Docket No. 43

ERNEST F. DONLEY'S SON, INC.

OSHRC Docket No. 43

Occupational Safety and Health Review Commission

April 11, 1973

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners.

OPINIONBY: BURCH

OPINION:

BURCH, COMMISSIONER: On July 7, 1972, Judge David H. Harris issued his recommended decision and order in this case affirming the Secretary's citation for a serious violation of Section 5(a)(1) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590, hereinafter referred to as "the Act"), and modifying the proposed penalty by reducing it to $250.

Respondent was cited for "[f]ailure to design, erect, support, brace or maintain form work and shoring so that it will safely support all vertical and lateral loads that may be imposed upon it."

It is undisputed that the T-form in question, weighing several thousand pounds and being approximately 30 feet long, 11 feet high, and four feet wide at the base, was secured by a cable assembly comprised of three separate lengths of cable secured by clamps anchored to an interior column of the building under construction. Evidence reveals that an employee, while engaged in securing another T-form for pouring, removed a cable from the aforementioned assembly. The T-form fell, killing two employees.

On July 13, 1972, I directed review of the proposed decision and order pursuant to Section 12(j) of the Act and invited submissions as to whether the means utilized by respondent to secure the T-form are consistent with the requirements of Section 5(a)(1) of the Act and whether, with the exercise of reasonable diligence, respondent could have known of the presence of the hazard.

The Commission has reviewed the briefs and exceptions filed by the parties and has considered the entire record. We adopt the Judge's recommended decision and order to the extent that it is consistent with the following decision.

The record shows that the T-forms utilized for pouring the concrete portion of the structure, by reason of their shape, size and weight constituted serious hazards unless restrained from tipping and falling. The record also reveals that respondent took steps to guard against this potential hazard. Evidence demonstrates that the method of guarding against the possibility of the T-forms tipping and falling provided reasonable security.

The question presented by the facts in this record is whether respondent, with the exercise of reasonable diligence, could have foreseen the removal of a portion of the securing assembly. Inasmuch as the removal of the cable assembly was performed in the presence, and at the direction of, respondent's supervisor, respondent's knowledge of this action is manifest.

We have concluded that the means utilized to anchor the T-forms satisfied the requirements of Section 5(a)(1), but that the intervening actions, for which respondent is responsible, created a hazard in violation of the Act. In these circumstances the penalty for the instant violation, which we assess pursuant to Section 17(j) of the Act, is based upon the set of events which actually transpired to convert a previously anchored T-form into a recognized hazard. Thus, the gravity of the violation, consisting of the probability of an accident's occurrence and the extent of exposure to the hazard, is substantial. The probability of an accident occurring, with or without resulting injury, once a T-form becomes unsecured, is quite high. The exposure is also considerable, there being approximately 100 of respondent's employees and numerous others working on the construction site. We assess a total $800 unadjusted penalty. This is reduced by 20% because of the absence of evidence establishing previous violations on respondent's part. Respondent's size and the evidence relating to its good faith do not warrant further reductions. The record demonstrates that respondent's own safety program was haphazard and that its participation in the prime contractor's program was irregular. A total penalty of $640 is assessed.

It is ORDERED that the Judge's decision be affirmed insofar as it comports with this decision and that respondent be assessed a penalty of $640.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: This decision finds that respondent violated Section 5(a)(1) for committing an act with which it was not charged in the citation. The citation alleged the respondent to be in violation of the Act and listed the following, which is quoted in full, as the "Description of Alleged Violation"

Failure to design, erect, support, brace or maintain form work and shoring so that it will safely support all vertical and lateral loads that may be imposed upon it.

The offense with which respondent was charged was, therefore, an omission: failure to construct or install safe support for the T-form in question.

This case was initiated in August 1971 before the Commission adopted Rules of Procedure requiring the filing of pleadings. Consequently, only the citation, with its brief statement of the charges set forth above, was available to respondent when this case was heard.

