Docket No. 388

ARK WRECKING COMPANY, INC.

OSHRC Docket No. 388

Occupational Safety and Health Review Commission

5 November 1, 1973

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission upon my order directing review of a decision of Judge James D. Burroughs. We adopt the decision of the Judge to the extent it is consistent with this decision.

One of Respondent's employees was killed when a Melro Bobcat Loader fell through the floor of a building Respondent was demolishing in Oklahoma City, Oklahoma. Following the accident, Complainant conducted an inspection and issued a citation charging a single serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter "the Act"). The citation alleged that Respondent violated the Act by violating regulations published at 29 C.F.R. 1926.850(a) and 1926.856(a). n1 A civil penalty of $550 was proposed by Complainant.

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n1 The regulations are cited as currently numbered. They provide:

1926.850(a): Prior to permitting employees to start demolition operations, an engineering survey shall be made, by a competent person, of the structure to determine the condition of the framing, floors, and walls, and possibility of unplanned collapse of any portion of the structure. Any adjacent structure where employees may be exposed shall also be similarly checked. The employer shall have in writing evidence that such a survey has been performed.

1926.856(a): Mechanical equipment shall not be used on floors or working surfaces unless such floors or surfaces are of sufficient strength to support the imposed load.

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Respondent was alleged to have violated the cited standards by failing to conduct an engineering survey prior to beginning its demolition work and by operating the loader on a floor of insufficient strength to support the machine.

The Judge correctly concluded that the only violation established by Complainant was Respondent's failure to maintain written evidence of the inspection required by 29 C.F.R. 1926.850(a) and that this failure constituted a non-serious, rather than a serious, violation. It is the conduct of the inspection which is crucial. Here, the record establishes that the required inspection was conducted and that it was conducted by a competent person. Mere written evidence of the inspection would not change its adequacy or the competence of the inspector. Indeed, we find the violation so minimal and of such low gravity that we find the Judge's assessment of a penalty ($100) inappropriate. n2 This case is similar to Secretary of Labor v. J.E. Chilton Millwork and Lumber Company, Inc., Secretary of Labor v. General Meat Company, Inc.,

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n2 In reaching our conclusion we have also considered the size of Respondent's business, its good faith, and its history of previous violations.

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Accordingly, it is ORDERED that the decision of the Judge is modified so as to be consistent herewith.

DISSENTBY: CLEARY

DISSENT:

CLEARY, COMMISSIONER dissenting: I cannot agree. I do agree with the majority that the conduct of the inspection is the crucial question. For the reasons below, I believe that the inspection did not conform to the requirements of section 1926.850(a) and I also believe that respondent was in violation of the Act by failure to comply with section 1926.856(a).

The respondent was cited for an alleged serious violation involving the standards set forth at 29 CFR 1926.850(a) and 29 CFR 1926.856(a). n3 An employee of the respondent had been working on the second floor with an M 600 Melro Bobcat Loader weighing approximately 3,000 pounds. He was found on the first floor of the two-story building with the loader on top of him. There was a large hole in the second floor above where he was found. The evidence established that the respondent's employee and the 3,000 pound loader fell through the second floor. The majority dismisses the accident and the alleged violation of 29 CFR 1926.856(a) in one sentence.

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n3 The standards are set out in the majority opinion.

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Although there is a line of cases in which the Commission has held that the occurrence of an accident is not proof of a violation of the Act, the collapse of the second floor in this instance, vis-a-vis the standard at 29 CFR 1926.856(a), is persuasive evidence of a violation. The "imposed load" would not have collapsed the second floor had the floor been of the requisite strength to support it.

Respondent's president conducted the inspection required by 29 CFR 1926.850(a). The Secretary's compliance officer testified that, in his opinion, respondent's president was competent to determine whether the building under demolition was a safe worksite. The testimony of the inspector, however, is equivocal on his training and competence and is evasive as to what kind of survey he conducted. n4

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n4 Respondent's president was called by the Secretary as an adverse witness.

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When a "competent person" conducts an engineering survey to determine the "possibility of unplanned collapse" it is not to be expected that only those floor joists exposed to the eye will be examined. Respondent's president looked at only 25 percent of the floor joists in that building. Section 1926.850(a) does not envision a partial or ineffective inspection. Reference in the standard to an "engineering survey" by a "competent person" clearly requires that an adequate survey be conducted.

Respondent's president relied upon his 16 years of experience in the wrecking business to qualify him to look at a building and determine it safe. His less than thorough examination does not equate with an engineering survey as required by the standard. The adequacy of the inspection and the competency of the inspector are further called into question by his own testimony at the hearing that: "I don't think that there was a building on that block that wouldn't support 10,000 pounds." This opinion was maintained in the face of the floor having given way under the 3,000 pound weight of the loader.

I would affirm the citation for serious violation and the proposed penalty.

[The Judge's decision referred to herein follows]

BURROUGHS, JUDGE, OSAHRC: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter referred to as the Act), to review a citation for serious violation issued by the Secretary of Labor (hereinafter referred to as the complainant) pursuant to Section 9(a) of the Act, and a proposed assessment of penalty in the amount of $550.00 upon such alleged violation pursuant to Section 10(a) of the Act.

A Citation, alleging non-serious violations of four standards, and a Citation for Serious Violation, alleging a violation of 29 CFR 1518.850(a) and 29 CFR 1518.856(a), were issued to respondent on December 23, 1971. On the same date a Notification of Proposed Penalty was issued to respondent proposing a $550.00 penalty for the serious violations, which were treated as one condition, and no penalties for the non-serious violations. The Citation, Citation for Serious Violation and Notification of Proposed Penalty were received by respondent on December 27, 1971.

On January 4, 1972, respondent notified the complainant that it wished to contest the Citation for Serious Violation and the proposed penalty. The notice made no mention of the Citation for non-serious violations. On February 7, 1972, respondent filed an answer which addressed itself to the four non-serious violations as well as the serious violations. Complainant filed a inotion to strike the allegations with respect to the non-serious violations on the grounds that the non-serious violations were immaterial since they were not proper issues in the case. The motion to strike was granted prior to the commencement of the hearing of the merits of the case (Tr. 3-8).

Section 10(a) of the Act is clear that a notice of contest must be filed within fifteen days from the receipt of the citation issued by the Secretary. If the notice of contest is not filed within fifteen days, the citation and assessment, as proposed, are "deemed a final order of the Commission and not subject to review by any court or agency." The notice of contest filed by respondent did not clearly identify, and, in fact, did not even mention the non-serious citation as required by Section 2200.7(b)(1) of the Commission's Rules of Procedure and, therefore, was not sufficient to include the non-serious violations. Since no notice of contest pertaining to the non-serious violations was filed within the fifteen day period, these violations were not subject to further review and were not properly a part of this case.

The Citation for Serious Violation for which a notice of contest was filed described the alleged violation of 29 CFR 1518.850(a) as follows:

Prior to permitting employees to start demolition operations no engineering survey was made by a competent person of the structure to determine the condition of the framing, floors, and walls, and possibility of unplanned collapse of any portion of the structure.

The alleged violation of 29 CFR 1518.856(a) was described as follows:

Mechanical equipment was used on floors or working surfaces that were not of sufficient strength to support the imposed load.

The complainant advised the Occupational Safety and Health Review Commission of the notification of contest by respondent. The Commission assigned the case to this judge for a hearing pursuant to the provisions of Section 10(c) of the Act. A hearing was held in Oklahoma City, Oklahoma, on April 10, 1972. No additional parties desired to intervene in the proceeding.

ISSUES

The principal issues for determination are whether respondent violated 29 CFR 1518.850(a) and 29 CFR 1518.856(a) and, if so, whether such violations were serious or non-serious. If a violation did occur, a further question arises as to the appropriate amount of penalty to be asserted.

FINDINGS OF FACT

The evidence of record has been carefully considered and evaluated in its entirety. The facts hereinafter set forth are specifically determined in resolving this proceeding.

On November 18, 1971, respondent was engaged in the demolition of buildings located in the 300 block of West California Avenue, Oklahoma City, Oklahoma (Tr. 31, 39). On the same date, John Holmes, an employee of respondent, was engaged in the removal of trash and debris from the second floor of a building located at 306-308 West California Avenue n1 (Tr. 14-15, 20, 28, 32, 57). Holmes was operating a 600 Melro Bobcat Loader which weighed approximately 3,000 pounds in removing the debris (Tr. 23-24).

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n1 Some confusion exists as to exact location of the building since the complainant alleges it was located at 312 West California Avenue. The answer also makes reference to 312 West California Avenue. The compliance officer stated he was unable to determine the exact street number. (Tr. 66). Respondent's president testified that the actual street number was 306-308. (Tr. 57).

