DORE WRECKING COMPANY
OSHRC Docket No. 597
Occupational Safety and Health Review Commission
January 24, 1974
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Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: VAN NAMEE
OPINION:
VAN NAMEE, COMMISSIONER: This matter is before the Commission upon my order directing review of a decision of Judge Paul E. Dixon. Judge Dixon, inter alia, affirmed four items of Complainant's citation charging non-serious violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") for violating regulations promulgated pursuant to the Act. He assessed penalties totaling $460 for these violations.
Upon review of the entire record we find that the Judge erred in affirming item no. 4 of the citation and in his assessment of penalties for items nos. 2 and 3. The Judge's decision is adopted only to the extent it is consistent with this decision.
ITEM NUMBER FOUR
The Judge concluded that Respondent committed a non-serious violation of section 5(a)(2) of the Act by failing to comply with the standard published at 29 C.F.R. 1926.102(a)(1). n1 We do not agree.
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n1 The cited standard provides: "Employees shall be provided with eye and face protection equipment when machines or operations present potential eye or face injury from physical, chemical, or radiation agents."
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The operator of a pneumatic drill was drilling blast holes into the wall of the building at about eye level and was not wearing eye protection. He was not an employee of Respondent. n2 Rather, he was employed by a subcontractor of Respondent. There is no evidence that Respondent exercised control over this employee. There is no evidence that any employee of Respondent was exposed to a hazard caused by the alleged violation.
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n2 The Judge construed Respondent's superintendent's failure to deny during the inspection that the employee involved was an employee of Respondent as an admission. We think this was an error. Moreover, Respondent's superintendent could not have admitted what is a legal conclusion to be drawn from surrounding facts. Even had he affirmatively stated that the employee was employed by Respondent, we would not be obliged to apply an erroneous legal conclusion to the facts of record and thereby to ignore the record.
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Our subsequent decision in Gilles and Cotting, Inc., BNA 1 O.S.H.R. 1388, CCH Employ. S. & H. Guide para. 16, 793 (October 9, 1973), is dispositive of this issue. For the reasons therein stated, we reverse the Judge and vacate this item of the citation.
PENALTIES FOR ITEMS TWO AND THREE
The Judge correctly found Respondent in non-serious violation of section 5(a)(2) for failure to comply with the requirements of 29 C.F.R. 1926.152(a)(1) n3 (item 2) and 29 C.F.R. 1926.350(a)(7) n4 (item 3).
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n3 The cited standard provides, in pertinent part: "Only approved containers and portable tanks shall be used for storage and handling of flammable and combustible liquids . . . For quantities of one gallon or less, only the original container or approved metal safety cans shall be used for storage, use, and handling of flammable liquids."
"Approved" is defined as "equipment that has been listed or approved by a nationally recognized testing laboratory such as Factory Mutual Engineering Corp., or Underwriters' Laboratories, Inc., or Federal agencies such as Bureau of Mines, or U.S. Coast Guard, which issue approvals for such equipment." 29 C.F.R. 1926.155(a).
A "safety can" is "an approved closed container, of not more than 5 gallons capacity, having a flash-arresting screen, spring-closing lid and spout cover and so designed that it will safely relieve internal pressure when subjected to fire exposure." 29 C.F.R. 1926.155(1).
n4 The cited standard provides: "A suitable cylinder truck, chain, or other steadying device shall be used to keep cylinders from being knocked over while in use."
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In assessing penalties for these violations the Judge considered the four criteria specified in section 17(j) of the Act. We concur with his conclusions as to Respondent's size, its good faith, and its history of previous violations. We find, however, that the Judge erred in his determination of the gravity of the violations. We reduce his assessments as follows.
ITEM NUMBER TWO
A can used by Respondent for storing gasoline was not an approved safety can as required by the cited standard. The can contained only a small quantity of gasoline (approximately one gallon) and was located in an open area of Respondent's worksite. It was unlikely that the can could ignite, and because it was in the open, explosion was an even more remote possibility. We thus conclude that the violation is of such low gravity that assessment of a penalty is inappropriate. This case is similar to General Meat Co., Inc., BNA 1 O.S.H.R. 1032, CCH Employ. S&H. Guide para. 15, 098 (1972) and J.E. Chilton Millwork and Lumber Company, Inc., BNA 1 O.S.H.R. 1034, CCH Employ. S.&H. Guide para. 15,069 (1972), in which we [*5] vacated small monetary penalties for non-serious violations of very low gravity on the ground that such penalties do little to effectuate the purposes of the Act.
ITEM NUMBER THREE
The record establishes that unsecured gas cylinders being used by Respondent's employee to cut metal might be toppled over as the welder moved the torch and hoses from one position to another. Since the cylinders were in use, the valve protective caps were removed. Should a cylinder fall, the valve could be knocked off, releasing the pressurized gas and causing the cylinder to become a high velocity projectile which could injure anyone in its path.
On balance, we think the gravity of the violation low. Before injury could occur, a number of things need happen. The cylinders must fall; they must fall in such a way as to strike the valves; they must fall with sufficient force to knock off a valve; and one or more employees must be standing in the path of the cylinder. It is apparent that the probability of all these things occurring together is slight.
Complainant through the Area Director n5 proposed a penalty of $120 for this violation. This proposal was affirmed by the Judge. We think [*6] $120 is too high and that a penalty of $30 is appropriate. n6
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n5 Warren Wright
n6 We have assessed penalties for similar violations in other cases, and we are familiar with Complainant's proposals of penalties through this and other Area Directors. Our assessments and their proposals for these violations have ranged from $30 to $50. Mr. Wright's proposals have consistently been excessive.
