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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 21, 2003 Decided December 19, 2003
No. 02-1379
AMERICAN WRECKING CORPORATION,
PETITIONER
v.
SECRETARY OF LABOR,
RESPONDENT
On Petition for Review of an Order of the
Occupational Safety and Health Review Commission
Joseph P. Paranac, Jr. argued the cause and filed the
briefs for petitioner.
John Shortall, Attorney, U.S. Department of Labor, argued
the cause for respondent. With him on the brief were Joseph
M. Woodward, Associate Solicitor, and Bruce F. Justh, Coun-
sel.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: GINSBURG, Chief Judge, and EDWARDS, Circuit
Judge, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge EDWARDS.
EDWARDS, Circuit Judge: Petitioner American Wrecking
Corporation (‘‘AWC’’) was the subcontractor on a demolition
project at which a fatal accident occurred in February 1996.
Following the accident, officials from the Department of
Labor investigated the project and cited the general contrac-
tor, IDM Environmental Corporation (‘‘IDM’’), and AWC for,
inter alia, willfully violating an Occupational Safety and
Health Administration (‘‘OSHA’’) regulation that requires the
removal of all ‘‘loose material’’ from buildings during demoli-
tion. IDM and AWC contested the citations and the Secre-
tary of Labor (‘‘Secretary’’) then filed a complaint with the
Occupational Safety and Health Review Commission (‘‘Com-
mission’’).
A hearing was held before an Administrative Law Judge
(‘‘ALJ’’) to review the citations issued by the Secretary. The
ALJ upheld the citations against IDM and AWC, both as to
liability and the willfulness of the violation. Upon review, the
Commission affirmed the ALJ’s findings of liability, but set
aside the ALJ’s holding on willfulness. The Commission re-
manded the case for further findings by the ALJ on the
question of willfulness, because it was unclear on the record
whether AWC and IDM were ‘‘plainly indifferent’’ to their
employees’ safety or simply mistaken about the dangers
involved at the work site. On remand, the ALJ once again
found AWC and IDM guilty of willful violations of the Act.
The Commission denied AWC’s request for review. AWC
now seeks review of this final order.
We deny AWC’s petition for review insofar as it challenges
the Commission’s finding that AWC violated the loose materi-
al safety standard. Substantial evidence on the record sup-
ports this determination. The Commission’s finding of will-
fulness, however, is not supported by substantial evidence on
the record considered as a whole. We therefore grant the
petition for review insofar as it challenges the determination
that AWC willfully violated the Act.
3
I. BACKGROUND
This case arises out of a fatal accident at a demolition site
at the Steel Point Generating Station (‘‘Steel Point’’) in
Bridgeport, Connecticut. Steel Point was an electric power
plant complex consisting of several buildings that were con-
structed in the 1920s and 1930s. In 1995, after Steel Point
had been idle for roughly a decade, the owner, United Illumi-
nating Company (‘‘United Illuminating’’), initiated plans to
demolish the complex. United Illuminating selected IDM as
the general contractor for asbestos removal and demolition at
Steel Point. IDM in turn awarded a subcontract to petitioner
AWC to perform certain demolition work. AWC began its
demolition work in June 1995. Throughout the course of
demolition at Steel Point, AWC’s activities on the site were
supervised by Frank Bartolotti. In February 1996, several
months into the demolition project, AWC prepared to demol-
ish the turbine generator building. This large steel-frame
structure – 60 to 80 feet wide, 400 to 500 feet long, and 50 to
60 feet high – formerly housed the generator area of the
power plant. AWC adopted the ‘‘selected precut demolition’’
method to raze the turbine building. This approach required
removal of the exterior masonry of the building, leaving the
roof and a skeleton of steel columns. These steel columns in
turn would be cut selectively in order to control the direction
in which the building would fall upon demolition.
