STACK CONSTRUCTION COMPANY

OSHRC Docket No. 323

Occupational Safety and Health Review Commission

June 4, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission in accordance with my order directing review of a decision by Judge William E. Brennan. Judge Brennan concluded that Respondent had committed a serious violation of section 5(a)(1) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"), and assessed a penalty of $650 therefor.

The issue on review was whether the Judge's assessment of penalty was inappropriately low in the circumstances of the case. *

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* The dissenting opinion is directed to an issue which the parties have not raised, tried, or briefed at any stage of this proceeding. The issue was not raised by a direction for review. Accordingly, we do not consider it. Chicago Bridge and Iron Company,

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We have reviewed the entire record. We find that the Judge [*2] gave due consideration to the criteria for determining an appropriate penalty specified in section 17(j) of the Act.

Accordingly, it is ORDERED that the Judge's decision be and the same is hereby affirmed in all respects.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: I would dispose of this case on the basis that the citation was invalid because it was not issued pursuant to the requirements of 29 U.S.C. 658(a) of the Act. That section provides that:

If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 654 of this title, of any standard, rule or order promulgated pursuant to section 655 of this title, or of any regulations prescribed pursuant to this charter, he shall with reasonable promptness issue a citation to the employer. (Emphasis added.)

In this case the inspections took place on September 3 and 7, 1971. The citation was issued 84 days later on November 30, 1971. I can find nothing in the record indicative of extraordinary circumstances justifying such a delay. Such an issue was thought to be dispositive in Secretary v. Chicago Bridge and Iron Company, OSAHRC [*3] Docket No. 744, January 24, 1974. The reasons why the same is a jurisdictional matter which the Commission is empowered to raise at any time have been discussed at some length in Secretary v. Advanced Air Conditioning, Inc., There is no need to repeat them here.

[The Judge's decision referred to herein follows]

BRENNAN, JUDGE, OSAHRC: This is an action arising under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter the Act), to review one Citation issued by the Secretary of Labor, (hereinafter Secretary) pursuant to Section 9(a) of the Act, and a penalty proposed thereon issued pursuant to Section 10(a) of the Act.

On November 30, 1971, the Secretary through the Wisconsin Area Director of the Occupational Safety and Health Administration, issued to Stack Construction Company, 3303 South 20th Street, Milwaukee, Wisconsin, (hereinafter Respondent) one Citation n1 alleging a serious violation of Section 5(a)(1) of the Act at a construction site under Respondent's ownership, operation or control located at Ryan Road and South 20th Street, Oak Creek, Wisconsin, [*4] (hereinafter workplace) together with a Notification of Proposed Penalty based upon the alleged violation in the amount of $750.00.

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n1 This Citation set forth references to seven Construction Standards assumedly specifying the conditions, which, in their totality, constituted the one serious violation charged. In his Complaint and throughout the hearing, the Secretary abandoned all references to and reliance upon said standards in that they were not effective during the period of the alleged violation.

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Pursuant to Section 10(c) of the Act, the Respondent through a letter from its President dated December 15, 1971 gave notice of its intention to contest both the Citation and proposed penalty.

This case was thereafter referred to the Occupational Safety and Health Review Commission, (hereinafter Commission) for hearing pursuant to Section 10(c) of the Act, notice thereof being given the parties of record by the Commission on December 27, 1971.

On January 3, 1972 the Secretary filed his Complaint dated December 30, [*5] 1971.

On January 18, 1972 the Commission entered an Order dismissing Respondent's Notice of Contest and affirming the Secretary's Citation and proposed penalty.

By a letter dated January 19, 1972, which was received by the Commission on January 24, 1972, Respondent's counsel advised of their retention as counsel for Respondent and requested an extension of time to review the case. Pursuant to advise from the Commission set forth in its letter of January 24, 1972, Respondent's counsel through its letter dated February 3, 1972 requested re-instatement of this case to the Commission trial docket, which request was granted by the Commission on February 9, 1972.

