agents made during the course of the inspection. Respondent did 

not refute this testimony. Instead, Respondents merely elicited testimony which was 

aimed at critiquing and/or providing a different interpretation of what the photo or video 

tapes depicted. Additionally, a good portion of this testimony was adduced and crafted to 

support the theory that a fall protection plan existed at the time of the inspection (Tr. 

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2166-2240, 3169- 97.3757- 71, 3881-82,4203-05). Most of this testimony was not based 

upon observations that were actually made at the time the photograph or video tape was 

actually recorded, but was instead based on what the witness believed the photo depicted 

when he viewed the photo at trial. Because the record shows that a fall protection plan 

had not been established at the time of the inspection and that no employees were aware 

of the requirements for such a plan, I give very little weight to this testimony. 

I find that Signorile’s testimony is entitled to significant weight for a number of 

other reasons. In many instances, Signorile’s testimony was corroborated by the 

statements of other compliance officers (Tr. 480-83, 688. 693, 4397-99, 4577-99, 4584­

85, 4587). Signorile also identified photographs which documented areas where he had 

observed violative conditions. He explained that some photographs did not depict actual 

exposure to violative conditions because employees walked away when they saw him (Tr. 

1002, 1004, 1006, 1020, 1025, 1032). Some of Signorile’s observations were also 

corroborated by a video tape which was recorded by compliance officer Brown. The 

conditions recorded on video tape were confirmed by on-site visits and interviews, or the 

video tape was shown to Respondents and supervisory personnel, who confirmed the 

observations of the compliance officers (Tr. 745-773, 774, 849,980, 988, 1002, 1010, 

1014-15, 1016, 1017-18, 1024, 1025, 1031-32, 1045, 1048). During these interviews 

Respondents never denied what Signorile and the other compliance officers said they had 

observed, and never mentioned a fall protection plan. 

I will now address the specific violations of the fall protection standard. 

Instance (a): Second Floor, South/West Corner, Column #24: Two 

employees were stripping the wood frame off of column 24, near the open 

edge of the floor, on or about 10/9/97. 

On the first day of his inspection, October 9, 1997, Signorile observed two 

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employees stripping the wood frame off column 24 near the open edge of the floor. These 

employees did not have belts or harnesses. Signorile testified that he pointed this 

condition out to Nick as they were walking outside the general contractor’s trailer. Nick 

and the shop steward, Cataliato, identified the workers as Avcon employees. Signorile 

testified that the employees were within a foot of the edge, and about 12 feet above 

ground level (Tr. 978-79; Ex. C-60).12 

Instance (b): Main Lobby, West Area, column 37: One employee setting 

up forms for the columns was standing on steel flanges of the frame and 

was not protected from falling, on or about 10/9/97. 

On October 9, 1997, an employee was observed setting up clamps by column #37 

while standing and climbing on the steel flanges. Although he wore a harness, he was not 

tied off to anything (Tr. 986). During the inspection, Cataliato yelled at him to tie off, and 

the employee tied to a ring of the steel flange on which he was standing. Nick and 

Signorile disagreed over whether the employee should tie off to the steel flange. Signorile 

believed that if the steel flange came down, the employee would also. The fall distance 

was 10 feet (Tr. 987-88, 991, 2167; Ex. C-61). 

Instance (c): Second Floor, North/West Corner, Column #49: Two 

employees, working near the edge of the floor, were not protected from 

falling while stripping the column, on or about 10/14/97. 

12 Ex. C-60 depicts one employee exposed to the cited condition. The photo was taken 

subsequent to his initial observation, when one of the two exposed employees had moved onto a 

higher elevation - the roof of the adjacent building. Signorile explained that although the photo is 

dated October 8, 1997, the photo was actually taken the first day of the inspection - October 9, 

1997 (Tr. 979-81, 2164-65). 

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On October 14, 1997, Signorile observed two employees stripping a column in the 

northwest corner of the building without any fall protection (guard rails, safety net 

systems, or personal protective equipment). The fall distance was approximately 12 feet. 

Cataliato verified that the employees were working for him. Furthermore, Signorile 

testified that, on the first day of his inspection, he had observed one of the employees 

(Rob Benoit, who was wearing a red shirt) stripping a column without fall protection. Ex. 

C-62, a photo taken from ground level, depicts the two employees and the column they 

were observed stripping (Tr. 1000-02).13 

Instance (d): Entire Second Floor: perimeter protection was not provided 

along the open floor edge, exposing employees to falls of approximately 12 

feet, on or about 10/14/97. 

On October 14, 1997, Signorile noticed that the entire second floor lacked 

perimeter protection, such as wire cable or wood railings, along the open floor edge. This 

condition exposed employees to a potential twelve foot fall. Signorile observed 

employees stripping and walking by the edge of the floor without any fall protection. The 

shop steward, Cataliato, told him that the employees worked for Avcon (Tr. 1004-07). 

Nick said that the general contractor was responsible for perimeter protection, but 

admitted that he personally observed Avcon employees walking at the edge without any 

fall protection (Tr. 1006-07). 

Instance (e): Entire Third Floor: Perimeter protection was not provided 

along the open floor edge, exposing employees to a fall of approximately 24 

13 Signorile testified that just prior to taking the photo, both employees were involved in 

stripping the column. However, when the second employee, who was wearing green, saw him, he 

walked away (Tr. 1002). 

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feet, on or about 10/14/97. 

On the same day, the entire third floor lacked fall protection along the edge. 

Signorile testified that he had observed this condition on video, but could not recall 

seeing any employees working on the third floor (Tr. 1009). Given that Signorile was 

unable to point to any employee exposure, this item is vacated. 

Instance (f): Second Floor, East Area: Perimeter floor protection had been 

removed from the edge of the floor, on or about 10/21/97. 

On October 21, 1997, Signorile observed that the perimeter protection had been 

removed on the entire east side of the floor. He observed two employees, one the stripper 

foreman and the other an Avcon employee, bringing stripped material to the edge of the 

floor. The material would later be picked up by a crane. The two employees wore no belts 

or harnesses, and they were right at the edge of the floor. The shop steward, Cataliato, 

was with Signorile. Signorile asked the stripper foreman if this was the normal procedure 

of work -- stripping the material and bringing it to the edge of the floor and storing it. The 

stripper foreman said yes. Signorile asked Cataliato and the foreman if they tied off when 

they brought material to the edge of the floor or picked up a load from the crane, and they 

both replied “certainly.” When Signorile asked the foreman why he was not wearing a 

belt, the foreman responded that he had forgotten to put it on. The employees were 

exposed to falls of 20-24 feet (Tr. 1010-13). 

Instance (g): Third Floor East: Two employees working on installing 

stringers for a balcony, on or about 10/21/97. 

On October 21, 1997, Signorile observed two employees in the third floor east 

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area who were exposed to falls. These employees were installing steel stringers for the 

balcony area, and were the same employees mentioned in Instance C above. Shop 

steward Cataliato was with Signorile and identified the employees. While Signorile talked 

to Cataliato the two employees walked away, but not before Signorile took a photo. One 

employee had his back toward the open side and was about 1 foot away from the opening. 

The other employee was 5-6 feet away from the open side. They were both kneeling as 

they performed their jobs. The fall distance was 30 to 35 feet. On that same day, 

Georgiana was monitoring this floor. Signorile brought this condition to Georgiana’s 

attention, and inquired as to why the employees were not tied off. Georgiana replied that 

he had not seen any employees (Tr. 1014-17; Ex. C-63). Signorile testified that he had 

observed these employees in this area for approximately 3-4 minutes before he took the 

photo (Tr. 1017-18). 

Instance (h): Third Floor, East and West Area: Cable perimeter protection 

had been removed from the edge of the floor, on or about 10/29/97. 

On October 29, 1997, while on the ground level, Signorile observed employees 

working in the west area of the third floor. Perimeter protection had been removed from 

both the east and west sides of the third floor. Signorile learned that the cable perimeter 

protection had been removed when material had been stripped and employees forgot to 

put the perimeter cable back. Cataliato told Signorile that early in the morning he had told 

Nick and Bill to replace the cable protection, and they had told him that they would put it 

back (Tr. 1019-1020; Ex. C-64). Prior to taking a photograph of the condition, Signorile 

had observed employees stripping material approximately 1 foot from the edge of the 

floor. The fall hazard in this area was 30-35 feet. Signorile later learned from Cataliato 

and Greco that these employees worked for Avcon (Tr. 1020-22). 

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Instance (i): Fourth Floor, West Area: Cable perimeter protection had been 

removed from the edge of the floor, on or about 10/29/97 

On October 29, 1997, Signorile observed two to three employees walking and 

stripping on the fourth floor without any fall protection. They were working 

approximately 1 foot from the edge of the floor and were exposed to approximately a 

thirty foot fall hazard. Signorile learned from Bill that the cable protection had been 

removed from the edge of the floor in order to strip the floors. Cataliato told Signorile 

that he had mentioned this condition to Bill and Nick, who said that they would have the 

cable protection reinstalled. Cataliato informed Signorile that the employees working on 

the fourth floor were Avcon employees (Tr. 1022-25; Ex. C-65- employees had been 

observed in area to the left of photo). 

Instance (j): Seventh Floor, Column #27, South/West Corner: Three 

employees framing the eighth floor from the seventh floor were not 

protected from falling, on or about 11/17/97. 

On November 17, 1997, Signorile observed three employees framing the 8th floor 

from the 7th floor, at column #27, without any fall protection. They were at the edge of 

the floor exposed to a seventy to eighty foot fall. Greco and Cataliato identified these 

persons as Avcon employees. Signorile testified that Greco had remarked early that 

morning that both he and Cataliato mentioned to these three individuals to tie off (Tr. 

1028-29, 1082; Ex. C-101). 

Instance (k): Seventh Floor, West Side Balcony: Three employees framing 

the balcony were not protected from falling, on or about 11/18/97. 

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While on the ground, Signorile observed three employees framing the balcony on 

the 7th floor without fall protection. Cataliato and Greco identified them as Avcon 

employees. Prior to taking the photograph of the condition, Signorile saw the employees 

working at the edge and exposed to a fall hazard of 70 to 75 feet. (By the time he took 

the photo, the employees had moved away.) (Tr. 1030-32: Ex. C-67). 

Instance (l): Eleventh Floor, South/West Corner: Two employees framing 

and one employee marking the floor were not protected from falling, on or 

about 12/8/97. 

On December 8, 1997, Signorile approached the site with compliance officers 

Peist and Brown. From the car they observed employees working at the edge of the 11th 

floor without any fall protection. One employee was marking something on the deck, and 

the others were framing, nailing something down right at the edge of the 11th floor (Tr. 

1035). Nick later verified that these were employees of his company (Tr. 1036). The 

employees were exposed to a fall hazard of 110-115 feet. This condition was captured on 

video (Tr. 1037, 1082-83; Ex. C-101). 

Instance (m): Eleventh Floor, Northwest Corner: An employee framing the 

floor was not protected from falling, on or about 12/11/97. 

On December 11, 1997, Compliance Officers Signorile, Peist, Brown and Triscritti 

were approaching the jobsite, and from inside a car they observed an employee framing 

the floor. Later, they learned the name of the employee from Dominic Paniscotti. The 

employee was Jeff Georgiana, who was the son of Frank Georgiana, the general foreman 

on the job. The employee had no protection, and it was snowing that day He was right at 

the edge, exposed to a fall of 110-115 feet (Tr. 1038-39). 

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Instance (n): North Side, 11th Floor Balcony: One employee setting up a 

deck balcony with his back toward Prospect Ave. was not provided with fall 

protection, on or about 12/11/98. 

On December 11, 1998, from the car, Signorile observed an employee performing 

framing activities on the deck balcony on the eleventh floor with his back toward the edge 

of the deck. The employee was exposed to a fall hazard of 110-115 feet. Signorile, who 

was with his supervisor, Peist, went to the site, met with Nick, and told him about the 

exposure. Nick told them that he could not believe it, because employees had been given 

belts. So Nick went back to the area where the employee had been seen with Signorile 

and Peist. The employee was working with his back toward them, at the edge of the 

balcony. Signorile, Nick, and Peist walked to the area where they had seen the employee. 

The employee was still there, with his back toward them at the edge of the balcony. Nick 

could not tell Signorile and Peist why the employee was not wearing a belt, and he 

expressed shock at the employee’s action. Nick shouted to the employee to get off the 

balcony and get a belt (Tr. 1038-40). 

Instance (o): Eleventh Floor, South/East Area, South/West Area, South 

Area: Employees building columns, framing the deck and marking out the 

deck, were not protected from falling, on or about 12/15/97. 

The video tape of December 15, 1997 showed employees walking and performing 

various tasks at the edge of the south, southeast and southwest areas of the 11th floor. 

Employees were marking the deck, working on columns, and walking along the sides of 

the 11th floor. No fall protection was in use, although one employee was observed 

wearing a belt and lanyard. The fall distance was more than 100 feet to the ground level. 

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Nick was subsequently shown the video, and he identified the employees as Avcon 

employees. The video also depicted three employees performing work at the outer edge of 

the deck as they put on safety harnesses and attached their lanyards to reinforcing steel 

after OSHA personnel entered the site (Tr. 1043-46;1083-89; Ex. C-101). 

Instance (p): Tenth Floor, South/East Area: One employee stripping the 

balcony was not protected from falling, on or about 12/15/97. 

On December 15, 1997, Signorile observed an employee engaged in stripping 

activity at the edge of the balcony on the tenth floor. No fall protection was present, and 

the employee was exposed to a 100 foot fall hazard. Nick saw the video and identified 

the worker as an Avcon.employee (Tr. 1047; Ex. C-101- 05:11.16.25-05:11.49.17). 

Instance (q): Ninth Floor, South/East Corner: One employee stripping the 

balcony was not protected from falling, on or about 12/15/97. 

Upon viewing the video, Signorile observed an employee stripping and bending 

rebar at the edge of the balcony on ninth floor southeast corner. The employee wore no 

belt or harness and was not otherwise protected from falling over 100 feet below. Nick 

was shown the video and verified that the employee worked for Avcon (Tr. 1047-48, 

1090-91; Ex. C-101). 

Classification and Penalty 

Section 17(k) of the Act, 29 U.S.C. §666(k), provides that a violation is “serious” 

if there is “a substantial probability that death or serious physical harm could result” from 

the violation. In order to establish that a violation is serious, the Secretary need not 

establish that an accident is likely to occur, but must show that an accident is possible and 

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it is probable that death or serious physical harm could result. Flintco Inc., 16 BNA 

OSHA 1404, 1405 (No 92-1396, 1993). In the present case, the citation for violating the 

fall protection standard was appropriately classified as serious because employees could 

have fallen more than 100 feet and suffered multiple injuries or death. 