In preparation for demolition, Frank Bartolotti operated a
front end loader with an attachment known as a ‘‘rake’’ to
remove the exterior bricks from the turbine generator build-
ing. Although he intended to remove all the bricks, Bartolot-
ti was unable to reach the highest bricks on the south wall of
the building because the rake was not long enough to reach
them, given the slope of the ground on the south side of the
building. As a result, Bartolotti left about 15 feet of bricks
near the top of the steel skeleton on the south wall. The
bricks were suspended for the most part over two steel
columns, designated columns 14 and 15, and were at least
partly supported by an iron beam known as a channel iron
that formed a kind of transom across columns 14 and 15. An
4
expert witness familiar with the site later estimated that the
suspended bricks weighed roughly 14 tons.
On February 27, 1996, two AWC employees were making
the necessary preparatory cuts to the steel columns sur-
rounding the turbine building. Around 1:30 p.m., one em-
ployee, Percy Richards, was alone in the basket of a ‘‘manlift’’
using a blowtorch to make cuts in columns 14 and 15 when
the columns collapsed and the suspended bricks fell, killing
Mr. Richards. The site was immediately secured, and an
OSHA compliance officer arrived at the scene soon thereafter
to investigate the site. In August 1996, at the conclusion of
the inspection, the officer issued three citations each to IDM
and AWC, including, inter alia, a charge that the contractor
and subcontractor willfully violated an OSHA regulation re-
quiring the removal of all ‘‘loose material’’ from the steel
skeleton of a building during demolition. See 29 C.F.R.
§ 1926.854(f) (1989). Both companies contested the various
citations. The Secretary then filed a complaint before the
Commission.
All citations against both AWC and IDM were consolidated
in the administrative proceedings. A six-day hearing was
held before the ALJ in April 1997. The Secretary introduced
evidence consisting primarily of photographs of the demoli-
tion site before the accident and expert testimony based on
those photographs. Central to the Secretary’s case was a
photograph identified at the hearing as Exhibit C-15. See
Appendix (‘‘App.’’) 420. The photograph depicts the south
end of the turbine generator building sometime before the
February 27, 1996, accident, but after Bartolotti had removed
all the exterior bricks except those that fell during the
accident. Witnesses for AWC and IDM testified that the
bricks were not loose prior to the accident, because they were
supported by the 10-inch-wide channel iron that connected
columns 14 and 15. Exhibit C-15 showed, however, that some
of the bricks were hanging below the channel iron or to the
left or right of the columns, beyond the ends of the channel
iron. See Tr. at 142-44 (4/8/97), reprinted in App. 66; App.
420.
5
In addition to the photographic evidence, the Secretary
introduced the testimony of two expert witnesses who con-
cluded, based in part on the depiction of the south wall in
Exhibit C-15, that the bricks were unstable prior to the
accident. The first expert, Russell Geisser, testified on the
basis of a visit to the accident site and examination of the
photograph that the bricks were not supported by the channel
iron. Rather, the bricks were supported only by mortar,
which had a ‘‘practical value of zero’’ in terms of lending any
stability to the bricks. See Tr. at 252-57 (4/8/97), App. 99-101.
The suspended bricks, according to Geisser, were in a ‘‘meta
stable condition,’’ such that the ‘‘tiniest little thing’’ could
cause the bricks to collapse. Tr. at 254 (4/8/97), App. 100. A
second expert, Joseph Maitz, also testified on the basis of
Exhibit C-15, stating that the bricks in the picture appeared
to be in an unsafe and unstable condition and to be in danger
of falling. Tr. at 315-16 (4/9/97), App. 120; Tr. at 363-66
(4/9/97), App. 135-36.
Contrary to the testimony of these expert witnesses, Frank
Bartolotti testified that, after he removed the majority of the
bricks from the steel skeleton of the turbine building, he
believed that the remaining bricks on the south wall were
supported by the channel iron and therefore stable. In
particular, he stated that he felt the bricks ‘‘were stabile
enough and secure enough’’ that they safely could be left in
place. Tr. at 117 (4/8/97), App. 58. Employees of IDM
similarly testified that the bricks were not loose because they
were supported by the channel iron. Any bricks that were
not so supported were secured by mortar, clips, and wire
mesh. Accordingly, none of these witnesses who had viewed
the south wall prior to the accident believed the bricks to be
loose. See Tr. at 144 (4/8/97), App. 66; Tr. at 516, 520-21
(4/10/97), App. 183-84; Tr. at 891-93 (4/15/97), App. 301-02;
Tr. at 925 (4/15/97), App. 312; Tr. at 952-53 (4/15/97), App.
