ABDO S. ALLEN COMPANY

OSHRC Docket No. 1741

Occupational Safety and Health Review Commission

December 27, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge James A. Cronin, Jr., dated June 28, 1973 is before this Commission for review pursuant to 29 U.S.C. 661(i).

Having examined the record in its entirety, the Commission finds no prejudicial error therein. Accordingly, the Judge's decision is hereby affirmed in all respects.

CONCURBY: VAN NAMEE; CLEARY

CONCUR:

VAN NAMEE, COMMISSIONER, concurring: I concur in Chairman Moran's disposition. Complainant's citation for serious violation in part alleged failure to comply with 29 C.F.R. 1926.856(a) n1 in that Respondent's employee operated a front-end loader on the roof of a tunnel which was of inadequate strength to support the loader. Judge Cronin vacated, finding the evidence insufficient to establish that the tunnel roof was in fact of inadequate strength and also concluding that the knowledge requirements for a serious violation n2 were not satisfied because Respondent could not have anticipated that the employee would operate the loader on the tunnel roof.

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n1 This standard requires that "[m]echanical equipment shall not be used on floors or working surfaces unless such floors or surfaces are of sufficient strength to support the imposed load."

n2 29 U.S.C. 666(j) provides, in pertinent part, that a serious violation does not exist if "the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation."

[*2]

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I do not agree with the judge's finding regarding the strength of the tunnel roof. Respondent, an experienced demolition contractor, and his foreman both considered the roof inadequate to support the weight of the front-end loader. I therefore would find that the terms of the standard were violated.

However, I do agree with the judge that Respondent could not have known of this violation. The loader operator's job was to fill the basement of a building being demolished. The tunnel itself was located over 100 feet from the area containing the fill material (asphalt and concrete). In the morning before the operator came to the worksite Respondent instructed him where to obtain the fill and warned him to stay off the tunnel. At this time the employee indicated that he knew about the tunnel. He was also told of its location twice by Respondent's foreman, once when he arrived at the worksite and once during the lunch break. In the afternoon Respondent specifically showed him the location of the tunnel, advised the employee that it was not necessary to obtain fill from the tunnel, and again [*3] warned him to keep off the tunnel. Subsequently Respondent's subcontractor also directed the loader operator away from the tunnel.

These facts are similar to those in Butler Lime & Cement Co., OSHRC Docket No 855, BNA 2 O.S.H.C. 1209, CCH E.S.H.G. para. 18,704 (Rev. Com'n., Sept. 25, 1974). On the record here, as there, it does not appear that Respondent had actual or constructive knowledge of the violation or could have known with the exercise of reasonable diligence.

I have indicated that in circumstances where an employer has failed to comply with the requirements of a standard but did not and could not reasonably know of the violation, such violation is non-serious and moreover technical in nature. CAM Industries, Inc., Mountain States Telephone & Telegraph Co., However, no useful purpose will be served by dissenting in this case. Accordingly, I concur in the disposition. [*4]

CLEARY, COMMISSIONER, concurring. In this case, the Secretary issued one citation for serious violation together with one citation for non-serious violation. The Judge vacated both citations. On July 17, 1973, Commissioner Van Namee directed review.

I concur in affirming the Judge's disposition. I agree with the reasons he has given except those pertaining to the alleged failure to comply with the standard published at 29 CFR 1921.856(a). n3 I disagree with the Judge's finding that the Secretary failed to prove that the tunnel roof was of insufficient strength to support the front-end loader because tests were not made to determine its strength. I also disagree with the Judge's conjecture that the front-end loader might have fallen through the roof where the operator "had cut the top of the tunnel off." It is unclear from the record what is meant by this quoted language. Although neither the compliance officer nor the respondent were witness at the scene immediately before the accident, they both testified the operator had only removed the earth covering the tunnel. The compliance officer, respondent, and respondent's foreman all testified that they had examined [*5] the tunnel roof and believed that the tunnel roof was of insufficient strength to support the front-end loader. Moreover, in his findings of fact the Judge found the tunnel constituted a "hazard area." I consider the above sufficient to find that the tunnel roof would not support the weight of the front-end loader.

