Docket No. 1453

JOHN F. BEASLEY CONSTRUCTION COMPANY

OSHRC Docket No. 1453

Occupational Safety and Health Review Commission

July 10, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINION:

BY THE COMMISSION: This matter is before this Commission for review of a January 29, 1973, decision of Judge Vernon Riehl pursuant to 29 U.S.C. § 661(i). At issue is whether the citation was issued with reasonable promptness as required by 29 U.S.C. § 658(a). We hold that the respondent waived consideration thereof at this level because that defense was not raised in the proceedings below. Chicago Bridge and Iron Company, We therefore affirm the Judge's decision.

Chairman Moran would reverse for the reasons set forth in his dissenting opinions in Secretary v. Plastering, Incorporated, Secretary v. Advanced Air Conditioning, Inc.,

[The Judge's decision referred to herein follows]

RIEHL, JUDGE, OSAHRC: This case is properly before the Judge upon assignment for hearing by the Occupational Safety and Health Review Commission.

The Complainant and Respondent have agreed to a stipulation of expected testimony and both have submitted briefs in support of their position. Complainant [*2] has submitted Proposed Findings of Fact, Conclusions of Law and Order.

The case has been submitted to us, therefore, on the pleadings, other papers in the file, together with the Stipulation and testimony for us to pass on without conducting a hearing and hearing live testimony.

Citations for serious and non-serious violations with Proposed Penalties were issued Respondent by letter dated September 6, 1972. An Answer was timely filed by Respondent and the case is at issue.

STIPULATION OF EXPECTED TESTIMONY

The parties have stipulated that the Department of Labor's Compliance Officer conducted an accident investigation on July 26, 1972, and an inspection of Respondent's worksite located on the Iowa side of the bridge under construction connecting Interstate Highway 280 from Iowa to Illinois over the Mississippi River.

With respect to Item 1 of the Citation 29 CFR 1926.450(b)(3) the Compliance Officer learned from Respondent that:

(a) Ironworkers employed by Respondent were required to use a single cleat, job-made ladders approximately 50 feet in length in a single run.

(b) The ladders were built by a different employer prior to Respondent entering the jobsite and [*3] were secured to concrete bridge piers;

With respect to Item 2 of the Citation for other than serious violation, 29 CFR 1918.74(a) made applicable to construction activity by 29 CFR 1926.605(a)(1):

(a) A 350 American Hoist (4 drum), serial number 112613, did not have certification as required by the above standards;

(b) He learned from Respondent that approximately four ironworkers, one operator and one oiler employed by Respondent were exposed to the various dangers associated with a malfunction, i.e., falling objects or the hoist overturning in the river.

(c) A Manitowoc 4,000 Vicon Crawler Crane used on a barge had no certified inspection records as required by the above standards;

(d) He learned from Respondent that approximately one operator and two ironworkers employed by Respondent were exposed to the hazards of tipping over in the river or of being hit by falling objects;

(e) No visible defects were noted in either of the pieces of equipment mentioned in this paragraph.

With respect to Citation for serious violation, No. 1 of 2, 29 CFR 1926.105(a) and (b):

(a) [*4] He learned from Respondent that on July 22, 1972, ironworker connectors were working more than 50 feet above land and water with no personal protective equipment; nor were safety nets in use even though they were on the jobsite;

(b) Connectors were observed using spud bars to align structural members and were bouncing on the spud bars;

(d) He learned from Respondent that the bolt-up gang working in the same general area as the connectors, but following them, were equipped with safety belts;

(e) He learned from Respondent that approximately four ironworkers were exposed to the hazard of falling.

With respect to Citation for serious violation, No. 2 of 2, 29 CFR 1926.751(a):

(a) He learned from Respondent that on July 22, 1972, between Piers 10 and 11, a 252-foot spliced solid web girder, 7 feet deep with 18 inch flanges was bolted to the diaphragms at the ends of the girder only and was not bolted at all to the diaphragms between the ends of the girder when the hoisting line was cut loose;

(b) He learned from Respondent that on July 22, 1972, two [*5] ironworkers fell when the girder they were standing on had broken loose from the diaphragms and rolled off of the piers; one ironworker was killed, and one was severely injured from this fall.

The Compliance Officer as part of his investigation and report evaluated the effectiveness of Respondent's safety and health program as having average training, employee participation, and safety responsibility; the protective equipment was average; and the housekeeping and first aid facilities and training were effective. Respondent informed that it employs a fulltime Vice President in charge of safety at its home office in Dallas, Texas, and has sent him to two schools sponsored by the Occupational Safety and Health Administration. A safety plan was proposed for the construction of this bridge, but was not followed in every instance, particularly so when the accident occurred.

