UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 154
JOHN B. KELLY, INC.,
Respondent.

August 3, 1973

Before MORAN, Chairman; VAN NAMEE and CLEARY Commissioners

CLEARY, COMMISSIONER:

On July 17, 1972, Judge Herbert E. Bates issued a decision in this case holding that respondent had violated section 5(a)(1) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590, hereinafter referred to as ‘the Act’), because it did not take adequate safety precautions while undercutting and removing masonry material from a free-standing wall. He assessed a penalty of $1,000. Thereafter, pursuant to section 12(j) of the Act, that decision was ordered to be reviewed by the Commission.

Having examined the record in its entirety, the Commission finds no prejudicial error therein.

Accordingly, it is ORDERED that the Judge’s decision and order are hereby affirmed in all respects.

MORAN, CHAIRMAN, dissenting:

This case stretches the employer’s obligations under the Act far beyond anything ever intended by finding an employer in violation of section 5(a)(1) of the Act because of employee disobedience tantamount to willful and wanton misconduct. The case was initiated when the employee involved, [redacted], died from the collapse of a wall upon him. The allegations contained in the citation are based upon that accident.

[redacted] was engaged in making certain material alterations to a free-standing wall which respondent had erected in the lobby of a federal building under construction in Philadelphia pursuant to a subcontract for masonry work thereon.

Soon after the wall was erected, Mr. Erickson, the building’s architectural engineer, informed respondent’s superintendent, Mr. Sutton, that the wall was not safe due to improper placement of the mailbox aperture.

On the morning of September 27, 1971, Sutton instructed two of respondent’s employees to modify the wall by turning the wooden frame in the mailbox aperture so that the long dimension would be running horizontally rather than vertically. This undertaking required the undercutting of the masonry wall so as to allow for the rotation of the wooden frame in the mailbox aperture. Knowing that an improper modification might create the possibility of an unsafe situation, Sutton gave specific instructions to employee [redacted] on how the modification was to be done properly. A thorough and clear instruction was personally given [redacted] by Sutton immediately before the employee began the job. This instruction included specific direction to brace the wall with two diagonal 4x4 inch beams before removing the frame, as well as a statement that the brace was to be ‘tied’ to the wall above the lintel and that it should run diagonally to the ground.

When Sutton returned to the site of the modification later that same morning, he saw only a vertical 4x4 inch wooden shore in the aperture from which the frame had been removed. He admonished [redacted] for proceeding improperly and repeated his prior instruction. He warned that the diagonal bracing must be properly installed, that the wall would be dangerous when [redacted] began to undercut, that when the frame was removed it would be even more dangerous and might topple unless it was supported by diagonal bracings.

After Sutton had left the site following his first conversation with [redacted], two employees of the general contractor had also warned [redacted] concerning the hazardous condition of the wall. The chief architectural engineer for the project had given one such warning, and the general contractor’s safety engineer had twice warned [redacted] of the danger of his work. Thus, although Sutton was unaware of it at the time, when he returned to repeat his instructions about the diagonal bracing, it was the seventh time [redacted] had been warned.

Despite these numerous warnings, [redacted] did not install the diagonal bracing. Just prior to the accident, [redacted] said to his co-worker, Jefferson, ‘I wonder what is going to happen when I remove this vertical shore.’ He then removed the vertical shoring, causing the wall to collapse upon him.

As a result, respondent was cited for a violation of section 5(a)(1)—the Act’s general duty requirement—which provides that each employer shall furnish to each of his employees ‘employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.’

Recognition that a particular fact situation constitutes a hazard is essential to establishment of a violation of this provision. Such recognition must come from ordinary prudent employers in respondent’s industry or from the knowledge of the public at large. Secretary of Labor v. Vy Lactos Laboraties, Inc., OSAHRC Docket No. 31, decided February 21, 1973. See also the discussion in Secretary of Labor v. Engstrum and Nourse, OSAHRC Docket No. 74, decided February 12, 1973. In the instant case, the existence of a hazard because of the way [redacted] was performing alterations to the wall was recognized by Sutton, Erickson, and Butler, all of whom were experienced in the field of construction. However, the record clearly establishes that the hazard would not have existed had [redacted] followed the instructions.

Section 5(a) cannot be applied in a vacuum. It must be read in conjunction with the entire Act and particularly with section 5(b), which admonishes employees to comply with rules and orders applicable to their own conduct. The interrelationship of these two provisions are underscored by the Congressional purpose and policy stated in section 2(b)(2), which provides that employers and employees have separate but dependent responsibilities with respect to achieving safe and healthful working conditions.

