“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 154 JOHN B. KELLY, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0August 3, 1973Before MORAN, Chairman; VAN NAMEE and CLEARYCommissionersCLEARY, COMMISSIONER:??????????? OnJuly 17, 1972, Judge Herbert E. Bates issued a decision in this case holdingthat respondent had violated section 5(a)(1) of the Occupational Safety andHealth Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590, hereinafterreferred to as ?the Act?), because it did not take adequate safety precautionswhile undercutting and removing masonry material from a free-standing wall. Heassessed a penalty of $1,000. Thereafter, pursuant to section 12(j) of the Act,that decision was ordered to be reviewed by the Commission.??????????? Havingexamined the record in its entirety, the Commission finds no prejudicial errortherein.??????????? Accordingly,it is ORDERED that the Judge?s decision and order are hereby affirmed in allrespects.?MORAN, CHAIRMAN, dissenting:??????????? Thiscase stretches the employer?s obligations under the Act far beyond anythingever intended by finding an employer in violation of section 5(a)(1) of the Actbecause 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. Theallegations contained in the citation are based upon that accident. ??????????? [redacted] was engaged in making certainmaterial alterations to a free-standing wall which respondent had erected inthe lobby of a federal building under construction in Philadelphia pursuant toa subcontract for masonry work thereon.??????????? Soonafter the wall was erected, Mr. Erickson, the building?s architecturalengineer, informed respondent?s superintendent, Mr. Sutton, that the wall wasnot safe due to improper placement of the mailbox aperture.??????????? Onthe morning of September 27, 1971, Sutton instructed two of respondent?semployees to modify the wall by turning the wooden frame in the mailboxaperture so that the long dimension would be running horizontally rather thanvertically. This undertaking required the undercutting of the masonry wall soas to allow for the rotation of the wooden frame in the mailbox aperture.Knowing that an improper modification might create the possibility of an unsafesituation, Sutton gave specific instructions to employee [redacted] on how the modification was to be done properly. Athorough 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 twodiagonal 4×4 inch beams before removing the frame, as well as a statement thatthe brace was to be ?tied? to the wall above the lintel and that it should rundiagonally to the ground.??????????? WhenSutton returned to the site of the modification later that same morning, he sawonly a vertical 4×4 inch wooden shore in the aperture from which the frame hadbeen removed. He admonished [redacted]for proceeding improperly and repeated his prior instruction. He warned that thediagonal bracing must be properly installed, that the wall would be dangerouswhen [redacted] began to undercut,that when the frame was removed it would be even more dangerous and mighttopple unless it was supported by diagonal bracings.??????????? AfterSutton had left the site following his first conversation with [redacted], two employees of the generalcontractor had also warned [redacted]concerning the hazardous condition of the wall. The chief architecturalengineer for the project had given one such warning, and the generalcontractor?s safety engineer had twice warned [redacted] of the danger of his work. Thus, although Sutton wasunaware of it at the time, when he returned to repeat his instructions aboutthe diagonal bracing, it was the seventh time [redacted] had been warned.??????????? Despitethese 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 verticalshore.? He then removed the vertical shoring, causing the wall to collapse uponhim.??????????? As aresult, respondent was cited for a violation of section 5(a)(1)?the Act?sgeneral duty requirement?which provides that each employer shall furnish toeach of his employees ?employment and a place of employment which are free fromrecognized hazards that are causing or are likely to cause death or seriousphysical harm to his employees.???????????? Recognitionthat a particular fact situation constitutes a hazard is essential to establishmentof a violation of this provision. Such recognition must come from ordinaryprudent employers in respondent?s industry or from the knowledge of the publicat large. Secretary of Labor v. Vy Lactos Laboraties, Inc., OSAHRCDocket No. 31, decided February 21, 1973. See also the discussion in Secretaryof 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 tothe wall was recognized by Sutton, Erickson, and Butler, all of whom wereexperienced in the field of construction. However, the record clearlyestablishes that the hazard would not have existed had [redacted] followed the instructions.??????????? Section5(a) cannot be applied in a vacuum. It must be read in conjunction with theentire Act and particularly with section 5(b), which admonishes employees tocomply with rules and orders applicable to their own conduct. Theinterrelationship of these two provisions are underscored by the