320.
In addition to these disagreements regarding the security
of the bricks on the south wall, it was revealed during the
hearing that IDM had fallen behind on the demolition sched-
ule it had agreed upon with United Illuminating. The delay
6
evidently resulted from unexpected difficulties during asbes-
tos removal. According to witnesses for IDM and AWC,
AWC was not at fault for the delay. Witnesses acknowledged
that United Illuminating had repeatedly chastised IDM re-
garding the missed deadlines, see Tr. at 540-41 (4/10/97), App.
190, but asserted that no pressure was brought to bear on
AWC to expedite its portion of the demolition project, see Tr.
at 215-17 (4/8/97), App. 88; Tr. at 778-79 (4/11/97), App. 265.
The ALJ found that AWC willfully violated OSHA’s loose
material safety standard. See Am. Wrecking Corp., 1998
O.S.H.D. (CCH) ¶ 31603 (O.S.H.R.C. 1998), reprinted in App.
622-42. On the question of liability, the ALJ credited the
testimony of the Secretary’s expert witnesses that the bricks
were not supported and were therefore in danger of falling.
The ALJ also emphasized that Exhibit C-15 clearly depicted
the bricks suspended on the south wall with no support. See
1998 O.S.H.D. (CCH) at *6-8, App. 631-34. With respect to
the willfulness of the violation, the ALJ determined that
Frank Bartolotti possessed the requisite ‘‘heightened aware-
ness’’ of the hazard to support a finding of willfulness on the
part of AWC. The ALJ made no specific findings in this
regard, but stated that the record was ‘‘replete with evidence’’
of willfulness. See 1998 O.S.H.D. (CCH) at *10-11, App. 638.
The ALJ imposed the maximum penalty of $70,000 for this
willful violation.
Upon review, the Commission affirmed the ALJ’s finding
that AWC had violated the safety standard. See Am. Wreck-
ing Corp., 19 O.S.H. Cas. (BNA) 1703 (O.S.H.R.C. 2001),
reprinted in App. 693-717. Rejecting AWC’s claim that
Exhibit C-15 was not properly authenticated, the Commission
held that the photograph and the expert testimony ‘‘clearly
established that the bricks TTT were far from securely at-
tached and were thus ‘loose material.’ ’’ 19 O.S.H. Cas.
(BNA) at *6, App. 701. On the issue of willfulness, however,
the Commission concluded that the ALJ failed to provide
sufficient findings of fact and credibility determinations to
support the finding of willfulness. The Commission therefore
set aside the ALJ’s holding and remanded the case with
instructions to the ALJ to reevaluate the evidence and recon-
7
sider whether the violation was willful. See 19 O.S.H. Cas.
(BNA) at *11-14, App. 710-14. The Commission specifically
instructed the ALJ to consider the credibility of Frank Barto-
lotti’s testimony that he felt the bricks were secure prior to
the accident. See 19 O.S.H. Cas. (BNA) at *12, App. 711-12.
On this point, the Commission held that it ‘‘[could] not find
that AWC had the requisite heightened awareness of the
hazard’’ to support a finding of willfulness if Bartolotti had
testified credibly when he said that he saw the bricks to be
secure. Id.
On remand, the ALJ again held that AWC willfully violated
the loose material standard. See Am. Wrecking Corp., 19
O.S.H. Cas. (BNA) 2093 (O.S.H.R.C. 2002), reprinted in App.
719-26. In support of this decision, the ALJ made general
credibility determinations regarding several witnesses, includ-
ing Frank Bartolotti. However, the ALJ did not address the
specific testimony cited by the Commission in its order.
