Docket No. 680

HARVEY WRECKING COMPANY

OSHRC Docket No. 680

Occupational Safety and Health Review Commission

November 12, 1973

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 rendered by Judge Vernon G. Riehl. The Judge found Respondent in violation of section 5(a) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). Specifically, he concluded that Respondent committed two serious violations of section 5(a)(1) by not complying with the requirements of 29 C.F.R. 1926.850(g) and 29 C.F.R. 1926.856(b) and was in non-serious violation of section 5(a)(2) for not having complied with the requirements of other standards including the standard prescribed by 29 C.F.R. 1926.850(j). Civil penalties were assessed.

We have reviewed the record. Based on such review we conclude that the Judge erred by finding Respondent in serious violation of section 5(a)(1) n1 and by finding Respondent in non-serious violation of 29 C.F.R. 1926.850(j). Accordingly, his decision is affirmed only to the extent that it is consistent herewith.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 It is uncontradicted on the record that Respondent violated the standards prescribed by 29 C.F.R. 1926.850(g) and 1926.856(b). Respondent was on notice as to each alleged serious violation and did in fact defend against the allegations. Accordingly, Respondent will not be prejudiced by an amendment of the Judge's order to find serious violations of section 5(a)(2) of the Act. Secretary of Labor v. Brisk Waterproofing Co., Inc., Secretary of Labor v. Sun Shipbuilding and Drydock Co.,

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The relevant facts regarding the alleged non-serious violation of 29 C.F.R. 1926.850(j) n2 are not disputed. Respondent is engaged in the wrecking business and was in the process of demolishing a 14 story building in Chicago, Illinois, when Complainant's representative made a safety and health compliance inspection. The building was U shaped, and its northwest wing had been leveled before the inspection was made. The wing was located adjacent to an empty lot and away from public areas. It had been taken down in vertical sections by means of a mechanical ball and a clam-shell bucket. During such leveling operations, Respondent's employees were idle and not permitted in the demolition area.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 The standard provides as follows:

Except for the cutting of holes in floors for chutes, holes through which to drop materials, preparation of storage space, and similar necessary preparatory work, the demolition of exterior walls and floor construction shall begin at the top of the structure and proceed downward. Each story of exterior wall and floor construction shall be removed and dropped into the storage space before commencing the removal of exterior walls and floors in the story next below.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

It is also uncontroverted that the wrecking industry normally uses the demolition techniques employed here when the circumstances are similar, and horizontal (story by story) leveling is impracticable with such techniques.

On the facts Respondent clearly has not complied with the cited standard. Respondent, however, points to the provisions of 29 C.F.R. 1926.859, entitled "Mechanical demolition" and argues that notwithstanding the requirements of the cited standard it can employ the methods used here. On review, Complainant simply says ". . . nothing in the Act or 29 C.F.R. 1926.859 provides that section 1926.850(j) does not apply to mechanical demolition." He goes on to say he has the authority to promulgate standards, he is the one who determines what standards should issue, and he implies that Respondent should have sought a variance.

Complainant's arguments may be meritorious for some other case, but they provide no assistance to us in this case. The most that can be gleaned from them is he would have us read section 1926.859 together with subsection 1926.850(j). But, if we do this, we necessarily must interpret 1926.850(j) as limiting 1926.859 such that mechanical demolition may only be employed on a horizontal leveling basis. The evidence is that such basis is impractical and Complainant's interpretation would effectively eliminate the use of balls and clam buckets in demolition operations. We agree that this would be the result and conclude that Complainant's interpretation would in effect render section 1926.859 a nullity. We therefore decline to interpret the section as being limited by subsection 1926.850(j).

It does not follow, however, that we can in this case interpret the subsection to determine the limits of its application. Its terms exist in conflict with those of the section on mechanical demolition, and the canons of construction require an interpretation that will save (if possible) both the section and the subsection. In this regard, we have reviewed all of the standards on demolition and there is no expression therein of intent such that we can resolve the ambiguity created by the conflict. Moreover, as implied above, Complainant has not adduced extrinsic evidence, such as the recommendations of his advisory committee on construction safety, which might provide assistance in resolving the ambiguity. Accordingly, based on the record before us we conclude only that 29 C.F.R. 1926.850(j) has no application in circumstances such as those presented herein, and the citation for violation of such standard will be vacated.

For the reasons given, the Judge's order is amended to find serious violations of section 5(a)(2) and to vacate that portion of Complainant's citation which alleges a non-serious violation of 29 C.F.R. 1926.850(j) and as amended is affirmed. It is so ORDERED.