The Commission decision finds as facts that the respondent (a) was aware that proper support of the T-form was necessary, (b) took steps to guard against this potential hazard, and (c) utilized a method to guard against such hazard which "provided reasonable security." However, the decision goes on to state that "an employee" then "removed a cable" from the assembly and, by this intervening action, "created a hazard in violation of the Act."

I recite the foregoing in order to demonstrate that the latter finding is one of a subsequent act of commission, constituting an entirely different act from the omission alleged in the citation.

Section 9(a) provides:

"Each citation shall be in writing and shall descibe with particularity the nature of the violation . . . ."

Clearly, then, this decision does not comply with that requirement. The "nature of the violation" listed on the citation was a "failure to design, etc.," but he is found in violation by the Commission because "intervening actions, for which respondent is responsible, created a hazard in violation of the Act."

It is basic to the requirements of due process of law and to our adversary system of justice that an employer be informed of the specific act with which he is being charged. If the act upon which a finding of violation is made is not the same act (or omission) which is alleged as wrongful in the citation, the employer cannot adequately prepare his defense. Furthermore, if it is not specified exactly what constitutes the unsafe condition or practice existing at his workplace, the employer obviously cannot take appropriate steps to abate it. Thus, the safety of his employees, the ultimate objective of the Act, is further jeopardized.

Regrettably, this is not the first time this Commission has found a violation based on conditions not cited. See Secretary v. National Realty and Construction Co., Inc., Secretary v. Universal Maintenance and Repair Corp.,

What was stated in my dissent from the latter decision bears repetition here:

"The reason why the system of justice which prevails in this country requires that a person accused by the Government be advised of the charges against him is to permit the accused to prepare his defense and to set a standard of relevance for evidence offered at the hearing. These reasons are fully as valid for the purpose of this Act as they are for enforcement actions conducted under common law pleadings.

"It offends elementary concepts of procedural due process to find a violation against a respondent on the basis of acts of commission or omission not mentioned in the citation."

It is worthy of note, I think, that there are some cases in which the Commission has recognized the necessity of limiting its finding of violation to conform with the specific nature of the violation charged in the citation. In Secretary v. Dundas Pallet Company,

The Commission's decision in Dundas, to respect the specifics of the citation, was based upon the rule announced in Secretary v. Wetmore & Parman, Today's decision is a departure from the logic applied in both of these cases.

A second defect in this decision is that it contains no finding of fact that the condition which was found to constitute a violation ("the removal of a portion of the securing assembly") was a hazard which, in the words of the Act, is "recognized" as "causing or likely to cause death or serious physical harm."

There was no evidence introduced to show that the unexpected and untoward act of an employee in loosening the wrong cable was "recognized" in the construction industry (or by anyone) as a hazard. And, as we said in Secretary v. Vy Lactos Laboratories, Inc.,

[The Judge's decision referred to herein follows]

HARRIS, JUDGE, OSAHRC: This is an action under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq. (hereinafter the Act), to review a citation issued by the Secretary of Labor (hereinafter Secretary) pursuant to Section 9(a) of the Act and a proposed assessment of penalty thereon issued pursuant to Section 10(a) of the Act.

The citation (P-1), issued on August 16, 1971, alleges that ERNEST F. DONLEY'S SONS, INC., the employer, (hereinafter Respondent), in a workplace under its ownership, operation or control, namely a construction site at 130 West 2nd Street, Dayton, Ohio, violated Section 5(a)(1) of the Act. Under the column headed "Description of alleged violation" appears the following statement, "Failure to design, erect, support, brace, or maintain form work and shoring so that it will safely support all vertical and lateral loads that may be imposed upon it. The above conditions constitute recognized hazards that are likely to cause, and did cause two deaths and serious injuries at this job location." The citation charges that the violation alleged is a serious violation within the meaning of Section 17(k) of the Act and requires immediate abatement thereof.