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n3 Two days before the hearing, the Secretary moved to amend the complaint to propose of $25 penalty for the alleged violation of 29 CFR 1903.2(a). No penalty had been previously proposed for this item. The Secretary argued that if a violation of this standard is found, a penalty assessment is mandatory. (See section 17(i) of the Act). The Judge denied the motion because a penalty had not been proposed before the respondent contested. I believe the Judge should have permitted the amendment. See section 17(i) of the Act; Florida East Coast Properties, Inc., No. 2354, n. 3 (February 5, 1974). Cfr. Chicago Bridge & Iron Co., No. 609 (November 20, 1974); Thorleif Larsen & Son of Indiana, Inc., No. 370 (October 11, 1974); Brennan v. O.S.H.R.C. & Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973).

[*6]

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This case presents a situation where an employee disregards the instructions of his employer. The facts of this case, however, differ distinctively from those in Butler Lime & Cement Co., No. 855 (September 25, 1974). As my dissent in Butler Lime & Cement Co. shows, in that case there was a paucity of instructions given to the employee who met his death at the worksite. Here the case is just the opposite. The employee was told about the tunnel four times, and at one time he was ordered off the front-end loader, shown the tunnel, and told to work elsewhere. I believe that respondent acted with reasonable diligence under the circumstances and could not have known of the violation. Respondent thereby cannot be found in serious violation of the Act. Ira Holiday Logging Co., Inc., No. 237, (April 27, 1973); Brennan v. O.S.H.R.C. & Republic Creosoting Co., No. 73-1304 (7th Cir., August 16, 1974).

The remaining question is whether respondent was in non-serious violation of the Act. A failure to comply with the terms of a standard establishes a violation of section 5(a)(2) of the Act. [*7] There are exceptions to this general rule, one being "idiosyncratic" and "implausible" employee conduct. Cam Industries, Inc., No. 258 (March 4, 1974) (Cleary, Commissioner, concurring and dissenting). The present case comes within the "idiosyncratic" and "implausible" employee conduct exception. The instructions given to the operator were sufficient to insure compliance with the standard and respondent could be expected to do no more.

In an attempt to establish that respondent was not in compliance with the standard the Secretary contends that respondent should have placed signs or barricades along the tunnel to keep equipment away. The Secretary's argument is not persuasive. The evidence shows that three manholes along the tunnel had steel plates and rocks placed on them thereby marking the course of the tunnel, but there were no barricades or signs at the tunnel. There is no evidence of record that placing signs or barricades along the tunnel would have been any more effective than the repeated warnings and instructions given to the operator. The operator's conduct was unexpected and in contravention of the instructions and warnings given to him. Brennan [*8] v. O.S.H.R.C. & Republic Creosoting Co., supra. Under these circumstances, I agree that respondent was not in violation of the Act.

[The Judge's decision referred to herein follows]

CRONIN, JUDGE: This is a proceeding under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereafter called the Act) contesting two Citations and a Notification of Proposed Penalty issued by the Complainant on November 7, 1972 against the Respondent under the authority of Sections 9(a) and 10(a) of the Act.

Two citations were issued as a result of an inspection on November 2, 1972 of a Respondent workplace near Playland at the Beach, San Francisco, California and allege that Respondent committed "serious" violations of 29 CFR 1926.850(a) and 856(a) and non-serious violations of 29 CFR 1903.2(a) and 1904.2(a). The Respondent filed a Notice of Contest to both citations and the proposed penalty of $500.00 for the Citation for Serious Violation.

No penalties were initially proposed for the alleged non-serious violations. However, on April 16, 1973, two days before the hearing, the Secretary moved for leave to amend his complaint and Notification of [*9] Proposed Penalty to propose a penalty of $25.00 for the alleged violation of 29 CFR 1903.2(a). Respondent objected on the grounds that it was not included in initial charge and because of lateness. Decision on the motion was reserved because Secretary's written motion, served by mail, had not been received by the presiding judge (Tr. 4).

