SECRETARY OF LABOR,
Complainant,
v.
WILLIAMS ENTERPRISES, INC.,
Respondent.
BUILDING AND CONSTRUCTION TRADES
DEPARTMENT, AFL-CIO,
Intervenor.
OSHRC Docket No. 85-0355
DECISION
Before: BUCKLEY, Chairman, and WALL, Commissioner.
BY THE COMMISSION:
This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. § 661(j), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA"). It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. 659(c).
At issue is whether Deputy Chief Administrative Law Judge Irving Sommer committed reversible error in precluding Williams Enterprises, Inc. from presenting the testimony of an expert witness, James W. Woods. Also at issue is whether the judge erred in failing to grant Williams a new trial and in relying on previous OSHA citations to Williams in finding that various violations were "willful."
Williams was the steel erection subcontractor for the construction of an addition to Coolidge High School in Washington, D.C. On September 25, 1984, Part of the steel framework that Williams had erected collapsed, killing one Williams employee and injuring two others. OSHA investigated the accident and issued citations alleging, among other things, five willful violations of steel erection standards. The judge affirmed all five willful items and assessed the proposed penalty of $9,000 for each one. Williams petitioned the Commission for review of the judge's decision, and that petition was granted.
In a Preliminary Decision and Briefing Order of October 6, 1986, the Commission held that the judge's ruling precluding Woods' testimony was error. The judge had ruled that Williams had failed to properly identify Woods as a witness before the hearing in accordance with the judge's orders. However, the Commission found that Williams had complied with the judge's orders. The Commission also noted, however, that William, had not made an offer of proof of Woods' testimony, so that the Commission could not determine whether the judge's error was prejudicial. It issued a briefing order instructing Williams to specify in detail the testimony Woods would give if permitted to testify and to explain how that testimony, if credited, would affect the judge's findings of fact and conclusions of law. The briefing order also instructed Williams to specify any exceptions it had to the Judge's decision other than the exclusion of Woods' testimony. Williams has made a proffer of Woods' testimony and has specified as additional errors the judge's failure to grant a new trial and his reliance on previous citations issued to Williams.
Having previously ruled that the judge's preclusion of Woods' testimony was error, we must now determine whether that error was harmless. See Federal Rule of Civil Procedure 61; 29 C.F.R. § 2200.2(b) (Federal Rules apply to Commission proceedings); 29 U.S.C. § 661(g).[[1]]. In a civil case such as this, "He who seeks to have a judgment set aside because of an erroneous ruling carries the burden of showing that prejudice resulted". Palmer v. Hoffman, 318 U.S. 109, 116, 63 S.Ct. 477, 482 (1943).[[2]]
The judge's error was harmless if Woods' proffered testimony could not have changed the outcome of the case even if given the maximum credit it would be legally entitled to receive. Woods' proffered testimony relates to four items of citation 2: items, 2, 3, 4, and 5. Those items concern the number of bolts required for structural steel members, the measures required to stabilize steel columns and trusses, and loads on trusses. Williams does not take exception to the judge's disposition of the merits of any other citation items. In determining whether Woods' testimony could have changed the outcome of the case, we have exercised our authority, as the ultimate finder of fact,[[3]] to determine whether the existing record supports the judge's disposition of items 2, 3, 4, and 5, and to then determine whether Woods' proffered testimony, if given the maximum credit to which it would be entitled, would change that disposition. Having done so, we conclude that the judge's error was harmless as to all four items. We affirm his disposition of items 2, 3 and 5. We modify his disposition of item 4, finding that violation willful but reducing the penalty to $4,500 for reasons unrelated to Woods' proffered testimony.
Williams was erecting the structural steel framework for a gymnasium which was to have a high roof and a large open expanse underneath. The building was to have a rectangular framework of structural steel columns and beams around its perimeter. The roof was to be supported by trusses (also called "joists") set on top of the beam-and-column framework and spanning the width of the structure. Metal decking atop the trusses would form the roof.
Each truss was about 130 feet long and had to be lifted atop the beam-and-column framework, which was about 40 feet high, by means of a crane. Generally the trusses were connected (bridged) in pairs on the ground before being lifted and placed on the perimeter beams. Williams had started at the west end of the structure and had set a number of trusses in place from west to east. This work proceeded without incident. Williams then began to do the same thing from the east side of the structure. It was setting the trusses with a crane inside the structure, and planned to set as many trusses as possible that way, then remove that crane by means of an opening it had left on the north side of the structure and bring in a larger crane to set the remaining trusses from outside the north side.
Starting at the easternmost end, Williams placed nine
trusses, working east to west. The tenth truss was to run between two columns, which we
shall designate as 9N (for north)[[4]] and 9S (for south). That truss was to be bolted to
the two columns. While Williams' foreman Tommy Nichols and its ironworker Mark White were
attempting to line up the holes at column 9N to place the bolts, the column toppled
outward and some of the steel framework, including trusses 5 through 9, fell to the
ground. Nichols was killed and White badly injured. Another employee on the ground was
also injured when struck by a failing truss.
Item 2--Number of Bolts Required For Final Placing of Structural Members.
The cited standard § 1926.751(a), provides:
§ 1926.751 Structural steel assembly.
(a) During the final placing of solid web structural members, the load shall not be released from the hoisting line until the members are secured with not less than two bolts, or the equivalent at each connection and drawn up wrench tight.
Item 2 of citation 2 alleges that Williams violated this standard. The parties do not dispute that, during the final placing of perimeter beams by a crane, the beams were released from the crane's hoisting line before they were secured to vertical columns with two bolts. The parties also do not dispute that the beams and columns were solid web structural members. [[5]] The parties disputed before Judge Sommer whether the one special bolt Williams used at each connection was the "equivalent" of two bolts within the meaning of section 1926.751(a). Judge Sommer found that it was not. We agree.
In constructing the steel framework of the building, Williams bolted columns to concrete footings. Beams were then lifted into place using a crane, bolted to the columns, and released from the crane's hoisting line. Williams' policy, which was followed on many, if not all, beam and column connections in the framework, was to install one bolt per connection before releasing the beam from the hoisting line. Later, after the framework was properly plumbed, the additional bolts required by the construction specifications were to be installed.
Williams' president, Frank Williams, Jr., testified that it was standard industry practice to use one bolt per connection during the initial phase of steel erection. He noted that the standard does not absolutely require the use of two bolts but permits employing "the equivalent." Relying on a manual published by the American Institute for Steel Construction ("AISC"), which he described as "the standards group for the steel industry for many, many years," Williams' president testified that the type of bolt they were using, a high-strength bolt, was the equivalent of the two bolts mentioned in the standard. The AISC manual said: "unless high-strength bolts or other special types of bolts and washers are specified, common bolts are furnished." The manual also, according to Williams' president, stated that high-strength bolts have twice the tensile strength of common machine bolts. Therefore, in his view, the standard's unqualified reference to bolts meant that the standard contemplated common bolts, and since one high-strength bolt had twice the tensile strength of one common bolt, a single high-strength bolt was the equivalent of the two bolts required by the standard.[[6]]
However, on cross-examination, Williams' president was questioned about the difference between bearing connections and shear connections. In a bearing connection, the beam rests on top of a column and thus bears down on the column. In a shear connection, the beam is bolted to a plate on the face of the column. Williams read from the AISC manual that in a shear connection, the high-strength bolt has only 1.5 times the strength of the common bolt. Williams' president admitted that his previous testimony that high-strength bolts had twice the strength of common bolts applied to bearing connections, not shear connections. Yet, many of the connections here were shear connections.
As a result, the judge found that Williams did not use the equivalent of two bolts in each connection, and he affirmed this item. On review, Williams does not expressly renew its argument that one high-strength bolt is the equivalent of two bolts. Williams does, however, argue that the use. of a single bolt did not cause or contribute to the collapse of the structure. It also proffers the testimony of Mr. Woods that "the use of one bolt instead of two in no way caused or contributed to instability or the later collapse of the structure."
In our preliminary decision, we ordered Williams to specify how Mr. Woods' proffered testimony was relevant to each citation item. In arguing that Mr. Woods' testimony is relevant, Williams points to three issues of fact that it claims Mr. Woods' testimony would relate to: willfulness; good faith; and the cause of the accident. In arguing that the cause of the accident is relevant, Williams states that the Secretary "made causation relevant" by alleging that the cited violations "contributed to the cause and severity of the accident . . . ." It also notes that the judge relied on causation between the accident and the violations in assessing the gravity of the violation and assessing penalties.