All items of all citations were abated within the prescribed time limits fixed by the Citation.

Oscar F. DiSilvestro, Senior Compliance Safety and Health Officer, Occupational Safety and Health Administration, United States Department of Labor, would testify as follows:

The Citations and Notification of Proposed [*6] Penalty issued to Respondent on September 6, 1972, were issued by him in his capacity as Area Director. In computing the proposed penalties for each item of the Citations for serious and non-serious violations he used the administrative procedures as set out in the Penalty Assessment Worksheets -- other violations attached as Exhibit 3.

Following the Department's method of rating he made his computations. However, he made an error in calculating the penalties for both the non-serious violations and they should be reduced as follows:

Item 1, 29 CFR 1926.450(b)(3), unadjusted penalty $230, adjusted penalty $150, less 50 percent abatement credit $75.

Item 2, 29 CFR 1926.605(a), unadjusted penalty $260, adjusted penalty $170, less 50 percent abatement credit $85.

The total Proposed Penalties, therefore, for the nonserious violations should be $160 instead of $345.

In computing the proposed penalty for each citation for serious violation he used the administrative procedures as set out in the Penalty Assessment Worksheet -- Serious Violations attached hereto as Exhibit 4 of the file.

(a) Based upon the Compliance Officer's oral and written report and upon his background [*7] and qualifications in the field of occupational safety and health, he assessed the two violations as serious due to the likelihood of injury as a result thereof and the severity of injuries likely to be sustained and assigned each an unadjusted penalty of $1,000.

(b) Percentage reductions based upon the good faith, size and history of Respondent were applied to reduce each unadjusted penalty to the proposed penalty.

(c) The percentage reductions for good faith, size and history were the same for the serious violations as they were for the non-serious violations.

DISCUSSION

We note Respondent's argument that penalties should not be imposed because the employees proceeded to work without instructions, and, in so doing took it upon themselves to deviate from the normal safety procedures in the industry and do the job by connecting just a part of the diaphragm between the adjacent girders before releasing the load. This careless conduct of the eemployees, of course, as the record shows, caused the death of one man and another man to be seriously injured.

We do not feel that the Respondent's line of reasoning in the instant case constitutes a good defense.

Section 17(k) [*8] of the Act states:

A serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm [both did] could result [it could and it did] from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence know of the presence of the violation. (Emphasis ours)

In deciding whether a violation is serious, the Compliance Officer must decide:

(a) Is there a substantial probability that death or serious physical harm will result? (Here we had one death and one serious injury with the probability of more deaths and serious injury if the practice continued unabated.)

(b) And, if so, did the employer know, or with the exercise of reasonable diligence should have known of the hazard. (Emphasis ours)

In the instant case the employer had full knowledge that a hazard existed if the employees deviated on their own without managerial supervision, and went ahead with the work without connecting up the [*9] diaphragm.

Management has a duty to have responsible and knowledgeable supervision available during the employee's working hours on heavy ironwork such as in this case. Management knows the full extent of the dangers to employees' safety when such assembly items as 250-foot girders are being put in place. Management knows that the average ironworker might be ignorant of the consequences to himself or fellow workers when he takes shortcuts in assembly that deviate from proper safety procedures.

IRON AND STEEL BRIDGE BUILDING

Management in such industries involved in the heavy construction of steel know of all the proper safety procedures. Such heavy steel hook-ups are dangerous each time made, even when the best of safety procedures are followed under the best of management supervision.

Management knows or should know that each time a tremendous tonnage of girder or other steel part is hooked up, that, the total situation of hooking up is fraught with grave peril to employees if any error occurs during the connective process.

Management owes a duty to employees to arrange to have knowledgeable supervision on hand for each such heavy tonnage hook-up.

The hook-up of a 250-foot [*10] or so girder equipment is always dangerous to employees if not properly done.

Those employees who are ignorant of the dangers they face in such improper hook-ups are entitled to have management supervision by knowledgeable, skilled, professional people to direct the operation until the hook-up is completed.

There is no excuse given in the stipulated facts as to why supervision was not present and properly funtioning. From the facts given we can only conclude that Respondent on the occasion in question failed to have someone on hand that day to supervise the erection.