The Secretary's motion for leave to amend his complaint and Notification of Proposed Penalty, on the sole ground that Section 17(i) of the Act mandates a penalty whenever posting requirements are violated, is denied because of the Secretary's delay in filing this motion and the possible prejudice to Respondent that would result if the proposed amendment were permitted.

On November 9, 1972, the date Respondent received the Secretary's Notification of Proposed Penalty, Respondent had 15 days within which to decide whether to contest the alleged violation of 1903.2(a); because no penalty was proposed for the alleged violation there obviously was no proposed penalty to contest. On November 14, 1972 the Respondent filed his Notice of Contest to both citation and the single penalty proposed for the alleged serious violation. Although no [*10] reason for Respondent's filing appears of record, he made his decision to contest pursuant to his statutory option to contest either the citation or the proposed penalty, n1 and presumably, under the justifiable impression that whatever the outcome, no penalties would be assessed for items 1 and 2.

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n1 See section 10(a) of the Act

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If Respondent had decided not to contest the alleged violation of 1903.2(a) and 1904.2(a), those items, with no penalty assessments, would have become final orders of the Commission not subject to review by any court or agency, irrespective of section 17(i) of the Act. n2 Therefore, to permit the Secretary to amend his Notification of Proposed Penalty and complaint for the cited reason, on the very eve of the hearing, more than five months after Respondent filed his Notice of Contest, would clearly prejudice and disadvantage Respondent. He would be placed in jeopardy of a penalty assessment, a situation he never contemplated, and also, effectively deprived of his statutory option to [*11] contest either the citation or penalty. Under these circumstances, the amendment sought will not serve justice and, accordingly, must be denied.

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n2 See, Secretary of Labor v. Brent Towing Company, Inc.

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The alleged violations of 1926.850(a) and 856(a), to be abated "Immediately upon receipt of this citation" was described in the Citation for Serious Violation as follows:

Failure to have an engineering survey made by a competent person to determine the condition of structures and adjacent structures where employees may be exposed, and the possibility of unplanned collapse of any portion of such structures prior to allowing employees and mechanical equipment to work on the working surfaces in the area of demolition.

The standards as promulgated by the Secretary provide:

1926.850 Preparatory operations.

(a) Prior to permitting employees to start demolition operations, an engineering survey shall be made, by a competent person, of the structure to determine the condition [*12] of the framing, floors, and walls, and possibility of unplanned collapse of any portion of the structure. Any adjacent structure where employees may be exposed shall be similarly checked. The employer shall have in writing evidence that such a survey has been performed.

1926.856 Removal of walls, floors, and material with equipment.

(a) Mechanical equipment shall not be used on floors or working surfaces unless such floors or surfaces are of sufficient strength to support the imposed load.

The Secretary's complaint alleges violation of 1926.850(a) and 856(a) in the following manner:

On November 2, 1972, at the aforesaid place of employment in San Francisco, California, respondent violated the Safety and Health standards duly promulgated by the Secretary of Labor pursuant to authority vested in him by Section 6 or the Act in the following respects:

1. Failure to have, prior to permitting employees to start demolition operations, a competent person make an engineering survey of the condition of structures, including adjacent structures, where employees may be exposed, to determine the condition of the framing, floors and walls, and possibility of unplanned collapse of any [*13] portion of the structures, contrary to 29 CFR 1926.850(a), and in such circumstances,

2. Permitting the use and operation of mechanical equipment on floors or working surfaces which were not of sufficient strength to support the imposed load, contrary to 29 CFR 1926.856(a). (Citation for Serious Violation No. 1).

The alleged violation of 29 CFR 1903.2(a) was described in the citation as follows:

Failure to post notice informing employer and employees of obligations and protections provided for in the Occupational Safety and Health Act of 1970.

The standard as promulgated by the Secretary provides:

Each employer shall post and keep posted a notice or notices, to be furnished by the Occupational Safety and Health Administration, U.S. Department of Labor, informing employees of the protecttons and obligations provided for in the Act, and that for assistance and information, including copies of the Act and of specific safety and health standards, employees should contact the employer or the nearest office of the Department of Labor. Such notice or notices shall be posted by the employer in each establishment in a conspicuous place or places where notices to employees [*14] are customarily posted. Each employer shall take steps to insure that such notices are not altered, defacted, or covered by other material.

