UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY
OF LABOR, |
|
Complainant, |
|
v. |
OSHRC
DOCKET NO. 76–2644 |
KUS-TUM
BUILDERS, INC., |
|
Respondent. |
|
October 30, 1981
DECISION
Before: ROWLAND, Chairman; CLEARY and COTTINE,
Commissioners.
BY THE COMMISSION:
A
decision of Administrative Law Judge Cecil L. Cutler, Jr., is before the
Commission pursuant to section 12(j), 29 U.S.C. § 661(i), of the Occupational
Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’). Judge Cutler
affirmed a citation alleging that Respondent, Kus-Tum Builders, Inc.
(‘Kus-Tum’), violated section 5(a)(1) of the Act[1] in that its employees who
were engaged in truss erection operations were working on or under large wooden
trusses which were not provided with adequate bracing to prevent toppling and
‘dominoing.’ The judge, however, concluded that the Secretary of Labor (‘the
Secretary’) failed to prove that the violation was willful, as alleged. The
Secretary petitioned for discretionary review by the Commission on the grounds
that Judge Cutler erroneously concluded that the violation here was not willful
and that he erred in reducing the penalty from the $5,600 originally proposed
to $700. Commissioner Cleary directed review on the two issues raised by the
Secretary.[2] For the reasons set forth
below, we conclude that the judge erred in vacating the willful allegation and
assessing a reduced penalty.
I
At
the time of the violation at issue, Kus-Tum’s work crew was engaged in erecting
prefabricated wooden roof trusses at a one-story, rectangular commercial
building, 60 feet wide and 250 feet long, which at the time had 10-foot high
concrete walls on three sides and an open fourth side consisting of steel
columns and bearing beams. Each roof truss was triangular in shape, nearly 70
feet long at the base and 12 feet high at the arch, and each weighed 1000 at
1200 pounds. A crane lifted each truss into position so that it straddled the
width of the building, standing vertically and parallel to the other trusses at
approximately 2-foot intervals. The individual trusses were then connected to
each other by nailing strips of ‘2x4’ wood to the trusses to serve as bracing.
Bracing can be diagonal (e. g., a 20-foot strip connecting the edges of five or
six parallel trusses), cross (two diagonals overlapping in the shape of an
‘x’), or lateral (e. g., a short strip of wood inserted horizontally between
two adjacent trusses). The purpose of the bracing is to stabilize the roof
structure and to keep the individual trusses plumb so that they do not topple
over against each other like dominoes.
According
to testimony at the hearing before Judge Cutler, prior to the commencement of
the truss erection operation, the superintendent of the general contractor on
the construction job had discussed the blueprint for the project with Kus-Tum’s
chief officer, Anthony Amato, and had emphasized the necessity of having
adequate bracing for the trusses. Amato testified later that the specifications
called for diagonal bracing every 20 feet. Amato had also reviewed, in
preparing for the project, a truss industry pamphlet that again emphasized the
need for diagonal bracing. Early on the day of the violation at issue, the
superintendent expressed his concern to Amato that more bracing was required.
Amato assigned one of his crew members to the task. Nevertheless, during a
break later that afternoon, crew members also became apprehensive about the
instability of the forty-five trusses that had been erected. Five crew members
testified that they had complained to Amato and to his foreman, Anthony Leanza,
that some of the trusses were leaning. The workers were told that the crew
would continue to erect additional trusses and then install more bracing at the
end of that work day or the beginning of the next. When some of the crew balked
at re-mounting the trusses to resume work following the break, Amato told them
to get back to work or go home. Shortly thereafter, the truss structure began
to creak and suddenly all of the trusses toppled over. Amato, who was working
beneath the truss structure at the time, was hospitalized as a result of the
collapse. One of the workers was killed.
At
the hearing, the nature and adequacy of the bracing provided for the trusses
was sharply disputed. Amato conceded that truss erection is a very hazardous
operation, particularly when it involves long trusses of the type used here. He
also testified that the truss structure had been braced diagonally every 20
feet and that he would never put up forty-five trusses without attaching
diagonal bracing. He specifically denied that anyone had told him that there
was inadequate diagonal bracing and maintained that, up until the time of the
incident, he had remained satisfied with the stability of the trusses. Leanza,
Amato’s cousin, testified that diagonal bracing had been used approximately
every five trusses and that Amato and the deceased employee, Azzaleno, had done
the work, Amato cutting the pieces for the bracing and Azzaleno installing
them. Leanza, too, asserted that no one had complained that the trusses were
out of plumb.
In
direct conflict with this testimony, the OSHA compliance officer, two truss
experts and a city building inspector testified that, following the collapse,
they found no evidence of cross or diagonal bracing connecting the trusses and
further concluded that the bracing that had been used was inadequate. They
specifically noted the absence both of bracing material in the collapsed debris
and also of nail holes in the trusses where cross or diagonal bracing would
have been attached. Moreover, five crew members asserted that the bracing had
appeared inadequate at the time.
II
In
his decision, Judge Cutler found that a question of fact had been raised as to
whether the collapse was initiated by the truss structure’s having been struck
by a wildly swinging truss suspended from the boom of the crane or as a result
of the inherent weakness of the structure. Nevertheless, he correctly reasoned
that the cause of the collapse need not be determined in this proceeding
because, if the trusses were not adequately braced, a violation existed
regardless of the cause of the accident. The judge found that the trusses
erected after the first five were not adequately braced and that they did not
conform to recognized industry safety standards. Specifically, he found that
only lateral braces with spacers were provided on most of the later trusses.
