HOLMAN ERECTION CO., INC.
OSHRC Docket No. 13529
Occupational Safety and Health Review Commission
November 3, 1977
[*1]
Before CLEARY, Chairman; BARNAKO, Commissioner
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
T. A. Housh, Jr., Reg. Sol., USDOL
John Rennessey, Engineer Holman Erection Company, Inc., for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Commissioner:
The issue in this case is whether Respondent (Holman) violated the Secretary's construction safety standard at 29 C.F.R. 1926.750(b)(1)(ii) n1 by failing to install temporary floors, scaffolds, or safety nets under two of its steelworkers. Administrative Law Judge Vernon Riehl concluded that Respondent violated the standard and assessed a penalty of $500. We affirm his finding of a violation but reduce the penalty to $100.
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n1 This standard provides in pertinent part:
On buildings or structures not adaptable to temporary floors, and where scaffolds are not used, safety nets shall be installed and maintained whenever the fall distance exceeds two stories or 25 feet . . .
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Holman, a Minnesota steel erection contractor, was engaged in the erection of a tiered building [*2] at Cedar Rapids, Iowa. An OSHA compliance officer observed two of Holman's connectors traversing the steel beams of the building's open gridwork. The connectors were working at a height of approximately 35 feet. Temporary floors, scaffolds, or safety nets were not provided for their protection. Although they were wearing safety belts, the connectors' lanyards were not tied-off so as to prevent a fall. Safety nets were rigged under all employees at the worksite except for the connectors.
On these facts, Holman received a serious citation alleging that it failed to comply with the fall protection requirements of 1926.750(b)(1)(ii). It contended that since its connectors were wearing safety belts, other protective measures were not required. Furthermore, it argued that the necessity for wearing tied-off safety belts did not exist when its connectors traversed or "cooned" n2 the beams. The compliance officer testified that, in his opinion, compliance with 1926.750(b)(1)(ii) can be achieved by using tied-off safety belts, safety nets, or catch platforms. However, he added that employees must be tied-off at all times in order for safety belts to be sufficient. Judge Riehl accepted [*3] this interpretation of the standard, affirmed the citation, and assessed a penalty of $500.
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n2 Holman's engineer described "cooning" as "putting your feet on the bottom flange of a beam, straddling the beam and walking along, holding on with your hands on the upper flange of the beam."
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On review Holman argues that (1) the Administrative Law Judge erred in ignoring the fact that there is a great deal of uncertainty as to the interpretation of the construction standards at 1926.750(b)(1)(ii) and 1926.105(a); n3 (2) previous cases have recognized that it is not necessary for connectors to tie-off their safety belts at all times; and (3) except for an arithmetical error of the compliance officer on his worksheet, the violation would have been alleged as nonserious rather than serious.
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n3 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.
[*4]
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Holman's first argument arises from its belief that there is a conflict among safety experts concerning the interpretation of 1926.750(b)(1)(ii) and 1926.105(a). In support of this argument, Holman asserts that its safety practices concerning fall protection for steelworkers were approved by state officials in Iowa and Minnesota. Among other things, Holman asserts that these officials stated that its practices conformed to OSHA standards.
We note first that the opinions of OSHA compliance officers cannot bind the Secretary or the Commission to an incorrect interpretation of a standard. Western Steel Manufacturing Co., 76 OSAHRC 112/E2, 4 BNA OSHC 1640, 1976-77 CCH OSHD para. 21,054 (No. 3528, 1976), appeal docketed, No. 76-2224 (9th Cir. June 5, 1976). Similarly, the opinions of state officials are not binding. Thus, even though various state officials advised Holman that it was complying with applicable OSHA standards, the Commission must still make an independent determination of whether Holman violated 1926.750(b)(1)(ii) as alleged. n4
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n4 Holman also contends that the OSHA compliance officer who inspected its worksite was not sure whether the conditions he observed violated the cited standard. This contention is based on Holman's allegation that the compliance officer telephoned the Area Director during the inspection to discuss whether a citation should issue. The compliance officer stated that he only called because of an office policy mandating prior authorization before the issuance of a citation. The Judge believed the compliance officer and, if it were necessary, we would accept his credibility finding. As discussed above, however, the compliance officer's opinion concerning the requirements of the standard is not binding on us.