The alleged violation of 29 CFR 1904.2(a) was described in the citation as follows:

Failure to maintain a log of occupational illnesses and injuries for the establishment.

The Standard as promulgated by the Secretary provides:

(a) Each employer shall maintain in each establishment a log of all recordable occupational injuries and illnesses for that establishment, except that under the circumstances described in paragraph (b) of this section an employer may maintain the log of occupational injuries and illnesses at a place other than the establishment. Each employer shall enter each recordable occupational injury and illness on the log as early as practicable but no later than 6 working days after receiving information that a recordable case has occurred. For this purpose, Occupational Safety and Health Administration OSHA Form No. 100 or any private equivalent may be used. OSHA Form No. 100 or its equivalent shall be completed in the detail provided in the form and the instruction contained in OSHA Form No. 100. If an equivalent to OSHA [*15] Form No. 100 is used, such as a printout from data-processing equipment, the information shall be as readable and comprehensible to a person not familiar with the data-processing equipment as the OSHA Form No. 100 itself.

(b) Any employer may maintain the log of occupational injuries and illnesses at a place other than the establishment or by means of data-processing equipment, or both, under the following circumstances:

(1) There is available at the place where the log is maintained sufficient information to complete the log to a date within 6 working days after receiving information that a recordable case has occurred, as required by paragraph (a) of this section.

(2) At each of the employer's establishments, there is available a copy of the log which reflects separately the injury and illness experience of that establishment complete and current to a date within 45-calendar days.

Pursuant to due notice, this case was heard at San Francisco, California on April 18, 1973. Subsequently, both parties filed briefs.

JURISDICTION AND ISSUES

Respondent does not contest Commission jurisdiction of this matter and admits he is an employer which has employees engaged in a [*16] business affecting commerce within the meaning of Section 3(5) of the Act.

The Respondent in his answer denies all allegations of violation and contests the single proposed penalty. Therefore, the issues to be resolved and determined area:

1. Whether Respondent violated the standards as alleged?

2. If Respondent violated the cited standards, is the proposed penalty of $500.00 appropriate?

SUMMARY OF EVIDENCE

In September of 1972 Respondent, a general demolition contractor of 20 years experience and a holder of a State of California, Class A General Engineering License, entered into a contract with Seal Rock Development Company to demolish the buildings within blocks, "1," "2," "3," and "4", all as shown on the July 1972 Aerial Photograph furnished to Respondent by Seal Rock in August 1972 (Tr. 36-38, Respondent's Exhibit 1). By October 10th or 15th, 1972 the Respondent had completed all demolition work within blocks "1" and "2" (Tr. 66).

Prior to beginning demolition in block "1" the Respondent "looked over the job" in order to determine the method of demolition to be employed (Tr. 38-39). He studied the condition of the floors, framings and walls of the buildings [*17] to be demolished and also looked into the possibility of the unplanned collapse of structures (Tr. 39).

A caretaker of the Seal Rock property, at the request of Respondent, pointed out where he thought an underground tunnel was located (Tr. 60). From this information the Respondent and his foreman son, Charles Drayton Allen, discovered the tunnel and its location was marked out on the aerial photograph (Tr. 39, 60, Respondent's Exhibit 1). Although the tunnel was discovered sometime in September 1972 (Tr. 52), the markings of the tunnel location on the photograph were not made prior to commencement of demolition in block "1"; instead, they were made prior to the Respondent's bidding on the concrete work (Tr. 37-38). The Respondent considered that the tunnel was the only hazardous area that might be encountered during demolition (Tr. 58, 60) and therefore, all of Respondent's employees, including Raymond Staff, one of Respondent's front-end loader operators, were shown the tunnel area outlined on the aerial photograph (Tr. 39-40, 42, 43). With the exception of three manholes (marked as A, B and C on Respondent's Exhibit 1) there were no above ground barricades, signs, or other [*18] markings to indicate the tunnel's location (Tr. 74).

