McKEE-WELLMAN POWER GAS
OSHRC Docket No. 12618
Occupational Safety and Health Review Commission
June 23, 1977
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Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
John Orban, Office of Solicitor
Donald F. Woodcock, for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Chairman:
The issue in this case is whether Respondent violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") by failing to comply with a standard requiring fall protection for employees engaged in construction work. Respondent was cited for allegedly violating the standard at 29 C.F.R. 1926.750(b)(1)(ii). n1 It defended on the basis that this standard is not applicable to its worksite. Respondent contends that the applicable standard is 29 C.F.R. 1926.105(a), n2 and that it complied with this standard. Judge David G. Oringer held that 750(b)(1)(ii) was applicable, and found Respondent in violation. For the reasons which follow, we conclude that the Judge erred in holding 750(b)(1)(ii) applicable, and remand for a determination of whether Respondent violated 105(a).
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n1 This standard provides:
On buildings or structures not adaptable to temporary floors, and where scaffolds are not used, safety nets shall be installed and maintained whenever the potential fall distance exceeds two stories or 25 feet. The nets shall be hung with sufficient clearance to prevent contact with the surface of structures below.
n2 This standard provides:
Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.
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Respondent is a joint venture engaged in the construction of an oxide copper ore leaching plant in Sahuarita, Arizona. The entire project covers approximately one-quarter of a square mile, and includes a number of different types of equipment and structures. This case involves a structure called an ore crusher process tower. The tower is approximately sixty feet high. Its purpose is to perform an intermediate crushing process on copper ore. The ore is carried to and from the tower by means of a conveyer system running over the top of the tower.
The tower consists of motorized equipment, piping, and storage bins located within an unenclosed steel framework. Working platforms are located at irregular levels, and access to them is gained by stairways and catwalks. In the erection process, the steel framework for one portion or elevation is first erected, and the equipment within that section is installed. The framework for the next level is then erected, and the equipment within that section installed. Construction of the remainder of the tower progresses in the same manner.
At one point during [*3] the construction Schramm, a journeyman ironworker, was working at the 49 foot level bolting up a steel beam. While doing so, he stood on a ledge 2 1/2 to 4 inches wide. Although he wore a safety belt, the belt was not tied off, nor was any other means of fall protection used. After working in that location for approximately two hours, Schramm slipped and fell to the ground, suffering fatal injuries.
Prior to the start of construction, Respondent recognized that it would be necessary to employ some means of fall protection. It decided to rely entirely on the use of safety belts, and established a work rule that employees working more than 10 feet above the ground were required to use tied-off safety belts. Respondent's witnesses were of the opinion that the use of scaffolds, temporary floors, and safety nets, while not impossible, was impractical. They based this opinion largely on the belief that erection and dismantling of such devices would take considerable time, during which the employees performing the erection and dismantling would be exposed to the hazard of falling and would themselves have to be protected by tied-off safety belts. n3 Furthermore the presence of machinery, [*4] equipment, piping, and stairway within the steel framework would have required the continual erection and dismantling of scaffolds, temporary floors, or safety nets during construction, and would have increased the difficulty of using such devices when protection against falls was necessary.
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n3 Respondent's general foreman estimated that erection of a safety net would have required the services of four employees for a full day. The Secretary's acting area director estimated that four employees could have installed a safety net in half a day. They agreed that the employees erecting the net would have to be protected against falling by tied-off safety belts.
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The fundamental difference between the parties concerns whether 750(b)(1)(ii) or 105(a) is the standard applicable to the working conditions which are the subject of the citation. n4 The parties agree that 750(b)(1)(ii) only applies if the ore crusher process tower is a "tiered building," n5 but differ on the question of whether it is such a building. Respondent [*5] argues that the tower is not a building at all, but is instead properly characterized as a piece of equipment. It contends that erection of the tower involves completely different construction techniques than the construction of an ordinary building, thus rendering inappropriate to its worksite standards applicable in the construction of buildings. Respondent further argues that the tower is not "tiered" because the horizontal beams in the framework are not located at regularly spaced levels.
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n4 The parties agree that compliance with 105(a) may be achieved by the use of safety belts. They disagree on whether the use of safety belts is sufficient to comply with 750(b)(1)(ii). Respondent argues that, even if 750(b)(1)(ii) is applicable, it must be read in conjunction with 105(a) and should therefore be read to permit the use of safety belts as an alternative to temporary floors, scaffolds, and safety nets.
The Judge properly rejected this argument. Subsection 750(b)(1)(ii) explicitly requires the use of safety nets on buildings or structures not adaptable to temporary floors and when scaffolds are not used. To the extent that 750(b)(1)(ii) applies in a workplace, 105(a) does not. Warnel Corp., 76 OSAHRC 41/C5, BNA 4 OSHC 1034, CCH OSHD para. 20,576 (1976).
n5 Subsection 750(b) is entitled "Temporary flooring - skeleton steel construction in tiered buildings." It therefore applies only to the construction of "tiered buildings."
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The Secretary contends that the ordinary meaning of "building" is sufficiently broad to encompass the ore process crusher tower. He also points out that 750(b)(1)(ii) refers to "buildings and structures," and contends that the tower is unquestionably a "structure." He contends that the tower was "tiered" because its framework contained cross beams at different levels. Finally, the Secretary argues that his proposed interpretation of the standard should be accepted because it best accords with the purpose of the Act to achieve safe workplace.
The Secretary's standards do not contain an explicit definition of the terms "tiered building." The nature of a "tiered building," however, can be understood from an examination of the standards applicable to such buildings. The only such standards are found in 750(a) and (b), and read as follows:
1916.750 - FLOORING REQUIREMENTS
(a) Permanent flooring - skeleton steel construction in tiered buildings
(1) The permanent floors shall be installed as the erection of structural members progresses, and there shall be not more than eight stories between the erection [*7] floor and the uppermost permanent floor, except where the structural integrity is maintained as a result of the design.
(2) At no time shall there be more than four floors or 48 feet of unfinished bolting or welding above the foundation or uppermost permanently secured floor.
(b) Temporary flooring - skeleton steel construction in tiered buildings
(1)
(i) The derrick or erection floor shall be solidly planked or decked over its entire surface except for access openings. Planking or decking of equivalent strength, shall be of proper thickness to carry the working load. Planking shall be not less than 2 inches thick full size undressed, and shall be laid tight and secured to prevent movement.
(ii) On buildings or structures not adaptable to temporary floors, and where scaffolds are not used, safety nets shall be installed and maintained whenever the potential fall distance exceeds two stories or 25 feet. The nets shall be hung with sufficient clearance to prevent contact with the surface of structures below.
(iii) Floor periphery - safety railing. A safety railing of 1/2-inch wire rope or equal shall be installed approximately 42 inches high, around the periphery of all temporary-planked [*8] or temporary metal-decked floors of tier buildings and other multifloored structures during structural steel assembly.
(2)
(i) Where skeleton steel erection is being done, a tightly planked and substantial floor shall be maintained within two stories or 30 feet, whichever is less, below and directly under that portion of each tier of beams on which any work is being performed, except when gathering and stacking temporary floor planks on a lower floor, in preparation for transferring such planks for use on an upper floor. Where such a floor is not practicable, paragraph (b)(1)(ii) of this section applies.
(ii) When gathering and stacking temporary floor planks, the planks shall be removed successively, working toward the last panel of the temporary floor so that the work is always done from the planked floor.
(iii) When gathering and stacking temporary floor planks from the last panel, the employees assigned to such work shall be protected by safety belts with safety lines attached to a catenary line or other substantial anchorage.
It is apparent that, for the most part, these provisions have no application to the ore crusher process tower being built by Respondent. Section [*9] 750(a) deals with permanent flooring but the tower would not, when completed, contain permanent floors. n6 Section 750(b) concerns temporary floors. The record establishes, however, that due to the nature of the tower and the construction methods used, the use of temporary floors was impracticable.
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n6 The tower was to contain permanent working platforms. The Secretary's standards, however, distinguish between "floors" and "platforms." See 29 C.F.R. 1926.502(a), (b), and (f). The working platforms therefore cannot be considered to be "permanent flooring." See Diamond Roofing Co. v. OSHRC, 528 F.2d 645 (5th Cir. 1976).
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It is true that 750(b) contemplates that situations will exist in which the use of temporary floors is impracticable in the construction of a tiered building. Thus, 750(b)(2)(i) provides that 750(b)(1)(ii), under which Respondent was cited, applies when the use of temporary floors is impracticable. Section 750(b)(2)(i), however, requires that temporary floors normally be used in the construction [*10] of a tiered building. It therefore anticipates that temporary floors will generally be practicable. Section 750(b)(1)(ii) and the final sentence of 750(b)(2)(i) thus appear to contemplate an exceptional situation not adequate regulated by the other provisions of 750(a) and (b) rather than a completely different type of construction than that to which the other provisions of 750(a) and (b) apply. We therefore conclude that a tiered building is one which, when completed, will contain permanent floors and in which, during construction, the use of temporary floors will for the most part be practicable. Since the ore crusher process tower meets neither criterion, we conclude that it is not a tiered building to which 750(b)(1)(ii) applies. See Daniel Construction Co., No. 7734, BNA 4 OSHC 1976-77, OSHD para. 21521 (Feb. 10, 1977).
In reaching this conclusion, we have considered the Secretary's argument that the contrary result would better serve the objective of the Act to achieve safe workplaces. That argument might be persuasive if our holding meant that employees working on structures such as the ore crusher process tower need not be provided with any form of fall protection. [*11] It is undisputed, however, that if 750(b)(1)(ii) is not applicable, then 105(a) does apply, and fall protection is still required. The Secretary promulgated 105(a) as well as 750(b)(1)(ii), n7 and we must assume that he considers the requirements of 105(a) to be sufficiently stringent in those situations to which it applies.
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n7 The standards were first promulgated by the Secretary pursuant to the Construction Safety Act, 40 U.S.C. 333. They were adopted as standards under the Occupational Safety and Health Act pursuant to section 6(a) of the Act. See Daniel Construction Co., No. 7734, BNA 4 OSHC 1976-77, OSHD para. 21521 (Feb. 10, 1977).
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Since we have concluded that 750(b)(1)(ii) does not apply under the facts of this case, we reverse the Judge's decision insofar as it finds Respondent in violation of this standard. The Secretary moves, however, to amend the pleadings to allege a violation of 105(a) in the event that 750(b)(2)(ii) does not apply n8 to the facts. He claims that a violation of 105(a) was tried [*12] by consent within the meaning of Fed. R. Civ. P. 15(b).
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n8 The Secretary alternatively moves to amend the pleadings to allege a violation of 1926.28(a), which requires the use of appropriate personal protective equipment when there is exposure to hazardous conditions. Since the parties agree that 105(a) requires the use of safety belts when the other devices enumerated therein are not used, and since this interpretation of 105(a) accords with Commission precedent (See Crawford Steel Const. Co., No. 9622, BNA 4 OSHC 1891, CCH OSHD para. 21,338 (1976)), 28(a) is redundant to 105(a) under the circumstances of this case, and we therefore deny the motion to allege a violation of 28(a) in the alternative.
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We agree that a violation of 105(a) was tried by consent. Respondent has consistently argued that its conduct conformed to the requirements of 105(a), and participate in the formation of a detailed evidentiary record regarding its program requiring the use of safety belts. Respondent therefore has implicitly consented [*13] to try the issue of a violation of 105(a), and will not be prejudiced by an amendment to allege a violation of that standard. See Warnel Corp., supra (n. 4); Kaiser Aluminum and Chemical Corp., 76 OSAHRC 52/C10, BNA 4 OSHC 1162, CCH OSHD para. 20,675 (1976).
It is undisputed that Schramm's safety belt was not tied-off at the time he fell, and that tying-off is required by 105(a). We have held, however, that an employer may defend against a violation committed by an employee on the basis that the employer took all steps necessary to prevent the violation by establishing and enforcing a work rule aimed at preventing such violations. Utilities Line Construction Co., 76 OSAHRC 121/A2, BNA 4 OSHC 1681, CCH OSHD para. 21,098 (1976); B-G Maintenance Management, Inc., 76 OSAHRC 60/A2, BNA 4 OSHC 1282, CCH OSHD para. 20,744 (1976). In this case, Respondent presented evidence tending to establish such a defense. Because he found 750(b)(1)(ii) to be applicable, however, the Judge did not reach the question of whether Respondent had a valid defense under 105(a). The evidence of record would permit conflicting inferences to be drawn concerning the effectiveness of Respondent's [*14] rule requiring the use of tied-off safety belts. The trial Judge is best qualified to draw the proper inferences. See Okland Const. Co., 76 OSAHRC 30/F4, BNA 3 OSHC 2023, CCH OSHD para. 20,441 (1976). We will therefore remand to the Judge to determine whether, on the existing record, Respondent violated 105(a).
Accordingly, the Judge's decision is set aside. The citation and complaint are amended to allege a violation of 29 C.F.R. 1926.105(a) instead of 29 C.F.R. 1926.750(b)(1)(ii), and the case is remanded for further proceedings consistent with this decision.
CONCURBY: CLEARY
CONCUR:
CLEARY, Commissioner, CONCURRING:
I concur.
Whether the ore crusher tower involved is a "tiered building" is controlled by Daniel Construction Co., 5 BNA OSHC 1001, 1976-77 CCH OSHD para. 21,521 (No. 7734 et al, 1977), wherein a divided Commission held that the term "tiered building" applies only to a building having a multiple number of floors. There, the term was held not to include a loft-type or open-bay building. Under that decision, section 1926.750 is construed as applying only to buildings that will have permanent floors when completed. n9 The Commission majority rejected the Secretary's [*15] contention that a building was "tiered" when its construction required that steel columns be vertically stacked one upon another rather than the erection of distinct floor levels.
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n9 This precedent should be adhered to in order to provide a reasonable expectancy in the application of section 1926.750. See Wheeling-Pittsburgh Steel Corp., and Wheeling Corrugating Co., (No. 10611 et al, May 12, 1977) (Cleary, concurring). This does not mean that Daniel Construction was correctly decided in the first instance. See my dissenting opinion therein.
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The stairways, catwalks, and platforms in the ore crusher tower fall short of the full flooring contemplated by Daniel Construction Co., which refers by illustration to the flooring provided in conventional office and apartment buildings.
I agree that the citation should be amended to allege a violation of section 1926.105(a), and remanded for findings on the effectiveness of respondent's work rule requiring the use of safety belts.