With regard to the disputed factual issues in the case, the judge implicitly
discredited the testimony of Leanza and Amato. For example, the judge rejected
their assertions as to the extent and the adequacy of the bracing that was
provided and also cited and relied upon the conflicting testimony of the
employees as to the events preceding the incident. Judge Cutler concluded that
the evidence sustained the section 5(a)(1) charge and further found that collapse
of the trusses would cause death or serious physical injury to Respondent’s
employees and also that Respondent’s chief officer, Amato, and foreman, Leanza,
knew or should have known of the hazard. Accordingly, Judge Cutler found
Kus-Tum in serious violation of section 5(a)(1) of the Act.
Judge
Cutler concluded, however, that the violation was not willful as alleged. The
judge noted Amato’s testimony that the bracing methods used by Kus-Tum
comported with what he believed to be necessary safety requirements in the
industry. The judge stated, ‘This also appears to be the case with Mr. Leanza.’
The judge further reasoned that both Amato and Leanza apparently believed the
truss structure to be safe for they were working underneath it when it collapsed.
Consequently, he stated that he could not ‘conclude that there was an
intentional disregard of or indifference to a recognized hazard on the part of
respondent such as to constitute a willful flaunting of the statute.’
Accordingly, Judge Cutler affirmed a modified citation for a serious violation
of section 5(a)(1) and assessed a penalty of $700. Nevertheless, he emphasized
that there was ample evidence of the dangerous condition prior to the incident.
He also observed that ‘safety was sacrificed for speed’ and that Respondent had
been ‘unquestionably negligent.’ Moreover, he made an explicit finding of fact
that ‘respondent’s chief officer and foreman knew, or should have known, of the
hazards.’
III
On
review, the Secretary cites record evidence that, in his view, sustains the
willful allegation. He notes Amato’s admission that cross or diagonal bracing
is essential to maintain the stability of the large, heavy trusses used at the
worksite. Moreover, Amato knew that the specifications for the erection of the
trusses called for diagonal bracing. In addition, the prime contractor made
several requests for more bracing on the day of the incident. Nevertheless,
Respondent failed to use cross or diagonal bracing; the materials required for
this bracing were not even at the worksite. Even more significant, in the
Secretary’s view, was Kus-Tum’s failure to respond to the complaints of the
employees.
The
Secretary cites two cases affirming willful violations of section 5(a)(2) of
the Act for the proposition that willfulness implies knowing and voluntary
conduct that disregards employee safety. Georgia
Electric Co., 77 OSAHRC 30/A2, 5 BNA OSHC 1112, 1977–78 CCH OSHD ¶21,613
(No. 9339, 1977), aff’d, 595 F.2d 309
(5th Cir. 1979); C.N. Flagg & Co.,
74 OSAHRC 66/A2, 2 BNA OSHC 1195, 1974–75 CCH OSHD ¶18,686 (No. 1734, 1974), pet. den., No. 74–2362 (2nd Cir. Jan.
12, 1976).
Finally,
the Secretary insists that an employer’s belief or private determination that a
condition is not hazardous cannot defeat a willful charge, citing F.X. Messina Construction Corp. v. OSHRC,
505 F.2d 701 (1st Cir. 1974), and, thus, the Secretary dismisses Respondent’s
argument—relied upon the by judge—that Amato’s asserted belief that the bracing
comported with industry practice and Amato’s own willing exposure to the
alleged hazard should mitigate a finding of willfulness here.
Respondent’s
defense against the allegation of willfulness rests essentially upon two
assertions. First, Respondent argues that there is no record evidence to
indicate Amato’s actual knowledge of the alleged violation. Second, Respondent
insists that it would be unreasonable to believe that Amato would have worked
directly under the 1000 to 1200 pound trusses had he known that they were not
properly braced.
IV
The
Commission characterizes a violation as ‘willful’ if it was committed with
either an intentional disregard of, or plain indifference to, the Act’s
requirements. Mel Jarvis Construction Co,
OSHRC Docket No. 77–2100 (RC, September 30, 1981). This position is consistent
with the views of the United States Courts of Appeals for the First, Second,
Fourth, Fifth, Sixth, Eighth, Ninth, Tenth and District of Columbia Circuits. A. Schonbek & Co. v. OSHRC, 646 F.2d
799 (2nd Cir. 1981); National Steel &
Shipbuilding Co. v. OSHRC, 607 F.2d 311 (9th Cir. 1979); Georgia Electric Co. v. Marshall, supra;
Kent Nowlin Construction Co. v. OSHRC, 593 F.2d 368 (10th Cir. 1979); Cedar Construction Co. v. OSHRC, 587
F.2d 1303 (D.C. Cir. 1978); Empire-Detroit
Steel Division v. OSHRC, 579 F.2d 378 (6th Cir. 1978); Western Waterproofing Co. v. Marshall, 576 F.2d 139 (8th Cir.
1978), cert. denied, 439 U.S. 965
(1978); Intercounty Construction Co. v.
