OSHRC Docket No. 13843

Occupational Safety and Health Review Commission

June 29, 1977


Before BARNAKO, Chairman; and CLEARY, Commissioner.


Baruch A. Fellner, Office of the Solicitor, USDOL

Albert Ross, Regional Solicitor

Michael Gardener, for the employer




BARNAKO, Chairman.

A decision of Administrative Law Judge Foster Furcolo, dated January 28, 1976, is before this Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970. n1 Judge Furcolo affirmed a serious citation alleging that Respondent failed to comply with the construction safety standard at 29 C.F.R. 1926.701(a)(1). n2 He assessed a penalty of $250.   The issues on review are whether or not Judge Furcolo erred in finding that (1) Respondent knew or, with the exercise of due diligence should have known of the alleged violation; (2) Respondent's employees were exposed to the hazard created by the alleged violation.   For the reasons below, we affirm the Judge's decision.

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n1 29 U.S.C. 651 et. seq., hereinafter "the Act".

n2 This standard provides:

"Formwork and shoring shall be designed, erected, supported, braced and maintained so that it will safely support all vertical and lateral loads that may be imposed upon it during placement of concrete."


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Respondent was engaged in the construction of a high school in Boston, Massachusetts.   The building had a steel framework, and the floors were to be constructed of concrete. The concrete was poured into metal pans, or decking, attached to the steel framework.   Respondent was responsible for pouring the concrete. The framework and decking were installed by other contractors.

The design specifications for the project did not state how the decking was to be shored when concrete was poured. Instead, the specifications provided that the recommendations of the manufacturer of the decking were to be followed.   After receiving the contract, Respondent contacted the manufacturer, Inland Ryerson, to determine its recommended shoring requirements.   The information it received stated that shoring was required for only 30,000 to 40,000 square feet out of a total of 270,000 square feet of decking on the project.   Respondent utilized shoring in the areas specified by Inland Ryerson.   It did not shore other locations.

The normal thickness of the concrete composing a floor was 5 1/4 inches.   However, on the roof,   [*3]   this normal 5 1/4 inches was raised three inches at the edge, and the slab sloped downward toward the center in order to provide drainage.   By May 20, 1975, the concrete for the lower floors had been poured, and Respondent was pouring the concrete for the roof. That morning, a failure of an unshored section of decking five to six feet wide occurred in one location, causing about two cubic feet of concrete to fall to the floor below.   After this incident, the pouring stopped until shoring was installed to support the part of the decking which had failed.   That afternoon, while concrete was being poured on another unshored area of the roof, a 30 foot wide section buckled and sagged.   This section did not, however, entirely collapse.   No material fell to the floor below, and no one was injured.

Prior to the two failures on May 20, 90% of the concrete for the project had been poured. No failures of the decking had occurred in locations for which Inland Ryerson had indicated shoring was unnecessary. n3 In some locations, however, the decking exhibited noticeable deflection due to the weight of the concrete. Respondent's project manager, Bordieri, stated that it was common to have above [*4]   a one-quarter inch deflection. He added that a manufacturer's representative had told him that some deflection was to be expected.   Bordieri had not considered the fact that the extra thickness of concrete on the roof could present more of a problem than was encountered on the lower floors.

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n3 One failure had occurred in an area in which shoring was required as a result of improper installation of the shoring.

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One person who was concerned about the deflection was Conners, an employee of the city of Boston who was clerk of the works on the project.   Conners had been involved in construction work for 14 years and had worked on three previous jobs which had used the same type of decking. He thought that the deflection encountered on the lower floors of the project noticeably exceeded that which he had observed on other jobs in the past.   He expressed his concern to Bordieri and to Respondent's superintendent, Bewig.   They informed him that they considered the deflection normal, and that shoring was not recommended   [*5]   by the manufacturer. Conners told them that he thought shoring should be used anyway.

