S.S.C. CORPORATION
OSHRC Docket No. 5288
Occupational Safety and Health Review Commission
June 24, 1976
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Marshall H. Harris, Regional Solicitor, USDOL
Jerald B. Lurie, for the employer
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Commissioner:
A decision of Administrative Law Judge David H. Harris, rendered on April 23, 1974, is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter "the Act"].
In his decision Judge Harris found respondent employer in serious violation of section 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1), commonly referred to as the "general duty clause." For the reasons that follow we hereby affirm the decision of the Judge insofar as it is consistent with this opinion.
Respondent corporation is an underground utilities contractor. At the time of the events herein in issue, respondent, as a subcontractor, was engaged in the installation of utility drain pipes at a construction site in Fallston, Maryland. The pipe was being installed in a trench that was being excavated by respondent's employees to a depth of 3 feet through the operation of an 18 1/2 ton caterpillar-type backhoe. The backhoe straddled the end of the trench [*2] during the excavation process.
It was necessary to locate a portion of the trench within 11 feet of, and parallel to, a concrete block and brick wall that was being erected by another subcontractor. The wall was estimated to have been from 80 to 100 feet in length and from 8 to 11 feet in height.
On October 1, 1973, respondent's crew had opened a 12-foot length of the trench adjacent to the wall. The wall collapsed, falling into the trench. Two of respondent's employees were injured, one fatally.
Respondent was cited for a serious violation of section 5(a)(1) of the Act. n1 In order to establish a violation of this section the Secretary must prove: (1) that the employer failed to render its work-place free of a hazard; (2) the hazard was "recognized" and (3) it caused or was likely to cause death or serious physical harm. National Realty & Construction Co., Inc. v. O.S.H.R.C., 489 F.2d 1257, 1264 (D.C. Cir. 1973).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 The section reads:
Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.
[*3]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The record clearly shows that the first and third elements of a section 5(a)(1) violation have been proved. In the performance of their work activities, respondent's employees were required to excavate a trench within 11 feet of a partially constructed wall. The wall posed a hazard of collapse because it was "free-standing," i.e., it was neither braced nor shored; its ends were not tied to any other wall; nor were there any type of corner supports. Thorleif Larsen & Son, Inc., 12 OSAHRC 313, BNA 2 OSHC 1256, CCH 1974-75 OSHD para. 18,826 (No. 370, 1974); Tolar Constr. Co., 13 OSAHRC 514, BNA 2 OSHC 1385, CCH 1974-75 OSHD para. 19,078 (No. 1329, 1974). n2
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 For my own part, I would refer also to the dissenting opinion in Uriel G. Ashworth, Inc., 15 OSAHRC 174, BNA 2 OSHC 1552, CCH 1974-75 OSHD para. 19,296 (No. 1018, 1975), remanded No. 75-1311 (4th Cir., March 3, 1976).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The nature of the injuries likely to be [*4] sustained by employees exposed to the collapse of a concrete and brick wall approximately 8 to 11 feet high would obviously be serious or fatal.
The crucial issue is whether it has been proved that the hazard involved is a "recognized" hazard within the meaning of the Act.
A "recognized" hazard is a condition that is "known" to be hazardous. National Realty & Constr. Co., Inc., supra, 489 F.2d at 1265 n.32. The "knowledge" requirement can be satisfied by proving that the employer had actual knowledge that a condition is hazardous, Brennan v. O.S.H.R.C. and Vy Lactos Laboratories, Inc., 494 F.2d 460 (8th Cir. 1974), or by showing that taking into account the standard of knowledge in the industry involved, the condition is known to be hazardous. National Realty & Constr. Co., supra.
The Judge found that the free-standing masonry walls are generally recognized as hazardous in the industry in which respondent is engaged. We agree.
Respondent is properly included within the general construction industry. n3 The particular activity engaged in within this industry by respondent is the excavation for, and installation of, underground utilities. The Secretary presented [*5] a witness, qualified as an expert on construction matters, to testify as to the standard of knowledge in the industry concerning the recognition of the hazards involved when excavating adjacent to unsupported walls.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 Office of Management and Budget, Standard Industrial Classification Manual, (1972). Respondent's excavation activities are governed by the Safety and Health Regulations for Construction, 29 CFR Part 1926.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
This witness testified that in his opinion the wall presented an obvious hazard of collapse and that respondent, as a utility contractor, should have been aware of the nature of the hazard involved and taken any necessary precautions to guard against the hazard.