We have often held that the employer has final responsibility for compliance with the provisions of the Act. Secretary of Labor v. National Realty and Construction Co., Inc., OSAHRC Docket No. 85, decided September 6, 1972; Secretary of Labor v. Arnold Hansen, d/b/a Hansen Brothers Logging, OSAHRC Docket No. 141, decided October 16, 1972; cf. S. Rep. No. 91–1282, 91st Cong., 2d Sess. 11 (1970). However, we have also found that this responsibility is not absolute. Secretary of Labor v. Standard Glass Co., OSAHRC Docket No. 259, decided July 28, 1972; Secretary of Labor v. Mountain States Telephone & Telegraph Co., OSAHRC Docket No. 355, decided January 3, 1973.

Where the record shows that respondent gave specific oral instructions to its employees, that respondent’s employees were repeatedly reminded of the danger involved, and where there is nothing in the record to show that respondent knew or reasonably should have known that the employee would disobey these instructions, ‘practicality and reason dictate that the respondent’s obligation has been met within the requirements of section 5(a)(1) of the Act.’ Secretary of Labor v. Hansen Brothers Logging, OSAHRC Docket No. 141, decided October 13, 1972. To require respondent to provide one-on-one supervision of its employees would place it under an unreasonably burdensome duty. Id.

Here the employee was properly instructed to avoid a dangerous situation, and was specifically instructed how to proceed safely. Furthermore, the means to do so were clearly within the employee’s discretion and control. However, the employee willfully violated the repeated and clear instructions which were given him specifying how the work was to be done in a safe manner. Such an act of the employee cannot constitute the basis for a violation of section 5(a)(1) by the employer where, as here, the employer fully discharged his responsibility under the Act.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 154
JOHN B. KELLY, INC.,
Respondent.

July 17, 1972

BATES, 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 citations issued by the Secretary of Labor (hereinafter referred to as the ‘Complainant’) pursuant to section 9(a), and proposed assessment of penalties thereon issued pursuant to section 10(a) of the Act.

The complaint in the captioned case is evidenced by citations for serious and nonserious violations under the statute and applicable standards dated October 27, 1971. The citation for the serious violation charges a violation of section 5(a) of the Act and ANSI Standard A 10.9(12.5), as adopted by 29 CFR 1518.700(a), as adopted by 29 CFR 1910.12. The alleged serious violation was therein described as follows:

Employer did not furnish to each of his employees employment and a place of employment which were free from recognized hazards that were causing or were likely to cause death or serious physical harm to his employees in that:

Employer did not take adequate precaution in an operation to undercut and remove masonry material from a masonry wall which resulted in the collapse of the wall.

The violation of the aforementioned standard was: ‘Masonry wall was not temporarily shored and braced until the designed lateral strength was reached to prevent collapse due to wind or other forces.’

In addition to the citation for the allegedly serious violation above, the Respondent was cited for three ‘non-serious’ violations as follows:

1. During the course of construction, keep passageways and work areas free of debris. 3rd floor near elevator shaft in area surrounding mason sawing operation [29 CFR 1518.250(a)(3) and 1518.25(a) as adopted by 29 CFR 1910.12].

2. Provide only that quantity of material on mason’s scaffold which will be used in the immediate operation. 4th floor west [29 CFR 1518.250(b)(5) as adopted by 29 CFR 1910.12].

3. Provide cover for floor hole created by missing plank in elevator shaft cover on 5th floor [29 CFR 1518.500(b)(8) as adopted by 29 CFR 1910.12].

The proposed penalties for the three violations were $14, $14, and $16, respectively. A penalty of $550 was proposed for the serious violation. The dates on which these violations were to be corrected were set forth as ‘immediately.’

The Respondent filed a timely notice of his intention to contest the aforesaid citations in all respects, and the cause was referred to the Commission for hearing pursuant to section 10(c) of the Act on November 8, 1971. On December 9, 1971, the undersigned was assigned to hear the case pursuant to section 12(e) of the Act.

After some unavoidable delay, the hearing was held on March 28, 1972, in Philadelphia, Pennsylvania.

At the commencement of the trial the Respondent asserted that the three non-serious violations (above) were in fact violations of the standards as charged, and that the abatement periods and proposed penalties were reasonable and proper (Tr. 37).

The Respondent further averred that he did not object to the penalty proposed for the serious violation, nor the abatement period proposed therefor (Tr. 38).

It was agreed that the only issue in dispute was whether or not the Respondent violated section 5(a)(1) of the Act, in the manner referred to above (Tr. 38).

Having heard the testimony of the witnesses and having considered the same together with the exhibits and the stipulations, representations and admissions of the parties, it is concluded that substantial evidence, on the record considered as a whole, supports the following findings of fact.

FINDINGS OF FACT

(NOTE: The letter ‘s’ following the transcript page reference indicates those facts were stipulated to.)

1. The Respondent, John B. Kelly, Incorporated, is a Pennsylvania corporation maintaining its principal office and place of business at 1720 Cherry Street, Philadelphia, Pennsylvania (Tr. 9).

2. The Respondent is a large masonry construction firm operating within the Philadelphia area, and generated in excess of one million dollars annual volume of business for the years 1970–1971.

