UNITED ENGINEERS & CONSTRUCTORS, INC.
OSHRC Docket No. 2414
Occupational Safety and Health Review Commission
June 19, 1975
[*1]
Before MORAN, Chairman; and CLEARY, Commissioner
OPINION:
BY THE COMMISSION: A decision of Review Commission Judge William E. Brennan, dated January 11, 1974, has been before this Commission for review pursuant to 29 U.S.C. § 661(i) for more than a year. Rather than further delaying the disposition of this case until a third member is appointed to the Commission, the Commission as presently constituted agrees to decide this case at this time.
The two issues on review are (1) whether the Judge erred by concluding that respondent was not in violation of 29 C.F.R. § 1926.28(a) and 29 C.F.R. § 1926.105(a), and (2) whether the Judge erred by concluding that respondent was not in violation of 29 C.F.R. § 1910.252(a)(2)(iv)(c).
The Commission is agreed that Judge Brennan correctly decided the latter issue for the reasons given in his decision. Therefore, the Judge's vacation of the complainant's citation for non-compliance with 29 C.F.R. § 1910.252(a)(2)(iv)(c) is affirmed.
The Commission is equally divided on the former issue. Chairman Moran finds that the Judge's vacation was proper because the evidence shows that the use of safety nets would have made it impossible to perform the [*2] required work ( Secretary v. Consolidated Engineering, Inc., 12 OSAHRC 490 (1974)), and the evidence fails to establish the feasibility of tying off the safety belt under the prevailing circumstances ( see National Realty and Construction Company v. OSAHRC, 489 F.2d 1257 (D.C. Cir., 1973); Cape and Vineyard Division of the New Bedford Gas and Edison Light Company v. OSAHRC, 512 F.2d 1148 (1st Cir. 1975)). Commissioner Cleary would reverse for the reasons set forth in his separate opinion. Accordingly, the Judge's vacation of complainant's citation for non-compliance with 29 C.F.R. § 1926.28(a) and 29 C.F.R. § 1926.105(a) is affirmed by an equally divided Commission, and the decision thereon has no precedential weight. Secretary v. Garcia Concrete, Inc., 18 OSAHRC 184 (May 27, 1975).
CLEARY, COMMISSIONER: I do not agree with Judge Brennan's handling of the citation based on 29 C.F.R. § 1926.28(a) and 29 C.F.R. § 1926.105(a). n1 In vacating the citation, the Judge held that 29 C.F.R. § 1926.28(a) is unconstitutionally vague when standing alone, that it must be cited in conjunction with another standard, and that 29 C.F.R. § 1926.105(a) does not require the [*3] use of safety belts or safety lines, but only safety nets when use of nets would be practical. For the reasons detailed below, I believe the Judge should have found a violation of 29 C.F.R. § 1926.105(a).
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n1 The standard 29 C.F.R. § 1926.105(a) provides that:
(a) 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, catch platforms, temporary floors, safety lines or safety belts is impractical.
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The relevant facts are not in dispute. Respondent, a large construction company, maintained a worksite at Three Mile Island, Middletown, Pennsylvania. At that site respondent was constructing a nuclear generating station.
On January 26, 1973, the Three Mile Island site was the subject of an occupational safety and health inspection. During the walk-around part of the inspection, the Secretary's compliance officer photographed an employee of respondent standing on top of a 36-inch wide steel girder in the middle of which the track [*4] for one side of a polar crane was positioned. The girder was about 225 feet above the floor of the No. 2 Reactor Building. The employee, an iron worker, was not protected by a safety net. There was no guard rail on the girder. The employee was wearing a safety belt but was not tied off.
The iron worker involved had been directed to the top of the polar crane structure to guide a tower-crane operator in lowering a small crane into the center of the reactor. The small crane was calculated to have about two and one-half feet of clearance between the wall of the reactor and the polar crane. Because of the close clearance, a man was required to be positioned on the polar crane to guide the tower-crane operator. This was the iron worker's only task. It was estimated that he was on the girder for not more than 20 minutes.