In this witness' opinion, several factors pertaining to the conditions at the worksite should have alerted respondent to this hazard. First, there was a wall within 11 feet of the excavation; second, the wall was "free-stranding"; third, the soil being excavated was primarily soft fill-material n4 and the ground in the area was wet and [*6] "soggy" due to recent precipitation; n5 and fourth, the excavation was being performed through the operation of an 18 1/2 ton track-mounted backhoe that would create a certain amount of vibration transmitted through the soil to the wall.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n4 Respondent's foreman, the operator of the backhoe, testified:
A. If you are digging in hard dirt, you need the full power of the machine to dig. But fill dirt, you only need half a throttle and that will give all the power you need to dig. That is all I needed in there. It was all fill dirt.
* * *
Q. Are you saying that the dirt itself that you were excavating was very soft?
A. Yes.
Q. It was not hard ground?
A. It was not rigid ground. It was fill dirt.
Q. Now, this trench was how far from the wall?
A. 11 feet.
n5 Relevant to the ground condition the foreman testified:
Q. . . . On the Monday that this wall collapsed, what was the condition of the ground?
A. It was wet, soggy, for it rained on the weekend.
Q. Would you say that it was extremely wet and soggy?
A. Yes, the top of the ground was very wet and soggy.
- - - - - - - - - [*7] - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
After describing the conditions contributing to the presence of a hazard, the witness was pointedly asked:
Q. Farther, Mr. Farrar, do you have an opinion whether the crew of the SSC Corporation, as utility subcontractor, should have recognized the danger prersented by this wall on October 1st?
A. Yes, I do.
Q. What is that opinion?
A. I felt that they should have recognized it (emphasis added).
This expert's belief that the hazard involved was recognizable and the reasons supporting this belief were repeated several times throughout his testimony.
In support of its contrary assertion that the hazard is not recognized in the industry, respondent points to statements made by two employees and an officer of the corporation to the effect that they personally did not feel that the wall posed any threat to their safety.
We accept the presiding Judge's assessment of the evidence. We find unconvincing respondent's argument that the presiding Judge erred in giving credence to the testimony of the Secretary's witness because he did not have first-hand knowledge of the worksite. First-hand knowledge is not critical [*8] to this opinion testimony. Fed. Rules Evid. Rule 703, 28 U.S.C.A. The photographs in evidence were sufficient basis for his testimony.
The evidence also shows that the potential hazards involved in excavating adjacent to existing walls were known to respondent. That is to say the hazards were "recognized" within the meaning of section 5(a)(1). This is clear from the following testimony by respondent's vice president:
Q. Would the fact that this trench which has been testified would have been less than 3 feet deep have entered into the considerations of determining whether that wall was a hazard or not a hazard?
A. Yes.
Q. Would you elaborate more on that in terms of if the trenching had been deeper?
A. If the trenching would have been deeper, there is a question as to whether you are going to go below the support of the wall.
I have had that in work in the city around existing buildings, the buildings are structurally sound, but you are worried about underpinning the footings at that point . . .
* * *
Q. Would the fact of the ground consistency closer to the wall have influenced the change in your opinion this was not a hazard?
A. Do I understand you correctly [*9] to say the ground condition?
Q. The ground condition between the trench and the wall itself.
A. I would have to say that that would be a condition.
Q. And would you also say that if the ground were more firm, that this would mean that there was less of a hazard?
A. There would be a less hazard of the wall collapsing if the wall were firm.
Q. The farther--would you also say the farther you get from the base of the wall that a less effect that would have on the wall itself?
A. I would say yes.
Q. Would you consider the fact that this trench was 11 feet from the wall as minimizing the hazard of the wall to your men, working on the site?
A. You are saying minimizing. Just at the position we were at I did not consider it a hazard.
I couldn't sit down and equate the wall is 10 feet high, it was 11 feet from the trench, does that constitute a hazard.
If the wall were 15 feet high, it may have registered on a hazard. But as I saw the wall, it did not appear hazardous to me (emphasis added).
The testimony shows that respondent as a member of the industry was aware of the dangers involved when excavating adjacent to walls. Having known this much, it should [*10] have more carefully investigated the actual condition of the wall involved to determine the extent of the threat of collapse posed by this wall. A visual examination revealed that the wall was not braced nor shored, and a short walk would have revealed that it had neither corner supports nor was it connected to any other wall. n6 If this had been done the danger of proceeding with the excavation would have been obvious. n7 The safety of employees cannot be made to depend on the correctness of the employer's initial impression that a generally known hazard is not presented by the particular situation present at the worksite. Under section 5(a)(1) an employer is required to discover and exclude from the workplace preventable hazards. Getty Oil Company v. O.S.H.R.C. and Dept. of Labor, No. 75-1828 (5th Cir. April 23, 1976).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n6 Respondent's vice-president testified as to why he did not recognize this wall to be free-standing at the time:
WITNESS: . . . Even though a corner may not have been tied in, there may be another wall behind it that you can see and it just all looks like one long wall, Your Honor.