We have many times held, and in our preliminary decision again pointed out, that the cause of an accident is not necessarily relevant to whether a standard was violated. E.g., Towne Construction Co., 86 OSAHRC __/__, 12 BNA OSHC 2165, 2188 n. 7, 1986 CCH OSHD ¶ 27,760, p. 36,310 n. 7 (No. 83-1262, 1986); Concrete Construction Corp., 76 OSAHRC 47/A2, 4 BNA OSHC 1133, 1135, 1975-76 CCH OSHD ¶ 20,610, p. 27,644 (No. 2490, 1976). The circumstances of an accident may provide probative evidence of whether a standard was violated. However, Williams does not claim that the circumstances of the accident shed light on the equivalency issue. We therefore are not convinced that Mr. Woods' testimony would be relevant to the question of violation. Willfulness, good faith and gravity must, however, be taken into account in assessing a penalty. We shall therefore discuss Williams' proffer on these points when we discuss the appropriateness of the judge's penalty assessment.
Williams also represents that Woods would testify
that, as to item 2 and each of the other alleged violations in question here, what
Williams did "in its plan of erection was normal industry practice . . . ."
Specifically as to item 2, Woods' proffered testimony is that "the use of one
high-strength bolt is common practice in the industry." This proffer is, however,
beside the point of whether violations of the cited standards occurred. That an employer's
conduct conformed to normal industry practice is not relevant if the standard
unambiguously prescribed different conduct. See Cleveland Consolidated, Inc.,
87 OSAHRC __/__, 13 BNA OSHC 1114, 1117, 1987 CCH OSHD ¶ 27,829, p. 36,428-29 (No.
84-696, 1987) and cases cited. Inasmuch as the standard cited here is specific and
unambiguous, Williams' proffer is irrelevant to the violation issue. We therefore affirm
item 2 of citation 2.
Item 3--Unstabilized Column
Item 3 of citation 2 alleges that Williams violated 29 C.F.R. § 1926.751(c)(1). That standard provides:
In steel framing, where bar joists are utilized, and columns are not framed in at least two directions with structural steel members, a bar joist shall be field-bolted at columns to provide lateral stability during construction.
The trusses Williams was installing to support the gymnasium roof are "bar joists" within the meaning of this standard. It is undisputed that column 9N was not framed in at least two directions and that a truss was not field-bolted to the column to provide lateral stability during construction. Although Williams' employees were attempting to bolt a truss between column 9N and column 9S at the time of the collapse, Williams had performed construction work before it attempted to laterally stabilize column 9N: It had previously laid trusses on the beams supported by columns 9N and 9S.[[7]]
Williams does not dispute that it violated the standard. Instead, it claims that compliance was, infeasible. An employer may defend against a citation on that basis. Dun-Par Engineered Form Co., 86 OSAHRC __/__,12 BNA OSHC 1949, 1986 CCH OSHD ¶ 26,650 (No. 79-2553, 1986), appeal filed, No. 86-2365 (8th Cir. October 30, 1986). According to Williams' president, if a truss had first been bolted between columns 9N and 9S, then in order to place the remaining five trusses in that bay, Williams would have had to reach over that truss with the crane it then had at the site, which was beyond that crane's capacity.
The difficulty with this evidence is that it assumes that all ten trusses had to be set using the particular crane that was then at the site. It is the duty of an employer to use equipment that permits him to comply with the Secretary's standard. If performing the construction work required the use of a larger crane, Williams was required to use one. Moreover, Williams' president testified that a larger crane would eventually have to be brought to the site to set the trusses in the center of the gymnasium after the smaller crane had been moved outside the structure's perimeter. This larger crane would obviously have had the capacity to set trusses while situated outside the perimeter. The company offered no reason, and none is apparent, why a truss could not have been bolted between columns 9N and 9S before the five trusses to its east were erected, and a larger crane used to set the intermediate trusses. Photographic exhibits in evidence indicate that there would be no impediment to locating a crane outside the perimeter on the north side, adjacent to the ultimate location of those five trusses. In sum, Williams did not demonstrate that compliance with the standard would be infeasible.
Woods' proffered testimony on this item reiterates the claim that the trusses had to he erected in the order Williams erected them due to the limitations of the smaller crane. Nothing in the proffer adds to the evidence already in the record, and thus the proffered testimony does not affect our view that infeasibility was not proven.
Woods' other proffered testimony as to this item is related to items 4 and 5. Williams states that Woods would testify that the collapse of column 9N was due to lateral force imposed on it by foreman Nichols in trying to connect truss 10 to the Column, and that the decking placed on the trusses made column 9N more resistant to collapse than if none had been there. Woods also would testify that "the same accident would have occurred if this truss had been erected first in the sequence [and] it would have taken less lateral force than that exerted by Ironworker Nichols to trigger the collapse." (Emphasis in original.)
However, even if correct, this proffer is not
relevant to whether a violation occurred. Again, the essential point of the proffered
testimony is that the violation of the standard did not increase the likelihood of the
particular collapse that occurred. But it does not tend to disprove that the specific
terms of the standard were violated. It is true that column 9N would remain somewhat
unstable until the truss was bolted to it. That is unavoidable and is the reason for the
standard. It may also be true that each truss to the East of column 9N partially
stabilized the column as it was erected. But the standard specifically requires the column
to be fully stabilized before other construction work is done, not partially stabilized in
steps. We therefore affirm item 3 of citation 2.
Item 4--Joist Bridging.
The cited standard, § 1926.751(c)(2), provides:
Where longspan joists or trusses, 40 feet or longer, are used, a center row of bolted bridging shall be installed to provide lateral stability during construction prior to slacking of hoisting line.
The parties do not dispute that Williams employed 130-foot-long trusses and that, before the slacking of a crane's hoisting line, a center row of bolted bridging was not installed to provide lateral stability during construction.
Bridging is used to prevent the bending or bowing of long trusses, which could cause them to become detached from the beams to which they were bolted or welded and fall to the ground. The standard requires a single center row of bridging to provide lateral stability to the trusses and prevent them from bowing. Here, due perhaps to the great length of the trusses, the design of the building provided for five rows of bridging connecting each truss to the next one, and connecting them all to the perimeter beams running parallel to them. A single row of this bridging consists of an angle iron running from the top chord of one truss to the bottom chord of the adjacent truss, along with a second angle iron going from the bottom chord of the first truss to the top chord of the second truss. Thus, the two angle irons would form an "x." Where an angle iron meets a truss, it would be bolted to the truss.
To erect the trusses at this jobsite, Williams first connected five rows of bridging between each pair of trusses while the trusses were on the ground. The company then lifted this "boxed pair" of trusses to roof level with the crane. Photographic exhibits show that some bridging had also been completed between the first "boxed pair" of trusses (trusses 1 and 2) and the second "boxed pair" (trusses 3 and 4). These four trusses remained standing after the collapse. The remaining trusses fell to the ground (except for the tenth truss, which was being erected at the time and remained suspended from the crane after the collapse).[[8]]
The record shows that there was no bridging in at least two locations: between the first truss and the beam at the eastern end of the building, and between the fourth and fifth trusses. The fourth truss remained in place after the collapse and exhibited no sign that it had been bridged to the fifth truss.
The judge found that Williams Enterprises failed to comply with the standard based on the complete absence of bridging between the first truss and the beam adjacent to it and between the fourth and fifth trusses. We agree. Section 1926.751(c)(2) requires a center for of bridging and it obviously means a complete row. Thus, the gaps in the bridging found by the judge, are contrary to the standard's requirement.
Williams proffers that Woods would testify as to item 4 that "his recommended plan of erection, and the one followed in this instance, would have been to put up the trusses in pairs with connecting bridging between the pairs, and then place metal decking on those trusses to provide lateral stability pending the placement of additional bridging after all. the trusses are up." Williams' proffer also states that this is the "normal sequence" of construction and that "in [Woods'] professional engineering opinion . . . placing bridged trusses in pairs as was done here is consistent with the meaning of 29 CFR § 1926.751." Williams also represents that Mr. Woods would have testified that "in his professional opinion it was not safe or feasible to put up the remaining bridging until all the trusses were placed and properly aligned." Finally, we are told that Woods would testify that "since no bridging existed between the pairs of trusses and the east end of the building, less steel fell as a result of the collapse" and the absence of bridging did not contribute to the collapse.