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Accordingly, it is ORDERED that the decision of the Judge is modified as follows:
1. that part of the citation alleging a violation of 29 C.F.R. 1926.102(a)(1) is vacated;
2. no penalty is assessed for violation of 29 C.F.R. 1926.152(a)(1); and
3. a penalty of $30 is assessed for violation of 29 C.F.R. 1926.350(a)(7).
In all other respects the decision of the Judge is affirmed.
CONCURBY: CLEARY (In Part)
DISSENTBY: CLEARY (In Part)
DISSENT:
CLEARY, COMMISSIONER concurring in part and dissenting in part: The record discloses testimony by respondent's president that the drill operator in question is not an employee of respondent. This evidence, [*7] in my view, rebuts the Secretary's prima facie case of employee exposure, made out upon a showing of a violation where respondent has employees engaged in the general workplace.
Respondent's function was to remove the building debris subsequent to its demolition by explosives, a separate function performed solely by the specially skilled subcontractor for whom the drilling was being performed. There is no preponderant evidence either of exposure of respondent's employees to the hazard or of control by respondent over the subcontractor's operation or personnel. On the basis of these facts, I concur with the disposition of this item but not with any reading of Gilles and Cotting to the effect that a prime contractor may not be responsible under the Act for violations created by subcontractors. n7
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n7 The Act is remedial in nature, and there may be situations wherein the legislative purposes may be effectively achieved only by finding a joint and several responsibility of the prime contractor and a subcontractor regarding the duties of an "employer."
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ITEMS NUMBER TWO AND THREE
With respect to the penalty assessments, I would affirm the Secretary's proposed penalties for the reasons assigned by his representative. Item Number two involves the use of a non-conforming five gallon can containing approximately one gallon of gasoline. The can had none of the required safety devices that prevent accidental spilling, hold gasoline evaporation to a minimum, and release built up pressure if exposed to heat. The fact that, as stated by the majority, "only a small quantity of gasoline" was contained in the can is not of primary importance regarding the probability of an accident occurring. The record contains evidence that gasoline vapor in an unapproved container creates the hazard of explosion. The record also contains unrebutted testimony that using this container to fill the gasoline -- operated compressor, "especially while it may be running would pose a hazard to the employee." I believe that this hazard, unlike those in the cases relied upon by the majority, is of sufficient gravity to warrant assessment of a penalty. On the basis of the criteria of section 17(j), the proposed [*9] penalty of $120 is appropriate.
With respect to item number three, the majority's description of the events that must occur before there is a possibility of an accident is strained, and the conclusion that the sequence of events "occurring together is slight" would make the need for the standard unnecessary.
The record evidence is that the cylinders were free-standing, that hoses were attached, and that they were in use. This existing situation presented the possibility that they could be pulled over by the movement of the hoses. The cylinders each weighed approximately 100 pounds and thus need only have fallen on an employee to cause injury. Further, the assertion of the majority that "employees must be standing in the path of the cylinders" in order to be injured is a simplification of the likely consequences of a cylinder becoming a "land torpedo." For these reasons, I believe that hazard to be of such gravity as to require the assessment of a penalty. I would affirm the Secretary's proposed penalty. n8
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n8 The Commission assesses penalties on the basis of section 17(j) of the Act. The majority's reference in footnote 6 to an Area Director's assertedly "consistently . . . excessive" proposed penalties is outside the record and, in any event, irrelevant.
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[The Judge's decision referred to herein follows]
DIXON, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting a Citation issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act. The Citation alleges that as the result of the inspection of a workplace under the ownership, operation or control of the respondent, located at Omaha, Nebraska and described as follows, 27th & Q Streets, Dore Wrecking Co., the Respondent has violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.
The Citations, which were issued on February 23, 1972 allege that the violation results from a failure to comply with the following standards promulgated by the Secretary by publication in the Federal Register and codified in 29 CFR as follows, along with the description of the alleged violation on said Citation.
NON-SERIOUS
Item [*11] 1; 29 CFR 1926.350(a)(9); Vol. 36, Fed. Reg. No. 75; April 17, 1971 Formerly Part 1518:
Violation: Seven (7) acetylene cylinders and two (2) oxygen cylinders stored in an unsecure manner (not attached or chained), and subject to being tipped or knocked over. Storage area north of office trailer. (All employees) Proposed Penalty: $120.00
The STANDARD as promulgated by the Secretary provides as follows:
Subpart "J" -- Welding and Cutting
1518.350 -- Ventilation and protection welding, cutting, and heating.
(7) a suitable cylinder truck, chain or other steadying device shall be used to keep cylinders from being knocked over while in use.
(9) Compressed gas cylinders shall be secured in an upright position at all times except, if necessary, for short periods of time while cylinders are actually being hoisted or carried.
Item 2; 29 CFR 1926.152(a)(1); Vol. 36, Fed. Reg. No. 75, April 17, 1971, Formerly Part 1518.152(a)(1):
Violation: Unapproved five gallon metal can used to handle gasoline. Can contained approximately one (1) gal. of gasoline at time of inspection. East side of building by large portable air compressor. (One employee) Proposed Penalty: $120.00 [*12]
The STANDARD as promulgated by the Secretary provides as follows:
Section 1518.152 -- Flammable and Combustible Liquid.
(a) General requirements.
(1) Only approved containers and portable tanks shall be used for storage and handling of flammable and combustible liquids. Approved metal safety cans shall be used for the handling and use of flammable liquids in quantities greater than one gallon, except that this shall not apply to those flammable liquid materials which are highly viscid (extremely hard to pour), which may be used and handled in original shipping containers. For quantities of one gallon or less, only the original containers or approved metal safety cans shall be used for storage, use and handling of flammable liquids.
Section 1518.155(1) -- "Safety Can" means an approved closed container, of not more than five gallon capacity, having a flash-arresting screen, spring-closing lid and spout cover and so designed that it will safely relieve internal pressure when subjected to fire exposure.
