TOLAR CONSTRUCTION COMPANY

OSHRC Docket No. 1329

Occupational Safety and Health Review Commission

November 26, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge John S. Patton in a proceeding initiated under the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act) is before this Commission for review pursuant to 29 U.S.C. 661(i).

The citation and complaint, issued as a result of the collapse of a masonry wall when it was exposed to high winds, alleged a violation of 29 U.S.C. 654(a)(1), the Act's so-called general duty clause. At the commencement of the hearing, complainant moved to amend the complaint to include an alleged violation of 29 U.S.C. 654(a)(2) for noncompliance with the occupational safety and health standard published at 29 C.F.R. 1926.700(a). Complainant contended that the said standard was applicable to the hazardous condition of the wall at issue in this case.

The Judge denied the motion on the grounds that a complaint cannot contain charges not alleged in the citation upon which it is based. He then proceeded to determine the issue of the alleged violation of 654(a)(1).

Ordinarily, consideration of that issue [*2] would be error since a citation for violation of section 654(a)(1) is invalid and will not lie where a duly promulgated occupational safety and health standard is applicable to the condition or practice that is alleged to constitute a violation of the Act. Secretary v. Brisk Waterproofing Co., Inc.,

However, we find that the standard which complainant cited in his motion is not applicable to the facts of this case.

29 C.F.R. 1926.700(a) states as follows:

General. All equipment and materials used in concrete construction and masonry work shall meet the applicable requirements for design, construction, inspection, testing, maintenance and operations as prescribed in ANSI A10.9-1970, Safety Requirements for Concrete Construction and Masonry Work.

Paragraph 12.5 is the specific ANSI standard which complainant asserts is both pertinent to this case and incorporated by reference into 1926.700(a). It provides:

Shoring and Bracing. Masonry walls shall be temporarily shored and braced until the designed lateral strength is reached, to prevent collapse due to wind or other forces.

While the evidence indicates that respondent [*3] failed to adequately shore and brace the wall to resist the forces of high winds as required by paragraph 12.5, such failure does not constitute noncompliance with 1926.700(a). The clear language of that standard is restricted in its application to equipment and materials, specifically the design, construction, inspection, testing, maintenance and operations thereof. It is a general provision designed to insure the proper use and care of products approved for concrete construction.

Affording the lateral strength of a wall against the forces of wind during construction, on the other hand, is a construction process, a building technique. A standard prescribing such a process, as paragraph 12.5 does, is not a mandate for the specified equipment and materials used in that process, as is paragraph 7.3, for example, which sets forth the specific design requirements for form scaffolds.

Since paragraph 12.5 does not deal with equipment and materials, it is not incorporated as an occupational safety and health standard by virtue of 29 C.F.R. 1926.700(a) and cannot be applied to respondent. Furthermore, it is not otherwise applicable because complainant did not charge, [*4] nor does the evidence indicate, that respondent used substandard equipment or defective materials.

Since no specific occupational safety and health standard was applicable to the facts of this case, the citation alleging a violation of 29 U.S.C. 654(a)(1) was proper. We also find that the evidence of record supports the Judge's finding that respondent was in violation of that section as alleged. The construction of the masonry wall without the use of pilasters or other means of lateral strength constituted a condition which was known in the industry to be dangerous and which was in fact preventable. National Realty Construction Company v. Occupational Safety and Health Review Commission, 489 F.2d 1257 (D.C. Cir. 1973).

Accordingly, the Judge's decision and order are hereby affirmed.

CONCURBY: CLEARY (In Part)

DISSENTBY: CLEARY (In Part)

DISSENT:

CLEARY, COMMISSIONER, concurring in part and dissenting in part: I concur in finding that respondent violated the Act, but I believe that the violation was of section 5(a)(2), not section 5(a)(1). I further concur in the assessment of a $600 penalty. I must dissent, however, from the reasons and conclusions of the majority regarding [*5] the standard at 29 CFR 1926.700(a).

The facts of the case are relatively simple. Respondent was building a concrete block wall that reached a height of 20 to 30 feet. The Judge found that the construction of the wall was defective. It did not meet normal safety requirements because pilasters were not used and the bracing of the wall was inadequate. After an unusually high wind blew the wall over, an inspection was conducted and a citation issued alleging that respondent violated section 5(a)(1) of the Act, the general duty clause.

Before the hearing, the Secretary by written motion moved to amend the complaint to allege not only a violation of section 5(a)(1) of the Act but also section 5(a)(2) of the Act for failure to comply with the standard at 29 CFR 1926.700(a), incorporating paragraph 12.5 of the ANSI standard. The Judge denied the requested amendment on the basis that:

The citation having failed to allege a violation of section 5(a)(2) of the Act or of said standard, an allegation of such violation cannot, for the first time be alleged in the complaint.

The Judge's denial of the motion is clearly erroneous. Administrative pleadings are to be freely amended. [*6] As the court said in National Realty & Const. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir. 1973):

Allowing subsequent amendment of a citation's charges will not disturb the central function of the citation, which is to alert a cited employer that it must contest the Secretary's allegation or pay the proposed fine.

at 1264 n. 31.

Additionally, the Commission has held that:

Citing a respondent under the general duty requirement of the Act is not appropriate where there exists a specific occupational safety and health standard covering the conduct at issue.

Sun Shipbuilding & Drydock Co., No. 161 (October 3, 1973); Brisk Waterproofing Co., Inc., No. 1046 (July 27, 1973).

Applying this rule, the majority would consider the citation and decision under section 5(a)(1) in this case erroneous if a duly promulgated standard exists that is applicable to the facts. They found, however, that the standard cited by the Secretary in his motion "is not applicable to the facts of this case" and that paragraph 12.5 "is not incorporated as an occupational safety and health standard." Upon finding that the standard, 29 CFR 1926.700(a), was not applicable and [*7] that paragraph 12.5 of the ANSI standards was not incorporated by 29 CFR 1926.700(a) as a safety and health standard, the majority affirmed the Judge's action in considering and finding the violation of section 5(a)(1) of the Act.