This proffer is insufficient. First, Woods' "recommended plan of erection" or the "normal sequence" of steel erection violates the specific terms of the standard. Such testimony would not establish an affirmative defense to the citation. Second, Woods' proffered opinion that it was "not safe or feasible" to put up the remaining bridging until all the trusses were placed and properly aligned is not explained, despite our instruction that Williams summarize "in detail" the testimony Woods would give. It is the employer's burden to prove that compliance with a specific standard, like the one here, would be infeasible. E.g., Dun-Par Engineered Form Co., 86 OSAHRC __/__, 12 BNA OSHC 1962, 1966-67, 1986 CCH OSHD ¶ 27,651, pp. 36,033-2, -3 (No. 82-928, 1986). Williams has proffered no facts that would support a claim that compliance would not have been feasible in this case and we reject the proffer for this reason. See, e.g., Miller v. Poretsky, 595 F.2d 780, 785 (D.C. Cir. 1978) (exclusion of evidence not prejudicial where proffer is insufficient). Samuel H. Moss, Inc. v. FTC, 148 F.2d 378, 380 (2d Cir. 1945) (exclusion of testimony not harmful where proffered testimony did not address essential issue). Indeed, the fact that some bridging had been installed between trusses 2 and 3 and must have been installed after those trusses were placed on the beams under Williams' method of erection is substantial evidence that compliance with the standard was feasible.
The same is true of Woods' proffered assertion that compliance with the standard would not have been "safe." This assertion too is entirely unexplained. Moreover, it is insufficient. There are situations where no means of compliance is completely safe. The Commission has therefore held that to make out an affirmative defense in this regard, the employer must show not only that compliance with a standard would create a hazard but that compliance would create greater hazards than noncompliance. See Dun-Par, 12 OSHC at 1967, 1986 CCH OSHD at p. 36,033-3. Williams has not proffered such a showing, however.
Even if we were to assume that it would not have been "safe or feasible" to have put up the remaining bridging until all the trusses were placed and properly aligned, the proffer does not establish that Williams could not have placed and properly aligned all the trusses before it placed decking on top of them. It appears unlikely that placing heavy bundles of decking on the trusses, as Williams did, would have made them easier to align. Moreover, if it was necessary, as Woods' proffer suggests, to properly align the trusses before installing the remaining bridging, there appears to be no reason why the trusses in one bay could not be properly aligned and the bridging installed before the trusses in the next bay were erected. Here, however, the trusses in the first bay at the eastern end of the building were lacking a complete center row of bridging while those in the second bay were being installed.
As to Woods' proffered opinion that "placing bridged trusses in pairs as was done here is consistent with the meaning of 29 CFR § 1926.751," it may be that the initial placing of trusses in "boxed pairs," rather than individually, is consistent with the standard. However, the standard also plainly requires a continuous center row of bridging "before slacking of hoisting line," and Williams admittedly did not do this. Its bridging procedures as a whole did not comply with § 1926.751.
Woods' remaining proffered testimony merely asserts
that the violation was unrelated to the collapse, which we already have held irrelevant to
whether a violation existed. Item 4 is therefore affirmed.
Item 5 -- Bundles of Decking on Trusses.
The cited standard, § 1926.751(c)(3), provides as follows:
No load shall be placed on open, web steel joists until these security requirements are met.
There is no dispute that loads had been placed on open web steel joists. Bundles of the steel decking that would ultimately form the roof of the gymnasium were lifted to roof level and were resting on the trusses at the time of the collapse. The bundles each weighed about 3,000 pounds. Three bundles were placed on the four trusses at the eastern end of the building. Five or six bundles of decking had been placed on the next five trusses and fell when those trusses fell. It is also undisputed that the trusses were "open web steel joists."
It also does not seem to be disputed that these loads were placed on the trusses before the standards' other security requirements were met. The Secretary's expert witness in structural steel, Matthew Burkart, testified that the security requirements to which the standard refers are the bolting, column stabilization, and truss bridging requirements cited in the three items discussed above. Burkart's testimony is consistent with the purpose and organization of the standards. The bolting, column stabilization, and truss bridging standards are requirements intended to assure that the structural members of the building--the beams, columns, and trusses--are adequately supported during the construction work. They are therefore "security requirements" within the plain meaning of those words. Also, Williams does not argue that "security requirements" has any meaning other than that to which Burkart testified. Nor does Williams establish an infeasibility defense, its president admitting on cross-examination that the placement of loads on the trusses could have waited until after bridging was completed. Inasmuch as Williams had not complied with the bolting, column stabilization, and truss bridging requirements, the present record indicates that Williams was not permitted by section 1926.751(c)(3) to place the bundles of steel decking on the trusses.
Williams' proffer does not change this conclusion.
Williams represents that Mr. Woods would testify that "joists bridged in pairs and
the placement of steel decking across the top chords of the joists added stability to the
entire chord system and did not and could not have caused or contributed to the collapse
of column [9N]." As we have said, such proffers are irrelevant to whether the
standard was violated. We are also told that Woods would testify that the testimony of the
Secretary's experts that the decking had a destabilizing effect on the structure "is
not, supportable in engineering logic."[[9]] Even if this were so, it falls far short
of proffering an affirmative defense to Williams' violation of the standard. For one
thing, Williams does not proffer a showing that compliance with § 1926.751(c)(3) would
have created greater hazards than noncompliance. We therefore affirm item 5.
Willfulness
We now determine whether the violations were willful, and whether Woods' proffered testimony would affect our decision on this issue, if given the maximum credit it would be legally entitled to receive.
A violation is willful if committed "with intentional, knowing or voluntary disregard for the requirements of the Act or with plain indifference to employee safety." Asbestos Textile Co., 84 OSAHRC 48/B12, 12 BNA OSHC 1062, 1063, 1983-84 CCH OSHD ¶ 27,101, pp. 34,948 (No. 79-3831, 1984). It is not enough for the Secretary to show that an employer was aware of conduct or conditions constituting a violation; such evidence is necessary to establish any violation, serious or nonserious. Section 17(k) of the Act, 29 U.S.C. § 666(k). E.g., Towne Construction Co., 12 BNA OSHC at 2190, 1986 CCH OSHD at p. 36,312 (No. 83-1262, 1986). See Frank Irey, Jr. Inc. v. OSHRC, 519 F.2d 1200, 1207, aff'd on other grounds on rehearing en banc, 519 F.2d 1215 (3rd Cir. 1974), aff'd on other grounds sub nom. Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977) ("It is obvious from the size of the penalty which can be imposed for a 'willful' infraction--ten times that of a 'serious' one--that Congress meant to deal with a more flagrant type of conduct than that of a 'serious' violation"). A willful violation is differentiated by a heightened awareness--of the illegality of the conduct or conditions--and by a state of mind--conscious disregard or plain indifference. There must be evidence that an employer knew of an applicable standard or provision prohibiting the conduct or condition and consciously disregarded the standard. Without such evidence of familiarity with the standard's terms, there must be evidence of such reckless disregard for employee safety or the requirements of the law generally that one can infer that if the employer had known of the standard or provision, the employer would not have cared that the conduct or conditions violated it. It is therefore not enough for the Secretary simply to show carelessness or lack of diligence in discovering or eliminating a violation; nor is a willful charge justified if an employer has made a good faith effort to comply with a standard or eliminate a hazard, even though the employer's efforts are not entirely effective or complete. See Brock v. Morello Brothers Construction, Inc., 809 F.2d 161, 163-65 (1st. Cir. 1987), and cases cited therein; Asbestos Textile Co.; Marmon Group Inc., 84 OSAHRC 27/C2, 11 BNA OSHC 2090, 2092, 1984-85 CCH OSHD ¶ 26,975, p. 34,643 (No. 79-5363, 1984); Mel Jarvis Construction Co., 81 OSAHRC 89/B13, 10 BNA OSHC 1052, 1981 CCH OSHD ¶ 25,563 (No. 77-2100, 1984).
Judge Sommer found that Williams' actions demonstrated "a plain indifference and conscious disregard . . . to the safety requirements of the Act," and thus were willful. He relied on evidence of previous citations to Williams for similar violations;[[10]] on its president's knowledge of the standards; on the fact that Williams admittedly is the largest steel erector in the Washington, D.C. area; and on its site supervisors' knowledge of the conditions constituting violations. In addition, the judge relied on the lack of safety training of non-supervisory employees.
We agree with the judge that the violations were willful for the following reasons. In evaluating willfulness, a primary consideration is the employer's attitude toward the Act and the standards adopted under it, Mr. Williams, the president of the company, testified that he had been familiar with the standards since their adoption. However, when Mr. Williams discussed the placing of decking on the trusses, he suggested that this was permissible because it was as safe as the measures required by section 1926.751(c)(3), although the standard unambiguously prohibits what Mr. Williams would permit. The company does not claim and made no attempt to show that it had obtained a variance from the standard under section 6(d) of the Act, 29 U.S.C. § 655(d).