Item 3; 29 CFR 1926.350(a)(7); Vol. 36, Fed. Reg. No. 75; April 17, 1971, Formerly Part 1518:
Violation: One (1) oxygen and one (1) fuel cylinder being used in the [*13] cutting operation were not chained or otherwise secured to prevent them from being knocked over while in use. East side of building. (One employee) Proposed Penalty: $120.00
The STANDARD as promulgated by the Secretary provides as follows:
Section 1518.350 -- Ventilation and protection in welding, cutting and heating.
(a) Transporting, moving, and storing compressed gas cylinders.
(7) a suitable cylinder truck, chain or other steadying device shall be used to keep cylinders from being knocked over while in use.
Item 4; 29 CFR 1926.102(a)(1); Vol. 36, Fed. Reg. No. 75; April 17, 1971:
Violation: Operator of pneumatic drill drilling load holes for explosive, not provided eye protection to guard him from flying concrete chips and particles. First floor inside on east side of building. (One employee) Proposed Penalty: $100.00
The STANDARD as promulgated by the Secretary provides as follows:
Section 1518.102 -- Eye and face protection.
(a) General.
(1) Employees shall be provided with eye and face protection equipment when machines or operations present potential eye or face injury from physical, chemical or radiation agents.
Item 5; 29 CFR 1926.50(b) -- Deleted from [*14] Complaint.
Item 6; 29 CFR 1926.850(a); Vol. 36, Fed. Reg. No. 75; April 17, 1971, Formerly Subpart "T" -- Section 1518.850:
Violation: A written engineering survey determining the structural safety of the building before the start of the demolition operation was not available. General area. (All employees) Proposed penalty: $100.00
The STANDARD as promulgated by the Secretary provides as follows:
Section 1518.850 -- 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 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 also be similarly checked. The employer shall have in writing, evidence that such a survey has been performed.
SERIOUS VIOLATIONS
Citation No. 1; 29 CFR 1926.604(a)(2)(i)(ii); Vol. 36, Fed. Reg. No. 75; April 15, 1971, Formerly Part 1518.604:
Violation: Two-983 caterpillars not provided with overhead and rear canopy guards to protect operators from falling material from building being demolished. [*15] (One employee) Proposed Penalty: $800.00
The STANDARD as promulgated by the Secretary provides as follows:
Section 1518.604 site clearing.
(a) General Requirements
(2) All equipment used in site clearing operations shall be equipped with roll over guards meeting the requirements of this subpart. In addition, rider operated equipment shall be equipped with an overhead and rear canopy guard meeting the following requirements.
(i) The overhead covering on this canopy structure shall be of not less than one-eighth inch steel plate or one-fourth inch woven wire mesh with openings no greater than one inch, or equivalent.
(ii) The opening in the rear of the canopy structure shall be covered with not less than one-fourth inch woven mesh wire with openings no greater than one inch.
Citation No. 2; 29 CFR 1926.500(f)(5)(i); Vol. 36, Fed. Reg. No. 75; April 15, 1971, Formerly Part 1518.800:
Violation: Four (4) open manholes large enough for a man to fall into, in excess of five (5) feet deep, and not protected. This condition also creates a hazard for working vehicles using the area wherein. Roadway north of demolition site. (All employees)
Proposed Penalty: $800.00 [*16]
The STANDARD as promulgated by the Secretary provides as follows:
Section 1518.800 -- Tunnels and shafts.
(4) Access to unattended underground opening shall be restricted by gates or doors. Unused chutes, manways, or other openings shall be tightly covered, bulkheaded, or fenced off, and posted. Conduits, trenches and manholes shall meet the requirements of Subpart "M" of this part.
Citation 3; 29 CFR 1926.800(a)(4); Vol. 36, Fed. Reg. No. 75; April 17, 1971, Formerly Subpart "S" Section 1518.800:
Violation: Two (2) open manholes to sanitation sewer, approximately fifteen feet deep. This area is used as a walkway for most all personnel on job site. Openings are also hard to distinguish because of debris in the area. West side of demolition site.
The STANDARD as promulgated by the Secretary provides as follows:
Section 1518.800 -- Tunnels and Shafts
(a) General.
(1) The specific requirements of this Subpart "S", Tunnels, Shafts, Caissons, Cofferdams and Compressed Air, shall be complied with as well as the applicable provisions of all other subparts of this part.
(4) Access to unattended underground openings shall be restricted by gates or doors. Unused chutes, [*17] manways, or other openings shall be tightly covered, bulkheaded, or fenced off, and posted. Conduits, trenches, and manholes shall meet the requirements of Subpart "M" of this part.
Citation 4; 29 CFR 1926.854(b); Vol. 36, Fed. Reg. No. 75; April 15, 1971, Formerly Part 1518:
Violation: Masonry walls in excess of one (1) story in height were permitted to stand alone without lateral bracing. Walls were not self supporting, or not in a stable condition, and are subject to potential collapse, thereby subjecting employees in area to possible injury. Left side of site. Proposed Penalty: $800.00
The STANDARD as promulgated by the Secretary provides as follows:
Section 1518.854 -- Removal of walls, masonry sections and chimneys.
(b) No wall section, which is more than one story in height, shall be permitted to stand alone without lateral bracing, unless such wall was originally designed and constructed to stand without such lateral support, and is in a condition safe enough to be self supporting. All walls shall be left in a stable condition at the end of each shift.
Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified [*18] by letter dated February 23, 1972, from Mr. Warren Wright, Area Director of the Seventh Region Area, Occupational Safety and Health Administration, U.S. Department of Labor that there was proposed to assess penalties for the aforementioned violations alleged in the amounts heretofore mentioned or in the total amount of $3,840.00 for both non-serious and serious violations.