Congressionalpurpose and policy stated in section 2(b)(2), which provides that employers andemployees have separate but dependent responsibilities with respect toachieving safe and healthful working conditions.??????????? Wehave often held that the employer has final responsibility for compliance withthe provisions of the Act. Secretary of Labor v. National Realty andConstruction Co., Inc., OSAHRC Docket No. 85, decided September 6, 1972; Secretaryof 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. Secretaryof 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.??????????? Wherethe record shows that respondent gave specific oral instructions to itsemployees, that respondent?s employees were repeatedly reminded of the dangerinvolved, and where there is nothing in the record to show that respondent knewor reasonably should have known that the employee would disobey theseinstructions, ?practicality and reason dictate that the respondent?s obligationhas been met within the requirements of section 5(a)(1) of the Act.? Secretaryof Labor v. Hansen Brothers Logging, OSAHRC Docket No. 141, decided October13, 1972. To require respondent to provide one-on-one supervision of itsemployees would place it under an unreasonably burdensome duty. Id.??????????? Here the employee was properly instructed to avoid adangerous situation, and was specifically instructed how to proceed safely.Furthermore, the means to do so were clearly within the employee?s discretionand control. However, the employee willfully violated the repeated and clearinstructions which were given him specifying how the work was to be done in asafe manner. Such an act of the employee cannot constitute the basis for aviolation of section 5(a)(1) by the employer where, as here, the employer fullydischarged his responsibility under the Act.\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 154 JOHN B. KELLY, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0July 17, 1972BATES, JUDGE, OSAHRC:??????????? Thisis a proceeding under section 10(c) of the Occupational Safety and Health Act of1970, 29 U.S.C. 651, et seq. (hereinafter referred to as ?the Act?) to reviewcitations issued by the Secretary of Labor (hereinafter referred to as the?Complainant?) pursuant to section 9(a), and proposed assessment of penaltiesthereon issued pursuant to section 10(a) of the Act.??????????? Thecomplaint in the captioned case is evidenced by citations for serious andnonserious violations under the statute and applicable standards dated October27, 1971. The citation for the serious violation charges a violation of section5(a) of the Act and ANSI Standard A 10.9(12.5), as adopted by 29 CFR1518.700(a), as adopted by 29 CFR 1910.12. The alleged serious violation wastherein described as follows:Employer did not furnish to each of hisemployees employment and a place of employment which were free from recognizedhazards that were causing or were likely to cause death or serious physicalharm to his employees in that:Employer did not take adequate precautionin an operation to undercut and remove masonry material from a masonry wallwhich resulted in the collapse of the wall.???????????? Theviolation of the aforementioned standard was: ?Masonry wall was not temporarilyshored and braced until the designed lateral strength was reached to preventcollapse due to wind or other forces.???????????? Inaddition to the citation for the allegedly serious violation above, theRespondent was cited for three ?non-serious? violations as follows:1. During the course of construction, keeppassageways and work areas free of debris. 3rd floor near elevator shaft inarea 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 materialon mason?s scaffold which will be used in the immediate operation. 4th floorwest [29 CFR 1518.250(b)(5) as adopted by 29 CFR 1910.12].?3. Provide cover for floor hole created bymissing plank in elevator shaft cover on 5th floor [29 CFR 1518.500(b)(8) asadopted by 29 CFR 1910.12].???????????? Theproposed penalties for the three violations were $14, $14, and $16,respectively. A penalty of $550 was proposed for the serious violation. Thedates on which these violations were to be corrected were set forth as?immediately.???????????? TheRespondent filed a timely notice of his intention to contest the aforesaidcitations in all respects, and the cause was referred to the Commission forhearing pursuant to section 10(c) of the Act on November 8, 1971. On December9, 1971, the undersigned was assigned to hear the case pursuant to section12(e) of the Act.??????????? Aftersome unavoidable delay, the hearing was held on March 28, 1972, inPhiladelphia, Pennsylvania.??????????? Atthe commencement of the trial the Respondent asserted that the threenon-serious violations (above) were in fact violations of the standards ascharged, and that the abatement periods and proposed penalties were reasonableand proper (Tr. 37).??????????? TheRespondent further averred that he did not object to the penalty proposed forthe serious violation, nor the abatement period proposed therefor (Tr. 38).??????????? Itwas agreed that the only issue in dispute was whether or not the Respondentviolated section 5(a)(1) of the Act, in the manner referred to above (Tr. 38).??????????? Havingheard the testimony of the witnesses and having considered the same togetherwith the exhibits and the stipulations, representations and admissions of theparties, it is concluded that substantial evidence, on the record considered asa whole, supports the following findings of fact.FINDINGS OF FACT(NOTE: The letter ?s? following the transcript pagereference indicates those facts were stipulated to.)