Similarly, as to section 1926.751 (a)'s requirement (cited in item 2) that two bolts be used, Mr. Williams offered such insubstantial reasons for the violation that we can only conclude that he failed to take the standard seriously. As we have said, the standard, which requires two bolts or the "equivalent," is a "security requirement" within the meaning of a closely-related standard, section 1926.751(c)(3). An employer familiar with the standards, as Mr. Williams was, could not conclude in good faith that he was permitted to use only one-bolt connections on the theory that they could be done in such a way as to prevent trusses from rolling when employees walked on them, or that a single high- strength bolt is the equivalent of two, when the very industry booklet he relied on stated expressly that this equivalence did not obtain in the shear connections that Mr. Williams knew were employed here. Such inattention to the purpose of the standard and the critical details of safety are, given Mr. Williams, long familiarity with the steel erection standards, strongly indicative of a disregard for the standard.
The same is true of the testimony of Mr. Williams (and Mr. Woods's proferred testimony) as to item 3 that securing a bar joist to column 9N to give it two-way stability before setting intermediate trusses was not feasible because the crane at the site could not perform the work. That assumes that Williams had to use that particular crane for the work. As discussed above, a larger crane could have been used for this work. Williams may not disregard a standard simply because it has failed to rent the necessary equipment.
With regard to the failure to complete bridging (item 4) as well as the decking violation (item 5), Mr. Williams testified:
I'm not bragging, but I think I am probably as experienced in the steel erection business as anybody in the United States, and from the day that I have been around this business, even until today, you put joists up, you put bridging between the two adjacent joists, which is exactly what was done on this project. You've got a pair of joists with bridging between them. You've got an opening and another pair of joists with bridging between them, and you land the decking on top of it. . . . I would do the same thing tomorrow.
That Mr. Williams approved the leaving of an opening between one boxed pair of trusses and the next shows indifference to whether §§ 1926.751(c)(2) and (3) are followed on his jobs.
This attitude towards OSHA's standard's was shared by a number of Williams's supervisors. Superintendent Ward, who reported directly to Mr. Williams, was regularly present during the erection of the steel. He saw it as it went up. He obviously knew that only one bolt was used per connection, for that was Williams' normal procedure and would in any event have been apparent when Ward saw the framework being erected. He saw that decking had been placed on the steel frame before security requirements had been met. He undoubtedly knew that the trusses were to be erected in sequence and that column 9N would remain unstabilized while trusses 5-9 were erected in the same bay. He was present on the job site on September 21 when column 9N was framed in only one direction and, from the obviousness of the condition and his presence, we infer that he knew of the fact.[[11]]
Ward did testify, however, that he thought that the framing was correctly done. The testimony demonstrates either that Williams has done little to educate its top managers such as Ward in the requirements of OSHA's standards or that those managers do not take the standards seriously. Williams seems to have never taken to heart the very first paragraph of its safety program:
Safety starts at the top and it must have the active support of top management. Too often, safety plans are allowed to deteriorate from lack of interest by top management.
The safety program administered for Williams by Alexander Czernowski involved safety meetings and the distribution of copies of safety rules to supervisors, but no safety instructions to its non-supervisory employees at the site, as judge Sommer found in affirming a violation of § 1926.21(b)(2), a finding that is not contested on review. Moreover, safety specialist Czernowski was unaware whether the foreman at the site, Nichols, had had any safety training, and he had never spoken to him.
The conduct of Williams's supervisors also showed an unwillingness to provide a margin of safety for employees. On Thursday, September 20, five days before the collapse, D.C. building inspector Ross Lawson complained to foreman Nichols, who directed the steel erection for Williams, and Art Durrah, a representative of the general contractor, that the steel was not aligned properly, that additional cables were needed to correct the situation and that the bar joists needed to be tied in to the perimeter beams. Nichols and Durrah promised to make whatever corrections were required. However, the conditions were not rectified before the collapse.
On September 21, Gary Mercer, another representative of the general contractor, questioned Nichols about why decking had been placed on the trusses and why the bridging between the trusses was incomplete. That same day, and again early on September 25, Williamson told Nichols that placing the decking at that stage was not the proper procedure. According to Williamson, Nichols "just kind of laughed and went ahead and did it anyway." Williams ironworker Burdette also voiced fears to Nichols that the trusses could collapse sideways under the weight of the decking, and he pointed out that the trusses were visibly bowed.
Williams' superintendent Ward, who had many years of experience in steel erection, visited the jobsite on the 21st. Column 9N and the northeast stairtower were visibly leaning and Ward became aware of the decking atop the trusses. However, Ward did not ask Nichols to remove the decking or take steps to comply with any of the standards involved here. Ward testified that he told Nichols by phone on the 24th to stop the steel erection until the northeast stairtower was secured by cables, and not to be concerned about the crane being idle. However, Nichols did not follow that advice.
On the morning of the collapse, D.C. safety inspector Lawson, seeing that the conditions of which he had complained had not been corrected, confronted Nichols and Durrah. He told them the situation was dangerous and that there were not enough bolts in place in the structural members, creating what he termed "a hinging effect." He asked Nichols not to erect steel that day and said he would try to get the job closed down until the situation was corrected. (Lawson had no authority to shut the job down. Only the D.C. Contracting Officer could order that.) Nichols and Durrah rejected Lawson's warnings; Nichols proceeded with his work with several Williams employees, one of whom went up on the beams with him.
The record in this case shows that Williams' management was indifferent to whether it's jobsite supervisors understood OSHA's requirements. It also shows that the supervisor in charge of steel erection deliberately and repeatedly ignored warnings of serious safety hazards due to the violative conditions.
Williams proffers that Woods would testify that its
procedures on this job were consistent with the normal practice in the steel erection
industry and that none of the conditions endangered the stability of the structure.
Williams also asserts that Woods' proffered testimony would establish that even if
Williams exercised poor judgment, it did not disregard known risks or hazards, and showed
good faith, making a willful characterization of the violations inappropriate. A violation
is not willful if the employer had a good faith opinion that the violative conditions
conformed to the requirements of the cited standard. However, the test of an employer's
good faith for these purposes is an objective one--whether the employer's belief
concerning a factual matter or concerning the interpretation of a standard was reasonable
under the circumstances. E.g., Kus-Tum Builders, Inc., 81 OSAHRC 97/82, 10
BNA OSHC 1128, 1132, 1981 CCH OSHD ¶ 25,738, p. 32,106 (No. 76-2644, 1981). Even if it is
true, as Williams asserts, that it followed common industry practice, that would not
change our conclusion. The standards cited here are specific and unambiguous, and Williams
could not have believed in good faith that it was complying with them.
Penalties
We now analyze whether the judge's penalty assessments for items 2 through 5, which were the same proposed by the Secretary, were appropriate based on this record, and whether Woods' testimony, if fully credited, would affect our conclusions. Section 17(j) of the Act, 29 U.S.C. § 666(j), states that in assessing penalties the Commission is to give "due consideration" to the size of the employer's business, the gravity of the violation, the employer's good faith, and his history of previous violations. Judge Sommer assessed $9,000 for each willful violation he found. He based this on what he termed the severe gravity of each violation, the previous citations to Williams, Williams' complete familiarity with the steel erection standards, the lack of monitoring in its safety program and the lax attitude of its supervisors and management toward compliance with the standards. Williams protests those penalty assessments based on the failure to take into account Woods' testimony and the judge's reliance on the previous citations.
We conclude that the violation cited in item 4 was of relatively lower gravity than the others. There was Considerable testimony that the truss system was unstable, but most of this testimony concerned the bundles of decking on tile trusses, the violation cited in item 5. In order to evaluate the gravity of item 4, we must disregard evidence related to item 5. The express purpose of the truss bridging standard is to provide "lateral stability" to the trusses. To achieve this end, the standard requires a complete row of center bridging. Williams did not install a complete row of bridging, but it did install considerable bridging, in some respects more than the standard requires. Compliance with the standard could be had by installing a single row of continuous bridging down the center of the trusses, which were about 130 feet long. That would have left about 65 feet on each side of the center of each truss with no intermediate bridging. If there were bowing or swaying in those 65-foot sections, great lateral stress might be placed on the connections at the ends of the trusses. The four additional rows of bridging would appear to provide considerable stability even without each truss being connected to two other trusses. As we have said, Williams cannot substitute its own plan of erection for that required by the standard, but the fact that its plan of erection at least partially achieved the standard's purpose reduces the gravity of the violation. In fact, two of the trusses cited for lack of continuous bridging, trusses one and four, withstood the collapse of the structure. In the circumstances, we assess a penalty of $4,500 for this violation.