Once a contested case is before the Review Commission, the amount of the 

penalty proposed in the Citation and Notification of Proposed Penalties is merely a 

proposal. The Review Commission is the final arbiter of penalties. In determining 

appropriate penalties, “due consideration” must be give to the four criteria under Section 

17(j) of the Act, 29 U.S.C., §666(j). These “penalty factors” are: the size of the 

employer’s business, the gravity of the violation, the employer’s good faith, and its prior 

history. J. A. Jones Construction Co., 15 BNA OSHC 2201, 2213-14 (No. 87-2059, 

1993). 

The gravity of the violation in the present case was considered high because of the 

nature of the expected injuries, and the probability of injury greater because employees 

were standing right at the edge of floors without fall protection (Tr.985). The gravity 

based penalty was adjusted to reflect the Respondent corporation’s size, with a 20% 

reduction for this factor (Tr. 440, 985). No adjustment was allowed for good faith or 

history because of the presence of willful violations and Respondents’ history of prior 

final orders (Tr. 443-44) 14 . Given these factors, I find that a penalty in the amount of 

$3,000.00 is appropriate for Citation 1, Item 9. 

Citation 2 Item 2a 

Instance (a): Eighth Floor: Employees framing the floor were not protected 

from falling, on or about 11/24/97. 

14 These adjustments to the gravity-based penalty are reflected in the remaining proposed 

penalties in all of the affirmed citations in both dockets. 

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On November 24, 1997, through his binoculars Signorile observed approximately 

eleven employees, including the carpenter foreman, Dominic Paniscotti, framing and 

marking the 8th floor. The employees were not wearing belts or harnesses and were 

exposed to falls of seventy feet (Tr. 882-84;1104-05; Ex. C-101). 

Instance (b): Seventh Floor, Employees framing the eighth floor from the 

seventh floor were not protected from falling, on or about 11/24/97. 

On November 24, 1997, Signorile observed through his binoculars five employees 

framing the 8th floor from the 7th floor without any fall protection. These employees 

were one to two feet from the edge and the fall distance was 70 to 75 feet. When shown 

the video, Nick identified these employees as Avcon employees (Tr. 888-89;1101-02, 

1105-06; Ex. C-101). Foremen were in the vicinity of the exposed workers (Tr. 895). 

Instance (c): Seventh Floor, South/West Corner: Employees stripping the 

floor were not protected from falling, on or about 11/24/97. 

On November 11, 1997, two employees, one the carpenter foreman, Dominic 

Paniscotti, were observed on the 7th floor southwest corner, stripping at the edge without 

fall protection. They were stripping a column and the bottom of the ceiling above. This 

activity was videotaped (Tr. 889-91,1106; Ex. C-101). 

Instance (d): Sixth Floor Balcony, West Side Area: One employee bending 

steel rebars was not protected from falling, on or about 11/24/97. 

Signorile observed on video tape that on November 24, 1997 one employee was 

one to two feet from edge of the sixth floor balcony, west area. He was using a pipe to 

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bend steel rebars that were protruding. (Tr. 891-92; 1107; Ex. C-101) Bill identified the 

worker as his employee. The employee was wearing a harness, but he was not tied off. 

(Tr. 892) 

Instance (e): Seventh Floor, West Side Area: Two employees stripping 

and/ or removing excess concrete were not protected from falling, on or 

about 11/24/97. 

Signorile observed on video tape that on November 24, 1997, on the 7th floor, two 

(2) employees were using a hammer to remove excess concrete from the edge of the floor. 

They were leaning or kneeling over to the edge to remove the excess concrete, and were 

exposed to a seventy foot fall hazard. This violation was taking place in the presence of 

Bill Saites, the carpenter foreman, Georgiana, and the shop steward, Cataliato (Tr. 893­

94;1097-1100; Ex. C-101, C-103). 

Citation 2 Item 2b 

Instance (a): Ninth Floor, West Side: An employee was 

picking up metal brackets and was not protected from falling, 

on or about 12/8/97. 

On December 8, 1997, while interviewing Bill on the 9th floor of the building 

Signorile and Peist observed a worker picking up metal brackets about one to two feet 

from the edge of the floor. As he traveled about 10 feet along the edge, he was exposed to 

a 90-95 foot fall. Bill identified the worker as his employee (Tr. 897-98). They 

discussed this condition with Bill, who said that he did not believe the employee needed 

to be tied off because he was not at the edge (Tr. 899). 

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Citation 2 Item 2c 

Instance (a): Tenth Floor, East Side: Three employees were stripping wood 

forms and were not protected from falling, on or about 1/7/98. 

Signorile observed on video tape three employees stripping the tenth floor, east 

side on January 7, 1998. They were at the edge of the floor, and there was a single cable 

wire along the edge. The cable had more than three inches of slack , and there was no 

mid-rail. The employees crawled under the wire to work at the edge, and at times an 

employee leaned over the cable protection. No fall protection was in use, and the fall 

hazard was more than 100 feet. Georgiana, the foreman, acknowledged in the video he 

was directing the work and sometimes assisting the Avcon employees (Tr. 900-03, 1108­

09; Ex. C-101). 

Instance (b): Thirteenth Floor, South Side Area: Three employees working 

near the edge of the floor were picking up stripped lumber and steel 

brackets and were not protected from falling, on or about 1/7/98. 

On January 7, 1998, while approaching the jobsite, Signorile observed through his 

binoculars three employees leaning over and picking up stripped lumber and steel 

brackets near the edge of the floor. There was no fall protection, and the employees were 

exposed to a 130 foot fall hazard. Signorile recognized one of the employees as Bob 

Gallagher, a foreman whom he had met at the beginning of the inspection. When 

interviewed later, Gallagher acknowledged that he and two other employees were 

cleaning up the floor, and that they were not wearing fall protection. Gallagher said that 

he should have told the employees to wear fall protection (Tr. 903-07, 909-13; Ex. C-73). 

Willfulness 

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A violation is willful if committed with intentional disregard for the requirements 

of the Act or with plain indifference to employee safety. Williams Enterp., Inc., 13 BNA 

OSHC 1249, 1256 (No. 85-355, 1987). Thus, the focal point of a willful classification is 

the employer’s state of mind when the violation was committed. Brock v. Morello Bros. 

Constr., 809 F.2d 161, 164 (1 st Cir. 1987); Monfort of Colorado, Inc., 14 BNA OSHC 

2055, 2062 (No. 87-1220, 1991). The Secretary must show that the employer had a 

“heightened awareness” of the illegality of the conduct at issue. E.g., Pentecost Contrac. 

Corp. 17 BNA OSHC 1953, 1955 (No. 92-3788, 1997); Williams Enterp., Inc., at 1256­

57. An employer who knows an employee is exposed to a hazard and fails to correct or 

eliminate the hazardous exposure commits a willful violation if the employer knows of 

the legal duty to act, because an employer’s failure to act in the face of a known duty 

demonstrates the knowing disregard that characterizes willfulness. See Sal Masonry 

Contrac., Inc., 15 BNA OSHC 1609, 1613 (No. 87-2007, 1992); accord A. Schonbek & 

Co., 9 BNA OSHC 1189, 1191 (No. 76-3980, 1980), aff’d, 646 F.2d 799, 800 (2d Cir. 

1981); Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1541, (No. 86-360, 1992). 

Alternatively, the Secretary can establish willfulness by showing that the employer had a 

state of mind such that, if informed of the duty to act, it would not have cared. Morello, 

809 F.2d at 164. The state of mind of a supervisory employee - his or her knowledge and 

conduct - may be imputed to the employer for purposes of finding that the violation was 

willful. Continental Roof Sys., Inc., 18 BNA OSHC 1070, 1071(No. 95-1716, 1997); 

Conie Constr., Inc., 16 BNA OSHC 1870, 1872 (92-264, 1994), aff’d, 73 F.3d 382 (D.C. 

Cir. 1995). The Third Circuit, the jurisdiction in which the present case arises, has held 

that a willful violation is characterized by an “obstinate refusal to comply” with safety 

and health requirements. This test “differs little from” the Commission and majoritycircuit test. Universal Auto Radiator Mfg. Co. v. Marshall, 631 F.2d 20, 23 (3d Cir. 

1980) (quoting Babcock & Wilcox v. OSHRC, 622 F.2d 1160, 1167-68 (3d Cir. 1980)). 

Respondents argue that the record does not show “heightened awareness” or a 

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“deliberate flaunting of the Act.” (Respondents’ Post-Trial Brief, p. 97) However, I find 

that at the time these violations were observed, Respondents had heightened awareness 

that the cited conduct was illegal. Respondents and their supervisory personnel were 

aware of OSHA standards requiring fall protection. There had been prior citations or 

other warnings regarding the need for fall protection on similar jobsites. Despite 

Respondents’ knowledge of OSHA’s fall protection standards, no meaningful safety 

program exited at the Excelsior Two jobsite which addressed these issues. The record 

indicates that on the first day of the inspection, October 9, Nick was present during the 

walkaround when two employees were observed stripping the column of the second floor 

without protection. Signorile brought this to the attention of Nick, and the employees 

were told to walk away and get some belts (Tr. 839). At that time Signorile discussed 

with Nick the choices the company had with regard to various conventional fall 

protection systems. Nick informed him that he was familiar with employees tying off 

(Tr. 885-86). Furthermore, on the first or second day of the inspection, in order to apprise 

Nick of the changes in OSHA’s fall protection standards, Signorile provided Nick with a 

copy of OSHA’s fall protection standard with its preamble. At that time Signorile 

reviewed the requirements of the standard with Nick (Tr. 4610-12; Ex. C-116). He also 

provided Nick with several handouts which pertained to available options for protecting 

workers on the top deck (lifeline systems and net systems), and which addressed Nick’s 

concerns about the infeasibility of protecting these workers. Signorile explained that the 

standard contained several options with respect to fall protection (Tr. 4612-15; Exs. C117 and 118). During the course of his inspection, Signorile had similar conversations 

with Bill, the foremen, and shop stewards (Tr. 886-87). Despite this information, 

Respondents and supervisory personnel continued to permit employees to work in the 

same manner which Signorile had informed them was in violation of the requirements of 

the standard. 

I also find that Respondents’ previous contacts with OSHA provided some 

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knowledge of OSHA’s fall protection requirements. Companies owned and/or operated 

by Bill and Nick Saites had been cited for fall protection violations on several previous 

construction projects. Under the ownership and presidency of Bill Saites, Astro was 

issued three (3) serious citations, one (1) repeated citation, and three (3) willful citations 

for failing to guard open-sided floors in accordance with 29 C.F.R. § 1926.500(d)(1). 

These citations were issued between May 30, 1974 and June 11, 1980. 15 In addition, 

Astro Concrete was issued one serious citation on October 11, 1974 for violating the 

standard in 29 C.F.R. 1926.105(a) by failing to provide safety nets or other fall protection 

for workplaces more than 25 feet above ground.16 

I also note that, after Astro was sold to Nick in 1983, this company was issued one 

(1) serious citation pursuant to 1926.500(d)(1)17 , and two (2) serious citations pursuant to 

1926.105(a).18 These citations were issued between December 20, 1989 and December 

15 Ex. C-23 (Inspection No. 011173416); Ex. C-24 (Inspection No. 011087251); Ex. C-25 

(Inspection No. 011180676); Ex. C-26 (Inspection No. 011065505); Ex. C-32 (Inspection No. 

011168473); Ex. C-33 (Inspection No. 011167962); Ex. C-34 (Inspection No. 011167343). 

The standard formerly codified at 29 C.F.R. 1926.500(d)(1) was revised on August 9, 1994 

along with all of Subpart M ("Fall Protection") (Ex. C-116). In pertinent part, the standard at 

1926.500(d)(1) previously provided as follows: 

Every open-sided floor or platform 6 feet or more above adjacent floor or ground 

level shall be guarded by a standard railing, or the equivalent,...on all open sides, 

***. 

16 Ex. C-33 (Inspection No. 011167962). 

The standard at 29 C.F.R. 1926.105(a) provides as follows: 

Safety nets shall be provided when workplaces are more than 25 feet above the 

ground or water surface, or other surface where the use of ladders, scaffolds, catch 

platforms, temporary floors, safety lines, or safety belts is impractical. 

17 Ex. C-11 (Inspection No. 109867689). 

18 Ex. C-11 (Inspection No. 109867689); Ex. C-14 (Inspection No. 101502029). 

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27, 1990. Three of the settlement agreements entered into by Astro were signed by Nick 

(Ex. C-36, C-37, C-39). During the December 1990 inspection, there were discussions 

with Bill and Nick regarding fall protection systems (Tr. 716-719) 

Finally, when Nick owned Cornicon, this company was issued one (1) serious 

citation and one (1) willful citation pursuant to 1926.500(d)(1) between January 10, 1986 

and April 29, 1986.19 As a result of the serious citation issued January 10, 1986, Peist had 

a discussion with Nick about OSH standards were and what OSHA was looking for with 

regard to fall protection. Cornicon was also issued one (1) serious citation and one (1) 

one willful citation for violations of 1926.105(a) between April 29, 1986 and February 2, 

1987. 20 In addition, when Bill Saites owned WNS Construction, the company was issued 

two (2) serious citations pursuant to 1926.500(d)(1) between June 14, 1982 and August 

11, 1982. 21 All of the above-mentioned citations became final orders of the Review 

Commission (Tr. 358, 362, 367). 

Despite their extensive history of OSHA citations and knowledge of OSHA 

requirements, respondents made no plans or preparations for the use of fall protection at 

the Excelsior Two site, nor did they enforce any procedures whatsoever for the use of fall 

protection. Respondents did not contact a professional engineer or other knowledgeable 

professional or supplier in the fall protection business (Tr. 301, 4253-56, 2605-06). 

Respondents did not review any literature regarding available fall protection equipment 

(Tr. 301, 166-68). Respondents did not seek permission from the project engineer to 

embed anchorages or other fall protection equipment into the concrete as it was poured 

(Tr. 4261-4264). Furthermore, the record establishes that the Respondents inquired about 

19 Ex. C-44 (Inspection No. 017689993).This citation was issued by Respondents' current 

safety consultant, Joseph Rufolo, when he was Area Director of the Avenel, New Jersey, OSHA 

office (Tr. 371-76). 