3. The Respondent is engaged in the business of masonry subcontracting and is engaged in construction and reconstruction. It regularly receives goods and materials that have been produced and shipped in interstate commerce. It is an employer engaged in business affecting commerce who has employees as defined by section 3(5) of the Act, and is subject to the regulations and standards promulgated thereunder (Tr. 9).

4. The Respondent was, from sometime prior to July 1, 1971, and is still until the present time, a subcontractor engaged in the performance of work under Contract No. GS–02B–16026 awarded by the Government of the United States to McCloskey & Company for the construction of a federal building at 6th and Market Streets, Philadelphia, Pennsylvania (Tr. 9, 10).

5. Sometime in August 1971 the Respondent’s employees constructed a wall at the site of the federal building at 6th and Market Streets. This wall was constructed of 8‘ cinderblock in the proposed lobby of the building (Tr. 10).

6. The Respondent has no prior history of violations under the Occupational Safety and Health Act (Tr. 10).

7. The Respondent employed approximately 48 employees on or about September 27, 1971, at its workplace at 6th and Market Streets.

8. The Respondent represents that it has properly posted the citation and notice of hearing at its workplace (Tr. 10).

9. Sometime in August 1971, an 8‘ cinderblock wall was constructed by the Respondent in the proposed lobby of the new federal building at 6th and Market Streets. The plan of that wall is shown on Petitioner’s Exhibit C–6. The wall is a free standing wall in that it is not ‘tied in’ to the ceiling and is approximately 17 feet in height. Running vertically through the wall is a space left for a metal mail chute. At the bottom of the mail chute, approximately 3 feet above the floor, is a recessed aperture for a mailbox. At the time the wall was constructed, the metal mail chute and mailbox were not available for insertion in place and the space was left to accommodate the chute and box (Tr. 24)s.

10. Shortly after the wall was constructed, Mr. Roy Erickson architectural engineer at the building site, advised Mr. Erb, McCloskey & Company’s superintendent on the building site, that the wall was in his opinion dangerous as originally constructed and should be partially torn down and rebuilt (Tr. 53).

11. Mr. Erickson’s employer, Federal Court Architects and Engineers of Philadelphia, drafted the plans for the building, including the wall in question. The General Services Administration approved those plans (Tr. 49, 58).

12. Mr. Erickson’s duties on the building site were to oversee construction and see that all construction was done according to the plans. It was his duty to report any defective construction to the primary contractor, McCloskey and Company (Tr. 58).

13. Mr. Erickson on ‘at least several occasions’ told McCloskey and Company of the defective wall after the wall was constructed and was assured by McCloskey and Company that it would be torn down (Tr. 59, 60, 61).

14. It was customary business practice on the part of Mr. Erickson and Federal Court Architects and Engineers of Philadelphia to send written letters of transmittal and reports to McCloskey and Company and John B. Kelly, Incorporated, when serious defects in construction became known (Tr. 61, 62).

15. Although during the time the dangerous wall was standing, many such letters of transmittal and reports were sent by Mr. Erickson and G.S.A. to McCloskey and Company and John B. Kelly, Incorporated, concerning other construction defects, no mention of the ‘dangerous’ wall was made in these letters of transmittal and reports (Tr. 62, 63).

16. For the purpose of supporting the wall, a wooden frame was placed by the Respondent’s employees in the position where the mailbox would be inserted. This frame is shown in blue on Exhibit C–6 with the long dimension running vertically and the short dimension running horizontally (Tr. 24, 25)s.

17. The wall referred to in the previous Finding was constructed sometime in August by John B. Kelly, Incorporated, as a subcontractor to McCloskey and Company under the Government Contract No. GS–02B–16025, and John B. Kelly’s employees constructed the wall at that time.

18. In August of 1971 it was ascertained that the mailbox, which is delineated in blue on Exhibit C–7, had been placed incorrectly and would have to be turned to a position as indicated by the red box appearing on Exhibit C–7 (Tr. 25)s.

19. On September 27, 1971, Eugene [redacted] and Clement Jefferson, employees of the Respondent, were instructed to perform alteration work on the aperture which was to accommodate the mailbox. Mr. William Sutton, an employee and supervisor of the Respondent, instructed [redacted] and Jefferson to physically turn the wooden frame placed in the mailbox aperture so that the long dimension would now run horizontally and the short dimension would run vertically (Tr. 26).

20. William Sutton orally instructed Mr. [redacted] to brace or shore this vertical wall with two diagonal 4‘ 4‘ beams before [redacted] was to remove the frame that was in the position as shown by the green line on Exhibit C–8 (Tr. 26).

21. Exhibit C–7 shows the wall at the time Mr. [redacted] started the modification job he was assigned to do by Mr. Sutton. The frame for the mailbox is in the vertical position (Tr. 27).

22. Exhibit C–8 is what was proposed to be done. The wall would have to be cut out or undercut a distance of 13’ to the right. The frame would have to be removed and turned with the longest dimension running horizontally. There would also have to be some cutting of a wall that was standing adjacent to the mail chute to the left, a 6’ cut in that was necessary (Tr. 27)s.