Rather, the ALJ concluded that the unsafe condition of the
bricks was ‘‘so obvious’’ to a person of Mr. Bartolotti’s
experience that any belief he may have entertained that the
bricks were secure was unreasonable. 19 O.S.H. Cas. (BNA)
at *4, App. 725. The ALJ further speculated that Bartolotti
and other supervisors permitted this unsafe condition to
persist, because they faced time pressures as a result of the
delays in the demolition project. With no credible evidence
to support his conclusion, the ALJ opined that time pressures
caused AWC ‘‘to place expediency above safe work practices.’’
19 O.S.H. Cas. (BNA) at *5, App. 726.
The ALJ reinstated a penalty of $70,000 against AWC for a
willful violation of the loose material standard. The Commis-
sion denied AWC’s petition for discretionary review, and the
ALJ’s decision accordingly became a final order of the Com-
mission. AWC filed this petition for review.
II. ANALYSIS
The Occupational Safety and Health Act of 1970 (‘‘the Act’’)
‘‘establishes a comprehensive regulatory scheme designed ‘to
assure so far as possible TTT safe and healthful working
8
conditions’ for ‘every working man and woman in the Na-
tion.’ ’’ Martin v. Occupational Safety & Health Review
Comm’n, 499 U.S. 144, 147 (1991) (quoting 29 U.S.C.
§ 651(b)). The Act imposes on employers a general duty to
keep workplaces ‘‘free from recognized hazards that are TTT
likely to cause death or serious physical harm.’’ 29 U.S.C.
§ 654(a)(1) (2000). The Act additionally authorizes the Secre-
tary to promulgate and enforce specific workplace-safety
regulations, and the Secretary has delegated this authority to
OSHA. See A.J. McNulty & Co. v. Sec’y of Labor, 283 F.3d
328, 330 (D.C. Cir. 2002) (citing 29 U.S.C. § 655(b); 65 Fed.
Reg. 50,017 (Aug. 16, 2000)). The OSHA standard at issue in
this case governs the demolition of ‘‘skeleton-steel’’ buildings.
The regulation requires that if the steel framing of such a
building is left in place during the demolition of masonry, ‘‘all
steel beams, girders, and similar structural supports shall be
cleared of all loose material as the masonry demolition prog-
resses downward.’’ 29 C.F.R. § 1926.854(f) (1989).
OSHA compliance officers regularly inspect workplaces.
Upon discovery of a violation, a compliance officer may issue
a citation in one of three categories: ‘‘not serious,’’ ‘‘serious,’’
or ‘‘willful.’’ See A.J. McNulty, 283 F.3d at 330 (citing 29
U.S.C. § 666(a)-(c)). The applicable penalties differ in each
category, with ‘‘willful’’ violations being subject to the highest
fines. See id. If an employer challenges a citation, the
Secretary must prove the violation at a hearing before an
administrative law judge. To establish a violation, the Secre-
tary bears the burden of proving ‘‘that (1) the standard
applies, (2) the employer failed to comply with the terms of
the standard, (3) employees had access to the cited condition,
and (4) the employer knew, or, with the exercise of reasonable
diligence, could have known of the violative condition.’’ Conie
Constr., Inc., 16 O.S.H. Cas. (BNA) 1870, at *1 (O.S.H.R.C.
1994), aff’d, 73 F.3d 382 (D.C. Cir. 1995). Employers may
seek discretionary review of adverse decisions before the
Commission and, in turn, may petition the court of appeals
for judicial review of final Commission orders.
9
We affirm Commission decisions unless they are ‘‘arbitrary,
capricious, an abuse of discretion, or otherwise not in accor-
dance with law.’’ 5 U.S.C. § 706(2)(A) (2000); see also A.J.
McNulty, 283 F.3d at 331-32. The Commission’s findings of
fact are conclusive if they are supported by substantial evi-
dence on the record considered as a whole. See 29 U.S.C.