A "Notification of Proposed Penalty" (P-3), issued on the same date, August 16, 1971, proposed assessment of a penalty in the sum of $800.00 against the Respondent.

Respondent filed a Notice of Contest dated August 26, 1971 (R-1) by which it contested both the citation and the proposed penalty.

The within matter was referred to the Occupational Safety and Health Review Commission for hearing pursuant to Section 10(c) of the Act on September 20, 1971, and on October 21, 1971, the undersigned was appointed and the within matter assigned to him for hearing pursuant to Section 12(e) of the Act.

Pursuant to notice and by agreement of the parties, a prehearing conference and the hearing were held on November 17, 1971, in Dayton, Ohio.

Respondent acknowledged that it received the Citation (P-1) and Notification of Proposed Penalty (P-3) on August 16, 1971, (Tr. 31) and it was stipulated that the Citation and Respondent's Notice of Contest (R-1) were posted on the column from which the "T-form" had fallen (Tr. 32).

The recognized bargaining agent of Respondent's employees, United Brotherhood of Carpenters and Joiners of America, Miami Valley Carpenters -- District Council, did not appear nor did any other affected employee indicate a desire to participate in these proceedings (Tr. 43-44).

It was stipulated by the parties that the Respondent is the largest contractor in the Cleveland, Ohio area engaged in the business of concrete construction and has a net worth as of November 30, 1971, of approximately $1,107,621 (Tr. 7); that it employs an average of 415 employees of which approximately 100 were affected by conditions at the site of the construction referred to herein (Tr. 7); that the scope of the authority of any witness who is an officer or employee of the Respondent is not a matter of dispute (Tr. 8-9); that the authenticity of any document proposed to be used by any party herein is admitted (Tr. 9); that the proper name of the Respondent is Ernest F. Donley's Sons, Inc., and that it is a corporation organized under the laws of the State of Ohio and has its principal office at 5430 Warner Road in the City of Cleveland, Ohio (Tr. 6-7); that Respondent concedes that it is engaged in a business affecting commerce and subject to the jurisdiction of the Act (Tr. 7); that none of its employees were injured at the time and place of the violation alleged in the citation herein (Tr. 7); and that the "T-forms," cables and clamps which may be referred to herein are the property of the Respondent (Tr. 7).

Respondent made the following statements of fact which are not contradicted: Turner Construction Company is the general contractor for the building being erected at the construction site herein (Tr. 28; R-6); the architect who designed the structure did so under a contract with the owners thereof (Tr. 28); the architect's plans and specifications require the use of a relatively new construction technique called "monolithic process" (Tr. 29); the "monolithic process" permits the pouring of the concrete portion of the structure in units (Tr. 29); the process requires the use of forms which are different from those used on other types of concrete construction, (Tr. 29); the "T-forms" which were used for pouring concrete on the job herein were purchased from Advance Construction Company (Tr. 29; R-4) and were designed and manufactured by Advance Construction Company in accordance with the architect's specifications and were subject to his approval (Tr. 29); the "T-form" involved herein was approximately 30 feet long, 11 feet 4 inches high, 4 feet 9 inches wide at the base, 1 foot 8 inches thick and weighs about 5,000 lbs. When scaffolding and walk-ways are attached, the whole weighs approximately 7,000 lbs. (Tr. 29); the "T-form" is erected on the job-site and lifted into place by a crane by means of a cable attached to the "T-form" (Tr. 29); the unit of the building being prepared for pouring at the time of the occurrence herein included a portion of the floor, outside columns and spandrel beams (Tr. 29).

Respondent moved to dismiss the citation herein (P-1) for the following reasons (Tr. 32-35):

(1) That the citation is defective and should be vacated because of failure to serve all required forms on the employer at the time the citation was issued.

(2) That the citation is defective and should be vacated because of the time delay between the occurrence of the accident and the inspection, and because of the time delay between the inspection and the issuance of the citation, and including therein the fact that no closing conference with the employer was held.

