URIEL G. ASHWORTH

OSHRC Docket No. 1018

Occupational Safety and Health Review Commission

January 24, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge Charles K. Chaplin, dated April 13, 1973, is before this Commission for review pursuant to 29 U.S.C. 661(i).

Having examined the record in its entirety, the Commission finds no prejudicial error therein. Accordingly, the Judge's decision is hereby affirmed in all respects.

CONCURBY: VAN NAMEE

CONCUR:

VAN NAMEE, COMMISSIONER, concurring: I concur in the disposition because according to the plain terms of the standard cited herein, it applies only to the equipment and materials used in concrete construction. Compare: Manuel Maes Const. Co., Inc. v. OSHRC, et al, No. 73-1464 (10th Cir., March 28, 1974); Ernest F. Donley's Sons, Inc., 2 OSAHRC 1094 (Rev. Com'n., 1973); Thorleif Larsen & Sons, Inc., No. 370 (ALJ, 1972); Lima Lead Supply, Inc., OSAHRC 1121 (ALJ, 1974) where in similar factual circumstances Labor has cited employers for violation of the general duty clause (29 U.S.C. 654(a)(1)). In this regard, I find Labor's failure to file a brief on review significant.

Contrary to my colleague, I would not affirm the hearing judge's decision [*2] in all respects. I concur only for the reasons stated above.

DISSENTBY: CLEARY

DISSENT:

CLEARY, COMMISSIONER, dissenting: Review in this case was directed on the question of whether the Judge had correctly interpreted the standard at 29 CFR 1926.700(a), formerly 29 CFR 1518.700(a). The majority has affirmed the Judge's decision. I do not agree.

I

Respondent was cited on June 1, 1972, for one serious and four non-serious violations of the Act. The citation for serious violation alleged that on April 20, 1972, respondent had failed to comply with the standard at 29 CFR 1926.700(a), essentially by its failure to shore or brace masonry walls which had not yet reached designed lateral strength. n1 Respondent filed a timely notice of contest to this citation. The citation for non-serious violations was not contested.

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n1 In his complaint, the Secretary amended the date of violation, alleging that respondent had been in violation "[o]n or about April 10, 1972, and thereafter. . . ."

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Respondent was the masonry [*3] subcontractor on a school construction project. During the weekend of April 14, 1972, a masonry wall collapsed. n2 It was approximately 20 feet long and ten feet high and had been constructed by respondent. On April 19, 1972, the general contactor's project manager visited the construction site and ordered that shoring be placed on the remaining walls. On April 20, 1972, before this was done, a second wall collapsed, killing one worker n3 and injuring several others. This wall, also constructed by respondent, was approximately 180 feet long n4 and 13 feet four inches high.

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n2 There is unresolved contradictory testimony in the record as to whether this wall was braced.

n3 Although the record is not entirely clear, it appears that the deceased was employed by another subcontractor.

n4 One hundred and sixty feet of the wall collapsed.

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The standard on which the contested citation is based, 29 CFR 1926.700(a), provides:

All equipment and materials used in concrete construction and masonry work shall meet the applicable [*4] requirements for design, construction, inspection, testing, maintenance and operations as prescribed in ANSI A10.9-1970, Safety Requirements for Construction and Masonry Work.

The Judge vacated the citation and proposed penalty for the alleged failure to comply with this standard, holding that the standard does not require the use of shoring. He reasoned that the standard is concerned only with requirements for equipment and materials while shoring is a construction technique.

Although the term "shoring" does refer to a construction technique, it also encompasses the equipment used in the process of shoring or bracing. n5 The American National Standards Institute (ANSI) provisions referred to in section 1926.700(a) also treat shoring as equipment, providing detailed specifications for its design and construction in A10.9-1970 paragraph 8.4.

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n5 Webster's Third New International Dictionary 2102 (P.B. Gove ed. 1971) defines shoring as follows:

1: the act of supporting or strengthening with or as if with a prop

2: a system or group of shores

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Thus, the conclusion that "shoring" refers to a type of equipment as well as a construction technique establishes that the specifications for the design and construction of shoring found in A10.9-1970 paragraph 8.4 are incorporated by section 1926.700(a).

Respondent was cited for failure to use shoring, however, not for the use of non-complying shoring. The question is then whether section 1926.700(a) requires the use of shoring.

The Occupational Safety and Health Act is remedial legislation designed to promote employee health and safety, and regulations promulgated under the Act are to be interpreted with the legislative purpose clearly in mind. n6 A narrow reading of a regulation must be rejected when it is contrary to the purpose of the Act.

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n6 See Brennan v. Southern Contraciors Service & O.S.H.R.C., 492 F.2d 498 (5th Cir. 1974); Brennan v. O.S.H.R.C. & Gerosa, Inc., 491 F.2d 1340 (2d Cir. 1974).

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A narrow and strictly literal reading of this section might suggest [*6] that it deals only with equipment that is actually used. The result of such a reading, however, could discourage the use of important safety equipment. An employer unconcerned with the safety of its employees could avoid the possibility of citation under this section by refusing to use any shoring at all, thus subverting the purpose of the Act.