20 Ex. C-41 (Inspection No. 101627610); Ex. C-43 (Inspection No. 017693771). 

21 Ex. C-46 (inspection No. 011090404); Ex. C-47 (Inspection No. 011268034). 

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the price of nets as a means of fall protection with regard to this project at the beginning 

of the job. Respondents found the cost of nets high, and then took no other action with 

regard to fall protection on the site (Tr. 297-300). 

Additionally, when Signorile visited the site on October 14, 1998, several months 

into construction activities, he discovered that respondents had made no arrangements 

with the general contractor for the installation of perimeter cable on floors where 

Respondents' employees were exposed to fall hazards (Tr. 80-81, 1005-06). Nick Saites 

maintained that Avcon was not contractually responsible for the perimeter protection (Tr. 

1005). However, the superintendent of the general contractor, Sal Manino, did not know 

which company was responsible for perimeter protection and indicated that he would 

"check with his office." When Signorile returned to the site several days later, he was 

informed that Tenwood and Avcon had agreed that Tenwood would purchase the 

perimeter cable, and Avcon employees would install it (Tr. 1006). When Signorile 

visited the site two weeks later, on October 29, he observed that the third and fourth 

floors of the building lacked perimeter protection even though Respondents' employees 

were engaged in stripping activities on those floors and were exposed to fall hazards. The 

shop steward informed Mr. Signorile that he had made a request to Nick Saites earlier in 

the day to replace the perimeter protection on those floors; however, the protection was 

not restored before the employees began working (Tr. 1018-19, 1023). The failure to 

even consider the general issue of perimeter protection in advance of the work activities ­

- and the failure to include such provisions in the contract -- demonstrates a callous 

disregard for the requirements of the Act. The record also establishes that guardrails 

were removed from column rebar in order to frame columns, and that entire floors of the 

structure were without perimeter guarding even though future work would be performed 

on these floors. (Tr. 2530, 2533) 

Although safety belts were present at the site, they were kept in a gang box, and 

employees brought their own belts to the job (Tr. 2148). Belts were not required on the 

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job, and the use of safety belts and lanyards was left completely to the discretion of each 

employee. If the employee "found" an attachment point in his work area, he could 

choose to use fall protection. However, respondents had never devised any plans to 

provide adequate attachment points (Tr. 2591-97, 4249-50). Accordingly, employees 

were never required to use fall protection -- even under the close supervision of 

management. Indeed, management officials themselves were observed performing work 

at the edge of the building without fall protection (Tr. 890, 895, 1016, 1893-94). 

Management officials were also observed supervising employees who were crawling 

under perimeter cables (Ex. C-101 - 07:18.59.19-07:19.27.18). Employees were 

routinely assigned to perform tasks at the edge of the building which would expose them 

to falls in excess of 100 feet, without any procedures in place to provide fall protection. 

Employees who elected not to use fall protection were not disciplined. Management 

officials who elected not to use fall protection were also not disciplined (Tr. 2949-51). It 

is abundantly clear that Respondents did not require fall protection at this worksite. 

William P. Kelly was a carpenter for Respondents at the Excelsior Two project for 

almost the entire duration of the job (Tr. 1484-86). Kelly had been a union carpenter for 

twenty years and had worked on a wide variety of construction projects, including highrise buildings (Tr. 1513-14). Kelly had never seen safety belts at the Excelsior Two site 

until a worker fell 25 feet while framing a concrete beam early in the job (Tr. 1495-96, 

1499). Belts were handed out after the accident, but their use was never enforced (Tr. 

1499-1500). Belts were worn only when OSHA personnel were on-site (Tr. 1499). Bill 

Saites would warn everyone to put on their safety belts and to put up guardrails because 

"OSHA's here" (Tr. 1499, 1503). After OSHA personnel exited the site, guardrails were 

sometimes dismantled and the lumber was used for construction purposes (Tr. 1503). 

When OSHA inspectors were not on-site, nothing was said about the use of belts and 

their use was left up to the employee (Tr. 1500). Also, foremen were well aware that 

employees worked without fall protection (Tr. 1501). Kelly worked without fall 

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protection, under the direct supervision of a foreman, while standing one foot from the 

edge of the building on the fourteenth or fifteenth floor (Tr. 1517). I find that this 

conduct demonstrates a conscious disregard of the terms of the standard, and also shows 

disregard for the advice of compliance officers. 

I further find that the willfulness of the violations is demonstrated by Respondents’ 

failure to provide any form of fall protection for their employees during the course of 

this inspection - except when forced to do so by the presence of OSHA compliance 

officers (Tr. 1499, 3107, 3110, 3149-51, 3321-22, 3475-76, 3598-99, 4187;Ex. C-101 ­

05:33.55.19 - 05:34.03.17; 103 - 04:29:38.20). 

Classification and Penalty 

The citations were properly classified as serious because an employee could have 

fallen more than 100 feet and suffered multiple injuries or death. The gravity of these 

violations was high. The severity of the violation was high because falls from the cited 

heights could have lead to death. The probability was greater because the employees were 

working right at the edge of the floors (Tr. 894-95, 916). In light of the gravity and willful 

nature of these violations, I find that no adjustment for size, history (the Saites’ had a 

history of fall protection citations at prior jobsites) or good faith should be made (Tr. 443­

45). I believe that the proposed penalty of $70,000.00 is necessary to deter future 

violations, and is consistent with the statutory criteria. 

AFFIRMATIVE DEFENSES 

In defense of these items, Respondents claim infeasibility of compliance. This 

defense requires the employer to show that the means of compliance set out in the 

standard was technologically or economically infeasible and that there was no feasible 

alternative means of protection. V.I.P. Structures, Inc., 16 BNA OSHC 1873, 1874 (No. 

91-2267, 1997). The Third Circuit, where this case arose, analyzes this defense in terms 

of “impossibility” rather than infeasibility. That is, the employer must show that it was 

impossible to comply with the standard, or that compliance would have precluded 

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performing the work, and that no alternative protective means were available. E & R 

Erectors, Inc. v. Secretary of Labor, 107 F.3d 157, 163 (3d Cir. 1997) 

It is Respondents’ position that, at the time of inspection, nets were not possible 

because concrete curing time precluded the embedding of anchorages capable of 

maintaining the pour cycle. Respondents also argue that the plans and specifications on 

which Avcon bid did not contain structural embedding for fall protection nets. Finally, 

they claim that fall arrest/fall restraint systems were infeasible because the form work 

was not designed to anchor these devices and because anchorage strength and the curing 

time of concrete columns on the stripping floors were insufficient. Respondents presented 

lay testimony and expert testimony in support of their assertion that it was infeasible to 

provide conventional fall protection on the Excelsior Two jobsite. 

After reviewing the record, I reject Respondents’ infeasibility defense. As noted by 

the Secretary, there was no preplanning on the part of Respondents, no inquiry into 

available fall protection equipment, no consultation with qualified persons, and no 

development of a construction sequence which would accommodate available fall 

protection equipment. (Secretary’s Post-Hearing Brief, p.63). The record shows that 

during the planning of this job Respondents ignored their obligation to provide fall 

protection, and made no attempt to comply with the fall protection standards. There was 

not even a clear understanding between Respondents and the general contractor as to who 

would provide guardrails on the site (Tr. 84, 1005). Prior to the start of this job, 

Respondents did not conduct any research to find out if fall protection standards had 

changed since their last construction job, in 1991 (Tr. 2550). Respondents acknowledge 

that there was some discussion about the costs of nets. However, no other inquiries were 

made (Tr. 2568-70, 4274-79). Respondents made no efforts to seek any other equipment 

for fall protection. The Commission has held that “we expect employers to exercise 

some creativity in seeking to achieve compliance.”Gregory & Cook Inc., 17 BNA OSHC 

1189, 1191 (No. 92-1891, 1995); Pitt -Des Moines, Inc., 16 BNA OSHC 1429, 1433 (No. 

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90-1349, 1993) (“The Commission has long recognized that standards will in some 

instances, require some creativity on the part of employers to achieve compliance.”) I find 

that Respondents made no effort to achieve compliance with the fall protection standards. 

The record demonstrates that Respondents simply ignored their obligation to provide fall 

protection when planning work at the Excelsior Two site. 

Respondents attempted to support their lack of action by eliciting testimony from 

lay witnesses which indicated that the methods involved in Respondents’ type of work 

had not changed since the 1960's, and that there were no available methods of fall 

protection (Tr. 2935-38, 2952-53, 2957, 3016, 3057-58, 3062, 3130, 3280, 3790). 

Respondents' lay witnesses testified, on the basis of their construction experience, that 

wooden form work (i.e., column forms, legs, stringers, ribs) could not provide an 

adequate anchorage point for a personal fall arrest system. 22 They testified that safety 

nets could not be used in their "four-day pouring cycle" because supporting base plates 

could not be installed in the concrete floors until the concrete had cured for 28 days. 

Respondents' witnesses also testified that guardrails attached to column rebar must be 

removed when the column is framed, and that guardrails cannot otherwise be installed.23 

I am unable to give weight to the testimony of Respondents’ lay witnesses. The 

witnesses’ opinions were offered without any supporting scientific or professional data or 

22 This testimony was in reference to 29 C.F.R. §1926.502(d)(15), which provides as 

follows: 

Anchorages used for attachment of personal fall arrest equipment shall be 

independent of any anchorage being used to support or suspend platforms and 

capable of supporting at least 5,000 pounds (22.2 kN) per employee attached, or 

shall be designed, installed and used as follows: 

(I) as part of a complete personal fall arrest system which maintains a 

safety factor of at least two; and 

(ii) under the supervision of a qualified person. 

23 Tr. 2101-02, 2116-17, 2159-60, 2952-54, 2969-70, 3978-79, 4154-57, 4162. 

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tests (Tr. 3121-23, 3308, 3405, 3520, 3523, 3565, 3700, 3748-50, 3858-59). Also, these 

witnesses were unfamiliar with OSHA’s fall protection standards (Tr. 3115-17, 3121, 

3240, 3370-7, 3405, 3407-09, 3497, 3502-03, 3572-73, 3590-92, 3597, 3636-37, 3693, 

3747-48, 3833-34, 3837, 3853-55). I find that the Secretary’s expert rebuttal witnesses 

refuted each of the contentions of Respondents’ witnesses. See discussion infra. I also 

find that, because the language of the fall protection standards is precise, Respondents’ 

attempt to use its witnesses testimony as evidence of industry custom and practice is of 

no consequence. See Superior Rigging & Erecting, Docket No 96-0126 (April 5, 2000) 

and cases cited therein (industry custom and practice are not relevant where the language 

of a standard, as defined by its legislative history, is clear and unambiguous). 

EVALUATION OF EXPERT WITNESS TESTIMONY 

In evaluating any witness testimony Fed. R. Evid. 104(a) requires that I make a 

preliminary determination concerning the qualification of a person to be a witness, and 

the admissibility of evidence. When presented with the proffer of expert testimony 

before admitting or excluding such testimony a preliminary determination governed by 

Fed. R. Evid. 702 must be made. This rule contains three major requirements: (1) the 

proffered witness must qualify as an expert by knowledge, skill, experience, training, or 

education; (2) the expert must testify to scientific, technical or specialized knowledge; 

and (3) the expert’s testimony must assist the trier of fact 24 This preliminary task ensures 

that the expert testimony meets a minimum threshold resting on a reliable foundation and 

is relevant. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 595, 113 S. 

Ct. 2786, 2795-96 (1993), the Supreme Court provided a framework for judges to use 

24 Rule 702. Testimony by Experts 

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the 

evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, 

experience, training, or education, may testify thereto in the form of an opinion or otherwise. 

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when deciding whether to admit expert testimony pursuant to Rule 702. The “Daubert 

test” established a gatekeeping role for trial judges that requires them to determine the 

relevance and reliability of scientific expert testimony before allowing its admission. Id. 

at 597 25 . The Supreme Court confirmed in Kumbo Tire Co. v. Carmichael, 526 U.S. 137 , 

119 S.Ct 1167 (1999) , that the Daubert inquiry is not limited to scientific experts, held 

that courts have an obligation to fulfill their Daubert gatekeeping responsibilities with 

regard to all expert testimony whether based on scientific or nonscientific knowledge. ( 

See also In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717 (3d Cir. 1994), cert. 

denied, 115 S. Ct. 1253 (1995). 

Respondents have also attempted to show the infeasibility of fall protection 

through the testimony of Leo DeBobes, an expert witness. DeBobes is a certified safety 

professional who is involved in the recognition, identification, and control of safety 

hazards. DeBobes has a Bachelor of Science degree from the New York Institute of 

Technology, and a Masters degree in Occupational Safety and Health from New York 

University (1985). He is also a certified hazard control manager. DeBobes is certified by 

New York as a workplace loss prevention consultant. He is a member of American 

Society of Safety Engineers, the American Industrial Hygiene Association, and the 

National Safety Council He has received an award from the American Society of Safety 

Engineers (Tr. 3917-18). DeBobes began working in construction safety in 1977. He 

initially worked as a safety inspector, moved up to senior inspector, and eventualy 

supervised a group of inspectors at the Shore Nuclear Power Station - probably the largest 

construction project on Long Island. From there, he began work as a safety administrator 

for Estee Lauder. He then went to United Technologies Corp., becoming the manager of 

occupational safety and health engineering, a job in which he was responsible for 

25 The majority in Daubert wrote “the Rules of Evidence - especially Rule 702 - do assign 

to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation 

and is relevant to the task at hand.” Id. 

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multiple facilities. DeBobes subsequently worked as project engineer responsible for 

construction safety at Brook Haven National Laboratory. He later was Assistant Director, 

and then Director, of Environmental Health and Safety for the State University of New 

York at Stony Brook. DeBobes then served as head of Brook Haven National 

Laboratory’s environment, safety and health program (Tr. 3918-19). As a consultant, 

DeBobes has worked primarily for attorneys, performing forensic work. DeBobes 

returned to Stony Brook this past April, and is now on special assignment at Stony Brook 

with responsibility for a number of areas (Tr. 3917-20, 3938-39). 