We do not know whether the job superintendent, the safety director, or other supervisor were all ill or off on vacation during this period.

We do not know whether the responsible and knowledgeable supervision was engaged in other activities instead of being on the job at the time of the accident, or whatever the situation was. At any rate, without supervision on hand, it would be better to shut down the job entirely and save one life and one serious injury, rather than to let the uninformed (in proper safety precautions) or reckless ironworkers go ahead on their own to ultimate tragic disaster. The absence [*11] of supervision here was directly caused by the lack of reasonable (under this circumstances) diligence on the part of Respondent. The Respondent was not reasonably prudent under the total circumstances of record, he was not properly safety conscious; he did not bring forth to the job (the day of the accident) the necessary technical expertise which would be normally expected of an employer engaging in such steel erection industry. A reasonable check on the progress of the heavy assembly work was not made by Respondent under the circumstances prevailing on the date of the death and injury of Respondent's employees.

There is a staggering difference between the death and maiming hazards arising out of the erection of temendous tonnages of steel, and, the hazards arising out of, say, the assembly line procedures in a woman's velvet hat factory. The normal continuing diligence and care from supervisory personnel, insofar as employee safety is concerned, would be much greater in heavy steel erection industry than in velvet had assembly line. A mishap through lack of proper supervision on the hat assembly line could perhaps cause pieces of velvet to clash together on the [*12] production belt with little danger to the involved employees. The lack of proper supervision and necessary checking (constantly needed in heavy steel assembly) could unloose tons of crushing, killing and maiming steel, tearing into human flesh with consequent tragic results to hapless employees caught in the web of such cruel circumstance.

From our examination of the penalties proposed by the Department of Labor, we feel that they are proper with the exception of the error made in calculating the penalties for both the non-serious violations. We feel they should be reduced to $75 and $85 as set forth in the stipulation. Our own appraisal of the total situation and of the propriety of the penalties imposed coincides with that of the Department of Labor with exception of the above noted corrections.

With respect to the violations cited serious, the important factors to consider are that no protection of any kind was provided to the ironworker connectors and that there was a substantial probability that men working 50 feet above ground or water on nothing more than an 18-inch flange of a girder would fall. We would agree with the Department's contention that it is immaterial that [*13] the particular way in which a fall occurred was not predictable, since some kind of fall was likely to occur, and the result of a 50-foot fall was, in the instant case, death to one employee while another employee sustained serious injury.

In National Realty and Construction Co., Inc., follow the unwritten safety rules of employer, i.e., the employer permitted or failed to prevent an employee from violating a safety rule. In exactly the same way Respondent failed to insure that its procedure for placement of girders would be followed. The Act requires more than safety committees and guidelines: it requires supervision. Here we did not have the proper supervision. Therefore, the violations cited as serious were indeed conditions and practices which the employer knew, or with the exercise of reasonable diligence, could have known existed, and, the probability that death or serious physical harm would result therefrom was substantial.

In regard to the certification violations in Item 2 of the Citation for non-serious violations they are also deserving of the Proposed Penalty [*14] set forth in paragraph 10 of the Stipulation. We note that Respondent infers in its brief that there were deficiencies as far as certification requirements are concerned in the two pieces of equipment referred to but they were not "significant." We agree with the Complainant's brief that this is an after the fact opinion designed to show a lack of gravity to be attributed to these violations. The gravity of these violations are based on the fact that at the time of the inspection the certification requirements on the standards had not been met and it was not known whether deficiencies existed or not. Therefore, the penalty as proposed does effectuate the purpose of the Act because the prospect of a penalty will encourage the employer to see that equipment is properly certified, thus insuring safe operations and avoiding possible accidents which might occur as a result of defects going undetected.

FINDINGS OF FACT

1. Respondent is a Texas corporation authorized to do business in Iowa with its home office located in Dallas, Texas, where it is engaged in the business of construction, including structural steel erection of bridges, and, is engaged in a business affecting [*15] commerce (Answer).

2. Respondent was employing approximately 30 employees on July 26, 1972, in the erection of a structural steel bridge girder at a worksite on the Iowa side of the Interstate Highway 280 bridge over the Mississippi bridge (Answer).

3. As a result of an accident investigation and inspection of Respondent's aforementioned worksite by an authorized representative of the Secretary on July 26, 1972, Respondent was issued two Citations for serious violations, one Citation for other than serious violations, and a Notification of Proposed Penalty on September 6, 1972.