??????????? 1.The Respondent, John B. Kelly, Incorporated, is a Pennsylvania corporationmaintaining 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 thePhiladelphia area, and generated in excess of one million dollars annual volumeof business for the years 1970?1971.??????????? 3.The Respondent is engaged in the business of masonry subcontracting and isengaged in construction and reconstruction. It regularly receives goods andmaterials that have been produced and shipped in interstate commerce. It is anemployer engaged in business affecting commerce who has employees as defined bysection 3(5) of the Act, and is subject to the regulations and standardspromulgated thereunder (Tr. 9).??????????? 4.The Respondent was, from sometime prior to July 1, 1971, and is still until thepresent time, a subcontractor engaged in the performance of work under ContractNo. GS?02B?16026 awarded by the Government of the United States to McCloskey& Company for the construction of a federal building at 6th and MarketStreets, Philadelphia, Pennsylvania (Tr. 9, 10).??????????? 5.Sometime in August 1971 the Respondent?s employees constructed a wall at thesite of the federal building at 6th and Market Streets. This wall wasconstructed of 8? cinderblock in the proposed lobby of the building (Tr. 10).??????????? 6.The Respondent has no prior history of violations under the Occupational Safetyand 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 noticeof hearing at its workplace (Tr. 10).??????????? 9.Sometime in August 1971, an 8? cinderblock wall was constructed by theRespondent in the proposed lobby of the new federal building at 6th and MarketStreets. The plan of that wall is shown on Petitioner?s Exhibit C?6. The wallis a free standing wall in that it is not ?tied in? to the ceiling and isapproximately 17 feet in height. Running vertically through the wall is a spaceleft for a metal mail chute. At the bottom of the mail chute, approximately 3feet above the floor, is a recessed aperture for a mailbox. At the time thewall was constructed, the metal mail chute and mailbox were not available forinsertion 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 engineerat the building site, advised Mr. Erb, McCloskey & Company?s superintendenton the building site, that the wall was in his opinion dangerous as originallyconstructed and should be partially torn down and rebuilt (Tr. 53).??????????? 11.Mr. Erickson?s employer, Federal Court Architects and Engineers ofPhiladelphia, drafted the plans for the building, including the wall inquestion. The General Services Administration approved those plans (Tr. 49,58).??????????? 12.Mr. Erickson?s duties on the building site were to oversee construction and seethat all construction was done according to the plans. It was his duty toreport any defective construction to the primary contractor, McCloskey andCompany (Tr. 58).??????????? 13.Mr. Erickson on ?at least several occasions? told McCloskey and Company of thedefective wall after the wall was constructed and was assured by McCloskey andCompany that it would be torn down (Tr. 59, 60, 61).??????????? 14.It was customary business practice on the part of Mr. Erickson and FederalCourt Architects and Engineers of Philadelphia to send written letters oftransmittal 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 oftransmittal and reports were sent by Mr. Erickson and G.S.A. to McCloskey andCompany and John B. Kelly, Incorporated, concerning other construction defects,no mention of the ?dangerous? wall was made in these letters of transmittal andreports (Tr. 62, 63).??????????? 16.For the purpose of supporting the wall, a wooden frame was placed by theRespondent?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 runningvertically and the short dimension running horizontally (Tr. 24, 25)s.??????????? 17.The wall referred to in the previous Finding was constructed sometime in Augustby John B. Kelly, Incorporated, as a subcontractor to McCloskey and Companyunder the Government Contract No. GS?02B?16025, and John B. Kelly?s employeesconstructed the wall at that time.??????????? 18.In August of 1971 it was ascertained that the mailbox, which is delineated inblue on Exhibit C?7, had been placed incorrectly and would have to be turned toa 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 performalteration 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 physicallyturn the wooden frame placed in the mailbox aperture so that the long dimensionwould 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 thatwas 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 forthe mailbox is in the vertical position (Tr. 27).??????????? 22. Exhibit C?8 is what was proposed to be done. Thewall would have to be cut out or undercut a distance of 13? to the right. Theframe would have to be removed and turned with the longest dimension runninghorizontally. There would also have to be some cutting of a wall that wasstanding 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 braceagainst the wall somewhere above the lintel and to ?tie it into the wall? sothat the edge of the brace would fit into the wall and run diagonally to theground 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 sitewhere Mr. [redacted] was engaged andtold him to get away from the job, that he was jeopardizing his life, and toldMr. [redacted] that Mr. Ericksonintended to see his supervisor. He told Mr. [redacted]that the wall was not shored or braced properly and that he should get awayfrom 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 thewall (Tr. 30)s.??????????? 27.Subsequent to Mr. Erickson?s visitation, Mr. James Butler, the Safety Engineerfor the general contractor, McCloskey and Company, visited the work site and heobserved Mr. [redacted] working onthe wall and that he was just about ready to remove the frame. Butler told [redacted] to get away from there, thatit was dangerous and that the wall was not properly braced. Mr. Butler also didnot 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 wallwithout 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 tothe work site sometime around 10:00 a.m. or 10:15 a.m. and observed Mr. [redacted] working on the wall. Therewere 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 hehad removed the frame as shown on Exhibit C?8. (s)??????????? 31.Mr. Sutton advised [redacted] toplace the diagonal bracings as he had been previously instructed to do, in thatthe present condition of the wall was dangerous. Sutton advised that when [redacted] would begin to undercut theaperture the wooden frame would have to be removed and that the wall mightcollapse unless the diagonal bracings were in place. Sutton left sometimewithin 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 testifiedthat Eugene [redacted] said to him,?I wonder what is going to happen when I remove this vertical shore.? [redacted] did remove the vertical shoreand 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 theRespondent, had never been put in place.??????????? 34.Mr. Erickson and Mr. Israel Kremer, also an architectural engineeringrepresentative, testified that the wall, without the wooden frame, would bedangerous unless it was shored or braced properly. The wall would become moredangerous as Mr. [redacted] continuedto undercut 13 inches into the base of the wall, which would leave a 5?4? wallresting 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 asit appears on Exhibit C?8. Thus, the opening which appears opened on thisexhibit would now be closed, and the opening above the red line would be filledin 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 obviouslyprevent shoring from being put in the opening in a vertical position since itwould have to be removed from the rebuilding of the return wall and, therefore,the instructions given by Mr. Sutton about diagonal bracing was necessary toproperly perform the alteration job (Tr. 33)s.??????????? 37.After the wall collapsed the plans were changed so as to provide more lateralsupport (Tr. 69?72).??????????? 38.The parties stipulated that a Compliance Officer for the District Office atPhiladelphia, Mr. Elmo Daugherty, made an accident investigation on September29, 1971, two days after the accident; interviewed a number of these personswho would have testified; and on the basis of his interviews, prepared areport. He submitted his report to his supervisor, Mr. Donald Allendorff. Mr.Allendorff, based on the report submitted by Mr. Daugherty, issued the citationfor 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. Thesemen were employees of John B. Kelly, Incorporated, the Respondent (Tr. 41)s.??????????? 40.Mr. Markegene, witness for the Respondent, testified that shoring instructionshad been given to [redacted] byWilliam Sutton (Tr. 45)s.??????????? 41.Mr. Roy J. A. Erickson, an engineer who works for Federal Court Architects andEngineers of Philadelphia, testified at some length to the conditions thatexisted 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 theceiling and was a free standing vertical wall, roughly about 18 feet high. Thiswall was not tied into the ceiling in any way. There was a 9 inch recess thatran vertically for a distance of about 13 feet from the top. At the base ofthis 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 havebeen in a horizontal position. The mail chute and mailbox were not placed inthe wall at the time it was constructed, because this material was not on thejob site (Tr. 28?50).??????????? 43.Erickson testified that to properly have built the wall, the mailbox and thechute should have been on the job and installed. The chute itself indicates onthe 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. Fromthe column to the chase was a masonry wall about 16? long and then there was achase which was entirely open and then the other section of the wall was aboutfive 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 oneither side of the chute itself and the wall would have all been tied intogether (Tr. 52).??????????? 45.The wall was not tied in and therefore was free standing and stood in thiscondition for approximately two months (Tr. 52).??????????? 46.The frame that was placed into the wall where the mailbox would be placedactually 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 wallincorrectly 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 thisprocedure was agreed upon by the Respondent (Tr. 53).??????????? 48.Erickson testified that it was Mr. William Sutton who had agreed to tear thewall down completely to the bottom of the frame (Tr. 53).??????????? 49.On cross examination, Mr. Erickson testified that he did not think it wasproper that the wall should have been built in August 1971 before the mailchute and mailbox arrived on the job site and incorporated in the constructedwall (Tr. 72).??????????? 50.Erickson testified that they (the Respondent) assured him that they would nottouch the wall, that it was going to be removed and torn down and builtproperly. ?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 freestanding without the mailbox and chute created a hazard, and that a furtherhazard existed because of the fact that the box or frame was in the wallincorrectly 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 March28, 1972. Mr. Markegene, witness for the Respondent, acknowledged that the GSAgeneral order for accident and fire prevention in construction and alterationwork, referred to as document PBSP 5900.3, had been received by the Respondentand a copy was in their office (Tr. 101).??????????? 53.William Sutton was assigned by Mr. Markegene as supervisor of the entiremasonry construction job at the federal courthouse. Part of this job was theconstruction of the wall in question (Tr. 103, 104).DISCUSSION??????????? Thebasic relevant facts in the instant case as detailed above have been stipulatedto by the parties and are not here in dispute.??????????? Thefacts indicate that the 17 foot free standing masonry wall, which collapsed andkilled Eugene [redacted] on September27, 1971, was unsafe at the time of its erection in August of 1971, and onSeptember 27th at which time the modification of the wall was attempted. TheComplainant has presented testimony that in August of 1971, Mr. Erickson, thearchitectural engineer, advised the company that the free standing wall wasunsafe and would have to be torn down to a 2 1\/3 foot base. Mr. Ericksontestified that the wall was likely to collapse because the metal mail chute andmailbox had not been installed in the wall at the time of its construction andthat Mr. William Sutton, Respondent?s supervisor, had agreed on behalf of theRespondent to tear the wall down.??????????? Thewall was not torn down by the Respondent, and on September 27, 1971, Eugene [redacted], an employee of theRespondent, together with a co-worker, Mr. Clement Jefferson, were instructedto perform certain modifications thereon. On the day in question Mr. Suttonorally instructed Mr. [redacted] toprovide two diagonal 4?X 4? braces to the wall before he attempted themodification job. Subsequent to Mr. Sutton?s instruction, Mr. [redacted] commenced the work incontravention of the instructions of his supervisor. Additional testimony ofMr. Butler, Mr. Erickson, and Mr. Sutton, showed conclusively that these threemen, within a period of two hours, observed the conditions under which Mr. [redacted] was attempting to modify thewall and together, warned [redacted]five times, of the dangerous and hazardous condition that existed.??????????? Insummary then, the hazard of a possible collapse of the wall likely to causedeath or serious physical harm to employees was known to William Sutton,Respondent?s supervisor, assigned by the Respondent as supervisor in charge ofthe masonry work in question, and to others who enjoyed no supervisory power overthe employee. Mr. Sutton was at the site of the wall collapse at two differenttimes 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 wallin question.??????????? Theundersigned also notes that Mr. Erickson and Mr. Israel Kremer, thearchitectural engineering representative, both testified that the wall whichwas sought to be modified would constitute a dangerous condition unless it wasproperly braced with diagonal bracings. Further testimony elicited from thewitnesses showed that the rectangular wooden frame that was supporting the wallwould 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 freestanding masonry wall which was 56? in length would be resting on a 24? basewithout appropriate or adequate support.??????????? InSeptember of 1971 the Respondent, who had constructed this wall, undoubtedlyrecognized the hazards of the wall collapsing and injuring persons, sinceaccording to the undisputed testimony, William Sutton advised the employee whowas to perform the modification on the wall to diagonally brace the wall. Therecan 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 variouslocations at the work site looking for Sutton to advise Sutton of the imminentdanger occasioned by [redacted]?swork