Although DeBobes possesses general expertise in professional safety, he has no 

specialized knowledge in that aspect of professional safety relevant to this case: the 

feasibility of fall protection on high-rise concrete construction projects. Thus, I find that 

his testimony is entitled to little weight. DeBobes’ experience on poured-in-place, highrise construction projects is limited to one project during the years 1977-81 (Tr. 3929-31, 

4038). 26 DeBobes acknowledged that he has never designed a fall protection system or a 

personal fall arrest system for a multi-story, poured-in-place structure, or assessed the 

structural integrity of anchorage (Tr. 3938-39). DeBobes also said that he has never 

talked to anyone who has designed anchor points for harnesses or belts for high-rise, 

poured-in-place concrete structures (Tr. 4037). Finally, although DeBobes testified that 

he has read professional journals which address fall protection on high-rise, poured-inplace concrete structures, he was not able to recall the names of any of these journals (Tr. 

3932). I find that DeBobes’ lack of knowledge regarding the evaluation of fall protection 

systems on high-rise structures is critical, and greatly reduces the weight of his testimony. 

I also find that DeBobes’ testimony regarding the feasibility of fall protection 

26 His responsibilities on that project were to do field inspections, to do training for the 

various craft workers, to make sure the ppe was issued , to make sure that it was being used, to 

make sure workers abided all safety regulations - OSHA, NY State and contractors. Inspections 

of scaffolds, ladders, floor and wall openings and holes, rigging activities, crane hoisting 

operations, concrete pours, excavation and trenching, confined spaces. (Tr. 4026-27). 

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systems at the Excelsior Two worksite is entitled to little weight for a number of other 

reasons. DeBobes acknowledged that the only safety professional with whom he has 

discussed any of his opinions regarding fall protection on poured-in-place, high-rise 

concrete construction is Joe Rufulo, an in-court advisor to Respondents. DeBobes 

testified that he had also talked to a second individual, whom he could not identify. This 

person had been referred to him by Mr. Rufulo and Respondents’ counsel. He testified 

that this person gave him no real information with regard to any of his inquiries (Tr. 

3929- 36). I find that DeBobes’ discussions with Rufalo and the unnamed individual 

were, at most, Respondents’ attempts to educate DeBobes in the area of fall protection on 

high-rise buildings, and that these discussions do not strengthen his testimony. 

I also note that DeBobes’ opinions were not based upon any professional studies 

of or personal experience with reinforced concrete high-rise construction. DeBobes 

acknowledged that his opinion regarding the feasibility of nets at the Excelsior Two 

worksite had nothing to do with discussions he had with anyone in the business of 

installing or moving nets (Tr. 4080-81). He also testified that he had relied upon ANSI 

(American National Standards Institute) standard A10.9 in formulating his opinions, and 

testified regarding his interpretation of this standard (Tr.3958, 3989, 4024). However, 

DeBobes did not discuss his interpretation with anyone knowledgeable about the 

standard. 27 DeBobes also testified regarding his interpretation of several other OSHA 

standards (Tr. 3070-72, 3978, 4000). Again, DeBobes never discussed his interpretations 

with anyone from OSHA, or with any other safety professional. He also acknowledged 

that he knew of no literature which supported his interpretations (Tr. 3935-36, 4041, 

4038, 4051, 4079). 

27 He testified that he had relied upon ANSI 10.9 (which prohibits the use of reinforcing 

steel as guy attachments at deadman anchorage points) for the proposition that rebar cannot be 

used, but admitted that this was only his personal interpretation of a standard, and that he had no 

experience and had not discussed this interpretation with anyone in the field (Tr. 3989, 3997; Ex. 

C-115) 

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Finally, I note that much of DeBobes’ testimony was not even relevant. The issue 

here is whether fall protection was feasible. DeBobes’ testimony consisted for the most 

part of his interpretations of various OSHA terms, such as “leading edge” and “anchorage 

points.” This testimony was not relevant, and would have been properly excluded. 

Although I find that even DeBobes’ uncontradicted testimony does not establish 

the affirmative defense of infeasibility and/or impossibility, I think it is important to 

comment upon the testimony of the expert witnesses whom the Secretary introduced on 

rebuttal. This testimony was very credible, and provides further support for my finding 

that Respondents have not established an infeasibility defense. 

Matthew J. Burkart, a professional engineer, and Daniel Paine, a fall protection 

consultant with forty years of experience in the business, provided expert testimony 

regarding the feasibility of conventional fall protection at the Excelsior Two project. I 

find that the testimony of both Burkart and Paine is reliable and relevant. 28 Burkart is a 

consulting engineer whose firm has been providing engineering services in various 

capacities since 1975. 29 Burkart has a degree in civil engineering and previously worked 

as a union carpenter with reinforced concrete form work (Tr. 4444, 4447). His college 

course work in engineering included nine to twelve semester hours devoted to reinforced 

concrete (Tr. 4450). Burkart's consulting firm is engaged in, among other things, 

construction management services which include "manag[ing] the entire construction site, 

from working with the owner in the design phase through the management construction 

and final completion." (Tr. 4446-47) His company has provided consulting services for 

companies performing reinforced concrete construction (Tr. 4448-50). Most recently, his 

28 My findings mirror the Secretary’s Post-Trial Brief at pp. 64-70. 

29 See Ex. C-113 - curriculum vitae 

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company designed a fall protection system on a reinforced concrete structure. 30 Almost 

all of the reinforced concrete structures that he has seen or worked on as an engineer have 

been multi-storied (Tr. 4462-63). Burkart's firm also provides safety training to 

contractors, and Burkart has lectured at technical and professional seminars around the 

world on the subject of construction safety (Tr. 4446, 4452). Burkart has served on ANSI 

committees and is a member of the American Concrete Institute and other professional 

organizations (Tr. 4450-51).31 Burkart has taught a fall protection seminar and has 

advised contractors on fall protection systems (Tr. 4448-49, 4456). 

Burkart testified that concrete generally achieves 90% of its ultimate strength in 28 

days; however, contractors do not have to wait 28 days before anchorages or straps can 

be imbedded in the concrete (i.e., for personal fall arrest systems) or before base plates 

can be installed to support safety net systems (Tr. 4483-84). The manufacturer of the 

base plates, straps or anchorages will specify the degree of strength required by the 

concrete to support the devices, and that required strength may be achieved within several 

days (Tr. 4482). 32 If the required strength cannot be achieved within the time frame 

desired by the contractor, the contractor can accelerate the curing time of the concrete by 

modifying the composition of the concrete (i.e., the ratio of cement, sand, gravel and 

30 A series of horizontal lifelines to reinforcing steel/rebar projecting from columns above 

the deck that they were framing, and then attached to either a retractable lifeline on a reel or 

sliding lifeline, to which employees attached their lanyards (Tr.4449-50, 4501). 

31 He explained that ANSI a-10, Section 3.5.3 does not prohibit the use of rebar to anchor 

a personal fall arrest system. This section prohibited the use, as a guy attachment, to steady other 

reinforcing steel. This would preclude using the reinforcing steel as a guy attachment for a deadend anchorage attachment. He knew of no industry standard which prohibited the use of rebar to 

anchor a personal fall arrest (Tr. 4500). 

32 He testified that in his business he has reviewed drawings where something had to be 

attached to the structure and approval from design engineers was necessary. (Tr. 4465-66). He 

knows of no instances of the design engineer not giving permission to place embedment in 

concrete (Tr. 4467). 

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water) or by placing additives in the concrete mix (Tr. 4474-76, 4478-79; Ex. C-112). 

Alternatively, the contractor could use larger base plates or anchorages which would 

distribute support for the intended load over a larger area, which would require a lower 

compressive strength in the concrete and reduce the curing time (Tr. 4482-84). 

Burkart also testified that contractors are required to design form work to 

withstand all anticipated vertical and lateral loads (Tr. 4486-88). 33 The desired support 

for lateral loads can be achieved through diagonal bracing within the shoring system (i.e., 

along the wood vertical shores or legs) (Tr. 4488-89, 4507-08). By increasing the size or 

number of diagonal braces, the lateral load-bearing capability of the form work would 

increase by distributing the load throughout the structure (Tr. 4489). 

Finally, Burkart testified that a guardrail system could have been installed on the 

plywood deck at the Excelsior Two Project by extending the stringers beyond the 

spandrel beam and attaching metal brackets to support uprights to which the guardrails 

would be affixed (Tr. 4494-95). Mr. Burkart has observed the installation of such 

guardrail systems in conjunction with the building of the plywood deck (Tr. 4493-94). 

The employees engaged in the installation of the guardrail system could be protected by a 

"fall restraint system" consisting of a fixed line attached to a lanyard which would limit 

the distance that an employee could travel and prevent the employee from falling from the 

edge of the structure during erection of the guardrails (Tr. 4491-92, 4495-96). The fall 

restraint system could be anchored to various structures (i.e., the plywood deck itself, a 

stringer, a plate, etc.) because "it does not develop significant loads because you're not 

33 The standard at 29 C.F.R. 1926.703(a)(1) provides, in pertinent part: 

Form work shall be designed, fabricated, erected, supported, braced and 

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

lateral loads that may reasonably be anticipated to be applied to the form work. 

**** 

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allowing the person to fall"(Tr. 4496-97).34 Given this additional testimony, I find that 

any of the fall protection systems referenced in 29 C.F.R. § 1926.501 could have been 

successfully engineered and applied at the Excelsior Two project. 

As noted above, Daniel Paine also testified as an expert witness. Paine is the 

president of a construction safety consulting firm which specializes in the development of 

fall protection systems in "every conceivable kind of construction project, from bridges, 

dams, high-rise buildings, concrete buildings, structural steel buildings . . . [j]ust about 

everything you can think of." (Tr. 4660-61; Ex. C-119). Paine has given testimony on fall 

protection in the development of Subpart R (Steel Erection) and Subpart M (Fall 

Protection), and has personally served as an expert witness in civil litigation related to fall 

protection issues (Tr. 4661-65). For 24 years Paine was the president of Safety and 

Industrial Net Company (SINCO), a designer and manufacturer of fall protection 

equipment (Tr. 4665). SINCO marketed "different kinds of fall arrest equipment, fall 

restraint equipment, guardrail equipment, and safety net equipment." (Tr. 4667). In 

connection with his consulting work, Paine has visited "hundreds" of poured-in-place, 

high-rise concrete buildings (Tr. 4672). Paine chaired or was a member of the ANSI A10 committees which produced the construction industry fall protection standards (Tr. 

4675-76). 

Paine testified that the use of fall protection equipment on construction sites is a 

matter for "pre-planning." (Tr. 4693) Before deciding which fall protection systems it 

wants to use, the contractor must evaluate factors such as the equipment to be used, the 

construction sequence, the curing times of concrete, and the form work (Tr. 4693-94). In 

general, contractors use a combination of fall protection systems rather than a single 

system (Tr. 4694). In Paine's experience, alternatives to conventional fall protection 

34 In addition to the three (3) forms of conventional fall protection referenced in 1926.502 

(guardrail systems, safety net systems and personal fall arrest systems), OSHA has issued an 

official interpretation which also permits the use of a fall restraint system (Ex. C-114). 

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methods have only been used where bona fide "leading edge work" was being performed 

and employees were only exposed to less substantial interior falls. Id. 

Paine also testified regarding the availability of pre-engineered fall protection 

systems and systems which require the contractor and/or its professional engineer to 

design the equipment to be used (Tr. 4696-99; Ex. C-120). According to Paine, "preengineered systems" have been tested by the manufacturer to meet specified criteria and 

only require the contractor's installation in accordance with the manufacturer's 

instructions (Tr. 4696-97). Pre-engineered systems exist for fall arrest, fall restraint, and 

guardrails. One of these systems is a tie-off system called "Safety Strap," in which a strap 

can be nailed through a plywood deck into a stringer with a three-inch double-headed 

nail, or imbedded into concrete as it is poured (Tr. 4697-98, 4701-04). 

In addition, Paine testified as to the feasibility of safety net systems. He said that 

base plates can be installed in a structure which support a "post holder" - poles and cables 

to which the nets are attached (Tr. 4714-16). The base plates can be poured into the 

concrete, or bolted to the concrete (Tr. 4715). Paine testified that there are "lots of 

different choices" regarding the installation of posts to support safety nets, including a 

"clip-on method" and attachment to columns. Id. Safety nets could protect three floors 

of a structure at once, including a deck (Tr. 4719-23). 35 Base plates could be poured into 

the concrete every three floors, and the concrete would have 12 days of curing time 

before the nets would be moved up again (Tr. 4720, 4722-24, 4727-28, 4734). Using this 

procedure on actual worksites, Paine has found that safety nets installed in this fashion 

pass the "drop ball test" and that the concrete has achieved a compressive strength of at 

least 3,000 psi within a four-day pouring cycle - more than adequate to support base 

35 The standard at §1926.502(c)(1) provides that safety nets must be installed no more 

than 30 feet below the walking/working surface on which employees are working. Accordingly, 

since the height of each floor is approximately 8 feet, three floors could be protected by one 

safety net system. 

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plates (Tr. 4725-26, 4729-34).36 

Paine concluded that all of the fall protection options outlined in 29 C.F.R. § 

1926.501 were feasible at the Excelsior Two worksite. In his opinion, it would also have 

been feasible to have "retro fit[ted]" fall protection devices on the structure as it existed at 

the start of the OSHA inspection, even in the absence of any "pre-planning" on the part of 

the Respondents (Tr. 4747-48).37 

For the reasons discussed supra, Respondents also cannot establish the affirmative 

defense of "greater hazard." To establish this defense, Respondents must show: (1) that 

the hazards created by complying with the standard are greater than those of 

noncompliance, (2) other methods of protecting their employees from hazards were 

unavailable, and (3) a variance is unavailable or that application for a variance is 

inappropriate. Spancrete Northeast,Inc., 15 BNA OSHC 1020, 1022 (No. 86-521, 1991). 

Here, the record does not show that Respondents applied for a variance or that applying 

for a variance was inappropriate. Additionally, Respondents have made none of the other 

showings. As noted by the Secretary, Respondents’ claim that the hazards of complying 

with the standard would have been greater than those on noncompliance assumes that 

lanyards would have been strewn haphazardly across the floor, causing tripping hazards, 

and affixed to structures which would be incapable of supporting the worker if he fell. 

Such conditions could only exist, however, where, as here, the use of fall protection was 

never incorporated into job-planning in the first place. I also note that, even in the 

absence of personal fall arrest systems or safety harnesses, Respondents still had a duty 

under the standard to provide either guardrail systems or safety net systems, which it 

36 The "drop-test" is referenced in §1926.502(c)(4)(I) and requires that safety nets be 

tested by dropping a 400-pound bag of sand into the net from the highest elevation at which 

employees will be exposed to fall hazards. 