4. The inspection of Respondent's worksite was precipitated by Respondent's report of a death of one of its employees at the worksite.

Notification of Proposed Penalty for Item 1, Citation for Other Than Serious Violation. On July 26, 1972, at Respondent's worksite, ironworkers employed by Respondent were required to use single cleat, jobmade ladders approximately 50 feet in length in a single run (Stipulation-2).

Notification of Proposed Penalty for Item 2, Citation for Other Than Serious Violation. On July 26, 1972, at Respondent's worksite, a floating derrick, and a manitowoc crane leased and used [*16] by Respondent did not have the limitations of safe operations properly posted (Stipulation-2,3).

In assessing the penalties for Items 1 and 2 of Citation for other than serious violations considered, there was an error made in assessing both non-serious violations. The proper penalty based on the evidence of record should be:

Item 1, 29 CFR 1926.450(b)(3) $75 penalty.

Item 2, 29 CFR 1926.605(a) $85 penalty.

The total Proposed Penalty for the non-serious violations should be $160 instead of the $345 as proposed originally by the Secretary.

Notification of Proposed Penalty for Citation for Serious Violations, 1 of 2.

(a) On July 22, 1972, at Respondent's worksite, ironworker connectors were working more than 50 feet above land and water at times standing and bouncing on spud bars to align the girders with the diaphragms, yet the ironworkers had no personal protective equipment or safety belts even though safety nets were at the worksite.

(b) Ironworkers performing different tasks in the same general area were equipped with safety belts (Stipulation-3). This situation created a substantial probability that the employees working 50 feet above ground would fall under [*17] the total circumstances prevailing at the time.

Notification of Proposed Penalty for Citation for Serious Violation, 2 of 2.

(a) On July 22, 1972, at Respondent's worksite, between piers 10 and 11, a 252-foot spliced solid-web girder, 7 feet deep with 18-inch flanges was bolted to diaphragms at the ends of the girder only and was not bolted at all to the diaphragms between the ends of the girder when the hoisting line was cut loose. One ironworker was killed and one already injured in this operation. In assessing the penalty for Citations for serious violations 1 and 2, due and proper consideration was given to the danger to Respondent's employees, the likelihood of injury to Respondent's employees, and extent of the alleged violations, as well as the size of Respondent's business, the good faith of the Respondent, with respect to safety, and Respondent's history of previous safety violations (Stipulation-4, 5, 6, 7, 8; Exhibit 4).

CONCLUSIONS OF LAW

We have carefully considered the stipulation of facts, briefs of both parties, proposed findings of fact and conclusions of law by Complainant, the pleadings in the file and the total evidence of record and make the following [*18] conclusions of law.

1. At all times mentioned herein Respondent was and is an employer within the meaning of Section 3 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq. ), and the Occupational Safety and Health Review Commission has jurisdiction of the parties and subject matter.

2. Respondent has violated Section 5(a)(2) of the occupational Safety and Health Act by violating the Occupational Safety and Health Standard (29 CFR Part 1926) as alleged in Citation for other than serious violations, Items 1 and 2.

3. Respondent has violated Section 5(a)(2) of the Occupational Safety and Health Act by violating the Occupational Safety and Health Standard (29 CFR Part 1926; as alleged in Citation for other than serious 1 and 2.

4. There was a substantial probability that death or serious physical harm could have resulted from the conditions cited in Citations for serious violations 1 and 2, since both death and serious physical harm did result from those violations, and Respondent knew or could have known of the presence of said violations by the exercise of reasonable diligence.

5. The violations alleged in Citations for serious violations 1 and [*19] 2 constituted serious violations within the meaning of Section 17(k) of the Occupational Safety and Health Act.

6. The proper penalties for the violation of Item 1 of the non-serious violation is $75.

The proper penalty for the non-serious violation, Item 2, should be $85. The total Proposed Penalty for the non-serious violations, therefore, should be $160 instead of $345, as originally proposed.

7. The penalties proposed for the serious violations were appropriate with respect to the gravity of the violations, the size of the Respondent's business, the good faith of Respondent, and Respondent's history of previous violations.

DECISION

Based on the above Findings of Fact and Conclusions of Law, it is hereby ordered that:

1. Items 1 and 2 of the Citation for other than serious violations and Citations for serious violations 1 and 2, be affirmed.

2. The Proposed Penalties for the serious violations 1 and 2 are affirmed.

3. The Penalty for non-serious violation Item 1 is $75.

4. The Penalty for non-serious violation Item 2 is $85.