After Respondent contested this enforcement action, and a Complaint and Answer had been filed by the parties, the case came on for hearing at Omaha, Nebraska on July 18, 1972.
THE EVIDENCE
29 CFR 1926.350(a)(9). Mr. Gale Adams, compliance officer, U.S. Department of Labor, Occupational Safety and Health Administration, in his duties as compliance officer, along with Mr. Oscar DiSilvestro, chief compliance officer, made an inspection of Respondent, Dore Wrecking Company's operations at the site of the old Swift Packing House at 24th & Q Streets in Omaha, Nebraska following a complaint pertaining to working conditions at the job site.
The officers identified themselves and were referred to a Mr. Warner Paas, job superintendent for Respondent, presented him with a copy of the Complaint, and explained [*19] their purpose to investigate the Complaint and survey the job site.
Upon inspection, Mr. Adams observed immediately north of Respondent's office, nine gas cylinders, consisting of seven acetylene and two oxygen cylinders stored in a vertical position and not secured. During the course of the inspection other cylinders were delivered and put in the same area of the office which consisted of a trailer on the job site. The hazard presented was described by Mr. Adams as being a hazard of the cylinders falling over, with each weighing approximately 100 pounds and being 54 inches in height and approximately nine inches in diameter and which, if striking an employee could cause injury. With reference to oxygen cylinders, Mr. Adams noted that compressed oxygen has in excess of 2200 pounds per square inch and if a cylinder were knocked over and the valve knocked loose the cylinder would become a projectile. With respect to acetylene cylinders he noted that acetylene is an unstable gas with acetone added to the cylinder to stabilize the acetylene and if it were knocked over and left in horizontal position the acetone could run out through the vent leaving only acetylene which could be [*20] considered explosive under certain circumstances. There was one employee in the trailer. Mr. Adams was of the opinion Respondent could easily have welded vertical piping onto a wide flat base which could be anchored to the ground or chain the cylinders or drive a pipe into the ground and attach the cylinders by means of a chain. It was Mr. Adams' opinion that the standard involved did not distinguish between full or empty compressed gas cylinders.
Mr. Adams had been to the construction site on two other occasions but there were labor problems involved and he did not make a survey because of this at those respective times. It was his opinion that the cylinders would weigh approximately the same whether full or empty and that exhausted cylinders are never completely empty depending on the atmospheric pressure. He did not make a determination as to whether the cylinders were empty or full at the time of the inspection noting there were two locations at the job site, one location for full ones and one for empty ones.
The truck delivering gas cylinders in the area referred to as the "area of the full cylinders," were in addition to the cylinders observed by Mr. Adams on [*21] the east side of the building. The cylinders did not have protective caps over them. The seven acetylene cylinders were not all capped. Mr. Adams noted some empty cylinders lying in a horizontal position and some standing up. His judgment as to these cylinders being empty was not based on personal inspection but upon the assumption that the truck driver was delivering full cylinders. He could not tell as to the cylinders already at the job site as to whether or not they were full or empty but was certain that they were unsecured.
Mr. Arthur P. Dore, President of the Dore Wrecking Co. referred to Mr. Paas as his superintendent at the job site and expressed familiarity with the amount of acetylene and oxygen used in his operations there. It was Mr. Dore's judgment that the cylinders present and observed by the compliance officers at the time of their inspection were empty in as much as his company would receive delivery of full cylinders within a matter of an hour or so of need. It was Mr. Dore's judgment his operations did not use enough acetylene and oxygen to warrant storing 14 cylinders in that the Respondent's employees cut up the scrap after the buildings were [*22] on the ground so that the scrap could be loaded in trucks and in his estimation they would use three cylinders a day. Mr. Dore exlained that when a tank of oxygen is empty the bell is left open and regulators and gauges are taken off. Full cylinders are delivered with the valve closed and are checked by turning the valve to determine if there is pressure. He had no knowledge as to whether or not the cylinders in question were marked as empty or not although it is common procedure to mark empty tanks, nor did he have any personal knowledge that the nine cylinders referred to were empty or that they were being picked up at the time of the delivery of the other cylinders.
29 CFR 1926.152(a)(1). Mr. Adams, during the course of this inspection, found a can, not of an approved type, to hold flammable liquid of a five gallon capacity with approximately one gallon of gasoline within the can. The can did not have a self-closing spring loaded cap to cover the pouring spout which holds the evaporation of the contents to a minimum and prevents accidental spilling and also acts as a pressure release valve in case the can is exposed to fire. Nor did the can have a flash arresting screen [*23] in the pouring spout. The can was located on the east side of the building next to a gasoline air compressor with the further observation that there were employees in the area. Mr. Adams explained the hazards of such a can in that in case of fire without a self-closing top, the top would have to be replaced manually and if exposed to fire the cap would not automatically relieve the pressure and the can could explode. It was Mr. Adams' judgment that any safety supply house would have had an approved gasoline can and they were readily availabile in the Omaha area.
Mr. Dore spoke to his superintendent, Mr. Paas with reference to the gasoline can and was advised by Mr. Paas that he had gone to a gasoline station and purchased five gallons of gas in a red can which was marked "gasoline."
29 CFR 1926.350(a)(7). Mr. Adams observed the use of one oxygen and one fuel cylinder attached to a welding torch by a hose with the cylinders unsecured in the same fashion as the cylinders outside the Respondent's office and noted the danger of a welder moving about creating the hazard of pulling the cylinders over. While used during a cutting operation, the protective caps are removed [*24] leaving the valves exposed increasing the hazard potential. He noted the cylinders were not secured in any way and were standing upright in a vertical position. He felet the problem could have been corrected by a couple of anchor bolts in a fixed wall close by to where they were working with a chain about the cylinders or the use of a commercial cart for attaching cylinders which were readily available.