Neither party has briefed nor argued the merits of the applicability of 29 CFR 1926.700(a) to the facts of this case at any time during the entire proceeding. Nor has either party briefed or argued the issue of whether paragraph 12.5 "is not incorporated as an occupational safety and health standard" for the reasons on which the majority has based its conclusions. n1 I believe that a decision by the majority on these issues without the benefit of briefs by either party denies procedural fairness. The specificity of a standard is not a jurisdictional issue to be raised at any time during the proceedings. Puterbaugh Enterprises, Inc., No. 1097 (July 1, 1974). Furthermore, "It is patently unfair for an agency to decide a case on a legal theory. . . which was not presented at the hearing." National Realty & Constr. Co., Inc. v. O.S.H.R.C., supra at 1267 n. 40 (D.C. Cir. 1973). n2

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n1 At a pre-hearing conference, respondent objected to the motion to amend arguing that ANSI A10.9-1970 was not a national concensus standard under section 3(9) of the Act and thus was not properly incorporated as a standard under section 6(a) of the Act. The Judge overruled this objection, and respondent has not renewed its objection on this basis. The Secretary argued only that the motion should be granted, and he did not argue the merits of the standard as applied to the facts.

n2 In Uriel G. Ashworth, No. 1018 (April 17, 1973) (Administrative Law Judge) (review directed April 26, 1973) the facts are similar to this case. There, the Secretary cited respondent under the standard at 29 CFR 1926.700(a) and the question of the applicability of paragraph 12.5 of ANSI A10.9-1970 is in issue.

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In deciding whether an interpretation of a standard is correct, it must be determined whether the interpretation is reasonable and consistent with its purpose. Brennan v. O.S.H.R.C. & Gerosa, Inc., 491 F.2d 1340, 1344 (2d Cir. 1974). Moreover, "it is especially [*9] important that. . . regulations be construed to effectuate congressional objectives." Brennan v. O.S.H.R.C. & Gerosa, Inc., supra at 1343.

The full text of 29 CFR 1926.700(a) is stated in the majority opinion. Obviously, one purpose of the standard is to incorporate by reference ANSI A10.9-1970, Safety Requirements for Concrete Construction and Masonry Work, as occupational safety and health standards. The majority's reasoning is inconsistent with that purpose because it renders paragraph 12.5 of the ANSI standard a nullity. The majority's interpretation, limiting the application of the ANSI standard to "products" rather than interpreting it so as to include "processes," does not heed the congressional objective of accident prevention. A significant part of employment safety is concerned with construction processes and the standards should be read to include them in order to effectuate congressional objectives. I believe the majority's narrow interpretation leads to an unreasonable result.

Paragraph 8.4 of ANSI standard A10.9-1970, incorporated as occupational safety and health standards by 29 CFR 1926.700(a), provides detailed specifications for design and [*10] construction of shoring. Implicit in the provision of mandatory specifications for safety equipment is the requirement that the equipment be used. Paragraph 12.5 gives a plain and unequivocal statement as to when the equipment shall be used. If shoring and bracing are used the requirements of paragraph 8.4 must be met. The majority's narrow and strictly literal interpretation of the standard at 29 CFR 1926.700(a) limits its application to equipment. The result of such an interpretation is that the use of shoring and bracing then becomes discretionary with an employer, no matter how dangerous the circumstances. The effect is that an employer can simply avoid the shoring and bracing requirements of the standard at 29 CFR 1926.700(a) by not using shoring and bracing at all. I cannot believe this result was intended.

This case demonstrates another action by the majority invalidating duly promulgated occupational safety and health standards. See Santa Fe Trail Transport Co., No. 331 (December 20, 1973), rev'd sub nom. Brennan v. O.S.H.R.C. & Santa Fe Trail Transport Co., No. 74-1049 (10th Cir. October 23, 1974). The majority "eviscerate[s] the [*11] import of the regulation and flout[s] the purposes of the enabling legislation." Brennan v. Southern Contractors Service & O.S.H.R.C., 492 F.2d 498, 501 (5th Cir. 1974).

This Commission has no authority to invalidate duly promulgated standards. Santa Fe Trail Transport Co., supra (Cleary, dissenting opinion). An administrative regulation has the force of law and can be invalidated only by a proper court. Paul v. United States, 371 U.S. 245 (1963). To permit one administrative agency to nullify standards duly promulgated by another agency merely substitutes the judgment of the second agency for that of the first. The effect of the majority's action voids the congressional intent in passage of the Act. Cf. F.C.C. v. Schreiber, 381 U.S. 279, 290-292 (1965).

I would find that the motion for amendment should have been granted and that the citation as amended to allege a violation of section 5(a)(2) of the Act for failure to comply with the standard at 29 CFR 1926.700(a) be affirmed.

[The Judge's decision referred to herein follows]

PATTON, JUDGE: This case is before the undersigned Judge on the complaint of the Secretary of Labor, United States [*12] Department of Labor, hereinafter referred to as complainant, versus Tolar Construction Company, hereinafter referred to as respondent, alleging that respondent on or about August 3, 1972, violated section 5(a)(1) of the Occupational Safety and Health Act of 1970, (84 Stat. 1604; 29 U.S.C. 651, et seq. ), hereinafter referred to as the Act. Hearing was held in this case before John S. Patton, Administrative Law Judge on October 27, 1972, and January 9, 1973, in Birmingham, Alabama. Mr. Bibb Allen and Mr. Billy L. Barnett appeared as counsel for the respondent and Mr. Ellis V. Cruze and Mr. George D. Palmer appeared as counsel for the complainant. There was no motion to intervene. All parties were accorded the right to file a brief and a brief has been submitted by the complainant. No brief has been submitted by the respondent.

LAW AND ISSUES IN THE CASE

Section 5(a)(1) of the Act is as follows:

Each employer shall furnish to each of his employees, employment and place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees.