37 Although the Secretary called two expert witnesses in rebuttal, this should not be 

construed as any acknowledgment by the Secretary that Respondents adduced sufficient evidence 

with regard to the issue of infeasiblity to shift the burden of persuasion to the Secretary. 

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failed to do. The Secretary's experts established that numerous fall protection devices, 

and combinations thereof, could have been safely installed at the worksite to protect 

workers from fatal falls, and that the use of such equipment would not have exposed 

workers to hazards. 

Citation 2 Item 1 

29 C.F.R. § 1926.100(a) Employees working in areas where there is a possible danger of 

head injury from impact, or from falling or flying objects, or from electrical shock and 

burns, shall be protected by protective helmets. 

Instance (a): Fourth Floor, South/East Area: Eight employees 

were not wearing head protection while a crane bucket was 

passing overhead, on or about 10/21/97. 

Compliance Officer Signorile testified that on October 21, 1997, he observed a 

bucket of concrete being lowered onto the top deck. He observed eight employees not 

wearing head protection while a bucket of concrete passed fifteen to twenty feet 

overhead. The employees were under the bucket waiting to receive the load of concrete. 

Signorile was concerned that if the door of the bucket opened, the cement would fall on 

top of their heads, causing serious injury. He was also concerned with the movement of 

the bucket because, as it was being lowered, it could have struck the employees. When 

Signorile called Nick’s attention to the lack of head protection, Nick said that he provides 

hats to the workers but the hats fall off the workers’ heads and, in any event, they do not 

like to wear them (Tr. 849, 1761; Ex. C-72).38 

Instance (b) Seventh Floor, West Side Balcony: Three 

38 The photo depicts several employees wearing hard hats, and three employees without 

hard hats. Signorile testified that some of the observed employees walked away as he took the 

photo (Tr. 850-51). I find that the compliance officer has provided credible testimony with regard 

to his observations throughout the trial. Thus, the fact that the photo does not depict all eight (8) 

employees and the bucket is of no consequence (Tr. 1754-58). 

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employees were not wearing head protection while framing 

the balcony and crane loads were passing overhead, on or 

about 11/18/97. 

Signorile testified that, while outside the general contractor’s trailer on November 

18, 1997, he observed a crane load of wooded form work, plywood, and wood posts go 

from the east side of the building (where the crane was located) across the entire top deck 

to the where three employees were framing the balcony on the west side of the building. 

The load swung over the heads of these three individuals as it was being delivered to an 

adjacent area (Tr. 853, 1772). Signorile pointed out this condition to Joe Greco, 

Tenwood’s Superintendent, and Frank Cataliato, shop steward, who both said that early 

in the day they had told these three individuals to tie off and wear their hard hats. The 

employees were working on the balcony, which was six to eight feet below the top deck. 

The crane passed over them a couple of times as it was maneuvering to unload the 

material. Signorile believed that if the sling of the crane gave way, the material would 

drop on the employees’ heads and cause serious injury (Tr. 854-55). 

Instance (c): Seventh Floor, East Side Area: Employees 

were not wearing head protection while steel material was 

being unloaded from a crane, on or about 11/24/97. 

Signorile testified that on November 24, 1997 he observed, on video tape, 

employees not wearing head protection while working under loads of steel material (steel 

rebars and steel clamps) being delivered by crane. Bill Saites, who wore a cloth cap and 

no hard hat, was directly under the load (Tr. 855). As he viewed the videotape, Signorile 

counted four employees without head protection. He showed Bill the video, and Bill 

identified the employees as Avcon employees. In response to Signorile’s question 

regarding his lack of head protection, Bill said “don’t worry about my head, worry about 

yours.”(Tr. 855-56). Signorile noted that if the sling carrying the materials gave way, Bill 

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and the employees would likely suffer serious injuries because they were right under the 

loads (Tr. 857, 1100-02; Ex. C-101). 

Instance (d): Eighth Floor, East Side Area: Employees 

framing the floor were not wearing head protection while 

loads of steel and wood were being unloaded from a crane, on 

or about 11/24/97. 

On November 24, 1997, Signorile observed on video tape loads of steel rebar, 

wood posts, and plywood were being delivered by crane to the center of the eighth floor. 

Four (4) employees were framing that floor and unloading the material. These employees 

were exposed to the loads, which swung over their heads as they were lowered onto the 

floor. One of the exposed employees was the carpenter foreman, Dominic Paniscotti (Tr. 

857-59,1103-05; Ex. 101). Foremen identified the other employees as Avcon employees 

(Tr. 872) 

Instance (e): Tenth Floor, East Side: An employee was not 

wearing head protection when stripping form work above his 

head, on about 1/7/98. 

Signorile observed on video tape an employee at the edge of the floor not wearing 

head protection while stripping form work. There was also some stripping activity 

directly above this employee’s head, which created a risk that he would be struck by 

debris, nails, wood material, hammers, crowbars, or even a sledgehammer (Tr. 870,1107­

09; Ex. C-101). Georgiana, the general foreman, was standing beside the employee. 

Georgiana later identified the employee as an Avcon employee (Tr. 868-69, 1104, 1107; 

Ex. C-101). 

Instance (f): Twelfth Floor, East Side: An employee was not 

wearing head protection when stripping form work above his 

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head, on or about 1/7/98. 

Signorile observed on video tape two employees stripping the bottom of the 13th 

floor using sledge hammers or crow bars. The material that was being removed consisted 

of wood poles and plywood, and some of this material contained nails. One of the 

employees wore no head protection. Georgiana later identified this individual as an 

Avcon employee (Tr. 871-72, 1792-94, 1104, Ex. C-101). 

With regard to each of the instances just described, I find that the cited standard 

applies because Respondents were involved in construction. Respondents contend that the 

Secretary’s photographs and video tapes did not show actual overhead exposure in any of 

the cited instances. (Respondents’ Post-Trial Brief, pp.108-113). However, in Adams 

Steel Erection, Inc., 766 F.2d 804, 12 BNA OSHC 1393, 1398 (3d. Cir., 1985), the court 

examined the plain language and purpose of this standard. The Third Circuit, relying 

upon the legislative history of the Act, recognized that “death and disability prevention is 

the primary intent” of the Act. (citations omitted). The Third Circuit continued: 

“requiring that the Secretary observe an employee being directly exposed to a hazard, 

such as falling objects, is regressive; it offers protection too late to prevent injury.”The 

Third Circuit articulated a test that requires proof of an “access to zone of danger,”39 

rather than an “actual exposure” test. Thus, the Secretary need only prove that employees 

have access to an area of potential danger. Id. at 1399. 

As noted above, the standard requires hard hats to guard against possible impact, 

including falling objects. I find that in each of the cited instances, the employees were 

exposed to possible impact or falling objects. For example, certain employees could have 

been hit by buckets of wet cement. Other employees could have been hit by the crane 

39 The zone of danger is determined by the hazard presented by the violative condition and 

is normally that area surrounding the violative condition that presents the danger to employees 

which the standard is intended to prevent. Gilles & Cotting, Inc., 3 BNA OSHC 2002, 2003 (No. 

504, 1976). 

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bucket, which could have swung into the side of someone’s head (Tr. 476-68). Nails and 

parts of wood could have fallen on employees who were stripping above their heads. 

Employees who were on the deck while various materials were being moved, such as 

rebar, could have been hit by these materials. Finally, employees who were charged with 

unhooking loads could have been hit by a swinging hook. Given these instances of 

employee exposure to possible impact or falling objects, I find that the Secretary has 

established violations of the standard. I also find that the Secretary has established that 

Respondents knew of the violative conditions, because all of the cited instances were 

obvious and discernible by mere observation. Further, the violations were appropriately 

classified as serious, given that the injuries which might have resulted from these 

violations were concussions and severe lacerations (Tr. 874-76). 

Willfulness 

The Secretary argues that the violations were willful because Respondents knew of 

the requirements of the standard and were aware of the cited conditions and failed to 

correct or eliminate employee exposure. The Secretary contends that Bill and Nick were 

familiar with the regulation, noting that their other companies had been previously cited 

under the same standards. The previous citations had been settled, and final orders had 

been entered (Tr. 358, 362-63, 366-69, 372, 375, 378-81, 383-84). Additionally, the 

Secretary points to the fact that management was not wearing head protection (Tr. 876). 

This violation continued during the inspection, and persisted despite the fact that a sign 

had been posted at the entrance of the jobsite indicating that a hard hat was required on 

the jobsite. Another sign was present at the entrance to the building which was being 

constructed (Tr. 877-79; Ex. C-86). 

The record indicates that Respondents had a company policy which required that 

hard hats be worn at all times while on the jobsite. Management constantly enforced this 

rule through oral reprimands, and even fired one employee for violating the rule 

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(Tr.2240-42, 2950, 3021-22, 3095, 3322-23, 3798, 3815). A supply of hard hats was kept 

on the job, and sometimes employees were given more than one hat because hard hats 

were always falling off. Although Bill may have yelled for everyone to put on their hard 

hats upon OSHA’s arrival, the video taped evidence recorded while OSHA was offsite 

demonstrates that hard hats were routinely used on the jobsite (Tr.1499-50; Ex. C-101). 

Although I find that Bill’s interpretation of what constituted an overhead hazard for 

employees unloading material from the sling hooks of the crane was erroneous, I also find 

that his actions did not show an obstinate refusal to comply with the standard or a plain 

indifference to employee safety (Tr. 4182-83, 4208-13). 

My finding is also supported by Nick’s testimony, in which he described how 

materials are landed on the deck and explained how the signal man warns workers that 

the concrete bucket is coming and that they should get out of the way (Tr. 2132, 2692­

96). I note that the foreman observed without a hard hat was engaged in activity similar to 

that described by Nick (Tr. 1103-04; Ex. C-101). The evidence also indicates that 

management was constantly monitoring for hard hats which may have fallen off as a 

result of the employees’ frequent bending (Tr. 2948-49, 3102-03, 3094, 3473, 3601, 

3683, 3815, 3864). 

Based on the video and photographic evidence, and the testimony of Respondents’ 

witnesses, I find that Respondents made a good faith effort to comply with the standard, 

albeit not entirely effective or complete effort.40 I therefore find that these violative 

40 Although I do not find that the Secretary has made a showing of willfulness, 

Commission precedent holds that an employer may defend against an initial showing that its state 

of mind was one of willfulness by adducing evidence to show that in fact it acted in good faith 

with respect to the requirements of the standard in issue. Aviation Constructors Inc., 18 BNA 

OSHC 1917, 1920 (No. 96-0593, 1999). Such evidence may be presented by either (1) the 

employer establishing that as a factual matter the conditions in its workplace conformed to OSHA 

requirements, or (2) the employer introducing evidence to show that it took steps or made efforts 

to comply with those requirements. Id. at 1921(citations omitted). 

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conditions were not caused by plain indifference to, or intentional disregard of, employee 

safety. Neither were they the result of an obstinate refusal to comply with safety and 

health requirements. In conclusion, I find that the Secretary has not established by a 

preponderance of the evidence that the violations were willful. 

Penalty 

I find that a penalty in the amount of $5,600.00 is appropriate. This penalty is 

based upon the fact that the maximum penalty for a serious penalty is $7,000.00. I 

believe that the gravity of this violation reflects that the severity was moderate: injuries 

requiring hospitalization could be expected; but the probability of an event was low 

because of the manner in which employees worked, especially given the precautions that 

were taken as loads were brought up on the deck. This penalty has been adjusted for size. 

There is no adjustment for history because Respondents had previously been issued 

similar citations (Tr. 485)41. With regard to good faith, none was credited because 

management was involved in the violations. 

Citation 1, Item 1a 

29 C.F.R. § 1910.1200(e)(1): Employers shall develop, implement, and maintain at each 

workplace, a written hazard communication program which at least describes how the 

criteria specified in paragraphs (f), (g), and (h) of this section for labels and other forms 

of warning, material safety data sheets, and employee information and training will be 

met (Construction Reference §1926.59): 

41 Ex. C-35, Ex. C-33, Ex. C-23, Ex. C-22, Ex. C-49, Ex. C-47, Ex. C-44, Ex. C-43, Ex. 

C-41, Ex. C-31, Ex. C-14, Ex. C-36, Ex. C-12; Tr. 358, 362-63, 366-69, 372-75, 378-81, 383­

84. 

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Jobsite: Employees were handling hazardous chemicals including, but not 

limited to, gasoline, oxygen, acetylene and propane. The employer did not 

have a written hazardous communication program specific to this company, 

and they did not implement employee training. This violation occurred on 

or about 10/9/97. 

Signorile testified that on his first day of the inspection he asked Nick for their 

written hazard communication program. Nick did not produce a program until a week or 

two later (Tr. 917). Signorile evaluated this program and found it was inadequate. The 

program he was given was under the company name Astro, and it did not have a list of all 

of the chemicals which Avcon had on site. Oxygen, acetylene, propane, and gasoline 

were present at the Excelsior Two site, and none of these chemicals were listed in the 

program which Nick gave him (Tr. 918, 1326-27, 1329-30). It is undisputed that 

Respondents’ employees used gasoline, oxygen and acetylene and propane (Tr. 1329, 

2322). Nick’s statements concerning the existence of a hazard communication program 

indicate that through the exercise of reasonable diligence the deficiencies in this program 

could have been discovered (Tr. 2322-23). I find that the Secretary has met her burden of 

proof. The Respondents have not produced any evidence to rebut the Secretary’s case. 

(Tr. 2322-23) 

Citation 1, Item 1b 

29 C.F.R. § 1910.1200(h)(1): Employers shall provide employees with effective 

information and training on hazardous chemicals in their work area at the time of their 

initial assignment, and whenever a new physical or health hazard the employees have not 

previously been trained about is introduced into their work area. Information and training 

may be designed to cover categories of hazards (e.g., flammability, carcinogenicity) or 

specific chemicals. Chemical-specific information must always be available through 

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labels and material safety data sheets. 

Jobsite: Employees were handling hazardous chemicals including, but not 

limited to, gasoline, oxygen, acetylene and propane, and they had not been 

provided the required information and training, on or about 10/9/97. 

Signorile observed employees in the area where oxygen and acetylene cylinders 

were stored. Based upon his interviews with employees, including an ironworker and a 

shop steward, he determined that there had been no training for the chemicals. Nick also 

stated that they had not done any training on-site (Tr. 921, 1329-30, 1344, 1347-48). 

Nick’s statements show that Respondents were aware of this condition (Tr. 1330). I find 

that the Secretary has met her burden of proof. The Respondents have not produced any 

evidence to rebut the Secretary’s case (Tr. 2322-23). 