29 CFR 1926.102(a)(1). A pneumatic dril was being operated inside the building on the first floor drilling blast holes for the placing of dynamite at a level of approximately 4 to 5 feet above floor level. The holes were being drilled horizontally with Mr. Adams observing the person drilling having no eye protection on his person or about his neck or in the immediate area. There was evidence of particles and flying chips of concrete which Mr. Adams felt could cause serious impairment or injury to the eye. In his opinion safety glasses were readily available in the Omaha area. Mr. Paas was with Mr. Adams at the time of his observation and when Mr. Adams inquired of Mr. Paas about the employee, Mr. Paas made no mention that the employee was not his employee. Mr. Adams [*25] made the assumption upon his lack of response that the driller was an employee of the Dore Wrecking Company. Mr. Adams had no knowledge that there were other subcontractors on the job site at that time. He did not ask the affected employee as to whom he worked for nor did he know whether or not goggles had been supplied to the employee. Mr. Adams was familiar with the fact that Control Demolition was actually doing the explosive work and had talked to supervisors from Control Demolition. He noted the man drilling was drilling holes for explosives. Mr. Adams was not made aware of the fact that there was an Anderson Excavating Company involved in the project as a subcontractor to Dore Wrecking in that Mr. Paas was the only source of information he had while conducting the inspection.
Mr. Dore testified that his company had the contract to demolish the Swift Packing Company and that he had several subcontractors on the site along with the City of Omaha. Control Demolition of Towson, Maryland, was a subcontractor which specialized in demolition of buildings with explosives and were responsible for the actual dynamiting at the site in Omaha. They were to put the buildings on the [*26] ground for a lump sum. They provided their own employees on the job site in Omaha including the necessary drilling and it was Mr. Dore's impression that if an employee was drilling load holes he would be an employee of Control Demolition. Mr. Dore testified they do not advise their superintendents about everything on the job. The superintendent knows the buildings are going to be put on the ground and the superintendent's job is to pick them up, cart them away and to cooperate with the subcontractors. Mr. Dore's company provides goggles and eye equipment for its employees and Mr. Dore has attended a National Association of Demolition Contractors seminar wherein they were addressed by one of the Directors of Occupational Safety and Health Administration and from which ensued a letter (Respondent's Exhibit A) advising Respondent's employees of their obligation to adhere to the OSHA law along with a copy of the regulations.
29 CFR 1926.850(a). When Mr. Adams approached the job site and first spoke to Mr. Paas he inquired as to the availability of a written engineering survey to which Mr. Paas replied in the negative on two occasions. Mr. Adams noted that in tearing down [*27] a building it is important to know the type of walls involved to prevent overloading or collapsing while men were working in the immediate area or inside the interior. He described the survey as a blueprint for destruction of the building giving the job superintendent or whoever was in charge a guideline to follow. Mr. Adams felt the availability of such a survey would have shown him that the operation was going the same as it would have been described in the engineering survey. Mr. Adams commented that had Mr. Paas made mention that there was a survey at some other location he would have been given time to present the survey to the compliance office.
Mr. Dore testified that an engineering survey was made prior to beginning demolition as his company did on all buildings. By engineering survey, Mr. Dore described the operation of going through a building twice, with the estimators when they first looked at a job to bid the job, studying the building and making some drawings of the structure itself and then, if they are the successful bidder, the estimator and superintendent or an officer of the company goes through the building, discussing the matter of how the building [*28] should come down, whether there is something that might collapse or where would be the weakest point and where they are going to start wrecking. With reference to the instant case, Mr. Dore testified they brought in their subcontractor, Control Demolition, who in turn quoted an estimate for putting the building on the ground. Mr. Dore noted that in working with Control Demolition they had dropped several buildings in St. Louis and had been given a write-up in Life Magazine. Mr. Dore's company makes an engineering survey before they bid a job to determine the cost of bringing the building down. He testified his company had blueprints from Swift, Armour. The buildings were erected around 1890 and his company had pictures of horses pulling up the bricks which was about all he could get of a building 70 or 80 years old.
Mr. Dore was of the opinion that the few blueprints they found did not compare to the pictures showing the actual construction. His reports showed the type of building as a mill building, reinforced concrete structure and described the nature of the walls.
29 CFR 1926.604(a)(2)(i)(ii). Mr. Adams observed two caterpillars being used to remove debris and material [*29] that had been blasted loose from the structure previously. The caterpillars were model 983 and they were in some instances working within 5 to 10 feet of the building being demolished with overhanging debris, large slabs of concrete, as well as loose bricks in the immediate area. The caterpillars had no overhead protection and the operator was fully exposed to debris from overhead.
Mr. Adams took photographs (Government's exhibits G-1 through G-7) of the demolition site. The photographs were taken February 15 and at the time Mr. Adams was not aware other subcontractors were involved in the demolition. He was aware of personnel operating trucks and was of the understanding the trucks were hired by Respondent. This information was given him by Mr. Paas. Mr. Adams was aware of Control Demolition being a subcontractor but they were not in operation at the time of his inspection. Mr. Adams did not make inquiry of the caterpillar operators' employment nor did he have any proof of their employment. Mr. Adams did not know that the caterpillars were owned by Respondent.
Mr. Paas accompanied Mr. Adams during the inspection and Mr. Adams made inquiry of him as to other subcontractors [*30] and Mr. Adams was informed the truck drivers were being paid by Dore Wrecking. The operation of the caterpillars was pointed out to Mr. Paas as being a violation and Mr. Adams was advised that there was a canopy guard on the job site, several hundred yards from where the units were being operated but would not fit the units without modification. At the time of the inspection Mr. Adams made inquiry as to whether there were other subcontractors on the job of Mr. Paas who was the only employer representative contact on the job site. Mr. Adams gained the impression from Mr. Paas that the truck drivers reflected in the photographs were on Respondent's payroll in that they were paid so much a truckload. Mr. Adams' inspection had been precipitated by a written complaint pertaining to the operation of the caterpillars and with reference to the Dore Wrecking Co. The potential hazard described in such an operation without an overhead canopy was such that the operators could be struck by the falling of debris and sustain injury or death. Mr. Adams was of the opinion that overhead guards for caterpillars were generally available or they could be fabricated to meet the requirements of the [*31] Act.