On February 11, 1972, this case was assigned to Commission Judge Moran, who by notice dated February 16, 1972 granted Respondent's request for an enlargement of time of February 25, 1972 within which to file an Answer.

Respondent, by letter form its counsel dated February 23, 1972 filed its Answer with the Commission on February 28, 1972, which, among other matters, denied the alleged violation, the jurisdiction of the Commission and alleged the unconstitutionality of the Act.

On March 7, 1972 this case was reassigned [*6] to the writer due to Judge Moran's unavailability, notice thereof being given the parties of record the same date.

After Respondent's request for a postponement was denied, (R.pp. H-18, H-19) the hearing was held as scheduled on April 27, 1972 in Milwaukee, Wisconsin. No affected employees or representative therefor indicated any desire to participate as a party.

After granting two extensions of time within which to file briefs and proposed findings and conclusions upon the request of each party or record, said documents were filed by said parties on July 14, 1972.

Having considered the entire record herein, the testimony and demeanor of the witnesses, the exhibits, the stipulations, representations and admissions of the parties, it is concluded that the substantial evidence of record considered as a whole supports the following.

FINDINGS OF FACT

The following matters were stipulated to by the parties at the commencement of the hearing.

The Respondent, Stack Construction Company, is a Wisconsin Corporation with its principal office located at 3303 South 20th Street, Milwaukee, Wisconsin and its gross annual volume for 1971 was $220,000. Respondent is an employer within [*7] the meaning of Section 3(5) of the Act.

Respondent next filed a Motion to Dismiss on the grounds that the Act contravenes the Fourth, Fifth and Sixth Amendments to the Constitution (Tr. 12-17) together with a Demand for Jury Trial (Tr. 20). Ruling on the Motion to Dismiss was reserved, (Tr. 18), and the Demand for Jury Trial was denied (Tr. 20).

This case arose from an inspection of Respondent's workplace, conducted on September 3 and 7, 1971.

On September 3, 1971, the Wisconsin Area Director of the Occupational Safety and Health Administration, Mr. Hanna, accompanied by a full time consultant in construction safety, Mr. White, in response to a complaint and a newspaper report of a fatality, conducted an inspection of a construction site at Ryan Road and South 20th Street, Oak Creek, Wisconsin.

At this location, the Respondent, under a contract with the City of Oak Creek, was engaged in the excavation for and installation of a drainage culvert 175 feet long and approximately 8 feet high, and approximately 45 feet of 30 inch concrete storm sewer pipe. For the purposes of this decision, the area near the culvert, which had been installed by September 3, will be referred to as [*8] the "excavation site," and the area in which the trench was being dug and sewer pipe was being installed on September 3, referred to as the "trench site."

I. THE EXCAVATION SITE

The "excavation site" consisted of two levels as depicted in a photograph taken by Mr. White (Exh. G-1). The lower level immediately in front of the culvert, or bottom of the excavation which had been made to accommodate the culvert and provide drainage, referred to as the "flow level," and the top of the excavation to the North of the culvert. The top of this excavation was used by Respondent as a "haul road," that is various types of Respondent's construction equipment traveled along this upper level for various construction purposes. This haul road was from 5 to 12 feet wide and ran along the top of the excavation for approximately 250 feet East of the culvert.

At the Easterly opening of the culvert, the excavation was approximately 12 feet deep and the side or slope thereof was nearly vertical. Both the depth of the excavation and angle or slope of its North side decreased gradually East of the vulvert.

On September 3, Messers Hanna and White inspected this construction site, Mr. White [*9] photographed the excavation site (Exh. G-1 and G-2) as well as operations being conducted at the trench site (Exh. G-4, G-5 and G-6).

During this inspection, Mr. Hanna spoke with Mr. Stahoski, Respondent's President, Mr. Stack. Respondent's founder and principal stock holder, Mr. Kaminski, Respondent's job superintendent and two of Respondent's employees, Mr. Ellinger and Mr. Wagner.