§ 660(a); see also A.J. McNulty, 283 F.3d at 331; Conie
Constr., 73 F.3d at 383-84. The substantial evidence rule
requires that the Commission reasonably consider material
evidence on both sides, as evidence that is substantial when
viewed in isolation may become insubstantial when contradic-
tory evidence is taken into account. See Universal Camera
Corp. v. NLRB, 340 U.S. 474, 488 (1951) (‘‘The substantiality
of evidence must take into account whatever in the record
fairly detracts from its weight.’’). When the administrative
decision adequately considers contradictory evidence, howev-
er, our standard of review does not permit a reviewing court
to displace the Commission’s choice between conflicting views,
even if the court would have made a different choice in the
first instance. See Perdue Farms, Inc. v. NLRB, 144 F.3d
830, 838 (D.C. Cir. 1998) (citing Universal Camera, 340 U.S.
at 488).
Applying these principles, we deny AWC’s petition for
review with respect to the Commission’s finding of liability,
but grant the petition for review with respect to the willful-
ness of the violation.
A. Liability
An employer involved in construction or demolition violates
the standard by leaving ‘‘loose material’’ attached to the steel
skeleton of a building during the course of demolition. 29
C.F.R. § 1926.854(f). In this case, the ALJ found, and the
Commission agreed, that the Secretary satisfied her burden
of proving that the bricks were loose and that AWC therefore
had violated the standard. Substantial evidence supports this
finding.
The photograph identified as Exhibit C-15 provided direct
evidence that the bricks in question were loose. Both the
ALJ and the Commission relied in part on this photographic
10
evidence that the bricks did not appear to be supported by
the channel iron that connected columns 14 and 15. In
addition, the photograph formed a basis for the opinions of
the Secretary’s expert witnesses. The ALJ found both ex-
perts to be credible and qualified to render expert opinions on
issues pertaining to demolition safety. Both witnesses testi-
fied that the suspended bricks posed a serious hazard, be-
cause, in their expert opinions, the channel iron did not
support all of the bricks and mortar alone would not provide
sufficient stability. The ALJ reasonably credited the testi-
mony of these experts over the contradictory testimony of
AWC’s witnesses. Cf. Perdue Farms, 144 F.3d at 838 (defer-
ring to agency’s resolution of contradictory evidence).
The expert testimony and the photographic evidence consti-
tute substantial evidence in support of the Commission’s
finding that AWC violated the loose material standard. AWC
argues that Exhibit C-15 was not properly authenticated and
therefore should not have been admitted into evidence. Un-
der the applicable Federal Rules of Evidence, see 29 C.F.R.
§ 2200.71 (1989), the photograph could be authenticated if a
witness with knowledge testified that it accurately depicted
the south wall after the bricks were removed but before the
accident occurred. See FED. R. EVID. 901(b)(1). The ALJ was
initially unwilling to admit the photograph into evidence,
because Bartolotti could not remember whether the photo-
graph was a fair and accurate representation of the bricks
hanging on the south wall prior to the accident. See Tr. at
135-37 (4/8/97), App. 63-64. Subsequently, however, Bartolot-
ti indicated that the photograph fairly depicted the condition
of the building prior to the accident. Tr. at 140 (4/8/97), App.
65. On this basis, and with no objection from AWC or IDM,
the ALJ admitted the photograph into evidence ‘‘as a general
representation of the work site prior to the time that the
collapse occurred.’’ Tr. at 195 (4/8/97), App. 82.
The record thus is clear that the ALJ relied on Bartolotti’s
testimony that the photograph constituted a fair representa-
tion of the work site prior to the accident and admitted it on
that basis over no objection. The ALJ and the Commission
were therefore entitled to rely on the photograph as an
11
accurate depiction of the scene of the violation before the
accident. More important, however, having failed to object
when the ALJ admitted the photograph into evidence, AWC
cannot now contend that the photograph was inadmissible.
The photograph, together with the expert testimony based
upon it, constitutes substantial evidence in support of the
Commission’s finding that AWC violated the standard.