As to items 2, 3 and 5, the evidence of record amply supports the judge's penalty assessments. We find no error and affirm the judge's finding. In assessing the gravity of the violations, we must consider the hazards against which the standards are designed to protect and determine the degree to which the employer's noncompliance exposed employees to those hazards. Essentially, Williams' position, as expressed through the testimony of its president at the hearing and in its proffer of Woods' testimony, is that these violations were of low gravity because they did not contribute to the instability of the structure. We note that the proffer regarding the irrelevance of the violations to the accident is entirely lacking in specifics, as is the rest of the proffer, contrary to our instructions to Williams to summarize Woods' expected testimony "in detail." Williams' argument could be taken to mean that the structure was just as stable as it would have been had Williams complied with the standards. If this is what Williams' president meant and what Woods would mean if he so testified, their testimony would be inherently incredible, for it is obvious that at least to some extent the structure was not as strong as if it had been erected in compliance with the standards. For example, the use of only one bolt per connection obviously means that each connection was not as secure as if two bolts or the equivalent had been used. As the record shows, a single high-strength bolt is not equal in strength to two common bolts in shear connections. As the bolts were the only means used to connect the beams to the columns, the structure could not have had the stability intended by the two-bolt standard. Similarly, a column that has not been stabilized in two directions cannot be as stable as one that has, and placing additional weight on an inadequately bolted framework, an unstabilized column, and incompletely bridged trusses about 130 feet long, cannot add stability to those structural members. It requires no particular expertise to recognize that the possibility a steel framework or structural member will collapse before it is fully secured is enhanced by additional weight on it.
Thus, even if the framework here had not collapsed, we would still conclude that the violations were of high gravity because they increased the probability of an accident and worsened its probable consequences. Moreover, the collapse of even a single structural member could have killed or seriously injured workers either on the framework or on the ground below.
Even assuming arguendo that the violations
were of low gravity, however, the judge's penalty assessments would be appropriate, given
Williams' size, lack of good faith, and its history of willful failure to comply with OSHA
steel erection requirements for fall protection. Williams indisputably is a major steel
erection firm, the largest in the Washington, D.C., area at the time of this case, with
gross revenues of $8,787,680 for 1984 and of $15,452,845 for 1985. Williams' on-site
supervisor repeatedly ignored warnings about conditions that we have found violate steel
erection standards. Williams was indifferent to whether its on-site supervisors and
employees knew OSHA's requirements. See also discussion of willfulness in Williams
Enterprises, supra n.10. In the circumstances, we cannot justify reducing the
judge's penalty assessment of $9,000 for each of willful violations 2, 3 and 5.
Other Issues
Williams' objection to the extent of the judge's reliance on prior citations in finding willfulness and assessing penalties need not be addressed here, because we have decided those issues independent of the judge and given the prior citations the weight we believe they deserve. This leaves only Williams' claims that it was entitled to a new trial.
The first ground for Williams' new trial request is that the judge permitted the union to intervene based on a motion filed 11 days before the hearing. Williams asserts that the union's motion was "late-filed." However, the relevant Commission rule at the time allowed a petition for leave to intervene "at any stage of a proceeding before commencement of the hearing before the judge." 29 C.F.R. § 2200.21(a)(1984). The union's petition was filed timely under both the previous and current Commission rule. The judge was entitled to grant it in his discretion. 29 C.F.R. § 2200.21(c)(1984).
Williams also asserts that the union's intervention at that point precluded Williams from engaging in discovery regarding the issues on which the union claimed its participation could assist the judge. But the union presented no witnesses or evidence of its own--its participation was limited to briefly questioning witnesses called by the other parties. Therefore, the union's participation could not have prejudiced Williams in the preparation or presentation of its case.
Finally, Williams claims that it was precluded from full discovery regarding the credibility of inspector Wiseman, based on the judge's initial ruling, about a month before the hearing, that no evidence would be admitted regarding anyone's visits to the worksite after October 12, 1984, following the closing conference between OSHA and Williams regarding this inspection. Williams claims that Wiseman's visits after that time affect his credibility as a witness because they pertained to this case and not a later case as Wiseman claimed. We cannot conclude that any substantial rights of Williams were affected by the judge' s handling of this issue. For example, the judge stated at the hearing:
. . . I am willing to keep Mr. Wiseman on the stand the rest of today while you get all the information you are entitled to--anything relevant and probative to this case, . . . . You have all the time you want. This case can go on for the next month . . . . if you find good reason to recess it, I will recess it.
Williams has not explained to us specifically why that opportunity was not sufficient. Nor does Williams explain how evidence on this point would affect the credibility of Wiseman's testimony would affect the weight of the evidence. The judge apparently nowhere relied on uncorporated testimony by Wiseman regarding the items or issues Williams disputes here. For each of these reasons, we reject Williams' claim of reversible error. Fed. R. Civ. P. 61.[[12]]
Accordingly, we affirm items 2, 3, 4 and 5 of the citation for willful violations. We assess a penalty of $9,000 for each of the violations in items 2, 3 and 5, and a penalty of $4,500 for the violation in item 4. A total penalty of $31,500 is assessed. The judge's decision is affirmed in all other respects.
FOR THE COMMISSION
Ray H. Darling, Jr.
Executive Secretary
DATED: April 27, 1987
WILLIAM E. BROCK, SECRETARY OF LABOR,
Complainant,
v.
WILLIAMS ENTERPRISES, INC.
Respondent.
DOCKET NUMBER 85-0355
Appearances:
B. ANNE GWYNN, ESQ.
ARTHUR J. AMCHAN, ESQ.
U.S. Department of Labor
For the Complainant
DAVID POTTS-DUPRE, ESQ.
ELIHU I. LEIFER, ESQ.
Sherman, Dunn, Cohen, Leifer &
Counts, P.C.
For the Intervenor,
Building and Construction
Trades Department, AFL-CIO
JAMES BRENT CLARKE, JR., ESQ.
For the Respondent.
DECISION AND ORDER
Sommer, Judge:
On March 12, 1985, Respondent was issued Serious Citation No. 1 alleging violations of 29
C.F.R. § 1926.20(b)(1), 29 C.F.R. § 1926.21(b)(2), 29 C.F.R. § 1926.550(a)(6) and 29
C.F.R. § 1926.550(b)(2). The Respondent also was issued Willful Citation No. 2 alleging
violations of 29 C.F.R. § 1926.750(b)(2)(i), 29 C.F.R. § 1926.751(a), 29 C.F.R. §
1926.751(c)(1), 29 C.F.R. § 1926.751(c)(2) and 29 C.F.R. § 1926.751(c)(3). A penalty of
$1800.00 was proposed for the serious violations and $45,000.00 for the willful
violations. A hearing was held in Washington, D.C. All parties were represented by counsel
who filed post-hearing briefs. No jurisdictional issues are in dispute, the parties having
pleaded sufficient facts to establish the Respondent is subject to the Act and the
Commission has jurisdiction of the parties and of the subject matter.
Background
Williams Enterprises, Inc., is engaged in the steel erection business. In September 1984 it was the subcontractor engaged in steel erection for a gymnasium being constructed as an addition to the Coolidge High School in Washington, D.C. On September 25, 1984, while so engaged, a section of the structure collapsed resulting in the death of one employee and injury to others. An OSHA compliance officer investigated the accident and thereafter issued two citations for violations of the safety standards which were contested.
The gymnasium was being erected on the north side of the school building. Williams' responsibility was the erection of the steel framework. Respondent commenced working from the west to the east, and when it was approximately midpoint, work was commenced from east to west; the structure was rectangular in shape and made provision for four stair towers at each of the corners of the gymnasium. Initially, the steel framework consisting of columns were set in, which were joined by beams; thereafter trusses spanning approximately 130 feet in length running north to south were raised by crane and bolted to the horizontal beams. Ultimately, the roof of the gymnasium would rest and be supported by the trusses running the entire length of the area.
Alleged Violations
Serious Citation No. 1, items 1(a) and 1(b) - 29 C.F.R. § 1926.20(b)(1) and 29 C.F.R. § 1926.21(b)(2).
Respondent was cited for violating 29 C.F.R. § 1926.20(b)(1), which reads as follows:
It shall be the responsibility of the employer to initiate and maintain such programs as may be necessary to comply with this part.
The standard at issue in this case, 29 C.F.R. § 1926.20(b)(1), requires that an employer "initiate and maintain" a safety program. The plain meaning of to "initiate" is to begin,[[1]] and to "maintain" is "to continue" or "carry on".[[2]] The burden is on the Secretary to prove that the Respondent violated a standard which imposes a duty to institute a safety program and keep it ongoing. The evidence is insufficient to substantiate that this duty was breached. The citation charges a violation of this standard in that "management representatives did not enforce safety policies and there was poor employee awareness and participation in the program". These charges do violence to the nature and plain meaning of the words of the standard, and will not be accepted. See Bethlehem Steel Corp. v. OSHRC, 573 F.2d 157, 161 (6 BNA OSHC 1440, 1444)(3rd Cir. 1978). The evidence shows that the Respondent did have a safety program which was ongoing. Its safety director testified to its existence, there was documentary evidence of its existence, and some employee verification (although only by supervisory staff). It was required to do that and nothing more under the standard. Since the standard only requires that a safety program be existent and carried out and the facts demonstrate this to be so, Respondent did not violate 29 C.F.R. § 1926.20(b)(1) and the citation is vacated.