Mr. Adams had no knowledge of an Anderson Excavating Co. having caterpillars on the site other than his conversation with Mr. Paas after furnishing him with a copy of the complaint referrable to the caterpillar operations. His judgments was based upon the fact that Mr. Paas after having been shown the complaint took the compliance officers to the area wherein the caterpillars were operating.
Mr. Dore testified there were other contractors on his job site at the time of the inspection February 15, 1972, enumerating the Hawkins Construction, Miller Excavating, Anderson Excavating and Wrecking Company and two or three outfits hauling scrap iron. The Dore Company also had six or seven caterpillars on the job site and Mr. Dore acknowledged the caterpillars in question could have been his if they were number 983's inasmuch as there were no other 983's around.
29 CFR 1926.800(a)(4). During the course of Mr. Adams' inspection he observed four manhole coverings located in the approximate center of the roadway along the north edge of the job site with one manhole approximately two feet in diameter and the other in the neighborhood of thirty inches with a depth of approximately [*32] five feet. The open manholes were fifty to 75 yards from the actual job site and located between the job site and a chemical toilet. There were no covers or guards upon or around the manholes. Mr. Adams did not observe any employees walking in the immediate area. He was of the opinion that the manholes were large enough that a man could fall into one and other than injury he could possibly be subjected to toxic acids as they were sanitary sewers. Mr. Adams further observed plenty of material on the job site which would have proved sufficient to have covered the manhole. Mr. Adams took two photographs of the situation as of February 15, 1972. (Government's Exhibits 3, 4 and 5 which depicted manhole openings leading to a sanitary sewer along the west side of the building being demolished, these particular manholes being approximately fifteen feet in depth.) No form of protection, or guarding or covering was for these particular manholes located within fifty feet of the building on the west side and with an observation of approximately five employees working in the area. It was Mr. Adams' judgment that two of the employees were truck drivers and the other employees [*33] connected with the demolition work. Mr. Adams also observed bulldozers operating in the immediate area. One hole was covered with a piece of carboard and this was pointed out to Mr. Paas who directed that the cardboard cover be removed.
Mr. Adams was of the opinion the manholes had been concreted or refinished but had no knowledge that another contractor had been employed by the City of Omaha to fix the manholes noting that at the time of his inspection there were no other employees exposed except those of Dore Wrecking.
Mr. Paas explained to Mr. Adams that the holes were being worked on but there was no work in progress at the time of Mr. Adams' inspection which constituted approximately two hours during a regular work day. The only people he observed working were people working on the demolition of the Swift building. Mr. Adams' was of the impression that the work being done on the manholes was not finished at the time of his inspection.
Mr. Dore was familiar with the area in which the manholes were located as reflected by Government's Exhibit 3 and testified the manholes were under construction when he started his job and were under construction at the time of the hearing. [*34] The contractor was Hawkins Construction Company. Mr. Paas had been injured by falling into a manhole during the preliminary inspection of the demolition site which consisted of 180 acres of buildings located among weeds six or eight feet high. Mr. Dore observed numerous manholes open all over the area and upon his placing iron over the manhole openings so called "junkies," who collect scrap iron would purloin the covers almost immediately. Police had been called to evacuate two persons picking up scrap iron and copper and Mr. Dore estimated he had made some 100 attempts to cover the manholes by having loaders fill the ones that could be filled with dirt. He further observed that another contractor was building the manholes and the work was still in progress.
29 CFR 1926.854(b). Government's Exhibit No. 6 was introduced referring to what represented a free standing wall in excess of one story high that was not braced to prevent it from collapsing with no evidence of lateral bracing or shoring. The wall in question stood approximately 60 feet in height with the top two floors being approximately 3/8ths of the wall, standing approximately thirty feet, with a thickness [*35] of 20 to 24 inches. The hazard described was, in case of wind or other disturbance, the potential of the wall collapsing causing injury to anyone working in the immediate area. The wall was north of where the caterpillar operators were working and Mr. Adams felt by either bracing or tearing down the wall it would reduce the hazard.
Government Exhibit No. 7 was introduced by Respondent and was compared with Exhibit No. 6 by Mr. Adams who was of the opinion the view presented in Exhibit No. 7 was not of the same building as reflected in Exhibit No. 6 although he could not remember whether at the time he was taking a picture of the wall or a picture of a truck. In his opinion Exhibit G-6 shows only a wall with no enclosure, with the thickness of the wall approximately three or four feet, whereas the building depicted in Exhibit G-7 would have a thickness of a minimum of 8 feet. Mr. Adams felt that correction of the standing wall could have been readily made within a few seconds or minutes in that he was able to see the whole business taken down in less than 45 minutes with dynamite. Blasting activities were not being conducted during the time of his inspection and Mr. [*36] Adams had no idea how long the building had been in the condition reflected in the Exhibit. During the period of time of Mr. Adams' inspection in February 1972 buildings had been dropped by virtue of explosives and drilling procedures were taking place at the time.
Mr. Dore made examination of Government Exhibit 6 and identified it as one of the Swift buildings in the south area and compared the building exhibited in Exhibit 6 with the view of the Exhibit No. 7 and was of the opinion that the photographs were of the same building. Further, Mr. Dore, utilized a marking pencil delineated what he felt were areas in common reflected by the photographs comparing the wall, two chimneys on top and indicating a lateral supporting wall. He identified the area as a kind of drying room or drying tower with load bearing walls all tied together rather than a masonry wall. Mr. Dore expressed personal familiarity with the building having visited Omaha every week and further recalling that the particular building in question had sat there for a long time in the particular state of demolition depicted by the photograph.