(3) That the citation is defective in that it charges the Respondent for failure to design the form work, which is beyond the scope, capacity and authority of the Respondent's position on this project.

(4) That Section 5(a)(1) is not a serious violation section under the intent and purpose of the statute. With regard to this last point the Respondent refers to the legislative history reported in the Congressional Record (3 U.S. Congressional and Administrative News (1970) at Page 5186) wherein it is stated:

"There is no penalty for violation of the general duty clause. It is only if the employer refuses to correct the unsafe condition after it has been called to his attention and made the subject of an abatement order that a penalty can be imposed."

(5) That the citation is defective and should be vacated for failure to comply with Section 9(a) of the Act which requires that the citation:

"Shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation or order alleged to have been violated."

(6) That the Occupational Safety and Health Act is unconstitutional in that it does not set forth standards which are sufficiently detailed to enable the employer subject to the Act to know what standard of conduct must be maintained in order to comply with the Act. In particular, is this true when Section 5(a) which uses the term "recognized hazard," but does not define that term, is compared with Section 3(8) which defines the term "occupational safety and health standard" to mean

"A standard which requires conditions . . . reasonably necessary or appropriate to provide safe or healthful employment and places of employment."

(7) That the citation in the instant case does not refer to a "recognized hazard" but rather states that the failure of the employer was to "safely support" the loads imposed upon the form. Respondent notes that such language is taken from Code of Federal Regulations 1518.701 concerning forms and shoring. The Respondent further notes that such provision is not applicable to this job until September 27, 1971. Nonetheless, it is the Respondent's position that the application of these various terms, none of which define, and many of which are inconsistent, or at the least entail different standards, puts an undue and unconstitutional burden on the Respondent to determine the standard of conduct which he must maintain in order not to violate the Act.

Decision on Respondent's motion was reserved (Tr. 41).

At the close of the Secretary's case the Respondent moved to dismiss the citation on the ground that he had not established an "evidence relationship" between the allegations in the citation herein and the accident which had occurred; nor had the Secretary shown that the "place was hazardous or constituted a recognized hazard" to Respondent's employees or produced evidence substantiating the charge in the said citation (Tr. 146). Decision thereon was reserved (Tr. 150-151).

At the close of the evidence the Respondent renewed its motions to dismiss the citation and contended additionally, that no proof had been adduced establishing that any of its employees "were endangered by any condition" and that there was no evidence to establish the lack of a "safety program or procedure" on the part of the Respondent or that such lack, if established, had a causal connection with the occurrence of the accident herein. Decision thereon was reserved (Tr. 260).

After hearing the testimony of the witnesses and having considered the same together with the exhibits and the stipulations, representations and admissions of the parties, it is concluded that the substantial evidence, on the record considered as a whole, supports the following findings of fact.

FINDINGS OF FACT

1. Respondent, the largest concrete construction contractor in the Cleveland, Ohio area, was acting as the concrete structural subcontractor in the construction of a multi-story office building in the city of Day-ton Onio under a contract with the prime contractor which involved a sum in excess of $3 million (Tr. 7; Tr. 28; R-6).

2. In order to perform the said undertaking; Respondent arranged to purchase and have delivered to the said construction site large amounts of fabricated materials from places outside the State of Ohio involving substantial sums of money (R-4, R-5).

3. The plans and specifications for the construction of the office building herein required the use of a relatively new construction technique called "monolithic process" by means of which entire units of the concrete portion of the structure are poured at one time (Tr. 29; 222).

4. The "monolithic process" requires the use of T-forms which are different from forms used on other types of construction (Tr. 29) and were purchased by the Respondent from Advance Construction Company and were designed and constructed in accordance with the architect's specifications and subject to his approval (Tr. 29; R-4). The T-forms were shipped from Texas to Ohio by railroad (R-4) and were erected on the job-site by the Respondent (Tr. 49; 56; 60).