Classification and Penalty 

Items 1a and 1b were grouped and classified as serious because the lack of 

information in Respondents’ program could have resulted in employee exposure to an 

unsafe condition. First and second degree burns would likely have resulted had there been 

an explosion involving chemicals (Tr. 919, 921-22). The proposed penalty reflects a low 

gravity violation. Severity was low because no hospitalization was expected from the 

expected injuries. There was a lesser probability of the occurrence of an event. The 

proposed penalty reflects as adjustment for size.42 In light of these factors, I find that the 

proposed penalty of $900.00 is appropriate. 

42 This penalty and all of the remaining penalties reflect a 20% reduction for size and no 

adjustment for history and good faith based upon the findings previously set forth in this decision. 

Supra. 

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Citation 1 Item 2 

29 C.F.R. § 1926.20(b)(1): Accident prevention responsibilities. It shall be the 

responsibility of the employer to initiate and maintain such programs as may be necessary 

to comply with this part. 

Throughout Jobsite: An adequate safety and health program was not 

initiated and maintained by the employer. This was evidenced by the lack 

of use of fall arrest and head protection by employees, including 

management; improperly guarded floor holes; unsecured ladders; 

improperly stored compressed gases; and poor housekeeping; on or about 

10/9/97. 

The Secretary determined that Respondents did not have an accident prevention 

program, noting deficiencies such as the lack of a fall protection program and the lack of 

hard hats. Management was observed watching employees violate OSHA standards and 

took no action. Management employees were also observed exposing themselves to fall 

hazards and not wearing hard hats, which further indicated that there was no program to 

bring workers into compliance with fall protection standards (Tr. 450-51, 923). 

Respondents contend that they had a safety program which was provided to and discussed 

with all foremen. Respondents contend that the shop stewards discussed aspects of the 

safety program with employees daily, and on a one-to-one basis (Tr. 2327; Ex. C-6) 43 . 

43 The record indicates that Nick had been given a copy of a sample safety program by 

OSHA during a previous inspection. The sample was to show what a program should contain. At 

that time, it was explained to Nick that the sample was not tailored for any particular type of 

work, and that he would have to tailor it for his company and its work (Tr. 446-7). During the 

course of this inspection, this same written sample program, with some modifications, was 

provided to inspectors. However, the written program did not specify the type of work involved, 

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“The Commission has held that, under § 1925.20(b)(1), an employer may 

reasonably be expected to conform its safety program to known duties and that a safety 

program must include those measures for detecting and correcting hazards which a 

reasonably prudent employer similarly situated would adopt.” Northwood Stone & 

Asphalt, Inc., 16 OSHC BNA 2097, 2099 (No. 91-3409, 1994), citing J. A. Jones Constr. 

Co., supra. at 2206. In the present case, the evidence shows that Respondents’ program 

failed to meet these requirements. Respondents’ claim that it had an adequate safety 

program run by knowledgeable supervisory personnel is without merit. The record 

indicates that Respondents’ program was not communicated to employees in a manner 

which let the employees know what precautions to take when they encountered 

potentially dangerous situations. General instructions, such as “be safe”or “think safe,” 

fall short of the standard’s requirements (Tr. 2946-47, 3118, 3245, 3397-3403, 3446, 

3497). 

I note that, although the evidence relied on by the Secretary concerns alleged 

violations of other, specific standards, this does not preclude a citation under 

§ 1926.20(b)(1). J. A. Jones Constr. Co., at 2207-08. The fact that the Secretary has 

demonstrated that the violations occurred is sufficient to support the citation. 

Classification and Penalty 

The violation was appropriately classified as serious because injuries ranging from 

multiple injuries to death could have been expected if an employee fell off a building or 

was struck in the head. The proposed penalty reflects a high gravity violation. The 

severity was high because the expected injuries were serious; the probability was great 

considering all the hazards on site: the lack of fall protection, hazardous materials, 

compressed gases, and the lack of hard hats (Tr. 925). Given these factors, I find that the 

and it had not been adapted for a company doing shoring, form work, concrete pouring (Tr. 451­

52). In fact, the written plan produced had the name Astro on it (Tr. 487) 

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proposed penalty of $ 3,000.00 is appropriate. 

Citation 1 Item 3 

29 C.F.R. § 1926.25(a) During the course of construction, alteration, or repairs, form and 

scrap lumber with protruding nails, and all other debris, shall be kept cleared from work 

areas, passageways, and stairs, in and around buildings or other structures. 

Respondents claim that this standard is inapplicable because the wooden form 

work was “work in progress.” Respondents allege that the cited material was temporarily 

resting on the floor before it was picked up, de-nailed, and stacked for future use. 

Respondents direct my attention to Webster’s Seventh New Collegiate Dictionary, which 

defines the term “debris” as “ruins.” (Respondents’ Post-Trial Brief, p. 114; Tr. 2334-39, 

2346-48, 2358). 

§ 1926.25(a) is concerned with housekeeping on construction sites, and requires 

that form and scrap lumber with protruding nails, and other debris, be kept cleared in 

work areas, as well as in walkways. In Capform, Inc. 16 BNA OSHC 2040 (No. 91-1613, 

1994), citing precedent set forth in Gallo Mechanical Contractors, 9 BNA OSHC 1178, 

1180 (No.76-4371, 1980), the Commission found that the relevant standard applied to a 

condition similar to that involved in the present case (In Capform, reusable lumber that 

was lying about was found to be "debris" ). In Gallo the Commission examined the 

meaning of "debris," and held that the "[h]azards of tripping and falling, possibly 

resulting in sprains, fractures, and even concussions, can occur if matter is scattered about 

working or walking areas. . . . Accordingly, "debris" within the meaning of section 

1926.25(a) includes material that is scattered about working or walking areas. Whether 

the material has been used in the past or can or will be used in the future is irrelevant.” 

Id. at 1180 (Emphasis added). 

Given these cases, I find that Respondents’ wooden form work can be considered 

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“debris” within the meaning of § 1926.25(a). I also find that Respondents violated § 

1926.25(a) by failing to clear wooden form work from the Excelsior Two site. My 

findings are supported by photographic evidence and the compliance officer's testimony, 

both of which indicate that wood was scattered about areas in which employees worked 

or walked, exposing these employees to the hazards of tripping and falling. I note that 

Respondents do not deny knowledge of the cited conditions, which were readily apparent 

during inspections of the jobsite. 

Next, I will specifically address each of the instances in which Respondents were 

found to have violated § 1926.25(a). 

Instance (a) Ground Level and Second Floor: Wood debris was scattered 

on the floor and walkways creating a tripping hazard, on or about 10/9/97. 

Signorile testified that he observed plywood, wood post plywood with nails, and 

aluminum posts at the ground level. These items were in the vicinity of a ladder just 

outside the general contractor’s trailer, a ladder which the employees used to go to the 

second floor. On the second floor, a stripping floor, there was similar debris scattered 

throughout areas where employees were walking and working. There was no clear 

walkway or work area on that floor (Tr. 926-27, 929, 931; Ex. C-55: ground level - ladder 

was a few feet away from the right side of the photo). 

Instance (b) Third Floor, North/East Area: Wood debris was scattered 

over the floor and walkways creating a tripping hazard, on or about 

10/21/97. 

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Signorile observed debris, wood debris, poles, and plywood in the walkway and 

work areas of the third floor. One employee was observed cutting forms for the building, 

and there was debris - numerous small pieces - in the area where he was working. 

Another employee was observed walking in this area. The shop steward and foreman 

identified the employees as Avcon employees (Tr. 933-36, 1399; Ex. C-56 and C-57). 

Two other employees were observed working in an area full of debris, in this case wood 

posts and plywood. The shop steward identified them as Avcon employees (Tr. 936, 

1400; Ex. C-57). 

Instance (c) Eighth Floor, West Area by elevator shaft: Wood debris was 

scattered over the floor and walkways creating a tripping hazard, on or 

about 12/8/97. 

Signorile and Peist testified that in the area by the elevator shaft they saw wooden 

debris - wood material, wood, posters, plywood, and nails and poles - scattered over the 

floor and walkways, creating a tripping hazard (Tr. 453, 939; 1073 1409; Ex. C-101). 

They observed employees stripping some areas, and some employees were using ladders 

in the elevator shaft to go to the floor above. There was no walkway clear of debris, and 

employees had to climb over the debris (Tr. 453). Further, there was no other stairway or 

ladder way through which employees had access to this floor (Tr. 454). Bill Saites was 

observed walking over the debris, wood posts, and plywood when he came over to speak 

to the compliance officers. Bill identified the employees working in the eighth floor, west 

area as Avcon employees (Tr. 940, 1075-76; Ex. C-101). 

Instance (d): Thirteenth Floor, East Area: Wood debris was scattered all 

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over the floor creating a tripping hazard, on or about 1/7/98. 

Lorraine Cianfrone, an Avcon carpenter, was observed covering holes on the 

thirteenth floor on January 7, 1998. Wooden debris was scattered over the floor where 

she was working, creating a tripping hazard (Tr. 942-43, 1410-12, 1428; Ex. C-73). 

Classification and Penalty 

The citation was classified as serious because the employees had to step over 

debris, and could have tripped and fallen. Because the form work contained protruding 

nails, the employees could have suffered cuts, bruises, or lacerations. (Tr. 930, 938, 941, 

943). The penalty for these items was grouped. The gravity of the violation was low. The 

severity was low because the injuries would not have required hospitalization, and the 

probability of an incident was lesser (Tr. 932). In light of these factors, I find that the 

proposed penalty of $900.00 is appropriate. 

Citation 1 Item 4 

29 C.F.R. § 1926.28(a): The employer is responsible for requiring the wearing of 

appropriate personal protective equipment in all operations where there is an exposure to 

hazardous conditions or where this part indicates the need for using such equipment to 

reduce the hazards to the employees. 

12th Floor, East Side Area: Two employees were not wearing eye protection 

as required by 29 C.F.R. § 1926.102(a) while stripping floors, on or about 

1/7/98. 

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Two employees were observed on video stripping the twelfth floor ceiling on 

January 7, 1998. The employees were using a sledgehammer or crowbar to bring down 

debris, wood, posts, and nails. They wore no eye protection, and thus were at risk for 

debris falling into their eyes (Tr. 944, 1077-78; Ex. C-101). Assistant Area Director Peist 

testified that eye protection was required because there was a “possibility of material 

entering the eye” (Tr. 486). 

Respondents contend that their safety program did not require eye protection for 

this type of operation, and that in their industry goggles are not required for stripping. 

Additionally, they contend that because the stripping bar was more than four feet long 

and the wood being stripped was at least four feet away from the employee, there was a 

safe distance between the employee and the falling debris (Tr. 2374-81; Ex. C-6). 

Under § 1926.28(a), the Secretary has the burden of showing that a hazardous 

condition was present and that another standard put the employer on notice that personal 

protective equipment would reduce the risk to employees. L.E. Myers Co., High Voltage 

Sys. Div., 12 BNA OSHC 1609, 1619, (No. 82-1137, 1986), aff’d in relevant part, 818 F. 

2d 1270, 1275 [13 BNA OSHC 1289], cert. denied, 484 U.S. 989 [13 BNA OSHC 

1531](1987). At issue here is whether the Secretary has established that Respondents’ 

employees were exposed to a hazardous condition because they did not wear safety 

goggles when they stripped materials from overhead. In determining whether 

Respondents should have been aware of the existence of a hazard requiring it to use 

protective equipment, Commission precedent requires us to look at the “well-established 

principle that a broad regulation must be interpreted in light of the conduct to which it is 

being applied, and external, objective criteria, including the knowledge and perceptions 

of a reasonable person, may be used to give meaning to such a regulation in a particular 

situation (citations omitted). The Secretary must show more than the mere possibility of 

or a potential for injury, but a ‘significant risk of harm.’ (citation omitted). Significant 

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risk may be shown by evidence of injury rates, expert and lay opinion testimony, 

evidence of industry custom and practice (citation omitted).” Andrew Catapano 

Enterprises, Inc., 17 BNA OSHC 1776, 1782 (No. 90-0050, et al, 1996).44 

I find that the Secretary has not shown what a reasonable person familiar with 

industry practices would have done in this situation, and that she has not met her burden 

of proving that Respondents’ employees were exposed to “significant risk of harm.” I 

specifically find that Peist’s testimony regarding the need for eye protection does not, in 

itself, meet this burden of proof. In addition, my review of the video of this condition 

does not persuade me that the Secretary has met her burden of proof. Accordingly, this 

item is vacated. 

Citation 1 Item 5 

29 C.F.R. § 1926.153(j) Storage of LPG containers. Storage of LPG (liquefied petroleum 

gas) within buildings is prohibited. 

Eleventh Floor, Center/East Side: Ten containers of liquefied petroleum gas 

(LPG) were stored inside the building, on or about 1/7/98. 

Signorile testified that the LPG containers were in the center and east areas of the 

11th floor. The containers were not in use when he observed them, but they had been 

used. (Tr. 948). Signorile learned that there was LPG in the containers from Bill. Bill 

indicated that they had used the containers a couple of weeks earlier, when they had 

poured the concrete, because it was cold and they needed to use the propane to dry the 

floor after the concrete had been poured. The containers were there in case they had to 

44 The Third Circuit recognized that with regard to the “reasonable person test,” while 

industry custom and practice are relevant, the ultimate inquiry is whether a reasonable person 

familiar with the factual circumstances surrounding the allegedly hazardous condition, including 

any facts unique to a particular industry, would recognize a hazard warranting the use of personal 

protective equipment. Voegle Company, 625 F.2d 1075 (3rd Cir., 1980)[8 BNA OSHC 1631]. 

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use them again (Tr. 949). Signorile observed a few employees in the area cleaning the 

floor. These employees were five to six feet toward the west side of the building (Tr. 

949). 

The cited standard prohibits LPG cylinders within “buildings.” The term 

“buildings” is not defined within the standard. Thus, the plain meaning of the term 

within the standard must be examined. Merriam-Webster’s Online Collegiate Dictionary 

(2000) defines the term “building” as “a usually roofed and walled structure built for 

permanent use (as for a dwelling).” I find that, given this definition, the cited standard is 

inapplicable to the cited structure, which contained no walls or roof at the time the 

alleged violation was observed. The unrefuted evidence establishes that there were only 

floors and columns present (Tr. 2382). Accordingly, this item is vacated. 