[The Judge's decision referred to herein follows]

RIEHL, JUDGE, OSAHRC: This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., (hereinafter referred to as the "Act") to review a Citation issued by the Secretary of Labor (hereinafter referred to as "Complainant") pursuant to section 9(a), and a proposed assessment of penalties thereon issued pursuant to section 10(a) of the Act.

The Citation issued on March 7, 1972, and the Complaint filed on April 3, 1972, alleged that Harvey Wrecking Company, Inc., the employer (hereinafter referred to as "Respondent") violated, section 5(a)(1) of the Act and two Occupational Safety and Health standards duly promulgated pursuant to section 6 of the Act; and there was also issued to the Respondent a Citation (for non-serious violation) charging the Respondent with violations of sections 5(a)(2) of the Act and of eight Occupational Safety and Health standards duly promulgated pursuant to section 6 of the Act. The Respondent was charged with the violation of 29 CFR 1926.850(j) in that they failed to demolish a building by beginning at the top of the construction and proceeding downward with each story of the exterior wall and floor construction being removed and dropped into storage space before commencing the removal of exterior walls and floors in the story next below.

On March 7, 1972, pursuant to section 9(a) of the Act, the Petitioner issued to the Respondent a Citation (for serious violations) charging the Respondent with violations of section 5(a)(1) of the Act and of two Occupational Safety and Health standards duly promulgated pursuant to section 6 of the Act; and also issued to the Respondent a Citation (for non-serious violations) charging the Respondent with violations of sections 5(a)(2) of the Act and of eight Occupational Safety and Health standards duly promulgated pursuant to section 6 of the Act (Complaint and Answer).

Respondent was alleged to have violated section 5(a)(1) of the Act by failing to furnish its employees a place of employment which was free from recognized hazards that were causing or were likely to cause death or serious physical harm to its employees in that:

1. Failed, with respect to its employees working at or around a wall opening, to protect such opening at a height of approximately 42 inches by means of a guardrail or by any other means of protection, where the hazard existed to such employees of falling through the wall opening (29 CFR 1926.850(g)).

2. Failed, with respect to its employees operating highlift equipment called "bobcats" at or around a floor opening to provide curbs or stoplogs to prevent such equipment from running over the edge of such floor openings (29 CFR 1926.856)(b)).

These two violations were serious violations 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, and the Respondent knew, or with the exercise of reasonable diligence, could have known, of the presence of the violation.

Other violations of section 5(a)(2) of the Act were failure to provide approved containers for the storage and handling of flammable and combustible liquid, to wit, gasoline, in quantities greater than one gallon (29 CFR 1926.152(a)(1)); stored a combustible and flammable liquid (gasoline) in an area normally used for the safe passage of people (29 CFR 1926.152(a)(2)); failed to demolish all exterior walls by beginning at the top of the structure and proceeding downward (29 CFR 850(j)); used motor vehicles with an obstructed view to the rear and which did not have a reverse signal alarm audible above the surrounding noise level, and which vehicles were backed up without an observer signaling that it was safe to do so (29 CFR 1926.601(4)); failed to protect, by protective helmets, employees working in areas where there was possible danger of head injury from falling or flying objects (29 CFR 1926.100); failed to provide seatbelts, and anchorage therefor, for two motor vehicles (29 CFR 1926.601(b)(9)); failure to provide an accessible fire extinguisher at the operator's station or cab or a crane (LS-78LC) (29 CFR 1926.550(a)(14)(i)); failed to maintain a record of the dates and results of inspections for a crane (LS-78LC) (29 CFR 1926.550(a)(6)).

On March 7, 1972, pursuant to section 10(a) of the Act, the Petitioner mailed to the Respondent a notification of a proposed penalty, totaling $1,075. On March 21, 1972, pursuant to section 10(c) of the Act, the Respondent duly filed with a representative of the Petitioner a notification of intent to contest the aforesaid citations and the proposed assessment of penalties; said notification of intent to contest was duly transmitted to the Occupational Safety and Health Review Commission. The Commission appointed the undersigned to hear the case and the case was heard on May 23, 1972, in Chicago, Illinois.

THE ISSUES

Coverage is admitted by Respondent in its Answer (paragraphs II, III), and there is no dispute as to the application of the Act to Respondent's activities, and the Respondent's employees at the workplace in question.

Respondent in its Answer admits the allegations of violations contained in the following paragraphs of the Complaint: IV(c)(1), (2), (4), (5), (6), (7), (8).

Respondent also admits the allegations contained in paragraph IV (3) of the Complaint. However, Respondent contests the applicability of section 1926.850(j), and, further states section 1518.859 of the Rules and Regulations (mechanical demolition) apply.