It was alleged in the complaint that the respondent on August [*13] 3, 1972, was engaged in construction in Tinson, Alabama, a suburb of Birmingham, Alabama, of a concrete brick wall without proper supports or bracing to withstand high winds and that said actions constituted a recognized hazard. The issues in this cause are whether said wall was constructed in such an unsafe manner as to violate section 5(a)(1) of the Act and if so, whether said action was a recognized hazard as said term is used in said section of the Act.

EVIDENCE IN THE CASE

The evidence established that on August 3, 1972, a wall on said project at Tinson, Alabama, was blown down.

Mr. Earl H. Tolar, the owner of respondent company, testified that respondent is a construction company which had, at the time of hearing, been in existence three years and 11 months (TR 10, 11). Mr. Tolar testified that prior to starting said business he worked as project engineer with other contracting companies. He has a Bachelor of Science degree from the Georgia Institute of Technology consisting of an undesignated degree in science from the School of Architecture. He first worked with Rust Engineering Company as a draftsman. He was employed by Owens-Illinois as a paper mill engineer working [*14] with said company for four years. He was construction supervisor with Sam Hodges Construction Company for a period of four years. Said company principally constructed warehouses and shopping centers. Concrete block was a large portion of the construction material. He worked with the Jet A. Jones Construction Company for one year before founding Tolar Construction Company. Said company was in the general contractor business (TR 11, 12, 13).

He testified that the respondent constructs multiwarehouse buildings. They have constructed about 15 buildings since the business began, said construction being in Georgia, South Carolina, North Carolina, Florida and Alabama. Respondent has built approximately ten in Georgia and only one in Alabama the one being for B.F. Goodrich Company, the project in the case here involved. All of said projects used some concrete blocks. He stated that in some of the construction projects, concrete block walls were built (TR 14, 15). Most of said structures were built under the National Building Code. The one in Alabama was the first one built under the Southern Building Code. He testified he did not know they were operating under the Southern [*15] Building Code until an accident occurred (TR 17). He did not take any steps to inquire as to what building rules would be applicable to the Alabama project. He found out only after a wall fell that there is an ordinance in Jefferson County that prescribes that the Southern Building Code is to be applied to construction (TR 91, 98, 99, 100).

The contract for the Alabama project was for a cost of $1,600,000 (TR 18). The contract required that construction must be in accordance with national, state and local codes and restrictions (TR 21). He stated that they built a fire wall on the project, 12 inches thick consisting of concrete block. He visited the site and observed the wall twice prior to July 24, 1972, the date the collapse occurred (TR 30). He stated the actual dimensions of the blocks were 11 1/2 inches and they were eight inches high. He stated that three blocks would be roughly 24 inches high, including the mortar (TR 21, 22). The blocks were 16 inches long and weighed about 40 pounds. The building was 500 feet deep by 680 feet long (TR 23). There were two fire walls on the project. He stated that the warehouse was divided into three sections. Fire walls ran the [*16] whole length of the building north to south. The fire wall was to be constructed 30 feet four inches in height (TR 23, 24). He stated that the foundation in which the fire wall was built was first constructed. They started constructing the floor and fire wall at approximately the same time. Most of the floor was finished by July 24, 1972 (TR 24). He stated that at the time of inspection the floor was finished on the east side of the fire wall but not on the west side. The finished floor was five inches thick. On the west side the wall was completed at 30 feet 6 inches; the other side at 30 feet 4 inches (TR 25, 26). Construction began on June 6, 1972; most of the floor was finished by July 24, 1972. He first started construction of the wall which fell about two weeks after raising the first block in the first wall. He started the east fire wall first, the west wall was about four feet high by July 24, 1972 (TR 26, 27). He stated that on July 24 the east wall had about two-thirds of its 30 foot 4 inch height. On July 24, the west wall had reached its maximum height for approximately two-thirds of its distance. The other third was about 20 feet high (TR 28). [*17] At the 20 foot level it was braced with a burk steel brace every 20 feet and tied off at a 20 foot level. There were 3/8-inch anchor bolts in the wall approximately eight inches long with a hook on the end. He stated there was no use to put it in until the mortar set the next day (TR 28, 29, 30). Bolts were put in between two courses of block (TR 30). He testified that at the time of the collapse there were approximately 20 employees on the job as well as sub-contractors on the jobs (TR 30, 31). He stated that a Mr. Wheeler was his representative in dealing with the sub-contractors (TR 31).

He testified that no specifications or drawings were submitted. The developer was Crow Birmingham Company. He stated that the sub-contractor built the walls (TR 38). Respondent contracted with Crow Birmingham and Crow in turn with the subcontractor. Crow dealt with B. F. Goodrich which was going to occupy the building (TR 38, 39). Complainant conceded that the actual putting of the blocks in place was done by the sub-contractor. It was the position of complainant's counsel, however, that the employees were in danger regardless of who did the construction (TR 44).

Mr. Tolar stated that [*18] he talked to Burk's representative and he told him that the braces secured were excellent braces for the purpose for which they were used. Mr. Tolar stated he, therefore, ordered braces, some for masonary wall and some to be used for the tilt up wall (TR 61).

The Burk representative, Mr. Bill Smedlund, stated that bracing at 20 foot spacing would be adequate (TR 61, 62). It was testified by the witness that Mr. Smedlund was representative of Burk who calls on general contractors and advises them how to use their accessories and rental material (TR 67). Mr. Floyd Wheeler, superintendent of the project, substantiated the conversation with Mr. Smedlund and talked to Mr. Smedlund himself about bracing every 20 feet (TR 144, 158, 159). Mr. Tolar stated that the wall was about 12 feet high when the bracing was applied, that he was advised by Mr. Smedlund that it was very strong bracing. He used knee braces on tilt up construction, did not use knee braces on masonry construction. He did not use them because they add strength in one direction but not in the other (TR 67). He stated that Mr. Smedlund did not, in his presence, make any calculations or drawing to figure the [*19] load. The witness did not know how much support would hold (TR 71). The order for the braces was placed the middle of July. He signed the orders himself (TR 72, 73). He stated they probably got the wall as high as 12 feet within ten days (TR 73, 74). It was 12-inch block, four hour fire rated (TR 74). He stated that this was what the specifications called for that it met FIA standards (TR 75). He did not consider any alternative method of bracing. He stated that he discussed the matter with the architect, Mr. Ralph E. Pettit, and the architect said that Burk braces were a good way to brace it (TR 77). He stated that the architect discussed with him the spacing of bracing, and said the method seemed like a good strong way to brace the wall. He stated the architect drew the drawings but not the bracing.