Prior to November 1, 1972 Respondent went down into the tunnel at the manhole marked "A" (Tr. 52-53, Respondent's Exhibit 1). At that time he inspected the tunnel's width and depth and, by observation at the manhole locations, determined the thickness of the roof (Tr. 52-53, 63-64). The roof was 5 to 6 inches thick and the tunnel approximately 90 inches wide by 78 inches high (Tr. 9, 54). The tunnel roof was composed of concrete, plus 1/2 inch or 5/8 inch diameter, steel reinforcing rods (Tr. 9, 54). According to the Respondent, the location of the tunnel was visible from above ground by means of the three manholes, marked A, B, and C (Tr. 48).

On November 1, 1972 Respondent commenced work of removing the sale water pumping plant, and filling in the basement of said plant, under a separate contrac with the Olympic Club (Tr. 34-35). This pumping plant, located on Olympic Club property, is the building with the rounded roof enclosed on three sides by the boundary lines of block "1," and on the fourth side by a highway (Tr. 36-37, Respondent's Exhibit 1). During the morning of November 1, 1972, Respondent's leased [*19] crane had removed the building's roof and taken "wood out of the hole," and the walls had been blocked.

The basement area was to be filled with concrete, blacktop and sand taken from the adjacent area within block "1" (marked by "X" within a circle, Respondent's Exhibit 1). The removal of this material was part of the original contract with Seal Rock Development and permission to use this material had been granted by Seal Rock (Tr. 40, 41, 42). This area was within 100 feet of the pumping station (Tr. 81).

Respondent assigned his experienced front-end loader driver, Raymond Staff, to fill in the basement hole at the worksite and earlier in the morning of November 1, 1972, while at the company yard in Oakland, California, he was instructed by Respondent to go to the jobsite and fill in the hole with the asphalt and concrete material taken from area adjacent to the hole (Tr. 40). The driver also was told by the Respondent that a tunnel was there and he responded, "Yes," I heard about it. Ray Freitas told me about the tunnel too, everybody has told me about the tunnel" (Tr. 58).

Driver Staff arrived at the pumping plant worksite at 11 o'clock, at which time Foreman and "Cat Operator" [*20] Charles Drayton Allen, son of Respondent, "explained to him the tunnels and showed him everything about them, and told him what he had to do as far as filling the Olympic Club hole" (Tr. 79). At 11:15 Driver Staff commenced filling in the hole and until the 12:00 o'clock lunchtime, worked in the general area of the hole, filling in the hole with bricks which had fallen from the pump building (Tr. 82-83). At 12:00 o'clock Foreman Allen fueled up Driver Staff's tractor and again discussed the presence of the tunnel with him (Tr. 80). Although Foreman Allen was "back and forth" between blocks "1" and "2" from the end of lunchtime to 3:00 o'clock, he never observed Driver Staff working near the tunnel area (Tr. 80-81), which was over 200 feet distant from the pumping plant (compliance officer estimated distance at 100 yards) (Tr. 81, 40, 24).

At one o'clock, upon returning from lunch, Respondent observed Driver Staff close to the tunnel and "stopped him" (Tr. 42). He told the driver to get off the tractor, showed him the "big hole" dug into the tunnel by Respondent's son and direction of tunnel, and told him, "Now, here is the tunnel and it's fairly thin (he pointed out [*21] thickness of roof), stay away from it" (Tr. 54). Respondent also told the driver, "No sense in going a block away to get it (fill material) when we have oceans of concrete and sand adjacent to the hole" (Tr. 42, 48).

Subsequently, around 2:30 P.M., Driver Staff was digging on top of the tunnel and had cut off the top of it with his tractor. He was signaled by Harold N. Hunt, an independent crane operator and Respondent's subcontractor demolishing the pumping plant building, who "pointed to it" and warned him away (Tr. 69). Driver Staff, after this warning, started to move away from the tunnel (Tr. 70).

Around 3:00 P.M. Driver Staff suffered a fatal injury after the tractor he was operating fell through the roof of the underground tunnel (Joint Exhibit 1, Tr. 75). The location of this accident is marked with an "X" in Respondent's Exhibit 1 (Tr. 48).