The structural engineer for the project, Doherty, testified that when the project was out for bids, he had been contacted by Dacko, an estimator for Respondent.   Dacko inquired about shoring requirements so that he could include the cost of shoring in preparing Respondent's bid. Doherty told him that most areas would not require shoring. However, he warned that where the thickness exceeded 5 1/4 inches, either shoring would be required or the pour should be done in two stages.   Dacko died prior to the time Respondent was awarded the contract, and he did not pass this information on to any of Respondent's other personnel.

Doherty also testified that he discussed requirements pertaining to the concrete pours with Bewig and Bordieri on a number of occasions after the inception of construction.   He did not, however, discuss with them the need for additional shoring where the thickness exceeded 5 1/4 inches.   Because of the variables involved in shoring, he thought it best to leave the shoring specifications to the manufacturer of the decking, and he did not determine what recommendations Inland Ryerson [*6]   had made to Respondent regarding shoring.

After the failure on the morning of May 20th, Bordieri noticed that the section of decking which had failed had become separated from the beam. He thought that the failure was due to the improper connection of the decking to the beam in that location.   As a similar problem had not previously been encountered, he concluded that the failure was an isolated event unrelated to any other area of the project.   Doherty expressed the opinion that the manner of connecting the decking to the beam may have been a contributing cause of the morning accident, but that the basic cause was the decking's inability to withstand a thickness of concrete greater than 5 1/4 inches without shoring. Both Bordieri and Doherty agreed that the afternoon accident resulted from the inability of the decking to support the weight of the concrete being poured.

Respondent concedes that the decking which failed in the afternoon could not support the weight of the concrete without shoring, and that the terms of the standard were therefore breached.   Before the Judge, however, Respondent contended that it was not responsible for the violation because it did not and could [*7]   not, with reasonable diligence, have known of the violation.   It argued that it complied with the shoring recommendations of the manufacturer, and that nothing placed it on notice that those recommendations were insufficient.   In particular, Respondent contended that the deflection on the lower floors was normal, that the morning failure resulted from a different cause than the inability of the decking to support the weight of concrete placed on it, and that as Dacko was not a supervisory employee with responsibility for the actual construction work, his knowledge that shoring was required should not be imputed to Respondent.

Judge Furcolo concluded that Respondent knew or should have known of the violation.   He noted that Responent's supervisors knew that some deflection of the decking had occurred on the lower floors, and had been warned by Conners that he thought this was a serious problem.   He also noted that Respondent knew that the thickness of concrete being poured on the roof was considerably greater than on the lower floors. He reasoned that these circumstances should have put Respondent on notice that the decking might fail when a thickness greater than 5 1/4 inches was [*8]   poured.

On review Respondent does not take specific exception to the Judge's reasoning, but only asks us to consider the arguments made in its brief to the Judge.   We have done so and conclude that the Judge's determination that Respondent knew or should have known of the violation is correct for the reasons he assigned.   We also note that the Judge did not impute Dacko's knowledge to Respondent, nor did he conclude that the morning failure should have placed Respondent on notice that additional shoring was required.   As the Judge's reasoning is sufficient to resolve the issue, we express no opinion on these other points.

Respondent also argued before the Judge that it should not be found responsible because its employees were not exposed to a hazard resulting from the violation.   The Judge found that Respondent's employees were exposed. The record shows that carpenters employed by Respondent observed the pouring from the floor below in order to be prepared to install shoring if necessary.   As these employees might have had to work under decking exhibiting symptoms of failure, they had access to the zone of danger created by the violation.   See Gilles & Cotting, Inc., 76 OSAHRC [*9]   30/D9, 3 OSHC 2002, 1975-76 OSHD para. 20,488 (1976). Furthermore, the record shows that at least one cement finisher was working on the section of decking which failed in the afternoon. This worker was not an employee of Respondent.   However, since Respondent created the hazard, it is responsible for the exposure to that hazard of any employee on the jobsite.   Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 OSHC 1185, 1975-76 OSHD para. 20,691 (1976); Anning-Johnson Co., 76 OSAHRC 54/A2, 4 OSHC 1193, 1975-76 OSHD para. 20,690 (1976).

Accordingly, the Judge's decision is affirmed.