OSHRC, 522 F.2d 777 (4th Cir. 1975), cert.
denied, 423 U.S. 1072 (1976); F.X.
Messina Construction Corp. v. OSHRC, supra.
The
Secretary’s burden of proving willful conduct is notably more difficult when an
employer is charged with a willful violation under a general standard or ‘the
general duty clause,’ section 5(a)(1), rather than a specific standard. St. Joe Minerals Corp. d/b/a St. Joe Lead
Co. v. OSHRC & Marshall, 647 F.2d 840 (8th Cir. 1981). In particular, a
more concrete evidentiary showing is required to prove willfulness in this
context. Where a willful violation of section 5(a)(1) is alleged, the Secretary
has the burden of proving the employer’s intentional disregard of or its plain
indifference to its statutory duty to furnish a workplace free from recognized
hazards that are causing or likely to cause death or serious physical harm. Id. at 848. Thus, ‘there must be
evidence, apart from that establishing knowledge of the hazard, from which we
may reasonably conclude that the employer intentionally disregarded or was
indifferent to the safety of the workplace.’ Id. at 848–849.
Such
evidence is abundant in this record. First, because he was working directly
beneath the trusses, Amato was in a position to see clearly the lack of bracing
and the instability of the trusses. Second, Amato admitted in his testimony
that he knew that diagonal bracing was required in order to secure these
trusses. Third, the prime contractor’s superintendent expressed concern several
times during the course of the truss erection that the bracing was not adequate.
Forth, prior to commencing the job, Amato reviewed a brief industry pamphlet
which contains numerous references to the necessity of adequate bracing,
especially diagonal bracing. Fifth, Amato and Leanza were specifically warned
by as many as five laborers on the jobsite that the trusses were unstable and
required more bracing.[3] Sixth, Amato essentially
conceded the validity of these warnings by telling at least two of the crew
members that the crew would go back and add bracing, but only at the end of the
workday. Seventh, despite ample warning of the hazard, as indicated above,
Amato failed to take any corrective action. Indeed, despite their concern, the
laborers were told to get back to work or to go home. Eighth, expert witnesses
testified that there was no physical evidence of diagonal bracing among the
collapsed trusses at the worksite. In sum, the record clearly establishes
Kus-Tum’s intentional disregard of or plain indifference to ‘the safety of the
workplace’ and its duty under section 5(a)(1) to provide a workplace free from
recognized hazards that are likely to cause death or serious physical harm.
By
way of mitigation on the issue of willfulness, Respondent asserts that there is
no record evidence to indicate Amato’s actual knowledge of the alleged
violation. We reject this assertion. Amato’s statement, reported by two of the
workers, that the crew would defer adding more bracing until the end of the day
belies Respondent’s claim, particularly since at least five different people
complained to him about the instability of the truss structure.
Finally,
Respondent argues that Amato and Leanza would not have continued working
beneath the structure if they had doubted its safety. While an employer can
defend against a willful allegation on the basis of a good faith belief that
its actions complied with the Act, in order to sustain this defense,
Respondent’s asserted belief that the trusses were not hazardous must have been
held in good faith. See Mel Jarvis
Construction Co., supra. Moreover, the test for determining good faith ‘is
an objective one, i. e., was the employer’s belief concerning a factual matter
or concerning the interpretation of a standard, reasonable under the
circumstances.’ Id., slip op. at 5.
Here, the weight of the evidence—including the admitted necessity of diagonal
bracing, the absence of diagonal bracing, the leaning of the trusses, and the
warnings by the workers—does not support a finding of good faith. See Morrison-Knudsen & Associates,
80 OSAHRC 108/A2, 8 BNA OSHC 2231, 1980 CCH OSHD ¶24, 953 (No. 76–1992, 1980).
Furthermore, it is unnecessary to conclude that Amato acted with calculation in
subjecting himself and his employees to conditions which he recognized to be
hazardous. It is sufficient that he acted here with intentional disregard of or
plain indifference to the safety of the workplace. The record amply sustains
this conclusion.
Having
reversed the judge’s determination that the violation was not willful, we must
reevaluate the question of the penalty to be assessed. Although Respondent had
less than twenty employees and no record of previous violations, it cannot be
credited with any good faith here. As to the gravity of the violation, the
following elements must be considered: (1) the number of employees exposed, (2)
the duration of exposure, (3) the precautions taken against injury, and (4) the
degree of probability that an injury would occur. Turner Co., 79 OSAHRC 108/A2, 4 BNA OSHC 1554, 1976–77 CCH OSHD
¶21, 023 (No. 2635, 1976); rev’d on other
grounds, 561 F.2d 82 (7th Cir. 1977). Here, at least six persons were
subjected to the hazard. The duration of exposure was several hours. Respondent
took only meager precautions against injury in providing inadequate bracing.
Given the weight of the trusses and the lack of bracing, we consider the
gravity of the violation to be relatively high. We therefore conclude that the
Secretary’s proposed penalty of $5600 is reasonable and appropriate in light of
the record and the statutory penalty criteria set forth at section 17(j) of the
Act, 29 U.S.C. § 666(i).
Accordingly,
we reverse the judge’s decision insofar as it vacated the willful allegation,
we find that the violation was willful as alleged, and we assess a penalty of
$5,600. SO ORDERED.