Here, the Secretary interprets section 1926.700(a) as requiring the use of shoring. n7 I would agree.

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n7 The Secretary's interpretation of the regulations which he promulgates is entitled to considerable weight and should be accepted so long as it is a reasonable interpretation. Brennan v. Southern Contractors Service & O.S.H.R.C., 492 F.2d 498 (5th Cir. 1974).

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Section 1926.700(a) incorporates detailed specifications for the design and construction of shoring. Implicit in the provision of mandatory specifications for safety equipment is the requirement that the equipment be used. Otherwise, the specification requirements would be meaningless. For this [*7] reason, I would hold that the use of shoring is required when it is necessary for the protection of those working in the vicinity of masonry or concrete block walls that have not reached designed lateral strength.

II

The record shows that unshored masonry walls that have not reached designed lateral strength are highly dangerous. Shoring should begin when such walls are between four and one-half and five feet high. Expert testimony establishes that masonry walls of the type built by respondent do not reach designed lateral strength until the roof trusses are put in place. During the time of the alleged violation, the roof trusses were not in place and a number of the walls built by respondent were allowed to remain unshored although they were more than ten feet high.

Further, respondent's employees were exposed to the danger created by this condition. The record shows that all of respondent's employees moved about the jobsite and that this brought them within range of the hazard posed by the unshored walls. In addition, the bricklayers were exposed to the danger whenever they worked on a wall more than four and one-half to five feet high. The laborers were exposed each time [*8] they brought supplies to bricklayers working on such walls.

Clearly, the collapse of a concrete block wall over ten feet in height could cause serious injury or death. Also, respondent knew of the violation as Mr. Ashworth acted as foreman over his company's employees and worked with them at the construction site almost every day. Thus, the violation is serious within the meaning of section 17(k) of the Act.

These facts show that respondent was not in compliance with the standard at 29 CFR 1926.700(a), and that this non-compliance constitutes a serious violation of section 5(a)(2) of the Act.

III

Even assuming the validity of the majority's position that respondent should have been cited under section 5(a)(1), I do not agree with the majority's disposition of this case. When an employer is cited under what the Commission believes is an erroneous standard or section of the Act, and a post-hearing amendment of the pleadings is impossible, the Commission should reman the case, not vacate the citation. n8 For a complete discussion of this problem see Godwin Beavers Co., Inc., No. 1373 (January 7, 1975) (Cleary, Commissioner, dissenting).

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n8 Under almost indentical facts as the present case, the same majority found a violation of section 5(a)(1) in Tolar Constr. Co., No. 1329 (November 26, 1974).

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The record indicates that a worker was killed when an unbraced wall collapsed. It is unimportant whether this accident resulted from a violation of section 5(a)(1) or section 5(a)(2). The essential fact is that respondent's failure to shore the wall resulted in the death of a worker. It is clear that Congress did not intend that valid citations be vacated simply because of technical errors. Cf. Brennan v. O.S.H.R.C. & Bill Echols Trucking Co., 487 F.2d 230, 235 (5th Cir. 1973).

IV

Respondent has also raised two other issues. First, it contends that it has been denied the right to a speedy trial, citing rule 50(b) of the Federal Rules of Criminal Procedure and the Federal Constitution.

That the Federal Rules of Criminal Procedure do not apply to proceedings before the Commission is clear from a reading of section 12(g) of the Act. n9 The constitutional right to [*10] a speedy trial is limited to criminal cases. n10 Proceedings before the Commission are civil in nature. n11 Section 6(a) of the Administrative Procedure Act (5 U.S.C. 500 et seq. ), however, requires that administrative agencies dispose of matters before them within a reasonable time.

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n9 Section 12(g) of the Act states in pertinent part:

Unless the Commission has adopted a different rule, its proceedings shall be in accordance with the Federal Rules of Civil Procedure (emphasis added).

n10 The Sixth Amendment to the Federal Constitution provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . (emphasis added).

n11 Respondent is contesting a citation for a serious violations. Section 17(b) of the Act provides:

Any employer who has received a citation for a serious violation of the requirements of section 5 of this Act, of any standard, rule, or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, shall be assessed a civil penalty of up to $1,000 for each such violation (emphasis added).

[*11]

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Approximately eight months elapsed between the receipt of respondent's notice of contest and the hearing. More than one month of this delay was occasioned by respondent's failure to certify posting or service on the authorized employee representative of the notice of contest, resulting in the dismissal of the notice of contest. A motion to reinstate the notice of contest was later granted.

An interval of six and one-half months between reinstatement of respondent's notice of contest and the hearing is not unreasonably long. Moreover, a case cannot be found to have been unduly delayed without some proof of the time normally required to dispose of similar matters or facts tending to show a dilatory attitude on the part of the administrative agency. n12 Respondent has offered no proof on these matters. Therefore, I would hold that the hearing was not unduly delayed.

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n12 F.T.C. v. J. Weingarten, Inc., 336 F.2d 687 (5th Cir. 1964), cert, denied, 380 U.S. 908 (1965) (case pending before Hearing Examiner for two and one-half years). See also Kent v. Hardin, 425 F.2d 1346 (5th Cir. 1970).