Therefore, by the pleadings, the issues with respect to the alleged violations of the Act are confined to those alleged in paragraphs IV(a)(1), (2), and IV(b) of the Complaint, and in paragraphs IV(c)(3) of the Complaint. The Respondent in its pleadings admitted the allegations in paragraphs IV(c)(3) of the Complaint, but contends that 29 CFR 1926.850(j) is not applicable to the demolition of the building in question.

GENERAL DUTY

Mr. George Faris, the able attorney for the Department of Labor, in his brief states:

Section 5(a)(1) imposes a general duty on employers, as follows:

Each employer -- shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing and are likely to cause death or serious physical harm to his employees; (Emphasis added).

Senate Report 91-1282 (hereinafter called the Senate Report) to accompany S.2193, as reported by the Senate Committee on Labor and Public Welfare on October 6, 1970, explained the general duty provisions, as follows:

GENERAL DUTY

The Committee recognizes that precise standards to cover every conceivable situation will not always exist. This legislation would be seriously deficient if any employee were killed or seriously injured on the job simply because there was no specific standard applicable to a recognized hazard which could result in such a misfortune. Therefore, to cover such circumstances the Committee has included a requirement to the effect that employers are to furnish employment and places of employment which are free from recognized hazards to the health and safety of their employees (Senate Report, p. 9).

The language "recognized hazards" was added to S.2193, as reported, on motion of Senator Javits. He explained the language, as follows:

As a result of this amendment the general duty of employers was clarified to require maintenance of a workplace free from "recognized" hazards. This is a significant improvement over S.4404 (a rival bill introduced by Senator Dominick), which requires employers to maintain the workplace free from "readily apparent" hazards . . . (Senate Report, p. 58: Individual Views of Mr. Javits).

The Senate Report also makes clear that the individual employer need not recognize the hazard, because it states "The employer would be entitled to a full administrative hearing followed by judicial review, if he disagrees that the situation in question is unsafe" (Senate Report, p. 10).

On the House floor on November 23, Congressman Daniels agreed to modify his bill (H.R. 16785) to amend its original general duty provision, which required employers provide "safe and healthful working conditions," so as to limit the general duty requirement to "recognized hazards," as the Senate had already done with S.2193. He explained the difference between "recognized hazards" on the one hand and "readily apparent hazards," the rival language proposed by Senator Dominick and by some Congressmen as well, as follows: The first difference is that my amendment protects against "recognized" hazards while the -- substitute only protects against "readily apparent" ones. A recognized hazard is a condition that is known to be hazardous, and is known not necessarily by each and every individual employer but is known taking into account the standard of knowledge in the industry. In other words, whether or not a hazard is "recognized" is a matter for objective determination; it does not depend on whether the particular employer is aware of it.

In short, "recognized hazards" is an objective test:

Would a prudent, safety-conscious employer under similar circumstances know it as a hazard.

DISCUSSION

In this case it has been clearly established with respect to each of the violations alleged in the Citation (for serious violations) (and in paragraphs IV(a) and IV(b) of the Complaint), that:

1. There existed hazardous conditions at the building in question which posed a risk that an accident could result;

2. The hazards were ones which were known to be such by the Respondent; and

3. The resulting harm, which was likely to result from such accidents, was death or serious physical harm to the Respondent's employee(s).

As is clear from section 5(a)(1) itself, nothing more is required.

SERIOUSNESS OF VIOLATIONS

Section 17(k) of the Act provides that:

For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm 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 (Emphasis added).

With respect to the failure to protect the wall opening to a height of 42 inches by any means, where the workman was throwing and shoveling debris at the very edge of such opening, with insecure footing on loose rubble and approximately 100 feet above ground obviously, this could result in the workman falling 100 feet to the ground below, and clearly, there was a substantial probability that this would result in death or at least very serious physical harm to him. The Respondent knew this at the time. Mr. DiVito, superintendent for Harvey Wrecking Company, and another employee. Robert Turner, made a tour of the building on the day in question (Tr. 12, 13). At this time, the northwest wing of the building had been taken almost entirely down and 14 floors had been demolished (Tr. 14). Portions of the building were left standing next to the portion demolished which were open and unenclosed. There was no wall (Tr. 15). A workman on one of the upper floors was throwing debris, large chunks of concrete-like material or concrete, out over the wall openings. This worker was standing right at the edge, within a foot of the open space (Tr. 15). He was using a shovel and throwing debris out over the edge. There was no barrier or guardrail at this point or other protection on the whole open side of the building where he was shoveling this debris on the 10th or 11th floor (Tr. 16). This area was approximately 100 feet from the ground (Tr. 16), and had the employee fallen he would have fallen this 100 feet to almost certain serious injury or death.