Mr. Hanna discussed the record keeping requirements of the Act with Messers Stahoski and Stack and left a copy of the informational poster required to be displayed at the job site with them together with a copy of the record keeping requirements and a copy of the Act. The two officials made an inspection of the work place and both noted the absence of any stop logs or barricades of any description along the edge of the excavation to prevent vehicles from accidently going over the side thereof from the haul road and also noted the absence of any stakes or flags in the same area to warn of the presence of the excavation and change in elevation.

Messers Hanna and White were shown the site of the fatal accident which occurred on August 27, 1971 and from a discussion of the accident with Respondent's [*10] representative and employees named above, it was ascertained that one of Respondent's employees, while engaged in removing concrete forms, which had been used on the face of the culvert, with the use of a front end loader, accidently backed this equipment too close to edge of the excavation, the wheel of the front end loader dislodged some of the loosely compacted face of the excavation, causing the equipment to roll over into the excavation out of control, causing the death of the operator. This accident occurred just to the North of the culvert where the side of the excavation was nearly vertical and is shown in Exhibits G-1 and G-2. This scene is also depicted in greater detail in Exhibits G-7 and G-8, photographs taken by two inspecting compliance officers on September 7, 1971.

Both Messers Hanna and White were produced as expert witnesses in the field of construction safety and, qualified as such, they gave their opinions that the absence of the stop logs or barricades along the side of the haul road at the edge of the excavation to prevent vehicles from going over the side thereof, and the absence of stakes and flags as markers along the same area to warn of the [*11] abrupt change of elevation, constituted a hazardous condition likely to cause death or serious physical harm to employees driving equipment along the haul road, which hazard is generally recognized in the construction field. This hazard, for many years, has been recognized by the Association of General Contractors, which has published a Construction Standard Manual dating back to 1927 dealing in part with these types of hazards, as have other trade manuals and magazines.

Mr. Stahoski, Respondent's President was a member of the Association of General Contractors for 15 years, has attended various meetings on construction safety and receives approximately 15 different construction manuals or journals a month. Both Mr. Stahoski and Respondent's job superintendent Mr. Kaminski, were present at the instant workplace every day work was being performed, and knew, or with the exercise of reasonable diligence, could have known of the absence of stop logs or barricades and warning flags along the edge of the excavation at the edge of the haul road.

Respondent's employees did drive construction vehicles along this haul road during the excavation for and installation of the drainage culvert [*12] at various times from the beginning of this construction project to and including August 27, 1971. It is probable that additional use of this haul road was made by Respondent's employees from August 27, 1971 until work at the excavation site was completed around September 17, 1971, as there was additional work to be accomplished at this excavation subsequent to September 7, 1971 requiring the use of construction equipment.

The inspection of Respondent's work place begun on September 3 was continued on September 7, 1971 by two of the Secretary's Compliance officers, Messers Bechtel and Wasko. These officers found that the OSHA informational poster, left with Respondent four days previously by Mr. Hanna, was not posted at this construction site. They also noted the lack of any stop logs, barricades warning stakes or flags along the side of the haul road at the edge of the excavation.

They also discussed the fatal accident with Respondents Superintendent Mr. Kaminski, viewed the scene and took photographs thereof which were admitted into evidence as Exhibits G-7 and G-8. Their conversation with Mr. Kaminski substantiated the facts concerning the accident as determined [*13] by Messers Hanna and White. Additionally, Mr. Bechtel was told by Mr. Kaminski that the excavation area on September 7th was in the same condition that it was at the time of the accident, August 27th. Mr. Kaminski further advised Officer Bechtel that no stop logs had been installed at the excavation area either prior to or subsequent to August 27, 1971. Mr. Kaminski further reported that at one time, some stakes had been placed along the edge of the excavation, and after a search, one stake, which has been buried under the soil, was located.

Mr. Bechtel obtained a copy of a Supplementary Record of Occupational Injuries and Illnesses, completed by Respondent's Officer Manager on August 28, 1971 which was admitted into evidence as Exhibit G-9.