B. Willfulness
As noted above, willful violations of the Act are subject to
the highest penalties, with a minimum fine of $5,000 and a
maximum fine of $70,000. 29 U.S.C. § 666(a). Although
neither the Act nor Commission regulations define the term
‘‘willful,’’ the relevant case law establishes that a violation is
willful when ‘‘ ‘done voluntarily with either an intentional
disregard of, or plain indifference to, the Act’s require-
ments.’ ’’ Kaspar Wire Works, Inc. v. Sec’y of Labor, 268
F.3d 1123, 1127 (D.C. Cir. 2001) (quoting Conie Constr., 73
F.3d at 384); see also A.J. McNulty, 283 F.3d at 337-38;
Ensign-Bickford Co. v. Occupational Safety & Health Review
Comm’n, 717 F.2d 1419, 1422 (D.C. Cir. 1983) (citing cases).
The Commission applies this same standard in its adjudica-
tions. See, e.g., North Landing Line Constr. Co., 19 O.S.H.
Cas. (BNA) 1465, at *13 (O.S.H.R.C. 2001) (‘‘A violation is
willful if it is committed with (1) intentional, knowing, or
voluntary disregard for [the Act], or (2) plain indifference to
employee safety.’’). As the Commission has explained,
[a] willful violation is differentiated from a nonwillful
[violation] by a heightened awareness, a conscious
disregard or plain indifference to employee safety.
Id. (quoting Valdak Corp., 17 O.S.H. Cas. (BNA) 1135, at *2
(O.S.H.R.C. 1995)). A company cannot be found to have
willfully violated a standard if it exhibited a good faith,
reasonable belief that its conduct conformed to law, see A.J.
McNulty, 283 F.3d at 338, or if it made a good faith effort to
comply with a standard or eliminate a hazard, see, e.g., A.E.
Staley Mfg. Co., 19 O.S.H. Cas. (BNA) 1199, at *4 (O.S.H.R.C.
2000), aff’d, 295 F.3d 1341 (D.C. Cir. 2002).
12
In this case, the ALJ made an initial determination that
AWC willfully violated the loose material safety standard.
Upon review, the Commission ruled that the ALJ had failed
to make sufficient credibility determinations and findings of
fact to support this conclusion. The Commission therefore
remanded the case to the ALJ with specific instructions to
reconsider the finding of willfulness. In particular, the Com-
mission emphasized that the ‘‘key issue’’ with respect to
AWC’s willfulness was ‘‘the truthfulness of Bartolotti’s testi-
mony that he ‘felt [the bricks] were stabile enough and secure
enough.’ ’’ Am. Wrecking Corp., 19 O.S.H. Cas. (BNA) 1703,
at *12, App. 711. The Commission was clear that unless this
specific testimony was discredited, there could be no finding
that AWC had the requisite ‘‘heightened awareness’’ to sup-
port a finding of willfulness. See 19 O.S.H. Cas. (BNA) at
*12, App. 711-12.
Despite the Commission’s clear instructions, the ALJ made
no specific credibility determination with respect to the cited
testimony. Rather, the ALJ merely offered vague and elu-
sive observations that Bartolotti was a ‘‘nervous witness who
displayed a distinct lapse of memory for matters of impor-
tance,’’ that he ‘‘provided contradictory testimony,’’ and that
he was ‘‘ill at ease and attempted to temper his testimony in a
fashion most favorable to his employer.’’ Am. Wrecking
Corp., 19 O.S.H. Cas. (BNA) 2093, at *4, App. 724. These
observations neither respond to the Commission’s precise
instructions nor specifically discredit Bartolotti’s testimony
that he felt the bricks were stable enough and secure enough
to leave safely in place.