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Sometime during the day of November 18, 1971, Holmes was discovered lying dead on the first floor of the building with the Melro Bobcat Loader having fallen on top of him (Tr. 19, 21, 34). There was a hole in the second floor where Holmes had been operating the loader (Tr. 21, 33). No one saw the loader fall through the second floor (Tr. 56).

The building in which Holmes was working was approximately 100 feet in length (Tr. 36). The second floor had at one time served as a dance floor and had open construction up to the roof. The second floor was constructed on wood 2X12 floor joists (Tr. 28-29). In the opinion of respondent's president, the floor of the building should have supported 10,000 pounds (Tr. 47).

A survey was made by respondent's president and superintendent prior to commencement of demolition operations on the building (Tr. 24, 40-41, 47, 58). The survey was directed towards determining the kind of materials contained in the building and as to what could be expected to be salvaged from them (Tr. 25). The survey for 306-308 West California Avenue consisted of visually observing the building (Tr. 49, 58) and specifically noting the construction of the beams and the span of the floor joists, construction of the columns that supported the beams, the exterior walls and the type of lintels on the front of the building. The distance of the span of the floors and whether there was a sub-floor was also determined. The floor joists were inspected (Tr. 58). There was no evidence that floor joists were spliced (Tr. 59). The survey noted only the floor joists which were exposed. This constituted approximately 25 percent of the total number of joists (Tr. 60). The survey was not reduced to writing (Tr. 25, 67, 93-94).

The respondent's president, Richard J. Burns, has been in the demolition business since 1954 (Tr. 51). He attended college for one year and is not a licensed engineer. Burns was competent to determine whether the building was safe (Tr. 86, 92-93).

The complainant, through one of his authorized compliance officers, conducted an inspection of the respondent's workplace in the 300 block of West California Avenue on December 1, 1971 (Tr. 64). The compliance officer primarily went to the workplace to investigate the fatality (Tr. 101). At the time of the inspection, the building at 306-308 had been completely demolished (Tr. 66).

As a result of the inspection, a Citation for Serious Violation was issued on December 23, 1971, alleging a violation of 29 CFR 1518.850(a) in that no engineering survey had been made by a competent person and a violation of 29 CFR 1518.856(a) in that mechanical equipment was used on floors that were not of sufficient strength to support the imposed load (Tr. 72-73). The two alleged violations were cited as one condition constituting the serious violation (Tr. 115).

The compliance officer assumed a violation of 29 CFR 1518.856(a) due to the fact that the Bobcat Loader fell through the floor (Tr. 72, 90). The building had been demolished at the time of inspection. The compliance officer had no information as to whether the building was structurally sound since he was unable to make any calculations (Tr. 86-87).

The complainant proposed a penalty of $550.00 for the alleged serious violation. In arriving at the penalty of $550.00, the petitioner started with an unadjusted penalty of $1,000.00 and allowed a 45 percent reduction. Respondent was allowed a 20 percent reduction for good faith, a 20 percent reduction for previous history and a five percent reduction for size (Ex. 2; Tr. 81-82, 107).

LAW AND OPINION

Section 5(a)(2) of the Act provides that each employer shall comply with occupational safety and health standards promulgated under the Act. The standards-allegedly violated by the respondent are set forth at 29 CFR 1518.850(a) and 29 CFR 1518.856(a).

Section 1518.850(a) of 29 CFR provides as follows:

Prior to permitting employees to start demolition operations, an engineering survey shall be made, by a competent person, of the structure to determine the condition of the framing, floors, and walls, and possibility of unplanned collapse of any portion of the structure. Any adjacent structure where employees may be exposed shall also be similarly checked. The employer shall have in writing, evidence that such a survey has been performed.

Since the burden of proof is on the complainant, it appears clear that he must establish: (1) that an engineering survey was not made, or in the event such a survey was made, (2) that it was not made by a competent person. The standard also requires the respondent to have evidence in writing that such a survey has been performed.

There is no dispute that a survey was made of the building at 306-308 West California Avenue by respondent's president, Richard J. Burns. The compliance officer testified that in his opinion Burns was competent to determine whether the building was safe (Tr. 86, 92-93). No evidence was offered to refute this statement and petitioner concedes in its memorandum submitted in support of the Citation for Serious Violation that Burns appeared to meet the definition of a competent person as defined in 29 CFR 1518.32(f). n2 Thus, insofar as the record of this case is concerned Burns qualifies as a competent person as required by 29 CFR 1518.850(a). This leaves for determination the question of whether the survey was an "engineering survey" as required by 29 CFR 1518.850(a) and whether there was any written evidence to indicate that such a survey had been performed.

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n2 (f) 'Competent person' means one who is capable of identifying existing and predictable hazards in the surroundings or working conditions which are unsanitary, hazardous, or dangerous to employees, and who has authorization to take prompt corrective measures to eliminate them.

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The survey conducted by Burns included measuring the distance of the span of the floors, whether there was a sub-floor, the construction of the beams, the span of the floor joists, the type of construction of the columns that supported the beams, the exterior walls, and the type of lintels holding up the front of the building (Tr. 58). This observation revealed no evidence that the floor joists has been spliced (Tr. 59). The observation of the floor joists was limited to approximately 25 percent of the joists that were exposed (Tr. 60).

The standard in issue requires that an engineering survey be made of the structure to determine the condition of the framing, floors and walls and possibility of unplanned collapse. These items were covered in the survey completed by Burns. Complainant, in his memorandum in support of the Citation for Serious Violation, contends that a 25 percent observation of floor joists is insufficient to constitute the survey an "engineering survey" as required by 29 CFR 1518.850(a). This contention by complainant is untenable.

Complainant admits that Burns was a competent person to make the "engineering survey." The decision as to how many of the floor joists should be inspected is, in most instances, probably a matter of discretion on the part of the person making such a survey. Undoubtedly the number of floor joists necessary for inspection in conducting an "engineering survey" will vary depending on the building itself and the person conducting the survey. In the opinion of Burns, enough of the floor joists were exposed so that he could conduct his survey (Tr. 60).

Complainant, in essence, admits that Burns was a qualified person to conduct the engineering survey and at the same time attacks the creditability of the survey because only 25 percent of the floor joists were observed. If Burns was competent to conduct the survey, then it would seem reasonable to assume that he possessed enough competence to determine the number of floor joists that he needed to observe.

Section 1518.850(a) of 29 CFR does not attempt to define minute details as to what constitutes a complete "engineering survey." There is no definite requirement that one observe any given percentage of floor joists. The principal requirement appears to be that the survey be made by a competent person. The extent of the survey to be conducted is left to the discretion of the competent person.

Although complainant submits that the observation of only 25 percent of the floor joists renders the survey incomplete, he offers no evidence to reflect what, in his opinion, would have been a complete engineering survey. Furthermore, since complainant's compliance officer never saw the building, one can only assume that his argument is premised on speculation as to the number of floor joists that should have been inspected. The burden is on complainant to prove his case by facts and not by speculation. Accordingly, on the basis of the record, the inescapable conclusion is that Burns conducted an engineering survey as contemplated by 29 CFR 1518.850(a).

Section 1518.850(a) of 29 CFR further requires that the employer shall have evidence in writing that the survey has been performed. The use of the word "shall" implies that the requirement is mandatory. The evidence appears clear and convincing that the survey was not reduced to writing and, to this extent, respondent violated 29 CFR 1518.850(a).

Respondent submits that the survey was reduced to writing. This contention, however, is not supported by the evidence of record. The superintendent who accompanied Burns on the survey testified that he had no knowledge of the survey being reduced to writing (Tr. 25). The superintendent also informed the compliance officer at the time of his inspection that no written evidence was available to show that the survey was made (Tr. 67). The compliance officer was also informed by Burns that no written survey had been made (Tr. 93-94).

During the hearing, Burns testified that the survey was reduced to writing (Tr. 53). The question to which he responded, however, had reference to the buildings in the 300 block of West California Avenue. He was not specifically asked and never replied as to whether a written survey was made of the building at 306-308 West California Avenue. In addition, he indicated that the survey of the whole block was not reduced to writing until after demolition operation had commenced (Tr. 53-54). Respondent was also aware that it was charged with not having a written survey. If the survey had been reduced to writing, it would have been a simple matter to have introduced it at the hearing or at least explained its absence.

The evidence introduced by complainant was sufficient to establish a prima facie case and respondent has failed in its burden of going forward with the evidence. Accordingly, one can only conclude that the survey of the building at 306-308 West California Avenue was not reduced to writing.

Section 1518.856(a) of 29 CFR provides as follows:

Mechanical equipment shall not be used on floors or working surfaces unless such floors or surfaces are of sufficient strength to support the imposed load.