The Secretary's compliance officer testified that in his opinion the tunnel roof could not hold the weight of the tractor (estimated by him at 10 to 15 tons, Tr. 12) and that the collapse of tunnel was caused by the tractor's weight (Tr. 16, 22). He did not know, however, how much weight the tunnel could sustain before collapsing [*22] (Tr. 22) and couldn't show or establish by calculations that the structure itself could not support the weight of the tractor (Tr. 29). His opinion that the top of the tunnel wasn't of sufficient strength to support the front-end loader in question was based solely on the fact that "the caterpillar was on that roof and the roof gave way" (Tr. 30).

At Respondent's pumping plant and Playland at the Beach worksites on November 2, 1972, no "OSHA poster" had been posted and no copy of "OSHA 100," the log of occupational injuries and illnesses, was being maintained (Tr. 17-18). On November 3, 1972 and prior thereto, the Respondent was maintaining at its main office at Oakland, California, reports of industrial injuries prescribed by the State of California, but not OSHA 100 forms (Tr. 46-47, Respondent's Exhibit 2). Prior to November 3, 1972, the only safety poster furnished by the Secretary of Labor had been posted at Respondent's shop at Oakland, California (Tr. 44-45). Respondent did not maintain an office at the San Francisco worksites and all employees were dispatched from the Respondent's shop in Oakland (Tr. 43).

During the year 1972 Respondent employed, on the average, [*23] ten employees daily and had a gross annual volume of sales of approximately $500,000. He had five employees at his San Francisco worksite on November 1, 1973 (Joint Exhibit 1).

In recommending a $500.00 proposed penalty for the alleged serious violation, the compliance officer started with an unadjusted penalty of $1,000 and then gave 20% credit reductions for Respondent's good faith, size, and no history of prior violations under the Act (Tr. 19-21, Secretary's Exhibit 1).

DISCUSSION

Respondent was charged by both the complaint and citation with permitting employees to start demolition operations without first having a competent person make an engineering survey to determine the condition of the structures to be demolished and adjacent structures, and the possibility of the unplanned collapse of any portions of the structures involved. Standard 1926.850(a) also imposes the additional requirement that the employer shall have in writing evidence that such a survey has been performed but neither the citation nor complaint makes reference to this obligation. In our view, therefore, the sole inquiry raised by the pleadings on this issue is whether Respondent complied with [*24] the standard by making the required engineering survey.

Examination of the record also was made to determine whether the issue of Respondent's possession or nonpossession of a writing evidencing an engineering survey, not raised by the pleadings, was actually litigated by the express or implied consent of the parties, thereby resulting in an amendment of the pleadings under Rule 15(b) of the Federal Rules of Civil Procedure. Evidence of record possibly relating to this issue involves the aerial photograph introduced by the Respondent and testimony regarding the same. But Respondent's counsel's remarks (Tr. 86) make clear this exhibit was introduced in support of Respondent's contention that he had made an engineering survey -- a basic issue raised by the pladings. Therefore, its introduction does not establish that Respondent was thereby impliedly consenting to the litigation of an issue not already in the case. n3 Because we cannot realistically find on this record that Respondent gave his express or implied consent to the trial of this issue, it will not be treated as if it had been raised by the pleadings.

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n3 Also, Respondent's question to compliance officer, "When you spoke with Mr. Allen concerning an engineering survey, what specifically did you ask him?", when read in context with the officer's direct testimony (Tr. 10-11), the next cross-examination question (Tr. 25) and Mr. Allen's testimony (Tr. 43), does not represent a Respondent attempt to litigate the issue of written evidence.

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The evidence of record falls far short of establishing Respondent's violation of 1926.850(a) on November 2, 1972. The compliance officer's testimony was the only evidence introduced by the Secretary on this issue and was limited to relating the content of his conversation with Respondent on November 3, 1972. According to the compliance officer, Respondent was asked whether he had an engineering survey and his response was that he had "produced no written engineering survey" (Tr. 10-11). Respondent's testimony, however, contradicts the compliance officer on this point and Respondent insists he was asked by the compliance officer only whether he had filed an engineering survey with the City [*26] of San Francisco prior to demolition, to which he replied he had not.