FOR THE COMMISSION:
Ray H. Darling, Jr.
Executive Secretary
DATED: OCT 30, 1981
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY
OF LABOR, |
|
Complainant, |
|
v. |
OSHRC
DOCKET NO. 76–2644 |
KUS-TUM
BUILDERS, INC., |
|
Respondent. |
|
December 27, 1976
DECISION AND ORDER
APPEARANCES:
Bobbye D. Spears, Esquire, Regional
Solicitor U.S. Department of Labor, Atlanta, Georgia, by James L. Stine,
Esquire, for complaint.
Ellis S. Simring, Esquire, Ft. Lauderdale,
Florida, for respondent.
Cutler, Judge:
Following
an unfortunate accident resulting in the death of the individual and injury to
two others, respondent was issued a citation on May 28, 1976. Respondent is
charged with a willful violation of section 8(a)(1)[4] of the Occupational Safety
and Health Act of 1970 (29 U.S.C. 651, et seq.) on or about May 19, 1976, at a
worksite located at Bual Shopping Center, 2100 North University Drive, Pembroke
Pines, Florida, in that it ‘willfully failed to furnish each of his (sic)
employees employment which is free from recognized hazards that are likely to
cause death or serious physical harm in that during truss erection operations,
employees were working on or under large wooden trusses which were not provided
with the adequate erection bracing which is always required to prevent toppling
and ‘dominoing”.
The
violation is charged as serious and willful with immediate abatement. A penalty
of $5,600.00 is proposed.
A
hearing was held on September 15 and 17, 1976, in Fort Lauderdale, Florida. No
affected employee or authorized employee representative elected to participate
as a party in the case.
I
While
respondent does not concede jurisdiction under the Act, the probative evidence
establishes that the lumber used to manufacture the trusses used by respondent
generally came from outside the State of Florida (Tr. 174). In addition, the
steel used in the manufacturing of the truss connectors was mostly bought from
mills outside the state (Tr. 209). Accordingly, I find that respondent was an
employer engaged in a business affecting commerce between states.
II
Respondent
is a building construction company and, on the dates pertinent here, was a
subcontractor involved in the erection of a 60-by-250-foot building located in
the Bual Shopping Center, Pembroke Pines, Florida—specifically in connection
with the masonry and concrete work and installation of the roof. On May 19,
1976, during the course of work, approximately 45 roof trusses fell killing one
man and injuring two others.
Respondent
is charged with not providing adequate erection bracing to prevent toppling and
‘dominoing’. The thrust of complainant’s case is that the trusses were not
properly braced in accordance with good safety practice. Complainant further
avers that the cause of the accident is not material to the issue of whether
respondent violated the Act. Respondent argues that the trusses were properly
braced and the toppling of the trusses was caused by external cause—the action
of an uncontrolled and wildly swinging truss suspended on the boom of the crane
used in the erection process.
To
resolve the complicated factual issues involved, a detailed exposition of the
evidence is necessary. The trusses used by respondent in connection with the
roof construction were prefabricated of wood with metal reinforcing connectors
holding the chords together and reinforced by diagonal and vertical webs. They
were triangular in shape, individually weighed 100 to 1200 pounds, and were 69
feet, 4 inches long, and 12 feet high at the top of the arch. The trusses were
hoisted into position by a crane with a spreader bar attached to the boom.
At
this point it may be observed generally that, when several trusses are erected
in the building process, various types of field bracing are utilized between
the trusses and from truss to ground to provide proper spacing and overall
stability of the unitized structure. These include ground bracing, lateral
(also called bridge, straight or continuous) bracing, cross or X-bracing, and
diagonal bracing. In addition, the first brace is tied into the building
structure. As to what types of field bracing were used and their adequacy were
matters hotly contested at the hearing.
According
to the evidence adduced at the hearing, the truss work started on May 18, 1976,
the day before the accident. The first truss was installed with ground bracing
and with anchor or ‘hurricane’ steel straps which were imbedded in the concrete
wall and nailed to the truss. The ground bracing, according to Anthony Leanza,
respondent’s foreman, consisted of four of five two-by-fours extending from the
top of the truss and staked in the ground with stubbing. Four additional
trusses were installed that day which Mr. Leanza testified were braced together
laterally both on the top and bottom and with cross or diagonal bracing.
On
the following morning Mr. Leanza related the five trusses were rebraced with
two-by-ten planking substituted for the two-by-four ground bracing. Thereafter,
about 40 trusses were erected up until 3:20 p.m. that day. Mrs. Evelyn Morman
gave an eye-witness account of the tragic event that followed. She is a
housewife who had been watching the construction activity for the past two days
from her kitchen window west of the work site. According to Mrs. Morman, a
truss suspended from the boom of the crane began swaying back and forth
‘radically’ (Tr. 360, 361). Then all of the trusses swayed north then fell
south. Normally, she said, two men would be positioned to grab and secure a
truss when it was elevated. However, the crew had just completed a coffee break
and the men were unsuccessful in reaching their positions where they could
control the truss.
According
to Mr. Leanza, at the end of the coffee break, the crane operator was in the
cab which was facing toward the west and the boom was up. The crane had started
to move when the trusses started to fall. His testimony was corroborated by Mr.
Anthony Amato, head of the respondent company.