Citation 1 Item 7 

29 C.F.R. § 1926.350(a)(10): Oxygen cylinders in storage shall be separated from 

fuel-gas cylinders or combustible materials (especially oil or grease), a minimum distance 

of 20 feet (6.1 m) or by a noncombustible barrier at least 5 feet (1.5 m) high having a 

fire-resistance rating of at least one-half hour. 

Parking Lot: Nine oxygen and three acetylene cylinders were stored 

together, on or about 10/9/97. 

During his walkaround with Nick and Manino of Tenwood on the first day, 

Signorile came across oxygen and acetylene cylinders that were stored together in a 

parking lot. There was neither a noncombustible barrier nor a minimum distance of 

twenty feet between the oxygen cylinders and the acetylene cylinders. Signorile testified 

that one of the cylinders appeared to have been used, possibly that same day. The 

cylinders had gas in them(Tr. 965-68). 

OSHA has determined that § 1926.350(a)(10) applies when cylinders are “in 

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storage,” i.e., when it is reasonably anticipated that gas will not be drawn from the 

cylinder within the next twenty-four hours. Whether it is reasonably anticipated that gas 

will be drawn within that time frame depends on whether specific welding or cutting 

work is planned for that period and the number of gas cylinders expected to be required 

to do that work. (See OSHA Standards Interpretation and Compliance Letter, dated 

December 31, 1998, titled “Definition of ‘in storage’ and clarification of the requirements 

for intermittent use of gas cylinders.”) Although an agency’s interpretation of its own 

regulation is entitled to substantial deference so long as it is reasonable, Martin v. 

OSHRC (CFI Steel Corp.) 499 U.S. 144 [14 OSHC BNA 2097] (1991), in this case the 

Secretary has not produced any evidence regarding Respondents’ intended use of the 

cylinders within the relevant twenty-four hour period. I therefore find that the Secretary 

has not met her burden of proof, and vacate the citation. 

Citation 1 Item 8a 

29 C.F.R. § 1926.451(b)(1): Each platform on all working levels of scaffolds shall be 

fully planked or decked between the front uprights and the guardrail supports as follows: 

(i) Each platform unit (e.g., scaffold plank, fabricated plank, fabricated deck, or 

fabricated platform) shall be installed so that the space between adjacent units and the 

space between the platform and the uprights is no more than 1 inch (2.5 cm) wide, except 

where the employer can demonstrate that a wider space is necessary (for example, to fit 

around uprights when side brackets are used to extend the width of the platform). 

(ii) Where the employer makes the demonstration provided for in paragraph (b)(1)(I) of 

this section, the platform shall be planked or decked as fully as possible and the 

remaining open space between the platform and the uprights shall not exceed 9 1⁄2 inches 

(24.1 cm). 

Second Floor, Elevator Shaft: An employee was working from a scaffold 

platform, approximately six feet and five inches high, that was not fully 

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planked, on or about 10/9/97. 

Signorile testified that on October 9, 1997 he observed an employee in the elevator 

shaft standing on a platform that was not fully planked. There were two brackets mounted 

on the form wall that the employee was building, and on these two brackets was the one 

plank on which the employee was working. There was a twenty inch space between the 

front of the plank and the wall that was being formed. The plank was six feet and threequarters of an inch above the plywood (which acted as a floor) that was covering the 

elevator shaft. The platform should have been extended with another plank back to the 

wall. Signorile interviewed the employee, who said that he worked for Avcon (Tr. 971­

972). 

The cited standard is applicable.45 It is undisputed that the platform was not fully 

planked and that the employee was exposed to fall created by the twenty inch opening. 

This condition was in plain view, and with the exercise of reasonable diligence 

Respondents could have known of the violative condition. The Secretary has proven this 

violation by a preponderance of the evidence. 

Citation 1 Item 8b 

29 C.F.R. § 1926.451(e)(1): When scaffold platforms are more than 2 feet (0.6 m) above 

or below a point of access, portable ladders, hook-on ladders, attachable ladders, stair 

towers (scaffold stairways/towers), stairway-type ladders (such as ladder stands), ramps, 

walkways, integral prefabricated scaffold access, or direct access from another scaffold, 

structure, personnel hoist, or similar surface shall be used. Cross braces shall not be used 

as a means of access. 

45 § 1926.450 Scope and application: (b) Definitions: Platform means a work surface 

elevated above lower levels. Platforms can be constructed using individual wood planks, 

fabricated planks, fabricated decks, and fabricated platforms. Scaffold means any temporary 

elevated platform (supported or suspended) and its supporting structure (including points of 

anchorage), used for supporting employees or materials or both. 

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Second Floor, Elevator Shaft: A ladder or its equivalent was not provided for 

employee access to the scaffold platform, on or about 10/9/97. 

This violation pertains to the same scaffold which was the subject of item 8a. 

Signorile testified that there were one-half inch wide steel flanges attached to the wall 

which the employee was using like steps to get onto the single planked platform on which 

he was working (Tr. 974). There was no other means of access to the scaffold platform, 

and the employee could have slipped because there was not enough footing to hold him 

(Tr. 975). This condition was obvious, and with the exercise of reasonable diligence 

Respondents could have known of it. The Secretary has proven this violation by a 

preponderance of the evidence. 

Classification and Penalty 

These items were appropriately classified as serious because an employee could 

have fallen into the space between the wall and the plank on which he was standing. Such 

an accident would have resulted in serious physical harm. The penalty reflected a low 

gravity violation. The severity was low because the expected injuries were lacerations 

and cuts requiring no hospitalization; the probability was lesser because the unlikely 

possibility of a fall (Tr. 973, 976). Given these factors, I find that the proposed penalty of 

$900.00 is appropriate. 

Citation 1 Item 10 

29 C.F.R. § 1926.501(b)(4)(I): Each employee on walking/working surfaces shall be 

protected from falling through holes (including skylights) more than 6 feet (1.8 m) above 

lower levels, by personal fall arrest systems, covers, or guardrail systems erected around 

such holes. 

I find that, with respect to each of the cited instances, Avcon employees were 

exposed to a fall of six feet or more. These conditions were obvious, and with the 

exercise of reasonable diligence Respondents could have known of the violative 

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conditions. 

Instance (a) Second Floor, Ladder Way: Employees were using ladders 

that were adjacent to a floor hole that was not properly guarded, on or about 

10/29/97. 

Signorile testified that Avcon employees, and other employees, were using the 

ladder in the second floor ladder way which was adjacent to a floor hole that was not 

properly guarded. Employees could have fallen through this hole while ascending or 

descending the ladder. The fall distance from landing to landing was about nine feet. This 

was the only way to access the upper floors. Ex. C-69 depicts Bill Saites coming down 

the ladder way from the third floor to the second floor. The floor hole opening is on the 

right side of the photo (Tr.1049-50). Signorile had advised Bill numerous times to cover 

part of the floor hole opening, or put a standard railing around the opening (Tr. 1051). 

Instance (b): Seventh Floor, Elevator Shaft: The open sides of an elevator 

shaft were not properly guarded, on or about 11/24/97. 

Signorile observed this condition while viewing the video. On the seventh floor, 

the open sides of the elevator shaft were not protected in any manner. Employees used 

the ladder in the shaft to reach the seventh floor. Signorile also observed on video an 

employee at the edge of the elevator shaft. Bill later identified the employee as an Avcon 

employee (Tr. 1053). The elevator shaft was approximately twenty feet long and ten feet 

wide. There was a nine foot drop from the seventh floor to the lower level (Tr. 

1054,1091-92; Ex. C-101). 

Instance (c): Eighth Floor, East Side; Employees constructing the eighth 

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floor deck were not protected from falling through six uncovered floor 

holes, on or about 11/24/97. 

Signorile observed this condition while viewing the video. Employees were framing the 

eighth floor, and they were walking past openings which measured two feet by two feet. 

There was a nine foot drop to the floor below (Tr. 1054-55, 1092-93; Ex. C-101). 

Dominic Paniscotti, the carpenter foreman, was also working on this floor. Bill Saites was 

on the seventh floor, in plain view of all workers. 

Instance (d): Tenth through Fourteenth Floors: Ladder ways had holes that 

were not properly guarded, on or about 1/7/98. 

Signorile testified that the ladder ways had floor hole openings that were not 

properly guarded. Employees used these ladders to get to and from the floor on which 

they worked. There was no other access route to these floors. Employees could have 

fallen through the floor hole openings (Tr. 1055-58; Ex. C-70- floor opening of the ladder 

way on the tenth floor, Ex. C-71- floor opening of the ladder way on the thirteenth floor). 

Classification and Penalty 

These violations were properly classified as serious because employees could have 

fallen through the openings and suffered fractures and lacerations. The gravity of the 

violation was high. The severity was high because injuries resulting in fractures and 

lacerations were expected from such falls. The probability for falls was greater due to the 

fact that these ladder ways were the only means of moving from floor to floor (Tr.1052, 

1054, 1055 1058). For these reasons, I find that the proposed penalty of $3,000.00 is 

appropriate. 

Citation 1 Item 11 

29 C.F.R. § 1926.502(I)(3): All covers shall be secured when installed so as to prevent 

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accidental displacement by the wind, equipment, or employees. 

Second Floor, Elevator Shaft: Plywood covers for the elevator floor openings were 

not secured, on or about 10/9/97. 

Signorile testified that the employee who was at the elevator shaft on the 

scaffolding (Items 8a and 8b above) was working over a piece of plywood laid over 

timbers. The plywood was eight feet long by four feet wide, and it was not secure. When 

Signorile brought this condition to Nick’s attention, he had the Avcon employees nail 

down the plywood. Signorile believed that if the employee had fallen off of the single 

plank that he was standing on, the plywood would have opened up and the employee 

would have fallen through (Tr. 1058-59). However, Respondent presented unrebutted 

testimony that the plank was on top of four by fours which spanned the shaft (Tr. 2448). 

Respondent also presented unrebutted testimony that the plywood had been secured by 

nails, and that Avcon employees inserted additional nails only because Signorile did not 

believe that the plywood was secure enough. I find that the record does not contain 

evidence sufficient to meet the Secretary’s burden of proof (Tr. 1058-59, 1721-23, 2446­

47). I specifically find that the evidence does not support Signorile’s conclusion that the 

plywood plank was not adequately secured. Accordingly, this item is vacated. 

Citation 1 Item 12 

29 C.F.R. § 1926.701(b): All protruding reinforcing steel, onto and into which 

employees could fall, shall be guarded to eliminate the hazard of impalement. 

Instance (a): Column 28: Employees were exposed to falling onto vertical 

protruding rebars while going up or down a wood ladder from the first to 

the second floor, on or about 10/9/97. 

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Signorile testified that on his first day of inspection he noticed that employees 

were exposed to falls onto vertical protruding rebars when going up or down a wooden 

ladder from the first to the second floor (Tr. 1060). On that day, the ladder was the only 

way to move between floors. The protruding rebars were about thirty inches high and 

about three feet from the bottom of the ladder (Tr. 1061-62; Ex. C-55). The Review 

Commission has held that, “[a]ccess to unguarded rebars exists if there is a ‘reasonable 

predictability’ that employees ‘will be, are, or have been in’ the ‘zone of danger.’” 

Kokosing Construction Co., Inc., 17 BNA OSHC 1869, 1870 (No. 92-2596, 1996), citing 

Capform, Inc. 16 BNA OSHC 2020, 2041 (No. 91-1613, 1994). I find that the 

photographs and testimony adequately establish that employees had access to the danger 

of unguarded rebars. The conspicuous location of the unguarded rebars warrants a finding 

that Respondents had constructive knowledge of their presence. Respondents could have 

ascertained the existence of the cited condition through the exercise of reasonable care. 

Instance (b): Seventh Floor, West Area: Two employees hammering excess 

concrete were exposed to protruding rebars, on or about 11/24/97. 

Two employees were observed on video hammering excess concrete on the 

seventh floor, with protruding rebars right in front of them. The two employees were 

walking, kneeling down, and leaning over the rebars to remove the excess concrete. Bill 

identified the employees as Avcon employees. They were exposed to the hazard of 

impalement, which could have resulted had they fallen on top of the rebars (Tr.1064, 

1097-99; Ex. C-101). The record establishes employee access to the unguarded rebars. 

The fact that the rebars were conspicuously located and readily observable warrants a 

finding that Respondents had constructive knowledge of their presence. Respondents 

could have ascertained the existence of the cited condition through the exercise of 

reasonable care. 

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Classification and Penalty 

The citation was classified as serious because employees could have fallen on top 

of the steel rebars and been impaled, resulting in death or multiple injuries. The penalty 

proposed for these grouped items reveals that the gravity was medium. The severity was 

high because of the nature of the expected injuries: death or hospitalization for multiple 

injuries. The probability was lesser because it was not likely that an employee would 

have fallen (Tr. 1062, 1064). For these reasons, I find that the proposed penalty of 

$1,500.00 is appropriate. 

Citation 1 Item 13 

29 C.F.R. § 1926.1052(c)(12): Unprotected sides and edges of stairway landings shall be 

provided with guardrail systems. Guardrail system criteria are contained in subpart M of 

this part. 

Ground Level, Inside Building, stairs leading from the upper level to the lower 

level of the parking lot: One open side of the stairs was not provided with a 

guardrail, on or about 10/9/97. 

Signorile testified that while he was talking to Frank Cataliato, he observed an 

employee, who Cataliato identified as Avcon’s crane operator, use these stairs. One side 

of the stairs was open. It is undisputed that the stairs did not have a guard rail and that, as 

a result, employees were exposed to a fall hazard on that side. Cataliato told Signorile 

that employees used the stairs to go to the parking lot (Tr. 1065, 1741 2454-55). The 

conspicuous nature of the violative condition, along with Cataliato’s statement, 

establishes employer knowledge. I find that the Secretary has met her burden of 

establishing the violation. 

I also find that the violation was serious. If an employee fell from the open side of 

the stairs, he would have fallen nine to ten feet and most likely would have sustained 

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multiple injuries. The penalty for the violation reflects the fact that the hazard severity 

was medium, because hospitalization would be expected from such a fall. The probability 

was lesser because it was not likely such a fall would occur (Tr. 1066). Considering these 

factors and the remaining statutory criteria, I find that the proposed penalty of $1,200.00 

is appropriate. 

