American Wrecking Corp. v. Secretary of Labor

Notice: This opinion is subject to formal revision before publication in the

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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.