23. Referring to Exhibits C–7 and C–8, Mr. Sutton instructed Mr. [redacted] to place a diagonal brace against the wall somewhere above the lintel and to ‘tie it into the wall’ so that the edge of the brace would fit into the wall and run diagonally to the ground in two dimensions, (Tr. 29)s.

24. Sometime after Mr. Sutton spoke to Mr. [redacted] on September 27, 1971, Mr. [redacted] proceeded to do the job that he had been instructed to do (Tr. 29)s.

25. Subsequent to Mr. Sutton’s instructions and after Mr. [redacted] had commenced on the job, Mr. Roy J. Erickson, architectural engineer on the project, had occasion to visit the work site where Mr. [redacted] was engaged and told him to get away from the job, that he was jeopardizing his life, and told Mr. [redacted] that Mr. Erickson intended to see his supervisor. He told Mr. [redacted] that the wall was not shored or braced properly and that he should get away from there because it was dangerous (Tr. 29)s.

26. When Mr. Erickson observed Mr. [redacted] working on the wall, he did not observe any diagonal bracings supporting the wall (Tr. 30)s.

27. Subsequent to Mr. Erickson’s visitation, Mr. James Butler, the Safety Engineer for the general contractor, McCloskey and Company, visited the work site and he observed Mr. [redacted] working on the wall and that he was just about ready to remove the frame. Butler told [redacted] to get away from there, that it was dangerous and that the wall was not properly braced. Mr. Butler also did not observe any diagonal bracings at that time (Tr. 30)s.

28. Mr. Butler returned about 20 minutes to one-half hour later and observed Mr. [redacted] still working on the wall without the diagonal bracings and again warned him to get away from the wall, that the situation was dangerous (Tr. 31)s.

29. Subsequent to Mr. Butler’s second visit, Mr. William Sutton again returned to the work site sometime around 10:00 a.m. or 10:15 a.m. and observed Mr. [redacted] working on the wall. There were still no diagonal bracings in place.

30. Mr. Sutton observed that Mr. [redacted] had placed a vertical 4‘ by 4‘ brace vertically in the opening from whence he had removed the frame as shown on Exhibit C–8. (s)

31. Mr. Sutton advised [redacted] to place the diagonal bracings as he had been previously instructed to do, in that the present condition of the wall was dangerous. Sutton advised that when [redacted] would begin to undercut the aperture the wooden frame would have to be removed and that the wall might collapse unless the diagonal bracings were in place. Sutton left sometime within about two or three minutes after his conversation with Mr. [redacted] (Tr. 31, 32)s.

32. Subsequent to Mr. Sutton’s leaving the site, Mr. Clement Jefferson testified that Eugene [redacted] said to him, ‘I wonder what is going to happen when I remove this vertical shore.’ [redacted] did remove the vertical shore and the wall came down and crushed Mr. [redacted] sometime around 10:30 a.m. to 10:45 a.m.

33. The diagonal bracings ordered by Mr. Sutton, the superintendent for the Respondent, had never been put in place.

34. Mr. Erickson and Mr. Israel Kremer, also an architectural engineering representative, testified that the wall, without the wooden frame, would be dangerous unless it was shored or braced properly. The wall would become more dangerous as Mr. [redacted] continued to undercut 13 inches into the base of the wall, which would leave a 5–4‘ wall resting on a 2–4‘ base (Tr. 32 and Exhibit C–8)s.

35. The job that had been assigned to [redacted] to perform involved not only the turning of the box as shown in Exhibit C–8, but the building of a ‘return’ of cinderblock to the left below the lintel as it appears on Exhibit C–8. Thus, the opening which appears opened on this exhibit would now be closed, and the opening above the red line would be filled in with cinderblock all the way back to the position of the mail chute (Tr. 33)s.

36. The construction referred to in the previous Finding of Fact would obviously prevent shoring from being put in the opening in a vertical position since it would have to be removed from the rebuilding of the return wall and, therefore, the instructions given by Mr. Sutton about diagonal bracing was necessary to properly perform the alteration job (Tr. 33)s.

37. After the wall collapsed the plans were changed so as to provide more lateral support (Tr. 69–72).

38. The parties stipulated that a Compliance Officer for the District Office at Philadelphia, Mr. Elmo Daugherty, made an accident investigation on September 29, 1971, two days after the accident; interviewed a number of these persons who would have testified; and on the basis of his interviews, prepared a report. He submitted his report to his supervisor, Mr. Donald Allendorff. Mr. Allendorff, based on the report submitted by Mr. Daugherty, issued the citation for the serious violation, for the abatement period, and the proposed penalty. Mr. Allendorff also issued nonserious violation citations (Tr. 39)s.

