WESTERN WATERPROOFING COMPANY, INC.
OSHRC Docket No. 13538
Occupational Safety and Health Review Commission
September 27, 1977
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Before CLEARY, Chairman; and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Norman Winston, Assoc. Regional Solicitor, U.S. Department of Labor
Thomas M. Moore, for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Commissioner:
The issue in this case is whether Administrative Law Judge James D. Burroughs erred in affirming Complainant's citations alleging that Respondent violated the Occupational Safety and Health Act of 1970 n1 by failing to comply with 29 C.F.R. 1926.28(a) and 1926.451(d)(10). We have considered Respondent's brief on review, which presents the same arguments Respondent raised before the judge. We conclude the judge properly affirmed the citation relating to section 1926.451(d)(10) for the reasons he assigns. For the reasons given below, we also conclude he did not err in his disposition of the citation pertaining to section 1926.28(a). We therefore affirm his decision.
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n1 29 U.S.C. 651 et seq.
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Six of Respondent's employees were resurfacing a roof about 61 feet [*2] high. Four employees were removing the old surface about 120 feet from the edge of the roof. The two other employees were spraying polyurethane foam onto the roof near the edge; the work required one of these employees to come within four feet of the edge. Safety belts, lanyards, and lifelines were not in use, although they wereavailable at the work site. n2 Subsequent to the inspection the employees wore safety belts tied off to a lifeline that Respondent rigged on the roof. Although Respondent required its employees to tie off when they came within four feet of the edge during removal work, the spraying operation is customarily performed without safety belts.
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N2 Section 1926.28(a) provides that "[t]he 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."
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On these facts Judge Burroughs found that the [*3] employees applying the foam were exposed to the hazard of a fall from which they would have been protected by the use of safety belts and lifelines. He further determined the record failed to show, as Respondent argued, that safety belts and lifelines would have snagged and caused a tripping hazard. Respondent takes exception to these findings; we conclude they are supported by the preponderance of the evidence. n3 Therefore, use of tied-off safety belts for the protection of the exposed employees was shown to be both effective and feasible. n4 See Frank Briscoe Company, 76 OSAHRC 129/A2, 4 OSHC 1729, 1976-77 OSHD para. 21,162 (No. 7792, 1976), and cases cited therein.
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n3 See Okland Construction Co., 76 OSAHRC 30/F4, 3 OSHC 2023, 1975-76 OSHD para. 20,441 (No. 3395, 1976).
n4 In Chairman Cleary's opinion, proof of the effectiveness and feasibility of the use of tied-off safety belts is not part of the Secretary's prima facie case. See B & B Insulation Inc., infra (Cleary, Commissioner, concurring). Therefore, the Commission should not adhere mechanically to the incorrect course of Frank Briscoe. Cf. General Electric Co., 3 BNA OSHC 1031, 1974-75 CCH OSHD para. 19567 (No. 2739, 1975), rev'd, 540 F.2d 67 (2d Cir. 1976).
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Respondent, however, says that use of safety belts cannot be required in the circumstances of this case because its industry customarily would not use them and because section 1926.28(a) does not specify when, and what type of, personal protective equipment must be used. In Respondent's view, the standard is unenforceably vague.
Although Judge Burroughs properly determined the standard is enforceable, his decision predates a decision to the contrary by the Ninth Circuit, Hoffman Construction Company v. OSHRC, 546 F.2d 281 (9th Cir. 1976). We have since declined to follow the court's opinion, and we have reaffirmed our precedents on which the judge relied. B & B Insulation, Inc., 77 OSAHRC 49/A2, 5 OSHC 1265, 1977-78 OSHD para. 21,747 (No. 9985, 1977), petition for review docketed, No. 77-2211 (5th Cir., June 14, 1977).
In B & B Insulation, supra, Chairman Cleary and I expressed differing views on the proper interpretation of section 1926.28(a). In my opinion, the standard would be unenforceably vague unless its application were limited to those situations in which a reasonable [*5] person familiar with the industry involved would recognize a need for use of personal protective equipment. In this case, the evidence shows that Respondent required other employees on the jobsite to be protected from the same hazard to which the employees doing the spraying were exposed. I think a reasonably prudent employer would perceive the need to protect the employees during the spraying operation as well. The feasibility of tied-off safety belts as a means of protection having been shown, I conclude that Complainant has satisfied his burden of proof. Accord, Frank Briscoe, supra.
On the other hand, Chairman Cleary would conclude that the standard gives notice of a duty to use personal protective equipment whenever a hazardous condition exists. Schiavone Construction Company, 77 OSAHRC 78/A2, 5 OSHC 1385, 1977-78 OSHD para. 21,815 (No. 12767, 1977); B & B Insulation, supra. In this case, Chairman Cleary would find the standard violated because the employees performing the spraying were exposed to an obvious fall hazard that could have been eliminated by the use of safety belts tied off to lifelines.
Accordingly, the judge's decision is affirmed. [*6]
So ORDERED.