BRISTOL STEEL & IRON WORKS, INC.

OSHRC Docket No. 14537

Occupational Safety and Health Review Commission

October 7, 1977

[*1]

Before CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Regional Solicitor, U.S. Department of Labor

James P. Jones, Bristol Steel & Iron Works, Inc., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

The decision of Administrative Law Judge Joseph Chodes is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter "the Act"]. Judge Chodes affirmed a citation issued by complainant, the Secretary of Labor, to respondent, Bristol Steel & Iron Works, Inc., alleging a serious violation of section 5(a)(2) of the Act. A $600 penalty was assessed. The violation alleged noncompliance with the standard published at 29 CFR 1926.28(a) n1 for failure of Bristol's employees to use safety belts while engaged in steel erection work.

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n1 The cited standard provides:

1926.28 Personal protective equipment.

(a) 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.

[*2]

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On February 2, 1976, former Commissioner Moran directed that this case be reviewed by the Commission, but specified no particular issues for review. On February 3, 1976, Bristol filed a petition for review arguing in part that 1926.28(a) does not apply here because the steel erection standards of Subpart R of Part 1926 ( 1926.750-752) apply. Pursuant to the Commission's Policy Statement at 41 Fed. Reg. 53015 (1976), a supplemental briefing order was issued on March 15, 1977, requesting briefs by the parties on the issues raised by respondent in its petition. n2 After consideration of the parties' arguments, we are unable to agree in resolving the issues. Majority action under section 12(j) of the Act modifying the Judge's decision is therefore not possible. Accordingly, the Judge's decision is affirmed by the divided Commission. See George Hyman Construction Co., 77 OSAHRC 67/C7, 5 BNA OSHC 1318, 1977-78 CCH OSHD para. 21,774 (No. 13559, 1977), petition for review docketed, No. 77-1591, 4th Cir., May 2, 1977. The decision has no precedential value. See Garcia [*3] Concrete, Inc., 75 OSAHRC 62/A2, 3 BNA OSHC 1211, 1974-75 CCH OSHD para. 19,688 (No. 2591, 1975).

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n2 The Secretary objects to the Commission's consideration of this case, arguing that it is contrary to Commission Rule 91a(e), published at 41 Fed. Reg. 53016 (1976). However, this case is before us pursuant to the Policy Statement.

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In lieu of a hearing the parties stipulated to the following facts: During the inspection two of respondent's employees were on the second floor of a building standing on a 12 to 18-inch wide wall located about 16 feet above concrete stairs. The employees were rigging a float scaffold which was to be used in skeleton steel erection. The employees were exposed to a hazard of falling from the wall, and if one fell there was a substantial probability of serious injury or death. The employees were wearing but were not using safety belts and lanyards or any other personal equipment protecting them from a fall. Respondent was aware of these working conditions.

In his decision, the Judge [*4] rejected Bristol's argument that Subpart R, 1926.750(b)(2)(i) and (iii), n3 applied rather than 1926.28(a) because it was engaged in steel erection. In applying the rules of construction in 29 CFR 1910.5(c)(2), n4 the Judge concluded that a general standard such as 1926.28(a) applied when particular standards are prescribed for an industry but none of the particular standards are applicable. The Judge held that "in light of common understanding and practices" 1926.28(a) gave Bristol reasonable notice that personal protective equipment was required. The Judge affirmed the violation and assessed a $600 penalty.

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n3 The standards considered by the Judge provide: 1926.750 Flooring requirements.

* * *

(b) Temporary floorings - skeleton steel construction in tiered buildings.

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(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.

* * *

(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.

n4 1910.5(c)(2) provides in part: [A]ny standard shall apply according to its terms to any employment and place of employment in any industry, even though particular standards are also prescribed for the industry . . . to the extent that none of such particular standards apply.

[*5]

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The Commission's supplemental briefing order requested briefs on the issues raised in respondent's petition for review. The main issues are: (1) whether the steel erection standards of Subpart R, 1926.750-752, apply to this case because of 29 CFR 1910.5(c)(2), and (2) whether Bristol had reasonable notice that safety belts were required under the circumstances of this case. In addition, Bristol argues in its brief on review that the Secretary has not proved the feasibility and utility of using safety belts under the circumstances of this case.

The first issue is whether the steel erection standards of Subpart R apply to the facts of this case. Commissioner Barnako concludes that they apply. He would find that because the building is multi-floored it is a "tiered building", and therefore 1926.750-752 apply in specifying fall protection requirements for employees engaged in steel erection in tiered buildings. See Daniel Construction Co., 77 OSAHRC 21/A2, 5 BNA OSHC 1005, 1976-77 CCH OSHD para. 21,521 (No. 7734, 1976). Furthermore, he finds that the subject of fall protection for steel [*6] erectors in tiered buildings is covered exclusively by 1926.750-752, notwithstanding the provisions in 1910.5(c)(2). In this regard he would conclude that the Secretary did in fact consider safety belts as a means of fall protection for steel erectors when he adopted the subpart. The Secretary does require the use of belts when temporary floors are being dismantled ( 1926.750(b)(2)(iii)), and he does require that they be provided when work is being performed from float scaffolds ( 1926.752(k)). Commissioner Barnako would apply the rule that express mention in one or more coordinate statutory provisions requires the exclusion of an implied requirement to the same effect in other coordinate provisions. n5 Thus he would conclude that because safety belts are required by some of the steel erection standards the requirement should not be implied into other steel erection standards because the Secretary did not intend that they be implied.