Citation 1 Item 14 

29 C.F.R. § 1926.1053(b)(1): When portable ladders are used for access to an upper 

landing surface, the ladder side rails shall extend at least 3 feet (.9 m) above the upper 

landing surface to which the ladder is used to gain access; or, when such an extension is 

not possible because of the ladder's length, then the ladder shall be secured at its top to a 

rigid support that will not deflect, and a grasping device, such as a grabrail, shall be 

provided to assist employees in mounting and dismounting the ladder. In no case shall 

the extension be such that ladder deflection under a load would, by itself, cause the 

ladder to slip off its support. 

This standard requires that siderails of portable ladders extend at least three feet 

above the upper level or surface to which the ladder is used to gain access. The 

requirement further provides an alternative to extending the ladder in this matter by 

stating that when such extensions are not possible because of the ladder length, the ladder 

shall be secured at the top to a rigid, nondeflecting support, and employees shall be 

provided with a grasping device such as a grabrail. 

Instance (a): Ground Level, West Side: Two wood ladders, were not 

secured, on or about 10/09/97. 

Signorile testified that the ladder was not secured because it did not extend three 

feet above the landing area where one would step off onto the second floor. The ladder 

was on the west side of the job, and Signorile observed Avcon employees using this 

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ladder (Tr. 1067, 1743). The employees could have fallen while descending the ladder, or 

the ladder could have moved. The conspicuous location and the readily observable nature 

of the violative condition warrant a finding of constructive knowledge. Respondents 

could have ascertained the existence of the cited condition through the exercise of 

reasonable care. The Secretary has met her burden of proof in this instance. 

Instance (b): Second Floor, Elevator Shaft: One wood ladder was not 

secured, on or about 10/09/97. 

Signorile testified that this ladder extended from inside the elevator shaft to the 

third floor, where employees were framing the floor (Tr. 1069, 1745). He testified that 

the side rails extended three feet above the landing, and that ladder was not secured (Tr. 

1070-71). Nick testified that the ladder was nailed at the top to some form work, but 

added that Signorile did not believe it was secure enough and wanted strapping placed 

around it (Tr. 2456).46 My review of the record reveals that the cited ladder met the 

requirements of the standard. The standard provides that where a three foot extension is 

not possible, the ladder can be secured at its top to a rigid support that will not deflect. 

See 55 FR 47660, 47677 (1990). Thus, this instance is vacated. 

Classification and Penalty 

Instance (a) was appropriately classified as serious. The ladder’s condition could 

have caused an employee to lose his or her balance. Also, the unsecured ladder could 

have swayed. There was debris underneath the ladder, and if an employee fell he or she 

would have fallen onto the debris and received multiple injuries. (Tr. 1068) The penalty 

46 Lorraine Cianfrone testified that her job tasks included securing the ladders (Tr. 3670). 

She testified she used several means to secure the ladders. One method involved the use of wire 

and secured them with cut nails into the lumber. Another method involved securing the ladders on 

top with cut nails and putting a piece of five-quarter wood on the bottom so the ladders would 

stay steady (Tr. 3671). 

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of the violation reflects that the severity of the violation was medium, because 

hospitalization would have been expected from such a fall, and the probability lesser, 

because it was not likely such a fall would occur (Tr. 1069). In light of these factors and 

the remaining statutory criteria, I find that the proposed penalty of $1,200.00 is 

appropriate. 

Docket No. 98-1168, Inspection No. 301950952 

Citation 1 Item 1 

29 C.F.R. § 1926.350(a)(9): Compressed gas cylinders shall be secured in an upright 

position at all times except, if necessary, for short periods of time while cylinders are 

actually being hoisted or carried. 

Rear of the building: the five oxygen cylinders and two acetylene fuel gas cylinders 

which were stored together were not secured to prevent displacement, on or about 

5/12/98. 

Compliance Officer Donnelly testified that the five gas cylinders and two acetylene 

cylinders were stored together and not secured. In this condition, the cylinders could have 

been knocked over, causing the valve stem to break. If this happened, the cylinders could 

have exploded or been propelled forth “like a torpedo” (Tr. 1905-06; Ex. C-89). The 

cylinders were in the center of the yard area, in the vicinity of the trailer which was used 

to change in and store tools. The jobsite toilet was also in the area. There were also rebars 

stored behind the cylinders. Donnelly observed approximately nine employees walking 

back and forth to the trailer, using the toilet, and retrieving steel from behind the cylinders. 

There were also employees working in a nearby excavation site (Tr. 1907-09; Ex. C-89). 

Nick was working within a few feet of the unsecured cylinders. The conspicuous location 

and readily observable nature of the violative condition warrant a finding of constructive 

knowledge. Respondents could have ascertained the existence of the cited condition 

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through the exercise of reasonable care. 

Respondent does not dispute the applicability of the standard, nor the identification 

of the cylinders. It is Respondents’ position that the cylinders were awaiting pick up and 

were secured with a wire. Respondents argue that the compliance officer was never 

observed measuring the contents of the cylinders (Tr. 2465-66; Respondents’ Post Trial 

Brief, pp. 138-39). However, on rebuttal the Secretary presented an enlarged photo of Ex. 

C-89, which did not depict any wire (Tr. 4415, Ex. C-107). Additionally, Donnelly 

testified on rebuttal that during the inspection he moved a couple of the cylinders and saw 

nothing securing them. He also looked at the gas gauge to determine that gas was in the 

cylinders (Tr. 4419). In light of this photographic evidence and testimony, I find that the 

Secretary has met her burden of proof. 

This violation was appropriately classified as serious because employees could 

have incurred injuries such as fractures and minor burns if the cylinders exploded or were 

propelled forth. The penalty reflects that the gravity of the violation was low. The severity 

of the violation was low because hospitalization would not be expected as a result of any 

injuries; and the probability was lesser because it was unlikely that the cylinders would 

have been knocked over (Tr. 1912). Given these factors and the remaining statutory 

criteria, I find that the proposed penalty of $900.00 is appropriate (Tr. 1913).47 

Citation 1 Item 2 

29 C.F.R. § 1926.350(a)(10): Oxygen cylinders in storage shall be separated from fuelgas cylinders or combustible materials (especially oil or grease), a minimum distance of 20 

feet (6.1 m) or by a noncombustible barrier at least 5 feet (1.5 m) high having a fireresistance rating of at least one-half hour. 

47 The basis for the penalty adjustments for size, history, and good faith are set forth in 

Docket No. 98-0755. 

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Rear of building: five oxygen cylinders and two acetylene fuel gas cylinders were 

stored together, on or about 5/12/98. 

Donnelly testified that this violation referred to the cylinders described in item 1. 

Nick testified that these cylinders were not stored because they were awaiting pick up (Tr. 

2467). Although the Respondents do not state at what time the pick up was to occur, I find 

that the Secretary has not produced any evidence with regard to the intended use of these 

cylinders within the following twenty-four hour period. Thus, the Secretary has not proven 

the applicability of this standard. I therefore vacate the citation. 

Citation 1 Item 3 

29 C.F.R. § 1926.652(a)(1): Each employee in an excavation shall be protected from 

cave-ins by an adequate protective system designed in accordance with paragraph (b) or 

(c) of this section except when: 

(I) Excavations are made entirely in stable rock; or 

(ii) Excavations are less than 5 feet (1.52 m) in depth and examination of the 

ground by a competent person provides no indication of a potential cave-in. 

Rear of Building, Excavations C18-21: The employees working in the excavations 

were not protected from the hazard of a cave-in by the use of shoring, sloping, or 

other protective systems, on or about 5/12/98. 

It is undisputed that two Avcon employees were working in an excavation tying 

steel bands to the rebar. The excavation was more than eleven feet deep, without any 

protective system in use . To the right of the excavation was a bulldozer, and to the left 

was an excavator (Tr. 1919-20, 1922-23, 1937-38, 1940; Ex. C-89A, C-89B, C-89C). 

Both Nick and Georgiana were in the immediate vicinity of the excavation (Tr. 1940-41). 

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Donnelly, after talking to the excavator operator and determining where the soil from the 

excavation had been taken, took a soil sample from the spoil pile (Tr. 1930, 1962-63). The 

soil analysis showed that the excavation contained Type C soil, the least stable classified 

soil. This type of soil requires a slope of thirty four degrees (Tr. 1607-08, 1614; Ex. C92). Although respondents attempted to show that the soil sample was not representative, 

the excavation itself contained fill material which constituted, at best, Type B soil. 

According to the Secretary's expert, Dr. Peck, this type soil would still require a protective 

system. Id. Dr. Peck also testified that the presence of water in the excavation and the 

evidence of truck traffic near the excavation would have an adverse effect on the stability 

of the soil (Tr. 1619, 1646-47). 

Given the fact that the excavation was conspicuous and readily observable, and the 

fact that supervisory personnel were in its vicinity, I find that Respondents had knowledge 

of the violative condition. Respondents could have ascertained the existence of the cited 

condition through the exercise of reasonable care. 

The violation was appropriately classified as serious because the employees were 

exposed to a cave-in hazard which could have resulted in fatal injuries (Tr. 1946). The 

penalty relects a high gravity violation. The severity was high because of the types of 

injuries expected from a cave-in; and the probability was greater because of the presence 

of the heavy equipment which subjected the area to vibrations affecting the stability of the 

trench (Tr. 1946). Given these factors, I find that the proposed penalty of $3,000.00 is 

appropriate (Tr. 1947-48). 

Citation 1 Item 4 

29 C.F.R. § 1926.1052(c)(1): Stairways having four or more risers or rising more than 30 

inches (76 cm), whichever is less, shall be equipped with: 

(I) At least one handrail; and 

(ii) One stairrail system along each unprotected side or edge. 

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First floor to the roof: Throughout the building stairrails and/or handrails were not 

provided to protect employees from a fall hazard while working on or walking on the 

stairs, on or about 4/28, 4/29, and 5/1/98. 

During the course of his inspection, which began on April 18, 1998, Donnelly 

observed two Avcon employees working on the stairways of the eighteenth floor. These 

employees were flash patching the walls where there were no stairrails. The employees 

were also using the stairs to exit the building. Generally, there was one handrail on the 

descending side (right hand side) of the stairs and no handrail on the other side. Donnelly 

also observed an Avcon employee using the unprotected stairway from the second to the 

third floor (Tr. 1949, 1953-57, 4419-20, Ex. C-90, C-90a). This condition exposed the 

employee to a fall hazard, and would have exposed other employees to the same hazard 

when they bent down to flash patch or walked up and down the landings or stairways (Tr. 

1952; 1955-56). Falls on the upper floors would have been five feet because there was a 

landing in the middle. On the first and second floors, which were not typical floors (they 

were mezzanine and lobby areas), the fall would have been fifteen feet. (Tr. 1950-51) The 

fact that the stairways were conspicuously located and readily observable warrants a 

finding of knowledge. Respondents could have ascertained the existence of the cited 

condition through the exercise of reasonable care. The Secretary has met her burden of 

proof. 

The violation was appropriately classified as serious because fractures would be 

expected if someone had fallen. The penalty reflects that the severity was medium because 

injuries resulting in some hospitalization would be expected; and the probability was 

lesser (Tr. 1959). In light these factors and the remaining statutory criteria, I find that the 

proposed penalty of $1,200.00 is appropriate. (Tr. 1959) 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

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All findings of fact and conclusions of law relevant and necessary to a 

determination of the contested issues have been found specially and appear in the decision 

above. (See Rule 52(a) of the Federal Rules of Civil Procedure.) 

Order 

Docket No. 98-0755 

1. Citation 1, Items 1(a) and 1(b) alleging violations of 29 C.F.R. § 1910.1200(e)(1) and 

29 C.F.R. § 1910.1200(h)(1) are Affirmed as Serious violations with a penalty of $900.00. 

2. Citation 1, Item 2 alleging a violation of 29 C.F.R. § 1926. 20(b)(1) is Affirmed as a 

Serious violation with a penalty of $3,000.00. 

3. Citation 1, Item 3 alleging a violation of 29 C.F.R. § 1926.25(a) is Affirmed as a 

Serious violation with a penalty of $900.00. 

4. Citation 1, Item 4 is Vacated. 

5. Citation 1, Item 5 is Vacated. 

6. Citation 1, Item 6 has been Withdrawn by the Secretary. 

7. Citation 1, Item 7 is Vacated. 

8. Citation 1, Items 8 (a) and 8(b) alleging violations of 29 C.F.R. § 1926.451(b)(1) and 

29 C.F.R. § 1926.451(e)(1) are Affirmed as Serious violations with a penalty of $900.00. 

9. Citation 1, Item 9 alleging a violation of 29 C.F.R. § 1926.501(b)(1), instances (a) 

thru(d) and (f) thru (q) are Affirmed as Serious violations with a penalty of $3,000.00. 

Instance(d) is Vacated. 

10. Citation 1, Item 10 alleging a violation of 29 C.F.R. § 1926.501(b)(4)(I) is Affirmed as 

a Serious violation with a penalty of $3,000.00 

11. Citation 1, Item 11 is Vacated. 

12. Citation 1, Item 12 29 C.F.R. § 1926.701(b) is Affirmed as a Serious violation with a 

penalty of $1,500.00 

13. Citation 1, Item 13 alleging a violation of 29 C.F.R. § 1926.501(b)(4)(I) is Affirmed 

as a Serious violation with a penalty of $1,200.00. 

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14. Citation 1, Item 14, Instance (a), alleging a violation of 29 C.F.R. § 1926.1053(b)(1), 

is Affirmed as a Serious violation with a penalty of $1,200.00. Citation 1, Item 14, 

Instance (b) is Vacated. 

15. Citation 2, Item 1 alleging a violation of 29 C.F.R. § 1926.100(a) is Affirmed as a 

Serious violation with a penalty of $5,600.00. 

16. Citation 2, Items 2(a), 2(b), and 2(c) alleging violations of 29 C.F.R. § 1926.501(b)(1) 

are Affirmed as Willful violation with a penalty of $70,000.00. 

Docket No. 98-1168 

1. Citation 1, Item 1 alleging a violation of 29 C.F.R. § 1926.350(a)(9) is Affirmed as a 

Serious violation with a penalty of $900.00. 

2. Citation 1, Item 2 is Vacated. 

3. Citation 1, Item 3 alleging a violation of 29 C.F.R. § 1926.652(a)(1) is Affirmed as a 

Serious violation with a penalty of $3,000.00. 

4. Citation 1, Item 4 alleging a violation of 29 C.F.R. § 1926.1052(c)(1) is Affirmed as a 

Serious violation with a penalty of $1,200.00. 

/s/ 

Covette Rooney 

Judge, OSHRC 

Dated: August 25, 2000 

Washington, D.C. 

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