Other workmen were using mechanical equipment ("bobcats") pushing debris over the edge of the open side of the floor on the 9th and 10th floors at a point where there was no wall or barrier (Tr. 22). There was also no curb or stoplog at the edge of the floor where these "bobcats" were being used (Tr. 23). There was a row of debris, approximately a foot high or so, which was claimed to be frozen at this point. This rubble was not secured in any manner by nuts or bolts or other means to the floor (Tr. 23), and this is contrary to Standard 29 CFR 1926.856(g) (Exhibit 4). This Standard calls for a barrier for wall openings in such instances to be a height of approximately 42 inches to protect the worker.

This condition of unbarricaded or otherwise improperly protected wall openings very definitely created a substantial probability that death or serious physical harm could result to employees working at or around such openings.

The Respondent's Company in its responsible management and supervisory employees knew of this condition as shown by the testimony, and the evidence shows at the time of the inspection that there was completely inadequate and ineffective measures to stop such "bobcat" equipment from running over the edge of the floor openings on the two floors in question, and that there was a complete absence of even the inadequate "berms" at times when the highlift equipment was still being operated on such floor openings. With the exercising of reasonable diligence as to this hazardous condition, the Respondent could have known of and easily prevented the exposure of the highlift equipment operators to this hazard.

"Substantial probability" means enough to be significant; not a remote possibility, but a genuine meaningful risk against which a precaution is reasonable. A situation from which a forsecable danger of serious injury exists, with great enough likelihood to make a specified precaution reasonable, establishes "substantial probability" of serious injury." n1

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 Secretary of Labor v. Crescent Wharf and Warehouse Co.,

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Respondent, in paragraph IV(b) of its Answer admitted that "there was a possibility that death or serious harm could result (emphasis added) from the two hazardous conditions alleged in paragraph IV of the Complaint. That is, in case the employees exposed to such hazardous conditions did fall 90 or 100 feet through the wall openings or floor openings, Respondent admits that death or serious physical harm could result. Of course, it goes without saying that injury from falling from such height is an occurrence of sufficiently frequent and general experience established as a matter of common knowledge, of which judicial notice may be taken that the probability of serious injury is very high if an employee falls 90 to 100 feet to the ground below.

The seriousness of the injury in the event of such a fall is therefore patent and established. Falling is clearly the risk against which the regulatory standards were aimed. The violation is therefore serious if the likelihood of falling reached the level of substantial probability. Probability, likelihood or foreseeability are all aspects of judging the future on the basis of past experience and present circumstances.

The chance of injury on the day (or days) these hazardous conditions existed might be small if everyone acted prudently. But the danger is that one of or several events out of the ordinary will coincide to produce the accident. This is how accidents occur. Any safety system must include at least some margin for error. On any day, anywhere, a man may make a mistake in judgment, or equipment may have a malfunction. On any day, anywhere, such an event has small statistical probability, but over sufficient time -- such as the working life of the exposed employees -- such an event is virtually certain. Workmen will be unusually fortunate if such an event does not happen a number of times in their lives. Unless other contributing factors are also controlled -- such as the protection of all openings with barriers and the floor openings with stoplogs or curbs -- the workers will at such times be injured. Congress says this happens too often and must be improved. If the probability is greater than that which Congress considered unacceptable, it is too great. The employer had the opportunity to offer proof to show that the danger was remote or insubstantial, but did not do so. Contrary evidence of the Petitioner established that such danger was neither remote nor insubstantial.

In the present case, the evidence is sufficient to show that the danger was genuine and substantial. Although no statistical records were offered on this point. Congress in an Act of the Statute did not use a numerical yardstick, being aware that that kind of evidence is not available in most situations and thus manifested its intent that numerical evidence is not required. The circumstances, experience and opinion of Petitioner's expert witnesses sufficiently established the required substantial probability of serious physical harm against which the regulations were designed.

FAILURE TO DEMOLISH THE BUILDING IN ACCORDANCE WITH THE PROVISIONS OF 29 CFR 1926.850(j)

29 CFR 1926.850(j) provides:

(j) Except for the cutting of holes in floors for chutes, holes through which to drop materials, preparation of storage space, and similar necessary preparatory work, the demolition of exterior walls and floor construction shall begin at the top of the structure and proceed downward. Each story of exterior wall and floor construction shall be removed and dropped into the storage space before commencing the removal of exterior walls and floors in the story next below (Emphasis added).

Respondent admitted in its Answer (paragraph IV(c)(3)) that it failed to demolish all exterior walls of the structure in question, in that it demolished only the northwest wing from the top of the structure to the ground without demolishing any of the remaining exterior wall and floor construction of the building.

There is no question whatsoever in that the total evidence establishes that Respondent violated the above-quoted section of standards.