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n5 2A Sutherland, Statutory Construction 47.23 (4th ed. 1973). See Diamond Roofing Co. v. OSAHRC, 528 F.2d 645 (5th Cir. 1976).

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Commissioner Barnako also finds the legislat've history of 1926.750(b)(2) instructive in determining the Secretary's intent. On July 2, 1974 the Secretary amended the standard and said ". . . the falling hazards to employees engaged in steel erection are similar regardless of the type of equipment being used or the work activity being performed." 39 Fed. Reg. 24360 (1974). He also said that the new standard ". . . continues to provide adequate protection to the employees engaged in such work." 39 Fed. Reg. 24360, 24361 (1974). Commissioner Barnako concludes that the Assistant Secretary considered the subject of fall protection for steel erection in tiered buildings when adopting the amendment to 1926.750(b)(2), and his intent was to limit the subject exclusively to the standards in Subpart R.

Commissioner Barnako also notes that in steel erection the situation frequently arises where the use of safety belts would present a greater hazard to employees. See, e.g., Industrial Steel Erectors, 74 OSAHRC 2/E5, 1 BNA OSHC 1497, 1973-74 CCH OSHD para. 17,136 (No. 703, 1974). Since Industrial Steel Erectors [*8] predated the amendment of 1926.750(b)(2), presumably the Secretary knew of the problems associated with using safety belts in steel erection. Commissioner Barnako would conclude that the Secretary knew of the existence of such circumstances when he adopted the amendment and thus chose to require the use of safety belts only under limited conditions.

Commissioner Barnako concludes further that 1910.5(c)(2) allows the citation to a general standard only when specific standards do not apply to particular working conditions, and not when the particular standards apply to the nature of the work but provide less stringent requirements. See General Supply Company, Inc., 77 OSAHRC 16/A2, 4 BNA OSHC 2039, 1979-77 CCH OSHD para. 21,503 (No. 11752, Jan. 22, 1977), petition for review dismissed, No. 77-1614, 5th Cir., June 22, 1977. In summary, because Bristol was engaged in steel erection for a tiered building, the governing standards for fall protection are those exclusively within Subpart R, and the standards in Subpart R do not require fall protection for employees working at heights of less than 25 feet.

I would reach the opposite result. The scaffold work being done was only [*9] preparatory to steel erection itself. I agree with the Administrative Law Judge that the steel erection standards were not intended to cover all situations related to steel erection. In other words, Subpart R contains some specific steel erection standards. It does not contain comprehensive rules for steel erection, or rules covering work incidential thereto. This is why the rule of construction in 29 CFR 1910.5(c)(2) should be applied. The Judge correctly noted this.

I note that Subpart R consists of three sections. The first, 1926.750, deals with flooring requirements for tiered buildings; the second, 1926.751, regulates structural steel assembly; and the third, 1926.752, regulates bolting, riveting, fitting-up, and plumbing-up. Here, the employees were working on the top of a wall over concrete stairs. As the Judge indicated, 1926.750, designed to minimize injuries to employees working at heights by requiring flooring, does not add to the safety of the employees here.

In my opinion a different result would in effect exempt the scaffold work from any protection under Part 1926. Under our precedent, if work is exempt under a specific standard, an otherwise applicable [*10] general standard must be applied. See Diebold, Inc., 76 OSAHRC 3/E5, 3 BNA OSHC 1897, 1975-76 CCH OSHD para. 20,333 (No. 6767, 1976), petition for review docket, No. 76-1278, (6th Cir., March 8, 1976). See also Long Mfg. Co. v. O.S.H.R.C., 554 F.2d 903 (8th Cir. 1977); Irvington Moore, Div. of U.S. Natural Resources, Inc. v. O.S.H.R.C., No. 75-2159 (9th Cir. June 20, 1977). Section 1926.28(a) is the applicable general standard. Isseks Brothers, Inc., 76 OSAHRC 8/B9, 3 BNA OSHC 1964, 1975-76 CCH OSHD para. 20,361 (No. 6415, 1976).

The second issue reduces to this. Assuming the cited standard applies to the facts of this case, does the stipulated record establish a violation? Commissioner Barnako concludes that even if the standard applies there is insufficient proof of a violation. He would require the Secretary to prove the feasibility and utility of the specific measures needed to abate the hazard. Frank Briscoe Co., Inc., 76 OSAHRC 129/A2, 4 BNA OSHC 1729, 1975-76 CCH OSHD para. 21,162 (No. 7792, 1976); Crawford Steel Construction Co., 76 OSAHRC 143/A2, 4 BNA OSHC 1891, 1975-76 CCH OSHD para. 21,338 (No. 9622, 1976) (concurring [*11] opinion). He concludes that inasmuch as there was no evidence that the employees could tie-off, the Secretary has failed to prove that the use of safety belts was feasible in this case.

I conclude the opposite. The Secretary has cited Bristol for a violation of 1926.28(a) because of the failure of its employees to use safety belts. The failure has been proved. Avoidance of the regulatory duty is an affirmative defense. Rule 8(c) of FRCP as applied under Commission Rule 2(b). The burden of proving the infeasibility of this particular method of abatement rested with the employer. B & B Insulation, supra, (concurring opinion). See also Ace Sheeting & Repair Co. v. O.S.H.R.C., 76-1481 (5th Cir. July 5, 1977).

It is ORDERED that the Judge's decision be AFFIRMED.