The Secretary also produced the testimony of Mr. Wagner, a university student who was a summer employee of Respondent on August 27th, September 3rd and 7th, 1971. On August 27th he was working with the accident victim at the excavation site assisting in the removal of the concrete forms. Although he did not see the accident happen, he did see the deceased begin to back the front end loader on the haul road toward the edge of the [*14] excavation, heard a cry for help, saw the victim and machine at the bottom of the excavation, ran to summon assistance and called an ambulance. He further testified that the conditions shown in Exhibits G-1, G-7 and G-8 accurately depict the conditions which he observed on September 3 and 7, 1971, which were substantially the same conditions which existed on August 27th at the excavation site, i.e., no stop logs or barricades at the top of the excavation. He further testified that the haul road, prior to and including August 27, 1971 was used by Respondent's construction equipment such as front end loaders, (Exh. G-3), turnapoles, (large rubber tired earth moving equipment), and a caterpillar tractor.

Respondent producted its Superintendent, Mr. Kaminski, who testified that there was a "berm" (a mound of earth) along the side of the haul road as well as laths, four feet high topped by red flags, every 50 feet along this road. The evidence reveals that some grade stakes were installed by Oak City engineers in the "flow" or lower level of this excavation and along the top of the excavation used as the haul road. Respondent claims that it installed the four foot laths with red plastic [*15] warning flags next to these stakes.

If such conditions once existed at this excavation area, and I do not so find as there is a lack of substantial, reliable evidence to so establish, the reliable and substantial evidence of this record does establish that there was neither a berm nor warning stakes or flags along this haul road on either August 27th, September 3 or 7, 1971.

II THE TRENCH SITE

A short distance to the West of the excavation site, Respondent on September 3, 1971 was engaged in digging a trench and installing therein sections of concrete sewer pipe, approximately 30 inches in diameter and weighing about 1 ton per section.

Messers Hanna and White, on September 3rd ovserved Respondent's operations in this area and Mr. White took photographs of these operations which were admitted into evidence as Exhibits G-4, G-5 and G-6.

When viewed by these officials on the afternoon of September 3, three or four sections of sewer pipe had been installed in the trench. In installing the sewer pipe a hydraulic shovel was utilized by Respondent. First, the trench, approximately 4 feet wide and 6 feet deep was dug long enough, from 4 to 5 feet, to accommodate a section [*16] of sewer pipe. The shovel would then rotate to the north to pick up a section of pipe. This was done by hooking a chain suspended from the bucket of the shovel into a pin bolted into the pipe. Mr. White observed men leaning over the pipe, hooking up the chain with the bucket suspended over their backs approximately 1 foot above their bodies. It was Mr. White's expert opinion that such a condition constituted a serious hazard of death or serious injury to these workers because if the shovel operator made an operating error, or if there was a malfunction of the hydraulic shovel, the bucket, weighing approximately a ton, could strike the men. This condition was immediately pointed out to Respondent and it was immediately corrected by having the men hook up subsequent pipe sections from the other side of the pipe which corrected this hazardous condition.

After securing the section of pipe to the bucket, it was raised and swung to the South, over the trench and lowered into the trench. Mr. White observed two employees in the trench and the suspended pipe section was swung over their heads. In Mr. White's expert opinion, allowing a suspended load to be swung over the heads [*17] of employees in the trench was a recognized hazard likely to cause death or serious physical harm to the employees in case the chain supporting the load broke or in the event of a failure of the hydraulic shovel or operator error. In his opinion the two employees in the trench should have been directed to leave the trench or at least stand clear of the suspended load until after the section of pipe had been lowered into the trench.

There is no substantial evidence contrary to this expert opinion and it is hereby found that swinging a suspended load weighing approximately one ton over the heads of employees in the trench as observed in this case, constituted a recognized hazard likely to cause death or serious physical harm to the employees in the event of gear or equipment failure or operator error.