The sole contention of Respondent's council is that the above-quoted standard is not applicable to the demolition of the Pearson Hotel Building in question. However, no proof or authority has been offered by Respondent to establish that this standard is inapplicable to this demolition.

Under section 9 of the Act, a citation is issued for violating:

A requirement

(1) of section 5 of this Act,

(2) of any standard, rule or order promulgated pursuant to section 6 of this Act, or

(3) of any regulations prescribed pursuant to this Act.

In the absence of proof of inadequacy of the procedure followed, it will be presumed that the rules, standards and regulations reportedly adopted by action published in the Federal Register or the Code of Federal Regulations have been validly promulgated and remain in force. If the matter is not asserted as an issue, official notice will be taken of matters published in the Federal Register and in the Code of Federal Regulations.

Respondent has presented no evidence that the above-quoted standard was not validly promulgated. Therefore, it remains in force. Having admitted the fact that performing the demolition in a manner contrary to such standard, it is evident that Respondent has violated that standard and section 5(a)(2) of the Act, as alleged in paragraph IV(c)(3) of the Complaint and the (second) Citation.

The Respondent asserts the demolition was by mechanical means, and that, therefore, 29 CFR 1518.859 is applicable to the demolition of the building in question, to the exclusion of the requirements of 29 CFR 1926.850(j) (quoted above). It is sufficient to state that nothing in the act so provides and nothing contained in 29 CFR 1518.859 so provides. Nor did Respondent offer at the hearing anything to show that 29 CFR 1926.850(j) is not applicable to this demolition.

Rather, Respondent's argument is that it is not economically feasible for a wrecking company to demolish a building by beginning at the top of the structure and proceeding downward, and by removing each story of exterior wall and floor construction before commencing the removal of exterior walls and floors in the story next below, as required by 29 CFR 1926.850(j). Respondent further argues that to comply with the requirements of that section is contrary to the custom and practice of the wrecking industry and that if Respondent had complied, it would be put at a competitive disadvantage, because competitors do not comply. The president of the Harvey Wrecking Company testified that when he takes the building down in sections he makes the judgment as to whether or not that section can be taken down without injuring the structure of the remaining portion of the building and that this is always an engineering decision made on the site. Further, that he has had an engineer for years on his staff (Tr. 81). He testified to having been engaged for approximately 50 years in wrecking some of the largest buildings in the country. Therefore, it is a rather large operation of its kind. Mr. Goldberg testified from extensive experience in all phases of the wrecking industry, beginning with a job as a wrecker where he used a pick and bar, up to and including the fact that in 1944 he was elected vice president of the National Wreckers Contractors Association of America. Therefore, he is fully qualified as an expert having been more than average qualified to know the need for a barrier, guardrail, or the danger of falling from such a height (Tr. 86, 87, 88, 89). Respondent, in its brief (p. 9), states in argument that Respondent is at a disadvantage with its competitors as it is obviously far more expensive to take a building down floor by floor. He states that the Respondent seeks only to be on an equal footing with the other members of the industry. Further, that we should take appropriate steps to publicize the conclusion of the court in order that all competitors be of equal footing.

It is sufficient to answer such an argument to say that one cannot be exculpated from a violation of the Act by contention that others are also in violation, on the grounds that it is cheaper to operate at a manner contrary to provisions of the Act and standards of the Act duly promulgated under the Act.

We find that the total evidence in the case establishes a serious violation as alleged because the evidence establishes there was a substantial probability that death or serious physical harm would result from a fall from the 9th or 10th floor; furthermore, the employer knew of the condition at the time of the violation or with the exercise of reasonable diligence with his every day inspection of the site could have known of the violation.

FINDINGS OF FACT

1. Petitioner, JAMES D. HODGSON, Secretary of Labor, United States Department of Labor, brought this action under section 10(c) of the Act against Respondent, HARVEY WRECKING COMPANY, INC., a corporation, for an order affirming the Citations issued pursuant to section 9(a) of the Act and the penalties proposed pursuant to section 10(a) of the Act as a result of alleged violations by Respondent of its duties under sections 5(a)(1) and 5(a)(2) of the Occupational Safety and Health Act (29 U.S.C. 651, et seq., ), hereinafter called the Act.

2(a). Respondent, HARVEY WRECKING COMPANY, INC., is and at all times hereinafter mentioned was an Illinois corporation, with an office and place of business at 1731 West Cermak Road, Chicago, Cook County, Illinois, and it is and at all times hereinafter mentioned was engaged in wrecking, dismantling and demolition of buildings and structures and in the handing, working on, distribution and sale of salvaged materials and in other activities (Complaint and Answer).