Mr. Warren Wright, Area Director, U.S. Department of Labor, Occupational [*37] Safety and Health Administration, testified, referring to Government's Exhibit 8, "penalty assessment worksheet for other violations" and Government's Exhibit 9, "penalty assessment worksheet -- serious violations." The exhibits were prepared by Mr. Wright to determine proposed penalties for alleged violations based upon a review of the compliance officer's inspection and reports. Mr. Wright described the assessment sheet for other violations as referring to violations other than serious, willful or deminimis. There was provision for gravity of the violation by system or type and categories of a, b, c or x for determination of monetary assessments with category a requiring no monetary proposed penalty, b, a range from $100 to $200, c, a range from $201 to $500, and x $501 to $1,000.
Mr. Wright reviewed his assessment of proposed penalties pertaining to the various violations with a description of the potential hazard involved by virtue of the violations based upon the likelihood of possible injury and resultant severity of injury along with the number of instances of violations. He further described penalty adjustment factors given for good faith, [*38] size of the company and history. Good faith adjustments range from 0 to 20% based upon the employers on-going safety program down to 0 if the employer made no attempt to correct alleged violations. Size factor was also included ranging from 0 to 10% with 10% reduction to an employer with a range of employees of 1 to 20, 5% for more than 20 but less than 100 and 0% for over 100 employees. History of the employer was in a range from 0 to 20% with a 20% allowance for the first visit, 10% for the second, and a third visit with alleged violations 0% Mr. Wright noted he gave 10% adjustment for history in that Respondent had been previously cited for a violation in DesMoines, Iowa.
Mr. Wright further noted that no abatement credit was given on a serious-type violation, but a credit given of 20% for good faith, size and history, with an allocation of 0% for good faith, 10% for size and 10% for history which resulted in the proposed penalties of $800 with reference to the alleged serious violations.
FINDINGS OF FACT
1. Respondent, Dore Wrecking Company, is a Michigan corporation authorized to do business in Nebraska with its home office located at 2300 North Huron Road, Kawkawlin, [*39] Michigan, and is engaged in the wrecking and demolition business.
2. Respondent receives and ships goods in commerce, engages in demolition preparatory to construction of facilities and instrumentalities of commerce, and is engaged in business affecting commerce.
3. Respondent employed nine employees on February 15, 1972, in the demolition of buildings at a 180 acre job site located at 27th & Q Streets, Omaha, Nebraska, commonly referred to as the old Swift Packing House.
4. Respondent was a prime or general contractor for demolition of the packing plant buildings at the aforementioned job site in Omaha, Nebraska.
5. As a result of an inspection of Respondent's aforementioned job site conducted by authorized representatives of the Secretary on February 15, 1972, Respondent was issued one Citation for other than serious violation involving five items and four citations for serious violations along with Notification of Proposed Penalties.
6. The inspection of Respondent's job site was precipitated by a written complaint, a copy of which was presented to Mr. Warner Paas, job superintendent, who accompanied the compliance officers during the inspection.
7. Respondent filed [*40] a timely Notice of Contest with a representative of the Secretary of Labor indicating its intent to contest the four Citations for serious violations, all items of the Citation for other than serious violations, and the Notification of Proposed Penalties. The Citations and Respondent's Notice of Contest were posted at the job site.
8. Respondent was previously issued a Citation for alleged violations of the Occupational Safety and Health Act on a job site in Des Moines, Iowa.
9. With respect to 29 CFR 1926.350(a)(9); seven acetylene and two oxygen cylinders stored in unsecure manner. The Secretary has sustained his burden of proof of said Citation and the Proposed Penalty of $100 is ruled appropriate and affirmed.
10. 29 CFR 1926.152(a)(1); unapproved gasoline can. The Secretary has sustained his burden of proof of said Citation and the Proposed Penalty of $120.00 is ruled appropriate and affirmed.
11. 29 CFR 1926.350(a)(7); unsecured oxygen and fuel cylinder utilized in cutting operation. The Secretary has sustained his burden of proof of said Citation and the Proposed Panalty of $120.00 is ruled appropriate and affirmed.
12. 29 CFR 1926.102(a)(1); eye protection [*41] for pneumatic drill operator. The Secretary has sustained his burden of proof of said Citation and the Proposed Penalty of $100.00 is ruled appropriate and affirmed.
13. 29 CFR 1926.850(a) written engineering survey. The aforementioned Citation and Proposed Penalty is vacated and said lack of engineering report is held to be, in this instance, a deminimis violation with no penalty assessed, based upon several surveys made by Respondent, the age of the building and the demonstrated expertise of Respondent in the demolition field.
14. 29 CFR 1926.604(a)(ii). Two 983 caterpillars without overhead and rear canopy guards. The Secretary has sustained his burden of proof of said Citation for serious violation and the Proposed Penalty of $800.000 is ruled appropriate and affirmed.
15. 29 CFR 1926.800(a)(4) Four open manholes . . . not guarded or protected. The Secretary has sustained his burden of proof of said Citation and the Proposed Penalty of $800.00 is ruled appropriate and affirmed.
16. 29 CFR 1926.800(a)(4) Two manhole openings . . . not guarded or protected. The Secretary has sustained his burden of proof of said Citation and the Proposed Penalty of $800.00 [*42] is ruled appropriate and affirmed.
17. 29 CFR 1926.854(b) Masonry walls . . . excess of one story . . . permitted to stand without lateral bracing. The substantial, probative and persuasive evidence is that the walls referred to in the evidence as demonstrated by Exhibits G-6 and G-7 were the same wall and were connecting walls and therefore the wall referred to in the Citation was in fact, supported by lateral bracing. The aforesaid Citation and Proposed Penalty is vacated.