There is no dispute that Holmes was operating a 600 Melro Bobcat Loader, which weighed approximately 3,000 pounds, on the second floor of the building located at 306-308 West California Avenue. Thus the question to be resolved is whether the second floor was of sufficient strength to support approximately 3,000 pounds. There is no evidence to indicate the weight of the trash and debris which he was in the process of moving when the accident happened.

It is uncontroverted that the loader fell through the second floor and killed its operator. There were no witnesses to the accident. Complainant's case is based on the assumption that the floor was not of sufficient strength since the loader did in fact fall through the floor. At the time of the inspection by the compliance officer, the building had been demolished. As a result, he was unable to make any calculations or to determine if the building was structurally sound.

Complainant, in effect, submits that the standard was violated by reason of the accident. He has proven only that an accident did occur. The respondent's president, who conducted the engineering survey, testified that the floor would have supported 10,000 pounds. Since the respondent's president is recognized by complainant to be a competent person to determine if the building was safe, his testimony must be accorded weight over the mere assumption offered by complainant. Accordingly, it is concluded that complainant has failed to meet its burden that the floor was not of sufficient strength to support the imposed load.

This leaves for determination the question of whether the failure to reduce the survey to writing was a serious violation. Section 17(k) of the Act requires that the Commission base an adjudication that a violation is deemed a serious violation upon findings of fact which support "a substantial probability that death or serious physical harm could result" from the charged condition or practices. Mere proof of violation, with nothing more, proves only a non-serious violation.

The important aspects of 29 CFR 1518.850(a) concern the obtaining of an engineering survey by a competent person. The requirement that the survey be reduced to writing appears primarily directed toward evidentiary matters rather than any avowed purpose of improving safety. It is the engineering survey by a competent person that helps to insure safety rather than the written report. In this case the engineering survey was made by respondent's president and superintendent. They had authority to take corrective measures to insure safe working conditions as a result of their survey. Had they reduced their findings to writing, it would have contributed nothing toward making the job a safer place to work. Certainly the failure to put the survey in writing would in no way raise a substantial probability that death or serious physical harm would result. Accordingly, it is concluded that the violation of 29 CFR 1518.850(a) was a non-serious violation.

APPROPRIATENESS OF PENALTY

Once a notice of contest is served, the authority to assess civil penalties under the Act resides exclusively with the Commission. The Commission, in Section 10(c) of the Act, is charged with affirming, modifying or vacating citations issued by the Secretary under Section 9(a) and notifications issued and penalties proposed by the Secretary under Sections 10(a) and 10(b). The Commission, by Section 17(j) of the Act, is expressly required to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer and the history of previous violations in determining the assessment of an appropriate penalty. See Secretary of Labor v. Nacirema Operating Company, Inc.,

After due consideration of the four criteria provided by Section 17(j) of the Act, it is concluded that a penalty of $100.00 is appropriate for respondent's failure to reduce the survey to writing.

The Commission in Secretary of Labor v. J.E. Chilton Millwork and Lumber Company, Inc., This same rationale was applied by the Commission in Secretary of Labor v. General Meat Company, Inc., In both cases, small monetary penalties were eliminated by the Commission. In those cases the evidence reflected that the violations had been abated. The evidence in this case does not indicate that a written survey was ever prepared for the building at 306-308 West California Avenue. Since the evidence fails to disclose that the violation was abated, it is believed the monetary penalty is warranted.

CONCLUSIONS OF LAW

1. The respondent is, and at all times material hereto was, engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.

2. The respondent is, and at all times material hereto, was subject to the requirements of the Occupational Safety and Health Act and the standards promulgated thereunder, and the Commission has jurisdiction of the parties and of the subject matters herein.

3. An engineering survey was performed of the building at 306-308 West California Avenue, Oklahoma City, Oklahoma, by a competent person but the survey was not reduced to writing.

4. Respondent was in violation of 29 CFR 1518.850(a) in that the engineering survey was not in writing. The violation was non-serious. A penalty of $100.00 is appropriate for the violation.

5. Complainant has failed to prove that the second floor of the building at 306-308 West California Avenue was not of sufficient strength to support a Melro Bobcat Loader.

6. Respondent was not in violation of 29 CFR 1518.856(a).

Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is

ORDERED:

1. That the respondent was in violation of 29 CFR 1518.850(a) in that the engineering survey was not reduced to writing; the violation was non-serious and respondent is liable for a penalty of $100.00 for the violation;

2. That the respondent was not in violation of 29 CFR 1518.856(a).