Mr. Tolar just mentioned to the architect that they had planned to use steel braces from Burk Accessories and the architect said these were good strong braces and would do a good job. He did not go into detail as to how they were going to be attached (TR 108). He did not remember a discussion with the architect as to how many braces they would have or the method of anchoring [*20] them (TR 112, 113). He stated the plans were drawn in December and January and progress schedule was made March 16.

He stated that his company supplied all the concrete blocks used in the fire wall.

The masonry contractor put in the anchor bolts in the wall and a firm named Askew furnished the floor (TR 88). He was told by the specifications not to attach any steel to the wall. None of the structure was to be anchored to the wall. It was designed to have one inch spaces between the roof beams and the fire walls (TR 91). The columns were also designed to have one inch spaces between the columns and the wall (TR 91, 92). The columns were 50 feet apart (TR 92). Two thousand, two hundred braces were secured and he was to use approximately 100 on the masonry wall and approximately 100 of the tilt up wall (TR 94, 95). He stated that when sufficient permanent bracing was obtained from the steel structure, the braces would be taken off and moved to another location. It was the intention to use the braces as many as three or four times during a job (TR 95). He stated he had seen the chart introduced into evidence but had never used it. He had paid no attention to what [*21] it was for.

He did not make inquiry as to what sort of wind could be expected in the Birmingham area (TR 97). He testified that he had lived in the southeastern United States all of his life and knew there were thunderstorms in Alabama. He did not know how fast the wind might get (TR 97, 98).

He stated that test reports by Cheney Lime and Cement Company showed what strength value there was on their mortar and showed that it met the SETEM specifications (TR 101, 102). The test results were introduced in evidence only as reflecting the question of his knowledge rather than for their authenticity since the opportunity for cross-examination of the one making the test was not afforded. He did not know whether the test was made after the fall (TR 105). He stated that Burk Concrete Accessories, Inc., is nationwide and the best in the business of concrete accessories (TR 105, 106). He rented their braces which were placed at 20 foot intervals. Specifications were made by B.F. Goodrich Company for whom the work was being done. The specifications showed a wall such as they were constructing (TR 107). The architect did not come over to the site until the wall fell (TR 107).

The witness [*22] testified that one-third of the 500 foot length of the wall which was up to 20 feet was not braced. They were making preparations to brace it. Concrete block was up and was still green and was, therefore, not braced at that time. The anchor post had been put in only the day before the wall fell. The braces were on the ground at that time preparatory to being put in the wall (TR 112). He stated the test results were handed to him before the mortar was put up.

Mr. Edward Kennedy, Sales Manager of Alabama Precast Products substantiated testimony as to the blocks weighing 45 pounds and testified that his company supplied the blocks. They were 12-18-16 MM double and blocks, square on both ends (TR 115).

Mr. Floyd Wheeler who was superintendent of the project stated that it takes about three to four weeks to complete half of the wall. Four or five masons worked every day. They first reached the 20 foot level or part of it about a month after they started laying the blocks. The day the wall fell, July 24, 1972, a mason was working on the south end. These were sub-contractors (TR 134, 135). He stated that the respondent's employees were working on the east side on the [*23] outside of the building panels. They were about 150 to 200 feet from the wall (TR 135, 136). He stated respondent had some carpenters and laborers crossing under the wall around the outside of it but not on the wall. They were not working on the wall at all (TR 136). There were five openings through the wall that they could walk through, and on July 26, 1972, at times people were walking through all the openings (TR 136, 137). Supports were on both sides of the wall. He stated that the wall blew down towards the west side. The Burk supports were on the west side. They had taken down one or two braces. He stated that when they took the scaffold down they had to take down one or two of the braces, leaving five or six braces remaining (TR 138). The wall had reached an elevation of 30 feet, 4 inches where they were taken down (TR 138). The south end had had no braces on it at all and was roughly 20 feet high. There were not any braces on the last third of the south end because it was not high enough (TR 139). On said date, they had reached enough height, but they could not get the braces in it until it dried out and it was still raining. Four to six braces were above the [*24] anchor belt. The anchor belts were at the 20 foot level on Mr. Tolar's instructions (TR 143, 146). The anchor bolts were put in partitions in the block (TR 143). The wall was 24 feet high at said point that day (TR 140). All of the wall that reached 30 feet, 4 inches was braced. He stated that they were removing a scaffold on the north end. When the wall fell, supports on the west side were bent. Those on the east side pulled out. The anchor bolts straightened out (TR 143). He stated some had pulled out but not bent (TR 144). He stated Mr. Tolar told him to use the supports that Mr. Smedlund furnished (TR 144, 145). When the wall was two to three feet above 20 feet the anchor bolts were to be attached. This would have been done the following morning after the wall had dried out. The braces were staggered ten feet one side about ten feet, the other side with some variation (TR 149, 150). The braces were wired to the scaffold but not to the wall on the west side (TR 150, 151). The scaffold was not attached to the wall, but a couple of inches from the wall, all the way up (TR 151, 152).

There were two levels on the scaffold. The scaffold was an iron pipe scaffold. [*25] The support was secured to the ground by an iron peg. The support moved back and forth at the bottom. The scaffold was 500 feet long and extended the entire distance of the wall. There was also a scaffold at the 20 foot section which scaffold did not have braces attached (TR 153, 154). The purpose of tying to the scaffold was to brace the wall. It was testified that at 30 feet high, the wall needs bracing (TR 154, 155). The wall was dry, it would be necessary to the something providing five feet was added to make it 25 at the 30 foot level (TR 155). A brace could be used (TR 155). This would also be true if it was wet. There were some number braces on the scaffold side except where the mixer was and where the equipment was used but they were not going into the wall but into the scaffold (TR 157).