39. In September 1971 the wall was materially changed by two employees, Eugene [redacted] and Clement Jefferson. These men were employees of John B. Kelly, Incorporated, the Respondent (Tr. 41)s.

40. Mr. Markegene, witness for the Respondent, testified that shoring instructions had been given to [redacted] by William Sutton (Tr. 45)s.

41. Mr. Roy J. A. Erickson, an engineer who works for Federal Court Architects and Engineers of Philadelphia, testified at some length to the conditions that existed prior to and at the time of the accident (Tr. 47–81).

42. Erickson testified that the wall that was constructed was not tied into the ceiling and was a free standing vertical wall, roughly about 18 feet high. This wall was not tied into the ceiling in any way. There was a 9 inch recess that ran vertically for a distance of about 13 feet from the top. At the base of this recess or mail chute was an opening in which a mail box would be placed. When this wall was observed in August 1971 the mail box opening was 4X3 26’. This mailbox was placed in a vertical position incorrectly and it should have been in a horizontal position. The mail chute and mailbox were not placed in the wall at the time it was constructed, because this material was not on the job site (Tr. 28–50).

43. Erickson testified that to properly have built the wall, the mailbox and the chute should have been on the job and installed. The chute itself indicates on the drawing that it is to be imbedded in the 8-inch concrete masonry unit wall. Instead of that the Respondent elected to build a chase, an open chase. From the column to the chase was a masonry wall about 16‘ long and then there was a chase which was entirely open and then the other section of the wall was about five feet long (see exhibit C–6) (Tr. 51).

4. The mail chute was approximately 3 5/8 inches deep and about 8 3/4 inches long, so that the depth would have received a number of inches of concrete block on either side of the chute itself and the wall would have all been tied in together (Tr. 52).

45. The wall was not tied in and therefore was free standing and stood in this condition for approximately two months (Tr. 52).

46. The frame that was placed into the wall where the mailbox would be placed actually supported the wall at the time the wall was constructed (Tr. 53).

47. Erickson testified that he observed that the frame had been placed in the wall incorrectly and would have to be removed. His recommendation was, therefore, that the wall be torn down completely to the bottom of the frame and that this procedure was agreed upon by the Respondent (Tr. 53).

48. Erickson testified that it was Mr. William Sutton who had agreed to tear the wall down completely to the bottom of the frame (Tr. 53).

49. On cross examination, Mr. Erickson testified that he did not think it was proper that the wall should have been built in August 1971 before the mail chute and mailbox arrived on the job site and incorporated in the constructed wall (Tr. 72).

50. Erickson testified that they (the Respondent) assured him that they would not touch the wall, that it was going to be removed and torn down and built properly. ‘If they had followed the plans of specification at that time, everything would have been just fine’ (Tr. 78. See also Tr. 80 and 81).

51. Erickson answered in the affirmative that it was his opinion that the wall free standing without the mailbox and chute created a hazard, and that a further hazard existed because of the fact that the box or frame was in the wall incorrectly and subsequent work would have to be done (Tr. 81).

52. Mr. Jefferson, Mr. Sutton, Mr. Butler, Mr. Erickson, Mr. Stevenson, Mr. Kremer, and Mr. Vallery were all present at the hearing held in this matter on March 28, 1972. Mr. Markegene, witness for the Respondent, acknowledged that the GSA general order for accident and fire prevention in construction and alteration work, referred to as document PBSP 5900.3, had been received by the Respondent and a copy was in their office (Tr. 101).

53. William Sutton was assigned by Mr. Markegene as supervisor of the entire masonry construction job at the federal courthouse. Part of this job was the construction of the wall in question (Tr. 103, 104).

DISCUSSION

The basic relevant facts in the instant case as detailed above have been stipulated to by the parties and are not here in dispute.

The facts indicate that the 17 foot free standing masonry wall, which collapsed and killed Eugene [redacted] on September 27, 1971, was unsafe at the time of its erection in August of 1971, and on September 27th at which time the modification of the wall was attempted. The Complainant has presented testimony that in August of 1971, Mr. Erickson, the architectural engineer, advised the company that the free standing wall was unsafe and would have to be torn down to a 2 1/3 foot base. Mr. Erickson testified that the wall was likely to collapse because the metal mail chute and mailbox had not been installed in the wall at the time of its construction and that Mr. William Sutton, Respondent’s supervisor, had agreed on behalf of the Respondent to tear the wall down.

The wall was not torn down by the Respondent, and on September 27, 1971, Eugene [redacted], an employee of the Respondent, together with a co-worker, Mr. Clement Jefferson, were instructed to perform certain modifications thereon. On the day in question Mr. Sutton orally instructed Mr. [redacted] to provide two diagonal 4‘X 4‘ braces to the wall before he attempted the modification job. Subsequent to Mr. Sutton’s instruction, Mr. [redacted] commenced the work in contravention of the instructions of his supervisor. Additional testimony of Mr. Butler, Mr. Erickson, and Mr. Sutton, showed conclusively that these three men, within a period of two hours, observed the conditions under which Mr. [redacted] was attempting to modify the wall and together, warned [redacted] five times, of the dangerous and hazardous condition that existed.