I did not recognize it as a free-standing wall.
JUDGE HARRIS: The wall actually was not tied in, isn't that so?
WITNESS: That is what I understand at this time. I was not aware at that time.
JUDGE HARRIS: But had you known the wall was not tied in at that time, would you have considered it free-standing?
WITNESS: I would have considered it free standing if I had known it was not tied in.
n7 See note 4, supra.
[*11]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The Secretary suggested the feasible measures that respondent could have taken to ensure that its employees were not exposed to the risk of serious physical harm or death. National Realty, supra. Before respondent proceeded to excavate next to this unsupported wall it should have brought this hazardous condition to the controlling contractor's attention so that the necessary steps to eliminate the hazard could have been undertaken. n8 By not doing so, and by choosing instead to proceed with the excavation, respondent has violated section 5(a)(1) of the Act.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n8 Contract documents introduced into evidence showed that another sute contractor had the contractual responsibility for supporting the wall. The Contract between the general contractor and the masonry subcontractor provided:
Wall propping -- extreme care and proper prevention measures must be taken so as not to damage, bulge, or tip walls due to equipment and/or earth pressure. Shoring, back propping or other suitable methods of protection shall be employed until the full load of the building is on the walls.
It is clear that this provision was not being complied with and if the existence of a free-standing wall was brought to the general contractor's attention the situation would most likely have been promptly remedied.
[*12]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The Secretary had proposed a penalty of $550 for this violation. Judge Harris assessed a penalty of $750. n9 We accept the Secretary's advice as represented by his proposal, and assess a penalty of $550.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n9 Review in this case was also directed on the issue of whether the Judge erred in assessing a higher penalty than that proposed by the Secretary. The power of the Commission to increase the penalty has been upheld in numerous cases. See, e.g., Clarkson Constr. Co. v. O.S.H.R.C., No. 75-1070 (10th Cir., January 21, 1976); Dan J. Sheehan Co. v. O.S.H.R.C., 520 F.2d 1036 (5th Cir. 1975); California Stevedore & Ballast Co. v. O.S.H.R.C., 517 F.2d 986 (9th Cir. 1975).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Accordingly, the Judge's decision finding respondent in serious violation of section 5(a)(1) of the Act is hereby affirmed and we assess a penalty of $550.
It is so ORDERED.
DISSENTBY: MORAN
DISSENT:
MORAN, Commissioner, Dissenting:
The evidence in this case shows only [*13] that a wall - over which this respondent had no control - collapsed for reasons which were unknown. Such evidence is insufficient to establish that the alleged violative condition is a "recognized hazard" as contemplated in 29 U.S.C. § 654(a)(1). If there were evidence that respondent's activities caused the wall to collapse, and that respondent knew - or should have known - that its activities posed a hazard which would result in the potential collapse of the wall, complainant would have carried its burden of proof. Such evidence, however, is absent from this record.
A condition is a recognized hazard when it is commonly known to be a hazard by the public in general or in the cited employer's industry. See National Realty and Construction Company, Inc. v. OSAHRC, 489 F.2d 1257, 1265 n. 32 (D.C. Cir. 1973). The respondent in this case is a member of the underground utility industry. The evidence does not establish that the cited condition is a recognized hazard in that industry or any other industry which is engaged in digging trenches for a similar purpose, n10 nor does it establish that the condition is recognized as a hazard by the public in general.
- - - - - [*14] - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n10 Requiring such proof is consistent with Commissioner Cleary's position that a violation under 29 U.S.C. § 654(a)(1) cannot be affirmed unless complainant proves that the alleged hazard is "a 'recognized hazard' in respondent's industry." Secretary v. Pratt & Whitney Aircraft, A Division of United Aircraft Corp., 15 OSAHRC 189, 195 (1975) (concurring opinion) (emphasis added).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The wall in question had been constructed by a masonry subcontractor. This subcontractor had failed to shore or otherwise support the wall as its contract with the general contractor required. Complainant has conceded that respondent had no knowledge of the masonry subcontractor's failure to fulfill its contractual obligation and had no responsibility to shore or brace the wall itself. The fact that respondent did not create the hazard and was not responsible therefor is another indicator that the cited condition was not a "recognized hazard" as far as this respondent is concerned. n11
- - - - - - - - - - - - - - - - - -Footnotes- - - - [*15] - - - - - - - - - - - - - -
n11 See also Anning-Johnson Company v. OSAHRC, 516 F.2d 1081 (7th Cir. 1975).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Respondent's employees had commenced work at this site thirty days before the wall collapsed. The wall had been constructed before the arrival of respondent's employees at the site and, prior to collapse, and shown no sign of weakness at anytime during the period that respondent's employees had been at the site.