That
the crane was involved in the accident was denied by its operator, Lonnie
Wright, and his assistant (oiler), Kenneth Kogelman, both employees of Gold Coast
Crane Service. Wright testified that he was in his cab when the accident
occurred but that the cab was facing south and the crane was not hooked up to a
truss. His oiler stated that, at the time of the accident, the crane’s boom was
to the southeast and a truss was being hooked up. This would place the boom
almost in an opposite direction from the point of the alleged impact. Victor
Weaver, one of respondent’s carpenters on the job, testified that, at the time
of the accident, the crane was just picking up a truss from the pile and had
not yet moved it inside the building shell. Also another carpenter, Jerry
Layne, who was on top of a beam at the time of the collapse, testified he did
not see the crane.
It is
unnecessary in this forum to determine the cause of the accident—i.e., whether
a wildly swinging truss suspended from the boom of the crane struck the already
erected trusses or whether the truss structure collapsed due to its inherent
weakness. The statute does not require an accident to occur before there can be
a violation of a standard (National
Realty and Construction Co., Inc., 1 OSAHRC 731 (1972), rev’d on another issue 489 F.2d 1257
(D.C. Cir. 1973); Secretary v. Tolar
Construction Co., 13 OSHRC 514 (1974). It is clear that, if the trusses
were not adequately braced, a violation existed even assuming the action of the
crane initiated the accident.
Accordingly,
we turn to the evidence as to the nature and extent of the bracing used in this
case. Complainant presented as a witness, Francis L. Silverberg, a compliance
officer for the Department of Labor. Concerning his qualifications, he
testified that, prior to his employment with the Labor Department, he had been
a state safety representative and also a foreman and superintendent in the
heavy construction industry. On the day following the accident he conducted an
inspection of the job site. He found all of the trusses lying collapsed in the
interior of the building shell. From his examination of the trussed, he found
no evidence of cross or diagonal bracing. This conclusion was reached by the
lack of nail holes in the truss members and the absence of bracing material. He
ascertained that the trusses had been connected to each other with one-by-four-inch
spacers, 25½ inches in length. Also two-by-ten-inch scaffold planks apparently
had been used as lateral bracing. He indicated the ground bracing was deficient
in that the stakes nailed to the braces were not driven far enough in the
ground and would not provide adequate bracing in a southerly direction. It was
his opinion that the trusses lacked sufficient bracing.
The
site was also inspected the day after the accident by William R. McAlpine,
Vice-president of a truss manufacturing company. He is a civil engineer with 17
to 18 years’ experience in the truss industry. He was asked by the supplier to
examine the trusses involved to see if anything was wrong with them. He
determined that the bracing used was six or seven ground braces from the first
truss and six rows of continuous or lateral bracing along the top chords of the
trusses. He saw no evidence of cross or diagonal bracing. In his opinion, ‘some
sort of cross bracing in addition to lateral bracing and extremely secure
ground bracing would be most important’ (Tr. 212).
The
complaint also called as a witness, Silvio Silveria, the estimator and chief
engineer of Mack Industries, a truss designing company. He is a civil engineer
with experience also as a general contractor. Mack Industries prepared the roof
truss layout for the general contractor in this case. From his on-the-site
inspection after the accident, he concluded that the trusses were not
adequately braced.
Richard
Godfrey, the superintendent of the general contractor at the Bual Shopping
Center, testified he told Mr. Amato that the first truss needed more bracing.
The latter agreed and this was done. Bracing for the other trusses was also
discussed several times. He indicated that bridge or straight bracing was used
at the top and bottom chords using one-by-four-inch lumber. The ground bracing
consisted of two-by-ten and two-by-four members.
The
accident resulted in a visit to the scene by Harold B. White, the chief
building inspector for the City of Pembroke Pines. He has 50 years’ experience
in the construction business. His investigation led to a report finding
respondent in violation of the South Florida Housing Code. Specific
deficiencies which he enumerated in his testimony were that there was no braces
to prevent the trusses from falling south, that 8 penny nails were used instead
of 16 penny nails in the anchor straps and in the lateral spacers, and that
there was no diagonal bracing. Had he inspected the site as the trusses were
being erected, he stated he would have stopped the job.
Testimony
of some of the workers at the scene is to the effect the trusses were deficient
prior to the accident and that this was made known to respondent’s supervisory
personnel. Lonnie Wright, the crane operator, testified that the bracing was
inadequate and that the trusses were leaning and out of plumb. He said that he
told the foreman several times about the bracing. At the three o’clock break,
prior to the accident, he and his oiler told several respondent’s
employee—‘Don’t go back up there because those things look like they are going
to fall’ (Tr. 140). He testified the employees did not want to go back up but
the foreman ordered them to.
Kenneth
Kogelman, the oiler, also testified the trusses had been leaning and so told
the foreman who answered that a man was supposed to straighten the trusses.
Prior to the three o’clock break, Mr. Kogelman stated that the last truss
erected was leaning to the south and was almost touching the one adjacent to
it. He heard Lonnie Wright tell the employees about the trusses and observed
that the man were reluctant to return to work after the break. The foreman,
however, told them to go back or go home.
As
for the bracing itself, he testified he did not recall any cross bracing being
used and the only bracing used was lateral across the top, and the man who was
killed was putting one-by-three’s on the bottom.
