M. K. BINKLEY CONSTRUCTION COMPANY

OSHRC Docket No. 12876

Occupational Safety and Health Review Commission

May 11, 1977

[*1]

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Regional Solicitor

M. K. Binkley, M. K. Binkley Construction Co., for the employer

OPINIONBY: MORAN

OPINION:

DECISION

MORAN, Commissioner: A decision of Review Commission Judge J. Paul Brenton, dated January 26, 1976, is before this Commission for review pursuant to 29 U.S.C. 661(i). That decision vacated a citation charging respondent with violating 29 U.S.C. 654(a)(2) for allegedly failing to comply with the occupational safety standard codified at 29 C.F.R. 1926.28(a). For reasons which follow, we affirm the Judge's decision, which is attached hereto as Appendix A. n1

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n1 Chairman Barnako does not agree to this attachment.

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At the time of the inspection, respondent, a roofing subcontractor, was in the process of laying decking planks on the roof of a two story building. The roof was in the shape of a cross, with four wings at right angles to one another. The decking planks were in 16, 12, [*2] 8 and 4 foot lengths. Respondent's procedure for laying the planks began at one roof edge, which was called the leading edge, where a 16 foot plank was laid. The planking would then be laid inward toward the center of the roof in diminishing lengths of 12, 8 and 4 feet. Thereafter a move of approximately 16 feet would be made and another leading edge established, from which the process would continue toward the center. After each plank was laid, it was secured in place with a large nail or spike. The nailing was done at intervals of 30 inches and was accomplished by one of the employees swinging a six pound sledge hammer.

Complainant's safety inspector observed two of respondent's employees working at the edge of the roof without any protective equipment. As a result thereof, respondent was issued a citation for failing to require its employees to wear personal protective equipment while allegedly exposed to a possible fall of 15 to 20 feet, in contravention of 29 C.F.R. 1926.28(a). n2

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n2 That standard provides as follows:

"The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees."

[*3]

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Respondent never denied the existence of the cited condition but contended that there was no feasible way to comply with the standard. At the hearing, however, complainant's safety inspector testified that respondent could have required its employees to use a safety belt and lanyard attached to a lifeline. He explained that the lifeline could be fastened to one of the abutting walls or alternatively, respondent could bolt something to the wall and attach a lifeline thereto.

Respondent's representative testified that attaching a lifeline to the wall was not feasible because the nature of the work required the employees to move back and forth on the roof, oftentimes crossing behind and in front of each other, and that a lifeline would preclude such movement. In addition, he testified that there was nothing else to which a lifeline could be attached except the beams of the roof itself, which would also interfere with the movement of the employees.

The safety inspector replied that respondent could erect a frame structure above the perimeter, to which lifelines could be attached. In this way, according [*4] to the safety inspector, the lifeline would be above respondent's point of operation and the problem of entanglement would be lessened. He admitted, however, that he was not certain what type of material could be used or whether the respondent subcontractor had the means or authority to erect such a structure. In response to questioning from the Judge, the safety inspector testified that the extensions would have to be erected every eight feet along the entire outside perimeter. When the Judge asked how an employee could swing a six-pound sledge hammer without getting it caught in the safety line, the safety inspector expressed the opinion that there would be no interference if respondent maintained about six feet of slack in the line.

The Judge vacated the citation on the ground that the wearing of personal protective equipment was not feasible under the circumstances of this case. He specifically found that attaching a lifeline to the wall of the building or to the roof itself would so interfere with the movement of the employees that performance of the work would be impossible. Additionally, he concluded that complainant failed to establish that respondent had either the [*5] authority or the means to erect a structure above the perimeter to which a lanyard could be attached.

On review, complainant raises several arguments in support of its contention that the Judge erred in vacating the citation. We find none of them to be meritorious.

Complainant contends that the Judge erred in allowing respondent's representative to take a "retroactive" oath after making several unsworn statements regarding the feasibility of lifelines and safety belts. Since the witness essentially repeated all of the prior statements regarding feasibility after the oath had been administered, we conclude that the retroactive oath was in no way prejudicial to complainant's case.

Complainant also contends that the evidence fails to support the Judge's conclusions regarding feasibility and that the Judge erred in placing the burden of establishing feasibility on complainant. In Secretary v. Frank Briscoe Co., Inc., OSAHRC Docket No. 7792, October 4, 1976, a divided Commission held that, due to the gene alized duty imposed upon employers by 29 C.F.R. 1926.28(a), the complainant, in order to establish a violation of that standard, must both allege the specific measures the [*6] cited employer should have taken to avoid citation and prove the feasibility and utility of those measures. n3

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n3 See General Electric Co. v. OSAHRC, 540 F.2d 67 (2d Cir. 1976), where the same conclusion was reached in interpreting the applicability of 29 C.F.R. 1910.133(a)(1).