2(b). Respondent at all times hereinafter mentioned had a workplace at 181 East Pearson Street, Chicago, Cook County, Illinois, where it was engaged in the wrecking, dismantling and demolition of the Pearson Hotel building, and in salvaging, handling, working on, transportation and shipment of various materials such as brick, stone, metals and other goods (Complaint and Answer).

3. Respondent at all times hereinafter mentioned purchased and used goods which had been moved into Illinois from points outside Illinois, and Respondent was engaged in the handling, working on, production, sale and distribution of salvaged materials such as brick, stone, metals and other goods, substantial quantities of which had been shipped to persons and firms outside the State of Illinois (Complaint and Answer).

4. Respondent admitted that it is an employer engaged in a business affecting commerce, and that it was an employer employing employees in said business at the aforesaid workplace (Complaint and Answer).

5. On January 18, 1972, an inspection of Respondent's workplace was conducted by the Secretary's duly authorized representative, Compliance Officer Morley Brickman, accompanied by a representative of the Respondent and of the employees, respectively (Tr. 12-14).

6(a). On March 7, 1972, pursuant to section 9(a) of the Act, the Petitioner issued to the Respondent a Citation (for serious violations), charging the Respondent with violations of section 5(a)(1) of the Act and of two Occupational Safety and Health standards duly promulgated pursuant to section 6 of the Act; and also issued to the Respondent a Citation (for non-serious violations) charging the Respondent with violations of section 5(a)(2) of the Act and of eight Occupational Safety and Health standards duly promulgated pursuant to section 6 of the Act (Complaint and Answer).

6(b). On March 7, 1972, pursuant to section 10(a) of the Act, Petitioner mailed to Respondent a Notification of Proposed Penalty for the violations charged in the Citations referred to in Finding 6(a) (Complaint and Answer).

7. On March 21, 1972, pursuant to section 10(c) of the Act, the Respondent duly filed with a representative of the Petitioner a notification of intent to contest the aforesaid Citations and the proposed assessment of penalties; and said notification of intent to contest was duly transmitted to the Occupational Safety and Health Review Commission (Complaint and Answer).

8. Authorized employee representatives were served copies of the Complaint, Answer and Notice of Hearing and copies of the Citation, Complaint, and Answer were posted at the workplace.

9. No employee representative or affected employee identified himself prior to or at the commencement of this hearing as desiring to participate therein in any capacity (Tr. 3-4).

10. Joseph DiVito was the superintendent and general foreman of the wrecking and demolition operations carried on by Respondent at the aforesaid workplace (Tr. 98).

11. All 14 floors of the entire northwest wing of the Pearson Hotel building had been demolished by Respondent prior to the date of the inspection by Compliance Officer Morley Brickman on January 18, 1972; the dimensions of each floor of the demolished northwest wing of said building were approximately 30 feet by 45 feet.

12. The portion of the Pearson Hotel building adjacent to the demolished northwest wing was left standing as of the date of the inspection referred to in Findings 5 and 11. Such standing portion of the said building had no outer wall on the side of the building to which the demolished northwest wing had been joined before demolition.

13. At the edge of the portion of the aforesaid Pearson Hotel building which was left standing there was no wall or barrier to prevent anyone from falling from there to the ground.

14. On one of the upper floors (10th or 11th floor) a workman was throwing debris and shoveling debris through a wall opening in the aforesaid building on January 18, 1972, the date of the inspection referred to in Findings 5 and 11.

15. The workman referred to in Finding 14 was working right at the edge of the wall opening, within a foot of the edge of such opening, which was approximately 100 feet above the ground.

16. The workman referred to in Findings 14 and 15 was not standing on a solid surface; he was standing on a pile of debris which was loose rubble.

17. There was no barrier or guardrail or any other protection at the wall opening where the workman, referred to in Findings 14-16, inclusive, was throwing and shoveling debris through such wall opening. This condition was contrary to the provisions of 29 CFR 1926.850(g) (Tr. 16, 24).

18. The hazard existed, with respect to the workman referred to in Findings 14-17, inclusive, of falling 100 feet to the ground through the unguarded wall opening at which he was working, because he might slip and fall on the loose debris on which he was standing; because he could lose his balance in throwing debris off the edge of the wall opening; and because he could have been blown off by a high wind (Tr. 15-17, 63-64).

19. The hazard referred to in Finding 16 was a recognized hazard which was known to the Respondent's superintendent Joseph DiVito, as shown by his testimony that barriers were needed at wall openings because he did not want a man falling out of the building (Tr. 99-100).

20. There was a substantial probability that death or serious physical harm could result from the hazardous condition referred to in Finding 18 (Tr. 24-25, 61-64).

21. On the date of the aforesaid inspection and earlier, workmen were using mechanical highlift equipment, called "bobcats", at and around floor openings on the 9th and 10th floors in the aforementioned Pearson Hotel building; they were pushing debris over the edge, at the open side of the floor where there was no wall (Tr. 22).