Respondent's foreman testified that, although this wall was unusual because it was not cornered (attached to adjoining walls at its ends), this fact did not lead him to suspect that the wall posed a hazard. Lack of bracing also had not aroused his concern because he had excavated in the vicinity of walls that were not braced many times during his long experience in construction work and none had ever collapsed.
Complainant contends that while respondent, who does not construct walls, may not have known the wall was hazardous, n12 the fact that it was unusual for a wall of this nature not to be cornered should have led respondent to question how it was supported. [*16] Complainant suggests that respondent's foreman "could have pursued his instinctive reaction that it was unusual for a wall of such dimensions to be standing free," and made inquiries of the subcontractor who built the wall. Complainant gives as his further opinion that "[i]nasmuch as that [the masonry] contractor knew such walls should have been braced or supported . . . not only would the information as to the hazards presented by the wall be forthcoming, but in all probability the condition would have been corrected."
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n12 In response to requests for admissions, complainant admitted that it did not know what caused the wall to collapse and that an inspection of the scene of the accident had revealed that the footing of the collapsed wall had not moved or shifted. Although what caused the wall to fall is not at all clear from this record, the fact that the footing did not shift suggests that the collapse was not caused by the pressure of earth against the footing of the wall created by the nearby excavation.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
An [*17] employer's failure to pursue his instincts is not grounds - under the law as it presently exists - for finding an employer in violation of 29 U.S.C. § 654(a)(1). This is particularly true where, as here, the observation involves a condition about which the cited employer has no expertise. Moreover, complainant's assertion that, if an inquiry were made, the masonry contractor would have confessed that the wall was not properly constructed is sheer speculation.
The foregoing is not the only inadequacy of proof in this case. Complainant's expert witness, whose testimony served as the basis for the finding that respondent should have recognized that the wall posed a hazard, never visited the scene of the accident and based his testimony largely on photos made available to him by respondent on the day of the hearing. While it is not necessary that an expert have firsthand knowledge of the facts on which his opinion is based, it is essential that his opinion be based on accurate and complete facts.
This was not always the case with this witness' testimony. For example, the witness testified that the fact that the soil at the worksite was soft fill was an important factor in making [*18] excavation near the wall hazardous. He further stated that the consistency of the soil immediately adjacent to the wall was of greatest significance for the stability of the wall. When questioned on cross-examination about how he had reached the conclusion that the soil was soft fill, he stated that he based his conclusion on the testimony of respondent's foreman that the soil adjacent to the wall, as well as in the area where the trench was being excavated, was soft fill. While the foreman had stated that the soil being excavated was soft fill, he had testified that he did not know the composition of the soil near the wall.
The citation in this case would never have issued if the wall had not collapsed. The National Realty case makes it clear that complainant can only establish a § 654(a)(1) violation where he shows what measures the cited employer should have taken to avoid citation plus the feasibility and likely utility of those measures. In this case complainant maintains that respondent should have (a) suspected that the wall might collapse and (b) told the masonry contractor about it. However, even if the masonry contractor had, as a result of this, supported the [*19] wall in accordance with his contract, there is no evidence that the wall would not have collapsed in the same manner. There being no evidence as to why the wall collapsed the record is insufficient to show the "likely utility" of the measures proposed by complainant to avoid citation.
The purpose of this Act is to reduce workplace hazards. If we do not know what causes accidents, we cannot institute effective countermeasures. That is the message of National Realty. The Act is not designed to punish employers but to tell them what they must do to prevent them. Diamond Roofing Co. v. OSAHRC, 528 F.2d 645, 650 (5th Cir., 1976). Consequently, in the absence of evidence of measures which, if taken, would have prevented collapse of the wall which caused the accident in this case, this proceeding has no relevance to the purposes of the Act.
The burden of proving an alleged violation rests with complainant. 29 C.F.R. § 2200.73. See also 29 U.S.C. § 659(c); 5 U.S.C. § § 554 and 556(d). Proof should be clear and convincing and a violation must be established by facts and not assumptions. Secretary v. Ellison Electric, 1 OSAHRC 547, 553 (1972). In my view, [*20] the evidence in this record is not adequate to satisfy this burden. n13
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n13 As the Commission in this case has assessed a penalty of $550, the same amount that had been proposed by complainant, the issue of whether the Judge erred in assessing a higher penalty is now moot. I do wish to point out, however, that I continue to hold the view that neither the Commission nor its Judges may properly assess a penalty higher than that proposed by the complainant. See my dissenting opinion in Secretary v. Chicago Bridge and Iron Company, 13 OSAHRC 356 (1974), and my other separate opinions cited therein.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -