Docket No. 326

CECO CORP.

OSHRC Docket No. 326

Occupational Safety and Health Review Commission

April 27, 1973

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

OPINIONBY: BURCH

OPINION:

BURCH, COMMISSIONER: On July 24, 1972, Judge John S. Patton issued his decision in this case, vacating the Secretary's citation and proposed penalty for an other than serious violation of a safety and health regulation for construction.

On August 1, 1972, pursuant to authority vested in Commission members by section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., hereinafter referred to as "the Act"), review was directed to determine whether there is substantial evidence on the record as a whole from which to conclude that the Secretary has sustained his burden of proof.

Respondent was cited for an alleged violation of 29 CFR 1926.701(d)(1) at a construction project where it had subcontracted to lay concrete floors. The standard reads as follows:

For stability, single post shores shall be horizontally braced in both the longitudinal and transverse directions, and diagonal bracing shall also be installed. Such bracing shall be installed as the shores are being erected.

Evidence of record supports Judge Patton's finding that respondent was in compliance with the specific requirements of the above referenced standard by installing bracing. However, expert witnesses disagree as to the resultant "stability" of the structure constructed to support the weight of the poured concrete. n1 On the basis of this circumstance, Judge Patton rules that "the plaintiff has failed to establish by a preponderance of the evidence that the respondent has violated . . ." the standard.

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n1 Complainant's witnesses testify that, prior to pouring the concrete, the bracing undertaken by respondent was insufficient to afford stability. Respondent's witnesses, on the other hand, express the opinion that the weight of the concrete rendered the structure stable.

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Section 10(c) of the Act provides that the Commission shall afford an opportunity for a hearing in accordance with section 554 of title 5, United States Code. n2 That section states in part that an agency shall give parties the opportunity for hearing and decision in accordance with section 556 of title 5, which provides that a ruling must be supported by reliable, probative, and substantial evidence. n3 Judge Patton's reference to the "preponderance of the evidence" n4 is misleading. In the instant case, the Secretary having failed to sustain his burden of establishing by substantial evidence that respondent violated the standard by erecting an unstable structure, the citation is vacated.

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n2 Administrative Procedure Act, section 5.

n3 Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Consolidated Edison Company of N.Y. v. N.L.R.B., 305 U.S. 197, 229 (1938).

n4 Preponderance of the evidence means that, based upon all the evidence, the facts asserted by the party having the burden of proof are more probably true than false. Burch v. Reading Company, 240 F. 2d 574, 579 (3rd Cir. 1957), cert. denied 353 U.S. 965 (1957).

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It is ORDERED that the Judge's decision, as modified, be affirmed and that the citation be vacated.

CONCURBY: VAN NAMEE

CONCUR:

VAN NAMEE, COMMISSIONER, concurring: I concur that the citation should be vacated. I base this decision on the ground that the Secretary did not satisfy his burden of proof under any standard of persuasion.

I do not believe, however, that we should adopt the substantial evidence rule as the evidentiary standard for decisions of this Commission.

I take this position in view of the consequences that flow from our decisions. For example, an employer can be required to expend many thousands of dollars to abate a condition we find to be violative. Abatement is necessary and the monies must be expended in order that the fundamental purpose of the Act is accomplished.

In such circumstances it does not appear to be fair to predicate our decision merely on the ground that "there is such relevant evidence as a reasonable mind might accept as adequate to support" n5 the conclusion of a violation. Moreover, and contrary to the majority's mistaken reliance on the words of 5 U.S.C. 556, the evidentiary standard usually applied in administrative proceeding is that the proponent of an order must establish his case by a preponderance of the evidence. n6 Woodby v. Immigration & Naturalization Service, 385 U.S. 276, 285 (1966); Kent v. Hardin, 425 F.2d 1346, 1349 (5th Cir., 1970); McCormick, Handbook on Evidence, § 355 at 853 (2 ed., 1972); Jaffe, Administrative Law; Burden of Proof and Scope of Review, 79 Har. L.R. 914 (1966). In view of the consequences of our decisions it is my view that the preponderance rule is more suitable for our proceedings than the standard adopted by the majority.

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n5 N.L.R.B. v. Oertel Brewing Co., et al., 197 F.2d 59 (6th Cir., 1952).

n6 The rule may be stated as meaning that on the evidence of record the existence of a fact is more probable than its nonexistence. See Model Code of Evidence Rule 1(3).

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I would add that the majority by adopting the standard of substantial evidence confuses the role of the Commission with that of an appellate court of review. It is our function to decide the case in the first instance. Thus, our role in deciding a case is like that of civil trial courts. The standard employed in civil cases by such courts is the preponderance rule. Appellate courts on the other hand do not act as substitutes for trial courts. They do not view witnesses; they do not receive the emotional flavor of trial. Rather they view the cold evidentiary record of words and things. Perhaps it is for this reason that appeal courts are permitted to reverse factual findings of district courts only if the error can be said to be clear (F.R. Civ. P. 52(a)). The same reasoning applies to the reversal of findings of an administrative agency. In any event, the substantial evidence rule is for judicial review, and it is not normally employed as the standard in the agency proceeding. Woodby v. Immigration & Naturalization Service, supra at 282.

[The Judge's decision referred to herein follows]

PATTON, JUDGE, OSAHRC: This case is before this judge on the complaint of James D. Hodgson, Secretary of Labor, United States Department of Labor, hereinafter referred to as plaintiff, against the Ceco corporation, hereinafter referred to as respondent, alleging that respondent has violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 and Occupational Safety and Health standard 29 CFR 1518.701(d)(1). It is alleged that on or about November 18, 1971, respondent violated said Act and standard by failing to have single post shores, horizontally braced in both the longitudinal and transverse directions for the support of the pouring of a concrete roof or floor.

Citation was issued on December 6, 1971, by plaintiff, alleging said violation, and a penalty in the amount of $30 was proposed. The respondent filed a notice of contest to said citation, whereupon the aforesaid complaint was filed by the plaintiff. Hearing was held before John S. Patton, judge, in Birmingham, Alabama, on March 14, 1972. Mr. George D. Palmer represented the plaintiff at said hearing and Mr. Arthur M. Wright represented the respondent. There was no motion to intervene. All parties were accorded the right to present evidence and orally argue the case. The parties were also granted the right to file written briefs and briefs from both parties have been filed.

LAW AND ISSUES OF THE CASE

Occupational Safety and Health standard 1518.701(d)(1) provides as follows:

It is, therefore, necessary to determine whether the respondent's method of bracing conforms to said standard. It is conceded by the plaintiff that there was longitudinal and transverse bracing at the top of the bracing, but it is the position of the plaintiff that such bracing should also have been done at the bottom or not higher than the middle of the bracing. On the other hand it is the position of the respondent that additional bracing at the middle or below is not necessary and would not add substantially to the stability of the bracing.

EVIDENCE IN THE CASE

Mr. Carl Thomas Frazier, Compliance Officer for the plaintiff testified that on November 18, 1971, he inspected the premises at which an addition was being constructed to a hospital for the Lawrence County Hospital at Moulton, Alabama. The respondent was a subcontractor on the construction project and it was its responsibility to pour reinforced concrete. Bigbee Construction of Tuscombia, Alabama, was the general contractor. The respondent erected bracing to withstand the weight of concrete to be poured above until the concrete cured. The witness testified that the concrete was apparently going to be the roof of the first story. The shores erected were basically single poles or single post shores. They were approximately 4 foot centers. They appeared to be approximately 4 by 6 inch timbers. Some of them were extensionable, that is, they were cut in the middle and allowed to be extended for a 7 foot floor, 8 foot, 9 foot and so forth. They were braced in a diagonal direction. Both parties concede that there was not horizontal and transverse bracing below the top. The ceiling was being built 8 to 10 feet above the floor of the first story.

As above stated, the shores were adjustable and according to Mr. Thomas Herron, the respondent's carpenter-foreman, the shores are tightened securely by jacking up the shore. Additional bracing or lacing is done if the shore is over 12 feet high, but if it is under 12 feet as in the case at bar, the horizontal and transverse bracing is not done except at the top. Lacing was described by Mr. Herron as tying all 4 by 4 shores together with 1 by 6's or 1 by 5's or 1 by 4's, running horizontal or longitudinal direction and nailing each shore to the 1 by 6 or 1 by 5.

There is very little dispute in the evidence as to the actual type of bracing which was used by the respondent but the evidence is in complete dispute as to the affect from a safety standpoint of this type of bracing. Mr. Frazier testified that he did not know the force required to displace a single post shore if a load was imposed on the top of it, but before the load was placed on it a verticle shore could be kicked out of place. He stated that if his memory served him correctly he kicked one of the shores when he was inspecting the project and the shore moved. He stated that the concrete had not been poured at that time. Mr. Morely Brickman, a compliance officer with the plaintiff, testified that a vertical shore could be struck by a workman and caused to move or could be moved by some other construction material hitting it, that it could even be moved by vibration. He stated that a bus traveling outside could cause movement of the structure or an airplane going over and breaking the sound barrier would also cause movement. He said that excavating equipment could cause vibration and that therefore, bracing was required up to the time the total load was on the shore. He stated that it was subject to collapse prior to the time the concrete went on top of it.

Mr. Robert A. Wendell, Assistant Regional Administrator for Compliance with the plaintiff testified that the purpose of horizontal bracing is to stabilize vertical post shores to allow them to carry safely the load anticipated to be imposed upon it. He stated it is necessary many times to install it in order to support the framework until it is entirely connected as a system and altogether. He stated that it serves to keep vertical shores in alignment, to space them the desired number of feet apart and keep them plumb.

On the other hand, Mr. Herron, the respondent's foreman stated that to move a shore he would have to take a hammer and knock the clamps loose to loosen the shore. Mr. Charles Borden, Corporate Manager of Safety for respondent who is an engineer and an authority in his field who has written many articles on the subject of proper bracing for trade publications, testified that horizontal bracing at the top plus friction for the load prevents it from moving out. Respondent's witnesses also testified that the only thing that would happen if someone kicked one of the shores would be that he would get a sore toe.

Mr. Frazier testified that if a shore is out of line, it reduces the load bearing capacity. He stated that horizontal bracing at floor level or halfway up would have been adequate with the bracing that the respondent has.

Mr. Morely Brickman was shown by biographical sketch introduced into evidence as plaintiff's Exhibit 2, to be a graduate of Thayer, School of Engineering, Dartmouth College, with a degree of Bachelor of Science in engineering. He also had 89 quarter hours of 48 quarter hours of work at Loyola University working toward a Masters degree in business administration. He had training at the University of Illinois Circle Campus under the auspices of the Office of Civil Defense, Department of the Army, as a Fallout Shelter analyst, receiving certificate having completed a 15 to 16 week course. He has studied for the Department of Labor in techniques for construction and taken safety and health courses, is a licensed, registered, professional engineer State of Illinois, by examination and Fallout Shelter Analyst. He is a national member of Illinois Society of Professional Engineers and Vice-President in Construction Safety Association of America. He has served as superintendent of construction for a firm specializing in residential construction and subdivision development, proprietor or a general construction firm specializing in residential building and subdivision development, supervising 50 tradesmen, was general superintendent for a construction firm building residential, commercial and public buildings, vice-president of a general construction firm, president of a general construction firm, superintendent for a demolition company wrecking the world's largest wooden building, and worked for four years for the U.S. Department of Health Education and Welfare; Facilities Engineering and Construction Agency and as a Compliance Officer with the Department of Labor. Mr. Brickman stated that horizontal bracing enables vertical members to contain the load for which they are designed and also assures that vertical members are positioned properly. It is used to make certain that the vertical shores are a correct number of feet apart. He stated that bracing is required up until the time the total load is on the shore. He testified this is required to keep the shore aligned and keep it from moving out of position and that the project is subject to collapse prior to the time the concrete goes on it.

Mr. Robert A. Wendell, stated that he was an alternate member from the United States Department of the Army on the committee that adopted the ANSI Standards for the industry. He stated that he was on the A-10 Construction Safety Standard Committee for the American National Standards Institute. He stated that he passed on and approved the work of the Committee which composed the standards. He stated it then had to go to the Safety Standards Board of ANSI for final adoption. He had been Chief of Safety of the U.S. Army Engineer Division of the South Atlantic for a period of 20 years. He stated that the standards as set forth under the Occupational Safety and Health Act are almost completely like the American National Standards Institute's standards. According to him, the purpose of horizontal bracing is to stabilize vertical post shores to allow them to carry safely the load anticipated to be imposed upon them. He stated that it is necessary many times to install such bracing in order to support the framework until it all becomes connected as a system together. He states it serves to keep vertical shores in alignment and spaced the proper number of feet apart. It keeps the shores plumb.

On the other hand, Mr. Herron testified on behalf of respondent that there is no need for horizontal and transverse bracing except at the top if the height of the vertical shores is less than 12 feet. He testified the shores are 9 to 10 feet in the instant case. He stated that if it is over 12 feet it is necessary to tie the shores together by lacing. He stated that wedges are only used if it is under 6 feet high, that a clamp jack is used to tighten up shores if they're over 6 feet high, and this is what the respondent used. He described lacing as a method of horizontal bracing. He stated that if the shores were over 12 feet that lacing should be installed 6 or 7 feet from the floor. He stated after 15 feet additional lacing would be applied 6 feet higher, that if it is 12 feet or higher, there must be additional lacing. Mr. Borden testified that diagonal bracing gives stability to the structure in the lateral direction the same as horizontal bracing at the top. He stated that horizontal bracing does not contribute to horizontal stability. He stated horizontal bracing at the bottom could contribute nothing on a flat surface, that it would contribute on a sloping surface. He stated the purpose of horizontal bracing is to resist vertical loads on the shores rather than to support the shores horizontally. He stated that diagonal bracing makes it safe. He stated that one good push would cause it to go over if horizontal lacing was the only thing adopted, that horizontal lacing would not make it more secure. He stated the shore must be plumb but one shore moving is not going to make the whole system fall. He stated the diagonal bracing does not touch every shore but it does not have to, that it would not fall because the stringer would give support. A stringer is described in the American College Dictionary, edited by Random House, as "a long horizontal timber connecting upright posts supporting a floor or the like." He stated that horizontal bracing is used to resist vertical loads on the shores. He stated that horizontal bracing at the top plus friction from the load prevents the shores from moving out. X bracing keeps the stringer at the top from going. He stated that when it is nailed from the top that a man slides along at the top. There is only bracing at the top when the man is sliding along the top. He stated that the only time in the history of the business when the bracing gave way, the system was over sixteen feet high and excessive steel was put on by a general contractor. He stated that he's never known of the type bracing done by the company resulting in a collapse, that there have been over 3,000 jobs the last three years and no collapse.

EVALUATION OF THE EVIDENCE

It is the contention of the respondent that standard 1518.701(d)(1), if interpreted as contended by plaintiff, is impractical and that the judge should so find. It is the position of the plaintiff that the Occupational Safety and Health Review Commission and the trial judges of said Commission do not have the authority to determine the wisdom or practicability of the standard but that the question of wisdom and practicability of the standard is solely one for the Secretary of Labor. I am of the opinion that the position of the plaintiff in this regard is the correct position and that I do not have the jurisdiction to hold that the standard does not apply because the standard is impractical. A study of the Congressional History of the Act reveals that the point of greatest discussion by the United States Congress was the question of whether the judicial interpretations of the Act should be made by those under the Secretary of Labor or should be made by a body entirely separate from the Secretary of Labor. This discussion was resolved in favor of the latter position. The position was taken by some in Congress that there should be one body to enunciate and promulgate the standard; another body to enforce the standards and a third to adjudicate the standards. This issue was compromised on the basis of the Secretary of Labor having the joint responsibility of promulgating and enforcing the standards but with the adjudication of the standards placed in an entirely separate commission not under any cabinet, department. It is plain from a study of the Congressional history of the Act that it was the intent of Congress that the creation of the standards including the determination of the wisdom and practicability of the standard should reside in the Secretary of Labor and that this power should be completely separate and apart from the power of the Review Commission which should be judicial only. A judicial power encompasses the power to interpret legislation rather than to reform legislation. For me to attempt to "second guess" the Secretary of Labor in his determination that a standard is practical would be for me to usurp the power of the Secretary of Labor and to exercise powers not granted me or the Commission by Congress. See Hodgson v. The Jos. Bucheit & Sons Company, Therefore, insofar as the respondent addressed its defense to the ground that the standard is impractical and therefore should not be applied to the respondent, the respondent's defense must fail.

This case is very difficult to decide. The relevant standard simply requires that there be horizontal and transverse bracing. It does not say whether it shall be at the top, bottom, middle or some other point. It does say that it shall be done "for stability." It is admitted by all parties that there was horizontal and transverse bracing at the top and diagonal bracing which did not touch all the shores, and it is also admitted that there was no horizontal and transverse bracing beneath the bracing which was done at the top. Since the standard does not specify the height at which there must be such bracing or the number of times the bracing must exist on the shores, the issue for decision is whether it meets the standard's requirement of "stability." The expert witnesses produced by the respective parties have outstanding qualifications. It will be noted that Mr. Wendell was one of the committee which approved the industry standards and has over 20 years of experience as Chief of the Safety Office for the United States Army Engineers, Division South Atlantic. Mr. Brickman has long years of experience, both occupationally and educationally. On the other hand, Mr. Borden, Corporate Manager of safety for the respondent, is an authority in his field, and has written numerous articles for the leading trade journals, detailing the proper methods of bracing for the laying of concrete. It would have been difficult for either party to have found more qualified experts but notwithstanding the outstanding qualifications of the experts, their conclusions are dimetrically opposed to each other. This is a matter of great importance as workmen are constantly engaged in the type of work involved in this litigation and an unsafe condition from an improper standard of supporting of concrete could result in tragic consequences. The respondent's evidence is to the effect that the shores could not be moved even if a person took a heavy hammer and struck them, trying to force them to be moved and that if they were kicked, the worst thing that would happen would be that the person doing the kicking would have a sore toe. On the other hand, the plaintiff's evidence is to the effect that an airplane breaking the sound barrier; a large vehicle passing by, or similar vibrations could cause the shores to move and that if they were accidentally hit by a pipe or some other piece of equipment they would move. Witnesses on both sides, as above stated, are well-qualified to express an opinion. This leaves this judge in something of a quandry as to whether the respondent's type of bracing does meet the statutory qualification of stability. There is horizontal and transverse bracing and therefore, from that standpoint the standard's requirements are met. The respondent's method of bracing consists of diagonal bracing which is not on every shore and horizontal bracing at the top with the vertical shores being affixed to the top stringer by means of inserting them in a piece of metal under the parallel timber at the top and by means of jacking the shores up to make them fit very tightly. The respondent's position as indicated by its experts is that horizontal bracing at the lower levels under these circumstances only exist for the purpose of adding to the strength of the shore insofar as the weights placed on top of it are concerned. If the vertical shores are in excess of 12 feet, they might buckle and not hold the load unless there is some horizontal bracing at lower levels. The longer the vertical shore becomes, the more the bracing that is required. It is the evidence of their experts however, that this is to add strength to the shores from the standpoint of the loads placed upon them rather than being necessary from the standpoint of them being in a stable position and not being subject to movement. There is no dispute as to the fact that the shores were not in excess of 10 feet high which would put them under said 12 foot point at which additional horizontal bracing would be required. I am of the opinion that the evidence is rather evenly balanced as to whether or not the bracing as erected by the respondent is stable and, therefore, meets the requirements of the standard. The evidence is to the effect that the respondent has erected over 3,000 supports for the laying of concrete in the last three years and has not had a single collapse. The evidence is further to the effect that the only time the company had a collapse was when the vertical shores were sixteen feet high and an unanticipated weight of steel was placed upon them. The sixteen feet, of course, would be in excess of the 12 foot limit. Three thousand instances without a collapse would tend to substantiate the respondent's contention that there is adequate stability without horizontal and transverse bracing at the lower levels. The burden of proof rests upon the plaintiff. The evidence appears very evenly balanced and this judge is of the opinion that the plaintiff has failed to tip the scales in favor of its position. I am, therefore, of the opinion that the citation has not been sustained. I, therefore, make the following findings of fact.

FINDINGS OF FACT

1. Respondent, Ceco Corporation, is a corporation having a place of business and doing business among other places in Birmingham, Alabama, where it is engaged in the general contracting business.

2. Respondent engages in the contracting business in a number of states and purchases materials which either directly or indirectly enter the flow of interstate commerce and, therefore, respondent is and at all times relevant hereto has been engaged in a business affecting commerce within the meaning of the Act and is subject to the Occupational Safety and Health Act.

3. Respondent was on or about November 18, 1971, engaged in the laying of concrete ceilings and floors in a construction project involving the building of a hospital addition at Lawrence County Hospital, Moulton, Alabama.

4. In building the supports for the laying of said concrete the respondent erected horizontal and transverse bracing at the top of the vertical shores, but not at a lower level.

5. The respondent also erected diagonal braces, but said braces did not touch every shore.

6. The bracing of said supports by the respondent was stable as defined by Occupational Safety and Health standard 1518.701(d)(1).

CONCLUSIONS OF LAW

1. The respondent is engaged in a business affecting interstate commerce within the meaning of the Act and, therefore, is required to comply with said Act and the Occupational Safety and Health Review Commission has jurisdiction of this case.

2. A judge of the Occupational Safety and Health Review Commission does not have the authority to determine the wisdom or practicability of a standard but only has the authority to interpret the standard and determine whether or not it has been violated.

3. The plaintiff has failed to establish by a preponderance of the evidence that the respondent has violated Section 5(a)(2) of the Occupational Safety and Health Act of 1970, or Occupational Safety and Health standard 1518.701(d)(1).

ORDER

It is, therefore, ordered that the citation as set forth in the complaint in this cause be and the same hereby is dismissed.