22. There were no curbs or stoplogs at the edge of the floor openings where the workmen were using the "bobcats" referred to in Finding 21; there was nothing at the edge of such floor openings to stop these "bobcats" from running off the edge (Tr. 22, 23, 64-65). This condition was contrary to the provisions of 29 CFR 1926.856(b).

23. There was a row of debris at the edge of the floor opening on the 10th floor, but such debris was not secured to the floor and would not act as a stop at the edge of the floor opening for the mechanical highlift equipment ("bobcats"), to prevent such equipment from running over the edge of the floor openings; it was not effective for such purposes (Tr. 23, 72-75).

24. The hazard existed with respect to Respondent's employees operating such "bobcats," referred to in Findings 21-23, inclusive, of falling 90 to 100 feet to the ground over the edge of the floor openings at which there were no curbs or stoplogs to prevent such "bobcats" from running over the edge of such floor openings (Tr. 26, 74-76).

25. The hazard referred to in Finding 24 was a recognized hazard which was known to Respondent's superintendent Joseph DiVito, as shown by his testimony that barriers were needed at floor openings where mechanical equipment is used; that he usually builds a "berm" to prevent the mechanical equipment from running over the edge of such floor openings; and that he insists on the "berms" for the safety of the employees who would rather push (debris) straight out such floor openings (Tr. 101, 102).

26. There was a substantial probability that death or serious physical harm could result from the hazardous condition referred to in Finding 24.

27. Respondent admitted that there was a possibility that death or serious physical harm could result from the violations alleged in paragraph IV(a) of the Complaint, viz, that Respondent failed with respect to its employees working at or around a wall opening, to protect such opening to a height of approximately 42 inches by means of a guardrail or by any other means of protection, where the hazard existed to such employees of falling through the wall opening; and that Respondent failed, with respect to its employees operating highlift equipment called "bobcats" at or around a floor opening, to provide curbs or stoplogs to prevent such equipment from running over the edge of such flooring (Complaint and Answer).

28. Respondent failed to provide approved containers for the storage and handling of a flammable and combustible liquid, to wit, gasoline, in an area normally used for the safe passage of people, contrary to the provisions of 29 CFR 1926.152(a)(2) (Complaint and Answer).

29. Respondent stored a flammable and combustible liquid, to wit, gasoline, in an area normally used for the safe passage of people, contrary to the provisions of 29 CFR 1926.152(a)(2) (Complaint and Answer).

30. Respondent failed to demolish all exterior walls of the building referred to in Finding 2(b) by beginning at the top of the structure and proceeding downward, in that Respondent demolished the northwest wing of the building from the top of the building to the ground before commencing the removal of other exterior walls and floors of the remaining portion of the building, contrary to the provisions of 29 CFR 1926.850(j) (Complaint and Answer; Tr. 14, 15; Petitioner's Exhibits 1, 2, 3; Tr. 27-29, 54-56, 63).

31. Respondent used motor vehicles with an obstructed view to the rear, which vehicles did not have a reverse signal alarm audible above the surrounding noise level, and which vehicles were backed up without an observer signaling that it was safe to do so, contrary to the provisions of 29 CFR 1926.601(b)(4)(i)(ii) (Complaint and Answer).

32. Respondent failed to protect, by protective helmets, employees working in areas where there was a possible danger of head injury from falling or flying objects, contrary to the provisions of 29 CFR 1926.100 (Complaint and Answer).

33. Respondent failed to provide seatbelts, and anchorages therefor, for two motor vehicles, contrary to the provisions of 29 CFR 1926.601(b)(9) (Complaint and Answer).

34. Respondent failed to provide an accessible fire extinguisher at the operator station or cab of a crane (LS-78LC), contrary to the provisions of 29 CFR 1926.550(a)(14)(i) (Complaint and Answer).

35. Respondent failed to maintain a record of the dates and results of inspections for a crane (LS-78LC), contrary to the provisions of 29 CFR 1926.550(a)(6) (Complaint and Answer).

36. The penalties proposed by Petitioner were arrived at in accordance with Petitioner's standard procedure, by giving due consideration to the size of Respondent's business, the gravity of the violations charged, the good faith of the Respondent and the history of any previous violations (Tr. 35-39, 68-72).

The allowance of 20% for good faith, 10% for size and 20% for history was supported by the total testimony.

CONCLUSIONS OF LAW

1. Jurisdiction of this action is conferred upon the Occupational Safety and Health Review Commission by section 10(c) of the Act, and the undersigned has been duly designated to hear and make determinations upon this proceeding and to report such determinations to the Commission pursuant to section 12(j) of the Act.

2. At all times material hereto, the Respondent was an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Act.

3. At all times material hereto, the Respondent furnished employment to its employees at a workplace located at 181 East Pearson Street, Chicago, Illinois, and the Act is applicable to such employment within the meaning of section 4(a) of the Act.

4. On March 7, 1972, the Secretary, pursuant to the provisions of sections 9(a) and 10(a) of the Act, issued to Respondent a Citation (for serious violations) and also issued a second Citation (for non-serious violations) and a Notification of Proposed Penalties with respect thereto.

On March 21, 1972, pursuant to section 10(c) of the Act. Respondent timely filed with the Secretary its notification of intent to contest the Citation and Proposed Penalties. 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.

5. The Citation, Notification of Proposed Penalties, and Notice of Contest were served by and upon the respective parties hereto in conformance with the provisions of section 10 of the Act. Due notice was given employees of their right to participate in these proceedings.

6(a). Respondent violated section 5(a)(1) of the Act by failing to furnish its employees a place of employment which was free from recognized hazards that were causing or were likely to cause death or serious physical harm to its employees in that the Respondent:

(1) Failed, with respect to its employees working at or around a wall opening, to protect such opening to a height of approximately 42 inches by means of a guardrail or by any other means of protection, where the hazard existed to such employees of falling through the wall opening, contrary to the provisions of 29 CFR 1926.850(g), a duly promulgated Occupational Safety and Health standard.

(2) Failed, with respect to its employees operating highlift equipment called "bobcats" at or around floor openings to provide curbs or stoplogs to prevent such equipment from running over the edge of such floor openings, contrary to the provisions of 29 CFR 1926.856(b), a duly promulgated Occupational Safety and Health standard.

6(b) The violations of section 5(a)(1) referred to above were serious violations, 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, and the Respondent knew, or with the exercise of reasonable diligence, could have known, of the presence of the violations.

7. Respondent is not exculpated from its violations of section 5(a)(1) of the Act on the basis that it is not practicable to comply with the provisions of 29 CFR 1926.850(g) and 29 CFR 1926.856(b), which are Occupational Safety and Health standards duly promulgated under the Act.

8. Respondent, based on its admission and based on substantial evidence, violated section 5(a)(2) of the Occupational Safety and Health Act and the Occupational Safety and Health standards duly promulgated pursuant to section 6 of the Act as alleged in the second Citation (for non-serious violations), items 1 to 8, inclusive, of the said Citation.

The standards violated are the following standards contained in part 1926 of Title 29 of the Code of Federal Regulations:

.152(a)(1)	.100(a)
.152(a)(2)	.601(b)(9)
.850(j)	.550(a)(14)(i)
.601(b)(4)(i)(ii)	.550(a)(6)

9. Respondent is not exculpated from his violation of section 5(a)(2) of the Act and 29 CFR 1926.850(j), on the basis that it is the custom and practice in the wrecking industry and that it is cheaper to violate the provisions of the Act in the aforementioned Occupational Safety and Health standard duly promulgated under the Act.

10. Nothing contained in the Act or in 29 CFR 1518.859 precludes the application of 29 CFR 1926.850(j) to the demolition operations of Respondent at the building in question.

11. The periods for abatement set by the Citation (for serious violations) and by the second Citation (for non-serious violation) were reasonable.

12. The proposed penalty for the violations alleged in the Citation (for serious violations) is appropriate under the circumstances of the case and should be affirmed.

13. The proposed penalty for the violations alleged in the second Citation (for non-serious violations) is appropriate under the circumstances and should be affirmed.

ORDER

It is hereby ordered:

1. The Citation (for serious violations) issued by the Secretary of Labor is hereby affirmed.

2. Respondent has violated section 5(a)(1) of the Act and 29 CFR 1926.850(j) and 29 CFR 1926.856(b), of Occupational Safety and Health standards duly promulgated under the Occupational Safety and Health Act (29 U.S.C. 651, et seq. ), hereinafter called the Act.

3. The violations of section 5(a)(1) of the Act were serious violations within the meaning of section 17(k) of the Act.

4. The Citation (for non-serious violations) issued by the Secretary of Labor is hereby affirmed.

5. Respondent has violated section 5(a)(2) of the Act and the following Occupational Safety and Health standards duly promulgated under the Act: 29 CFR 1926.152(a)(1); 29 CFR 1926.152(a)(2); 29 CFR 1926.850(j); 29 CFR 1926.601(b)(4)(i)(ii); 29 CFR 1926.100(1); 29 CFR 1926.601(b)(9); 29 CFR 1926.550(a)(14)(i); 29 CFR 1926.550(a)(6).

6. The penalties proposed are hereby affirmed.