In summary then, the hazard of a possible collapse of the wall likely to cause death or serious physical harm to employees was known to William Sutton, Respondent’s supervisor, assigned by the Respondent as supervisor in charge of the masonry work in question, and to others who enjoyed no supervisory power over the employee. Mr. Sutton was at the site of the wall collapse at two different times on the morning of September 27, 1971, prior to the collapse of the wall. Both times he warned Mr. [redacted] to follow the instructions given to him as to the diagonal bracing of the wall in question.

The undersigned also notes that Mr. Erickson and Mr. Israel Kremer, the architectural engineering representative, both testified that the wall which was sought to be modified would constitute a dangerous condition unless it was properly braced with diagonal bracings. Further testimony elicited from the witnesses showed that the rectangular wooden frame that was supporting the wall would have to be removed from Mr. [redacted] to complete his modification task. When this frame would be removed by Mr. [redacted], then the 17 foot high free standing masonry wall which was 56‘ in length would be resting on a 24‘ base without appropriate or adequate support.

In September of 1971 the Respondent, who had constructed this wall, undoubtedly recognized the hazards of the wall collapsing and injuring persons, since according to the undisputed testimony, William Sutton advised the employee who was to perform the modification on the wall to diagonally brace the wall. There can be no question that the diagonal bracing instructed to be placed by Mr. Sutton would be for no other purpose than to prevent the collapse of the wall. Subsequently, Erickson and Butler warned [redacted] of the serious condition. In fact, Erickson testified that he went to various locations at the work site looking for Sutton to advise Sutton of the imminent danger occasioned by [redacted]’s work on the wall. Sutton again returned to observe [redacted] performing his work. At the time of Sutton’s return, the diagonal braces were still not in place.

The evidence makes it abundantly clear that with full knowledge of the serious hazard represented by the free standing wall, Mr. Sutton, the Respondent’s supervisor, twice observed the deceased employee commencing the wall modification work without first bracing the said wall with diagonal supports, which procedure was contrary to Sutton’s instructions.

On each occasion (and most decidedly on the second occasion) the Respondent, then standing in the shoes of its supervisor Sutton, and obliged under the Act, to furnish to its employees a working environment free from recognized hazards as well as from the viewpoint of practical on-the-job safety principles, had the duty and obligation to insist and insure that the errant employee comply with the bracing directives before proceeding further with the precarious modification. The evidence demonstrates, however, that the Respondent, through Mr. Sutton, failed to meet either the statutory or the common-sense obligation noted above, when he merely cautioned the employee of the danger involved in continuing the modification attempt in disregard of the bracing instructions. Mr. Sutton at that time had the obligation to remain on the scene in order to insure that the employee who had twice contravened the instructions, had properly carried them out.

The Respondent argues that such a procedure would require the employer to furnish one supervisor for each employee, an ‘enormous’ burden and one which Congress did not intend under the Act. It appears clear to the undersigned that on the facts in this case, as outlined immediately above, the Respondent’s ‘one on one’ argument is at the very least, misplaced.

The facts clearly show that had Mr. Sutton simply remained with or periodically checked the employee on either of the two specific occasions on which he directed the required diagonal bracing to be set up and thereby insured that the construction of the bracing had been commenced and completed, the Respondent’s statutory and non-statutory obligations would have thus been met. Such a simple ‘one shot’ surveillance or observation designed to insure that the employee was carrying out safeguards ordered for his welfare, and the welfare of others at the work site, falls far short of constituting the ‘enormous’ burden which the Respondent perceives as ‘furnishing one supervisor for each employee’ and a ‘one on one’ basis, and was an obligation which the Respondent could and should have assumed, in order to render the workplace hazardless.

In its proposed conclusions of law and reply memorandum the Respondent in effect additionally argues that the Secretary’s action was brought against the wrong Respondent, and that it was the general contractor, the Government Services Administration, and the Federal Court Architects and Engineers of Philadelphia, who violated the Act. This contention is based inter alia on the proposition that the Respondent’s ‘sole responsibility for the construction of the wall simply was to carry out the orders given by McCloskey and Co.;’ that McCloskey and Co. and the aforementioned groups ‘allowed’ the obviously unsafe wall to stand unsupported; that the Respondent having no ‘control or knowledge of the plans for the wall’ could not have recognized its inherent defects; that the site of the tragic accident was not a ‘place of employment’ of John B. Kelly, Inc., the Respondent; that the deceased employee, Mr. [redacted], was contributorily negligent, and Sections 5(a) and 17 of the Act ‘imply’ that contributory negligence is a defense to a citation for violation of the Act, as is the showing of assumption of risk on the part of Mr. [redacted] which is demonstrated in the record.