on the wall. Sutton again returned to observe [redacted] performing his work. At the time of Sutton?s return, thediagonal braces were still not in place.??????????? Theevidence makes it abundantly clear that with full knowledge of the serioushazard represented by the free standing wall, Mr. Sutton, the Respondent?ssupervisor, twice observed the deceased employee commencing the wall modificationwork without first bracing the said wall with diagonal supports, whichprocedure was contrary to Sutton?s instructions.??????????? Oneach occasion (and most decidedly on the second occasion) the Respondent, thenstanding in the shoes of its supervisor Sutton, and obliged under the Act, tofurnish to its employees a working environment free from recognized hazards aswell as from the viewpoint of practical on-the-job safety principles, had theduty and obligation to insist and insure that the errant employee comply withthe bracing directives before proceeding further with the precariousmodification. The evidence demonstrates, however, that the Respondent, throughMr. Sutton, failed to meet either the statutory or the common-sense obligationnoted above, when he merely cautioned the employee of the danger involved incontinuing the modification attempt in disregard of the bracing instructions.Mr. Sutton at that time had the obligation to remain on the scene in order toinsure that the employee who had twice contravened the instructions, hadproperly carried them out.??????????? TheRespondent argues that such a procedure would require the employer to furnishone supervisor for each employee, an ?enormous? burden and one which Congressdid not intend under the Act. It appears clear to the undersigned that on thefacts in this case, as outlined immediately above, the Respondent?s ?one onone? argument is at the very least, misplaced.??????????? Thefacts clearly show that had Mr. Sutton simply remained with or periodicallychecked the employee on either of the two specific occasions on which hedirected the required diagonal bracing to be set up and thereby insured thatthe construction of the bracing had been commenced and completed, theRespondent?s statutory and non-statutory obligations would have thus been met.Such a simple ?one shot? surveillance or observation designed to insure thatthe employee was carrying out safeguards ordered for his welfare, and thewelfare of others at the work site, falls far short of constituting the?enormous? burden which the Respondent perceives as ?furnishing one supervisorfor each employee? and a ?one on one? basis, and was an obligation which theRespondent could and should have assumed, in order to render the workplacehazardless.??????????? Inits proposed conclusions of law and reply memorandum the Respondent in effectadditionally argues that the Secretary?s action was brought against the wrongRespondent, and that it was the general contractor, the Government ServicesAdministration, and the Federal Court Architects and Engineers of Philadelphia,who violated the Act. This contention is based inter alia on the propositionthat the Respondent?s ?sole responsibility for the construction of the wallsimply was to carry out the orders given by McCloskey and Co.;? that McCloskeyand Co. and the aforementioned groups ?allowed? the obviously unsafe wall tostand unsupported; that the Respondent having no ?control or knowledge of theplans for the wall? could not have recognized its inherent defects; that thesite 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 17of the Act ?imply? that contributory negligence is a defense to a citation forviolation of the Act, as is the showing of assumption of risk on the part ofMr. [redacted] which is demonstratedin the record.??????????? Themain thrust of the Respondent?s contentions involves the premise ?that becausethe primary contractor was the ultimate employer and was directly responsiblefor activities on the building site, the ?place of employment? was that ofMcCloskey and Co.,? and not the Respondent.??????????? Inhis reply memorandum the Respondent perceives the salient issue in this case asthe ?placement of responsibility under the Act for the collapse of a wall atthe site of construction of a federal court house . . .? and infers that thecomplainant has obscured this issue, persistently refusing to deal with factsrelating 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 ofthe wall. The Respondent urges that it was ?actually the employee? of thegeneral contractor and ?as such, was only the innocent instrumentality ofMcCloskey and Co. in building the wall.? The Respondent further argues thatsince McCloskey and Co. was the primary contractor responsible for the erectionof the wall, it was also responsible for correcting the wall?s defects; thatthe Respondent was not responsible for the wall being without lateral support;that it was McCloskey and Co. which ordered the alteration or modification workon the wall; and repeats that the Respondent?s sole function in theconstruction and alteration of the wall was to carry out instructions of the?ultimate employer on the job site,? and it exercised reasonable diligence indoing so.??????????? I donot agree with the Respondent?s contentions as outlined in its memoranda, andas referred to above.??????????? Thesingle issue remaining for determination in this case is whether or not therewas a serious violation by the Respondent under section 5(a)(1) of theOccupational Safety and Health Act.??????????? Asthe Complainant has asserted, section 5(a)(1) ?is forceful in its brevity.? Itreads:Sec. 5. (a) Each employer??