Victor
Weaver, a carpenter for respondent, testified that the bracing used at the Bual
Shopping Center job consisted of lateral bracing across the top and
one-by-three-inch spacers, 26 inches long which were nailed from truss to
truss. He did not feel the bracing at the jobsite was adequate and had
discussed it with others, including Mr. Amato.
Another
carpenter for Kus-Tum Builders, Jerry Layne, testified the bracing used on the
job consisted of one-by-four-inch lateral bracing ‘running across the top and
down the center’ (Tr. 240). Except for spacers, there was no cross or diagonal
bracing used. He stated he thought the trusses should be braced more and so
told Mr. Amato. The latter said he would take care of it 15 minutes before
quitting time. Mr. Layne also testified he did not want to go back up on the
trusses after the break because they were unsafe but Mr. Amato told him to do
so or leave. At the time of the accident, he saw the trusses shift a bit and he
jumped from the top of the beam and he was on. He did not see the crane up
there at that time.
Bruce
Cook, also a carpenter on respondent’s work crew at the site, testified the
first six trusses were diagonally braced with 16-foot two-by-ten-inch planks.
The trusses erected the next day were braced with 16-foot one-by-three-inch
lateral braces. Spacers were used at the top but not at the bottom. This kept
the trusses straight except for the last three, and he told the foreman about
this. The latter told him that Tony (the deceased) would catch up. After the
first six trusses, no cross or diagonal bracing was used. According to Mr.
Cook, the foreman told him this would be done after the lumber was delivered in
the afternoon. At the time of the break, he did not believe the trusses were
safe and so told the foreman or Mr. Amato.
Respondent’s
witnesses paint a different picture. Sam Bercot, a laborer putting up the
trusses on the job, testified that at least the first 15 trusses were X-braced
and were also laterally braced. He believed the man who was killed was
installing additional cross braces at the time of the accident.
Anthony
Leanza, respondent’s foreman, testified that he has worked in dozens of truss
erection operations. As to the job in question, he stated that, in addition to
lateral bracing, the first 40 trusses were diagonally or cross braced in sets
of five. At the time of the accident, Tony Azzaleno, the deceased, was in the
process of bracing the next five and was also putting in lateral bracing at the
bottom. Mr. Leanza believed that, prior to the accident, the trussing operation
was sturdy and as secure as possible with no swaying or movement. He denied
being asked by Bruce Cook if they could drop back and work on cross bracing and
also that any employee told him the trusses were out of plumb.
Mr.
Anthony Amato, owner of Kus-Tum Builders, testified he has worked in the
construction business since about 1940, first as a union carpenter and later as
a subcontractor. Examples of his experience included erection of 10 or 20
structures for the International House of Pancakes chain, 24 or 26 for the
Burger King chain, and three for the Bonanza Steak House chain. In addition, he
was the project manager in connection with the erection of a large Cleveland
(Ohio) theater.
Concerning
the Bual Shopping Center, he testified that the first truss was installed with
metal straps and five ground braces securely staked. Four more trusses were put
up and secured the first day. The next morning, the five trusses were resecured
with diagonal, parallel and base bracing. The trusses thereafter erected were
diagonally braced every 20 feet with one-by-fours. He denied having been told
by any worker on the site that the trusses were unsafe. Prior to the accident,
he was cutting spreaders while Tony Azzaleno was nailing diagonals. Up to the
time of the accident, he considered the trusses to be stable.
III
My evaluation of the evidence leads to but one conclusion—that
is that the wooden trusses erected by respondent were not adequately braced to
prevent them from buckling or ‘dominoing’. While Mr. Amato and Mr. Leanza
testified that diagonal cross bracing was being used for almost all of the
trusses, another of respondent’s witnesses, Sam Bercot, could only recall that
the first 15 were so braced. On the other hand, the crane operator, his
assistant, and three carpenters all testified that no cross bracing was used at
the jobsite on May 19, 1976. All indicated the trusses were inadequately braced
and voiced opinions to that effect prior to the accident. Their testimony
receives substantial corroboration from that of Mr. Silverberg, the compliance
officer, who found no evidence of cross bracing nail holes or of the lumber
used for the purpose although there was ample evidence of lateral spacers and
ground bracing. Three experts, Mr. McAlpine, Mr. Silveria and Mr. White support
his conclusions.
What
does appear from the evidence is that the first five trusses were properly
braced but the ones erected on the succeeding day, May 19th, were not. The
preponderating evidence indicates that the only bracing used on most of the
later trusses erected on May 19th was 16 foot two-by-ten-inch lateral braces
with one-by-four-inch spacers placed between each truss near the top. That this
was not sufficient to afford the structure stability is evidence by testimony
of the on-site workers that the trusses were leaning and out of plumb. This
deficiency was pointed out to respondent’s foreman by Mr. Cook who testified
that, when he asked Mr. Leanza if he could drop back and put up cross bracing,
Mr. Leanza told him it would be done later when the lumber arrived. Finally, I
note that about 40 trusses were erected on the day of the accident. Mr. Leanza
testified that he was not satisfied with the bracing of the first five trusses
and they were rebraced that morning. Because of this, work did not start on the
trusses subsequently erected until about 10:30 a.m. Figuring in the 30-minute
lunch break, it appears that 40 trusses were erected in the space of about four
hours and 20 minutes—or approximately six minutes per truss. Yet, Mr. Leanza
testified that proper truss erection required 10 to 15 minutes per truss.