CONCLUSIONS OF LAW
Section 17(j) of the Act, provides that the Commission shall have authority to assess all penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business, of the employer being charged, the gravity of the violations, the good faith of the employer, and the history of previous violations.
The evidence demonstrates that the Respondent has a substantial operation engaged in the demolition of building complexes in various parts of the country, and in connection with previous operations in Des Moines, Iowa, has been cited for other Occupational Safety and Health violations. While Respondent has attended an informational [*43] conference with respect to the Occupational Safety and Health Act and has issued a letter and copy of the Act to its employees, there is little if any evidence of Respondent maintaining a day to day, week to week, ongoing active safety program in connection with its demolition operations. Further, in consideration of the evaluation of the evidence as to proposed penalties, it is noted that the evidence discloses that while Respondent's President made periodic visits to the demolition site in Omaha, Nebraska, Respondent through its president, Mr. Dore, and general superintendent, Mr. Paas, remained oblivious to the substantial number of safety violations occurring in simultaneous fashion. The aforesaid violations in many instances created substantial probability that death or serious physical harm could be done to any affected employee due to the operations described.
Section 17(b) of the Act provides that any employer who has received a Citation for serious violation . . . of any standard . . . shall be assessed a civil penalty of up to $1000 for each violation.
Section 17(c) of the Act in pertinent part provides that an employer who has received a Citation . . . of [*44] any standard . . . determined not to be of a serious nature may be assessed a civil penalty of up to $1000 for each violation.
Section 17(k) of the Act in pertinent part provides a serious violation shall be deemed to exist in a place of employment if there is substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence know of the presence of the violation.
Again, the evidence is replete that Respondent's president and general superintendent expressed knowledge of the operations of Respondent in the demolition of the Swift Packing Plant with its superintendent on the job daily and with its president making periodic visits.
The general duty imposed upon an employer is as provided by Section 5(a) which provides in pertinent part that each employer, (1) 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 [*45] or serious physical harm to his employees.
The Area Director's and compliance officer's assessments of the hazards found on the various Citations indicate general work conditions and violations by Respondent of Section 5(a)(2) of the Occupational Safety and Health Act and the enumerated standards which, Respondent, either by or through his authorized agent and superintendent or through his own observation during his periodic visits to the worksite could have known through the exercise of reasonable diligence of the presence of the aforesaid violations and could have known that there was substantial probability that death or serious physical harm could have resulted from the various conditions described in the Citations through the exercise of reasonable diligence.
It has been held that the general contractor has the responsibility for the overall safety at a job site. [*46] Secretary of Labor v. Gilles and Cotting, Review Commission Case No. 504; and Secretary of Labor v. John B. Kelley, Inc., Review Commission Case No. 154.
Mr. Paas was the overall job superintendent for Mr. Dore, the general contractor. Mr. Dore referred to Mr. Paas for information involving job safety violations. Mr. Paas was afforded a copy of the Complaint by the compliance officers and conducted the compliance officers to the various affected areas at the job site indicating a thorough knowledge of the operations. Mr. Paas stood mute when inquiry made of him pertaining to the various activities and status of employees.
Under these particular circumstances, it is felt that Mr. Paas' conduct fell within the purview of the following:
Evidence that a statement has been made in one's presence in hearing may be relevant because failure to deny that statement has probative value as admission. Ishler v. Cook, 299 F. 2nd 507; Federal Rules of Civil Procedure 43(a); Smith v. Allen 297 F. 2nd 235; 31 C.J.S. Evidence, 294.
An employee who has complete authority to determine when there were to be layoffs, who was to be laid off, and who was to be recalled to work, was "suprevisor" [*47] and his admissions which were made in carrying out his delegated duties were in the employer's admissions. NLRB v. Langenbacher, 398 F. 2nd 459.
Therefore, with respect to the workmen operating the pneumatic hammer it is felt that the silence of the supervisor, Mr. Paas, would lead to the conclusion that said opertor was an employee of Respondent and even if said opertor were not an employee of Respondent, the duty of supervision would still be incumbent upon the prime contractor through his supervisor to insure that said operator wore the appropriate safety glasses.
Respondent, defends the absence of covers for a variety of open manholes throughout the 180 acre site on the basis that some had been filled and others had been secured with metal plates which were stolen. Nevertheless, the standard is more pervasive than limiting an employer to filling and securing manholes with metal plates. The standard contemplates that employers shall also erect barricades or signs warning of the hazard. No such evidence was tendered by Respondent. Nor is it a defense that Respondent could evade his responsibilities as being a general contractor on a 180 acre worksite with other subcontractors [*48] in that his was the prime responsibility and his workers along with the other workers were exposed to the hazards of falling into these exposed manholes, some of which were between the work site and the portable toilet.
Respondent makes issue as to whether the improperly stored gas cylinders were full or empty. A consideration of the standard involved reflects that the standard makes no differentiation between full or empty gas cylinders, but in all instances requires compressed gas cylinders to be firmly secured in a suitable cylinder truck, chain or other steadying device to be used to keep the cylinders from being knocked over while in use or secured in an upright position at all times.
DECISION AND ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby ordered that:
(1) Citation No. 1 for non-serious violations, Items 1, 2, 3, 4, and the Proposed Penalties be and are hereby affirmed. Item 6 of Citation 1 for non-serious violation is modified and the Citation is amended to be that of a demnimis violation with no penalty.
(2) Citations for serious violations 1, 2, and 3 and the Proposed Penalties are affirmed.
(3) Citation No. 4 for serious [*49] violation and the Proposed Penalty is vacated.
(4) The abatement periods fixed in said Citations are affirmed in all respects.