Mr. Tolar testified that he was of the opinion the wall was very well braced and would stand any wind normally expected in the area; that it was built in accordance with plans and specifications (TR 344, 345). He stated that there were no pilasters (TR 345). The plans called for reinforcement every third cord. The purpose of pilasters is to give lateral stability to the wall [*26] (TR 345). The architect who drew the plans had services of a structural engineer (TR 346).

He stated that after the wall fell, it was re-erected with three No. 4 rods on the outside phase of the concrete block each ten feet horizontally along the wall and the cell was filled from the ground up with 3,000 T gravel concrete mix. After the wall fell he was able to find concrete blocks as far as 220 feet from the base of the wall (TR 347, 348).

Mr. Tolar never built a wall like this before without pilasters. Mr. Tolar testified that most specifications state that no deviation will be allowed. He relied on the plans and specifications (TR 348). He stated that if the plans called for something to be built which he recognized as dangerous, he would not build it (TR 349). In all the 15 or so jobs with masonry walls and warehouses he had built there were to be pilasters, they were put on the plans (TR 349). Respondent always braced the walls even though braces were not on plans and specifications (TR 350).

The building was approved by the building inspector (TR 365). The building inspector came back occasionally to check it. They were building it as required and there [*27] was never any complaint that they weren't building it satisfactorily (TR 373). Mr. Tolar asked the inspector if the inspector had literature on how they could better brace the wall and the inspector said he did not. Mr. Burk also stated that the bracing was sufficient.

Both parties presented expert testimony as to the engineering problems. Mr. Joe Appleton, Dean of Engineering at the University of Alabama with a Bachelor degree in civil engineering from Auburn, and a Masters and Doctorate of civil engineering from the University of Illinois (TR 212, 213), testified that he has been professor of engineering for 13 years (TR 213). He stated that attaching braces to scaffolds which are two inches from the walls would not appear to be the proper way to brace the walls (TR 229). He stated that mortar joints are not good places to rely on for anchorage (TR 230). Thirty miles an hour wind would cause a wall with wall weight of 79 1/2 pounds per square foot at height of this wall to blow over. If it was 23 1/2 feet high at 75 pounds per square foot it would blow over at 20 feet. A 12 inch wall a little over 11 1/2 feet high could be blown down with a forty mile per hour wind and, [*28] therefore, would be a hazard (TR 246). A long wall of 30 foot height blocks would have about the same wind forces as a tilt up wall (TR 247). A tilt wall four or six inches concrete would blow over at a lot greater height with the same wind velocity that would a 12 inch block wall (TR 248). A precast wall the same height as the block wall, both braced in the same manner with forces induced in the braces by the same wind, blowing in the same manner should be about the same (TR 249). A 30 mile an hour wind would blow down a 30 foot wall without bracing (TR 251). He stated it would not take much to straighten out an anchor bolt. A 45 mile an hour wind could straighten the bolt, also blow down the wall (TR 251-256). The plan showed no mechanism for bracing. The pilasters would add lateral strength. No pilaster was called for in the plans (TR 261, 262). Plans did not include anchor or ties (TR 262). He stated that the velocity that would be capable of pulling the anchors out would be within four or five miles an hour of what would blow the wall down without them (TR 263). He stated architects consult codes such as the Southern Building Code because they reflect to [*29] a great degree what has been found to be practiced through the years (TR 265). He had not studied the plans of the wall in question to see whether the wall was designed properly or not (TR 265).

Mr. Floyd Wheeler, superintendent of the project, testified that it began to cloud up about 1:30 p.m. to 2:00 p.m. on the day that the wall blew down. It began to rain, thunder and lightning (TR 135). He told the men to come in. The wind began to blow hard and he could see the trees lying over. He estimated there was a 50 to 60 mile per hour wind (TR 316, 317, 318). Some of the men said "Don't get too close to that wall, the wind is getting stronger" (TR 317). The wall fell, some of the blocks going as far as 200 feet to 300 feet from the wall (TR 318, 319). He stated the wind and the fall caused the distance (TR 319). He testified he grew up in the construction business, worked for Tolar three years. He worked for McDevitt and Street prior to that. He followed the plans of the architect in the construction.

There was no provision in the plans for pilasters. He stated that walls he built before had to have pilasters in them (TR 325). Both he and Mr. Tolar consulted Mr. Smedlund [*30] as to how to construct the walls (TR 325, 326). Mr. Smedlund was on the job when the braces were put in place. They had expansion joints every 20 feet. Braces one per 20 feet, one per panel (TR 326). The anchor bolts fitted down into a hole in the block which was filled with mortar (TR 326). He pointed out durawall, a bracing, which was designed as reinforcement for the wall was installed. The architects prescribed it. (TR 327, 328). Braces weighed about 125 pounds and took two men to carry them (TR 330). There were five doors in the wall. The doors were spread up and down the wall (TR 330). There were two more walk through doors (TR 332).

He had been in the construction business since he was 18 years old and is now 56 years of age (TR 334). He never had on any other occasion built a wall without pilasters or partitions or something in there (TR 323, 325, 333, 334). He stated most walls have pilasters in them. The walls are generally braced every 34 feet, 2 by 4's or 2 by 6's (TR 335). At the time of the accident the floor had not been poured on the east side (TR 336, 337).

He stated that he is not an authority on the velocity of wind and his estimate of [*31] 50 to 60 miles an hour was just an estimate (TR 337). He considered the wall to be properly braced for winds that were to be expected (TR 338). He has experience building walls, reading plans and specifications. He has talked with architects and engineers and worked with engineers and supervisors on the job (TR 339). He stated he put the braces where Mr. Tolar told him to; that they were not on the plans (TR 339, 340, 341).