[*12]

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Respondent also argued that it was not in violation of the Act because the general contractor had the responsibility for the installation of shoring. This fact cannot relieve respondent of its responsibility to protect its employees from the hazard created by the general contractor's neglect, particularly when respondent made no attempt to have the general contractor remedy the situation. R.H. Bishop Co., No. 637 (May 30. 1974): Meyerbank Electric Co., No. 2011 (August 6, 1973) (Administrative Law Judge); New Interiors/I.C.S., No. 1973 (July 9, 1973) (Administrative Law Judge).

[The Judge's decision referred to herein follows]

CHAPLIN, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereinafter referred to as the Act), wherein Respondent contests the Citation for Serious Violation issued June 1, 1972, by the Complainant under the authority of Section 9(a) of the Act. The Citation alleges that as the result of an inspection April 24, 1972, at a place of employment where Respondent's employees were [*13] working (the site of construction of a building at the Dinwiddie Elementary School, Dinwiddie, Virginia) the Respondent violated Section 5(a)(2) of the Act by failing to comply with an occupational safety and health standard promulgated by the Secretary of Labor. There were 4 nonserious violations alleged with a proposed penalty of $140.00 which were not contested. The contested violation was set forth in the Citation as follows:

Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected

29 CFR 1518.700(a) -- On April 20, 1972 the employer did not meet the applicable requirements for design, construction inspection, testing, maintenance and operations as prescribed in ANSI A10.9-1970, safety requirements for construction and masonry work. -- Immediately

A penalty of $600.00 was proposed. The cited standard has now been renumbered and is found at 29 CFR 1926.700(a) as follows:

1926.700 General Provisions.

(a) General. All equipment and materials used in concrete construction and masonry work shall meet the applicable requirements for design, construction, inspection, testing, maintenance and [*14] operations as prescribed in ANSI A10.9-1970, Safety Requirements for Concrete Construction and Masonry Work.

ANSI (American National Standards Institute) A10.9-1970 Safety Requirements for Concrete Construction and Masonry Work (hereafter ANSI standard) provides a consensus standard for masonry work in construction as follows:

12.5 Shoring and Bracing. Masonry walls shall be temporarily shored and braced until the designed lateral strength is reached, to prevent collapse due to wind or other forces.

In addition the Act provides at Section 5(a)(1) 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.

Evidence was presented by the Secretary and not contraverted by Respondent that Respondent had erected a masonry wall approximately 13 feet high without bracing and the wall had collapsed killing an employee of another contractor.

DISCUSSION

Prior to a consideration of the merits of the Secretary's Citation against Respondent, it is appropriate to examine the cited standard for applicability. [*15] In order to afford Respondent notice of the violation he is charged with, fairness dictates that the cited standard clearly set forth conditions or practices, means, methods, operations or procedures reasonably necessary or appropriate to provide safe or healthful employment and places of employment. In the absence of a specific standard applicable to the particular hazard involved, the provisions of Section 5(a)(1) of the Act are applicable. n1

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n1 Legislative History of the Occupational Safety and Health Act of 1970 (S.2193, P.L. 91-596), pgs. 149, 150, 380, 415, 851, 992, 1005, 1007, 1017, 1052, 1217.

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The standard relied upon by the Secretary must clearly set forth Respondent's responsibility and that its application to the factual situation not require a strained interpretation. n2 The standard cited provides that all equipment and materials used in masonry work shall meet the applicable requirements for construction as prescribed in the ANSI standard. The Citation which provoked this contest did not include [*16] the underscored words above, for obvious reasons. In its Complaint the Secretary specified the factual situation which formed the basis for its allegation of a violation, that is the Respondent had not braced or shored a masonry wall which had not yet reached its designed lateral strength as required by the ANSI standard at paragraph 12.5. However, paragraph 12.5 was not incorporated into 1926.700(a) since it pertained to a building technique and the standard is only concerned with equipment and materials. It was undoubtedly for this reason that in James D. Hodgson, Secretary of Labor, United States Department of Labor v. Thorleif Larsen and Son, Inc.,

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n2 Secretary of Labor, United States Department of Labor v. J.F. Probst & Company, Inc.,

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Accordingly, in view of the foregoing, the Secretary has not alleged a violation of the applicable [*17] standards under Section 5(a)(2) of the Act. No action is necessary with respect to R*espondent's motion.

FINDINGS OF FACT

1. Respondent is an employer in a masonry business affecting interstate commerce.

2. He erected a 13 foot high wall without bracing which collapsed and Killed one workman.

3. He was cited for an alleged violation of 29 CFR 1926.700(a).

4. 29 CFR 1926.700(a) applies to equipment and material used in masonry work.

5. Respondent violated a procedure of ANSI A10.9-1970 which is advisory only.

CONCLUSIONS OF LAW

1. The Occupational Safety and Health Review Commission has jurisdiction over the Respondent.

2. Respondent did not violate Section 5(a)(2) of the Act. In view of the foregoing it is ORDERED that:

1. The Citation for serious Violation dated June 1, 1972, and the proposed penalty of $600.00 are vacated.

2. The Secretary's Complaint of June 16, 1972, is dismissed.