Leaving aside the question of the witnesses' credibility, the compliance officer's testimony, if accepted as completely accurate, only tends to prove that Respondent did not make a written engineering survey. But 1926.850(a) plainly does not require a written engineering survey; only evidence in writing that such a survey has been performed. We suggest that the prescribed writing is a requirement of secondary importance, designed only to evidence compliance with the standard's primary objective, accomplishment of an engineering survey by a competent person. This interpretation is further supported by the realization that the Secretary could have clearly indicated an intention to require a written survey by simply having the word "written" modify the phrase "engineering survey."

Respondent's uncontroverted testimony establishes that prior to commencing the demolition of all buildings within block "1" he undertook a survey to determine the condition of the floors, framing and walls of the buildings to be demolished and the possibility of unplanned collapse of these structures. n4 Moreover, there appears to be [*27] no doubt that Respondent, who holds a Class A general engineering license from the State of California, is a "competent person" to a perform such a survey within the meaning of 1926.32(b).

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n4 Neither the Secretary nor Respondent raised the issue, or introduced evidence on, whether an engineering survey of the Olympic Club's pumping plant had been made by Respondent.

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The record evidence also is inadequate to sustain the Secretary's charge that Respondent permitted the use of mechanical equipment on a working surface of insufficient strength to support the imposed load. There is no reason to doubt the testimony of Respondent and his son that the front-end loader driver knew of the location of the tunnel and that he had been warned and instructed not to work in its vicinity. n5

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n5 The compliance officer agrees that Respondent's driver and his other employees had been warned to stay away from the tunnel (Tr. 20).

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The driver's action in continuing to work near the tunnel, particularly after being verbally instructed not to, was clearly unauthorized and no basis exists for concluding that Respondent should have anticipated this behavior; the driver was experienced and had worked for the Respondent three years. To require that an employee constantly scrutinize work processes under the circumstances of this case would impose a burden not contemplated by the Act. See, Secretary of Labor v. Ira Holliday Logging Company, Inc.

Another deficiency of Secretary's proof is the failure to establish that the tunnel roof was of insuficient strength to support the front-end loader. The Secretary relied on conjecture and uninformed opinion. The compliance officer, who is not an engineer, concluded that the roof could not support the weight of the loader solely on the basis that the loader was on the roof and the roof gave way. But no studies or tests to determine the strength of the roof to bear weight were made by him and he admits that, "We (compliance officers making inspection) couldn't show that [*29] the structure itself could not support the weight (of loader) based on measurements or calculations." n6 The Secretary's argument on this point is made even less persuasive because of the evidence that the driver, approximately 30 minutes before the accident, "had cut the top of the tunnel off with the tractor" (Tr. 69). Clearly, the possibility is presented that the tractor fell through this section of the tunnel roof. On this record, no violation of 1926.856(a) is established.

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n6 Compliance officer conceded that he didn't know "approximate weight" and could only "estimate between 10 and 15 tons" (Tr. 12).

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Violations of 1903.2(a) and 1904.2(a) also were not established by this record. 29 CFR 1903.2(a) requires that employers shall post and keep posted in each establishment notices furnished by the U.S. Department of Labor and 1904.2 requires that a log of occupational injuries and illnesses be kept in each establishment.

The term "establishment" is defined at 29 CFR 1903.2(b) as follows:

(b) "Establishment" [*30] means a single physical location where business in conducted or where services or industrial operations are performed. (For example: A factory, mill, store, hotel, restaurant, movie theatre, farm, ranch, bank, sales office, warehouse, or central administrative office.) Where distinctly separate activities are performed at a single physical location (such as contract construction activities from the same physical location as a lumber yard), each activity shall be treated as a separate physical establishment, and a separate notice or notices shall be posted in each such establishment, to the extent that such notices have been furnished by the Occupational Safety and Health Administration, U.S. Department of Labor. Where employers are engaged in activities which are physically dispersed, such as agriculture, construction, transportation, communications, and electric, gas and sanitary services, the notice or notices required by this ection shall be posted at the location to which employees report each day. Where employees do not usually work at, or report to, a single establishment, such as longshoremen, travelling salesmen, technicians, engineers, etc., such notice or notices shall [*31] be posted at the location from which the employees operate to carry out their activities. In all cases, such notice or notices shall be posted in accordance with the requirements of paragraph (a) of this section.