(1) shall furnish to each of his employeesemployment and a place of employment which are free from recognized hazardsthat are causing or are likely to cause death or serious physical harm to hisemployees.???????????? Thisis the salient issue under the statute involved and the issue is not, as theRespondent argues, ?the placement of responsibility under the Act for thecollapse of a wall. . . .? We are here concerned with a remedial statutedesigned inter alia to assure safe and healthful working conditions for ?everyworking man and woman in the Nation.? Section 5(a)(1) above, of that statute isclear and unambiguous in its face, and does not lend itself to being distorted,perverted or weakened by interpretations of its plain meaning which may springfrom tort, agency or contract law, applicable in other non-statutory contexts.??????????? Thequestion of the Respondent?s tort liability and its collateral aspectsinvolving the law of agency and\/or contracts is not at issue here, and may notserve to either diminish or eliminate the Respondent-employer?s general dutyunder the Act to furnish to each of his employees employment and a place ofemployment free from recognized hazards.??????????? Inview of the above, it would then follow that the employer?s ultimate complianceresponsibility may not be diminished by principles of tort law, including theprinciple of contributory negligence.??????????? Responsibilityfor compliance with the Act is not transferred from the employer to hisemployee. Such a consequence is contrary to the Congressional intent underlyingthe 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 theemployee?s duty provided in section 5(b) of the Act to diminish in any way theemployer?s compliance responsibilities or his responsibility to assurecompliance by his own employees. Final responsibility for compliance is withthe employer.???????????? In astrikingly similar case, cited by the Complainant, Review Commission JudgeJoseph L. Chalk, in treating with the employer?s contention that he wasblameless on principles of tort law, asserted, and as to that specific issue Iam in agreement with his views as expressed below:While other contractors or individuals insimilar factual settings may be responsible under tort law for their actions ofcommission 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 hisunique obligation under the Act to furnish each of his employees a place ofemployment free from recognized hazards . . . especially under thecircumstances where the employer perceives the potentiality of a hazard andinitiates measures calculated to avoid it.[1]???????????? Inline with the last portion of the above quotation the Complainant notes thatWilliam Sutton, employed by the Respondent as a supervisor, similarly?perceived? the potentiality of grave harm to employees at the work site whichthe modification of the wall presented, and Sutton also ?initiated? (but didnot complete) ?measures calculated to avoid? the recognized hazard.??????????? Thereis no doubt that because of the number and variety of ?employers? on a givenconstruction site at one time, and the contractual pyramid under which suchprojects operate, an Occupational Safety and Health Administration complianceofficer may find it difficult in certain situations to determine which of these?employers? violated the general duty clause (see paragraph 13(a)(2)(d) ofChapter VII of the OSHA Compliance Operations Manual), as such clause pertainedto its employees, but on the facts in the captioned case it appears only tooclear that the dictates of the general duty clause extended uniquely to theRespondent named herein, and not to the general contractor, McCloskey and Co.as the Respondent contends.??????????? Theevidence demonstrates that the Respondent on September 27, 1971, when the wall collapsed,exercised effective control of at least that specific area of the overallgeneral work environment where the modification work was initiated; that theonly employees there and then affected by the hazard were employees of theRespondent out of a total of approximately 48 workers which the Respondentemployed at the workplace on that day; that the Respondent recognized the walland the modification thereof as a hazard; that the supervisor empowered todirect the modification work and give orders to the workers involved thereinwas an employee of the Respondent; that the employee killed in the wallcollapse was employed by the Respondent; that the last clear chance to rectifyor eliminate the recognized hazardous condition resided in the Respondent,through its supervisor, Mr. Sutton.??????????? Thesefacts clearly indicate that it is the Respondent (who conceded it is an?employer? within the meaning of the Act) and not McCloskey and Co., thegeneral contractor (as the