After the section of pipe was lowered into the trench, the employees, working under the bucket of the hydraulic shovel, guided the pipe into connection with a previously installed section of pipe.

Mr. Hanna was of the opinion that allowing men to work under the bucket in this manner constituted a recognized hazard primarily because if there was a hydraulic failure in the shovel, the [*18] bucket might drop onto the employees thereby either seriously injuring or killing them. However, Mr. Hanna readily admitted that although it is a dangerous practice, most contractors position sections of pipe, once in the trench, as Respondent did at this site which involved having a man under the shovel for short periods of time. Additionally, Mr. White testified, "Now, the men are going to have to work underneath a back hoe as they do this particular phase of work" (Tr. 107), i.e. guide the section of pipe, once in the trench, into connection with a previously installed section. He further stated that having men working under the bucket adjusting the section of pipe into its final position is hazardous, but, "This is about the only way that there is of doing it. We recognize it as a hazard to employees but this is one of the hazards we kind of live with" (Tr. 112, 113), because, ". . . there still hasn't been any real solution how to prevent the men from being right under the bucket as they appear here at the time" (Tr. 112) i.e. as shown in Exhibits G-4, G-5 and G-6.

Upon this evidence it is concluded that having employees guide the section of pipe, once it is down [*19] in the trench, into final position which necessitated working under the bucket, although dangerous, does not constitute a violation of Section 5(a)(1) of the Act as alleged. This conclusion is based upon the lack of any recommended alternative method, the practice within the construction industry and upon both Mr. Hanna's and Mr. White's unfamiliarity with any safety mechanisms on the hydraulic shovel in use at this trench area (Tr. 70-73, 127) together with the testimony of Respondent's President that if there was a hydraulic failure on the shovel in use, a Bu-Cyrus Erie 20-H, all mechanisms lock and there is no further movement of the shovel's mechanism (Tr. 221).

During the period when Respondent was engaged at this construction site, from early July to approximately September 17, 1971, it had a total employment of from 20 to 26 employees, of which from 5 to a maximum of 10 employees were employed at the workplace in question.

Compliance Officer Bechtel testified to his computation of the proposed penalty of $750.00 for the one serious violation alleged, reducing the statutory maximum of $1,000.00 by 25%. No reduction was allowed Respondent for good faith based upon [*20] Respondent's failure to have posted on September 7th, the informational poster left with it on September 3rd by Mr. Hanna, and the failure of Respondent to take any visible corrective measures at the excavation site by September 7th, i.e., no stop logs, barricades or warning flags had been installed on this date. A 20% reduction was allowed for no previous history of violations of the Act and a 5% reduction based upon Respondent's size (Exh. G-10). An "immediate" abatement date was set forth in the citation. There is no substantial evidence of record establishing the existence of those conditions alleged in the Citation and Complaint other than the two conditions hereinfound to constitute a violation of Section 5(a)(1) of the Act.

RESPONDENT'S POSITION

Respondent's defense to this action is a challenge to the constitutionality of the Act. It argues that the Act violates Respondent's rights guaranteed under the Fourth, Fifth and Sixth Amendments to the Constitution (See Respondent's Motion to Dismiss, Tr. pp. 12-17, 173, 174, and Respondent's Brief, R.p.H-30). This defense raises constitutional questions exclusively.

Administrative agencies, invested with discretion, have no [*21] jurisdiction to entertain constitutional questions where no provision has been made therefor. Panitz v. District of Columbia, 112 F. 2d. 39, 42 (C.A.D.C., 1940); See also, Hillsborough Tp. v. Cromwell, 326 U.S. 620 (1946); Todd v. S.E.C., 137 F2d. 475, 478 (CA 6, 1943); Central Nebraska Public Power & Irr. Dist. v. FPC, 160 F2d 782, 783 (C.A. 8, 1947), cert. den. 332 U.S. 765 (1947), Engineers Pub. Serv. Co. v. SEC., 138 F2d 936, 952 (C.A.D.C., 1943).

