PPG INDUSTRIES, INC.
OSHRC Docket No. 15426
Occupational Safety and Health Review Commission
November 4, 1977
[*1]
Before CLEARY, Chairman; and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Harold J. Engel, U.S. Department of Labor
Hugh M. Finneran, Labor Counsel, PPG Industries, Inc., for the employer
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Chairman:
A decision of Administrative Law Judge Ben Worcester is before the full Commission for review under section 12(j) of the Occupational Safety and Health Act of 1970 ("the Act"). n1 In his decision, Judge Worcester vacated a citation issued to respondent alleging a serious violation of section 5(a)(2) of the Act for failure to comply with the standard at 29 CFR § 1926.28(a). n2 The Secretary of Labor petitioned for review of the Judge's decision and an order granting its petition was issued.
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n1 29 U.S.C. § 651 et seq.
n2 This standard reads:
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 employees.
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The facts were established through the testimony of the compliance officer, the sole witness testifying at the hearing. Photographic exhibits of the alleged violation were also introduced into evidence by the Secretary. According to the compliance officer, he was driving by a worksite when he observed three men working in front of guardrails that had been erected along the edge of the first floor of a building under construction. The compliance officer parked his car, photographed the scene, n3 and proceeded to the worksite to conduct an inspection.
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n3 Exhibit C-1 shows an employee sitting on the ledge, an employee straddling the midrail, and a third employee crouched behind the guardrail. Exhibit C-2 shows the employee sitting on the ledge in the same position, and the other two employees standing behind the guardrails.
The compliance officer testified that when he initially observed the men, all three were working outside of the rails. By the time that he was able to photograph the scene, the men had moved into the positions depicted in the exhibits.
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The compliance officer contacted the job superintendent and was introduced to respondent's foreman. The foreman indicated to the compliance officer that the men observed in front of the guardrails were respondent's employees. n4 In fact, the foreman himself was one of those observed. n5
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n4 At the hearing, respondent conceded that the men involved were its employees.
n5 The foreman was the employee observed sitting on the ledge.
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The men had stepped in front of the guardrails, which had been erected about two feet from the edge of the floor, in order to take measurements on vertical columns abutting the floor. When first observed, they were working on the south end of the ledge, about 15 feet above the ground. When photographed, they were working at the north end, about ten-feet four inches above ground. The surface below the ledge was a concrete deck upon which were sawhorses and four-by-fours. The men did not wear tied-off safety [*4] belts while standing on the ledge, although safety belts were available at the jobsite.
Respondent was issued a citation alleging a failure to comply with § 1926.28(a). The citation reads as follows:
Two employees n6 (glazers) measuring the columns on the East end of the upper commercial level were not wearing personal protective equipment (safety belts) where they were exposed to falling approximately 15 feet to the ground below.
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n6 Although the citation refers to only two employees, as discussed supra the compliance officer's testimony was that all three employees were involved.
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At the hearing, the compliance officer testified that the hazard to which the employees were exposed was "the falling of the distance from the floor to the concrete level below," and stated that "safety belts would have been the appropriate type of personal protective equipment for the employees to use." He described how the safety belts could have been used:
Safety belts could have been utilized in this situation very easily, by [*5] tying a line and dropping it from the top and then having the safety belt attached to a grab hook, so that if the man fell a couple of feet this would grab hold and stop him from falling any farther.
Safety belts could have been tied off to the floor or to the columns on that floor, so that they would have had very little slack to fall to the concrete deck below. n7
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n7 Transcript at 26-27.
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The compliance officer testified that a fall from ten feet would normally result in "broken bones or some serious physical harm." He stated that in the particular circumstances involved, the probability of serious injury would be increased due to the nature of the material below the ledge. In sum, the compliance oifficer was of the opinion that there was a "substantial probability of serious physical harm from a fall of more than ten feet."
Judge Worcester vacated the citation. He characterized the Secretary's evidence as being of "doubtful probative value" because the compliance officer's testimony was "based upon a glimpse [*6] . . . as he drove by", and was "uncorroborated by any other witness". Regarding the photographs, he stated that although they showed "one man . . . sitting on the perimeter, . . . there is no evidence to explain what he was doing, what kind of protection he needed, or if he needed any protection at all." n8 The Judge stated in the absence of testimony by the employees, "it is difficult to tell what, if any, risk was involved." Noting the Secretary's failure to identify a standard specifying that safety belts must be worn at the specific heights at issue, Judge Worcester concluded that the Secretary had failed to prove that the employees were exposed to a hazard necessitating the wearing of personal protective equipment. The opinion of the compliance officer, that a hazard existed and that safety belts should have been worn, was held to be an inadequate basis for finding a violation.
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n8 Judge's decision at 7.
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We reverse. Although Commissioner Barnako and I disagree in part as to the interpretation and application [*7] of § 1926.28(a), see, e.g., B & B Insulation, Inc., 77 OSAHRC 49/A2, 5 BNA OSHC 1265, 1977-78 CCH OSHD para. 21,747 (No. 9985), petition for review docketed, No. 77-2211, 5th Cir., June 14, 1977, we agree that in the present case the Secretary established that respondent failed to comply with the standard.
Section 1926.28(a) requires the wearing of personal protective equipment "where there is an exposure to hazardous conditions or where this part [Part 1926] indicates the need for using such equipment." n9 As we have held previously, this standard properly can be read to require the use of tied-off safety belts where an employee is exposed to a falling hazard. B & B Insulation, supra; Otis Elevator Co., 75 OSAHRC 4/A2, 3 BNA OSHC 1736, 1975-76 CCH OSHD para. 20,159 (No. 1184, 1975).
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n9 Respondent argues that the standard is invalid and unenforceable because it was amended substantively without resort to formal rulemaking proceedings. This argument has been addressed previously and rejected. In Schiavone Constr. Co., 77 OSAHRC 78/A2, 5 BNA OSHC 1385, 1977-78 CCH OSHD para. 21,815 (No. 12767, 1977), petition for review docketed, No. 77-1807, 3d Cir., June 20, 1977, we stated:
Although the amendment to the standard was made without resort to rulemaking proceedings, we have held that the amendment was not substantive, and that therefore the procedure followed was permissible. Island Steel and Welding, Ltd., 77 OSAHRC 143, 3 BNA OSHC 1101, CCH OSHD para. 19,545 (1975).
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Our evaluation of the evidence differs from that of Judge Worcester. See Allis-Chalmers Corp. v. O.S.H.R.C., 542 F.2d 27 (7th Cir. 1976). Contrary to Judge Worcester's conclusion, the evidence in this case clearly establishes that respondent's employees were exposed to a falling hazard. The compliance officer's testimony concerning the facts that he observed was not contradicted, and there is no evidence attacking his credibility. He testified that he observed the employees taking measurements on the ledge outside of the guardrails. The photographic exhibits corroborate this testimony. The compliance officer testified that, while on he ledge, the employees were exposed to a hazard of falling ten to fifteen feet to the surface below. We agree. The falling hazard to which the employees were exposed is obvious. n10 Orville Larkan, d/b/a Larkan Steel Erectors, 77 OSHARC 167/B12, 5 BNA OSHC 1783, 1977-78 CCH OSHD para. 22,100 (No. 15016, 1977). Schiavone Constr. Co., supra. The compliance officer further testified that safety belts should have been used, and he described how such [*9] use could have been accomplished. n11 Respondent did not argue that it was impossible to use safety belts. In fact, the foreman indicated to the compliance officer that the employees would begin using safety belts. The above - summarized unrebutted evidence is reliable and probative. It establishes respondent's failure to comply with § 1926.28(a).
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n10 We note that not only were respondent's employees working on a narrow ledge without the benefit of protective equipment, they had climbed over guardrails that had been erected at the edge of the floor in order to protect those working on the floor from falling.
The obviousness of the hazardous nature of this conduct also defeats respondent's claim that the standard is impermissibly vague. In this regard we note also former Commissioner Van Namee's statement in Hoffman Constr. Co., 75 OSAHRC 31/E12, 2 BNA OSHC 1523, 1974-75 CCH OSHD para. 19,275 (No. 644, 1975), rev'd, 546 F.2d 281 (9th Cir. 1976):
There can be little doubt that the hazard of a fall is a hazard well known in the construction industry and that safety belts are commonly provided and attached to structures or to secured lifelines as protection against this hazard.
n11 Commissioner Barnako and I have differing views on the question of the assignment of the burden of proving the feasibility of using safety belts in § 1926.28(a) cases. See, e.g., B & B Insulation, Inc., supra; Frank Briscoe Co., Inc., 76 OSAHRC 129/A2, 4 BNA OSHC 1729, 1976-77 CCH OSHD para. 21,162 (No. 7792, 1976).
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The Secretary proposed a $700 penalty for this violation. Respondent employs in excess of 100 employees. The three employees involved were exposed to the falling hazard for a brief period of time. In light of the factors specified in section 17(j) of the Act, n12 we conclude that a $500 penalty is appropriate.
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n12 Section 17(j) reads:
The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.
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Accordingly, we reverse the Judge and find respondent in serious violation of the Act for failure to comply with the standard at 29 CFR § 1926.28(a). A $500 penalty is assessed.
It is so ORDERED.