5. Respondent had commenced work under its contract in February, 1971 and construction had progressed to a point where pouring the concrete supports for the fourth and fifth floors was under way (Tr. 118; 174; P-7).

6. Two separate procedures are involved. T-forms used in the construction on this job are lifted into position by a crane (Tr. 57) by means of a cable attached to two L-shaped projections on the top of the form (Tr. 57) to a point above the position they are to occupy and then lowered into place (Tr. 58; 119; P-7).

7. The T-form and the scaffolding around it form a single unit and are raised together (Tr. 53-54). These units are approximately 11 feet high, 30 feet long and 2 feet in thickness at the base of the "T" and weigh approximately 7,000 pounds (Tr. 47; 29; 223; P-7).

8. After the T-form and its scaffolding is positioned, it is tied back to an interior column by means of a cable (Tr. 68; 69; 70; 71) and when this cable is secured, the lifting cable is detached from the top of the T-form (Tr. 71).

9. The second procedure concerns securing the T-form to make it firm and prevent it from swaying or moving during the pouring of the concrete (Tr. 118). The T-form is bolted to an adjoining T-form and a cable attached to the top of the T-form to prevent it from tipping outward (Tr. 122; 134-136). This cable is removed after the T-form is anchored by being bolted to the concrete floor (Tr. 136).

10. The construction job hereinabove was the first time that the Respondent was required to work with T-forms of the type designed and manufactured for the building under construction herein (Tr. 189). No written instructions or procedures for their use were furnished the Respondent (Tr. 189) nor did the plans and specifications contain instructions for mounting and securing the T-forms and pouring the concrete as specified by the architect (Tr. 228-229).

11. The manufacturer of the T-forms supplied a representative who was present while the forms for the first floor were being erected on the job site around April 1, 1971. He did not indicate that cables would be necessary to hold the forms on upper floors (Tr. 189-190). The manufacturer's representative recommended the use of 2 X 4 brackets, stated that ordinary plumbing strips could be used as ties to columns and beams (Tr. 192) and created an impression that the T-forms manufactured by his company were self-supporting (Tr. 72; 123).

12. No discussion was had between the architect, the designer and manufacturer of the T-forms and the Respondent or any of their representatives designed to produce a standard procedure to be followed in lifting, setting and securing the T-forms for pouring for the purpose of minimizing the hazard of the T-form becoming unbalanced or tipping or falling (Tr. 123; 193).

13. Respondent participated in a general safety program carried on by the prime contractor. Meetings under this program were held at times varying from one to three weeks apart beginning with the commencement of the construction on February 8, 1971 (Tr. 188; 193). These meetings were attended by the stewards representing all of the building trades involved on the job-site; the safety officers of the sub-contractors and of the prime contractor and safety officers appointed by each building trade (Tr. 188).

14. Respondent's project manager, who attended "about 5" of these general safety meetings (Tr. 193), cannot recall the actual number of such meetings held between February 8 and November 17, 1971 and estimated that there were about 18 or 20 such meetings (Tr. 193). None of these meetings were attended by a representative of the designer and manufacturer of the T-forms used on the job herein (Tr. 193).

15. Respondent's project engineer also served as its safety officer (189; 192). No evidence appears that this individual attended any of the general safety meetings conducted by the prime contractor.

16. Respondent conducted individual safety meetings among groups of its employees who were associated by reason of the nature of their work (Tr. 144; 188).

17. The record is barren of any evidence that Respondent made any organized attempt to instruct its foremen, in charge of work crews responsible for the lifting, placing and securing for pouring of the T-forms used in the construction herein, some of whom had never worked with this type of form before, in a uniform or approved or recommended procedure for the handling of such T-forms (Tr. 70; 124; 144-145).

18. Respondent recognized and was aware of the hazard that the T-forms herein might tip-outward and fall after being lifted into position and its project manager and his assistant decided upon the use of a cable running from the T-form to an interior column to hold the same until it could be secured for the pouring operation (Tr. 73; 190-191; 194).

19. Instructions covering a uniform and recommended procedure to be followed in lifting, placing and securing the T-forms herein were not reduced to writing (Tr. 122).

20. The procedures used by Respondent's foremen in lifting, placing and securing the T-forms herein developed as the work progressed and varied among different foremen (Tr. 61; 64; 66; 122; 124, 133; 138-139; 141; 175; 177; 180).

21. During the night shift of August 9, 1971 (Tr. (74-75) one of Respondent's crews lifted and placed a T-form on the edge of the fourth floor and attached a 3/8 inch wire cable from the T-form to an interior column (Tr. 55; 68; 73; P-7).

22. The tie-back cable had been obtained from the floor below and had previously been used on another T-form (Tr. 68). About 40 or 50 feet of cable was required to tie back the T-form (Tr. 69). The tie-back cable was made up of three pieces of cable connected by two cable clamps (Tr. 66; R-2). Some of the connections which had been previously made on the pieces of cable being used to tie back the T-form were allowed to remain (Tr. 67-68).

23. On the morning shift of August 10, 1971 another of Respondent's work crews was engaged in securing for pouring several T-forms which had been positioned on the third floor of the construction herein (Tr. 132; 134). Some additional cable was needed (Tr. 127-128) which could not be found on the third floor (Tr. 129).

24. The crew foreman was instructed by Respondent's Supervisor of Foremen to "gather up what cable you can find . . ." (Tr. 129). On the fourth floor, following crders from their foreman, the crew removed what appeared to be excess pieces of cable from the tie-back cable of the T-form referred to herein whereupon it tipped outward and fell to the ground (Tr. 125; 132; 181-183) causing two fatalities (Tr. 96; 76; P-1).

25. None of the Respondent's employees were killed or injured by the falling T-form (Tr. 116).

26. Respondent's chief engineer, a registered professional engineer in the State of Ohio, calculated that a force of 221 pounds applied to a point at the top of the T-form herein standing free and plumb, would tip it outward, (Tr. 213) however, this force would be affected if the T-form was not plumb (Tr. 214). No evidence was offered as to how this force would be affected if it were distributed over the entire 30 foot surface of the T-form (P-7), as by a gust of wind.

27. Respondent was aware that due to the fact that the T-form herein is so large (P-7) it was in a "state of impending tipping" and could tip either way with just a minor adjustment (Tr. 213).

28. After the T-form herein fell, Respondent eliminated the use of pieced-together cables to tie back T-forms and introduced a procedure to be followed which required the use of two cables and specified the manner in which they should be attached to the T-form and to the interior columns (Tr. 107; 115-116; R-2, Fig. lower and upper right, upper left).

29. Respondent's supervisory personnel were orally informed of the alleged violations disclosed by the compliance officer's inspection on the site of the construction herein (Tr. 101; 157; 159; 160; 203).

30. In determining the suggested penalty, consideration was given to Respondent's good faith, interpreted to mean the effectiveness of its safety program; the size of its business and its history of prior violations (Tr. 88; 89-90). No deduction was allowed for its size (Tr. 89).

31. No deduction in the proposed penalty was allowed for good faith as the result of the compliance officer's observation of the presence of a number of conditions which were in conflict with basic safety standards and poor housekeeping conditions as well as the nature of Respondent's safety program (Tr. 91-95).

32. Respondent's safety officer and its Assistant Project Manager were not produced as witnesses nor was the architect who specified the use of the T-forms herein or any representative of the manufacturer and designer of the said T-forms and their absence is unexplained.

CONCLUSIONS OF LAW

1. At all times mentioned herein Respondent was and is an employer engaged in a business affecting commerce within the meaning of Section 3 of the Act and the Occupational Safety and Health Review Commission has jurisdiction of the parties and of the subject matter herein pursuant to Section 10(c) of the Act.