Mr. Andrew H. Payne testified that he is a consulting engineer with an Engineering Degree from Tulane University. He has worked on designs of complex, automatic machines for Burroughs Adding Machine Company, has been supervisor, chief engineer for Flexible Gun Range Engineer Corporation designing gunnery apparatus and had to work on special targets to see how bombs could be devised and delivered to destroy specialized targets (TR 376, 377). He had attended many seminars on engineering in the Army (TR 378). Since January 1, 1952, he has maintained his own office as a consulting engineer. For a brief period he assisted architects in preparing plans and specifications and he had done structural work and acts as prime contract designer on the job. His present [*32] work is structural engineering and consulting engineering work. He is concerned with drawing, calculating and working on masonry walls. He has designed 8 to 12 walls (TR 370, 379, 380). He stated that he has examined photographs of the wall that fell in this case. He was informed of the kind of anchor bolts, number of braces and type that were anchored into the concrete, from these he made calculations (TR 380). He stated he went over plans and specifications (TR 381). He is familiar with the Southern Building Code and the National Building Code (TR 381, 382). He stated the plans did not call for bracing and no support at all was called for (TR 383). The plans called for certain material to be put in between the blocks every third cord (TR 383). The wall was about 500 feet long, that it has eight doors and openings, that it was slightly over 30 feet high. At times the bracing is shown on plans, it generally is not (TR 384, 385). He stated that he has examined at least 100 plans and that this is the first time in his professional experience that he has seen plans not to include pilasters (TR 385). He stated that pilasters are to afford lateral support to the wall [*33] (TR 386). Pilasters can be placed closer in some cases and further apart in other cases depending on the strength of the wall and how well it is reinforced (TR 387). A 3/8-inch anchor bolt like used here is often used in the area for bracing of walls (TR 387-388). He stated an anchor bolt could be straightened by being subjected to a tensile force sufficient to overcome the bond stress which is holding the anchor in place (TR 388). In a wall such as in the case at bar, for a bolt to be straightened it must withstand ultimate strength of 2906.8 pounds. He stated on the high side it would be in excess of 2000 (TR 389, 390). The equivalent of 9.7 pounds per square foot wind. He stated that 2000 pounds would be the equivalent of 9.7 pounds a square inch of wind. It would be a wind in excess of 60 miles per hour (TR 390). He has seen many walls braced (TR 391). The openings in the wall would relieve some wind pressure. When there is a tornado in Kansas or Oklahoma people seeing it coming for that reason would open all of the windows in the house, that it relieves the pressure in the house (TR 394, 395). He stated the higher a structure is the more intense the wind pressure [*34] is. Wind pressure is divided into zones. First zone is 30 feet, 10 pounds per square foot and it is 20 pounds per square foot for the next 10 feet (TR 396). He testified that with the design of the wall, there was an inherent feed back and that the bracing was inadequate (TR 397). He stated pilasters could have been used. There were also other methods (TR 398). When force is applied to a wall, the wall bends. A concrete block wall is brittle so some auxiliary method has to be used to give strength to resist bending (TR 399). The commonest method used on concrete block walls is to imbed in the mortar joints the truss like material. He stated that in this case a preprietory matter called durawall is used (TR 399). The wall has to resist to be utilized. Horizontal reinforcing is put in the joints to resist the force of the wind. It must come to some point where the flexible stress is absorbed out of the wall and put back into the ground (TR 399, 400). He stated pilasters could be put into the wall and flexible stress could have gone into the ground (TR 400). He testified that anchor bolts impeded in horizontal reinforced masonry had considerable strength as shown [*35] by the fact that some of them straightened out but the wall itself was inherent by its very design, inadequate for its purpose. It was not strong enough (TR 400). He testified that the wind was high (TR 401). He stated that testimony that high wind was 30 miles per hour, very high wind 45 miles per hour and storm 50 miles per hour was just one person's description of wind that, he had never seen that scale before (TR 401). Any wind velocity over 70 miles per hour was a great storm. He was of the opinion that there must be a wind of over 50 miles an hour to blow the wall over and very probably was over 60 miles an hour to blow the wall over (TR 402, 403). He was of the opinion that the wall collapsed because it was designed inadequately to resist lateral forces (T. 404). The wall was subjected to substantial wind loads and these wind loads caused the wall to fall. He stated that not the anchors pulling out but the wall itself failed. It bent beyond its elastic limit and broke (TR 404). When it broke, being a brittle material, it cracked and released an anchor bolt or two. When it released, the force of the wall was transmitted back to the next braces on both sides and in [*36] turn further back causing a domino effect (TR 404, 405). He stated he had never seen a 30 foot wall designed like this in his life (TR 406). He stated it takes 9.7 pounds per inch to straighten out anchor bolts (TR 406). He stated that it might be inferred that since it was interior wall it wouldn't be affected by the wind, but it would not be substantial protection because if the door opened when the wind was blowing, it would permit force to get up inside the building and apply force to the wall (TR 407). He explained that his figures were lower than the National Building Code to the first 30 feet. The National Building Code to the first 30 feet. The National Building Code is not used in this area because it has some rigorous statements which don't apply to the south (TR 409). He stated that a wall at 28 days has almost its entire strength. Seven day strength is 80 pounds per square inch bond stress (TR 413). Evidence that one of them pulled out shows that it was developing every bit of that. Otherwise, it would have ripped straight out. He stated that if the mortar had not held, if it had been green instead of straightening out it would have pulled out and still remained [*37] in an L shape (TR 413).

He stated the Southern Building Code was the same figures (TR 414). He expressed the opinion that the National Building Code was unreasonable and cost unreasonable amounts of money (TR 409). The Southern Building code was adopted for that reason (TR 409). The Southern Building Code has two zones, coastal and interior, Birmingham is interior. He stated that if the wall was built up to 20 feet and allowed to sit seven days at the end of seven days it would be 2/3's of its stength (TR 413). He stated that the anchor bolts were straightened out at a point slightly under what the code says the wall should be designed to withstand (TR 415). He stated the problem was with the design rather than erection (TR 415). There were expansion joints about every twenty feet. There were 25 separate panels with an expansion joint between the panels (TR 416, 417). There were eight or nine doorways (TR 417). The area that was not straight does not have anything to do with the fall (TR 418). He stated that designing the wall he would not hesitate to use the Southern Building Code (TR 418). He quoted section 1409.9 of the Southern Building Code which said: [*38]

Masonry walls and locations where they may be exposed to high winds shall not be built higher than ten times their thickness unless they are absolutely braced or until provision is made for the prompt installation of permanent attachment at the floor or roof levels.