Respondent was cited for violating 29 C.F.R. § 1926.21(b)(2) which reads as follows:
The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.
The standard imposes a duty on the employer to instruct employees "in the recognition and avoidance of unsafe conditions".
The evidence establishes that the Respondent's employees at the Coolidge High School jobsite received no instruction on the dangers present and the hazards associated with the job they were engaging therein. The testimony of employees Williamson (a miscellaneous foreman) (Tr. 253), Burdette (Tr. 277), and White (Tr. 312) forcefully demonstrate that the Respondent did not instruct them in the avoidance of hazards or the dangers inherent in the job they were doing; their testimony reveals no safety meetings were held at the Coolidge job site. Ward, the Respondent's superintendent at the job site, in response to a question as to whether there were "any safety meetings at the Coolidge job site for non- supervisory employees" stated, "Not to my knowledge. Maybe Tommy did; I didn't have any meetings there" (Tr. 491). The evidence fully demonstrates that the Respondent knows it is engaged in a hazardous industry (testimony of its president); its supervisory help knew of this and observed the employees as they engaged in hazardous steel erection, yet failed to instruct employees in the recognition and avoidance of unsafe conditions as required. See National Industrial Constructors, Inc. v. OSAHRC, 583 F.2d 1048 (8th Cir. 1978). Accordingly, the citation for violation of 29 C.F.R. § 1926.21(b)(2) is affirmed. The hazard in this case is a serious one since working in steel construction exposes the employees to fall hazards from considerable heights. Applying the penalty factors in Section 17(j) of the Act, I find that $450.00 to be an appropriate penalty.
Serious Citation No. 1, Items 2(b) and 2(c) - 29 C.F.R. § 1926.550(a)(6) and 29 C.F.R § 1926.550(b)(2)
The standard at issue in this case, 29 C.F.R. § 1926.550(b)(2), requires that a truck crane needs to meet the "applicable requirements for . . . inspection . . . maintenance . . . as prescribed in the ANSI B-30.5 1968, Safety Code for Crawler, Locomotive and Truck Cranes".
The ANSI section states:
5-2.1.5 Inspection Records
Written, dated and signed inspection reports and records shall be made monthly on
critical items in use such as brakes, crane hooks and ropes. Records shall be kept where
readily available.
5-2.4 Rope Inspection, Replacement and Maintenance.
5-2.4.1 Inspection
a. All running ropes in continuous service should be visually inspected once every
working day. A thorough inspection of all ropes in use shall be made at least once a month
and a full written, date, and signed report of rope conditions kept on file where readily
available. . . .
The evidence shows that the Respondent leased the P&H truck crane for use on the job, utilizing its own employee as the operator. The compliance officer ascertained the crane had been used for three months and that there were no reports of inspection available although he requested them. He asked both the crane operator and the Respondent's safety director for such inspection reports but received none (Tr. 82, 86). The evidence fully demonstrates that there were no inspection reports available demonstrating the status of rope conditions, nor were there inspection reports available which recorded brakes, crane hooks and rope conditions. Respondent's employee operated the crane which was in use for approximately three months, and as such the duty to exercise reasonable diligence required it to inspect the crane for proper function and maintenance so as to prevent its operator employee and the other employees connected with the steel erection process from exposure to unsafe conditions if the crane was defective. Absent the inspection reports required, the Respondent violated 29 C.F.R. § 1926.550(b)(2).
The violation was characterized as serious. It is important to note that the violation found was not that there were hazards present in the crane but that there was no inspection report. The record lacks evidence as to how long a period daily the crane was used and the number of employees using the crane. There is no record of any such previous violations although it is apparent the Respondent uses cranes extensively in its work. For the record violation herein taking into account all the existing facts and circumstances, it is apparent that this violation should be characterized as other than serious, and I so find. No penalty is assessed.
The Secretary withdrew the citation alleging a
violation of 29 C.F.R. § 1926.550(a)(6).
Willful Citation No. 2 - item 1 -29 C.F.R. § 1926.750(b)(2)(i)[[3]]
Respondent was cited for failure to provide fall protection required by this standard. The citation issued reads:
29 C.F.R. § 1926.750(b)(2)(i): During skeletal steel
erection, a tightly planked and substantial floor was not maintained within 2 stories or
30 feet, whichever is less, below and directly under that portion of each tier of beams on
which work was being performed:
(a) Tower for stairway three & four - Employees erection steel where there was a
potential of falling approximately 46 feet were not provided with fall protection.
The preponderance of the evidence establishes that
the Respondent violated this section. The testimony reveals that employees were working in
the northeast tower (stairway three and four) at a height of 50-60 feet without flooring
beneath them, no decking or netting, and were exposed to a fall from such heights. Seba
Williamson, one of Respondent's foremen, testified there were no nets or decking beneath
the employees working in both the northwest and northeast towers, and moreover no
employees were tied off (Tr. 255-256); this was corroborated by Burdette and White who
were doing connecting work on both towers and unequivocally testified that there was no
decking, flooring, planking or nets under them while working up on the steel (Tr. 281-282,
314-315). The hazard of falling from such heights was vividly present and known to the
Respondent. Not only did Williamson, one of the foremen, know of the lack of the necessary
fall protection, but this hazardous condition was known both to Nichols, a foreman who
directed the work and was present daily, and Ward, the superintendent who was at the steel
erection site regularly. I was able to observe the Respondent's employees (Williamson,
Burdette and White) as they testified, and all gave the distinct impression of
truthfulness. Their testimony was not discredited nor contradicted by any significant
direct evidence nor by any legitimate inferences from the evidence. I find no reason to
deny the conclusiveness of their evidence establishing a violation of 29 C.F.R. §
1926.750(b)(2)(i).
Willful Citation No. 2 - item 2 - 29 C.F.R § 1926.751(a)
The Secretary alleges that Respondent violated 29
C.F.R. § 1926.751(a)[[4]] in that only one bolt was used on connections between solid web
structural members before releasing the hoisting line of the crane. Compliance Officer
Wiseman inspected the steel structure at the east end of the premises therein on September
25, 1985, and observed "more than 50 connections that had only one bolt on the east
end of the building" (Tr. 40, Photograph Gov't. Exh. 2). His observations were
verified by the men who actually worked on the steel. Williamson, a foreman, testified one
bolt was used (Tr. 258) as did Burdette (Tr. 284) and White (Tr. 318). These employees
further testified that Nichols, their foreman, was present and fully aware of it. Both
Burkart and Jaspar, consulting engineers who testified for the Secretary, similarly found
one bolt was used in numerous connections. The regulatory standard requires the use of two
bolts or the equivalent. The standard being specific (requiring two bolts), a prima facie
case of violation was made out by the Secretary, unless the equivalent was shown. Frank
Williams, the Respondent's President, testified that high tension bolts were used, those
allegedly being the equivalent of two regular bolts; however he further admitted that
where there were shear connections using one high tension bolt is not the equivalent of
two common bolts.[[5]] Williams further testified that in the northeast stair tower
"some connections were shear connections; some of the connections were bearing
connections" (Tr. 872). The testimony further demonstrated that the one bolt
connections were hazardous in that the stability of the structure was compromised and
could have been a contributing cause of the collapse. Accordingly, the violation of 29
C.F.R. § 1926.751(a) is affirmed.[[6]]
Willful Citation No. 2, item 3 - 29 C.F.R. § 1926.751(c)(1)[[7]]
The Secretary alleges that Respondent violated this section in that the bar joist at Column A.9 was not bolted at the column to provide lateral stability. The evidence shows that Column A.9 was supported in only one direction (from the east). Trusses 5 through 9 were placed on the beam and stacks of steel decking weighing approximately 3000 pounds each were placed thereon prior to the stabilizing of column number 9 so as to secure it in two directions. The lateral instability of the unsupported column plus the weight imposed thereon was a contributing factor in Its collapse.
The testimony of Wiseman, Burkart and Jasper confirms these findings. Actually, the Respondent did not deny the presence of lateral instability arising from the failure to support Column A.9. Instead, Williams' president testified that because the crane used would not have been able to reach the area being constructed, it was necessary to place the trusses and steel decking before bolting the joist to Column 9. His theory of impossibility to carry out the steel construction in another fashion so as to provide the necessary lateral stability was not proven, and furthermore Williams admitted that "we could have built temporary supports all the way around the A-9 column" to brace it up but did not do so citing its expense. He further stated, "if it (meaning column A.9) had not been laterally supported in two directions I would doubt if it would have moved out." Based on the evidence,of record, the violation is affirmed.