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The Judge in this case was therefore correct in placing the burden of establishing feasibility on complainant. Furthermore, we find his conclusion that complainant has failed to meet this burden to be correct. Even if respondent did have the means and authority to erect a frame structure above the wall and along the perimeter, we fail to see how this would permit employees to proceed with the crisscross method of laying the planking without getting either themselves or the sledge hammer entangled in the lifeline or lanyard. The mere conclusionary opinion by the safety inspector that no entanglement would result is insufficient to sustain complainant's burden of proof. This is particularly true when, as here, the opinion was given [*7] by one who had never been up on the roof in question and was completely unaware of respondent's procedure for planking the roof. n4

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n4 At various points in the trial, the safety inspector admitted:

(1) not ascending to the top of the roof at the inspection;

(2) being very uncertain as to the shape of the roof; and

(3) having virtually to idea the process by which respondent was planking the roof.

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Accordingly, the Judge's decision vacating the citation and proposed penalties is hereby affirmed.

DISSENTBY: CLEARY

DISSENT:

CLEARY, Commissioner, DISSENTING:

In Frank Briscoe Co., Inc., 4 BNA OSHC 1729, 1976-77 CCH OSHD para. 21,162 (No. 7792, 1976), a divided Commission held that in order to establish a failure to comply with 29 CFR 1926.28(a) complainant must set forth both the specific measures that an employer must implement to avoid citation and establish the feasibility and utility of those measures. While I disagree with a test that would equate asserted noncompliance with 1926.28(a) to alleged violations of the "general [*8] duty" clause of the Act, n5 a majority of this Commission has applied such a test.

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n5 For my views on the inappropriateness of this test, see B & B Insulation, Inc., 5 BNA OSHC 1265, 1977-78 CCH OSHD para. (No. 9985, 1977) (concurring opinion).

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In my opinion, however, proper application of the Frank Briscoe test to the facts of this case yields a result contrary to that reached by the majority. Complainant has clearly proved by a preponderance of the evidence that safety belts and lanyards secured to lifelines are feasible measures that respondent could have implemented to protect its employees from the consequences of a 20 foot fall.

There was no dispute that respondent's employees were exposed to the hazard of falling from a roof and that a safety belt system could have alleviated the hazard. Rather, the dispute concerned two basic questions: first, whether respondent could install a lifeline to which its employees could "tie-off" while working on the roof, and second, assuming the installation was [*9] possible, whether the employees could perform their assigned tasks while "tied-off" in this manner. The former question concerns a matter which may properly be considered part of complainant's burden of proof as announced in Frank Briscoe, Inc., supra. The latter question, however, does not raise an element that is part of complainant's burden. Rather, once complainant has established a method of abatement it is incumbent upon an employer to establish affirmatively that its implementation would render the performance of the work impossible. Taylor Building Associates, 5 BNA OSHC 1083, 1976-77 CCH OSHD para. 21,592 (No. 3735, 1977). The majority's failure to assign the burden of proof in this manner is a misapplication of Commission precedent resulting in an erroneous disposition.

Complainant, through his compliance officer, suggested two methods by which a lanyard-lifeline arrangement could have been secured to the building to enable respondent's employees to "tie-off" their safety belts while performing work on the roof. Under those methods the lifeline could be secured to the outside walls of the building. An anchoring device that would extend above the surface [*10] of the roof could be attached to the wall or a lifeline could be secured directly to the wall. Notwithstanding contrary indications by the majority, the feasibility of installing either method of protection is unrebutted on this record.

Respondent did not seriously contend that it could not install a lifeline under these methods. As to installation of an anchoring device projecting above the point of operation, M. K. Binkley, respondent's representative at the hearing, upon questioning by the Judge stated only that authority to install such a device would have to be obtained in advance. He did not state that respondent could not secure the requisite contractual authority. n6 Indeed, Binkley stated as follows:

Judge: Well, assuming, for the sake of argument here for a moment, that you could build on the perimeter of this building a structure from which you could attach a lifeline, could you have done that under your contract.

Binkley: It would have to be agreed, negotiated or agreed to ahead of time as to who would build it. Because there would be quite a bit of work involved. And it just never crossed my mind that there was a problem. So it wasn't foreseen and wasn't pursued [*11] (emphasis added).

Solely on the basis of this testimony, the Judge concluded that respondent did not have the authority to abate by means of this method. I would not. The above colloquy merely reveals that respondent did not secure the requisite authority because it did not consider it necessary. It does not prove that respondent could not have obtained the requisite authority if it had considered abatement necessary.