Respondent contends) who breached its general dutyto its employees, by failing to furnish the said employees with a non-hazardouswork site.??????????? Theinstant situation is clear on its face and is not susceptible of beingdistorted by contentions based upon non-statutory concepts, and principles of torts,contracts and agency. The prime actor here from the statutory standpoint wasthe Respondent. The attempt of the Respondent to stretch section 5(a)(1) of thestatute so that its general duty clause covers McCloskey the generalcontractor, who remained comparatively absent and remote from the activitiesdescribed above relative to the wall, appears utterly without foundation,either factual or legal.??????????? Insummary therefor, substantial evidence exists to support the conclusion thatthe Respondent in the captioned case, violated section 5(a)(1) of the Act byfailing to furnish to the employees employment and a place of employment freefrom recognized hazards causing or likely to cause death or serious physicalharm to said employees. The Respondent?s failure in this regard beingmanifested by a lack of adequate supervision in the carrying out of anundercutting and removal operation of masonry material from a free standingmasonry wall which inadequate supervision resulted in the wall?s collapse andthe unfortunate death of one of the Respondent?s employees.CONCLUSIONS OF LAW??????????? Basedupon all of the foregoing, the undersigned concludes that:??????????? 1.Jurisdiction of this proceeding is conferred upon the Occupational Safety andHealth Review Commission pursuant to section 10(c) of the Occupational Safetyand Health Act of 1970.??????????? 2. Atall times relevant herein, John B. Kelly, Incorporated, the Respondent, was anemployer engaged in a business affecting commerce and employed employees withinthe meaning of section 3(5) of the Act and is subject to the requirements ofthe Act.??????????? 3.The employer did not furnish to each of its employees, employment and a placeof employment which were free from recognized hazards that were causing or werelikely to cause death or serious physical harm to said employees, in that:(a) The employer did not take adequateprecaution or provide proper supervision in an operation to undercut and removemasonry material from a masonry wall, which ultimately resulted in the collapseof the wall; and?(b) The employer did not temporarily shoreor brace, or cause to be shored or braced, a masonry wall until the designedlateral 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), asadopted by 29 CFR 1910.12.???????????? 4. Arecognized hazard, likely to cause death or serious physical harm, exists wherethe Respondent fails to insure through adequate supervision, the adequatediagonal bracing and supporting of a free standing masonry wall, 17 feet inheight, 54? in width, prior to undercutting said wall, so that it will standonly on a 24? base.??????????? 5.The Respondent violated section 5(a)(1) of the Act in that it failed to furnishto each of its employees, employment and a place of employment which were freefrom recognized hazards that were causing or were likely to cause death orserious physical harm to its employees, in the manner and means noted above.??????????? 6.This violation constituted a serious violation of the Occupational Safety andHealth Act of 1970 (29 U.S.C. ? 654), and the penalties proposed by thePhiladelphia Area Director of the Occupational Safety and Health Administrationwere reasonable, proper, and warranted under the circumstances.??????????? 7.While the Respondent does not dispute the proposed penalty of $550.00 for theaforesaid violation as being unjust or unreasonable, in view of the gravity ofthe hazardous condition which the Respondent permitted to exist, and theresultant related fatality, the said penalty is concluded to be inappropriate.??????????? 8.The Respondent violated section 5(a)(2) of the Act in his admittednon-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 aforesaidviolations is not disputed by the Respondent and under the pertinent facts andcircumstances were properly fixed.??????????? 10.The total proposed penalty assessed for the nonserious violations, whichamounted to $44.00, while not opposed by the Respondent is found to beinappropriate and unsuitable in that the assessment of such penalty in light ofother relevant factors including good faith, fails to serve any useful purposein effecting continuing and future compliance on the part of the Respondentwith the letter and spirit of the Act.ORDER??????????? Inview of all the foregoing, and good cause appearing therefore, it is ORDEREDthat:??????????? 1.The applicable proposed penalty of $550.00 relating to the Citation for SeriousViolation is reassessed to $1,000.00.??????????? 2.The Citation alleging the ?non-serious? violations, as described in Items 1through 3 therein, is affirmed in all respects, except that the total proposedpenalty of $44.00 assessed for such violations is hereby vacated.?\u00a0\u00a0[1] (See Secretaryof Labor v. Thorlief Larsen & Son, Inc., OSHRC Docket No. 370; reportedin BNA Occupational Safety and Health Reporter, 57, June 1, 1972, at pages1255?1256.)”