Willful Citation No. 2 - item 4 - 29 C.F.R. § 1926.751(c)(2)[[8]]
The Secretary alleges the Respondent violated 29
C.F.R. § 1926.751(c)(2) in that a center row of bridging was not provided between a
member of the trusses as required. The trusses were over 120 feet long. The evidence
establishes that there was no bridging between truss number 1 and the beam at the east end
of the building (Tr. 594; photograph B of Gov't. Exh. 3). Furthermore, there was no
bridging between truss number 4 and 5 as established by the testimony of Wiseman, Burkart
and Jasper. These three individuals saw the fallen steel and the decking thereon and saw
no bridging. Additionally, the photographs available starkly reveal no bridging present at
number 4 truss which remained upright (Tr. 140, 594-6, 654-5, photograph B of Gov't.
Exhibit No. 3). Respondent admits to no bridging between truss number 1 and the east end
of the building. His allegation of bridging between truss 4 and 5 was unproven and flies
in the face of the evidence which shows otherwise. Accordingly, the violation of 29 C.F.R.
§ 1926.751(c)(2) is affirmed.
Willful Citation No. 2 - item 5 - 29 C.F.R. § 1926.751(c)(3)[[9]]
The violation alleged is that a load of steel decking
was placed on the trusses before security requirements were met. As previously noted,
bundles of metal decking were placed upon the trusses without proper bolting of the steel
structure (absence of two bolts), without assurance of lateral stability of Column A.9,
and without adequate bridging of trusses over 120 feet in length. These violations were
known to both of the Respondent's supervisors and to management itself. Both Nichols and
Ward knew or were told of the lack of proper bolting, the bowing of the trusses due to
excess weight of the decking thereon. These actions all contributed to the general
instability of the steel structure and were violations of the security requirements. The
placement of the steel decking on the trusses without meeting such security requirements
was a violation of section 1926.751(c)(3), and said violation is affirmed.
Alleged Willful Violations under Citation No. 2
The Respondent violated the following sections as found above: 29 C.F.R. § 1926.750(b)(2)(i), 29 C.F.R. § 1926.751(a), 29 C.F.R. § 1926.751(c)(1(), (2) and (3). The final question is whether the violations were willful as alleged by the Secretary. To establish that a violation was willful, the Secretary must show that it was committed with either an intentional disregard for the requirements of the Act or plain indifference to employee safety. See Simplex Time Recorder Co., 85 OSAHRC / , 12 BNA OSHC 1591, 1595, 1985 CCH OSHD ¶ 27,456, p 35,571 (No. 82-12, 1985), citing D.A.&L Caruso Inc., 84 OSAHRC / , 11 BNA OSHC 2138, 2142, 1984 CCH OSHD ¶ 26,985, p 34,694 (No. 79-5676, 1984).
The record supports a conclusion that Respondent showed an intentional disregard and/or plain indifference to its duties and responsibilities under the Act. There is evidence that the Respondent was issued previous citations for the same or similar violations of the Act. Testimony by the president of the Respondent demonstrated that he was aware of the OSHA steel structural standards. He acknowledged his company is the largest in the field and has numerous projects ongoing and is aware of the safety requirements. Despite the previous citations, the violations herein followed. Moreover, both the Respondent's supervisor and superintendent were aware of the dangerous conditions existing, i.e. improper bolting, improper placing of metal decking on trusses, etc. The Respondent is charged with knowledge of such unsafe conditions and hazards present which his supervisory personnel knew existed and tolerated, and coming within the scope of their supervisory responsibility.
There was testimony by employees of working at heights over 40 feet without fall protection. This was known to the Respondent's supervisors and allowed to continue. These visibly dangerous conditions were known to management and allowed to exist. The Respondent's president admitted the lateral stability of a column could have been strengthened, but apparently the alleged cost would not allow it; thusly, indifference to safety was tolerated. While the company had a safety program it appears only supervisory help were included; employees testified they did not participate in such programs and were not instructed as to safety measures on the steel.
The evidence as a whole demonstrates a plain indifference and conscious disregard on the part of the Respondent to the safety requirements of the Act, and Respondent "thereby acted willfully".
The Secretary proposed a penalty of $45,000 for the
willful violations under Citation No. 2. Under Section 17(j) of the Act, the Commission
must give "due consideration" to various factors in determining an appropriate
penalty such as the gravity of the violation, size of the business involved, good faith of
the employer, and history of previous violations. The gravity of the violations was
severe. One employee died and one was severely injured. The Respondent has been cited
previously for a similar violation, is fully familiar with the OSHA regulations concerning
steel construction yet allows these violations to persist. Its safety program while
existent is not monitored to provide daily assistance to employees, and its supervisors
are lax in enforcing OSHA standards, all with knowledge of top management. The penalty of
$45,000 is deemed appropriate under all the existing facts and circumstances herein.
Findings of Fact
The findings of fact contained in this opinion are
incorporated herein in accordance with Rule 52 of the Federal Rules of Civil
Procedure.[[10]]
Conclusions of Law
1. Respondent at all times material to this proceeding was engaged in a business within the meaning of Section 3(5) of the Act.
2. Respondent at all times material to this proceeding was subject to the requirements of the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and of the subject matter.
3. Respondent committed serious violations as follows:
Citation No. 1
Item 1(b) - 29 C.F.R. § 1926.21(b)(2)
4. Respondent committed willful violations as follows:
Citation No. 2
Item 1 - 29 C.F.R. § 1926.750(b)(2)(i)
Item 2 - 29 C.F.R. § 1926.751(a)
Item 3 - 29 C.F.R. § 1926.751(c)(1)
Item 4 - 29 C.F.R. § 1926.751(c)(2)
Item 5 - 29 C.F.R. § 1926.751(c)(3)
5. Respondent committed other than serious violations as follows:
Citation No. 1
Items 2(b) & 2(c) - 29 C.F.R. § 1926.550(b)(2)
6. Respondent did not violate the following:
Citation No. 1
Item 1(a) - 29 C.F.R. § 1926.20(b)(1)
7. The Secretary withdrew item no. 2(a) of Citation No. 1 alleging violation of 29 C.F.R. § 1926.550(a)(6).
8. Consistent with Section 17(j) of the Act, the following penalties are reasonable and appropriate:
Serious Citation No. 1
Item 1(b) - $450.00
Items 2(b) & 2(c) - no penalty (violation reduced to other than serious)
Willful Citation No. 2
Item 1 - $9000
Item 2 - $9000
Item 3 - $9000
Item 4 - $9000
Item 5 - $9000
ORDER
1. The allegation of serious violation by the Respondent of the standard set forth at 29 C.F.R. § 1926.21(b)(2) is AFFIRMED and a penalty of $450.00 is ASSESSED therefor.
2. The allegation of willful violations of the standards set forth at 29 C.F.R. § 1926.750(b)(2)(i), 29 C.F.R. § 1926.751(a), 29 C.F.R. § 1926.751(c)(1), 29 C.F.R. § 1926.751(c)(2) and 29 C.F.R. § 1926.751(c)(3) is AFFIRMED and a penalty of $45,000.00 is ASSESSED therefor.
3. An other than serious violation of 29 C.F.R. § 1926.550(b)(2) is AFFIRMED with no penalty ASSESSED.
4. A total aggregate penalty of $45,450.00 is ASSESSED herein.
IRVING SOMMER
Judge, OSHRC
Dated: July 2, 1986
Washington, D.C.
FOOTNOTES:
[[1]] The rule provides:
Harmless Error. No error in either, the admission or the exclusion of evidence and
no error or defect in any ruling or order or in anything done or omitted by the court or
by any of the parties is ground for granting a new trial or for setting aside a verdict or
for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to
take such action appears to the court inconsistent with substantial justice. The court at
every stage of the proceeding must disregard any error or defect in the proceeding which
does not affect the substantial rights of the parties.
See also Federal Rule of Evidence 103(a), which applies in this case under both
previous Commission Rule 72, 29 C.F.R. § 2200.72 (1984), and new Commission Rule 71, 51
Fed. Reg. 32002, 32026 (Sept. 8, 1986), to be codified at 29 C.F.R. § 2200.71. Fed. R.
Evid. 103(a) provides in part:
Error may not be predicated upon a ruling which admits or excludes evidence unless a
substantial right of the party is affected, . . . .
The question whether substantial rights have been harmed has been stated as follows:
It comes down on its face to a very plain admonition: 'Do not be technical, where
technicality does not really hurt the party whose rights in the trial and in its outcome
the technicality affects.'
Kotteakos v. United States, 328 U.S. 750, 760, 66 S.Ct. 1239, 1246 (1946).