He stated that it is a recognized rule in design applying to construction (TR 419). He agreed with said ratio (TR 420). A wall 24 feet high with no bracing would be unsafe (TR 421). Bracing in a wall is adequate if it has been designed properly (TR 422). The purpose of durawall is to resist flexion. He stated this is a truss in that concrete blocks course to resist flection. Four to six feet had been laid that morning and there was very little strength until the water set. It would develop strength in three hours and fifteen minutes. You would start to get a calculatable strength in three hours and fifteen minutes. In five hours, twenty minutes it would have a reliable strength. (TR 424, 425).

At the hearing of this cause the respondent sought to introduce into evidence the 1967 edition of the National Building Code marked Exhibit 20, the 1965 edition of the National Building Code marked Exhibit 21 and the [*39] Southern Building Code marked Exhibit 15 for identification. The respondent also sought to introduce oral evidence from a Mr. Myron Sasser relating to said building code. Said evidence was rejected at the hearing. The Judge stated at the hearing that the parties could file briefs relating to said exclusion of evidence and that the Judge would reconsider said ruling after receipt of briefs following the close of the hearing. This Judge did reconsider said ruling subsequent to the hearing and entered an order admitting said evidence into the record. Said evidence was admitted only as bearing on the question of "recognized hazard" and for no other purpose.

Mr. Sasser testified that he is director of inspection services for the City of Birmingham and has held this position for 17 years (TR 182). In this position he is in charge of code enforcement in the City of Birmingham with reference to erection of buildings within the city. He has a Bachelor of Science degree in engineering from Auburn University and he is immediate past president of the Southern Building Code Congress (TR 183). He is also chairman of the Research and Revision Committee of said Congress which is [*40] in charge of recommendation of all code changes which occur within the Southern Building Code (TR 183). He stated there are in excess of 700 members of the Southern Building Code primarily from the southeast, that it is used for over 1300 cities over the southeast (TR 184). He stated there are ordiances adopting the code in a number of cities (TR 186, 187). It has been adopted in the City of Birmingham. In the last 10 or 12 years there have been at least 1200 changes but as far as he was aware there has been no changes in the last two or three years. He did not know how long the provisions in the code with reference to thickness of the wall had been in the code (TR 199). The code which as above stated was ultimately introduced into evidence provides that the thickness of the wall must be at least one-tenth of the height. The witness testified that there are 76 paid members in Alabama (TR 200).

Expert evidence was also introduced as to methods of measuring wind velocity. Mr. Robert M. Berry testified that he is a meterologist in charge of the national weather service in Birmingham, Alabama. His qualifications which were introduced into evidence as Exhibit 13, reflect that [*41] he has also had assignments in Honolulu, Washington, Tampa and Ft. Worth. During World War II, he was a weather officer with the U.S. Air Force. He completed his education in 1943 at the University of Chicago. He also has a Bachelor of Science degree in chemical engineering. He stated that the fastest mile as used in their terminology means the average speed that one mile volume of wind passes the wind instrument (TR 123). He stated that norms are prepared on the 30 year average. In 20 years there have been 150 cases of wind exceeding 30 miles per hour in Birmingham (TR 127). He stated that it averages about seven such occurrances per year. He stated that in the summer particularly weather may be localized, that there could be thunder storms and that the wind could have been a different velocity on the site of respondent's construction than what was recorded on their official instruments at the Birmingham Airport (TR 128). He stated that an average thunder storm is 30 to 40 miles per hour (TR 129). Any thunder storm that has winds in excess of 50 knots or 58 miles per hour is classified as severe and warnings are issued. Fifty-eight miles per hour is the threshold [*42] when quite a bit of damage may result (TR 129, 130). There was introduced into evidence as Exhibit 14, the dates and wind velocity of all occasions since 1952, whn the record revealed in excess of 35 miles per hour. This exhibit indicates that in the last ten years there have been six instances where the wind reaching more than 40 miles per hour and 29 instances where the wind exceeded 35 miles per hour. He further testified that it is entirely possible when there is a specific reading for "fastest mile" that there may be gusts of wind 10 to 20 miles an hour greater than the recorded fastest mile wind.

EVALUATION OF THE EVIDENCE

This Judge is convinced that Mr. Tolar, the principal owner of the respondent, attempted to erect a safe wall and thought he had done so. He conferred with Mr. Smedlund, representative of Burk Concrete Accessories and from his conversations with Mr. Smedlund thought that safety precautions had been taken. A review of the entire evidence, however, clearly establishes that the wall as constructed did not meet normal requirements for safety. Mr. Smedlund testified that he did not know what the spacing of braces would be on a block wall; that he was not [*43] qualified to answer that. He stated that Mr. Tolar inquired about using an anchor bolt but that Mr. Smedlund did nto agree to any particular method. He stated he did not check out the method used and has never recommended the use of an anchor bolt and has never seen anchor bolts used on any other occasions. He stated it was agreed that braces could be used as a substitute but that he told Mr. Tolar he did not know how to brace a block wall. He stated he did not tell Mr. Tolar how to use braces on a block wall but only told him how to use them on a precast wall. Mr. Joe Appleton, Dean to Engineering, University of Alabama, stated that attaching braces to scaffolds which are two inches from the wall would not appear to be the proper way to brace a wall. He stated joints are not good places to rely on for anchorage. He stated that a 12 inch wall which was 10 times the thickness or between 11 5/8 feet and 12 feet could be blown down with a 40 miles per hour wind. It will be noted that the wall in this case was as high as 30 feet. He stated that a pilaster clamp would give additional strength and that they were not used in the case at bar. Mr. Floyd Wheeler, the superintendent [*44] of the job, who testified he grew up in the construction business, stated he had never built a wall in the manner the respondent's wall was built on the project, and stated that most of the walls he had worked on had pilasters in them. He stated that he had never built a wall without them inserted and he has been in the construction business for 38 years. Mr. Andrew H. Payne, consulting engineer stated that it was the first time in his professional experience that he had ever seen a wall erected which did not include pilasters. He stated pilasters are to afford lateral support to the walls. He described the wall as designed with inherent designed defects and that the bracing was inadequate. He stated pilasters could have been used and that there were also other methods which could have made it safe. He testified that a concrete brick wall is brittle and, therefore, will break. He stated pilasters could have been put in the wall and flexible stress would have gone into the ground. He stated that while anchor bolts imbeded in horizontal reinforced masonry have considerable strength as shown by the fact that some of them straightened out, the wall itself was inherently defective [*45] by its very design and inadequate for its purposes. It was simply not strong enough. He was of the opinion the wall collapsed because it was designed inadequately to resist lateral forces. He stated it was not the anchors pulling out that caused the wall to fall, but the wall itself failed; that it went beyond its elastic limits and broke. He had never seen a 30 foot wall like this in his life. He stated he had no disagreement with a 10 to one ratio.