The Act contains no provision vesting the Commission with jurisdiction to determine the constitutionality thereof.

It is the function of the judiciary to determine the constitutionality of Acts of the legislature. Panitz v. District of Columbia, supra at p. 41; Adkins v. Childrens Hospital, 261 U.S. 525, 544; 43 S. Ct. 394 (1923); U.S. v. Butler, 297 U.S. 1, 62; 56 S. Ct. 312 (1936).

Under the foregoing judicial precedent, the writer is without jurisdiction to determine the constitutional questions raised by Respondent.

CONCLUSIONS OF LAW

At all times involved in this case, Respondent herein was an employer engaged in a business affecting commerce within the meaning [*22] of Section 3(5) of the Act.

At all times involved in this case, Respondent furnished employment to its employees at a workplace located at Ryan Road and South 20th Street, Oak Creek, Milwaukee County, Wisconsin and the Act is applicable to such employment within the meaning of Section 4(a) of the Act.

On November 30, 1971, the Secretary, pursuant to the provisions of Sections 9(a) and 10(a) of the Act, issued to this Respondent a Citation for Serious Violation and a Notification of Proposed Penalty in the total amount of $750.00.

On December 15, 1971, pursuant to the provisions of Section 10(c) of the Act, this Respondent timely filed with the Secretary its notification of intent to contest the Citation and proposed penalty. The Secretary thereupon transmitted this case to the Commission which, pursuant to the provisions of Section 10(c) of the Act, has jurisdiction of the parties and of the subject matter herein.

During the period from August 27 to September 7, 1971, the Respondent herein, at the workplace identified above, violated Section 5(a)(1) of the Act by failing to provide each of its employees employment and a place of employment which was free from recognized [*23] hazards that were causing or were likely to cause death or serious physical harm to said employees in that there was an absence of stop logs or barricades along the side of the haul road at the top of the excavation site to prevent vehicles from going over the side thereof and there was an absence of flags, stakes or any markers along the top of this excavation to warn of the abrupt change of elevation, and at the trench site, Respondent permitted a suspended section of concrete sewer pipe, weighing approximately one ton, to be moved over two employees in said trench.

These hazards existing at Respondent's workplace were recognized hazards in the construction industry which are likely to cause death or serious physical harm to employees.

This violation of Section 5(a)(1) of the Act constituted a serious violation within the meaning of Section 17(k) of the Act in that there was a substantial probability that death or serious physical harm could result therefrom and the Respondent knew, or with the exercise of reasonable diligence, could have known of the presence of the violation.

There is a lack of substantial evidence in this record establishing the existence of any conditions [*24] or practices at Respondent's workplace, other than those conditions and practices herein found to constitute a violation of Section 5(a)(1) of the Act. Therefore, all references to said other conditions and practices, as set forth in the Citation and Complaint herein, are striken therefrom as not being supported by the substantial evidence of record.

Due consideration having been given to the provisions of Section 17(j) of the Act as applicable to the evidence of record, and weighing particularly the gravity of the violation herein found to exist, together with the immediate corrective action Respondent took to eliminate the hazard associated with connecting the hydraulic shovel to sewer pipe sections, and the lack of any recommended practice to accomplish the final placement of sections of sewer pipe within sewer trenches, it is concluded that a civil penalty in the amount of $650.00 is appropriate.

Based upon the foregoing findings and conclusions, and pursuant to the provisions of Sections 10(c) and 12(j) of the Act, it is hereby

ORDERED:

That the Citation for Serious Violation and Complaint herein be amended by striking all references to any conditions or practices [*25] other than those conditions and practices herein found to constitute a violation of Section 5(a)(1) of the Act.

As amended herein, said Citation for Serious Violation be AFFIRMED.

That the Notification of Proposed Penalty herein is modified to reflect an appropriate and reasonable civil penalty in the total amount of $650.00.

Pursuant to Section 17(j) of the Act, said civil penalty in the total amount of $650.00 is hereby assessed against the Respondent herein.