The main thrust of the Respondent’s contentions involves the premise ‘that because the primary contractor was the ultimate employer and was directly responsible for activities on the building site, the ‘place of employment’ was that of McCloskey and Co.,’ and not the Respondent.

In his reply memorandum the Respondent perceives the salient issue in this case as the ‘placement of responsibility under the Act for the collapse of a wall at the site of construction of a federal court house . . .’ and infers that the complainant has obscured this issue, persistently refusing to deal with facts relating to who was responsible for the construction of the wall in question, and reasserting its position as noted above that it was the general contractor, and not the Respondent who had responsibility for the actual construction of the wall. The Respondent urges that it was ‘actually the employee’ of the general contractor and ‘as such, was only the innocent instrumentality of McCloskey and Co. in building the wall.’ The Respondent further argues that since McCloskey and Co. was the primary contractor responsible for the erection of the wall, it was also responsible for correcting the wall’s defects; that the Respondent was not responsible for the wall being without lateral support; that it was McCloskey and Co. which ordered the alteration or modification work on the wall; and repeats that the Respondent’s sole function in the construction and alteration of the wall was to carry out instructions of the ‘ultimate employer on the job site,’ and it exercised reasonable diligence in doing so.

I do not agree with the Respondent’s contentions as outlined in its memoranda, and as referred to above.

The single issue remaining for determination in this case is whether or not there was a serious violation by the Respondent under section 5(a)(1) of the Occupational Safety and Health Act.

As the Complainant has asserted, section 5(a)(1) ‘is forceful in its brevity.’ It reads:

Sec. 5. (a) 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 or serious physical harm to his employees.

This is the salient issue under the statute involved and the issue is not, as the Respondent argues, ‘the placement of responsibility under the Act for the collapse of a wall. . . .’ We are here concerned with a remedial statute designed inter alia to assure safe and healthful working conditions for ‘every working man and woman in the Nation.’ Section 5(a)(1) above, of that statute is clear and unambiguous in its face, and does not lend itself to being distorted, perverted or weakened by interpretations of its plain meaning which may spring from tort, agency or contract law, applicable in other non-statutory contexts.

The question of the Respondent’s tort liability and its collateral aspects involving the law of agency and/or contracts is not at issue here, and may not serve to either diminish or eliminate the Respondent-employer’s general duty under the Act to furnish to each of his employees employment and a place of employment free from recognized hazards.

In view of the above, it would then follow that the employer’s ultimate compliance responsibility may not be diminished by principles of tort law, including the principle of contributory negligence.

Responsibility for compliance with the Act is not transferred from the employer to his employee. Such a consequence is contrary to the Congressional intent underlying the Act as stated in Senate Report No. 91–1282, 91st Cong., 2nd Session, 1970, at page 149, wherein it is stated:

The committee does not intend the employee’s duty provided in section 5(b) of the Act to diminish in any way the employer’s compliance responsibilities or his responsibility to assure compliance by his own employees. Final responsibility for compliance is with the employer.

In a strikingly similar case, cited by the Complainant, Review Commission Judge Joseph L. Chalk, in treating with the employer’s contention that he was blameless on principles of tort law, asserted, and as to that specific issue I am in agreement with his views as expressed below:

While other contractors or individuals in similar factual settings may be responsible under tort law for their actions of commission or omission that result in death or injury to another’s employee, such a fact, when established, does not relieve the employer in question of his unique obligation under the Act to furnish each of his employees a place of employment free from recognized hazards . . . especially under the circumstances where the employer perceives the potentiality of a hazard and initiates measures calculated to avoid it.[1]

In line with the last portion of the above quotation the Complainant notes that William Sutton, employed by the Respondent as a supervisor, similarly ‘perceived’ the potentiality of grave harm to employees at the work site which the modification of the wall presented, and Sutton also ‘initiated’ (but did not complete) ‘measures calculated to avoid’ the recognized hazard.

There is no doubt that because of the number and variety of ‘employers’ on a given construction site at one time, and the contractual pyramid under which such projects operate, an Occupational Safety and Health Administration compliance officer may find it difficult in certain situations to determine which of these ‘employers’ violated the general duty clause (see paragraph 13(a)(2)(d) of Chapter VII of the OSHA Compliance Operations Manual), as such clause pertained to its employees, but on the facts in the captioned case it appears only too clear that the dictates of the general duty clause extended uniquely to the Respondent named herein, and not to the general contractor, McCloskey and Co. as the Respondent contends.

The evidence demonstrates that the Respondent on September 27, 1971, when the wall collapsed, exercised effective control of at least that specific area of the overall general work environment where the modification work was initiated; that the only employees there and then affected by the hazard were employees of the Respondent out of a total of approximately 48 workers which the Respondent employed at the workplace on that day; that the Respondent recognized the wall and the modification thereof as a hazard; that the supervisor empowered to direct the modification work and give orders to the workers involved therein was an employee of the Respondent; that the employee killed in the wall collapse was employed by the Respondent; that the last clear chance to rectify or eliminate the recognized hazardous condition resided in the Respondent, through its supervisor, Mr. Sutton.

