VALLEY ROOFING CORPORATION; J. B. EURELL COMPANY

OSHRC Docket No. 15800; 15945

Occupational Safety and Health Review Commission

March 29, 1978

[*1]

Before CLEARY, Chairman, and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

Jennings T. Bird, for the employer

OPINION:

DECISION

BY THE COMMISSION:

These consolidated n1 cases present the question n2 of whether Administrative Law Judge William E. Brennan properly vacated serious citations alleging that Respondents violated 29 C.F.R. 1926.28(a) n3 by failing to require employees to wear safety belts. We have reviewed the record and are divided with respect to whether the judge's decisions should be affirmed or conditionally affirmed pending opportunity for complainant to reopen the record. In order to fulfill the statutory purpose of expeditious adjudication and in view of the absence of a third member since April 28, 1977, we agree to resolve our impasse by affirming the judge's decisions. Nonetheless they are accorded only the precedential value of unreviewed judges' decisions because of the disagreement between the members. Life Sciences Products Company, 77 OSAHRC 200/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD para. 22,313 (No. 14910, 1977).

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n1 Because these two cases present the same question of law on the basis of materially identical facts arising out of one inspection of one worksite, we consolidate these cases for decision pursuant to Commission Rule 9, 29 C.F.R. 2200.9.

n2 Complainant's petitions for review and briefs on review in both cases raised exception only to the judge's disposition of allegations of violation of 29 C.F.R. 1926.28(a). The judge also vacated the citations insofar as they alleged violations of 29 C.F.R. 1926.500(d)(1) and section 5(a)(1) of the Occupational Safety & Health Act of 1970, 29 U.S.C. 651 et seq, and affirmed a citation for a nonserious violation of 29 C.F.R. 1926.252(a). However, no party has taken exception to the Judge's disposition of these items. Accordingly, we review only the Judge's disposition of the alleged violations of 29 C.F.R. 1926.28(a). See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD para. 20,780 (No. 4136, 1976); Crane Co., 76 OSAHRC 37/A2, 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976). The remaining portions of the judge's decisions have the significance of an unreviewed judge's decision. Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

n3 The standard 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."

[*3]

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The parties presented the cases on stipulated facts, from which the following factual statement is taken. They also stipulated to the introduction of certain photographs showing the worksite. Respondent J.B. Eurell Company was installing the flat structural roof decks of a warehouse and attached office building in Cloverdale, Virginia and Respondent Valley Roofing Corporation was installing the roofs of those building. The work required the employees of both Respondents to work near the edges of the roofs. The roof of the warehouse was approximately 29 feet high, and that of the office building was approximately 13 feet high. Neither Respondent provided protection against falls by requiring its employees to wear safety belts, or by using an alternative form of fall protection.

Although he found that Respondents had failed to require the wearing of safety belts by employees exposed to fall hazards, Judge Brennan found no violation of 29 C.F.R. 1926.28(a). Relying on National Realty & Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973), the judge held that Complainant was required to [*4] show what specific steps the employer should have taken to comply with the standard and that compliance in those specific ways was feasible on the worksite. Furthermore, the judge found no evidence ". . . that there was available any anchorage or structural member above the point where the . . . exposed employees were necessarily working, or that any such anchorage could have feasibly been supplied by this Respondent . . .," to which to have tied lifelines or lanyards for safety belts. n4 Complainant having failed to present this evidence, Judge Brennan found that Complainant had failed to show that compliance was feasible. Therefore he vacated the citations.

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n4 29 C.F.R. 1926.104(b) provides that "[l]ifelines shall be secured above the point of operation to an anchorage or structural member capable of supporting a minimum dead weight of 5,400 pounds."

The Judge also noted the requirement of 29 C.F.R. 1926.104(d) which provides that the "[s]afety belt lanyard shall. . . [have] a maximum length to provide for a fall of no greater than 6 feet . . . ."

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Complainant excepts to this disposition and reasoning, contending that the judge erred in placing the burden on Complainant to prove the feasibility or possibility of compliance with 29 C.F.R. 1926.28(a). Complainant asserts that impossibility is, at best, a defense for Respondents in these cases, inasmuch as Complainant alleged violations of a specific standard which, Complainant argues, guides employers to the specific methods for compliance. National Realty, supra., is therefore distinguishable, in Complainant's view. Complainant further contends that Respondents failed to prove compliance to be impossible, particularly noting that the photographs do not positively establish either that Respondents could not have secured lanyards or lifelines below the level of the roofs or that Respondents could not have constructed a structure on the roofs to which to tie off.