The exact wind velocity which hit the wall is not proven. It will be noted that Mr. Payne stated the wind must have been over 50 miles per hour. There are other estimates running as high as 60 miles an hour. While this is a very high wind it was apparently far from unprecedented. The record introduced by the meterologist shows fastest miles occur in excess of 35 miles per hour with a frequency of approximately twice a year. It will be noted that the meterologist testified that when such speeds occur there may very well be gusts of wind as high as 10 to 20 miles per hour greater. If 20 miles per hour was added to 35 miles an hour, it will be seen that the wind is 55 miles per hour. It will be noted that there were [*46] at least 18 instances over the 10 years preceeding the accident in which a wind velocity in excess of 35 miles an hour was recorded.

It would, therefore, appear that a wind velocity of 50 to 60 miles per hour is not so unusual that it should not have been anticipated. It is true that the wind velocity at the time of the accident is established only by estimates which are not entirely reliable as to the total wind velocity. However, the respondent could be in violation of the Act even if it was established that the respondent was not responsible for the accident which ensued. The evidence as hereinabove set forth clearly establishes that the wall was defectively erected. It therefore did not meet the standards. The respondent, therefore, was in violation of the standard even if no accident had occurred.

It will be noted, however, that the law requires that the violation be a "recognized hazard." Both the congressional history of the Act and the Commission's decisions make plain that the term "recognized hazard" does not require that the hazard must have been known to the respondent but that it must have been a recognized hazard in the industry. In the legislative history of [*47] the Act, Representative Daniels stated as follows:

The first difference is that my amendment protects against "recognized hazard" while the Steiger substitute only protects against "readily apparent" ones. A recognized hazard is a condition that is known not necessarily by each and every individual employer but is known taking into account the standard's knowledge in the industry, in other words, whether or not a hazard is recognized is a matter for objective determination; it does not depend on whether the particular employer is aware.

In the case of Secretary v. Engestrum and Norse, Docket No. 74, a superseded California statute was introduced into evidence on the issue of "recognized hazard." The majority of the Commission held that recognized hazard had been established and the violation was proven. On this point, it was held that the California statute was relevant. In the case of Secretary v. Vy Lactos Laboratories, Inc., Docket No. 31, the Review Commission said:

Obviously an expert in a particular scientific field will have personal knowledge of scientific principles that go beyond his work experience. Knowledge of this type, however, is insufficient [*48] to establish a recognized hazard unless it is also commonly known in the cited employer's industry or to the public at large.

Therefore, the fact that Mr. Tolar thought the condition was safe and did not recognize the fact that the wall was built defectively does not exonorate the respondent. The question is whether the hazard was recognized in the industry. The testimony of various experts hereinabove set forth, clearly established that in the industry pilasters were universally used and they were not used in this instances and that the wall was unsafe.

In the opinion of this Judge the proposed penalty of $600.00 is appropriate. Concrete blocks falling from a height of as much as 30 feet and falling as far as 200 to 300 feet from the wall, presents a very real hazard with a substantial likelihood of employees being badly injured or killed. Taking into consideration the past history of the lack of violation and the good faith of the employer, the fact remains that the wall was dangerous and a number of employees could have been injured. The violation, therefore, is properly alleged to be serious and a penalty of $600.00 is proper.

FINDINGS OF FACT

1. Respondent is a corporation [*49] having a place of business and doing business in Tinson, Alabama, where it at all times relevant hereto was in the general construction business, including forming of walls with cement block.

2. Respondent is engaged in a business affecting commerce within the meaning of the Act.

3. On or about August 3, 1972, the respondent was erecting a wall as part of a warehouse at Tinson, Alabama.

4. The bracing of said wall was inadequate and said wall would not withstand a strong wind such as did on occasions occur in the Greater Birmingham area.

5. It was recognized in the industry that the method of support for said wall was not a proper and safe method of support.

6. On August 3, 1972, while respondent's employees were working around said wall, said wall was blown down by a strong wind.

CONCLUSIONS OF LAW

1. Respondent is subject to the Occupational Safety and Health Act and the Occupational Safety and Health Review Commission has jurisdiction of this case.

2. On or about August 3, 1972, the respondent violated section 5(a)(1) of the Act in that it failed to furnish its employees working in the construction at Tinson, Alabama, a place of employment which was free [*50] from recognized hazards, that were causing or likely to cause death or serious physical harm to its employees.

ORDER

It is therefore Ordered that:

Respondent be and hereby is found to have been, on or about August 3, 1972, in violation of section 5(a)(1) of the Occupational Safety and Health Act.

The respondent be and hereby is assessed a penalty in the amount of $600.00 for said violation.

The date of abatement as set forth in the citation be and hereby is affirmed.