Complainant’s
expert witnesses uniformly testified that the bracing used was not adequate and
did not conform to industry safety standards. I agree. Respondent argues that
the trusses were properly braced and that their collapse was due to the action
of the crane. I need not resolve this point of contention. However, I will
observe that, had the trusses been properly braced, it is more than likely that
the entire structure would not have collapsed to the extent that it did.
Assuming the crane boom with a suspended truss had struck the last of the 45
erected trusses, the fact that the truss structure first moved north, caromed
back to the south, and then completely collapsed was indicative of its
structural weakness, particularly at the bottom which was unsupported by cross
or lateral bracing.
It is
also noted that both Mr. Silverberg and Mr. White indicated that the ground
bracing used for the first truss was not adequate to cope with a fall in a
southerly direction. The latter also testified 8 penny nails were used in the
anchor straps instead of 16 penny nails. Thus, had there been proper bracing of
the first truss the whiplash action of the truss structure may well have been
averted.
There
is no need, however, to speculate on ‘what might have been’. The fact remains
that the probative evidence clearly establishes that the trusses were not
provided with adequate erection bracing necessary to prevent toppling or
‘dominoing’.
To
establish a violation of the general duty clause (section 5(a)(1)), the
Secretary must prove (1) that the employer failed to render its workplace
‘free’ of a hazard which was (2) ‘recognized’ and (3) ‘causing or likely to
cause death or serious physical harm’. This requires employers to discover and
exclude from the workplace all feasibly preventable forms and instances of
hazardous conduct (National Realty and
Construction Co. v. OSHRC and Secretary, 489 F.2d 1257 (C.A. D.C. 1973)); Getty Oil Co. v. OSHRC and Secretary,
530 F.2d 1143 (5th Cir. 1976).
In
the instant case, the probative evidence clearly establishes that the failure
of respondent to properly brace the trusses created a definite safety hazard to
its employees. That it was a ‘recognized’ hazard—i.e., generally known by the
industry involved—is also well established. The complainant’s expert witnesses
and, indeed Mr. Amato himself, agree that cross or diagonal bracing is accepted
and considered necessary in the industry.[5] Finally, there is no doubt
that there existed a substantial probability of death or serious injury to an
employee as a result of the collapse of one or more of the trusses, each
weighing 1000 to 1200 pounds.
Considering
all the facts and circumstances of this case, I conclude the respondent’s
failure to properly brace the roof trusses at his worksite was violative of the
general duty clause, and further, was properly charged as serious.
The
violation is also alleged as willful. The term ‘willful’ has been defined as
‘intentional, or knowing, or voluntary, as distinguished from accidental, and
that it is employed to characterize ‘conduct marked by careless disregard
whether or not one has the right so to act’’. (United States v. Illinois Central R.R., 303 U.S. 239, 243 (1938); Secretary v. C.N. Flag & Co., Inc., 11 OSHRC 632, 634 (1974)).
Knowledge or ‘scienter’ appears to be an important criterion in determing
willfulness—that is, where the employer knew that his actions might violate the
law, Coleman v. Jiffy June Farms, 458
F.2d 1139, 1142 (5th Cir. 1972)). In Intercounty
Construction Co. v. OSHRC, 522 F.2d 777 (4th Cir. 1975), the court applied
the terms to a violation of a specific standard and found willfulness when the
company, after a previous warning from OSHA, intentionally removed a safety
device from a trench. The court, citing Coleman, supra, stated that ‘Congress
intended to punish the conduct of one who knew that his actions would violate
the law’ (Intercounty Construction Co.,
supra, at 780).
This
construction of the term, as applied to a civil statute accords generally with
the definition given by the Supreme Court in a 1938 case, as follows:
‘. . . [W]e are persuaded that it
[willfully] means purposely or obstinately and is designed to describe the
attitude of a [person], who, having a free will or choice, either intentionally
disregards the statute or is plainly indifferent to its requirements. . . .’ (United States v. Illinois Central Railroad,
303 U.S. 239, 243 (1938)).
The respondent in the case, sub judice, is charged
with a violation of the general duty clause of the Act—Section 5(a)(1), (29
U.S.C. 654(a)(1))—rather than a specific standard. The testimony of Mr. Amato indicates
that he believed that the bracing methods taken by Kus-Tum Builders comported
with what he believed to be necessary safety requirements in the industry. This
also appears to be the case with Mr. Leanza. In any event, both apparently
believed the truss structure to be safe for they were underneath it when it
collapsed and sustained injuries therefrom.
Considering
the foregoing, I cannot conclude that there was an intentional disregard or
indifference to a recognized hazard on the part of respondent such as to
constitute a willful flaunting of the statute.
I do
not mean to imply by the foregoing that respondent was not in violation of the
statute. The evidence is ample that the dangerous conditions existed prior to
the accident. I accept as valid the testimony of complainant’s expert witnesses
as to that condition even though based upon ‘after the fact’ examinations but
bolstered, as they are, by the testimony of lay witnesses concerning the
inherent weakness of the truss structure prior to the accident. My view of the
evidence leads me to the conclusion that safety was sacrificed for speed.