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Furthermore, although Holman refers to 1926.105(a), the citation alleged a violation of 1926.750(b)(1)(ii). Section 1926.105(a) is a general construction safety standard which requires fall protection for workplaces more than 25 feet above the ground or water surface. Section 1926.750(b)(1)(ii), a specific steel erection standard, requires safety nets for tiered [*6] buildings where neither temporary floors nor scaffolds are used, and the fall distance exceeds two stories or 25 feet. Since Holman was working on the steel erection of a tiered building, the specific requirements of 1926.750(b)(1)(ii) are applicable. See McKee-Wellman Power Gas, 77 OSAHRC 133/A2, 5 BNA OSHC 1592, 1977-78 CCH OSHD para. 21,972 (No. 12618, 1977); Daniel Construction Co., 77 OSAHRC 21/A2, 5 BNA OSHC 1005, 1976-77 CCH OSHD para. 21,521 (No. 7734, 1977). Therefore, consideration of the proper interpretation of 1926.105(a) is unnecessary in this case.
Holman next argues that the judge's decision ignores the fact that it is not possible for connectors to tie-off while traversing steel beams. It alleges that previous decisions have recognized this fact and have held that tying-off while cooning restricts movement and and can result in additional danger to steel connectors. It cites Union Boiler Co., 75 OSAHRC 52/F1, 3 BNA OSHC 1236, 1974-75 CCH OSHD para. 19,449 (No. 6133, 1975) (ALJ) and American Bridge Division of United States Steel Corp., 74 OSAHRC 71/B10, 2 BNA OSHC 1222, 1974-75 CCH OSHD para. 18702 (No. 2249, 1974). See also Industrial Steel [*7] Erectors, Inc., 74 OSAHRC 2/E5, 1 BNA OSHC 1479, 1973/74 CCH OSHD para. 17,136 (No. 703, 1974).
Holman's argument ignores the fact that the above cases involved alleged violations of 29 C.F.R. 1926.28(a), n5 a general personal protective equipment standard requiring the use of safety belts in certain hazardous conditions. Holman, however, was cited for violating 1926.750(b)(1)(ii) which requires the use of temporary floors, scaffolds, or safety nets. Since it did not install one of these means of protection, Holman will be found in violation of the specific steel erection standard at 1926.750(b)(1)(ii). Holman also asserts that tied-off safety belts can result in additional danger to steelworkers. However, safety belts are not one of the alternative means of protection specified in 1926.750(b)(1)(ii). Therefore, we need not consider the hazards which might result from their use.
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n5 This standard provides in pertinent part:
the employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions . . .
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Finally, Holman contends that, due to an arithmetical error by the compliance officer, it was cited for a serious rather than a nonserious violation of 1926.750(b)(1)(ii). The Secretary argues that, despite this error, a serious violation nevertheless occurred. He points to the evidence that unprotected employees were working 35 feet above the ground. Judge Riehl accepted this argument and found that a fall from a height of 35 feet would result in serious physical injury. He assessed a penalty of $500.
We agree that a serious violation existed. If an accident had occurred, it probably would have caused serious physical harm. Therefore, since a serious violation was alleged and proven, Holman's argument that it should have been issued a nonserious citation is without merit. However, the judge's penalty assessment is excessive. Only two employees were exposed to the hazardous condition and then only briefly. Furthermore, Holman exhibited good faith before the inspection. It reasonably relied on the advice of various safety experts regarding its special policy for connectors, and it rigged safety [*9] nets under all of its other steelworkers. Accordingly, the citation is affirmed and a penalty of $100 is assessed.