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n6 The majority opinion implies that complainant would be required to establish affirmatively that respondent had the means and authority to abate. Under similar circumstances at other multiemployer construction sites the Commission has consistently held that it's the employer who must affirmatively establish an absence of control. Anning-Johnson Co., 4 BNA OSHC 1193, 1975-76 CCH OSHD para. 20,690 (Nos. 3694 & 4409, 1976); Grossman Steel and Aluminum Corp., 4 BNA OSHC 1185, 1975-76 CCH OSHD para. 20,691 (No. 12775, 1976). The majority advances no reason for shifting this burden to complainant.

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Moreover, any suggestion that the absence of advance contractual authority to abate relieves an employer of the duty to abate is contrary to the purpose of the Act because it rewards an employer who does not foresee and seek to alleviate preventable hazards at a worksite. I would not conclude that the statutory protection could be rendered nugatory by facile contractual arrangements. In sum, there is nothing on this record that would support a finding that respondent lacked the authority to abate by this method.

The second suggested method of compliance involved securing the lifeline directly to the wall. There was no dispute that erecting such a system was technically feasible. Judge Brenton nevertheless rejected this method because "there was no substantial member of the structive which was elevated above the point of operation to which a lifeline could be attached so as to comply with 29 CFR 1926.104(b)." Apparently, the Judge was suggesting that because the lifeline could not be secured above the point of operation it was permissible for respondent to expose its employees to a 20 foot fall. I disagree. Respondent is required to take reasonable steps to protect [*13] its employees even if those steps might not comport with all the requirements of 1926.104. See Frank Briscoe Co., Inc., 4 BNA OSHC 1706, 1976-77 CCH OSHD para. 21,191 (No. 12136, 1976); Kelly Constr. Services, Inc., 4 BNA OSHC 1491, 1976-77 CCH OSHD para. 20,925 (No. 7102, 1976).

In addition to showing the feasibility of installing the two compliance methods noted above, the compliance officer testified that both methods could be arranged to allow substantial forward, backward, and lateral movement by employees. Thus, complainant showed feasible measures that respondent could have taken to avoid citation. Noncompliance has been established and a violation should be found unless respondent establishes an affirmative defense to the violation.

At the hearing respondent contended that performance of its work would have been impossible because the lanyards would become entangled as its employees performed their duties on the roof. Proof of this contention consisted entirely of conclusory statements of impossibility. No effort was made to show how entanglement might occur under each of the suggested compliance methods. This is particularly damaging considering the [*14] fact that the compliance method allowing the lifeline to be secured above the point of operation could substantially reduce the possibility of entanglement. In any event, there is no evidence revealing the number of employees in a specific area on the roof, their distance apart, or the pattern they follow relative to each other while spreading the roofing material. Thus, respondent's contentions of entanglement are nothing more than unsupported conjecture.

Even if entanglement were possible, I submit that respondent should not be excused from complying with 1926.28(a). The regulatory trade-off would be the elimination of the more serious hazard of a fall from the roof. The fact that compliance might increase the difficulty of performing the job, add to costs, or even require changes in working techniques does not establish impossibility. Taylor Building Associates, supra. It is clear from this precedent that naked statements of impossibility due to entanglement are insufficient to establish the affirmative defense.

Finally, I note that respondent's assertions would also be insufficient to establish the so-called "greater hazard" defense. Russ Kaller, Inc., 4 BNA [*15] OSHC 1758, 1976-77 CCH OSHD para. 21,152 (No. 11171, 1976). There is nothing in this record suggesting that the possible adverse consequences of entanglement are greater than the real hazards posed by a fall of 20 feet. See Underhill Constr. Corp., 5 BNA OSHC 1271, 1977-78 CCH OSHD para. (No. 9561, 1977). Indeed, as discussed above the converse would be true.

The violation has been established and the citation should be affirmed.

APPENDIX A

DECISION AND ORDER

Robert A. Fitz, for the Secretary of Labor

M. K. Binkley, pro se, for the Respondent

STATEMENT OF THE CASE

J. Paul Brenton, Judge, OSAHRC

This is a proceeding contesting the validity of a citation issued by complainant against respondent which alleges a non-serious violation of 29 CFR 1926.28(a), a regulation promulgated by complainant pursuant to the Occupational Safety and Health Act of 1970(29 USC 651 et seq.).

The citation avers that on March 17, 1975, et respondent's work place which was the erection and construction of a library building in the city of Dallas, Texas, respondent:

"The employer failed to require the wearing of personal protective equipment in all operations where there is [*16] an exposure to hazardous conditions or where this part indicates there is a need for using such equipment to reduce the hazards to employees. For example: Employees were working approximately 20 feet above the floor surface. They were standing on the roof decking and had no protection to prevent falling."

The regulation as promulgated by the Secretary provides as follows:

"Section 1926.28 -- Personal Protective Equipment

(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations which there is an exposure to hazardous conditions or where this part indicates the need for using such equpment to reduce the hazards to the employees."

Complainant proposed a $40.00 penalty for the alleged violation which respondent initially contested but at the hearing indicated that it has been paid. Regardless respondent seeks vacation of the citation.

This matter came on for hearing in Dallas, Texas, on October 20, 1975, after a complaint and an answer had been filed by the parties.

Respondent has not denied that it is engaged in a business affecting commerce. Therefore, it is deemed respondent concedes that the Review Commission [*17] has jurisdiction to hear and decide this case.

I

The evidence shows, at the time of the alleged infraction of the Act, respondent, a sub-contractor, was engaged in laying the roof decking upon laminated beams even with the top of a cinder block structure which had four wings in the shape of a cross at right angles to one another. The laying of decking is never in a straight line. The decking planks are tongue and groove in 16, 12, eight, and four feet lengths. These boards are nailed horizontally, one into the other, with an eight inch eight penny nail at intervals of 30 inches. One employee swings a six pound sledge hammer to accomplish this nailing process.

Respondent's manner of laying the decking begins at the side or edge at the top of the structure with the use of a scaffold and ladders, on the outside of the structure, starting with the 16' board, then the 12', 8' and 4', afterwhich a move is made of about 16 feet and the process continues which establishes a leading edge from which the process continues. In the continuing process two mobile scaffolds are used under the employees performing their tasks on the top. One employee is on the floor below to move and place [*18] the scaffolds. The boards are placed on top of a scaffold with one employee there to hand them on up to the employees on top as needed. Apparently there are two employees on top, one to receive and place the boards and the other to drive the nails.

The floor was concrete and the top working area ranged from 15 to 200 feet above this floor. The scaffolds were eight feet in height, six feet in which and about 10 feet in length.

The hazard presented by this operation of the respondent's was the possibility of a fall from the leading of forward edge of the decking.

II

Complainant suggested that this hazard could be abated by requiring the employees, engaged in laying the boards on the roof deck, to wear a safety belt with lanyard attached to a lifeline. That each end of the lifeline could be attached to a substantial member of the structure then in place which was the outside cinder block walls.

Respondent argues that this method is not feasible because in the process the employees must cross behind each other. Swinging the sledge hammer would be restricted and could become entangled with the lanyard or life line. Moreover, there just was no substantial member of the structure [*19] to which either a lanyard or lifeline could be attached. Also, these two employees are constantly on the move from side to side as their work progresses forward. And there was no substantial member of the structure which was elevated above the point of operation to which a lifeline could be attached so as to comply with 29 CFR 1926.104(b). Furthermore, the point of operation, while remaining at the same level, constantly changed by progressing forward with the laying of each deck board.

Complainant suggested that respondent could construct and erect some sort of structure to the walls of the building that would project above its top and the point of operation to which a lanyard could be attached. But respondent, a sub-contractor, had neither the means nor the authority, contractual or otherwise, to undertake such construction.

Complainant also argues that respondent could use a safety belt and attach it to a structure such as a utility pole, or safety belt and lanyard with the lanyard attached to some such structure. But here the employees are on top of the structure in wide open space and their work is to cover that top. The only part of the structure which would be available [*20] to attach either a safety belt or a lanyard would be the laminated wooden beams upon which they were laying the decking. Hardly a likely utility under the facts and circumstances here.

The evidence of record in this case as a whole fails to demonstrate that the wearing of personal protective equipment, as complainant would require, is either feasible or useable. Respondent simply could not perform its work of laying roof decking burdened with this kind of equipment. See Secretary v. Sullivan & Cozart, Inc. 10 OSAHRC 696(1974); Secretary v. National Realty & Construction Co., 489 Fed 2nd 1257; and Secretary v. Ceco Corporation 16 OSAHRC 651(1975).

III

Complainant during the hearing moved to amend his citation and complaint to allege a serious violation in place of the non-serious on the proposition that his evidence would show that serious physical harm or death could result from the processes employed by respondent under the conditions existing at the time and place of the inspection. Ruling thereon was reserved to this point in time. Inasmuch as the evidence indicates the impracticability and non-feasibility of compliance the merit of the motion, if [*21] any, is moot and therefore does not demand attention.

CONCLUSIONS OF LAW

1. The Review Commission has jurisdiction to hear and decide this case.

2. 29 CFR 1926.28(a) does not apply to roofing deck installers in the course of their activity in extending the leading edge to the perimeter where there is no practical or feasible way to use safety belt, lanyard, and lifeline either alone or in combination.

3. Respondent did not violate section 5(a)(2) of the Act as charged under 29 CFR 1926.28(a) of the safety regulations for construction.

4. In the event respondent has heretofore paid the penalty of $40.00 as proposed by complainant it should be returned by complainant because if there is no violation there is no penalty.

ORDER

Wherefore, it is Ordered that:

The citation be and it hereby is, vacated.

The proposed penalty be and it hereby is, vacated. It is so Ordered at Dallas, Texas.

J. Paul Brenton, Judge

Date: January 26, 1976