Moreover, the ALJ offered no basis whatsoever for his
decision to credit some portions of Bartolotti’s testimony but
not others. See 19 O.S.H. Cas. (BNA) at *4, App. 725
(‘‘Notwithstanding the foregoing, I find the following testimo-
ny to be credible.’’). This simply will not do, especially not
with respect to what the Commission deemed to be the ‘‘key
issue’’ in the case. See P&Z Co., 6 O.S.H. Cas. (BNA) 1189,
at *4 (O.S.H.R.C. 1977) (‘‘[W]hat is necessary is a finding that
specifically resolves conflicting testimony or doubts as to
credibility. The finding should identify the oral testimony
13
TTT and reasons must be given TTT for failing to credit a
witness whose testimony is neither contradicted nor im-
peached.’’) (emphasis added). During the course of the hear-
ing, well into Bartolotti’s testimony, the ALJ found Bartolotti
to be a ‘‘totally credible’’ witness. Tr. at 116 (4/8/97), App. 58.
The ALJ’s subsequent findings therefore make no sense.
And, most important, the ALJ never specifically discredits
Bartolotti’s testimony that he saw the bricks to be stable.
Rather than make a specific credibility determination re-
garding this testimony, the ALJ attempted to discredit Barto-
lotti on the ground that the demolition project was behind
schedule and that AWC accordingly ‘‘place[d] expediency
above safe work practices.’’ 19 O.S.H. Cas. (BNA) at *5,
App. 726. This finding is unsupported by the record and
totally ignores clear evidence to the contrary. A manage-
ment official with United Illuminating testified that the pro-
ject was behind schedule and that the owner regularly ex-
pressed concern to IDM (not to AWC) about the delay. See
Tr. at 540-41 (4/10/97), App. 190. There is no evidence,
however, to support the ALJ’s conclusion that this delay
caused Bartolotti or any other AWC employees ‘‘to disregard
a condition which they knew presented a hazard TTT in order
to speed up the work process.’’ 19 O.S.H. Cas. (BNA) at *5,
App. 725.
In response to direct questioning by the ALJ, Bartolotti
testified that he did not know that the demolition contract
between United Illuminating and IDM established specific
deadlines and imposed financial penalties for failure to com-
plete the project on time. Tr. at 215-17 (4/8/97), App. 88. He
further testified that no one ever told him that the work
needed to proceed more quickly. Tr. at 216-17 (4/8/97), App.
88. Another AWC employee similarly testified that IDM
never asked AWC to speed up its demolition work. Tr. at
1066 (4/15/97), App. 355. Indeed, James Harrigan, a manage-
ment official with IDM, testified that AWC’s work was ‘‘never
behind schedule’’ and that IDM did not attempt to pressure
AWC into rushing its portion of the project. Tr. at 778-79
(4/11/97), App. 265. The ALJ never discredited any of the
testimony given by these witnesses. Instead, the ALJ cited a
14
single page of the hearing transcript that did not involve
Bartolotti or any other AWC employee and that does not
refute the testimony of the witnesses who confirmed that
AWC did not face any unusual time pressures. See 19 O.S.H.
Cas. (BNA) at *5, App. 726 (citing Tr. at 487 (4/10/97), App.
174). In short, there is no substantial evidence on this record
to support the ALJ’s finding of willfulness. Cf. Universal
Camera, 340 U.S. at 487-88.
The ALJ’s conclusory findings as to AWC’s ‘‘heightened
awareness’’ or ‘‘plain indifference’’ largely depend on the
testimony of the Secretary’s expert witnesses that a person
with Frank Bartolotti’s experience should have known that
the bricks in question presented a hazardous condition. See
O.S.H. Cas. (BNA) at *4-5, App. 725. The ALJ reasoned that
the unsafe condition of the bricks was ‘‘so obvious’’ as to
render unreasonable Bartolotti’s belief that they were safe,
which, thus, proved that AWC’s violation was willful. Id.
This reasoning is patently flawed.
The Act distinguishes between ‘‘willful’’ and ‘‘serious’’ viola-
tions. See 29 U.S.C. § 666(a)-(b). An employer commits a
‘‘serious’’ violation if it permits a sufficiently hazardous condi-
tion to persist, ‘‘unless the employer did not, and could not
with the exercise of reasonable diligence, know of the pres-
ence of the violation.’’ 29 U.S.C. § 666(k). The Secretary
must always demonstrate that an employer knew or should
have known of a hazardous condition to prove both ‘‘serious’’
and ‘‘willful’’ violations. See Conie Constr., Inc., 16 O.S.H.