These facts clearly indicate that it is the Respondent (who conceded it is an ‘employer’ within the meaning of the Act) and not McCloskey and Co., the general contractor (as the Respondent contends) who breached its general duty to its employees, by failing to furnish the said employees with a non-hazardous work site.

The instant situation is clear on its face and is not susceptible of being distorted by contentions based upon non-statutory concepts, and principles of torts, contracts and agency. The prime actor here from the statutory standpoint was the Respondent. The attempt of the Respondent to stretch section 5(a)(1) of the statute so that its general duty clause covers McCloskey the general contractor, who remained comparatively absent and remote from the activities described above relative to the wall, appears utterly without foundation, either factual or legal.

In summary therefor, substantial evidence exists to support the conclusion that the Respondent in the captioned case, violated section 5(a)(1) of the Act by failing to furnish to the employees employment and a place of employment free from recognized hazards causing or likely to cause death or serious physical harm to said employees. The Respondent’s failure in this regard being manifested by a lack of adequate supervision in the carrying out of an undercutting and removal operation of masonry material from a free standing masonry wall which inadequate supervision resulted in the wall’s collapse and the unfortunate death of one of the Respondent’s employees.

CONCLUSIONS OF LAW

Based upon all of the foregoing, the undersigned concludes that:

1. Jurisdiction of this proceeding is conferred upon the Occupational Safety and Health Review Commission pursuant to section 10(c) of the Occupational Safety and Health Act of 1970.

2. At all times relevant herein, John B. Kelly, Incorporated, the Respondent, was an employer engaged in a business affecting commerce and employed employees within the meaning of section 3(5) of the Act and is subject to the requirements of the Act.

3. The employer did not furnish to each of its employees, employment and a place of employment which were free from recognized hazards that were causing or were likely to cause death or serious physical harm to said employees, in that:

(a) The employer did not take adequate precaution or provide proper supervision in an operation to undercut and remove masonry material from a masonry wall, which ultimately resulted in the collapse of the wall; and

(b) The employer did not temporarily shore or brace, or cause to be shored or braced, a masonry wall until the designed lateral strength was reached to prevent collapse due to wind or other forces, as required by ANSI Standard A 10.9(12.5) as adopted by 29 CFR 1518.700(a), as adopted by 29 CFR 1910.12.

4. A recognized hazard, likely to cause death or serious physical harm, exists where the Respondent fails to insure through adequate supervision, the adequate diagonal bracing and supporting of a free standing masonry wall, 17 feet in height, 54‘ in width, prior to undercutting said wall, so that it will stand only on a 24‘ base.

5. The Respondent violated section 5(a)(1) of the Act in that it failed to furnish to each of its employees, employment and a place of employment which were free from recognized hazards that were causing or were likely to cause death or serious physical harm to its employees, in the manner and means noted above.

6. This violation constituted a serious violation of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 654), and the penalties proposed by the Philadelphia Area Director of the Occupational Safety and Health Administration were reasonable, proper, and warranted under the circumstances.

7. While the Respondent does not dispute the proposed penalty of $550.00 for the aforesaid violation as being unjust or unreasonable, in view of the gravity of the hazardous condition which the Respondent permitted to exist, and the resultant related fatality, the said penalty is concluded to be inappropriate.

8. The Respondent violated section 5(a)(2) of the Act in his admitted non-compliance with the following safety standards promulgated thereunder:

(a) 29 CFR 1518.250(a)(3), as adopted and described in Item 1 of the Citation (nonserious).

(b) 29 CFR 1518.250(b)(5), as adopted and described in Item 2 of the Citation (nonserious).

(c) 29 CFR 1518.500(b)(8), as adopted and described in Item 3 of the Citation (nonserious).

9. The reasonableness of the abatement periods applicable to the aforesaid violations is not disputed by the Respondent and under the pertinent facts and circumstances were properly fixed.

10. The total proposed penalty assessed for the nonserious violations, which amounted to $44.00, while not opposed by the Respondent is found to be inappropriate and unsuitable in that the assessment of such penalty in light of other relevant factors including good faith, fails to serve any useful purpose in effecting continuing and future compliance on the part of the Respondent with the letter and spirit of the Act.

ORDER

In view of all the foregoing, and good cause appearing therefore, it is ORDERED that:

1. The applicable proposed penalty of $550.00 relating to the Citation for Serious Violation is reassessed to $1,000.00.

2. The Citation alleging the ‘non-serious’ violations, as described in Items 1 through 3 therein, is affirmed in all respects, except that the total proposed penalty of $44.00 assessed for such violations is hereby vacated.

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[1] (See Secretary of Labor v. Thorlief Larsen & Son, Inc., OSHRC Docket No. 370; reported in BNA Occupational Safety and Health Reporter, 57, June 1, 1972, at pages 1255–1256.)