WILLIAMS ENTERPRISES OF GEORGIA, INC.
OSHRC Docket No. 13063
Occupational Safety and Health Review Commission
October 26, 1977
[*1]
Before CLEARY, Chairman, and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Bobbye D. Spears, Reg. Sol., USDOL
Ira J. Smotherman, Jr., for the employer
OPINION:
DECISION
BY THE COMMISSION:
The principal issue in this case is whether the construction safety standard at 29 C.F.R. 1926.28(a) n1 requires that tied-off safety belts be used to provide fall protection for employees performing steel erection in a tiered building. Judge John J. Larkin held that the standard did not apply, granted Respondent's motion to dismiss made at the close of the Secretary's case, and vacated the citation. The Commission members are divided on the issue, and can take no official action in review of the Judge's decision, n2 29 U.S.C. 661(e). The Judge's decision is therefore the final action of the Commission.
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n1 This standard provides:
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.
n2 Respondent argues that the direction for review was untimely within 29 U.S.C. 661(i) and that the Commission therefore has no jurisdiction to review the Judge's decision. The direction for review was, however, timely within our rules of procedure. 29 C.F.R. 2200.90 and 91. We therefore reject Respondent's argument. Robert W. Setterlin & Sons Co. 76 OSAHRC 53/D8, 4 BNA OSHC 1214, 1975-76 CCH OSHD para. 20,682 (No. 7377, 1976).
[*2]
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Respondent was erecting structural steel in the construction of a 28 story building. Two of its steelworkers were welding while sitting on steel beams forming the framework for a penthouse structure. These employees were 11 and 22 feet above the temporary flooring at the roof level. They were not using safety belts to protect against a possible fall to the roof. The Secretary alleges that their failure to use safety belts violated 1926.28(a).
There is no dispute that the building under construction was a tiered building within the meaning of the steel erection standards in Subpart R of the Secretary's construction safety standards (29 C.F.R. 1926.750 et seq.), and that Respondent was in compliance with those standards. n3 The issue is whether the general standard at 1926.28(a) applies in addition to the Subpart R standards. Commissioner Barnako concludes that the Subpart R standards are exclusive; Chairman Cleary would hold that 1928.28(a) is applicable. Their reasons are stated in Bristol Steel & Iron Works, Inc., (No. 14537, Oct. 7, 1977).
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n3 Section 1926.750(b)(2)(i) requires that a temporary floor be maintained within two stories or 30 feet under each tier of beams on which employees are working. Inasmuch as the employees in this case were less than 30 feet above a temporary floor, Respondent was in compliance with the applicable steel erection standard.
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Judge Larkin gave as an alternative ground for vacating the citation that the Secretary had not proven that the use of safety belts was feasible. As Commissioner Barnako would vacate the citation on the ground that the standard is not applicable, he does not reach the question whether feasibility was proven. In his opinion, however, the Judge properly held that the Secretary has the burden of proving feasibility under 1926.28(a). B & B Insulation, Inc., 77 OSAHRC 49/A2, 5 BNA OSHD 1265, 1977-78 CCH OSHD para. 21,747 (No. 9985, 1977). Chairman Clearly does not think that feasibility is an element of the Secretary's proof and would hold that the Judge erred also in this ground for his disposition. Bristol Steel & Iron Works, supra. [*4] He would reverse the Judge's ruling and remand for Respondent to present its case.
Accordingly, the Judge's decision is the final action of the Commission. Vappi & Co., 77 OSAHRC 72/D7, 5 BNA OSHC 1358, 1977-78 CCH OSHD para. 21,787 (No. 8282, 1977). This decision has no precedential value.