Respondents defend the judge's decisions arguing that he correctly applied the principles set forth in National Realty, supra., to vacate the citations based on 29 C.F.R. 1926.28(a). Inasmuch as the cited standard refers to the remaining construction standards, [*6] Respondents assert that the cited standard incorporates the requirements pertaining to safety belts set forth in 29 C.F.R. 1926.104(b) and (d). n5 Complainant must, in the opinion of Respondents, prove that it is feasible for Respondents to comply with these provisions in using safety belts. Respondents emphasize that the photographs do not show any structure or anchorage above the point of operation to which employees could have tied off, and that, therefore, to perform their work at the edges of the roofs, the employees would have needed to use lanyards longer than permissible. On this basis, Respondents contend that Complainant failed to show feasibility.

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n5 See footnote 4 supra.

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We both reject Respondent's arguments that they are not required to comply with the cited standard by requiring employees to wear tiedoff safety belts where the record shows that it is not possible to secure lifelines as required by 29 C.F.R. 1926.104(b) or to limit the length of lanyards as required by 29 C.F.R. 1926.104(d). [*7] See Ray Evers Welding Company, 77 OSAHRC 181/F7, 5 BNA OSHC 1948, 1977-78 CCH OSHD para. 22,220 (No. 76-628, 1977); Frank Briscoe Company, 76 OSAHRC 125/D7, 4 BNA OSHC 1706, 1976-77 CCH OSHD para. 21,191 (No. 12136, 1976); Kelly Construction Services, Inc., 76 OSAHRC 89/F3, 4 BNA OSHC 1491, 1976-77 CCH OSHD para. 20,925 (No. 7102, 1976). We both agree that an employer can be found in violation of the cited standard for failing to require the wearing of tied-off safety belts, even if the belts cannot be tied off in an ideal manner.

Commissioner Barnako concludes that Judge Brennan correctly vacated the citations on the basis that Complainant failed to present evidence to show that there was, or could have been, any substantial structure to which employees could have tied off. M.K. Binkley Construction Co., 77 OSAHRC 79/F7, 5 BNA OSHC 1411, 1977-78 CCH OSHD para. 21,823 (No. 12876, 1977). He takes the position, as did the judge, that the principles of National Realty, supra, define Complainant's burden of proof of violation of 29 C.F.R. 1926.28(a). Frank Briscoe Company, 76 OSAHRC 129/A2, 4 BNA OSHC 1729, 1976-77 CCH OSHD para. 21,162 (No. 7792, [*8] 1976). Accordingly, he would affirm the judge's decisions.

Chairman Cleary would issue a conditional order affirming the judge's vacation of the citations unless complainant, within a specified time period, moved to reopen the case in order to present evidence regarding the feasibility and utility of safety belts.

In Frank Briscoe Company, supra, a divided Commission held that in order to establish a failure to comply with 29 C.F.R. 1926.28(a) complainant must demonstrate the feasibility and utility of his recommended form of abatement. Although Chairman Cleary has disagreed with this holding n6 a majority of this Commission has applied it. In Chairman Cleary's opinion, however, a proper application of the Frank Briscoe decision in this case requires that the Complainant be afforded an opportunity to present evidence as to the feasibility and utility of safety belts.

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n6 B. & B. Insulation, Inc., 77 OSAHRC 49/A2, 5 BNA OSHC 1265, 1977-78 CCH OSHD para. 21,747 (No. 9985, 1977) (concurring opinion), petition for review docketed, No. 77-2211 (5th Cir., June 14, 1977).

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Chairman Cleary notes that the Judge's decisions in the instant case were issued before the Commission's decision in Frank Briscoe. Thus, Complainant was unaware of his expanded burden of proof during the proceedings below. Chairman Cleary finds that a similar situation existed after the Commission established new affirmative defenses for subcontractors on multi-employer construction sites whose employees were exposed to hazards neither created nor controlled by the subcontractors. See Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD para. 20,690 (No. 3694, 1976), and Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 BNA OSHD para. 20,691 (No. 12775, 1976). Thereafter, in cases tried before the establishment of these defenses, the Commission has consistently afforded Respondents the opportunity to adduce additional evidence even though the defenses were not articulated until after the hearing. See, e.g., Cotner & Cotner, Inc., 77 OSAHRC 208/C1, 6 BNA OSHC 1163, 1977-78 CCH OSHD para. 22,403 (No. 16174, 1977). In Chairman Cleary's [*10] view, elemental fairness requires that Complainant be treated similarly and afforded an opportunity to present evidence on the feasibility and utility of safety belts.

Accordingly, the judge's decisions are affirmed in accordance with this opinion. So ORDERED.