Cas. (BNA) 1870, at *1. A ‘‘willful’’ violation is differentiated
from lesser violations by an intentional or conscious disregard
for the applicable safety standard or for employee safety.
Mere negligence or lack of diligence is not sufficient to
establish an employer’s intentional disregard for or height-
ened awareness of a violation. See, e.g., Kaspar Wire Works,
268 F.3d at 1129 (‘‘[T]o find willfulness the Commission had
to find that [the employer’s] conduct involved more than mere
negligence or carelessness.’’); McLaughlin v. Union Oil Co.,
869 F.2d 1039, 1047 (7th Cir. 1989) (‘‘[A] negligent violation of
the statute is merely ‘serious,’ and for a ‘willful’ violation
more is necessary.’’); J.A. Jones Constr. Co., 15 O.S.H. Cas.
15
(BNA) 2201, at *10 (O.S.H.R.C. 1993) (‘‘Mere lack of diligence
or carelessness in failing to discover or eliminate a violative
condition does not make a violation willful in nature.’’).
All courts that have considered the issue have held that the
Commission may not find a violation to be willful on the
ground that an employer ‘‘knew or should have known’’ of the
hazardous condition, for to do so would erase the distinction
between violations that are willful and those that are not.
See, e.g., United States v. Ladish Malting Co., 135 F.3d 484,
490 (7th Cir. 1998); Brock v. Morello Bros. Constr., 809 F.2d
161, 164 (1st Cir. 1987) (Breyer, J.); St. Joe Minerals Corp. v.
Occupational Safety & Health Review Comm’n, 647 F.2d 840,
847 (8th Cir. 1981); Frank Irey, Jr., Inc. v. Occupational
Safety & Health Review Comm’n, 519 F.2d 1200, 1207 (3d
Cir. 1975), aff’d en banc on other grounds, id. at 1215, and
aff’d on other grounds, Atlas Roofing Co. v. Occupational
Safety & Health Review Comm’n, 430 U.S. 442 (1977).
Even if the record supports the ALJ’s conclusion that the
hazardous condition of the bricks should have been ‘‘obvious’’
to Bartolotti, this does not support the ALJ’s conclusion that
AWC willfully violated the loose material standard. The
Seventh Circuit has correctly noted that
[s]ection 666(k) [of the Act] defines a ‘‘serious’’ viola-
tion as one that creates a ‘‘substantial probability
that death or serious physical harm could result’’
and allows the employer to defend by showing that it
‘‘did not, and could not with the exercise of reason-
able diligence, know of the presence of the viola-
tion’’ – which is to say, that it was not negligent. A
distinction between serious and wilful violations ex-
ists only if wilfulness means knowledge that the
conditions violate the statute or regulations – actual
rather than imputed knowledge, for otherwise we
are back to negligence.
Ladish Malting Co., 135 F.3d at 490; see also St. Joe
Minerals Corp., 647 F.2d at 847 (stating that an employer is
liable for a ‘‘serious’’ violation ‘‘if he knew or reasonably
should have known of the hazardous condition’’); Bunge Corp.
16
v. Sec’y of Labor, 638 F.2d 831, 834 (5th Cir. Unit A Mar.
1981) (finding only a ‘‘serious’’ violation where the employer
‘‘knew or should have known of the violation’’).
No matter how this case is viewed, the record does not
support a finding that AWC willfully violated the Act. The
ALJ made no coherent credibility determinations to support
such a finding; the ALJ also ignored evidence that refutes his
finding; and the willfulness holding is flatly at odds with the
controlling case law. In these circumstances, the Commis-
sion’s judgment on willfulness must be reversed.
III. CONCLUSION
We deny the petition for review on the issue of liability and
affirm the Commission’s finding that AWC violated the loose
material standard. Because there is no substantial evidence
in the record to support the Commission’s conclusion as to
willfulness, however, we grant the petition for review with
respect to the willfulness of the violation.