2. Section 5(a)(1) of the Act (29 U.S.C. 654(a)(1)), imposed a general duty requirement on Respondent. That requirement is that each employer "shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."

3. For the purpose of Section 5(a)(1), a hazard is "recognized" if it is a condition that is, (a) of common knowledge or general recognition in the particular industry in which it occurs, or (b) detectable, (1) by means of the senses (sight, smell, touch, and hearing), or (2) is of such wide, general recognition as a hazard in the industry that even if it is not detectable by means of the senses, there are generally known and accepted tests for its existence which should make its presence known to the employer. See, Legislative History of the Occupational Safety and Health Act of 1970, prepared by the Subcommittee on Labor and Public Welfare, U.S. Senate, June 1971, pages 1005; 1007 (hereafter LH and page number).

4. Precise standards to cover every conceivable situation will not always exist and the Act, in Section 5(a)(1), has included a requirement to the effect that employers are to furnish employment and places of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees (LH 992; 1005; 1007).

5. In order to better effectuate the Congress' express purpose of "encouraging employers and employees in their efforts to reduce the number of occupational safety and health hazards at their places of employment and to stimulate employers and employees to institute new and to perfect existing programs for providing safe and healthful working conditions" (Section 2(b)(1) of the Act), Section 5(a)(1), supra, is designed to provide a before-the-injury method of preventing the occurrence of industrial accidents, unlike tort case law which is concerned with providing for after-the-fact payment of damages (LH 992).

6. In addition to providing against a readily apparent hazardous condition, the employer is required by Section 5(a)(1), supra, to protect his employees from hazards which, taking into account the standard of knowledge in the particular industry, may objectively be determined to be known or recognized, whether or not the particular employer is aware of the condition (LH 1007).

7. It is consistent with the congressional intent to encourage before-the-injury preventive methods, to require a high degree of care on the part of employers, who control the environment of the place of employment and the details of the employment, to free such employment and places of employment from recognized hazards as such are envisioned by the Act (LH 150-151).

8. The general duty requirement of Section 5(a)(1), which clearly bespeaks a condition which, if found to exist would support, and indeed be limited to, a finding that a serious violation of the Act had occurred, based on the definition of a serious violation found in Section 17(k) of the Act, is subject to the proviso in that Section, that the "employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation," i.e., a condition or a practice, a means, a method, an operation or a process, adopted or in use, as a result of which "there is a substantial probability that death or serious physical harm could result . . . ."

9. Section 5(a)(1) of the Act does not require the employer to supply every conceivable safety and health need for which no specific standards exist to guide him but he is charged by the Act with a high standard of conduct in freeing the employment and place of employment from recognized hazards and is required to exercise reasonable diligence, under the circumstances of each case, in ascertaining the presence of a condition or a practice, means, method, operation or process which creates a substantial probability that death or serious physical harm could result (LH 992; 1007).

10. The T-forms required to be erected, raised, positioned and filled with concrete by the Respondent herein, by reason of their shape, size and weight constituted a readily apparent hazard which was recognized by the Respondent.

11. The presence of the T-forms herein, positioned on the outer edges of the floors under construction on the site herein, constituted a recognized hazard that was likely to cause death or serious physical harm to Respondent's employees engaged in the performance of their work in and about the said construction site.

12. Respondent failed and omitted to devise and design procedures to be followed by its employees in the erecting, raising, positioning and securing of the said T-forms, for the purpose of preventing or counter-acting the occurrence or existence of any condition, or practice, means, method, operation or process adopted or in use, which could create a substantial probability that death or serious physical harm could result therefrom.

13. Respondent failed and omitted to require its various foremen and work-crews to follow and abide by procedures for the erecting, raising, positioning and securing of the T-forms herein, devised and designed to prevent or counter-act the occurrence or existence of any condition, or practice, means, method, operation or process which could create a substantial probability that death or serious physical harm could result therefrom to its employees.

14. A substantial probability existed that death or serious physical harm to its employees could result from Respondent's failure and omission to devise and design a procedure for the erection, raising and securing of the T-forms herein and to instruct its employees therein and require them to follow the same during the period from approximately April to November, 1971. Cf., Hodgson v. General Tire and Rubber Company,

15. The daily exposure of approximately 100 of Respondent's employees, during the period from April to November, 1971, who were engaged in erecting, raising, securing and pouring concrete into the T-forms, herein, at the construction site, aforesaid, under the conditions described hereinabove, enhanced the gravity of the violation described herein to a substantial degree. See, Hodges v. Nacirema,

16. Respondent violated Section 5(a)(1) of the Act in that from April to November, 1971 at Dayton, Ohio, it provided its employees employment and a place of employment which presented a recognized hazard that was likely to cause death or serious physical harm, to with, requiring its employees to erect, raise, secure and pour concrete into T-forms, as described herein, positioned upon the outer edges of floors under construction, without providing its employees and requiring them to follow and abide by, a procedure designed to prevent or counter-act any practice, means or method which could cause to fall or contribute to the fall of any such T-form so erected, raised, positioned or secured. See Hodges v. Dale M. Madden Constr. Inc.,

17. The said violation of Section 5(a)(1) of the Act constituted a serious violation of the Act within the meaning of Section 17(k) thereof.

18. Respondent knew or, with the exercise of reasonable diligence, could have known of the presence of the said violation and it cannot be said, under the circumstances of this case, that the means and the method used by its employees to ready forms for pouring which caused the T-form herein to fall could not have been anticipated by said Respondent. Cf., Dale M. Madden Constr. Inc., supra.

19. No prejudice to the Respondent appears resulting from the failure to serve OSHR Form 2c, a set of printed instructions (P-5), or by reason of the fact that the citation herein was served some five days after inspection of the construction site by the Compliance Officer (Tr. 168).

20. The proofs demonstrate that Respondent was aware that is was charged with a violation of the general duty clause of the Act, Section 5(a)(1), in that it failed to take reasonable measures to protect its employees from a hazard recognized by it to be such and that it did not require additional time to prepare its defense to such a charge (Tr. 168).

21. Respondent was not charged with violation of 29 CFR 1518.701.

22. References in the legislative history of the Act to the fact that violations of the general duty clause would be considered to be violations other than serious violations and that no penalty would flow from violations thereof unless there was a failure to abate a condition after notice, are not relevant. All such proposals were rejected by the Managers of both Houses in conference (LH 1157; 1170).

23. Formal requirement for a "closing conference" between the Compliance officers and the employer did not become effective until September 3, 1971 (29 CFR 1903.7(e)), however Respondent was given reasonably adequate information by the Compliance Officers at the time of the inspection herein concerning the alleged violations and conditions noted by them.

24. Respondent recognized the fact that the newly designed T-forms herein were in a "state of impending tipping" and could tip either way as the result of a minor force in spite of the recommendation of the manufacturer that the form could stand alone and determined to tie the form back with cables and took prompt action after the T-form herein fell to protect against a recurrence of the cause of such fall.

25. The citation herein does not contain references to other conditions and alleged violations of safety standards nor does the record herein indicate that notices in lieu of citations with respect to de minimis violations were served upon the Respondent concerning such other alleged violations of safety standards.

26. Under the circumstances of this case it is not reasonable to fail to consider the element of Respondent's good faith in determining a just and reasonable civil penalty.

ORDER

In view of the foregoing and having duly considered the gravity of the violation, the good faith of Respondent, its size, and its history of previous violations and good cause therefore appearing, it is

ORDERED that:

1. Respondent's motions to dismiss the citation herein be and the same are hereby denied.

2. The allegation in the citation herein that Respondent violated Section 5(a)(1) of the Act be and it is hereby affirmed.

3. Respondent be and hereby is assessed and required to pay a civil penalty in the sum of $250.00.