Respondent knew or should have known that a hazard to its employees was created
and, while I have not denominated the violation as willful, it was unquestionably
negligent.
Complainant
has proposed a penalty of $5,600.00. This is based upon a gross figure of
$8,000.00 for the degree of willfulness and with a reduction of 10 percent
based upon the size of the company and 20 percent for a history of no previous
violations. This proposed penalty obviously must be reassessed in view of my
finding that respondent has not willfully violated the statute.
Accordingly,
considering the statutory factors of size, gravity, good faith and history, a
penalty of $700.00 is appropriate and will be assessed.
I
reach the following findings of fact and conclusions of law:
FINDING OF FACT
1.
That at the time and place in question, respondent was a subcontractor engaged
in erecting roof trusses for a shopping center building in Pembroke Pines,
Florida.
2.
That on the afternoon of May 19, 1976, approximately 45 roof trusses had been
erected by respondent.
3.
That each roof truss was triangular in shape, weighed between 1000 and 1200
pounds, and was 60 feet, four inches long, and 12 feet high at the arch.
4.
That at about 3:30 p.m., May 29, 1976, all of the trusses collapsed killing one
employee and injuring two others.
5.
That a question of fact remains as to whether the collapse was initiated by the
truss structure having been struck by a wildly swinging truss suspended from
the boom of a crane or as a result of the inherent weakness of the structure.
6.
That, regardless of the cause, the trusses were not properly braced in
accordance with good safety standards recognized by the construction industry.
7.
That as a result of this inherent structural weakness, collapse of the trusses
was possible which would cause death or serious injury to employees working
with the trusses.
8.
That respondent’s chief officer and foreman knew, or should have known, of the
hazards.
CONCLUSIONS OF LAW
1.
That respondent is an employer engaged in a business affecting commerce within
the meaning of the Act.
2.
That this Commission has jurisdiction over the subject matter and parties to
this action.
3.
That respondent violated section 5(a)(1) of the Act (29 U.S.C. 654(a)(1)) by
failing to properly brace roof trusses which it was erecting.
4.
That the violation was serious.
5.
That the violation was not willful.
Based
upon the foregoing findings of fact and conclusions of law, the citation, as
amended, is affirmed and a penalty of $700.00 is assessed.
SO ORDERED.
CECIL L. CUTLER, JR.
Judge
Date: December 27, 1976
[1] Section 5(a)(1)
of the Act, 29 U.S.C. § 654(a)(1), provides:
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.
[2] In addition,
former Commissioner Moran directed review of the judge’s decision ‘for error’
without specifying any issues to be resolved by the Commission. Only the
Secretary filed a petition for review. After review had been directed,
Respondent filed a letter-in-lieu-of-brief in which it relied both upon its
brief before the judge and upon the judge’s decision (which found a violation,
but rejected the Secretary’s ‘willful’ characterization). Respondent praised
Judge Cutler’s ‘fair and accurate analysis of the trial’ and his ‘fair and
reasonable’ decision. Thus, to the extent that Respondent’s arguments before
the judge are inconsistent with the judge’s decision, we conclude that
Respondent has abandoned on review its claims below denying the existence of
the violation and persists only in denying that its conduct was ‘willful.’
Because there is neither party interest nor compelling public interest in
reviewing any issues other than those directed for review by Commissioner
Cleary, we affirm the remainder of the judge’s decision without review. See Water Works Installation Corp., 76
OSAHRC 61/B8, 4 BNA OSHC 1339, 1975–76 CCH OSHD ¶20,780 (No. 4136, 1976); Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3
BNA OSHC 2032, 1976–77 CCH OSHD ¶20,428 (No. 9507, 1976). Those parts of the
judge’s decision are accorded the precedential value of an unreviewed judge’s
decision. Leone Constr. Co., 76
OSAHRC 12/E6, 3 BNA OSHC 1979, 1975–76 CCH OSHD ¶20,387 (No. 4090, 1976), appeal withdrawn, No. 76–4070 (2d Cir.
1976).
[3] We note that
Amato and Leanza denied that the laborers warned them of the instability of the
truss structure. Moreover, they stated that diagonal bracing was installed on
almost all of the trusses. Judge Cutler expressly rejected the testimony of
Leanza and Amato as to the bracing that was provided. In addition, he
implicitly credited the testimony of the five laborers, as opposed to that of
Amato and Leanza, on the question of whether the workers warned the supervisors
of the inadequacy of the bracing. Credibility evaluations are chiefly the
responsibility of the administrative law judge and the Commission ordinarily
defers to these credibility determinations. C.
Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1977–78 CCH OSHD ¶22,481
(No. 14249, 1978). We find no reason to overturn Judge Cutler’s credibility
determinations in this case and we accordingly accept them.
[4] This section
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.’
[5] In R.J.H. Contractors, Inc., OSHRC Docket No. 969, CCH OSHD 15,422 (1971–73), an ALJ found an employer not in violation of the general duty clause because of evidence by an expert that cross or x-type truss bracing was not recognized as being in common use in the industry. In that case the trusses were considerably smaller in size and weight than here. Further the testimony of the expert witnesses is the case, sub judice, in uncontroverted and documented by an accepted industry treatise.