[[2]] Williams relies on the test of prejudicial
error stated in Gaither v. United States, 413 F.2d 1061, 1079 (D.C. Cir. 1969).
However, that case concerned misstatements of the evidence by a prosecutor to a jury in a
criminal trial. When, as in Gaither, a reviewing court determines whether a trial
judge's error in a case tried to a jury was prejudicial, it must consider the potential
for the error to have affected the jury's verdict. In our proceedings, however, we are the
ultimate finder of fact, and we need therefore consider only whether the judge's error
would affect our own decision in determining whether that error is prejudicial. In a case
like this, where the judge erroneously excluded certain evidence, we can determine whether
that evidence, if admitted, would alter our findings of fact. That is a much different
inquiry from determining whether the evidence could have altered the findings made by
another body such as a jury. Accordingly, Gaither is inapposite.
[[3]] Little Beaver Creek Ranches, Inc., 82
OSAHRC 36/A2, 10 BNA OSHC 1806, 1810, 1982 CCH OSHD ¶ 26,125, p. 32,878 (No. 77-2096,
1982).
[[4]] The record contains numerous designations for
this column, including column 9, column A9, column A.9, column A1-9, column 9A, and column
G-9. We will simply refer to it as column 9N.
[[5]] Williams does not dispute this, but maintains
that Judge Sommer thought the trusses also were solid web members. The beams and columns
were solid web members within the meaning of the standard because their top and bottom
flanges were connected with a solid web of steel. By contrast, the trusses were not solid
web members; their top and bottom flanges were connected with an open framework of angle
irons. We find no basis in the judge's decision to conclude that Judge Sommer was confused
on this point; in particular, the page of his decision cited by Williams contains nothing
to support Williams' argument.
[[6]] At the hearing, Williams suggested that its one
bolt was the equivalent of two bolts for another reason: that it met the standard's
supposed purpose of preventing the beam from rolling if it was walked on. We are, however,
not convinced that that was the standard's only purpose. As we shall discuss below with
respect to item 5, this standard imposes what section 1926.751(c)(3) terms a
"security requirement," that is, a requirement that structural steel members are
secure before loads are placed on them. Moreover, testimony introduced by Williams was
that to prevent rolling, beams had to be bolted at their top holes. The beams Williams
installed, however, were sometimes not bolted at their top holes, as photographs in
evidence show.
[[7]] There was a total of nine trusses to the east
of columns 9N and 9S. Apparently, however, the Secretary's concern was with the five
trusses to the immediate east of those two columns. The other four trusses were farther
east in a separate bay--that is, a rectangular section of the structure with a column at
each corner. All columns in that easternmost bay (10N, 10S, 11N and 11S) had been framed
in two directions, and they did not collapse. However, the five trusses in the bay bounded
by columns 9N, 9S, 10N and 10S had been set without first field-bolting a bar joist
between columns, 9N and 9S so that those columns would be framed in two directions. The
Secretary's expert in structural steel, Matthew Burkart, testified that this constituted
the violation:
[T]he the violation exist[s] because [Williams] had previously erected four joists that
sit on that beam [connecting columns 9N and 10N] and put decking on top of them before
they secured that last column [9N] from moving.
[[8]] The state of the bridging that had existed
between the trusses that fell is not completely clear from the record.
[[9]] The basis for Woods' view is that the downward
force exerted by the weight of the steel decking would tend to prevent perimeter columns
from tilting away from the structure and that the load-bearing capacity of the trusses far
exceeded the weight imposed. In Woods' opinion, the weight of the decking made the
collapse more difficult because it increased the resistance to Nichols' attempt to move
column 9N laterally at the time it collapsed.
Though it plays no part in our finding, we are puzzled at this proffer. It appears to
contradict the testimony of Williams' president that the load on a column is related to
the deviation of the column from the vertical times the weight on the column; his
testimony suggests that once a column starts to lean, the weight on it accentuates the
leaning even more.
[[10]] The Secretary introduced in evidence five
previous citations to Williams (three from the Secretary, two from the State of Maryland)
for noncompliance with the steel erection standard at § 1926.750(b)(2)(i). One of those
citations was affirmed and a willful violation found by the Commission and the D.C.
Circuit. Williams Enterprises, Inc., 83 OSAHRC 26/A2, 11 BNA OSHC 1410, 1420,
1983-84 CCH OSHD ¶ 26,542, p. 33,880 (No. 79-843, 1983), aff'd, 744 F.2d 170 (D.C.
Cir. 1984). Another of those citations was affirmed and a serious violation found by the
Commission. Williams Enterprises, Inc., 78 OSAHRC 80/D12, 6 BNA OSHC 1696, 1978 CCH
OSHD ¶ 23,064 (No. 76-1801, 1978). Judge Sommer found, with respect to item 1 of citation
2, that Williams had willfully violated § 1926.750(b)(2)(i), the same Standard cited in
the previous citations.
[[11]] Although Ward denied knowing that the bridging
was incomplete, he had every opportunity to see it on September 21 when he observed the
decking directly above unbridged trusses and observed the bridging within a boxed pair of
trusses being erected. His testimony indicates that the first four trusses already had
been erected, completing the easternmost bay.
[[12]] Williams asserts that the judge erred in failing to respond to its motion to him for a new trial, filed the afternoon before his decision was docketed with the Commission (he had sent copies of his proposed decision to the parties about 20 days previously, as is the Commission's practice). Williams does not explain how the judge erred in this regard and we will not attempt to determine whether he erred, because any error again was harmless. Fed. R. Civ. P. 61 provides specifically that no error "is ground for granting a new trial or for setting aside a verdict . . . unless refusal to take such action appears to the court inconsistent with substantial justice." We have exercised our authority to determine the facts and the merits of all the disputed issues de novo. Williams' substantial rights cannot be harmed by our procedure.
The Secretary argues that the Commission erred in its
preliminary decision in (1) finding that Williams complied with the judge's pretrial and
discovery orders and (2) permitting Williams to proffer the excluded evidence on review.
We need not address these issues because the proffer of the excluded testimony has not
affected our dispositions.
[[1]] The American Heritage Dictionary of the
English Language, 1976 Edition, p. 676.
[[2]] The American Heritage Dictionary, p.
787.
[[3]] 29 C.F.R. § 1926.750(b)(2)(i) provides in
part:
(2)(i) Where skeleton steel erection is being done, a tightly planked and substantial
floor shall be maintained within two stories or 30 feet, whichever is less, below and
directly under that portion of each tier of beams on which any work is being performed . .
.
[[4]] 29 C.F.R. § 1926.751 provides:
Structural steel assembly.
a) During final placing of solid web structural members, the load shall not be
released from the hoisting line until the members are secured with not less than two
bolts, or the equivalent at each connection and drawn up wrench tight.
[[5]] By Mr. Amchan at page 873 of transcript:
Q. Mr. Williams, I believe on direct examination, you testified that one
high-tensile-strength bolt was the equivalent of two regular bolts. Using these values
that you just read from the AISC manual, can you say that using the shear calculations?
A. I was reading from the bearing calculation. I believe, when I quoted it earlier in my
direct testimony. I think in the shear calculations, you do have a reduction factor there
for those bolts there were in shear. That's what the Code says, and that's what it is.
Q. So that when you have a shear connection, using these calculations, using one-tensile
strength bolt would not be the equivalent of two common bolts?
A. Not quite. It is 15,000 versus 10,000; it is one and a half.
Q. So it is basically one and half.
A. Yes.
[[6]] Respondent's brief at page 16 suggests that
this section does not apply if the structure here is "tiered". This argument is
unpersuasive. The standard at section 1926.751 affords no basis for such interpretation.
Absent any language restricting its applicability, it would apply to tiered and non-tiered
structures.
[[7]] 29 C.F.R. § 1926.751 Structural steel
assembly.
* *
*
(c)(1) In steel framing, where bar joists are utilized, and columns are not framed in
at least two directions with structural steel members, a bar joist shall be field-bolted
at columns to provide lateral stability during construction.
[[8]] 29 C.F.R. § 1926.751 Structural steel
assembly.
* *
*
(c)(2) Where longspan joists or trusses, 40 feet or longer, are used, a center row of
bolted bridging shall be installed to provide lateral stability during construction prior
to slacking of hoisting line.
[[9]] 29 C.F.R. § 751 Structural steel assembly.
* *
*
(c)(3) No load shall be placed on open web steel joists until these security
requirements are met.
[[10]] Rule 52. Findings by the Court.
(a) Effect. In all actions tried upon the facts without a jury ***, the Court shall
find the facts specially and state separately its conclusions of law thereon. ***. If an
opinion or memorandum of decision is filed, it will be sufficient if the findings of
fact and conclusions of law appear thereon. (Emphasis supplied)