Subsection 1904.12(g)(1) contains a similar definition and subsection 1904.12(g)(2) further provides in pertinent part:

For firms engaged in activities such as . . . construction . . . which may be physically dispersed, records may be maintained at a place to which employees report each day.

Unquestionably, Respondent was in compliance with the provisions of 1903.2(a) on November 3, 1972 because the evidence shows that there was a poster at Respondent's shop in Oakland, the location from which employees are dispatched each day (Tr. 43).

Respondent also had achieved compliance with 1904.2(a) on November 3, 1972 for the same reason. The log of recordable occupational injuries and illnesses (OSHA Form No. 100, or any private equivalent) in the construction industry need be maintained at the place to which employees report each day and this was done in this case.

FINDINGS OF FACT

Upon the entire record, the following facts are found:

1 Abdo S. Allen, a licensed [*32] general engineer doing business as Abdo S. Allen Company, maintains a place of business and employment at Oakland, California and is a general demolition contractor.

2. In September 1972, prior to commencement of demolition operations at Playland at the Beach, San Francisco, California under a contract with Seal Rock Development Company, Abdo S. Allen, a competent person of more than 20 years of demolition experience, made an engineering survey to determine the condition of the framing, floors and walls of the structures to be demolished, and the possibility of unplanned collapse of these or adjacent structures.

3. Sometime in September 1972, an underground tunnel, constituting a hazard area to the demolition operations to be performed within block "1," ws discovered and marked out on an aerial photograph (Respondent's Exhibit 1). All of Respondent's employees were shown this aerial photograph and instructed to avoid the area.

4. On November 1, 1972 Abdo S. Allen Company commenced demolition of a pumping plant building under contract with the Olympic Club. This worksite was over 200 feet, approximately 100 yards, from the underground tunnel referenced in Finding of fact No. [*33] 3.

5. On November 1, 1972 an experienced employee and front-end loader driver, Raymond Staff, was assigned to fill in the excavation at the pumping plant site and instructed to use for this purpose the asphalt, concrete and material located in an adjacent area, 100 feet away (Respondent's Exhibit 1).

6. Respondent and his foreman both pointed out the direction and location of the underground tunnel to Driver Staff, instructing him to avoid the area.

7. At approximately 2:30 P.M. on November 1, 1972 Raymond Staff cut the top of roof off the underground tunnel with Respondent's tractor and was warned away from the area by a Respondent subcontractor.

8. At approximately 3:00 P.M. on November 1, 1972 the said Raymond Staff suffered a fatal injury after the tractor he was operating fell through the roof of the referenced underground tunnel (Joint Exhibit 1).

9. The evidence does not permit a finding that on November 1, 1972 the roof of the underground tunnel was not of sufficient strength to support the weight of the front-end loader.

10. Respondent, on November 3, 1972 and prior thereto, had posted a notice informing employees of Respondent of the protections and [*34] obligations provided for in the Act at his Oakland shop, and maintained the private equivalent for an occupational injury and illness log at his Oakland office.

11. Respondent's employees report daily to, and are dispatched from, the Oakland office.

12. Respondent had no office facility at the Playland at the Beach worksite.

CONCLUSIONS OF LAW

1. The Respondent is an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act and obliged to comply with the standards promulgated under Title 29, Subpart T (1926.850 et seq. ) of the Code of Federal Regulations.

2. On November 2, 1971 Respondent was not in violation of 29 CFR 1926.850(a), 1926.856(a); 1903.2(a) and 1904.2(a).

ORDER

Based on the foregoing findings, conclusions of law and the entire record, it is ORDERED that:

1. The alleged violations of 29 CFR 1926.850(a), 1926.856(a), 1903.2(a) and 1904.2(a), and any proposed penalties based thereon, are hereby VACATED.