Judge Brennan's disposition of the alleged violation relied in large part on our early decision in Drake-Willamette Joint Ventures, No. 117 (April 18, 1973) wherein it was held that 29 C.F.R. § 1926.105(a) does not require the use of safety belts or safety lines. Subsequently, however, the Fifth Circuit in Brennan v. Southern Contractors Service [*5] & O.S.H.R.C., 492 F. 2d 498, 501 (5th Cir. 1974) held that the Commission's interpretation of § 1910.105(a) was incorrect. The Court held:
[That] 29 C.F.R. 1926.105(a) must be read to require an employer to employ either a safety net or one of the other safety devices listed in the regulations, and hence that failure to use any of such devices is a proper predicate for the imposition of sanctions prescribed in the Occupational Safety & Health Act of 1970.
The Secretary has established as part of his prima facie case that respondent's employee in question was required to work unprotected by nets, belts, or other devices more than 25 feet above the ground in violation of 29 C.F.R. § 1926.105(a). Respondent attacked the proposed abatement method, apparently trying to establish that compliance was not possible or practical. n2
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n2 It was established to require safety nets extending 8 feet beyond the edge of the work surface (29 C.F.R. 1926.105(c)(1)) would deny the tower crane the clearance necessary for it to lower the smaller crane into the reactor. Moreover, the compliance officer testified that safety belts and lines were the only feasible method of protection that would still allow the small crane to be brought into the reactor.
[*6]
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Complainant's compliance officer testified that it would be possible to protect respondent's employee by use of a safety belt and lanyard attached to a lifeline in the form of a wire cable strung between two or more upright steel poles that were to be welded to the girder.
On cross-examination respondent sought to discredit the Secretary's proposed abatement method with the following colloquy:
Q. Mr. Barker, the type of line you recall suggesting that would run around the four corners of the polar crane, the girder set-up as shown in G-5, that would not support 5,400 pounds, would it?
a. The type of protection --
Q. Yes, that you are talking about.
A. I don't know what the 5,400 pounds would be.
Q. That was by the Government's standards.
A. I couldn't say that it would hold 5,400 pounds, no.
Q. However, the Government standards would require anything like that to support 5,400 pounds, wouldn't they.
A. I don't believe that is what the standards say.
Counsel for respondent was apparently referring to occupational safety and health standard 29 C.F.R. § 1926.104(b) which requires: [*7]
Lifelines [to be] secured above the point of operation to an ancho age or structural member capable of supporting a minimum dead weight of 5,400 pounds.
Respondent's position is that compliance with the Secretary's proposed method of abatement would require violation of 29 C.F.R. § 1926.104(b).
Respondent's position is not persuasive. Official actions of administrative officers are entitled to a presumption of regularity and validity. United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926); Phillips v. Fidalgo Island Packing Co., 238 F. 2d 234 (9th Cir. 1956); Chicago Bridge & Iron Co., No. 744 (January 24, 1974) rev'd and remanded on other grounds, No. 74-1214, 7th Cir., Apr. 22, 1975. In this case, the Secretary's standards are entitled to a presumption that would not require compliance with one occupational safety and health standard at the expense of violation of another. The burden of overcoming this presumption remained with respondent. The record is devoid of any proof that welded uprights connected by a wire cable safety line would not hold 5,400 pounts.
Moreover, the testimony of the complainant's compliance officer quoted above [*8] does not fulfill respondent's burden. First of all, his answer was equivocal. He did not say that the lifeline would hold 5,400 pounds, but on the other hand he did not say that it would hold less. Also, complainant's compliance officer testified to his background in the area of construction. At the time of the hearing he had made approximately 10 inspections of construction sites. His formal training as a compliance officer included construction courses at the Chicago, Compliance Officer Training School. These courses were designed to teach the compliance officer how to recognize hazards in the construction field. From the record I find no evidence that would support the assumption that the compliance officer was competent to testify as to whether upright steel poles connected by wire cable and welded to the superstructure of the polar crane could support 5,400 pounds. As such I, in any event, would not rely upon his testimony that such an abatement method would not support 5,400 pounds.
Respondent should have been found in violation of 29 C.F.R. § 1926.105(a). n3 Moreover, the violation is serious in that death or serious physical harm would result from a fall of 225 [*9] feet. Actual knowledge of respondent's employee's activity is imputed to respondent because the employee was directed to the top of the crane by one of respondent's foremen. Floyd Pike Inc., No. 3069 (January 30, 1975); PecoSteel-Arizona, No. 1930 (January 22, 1975).
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n3 If section 1926.105(a) were to be read more literally, there would be no violation of its terms because here the use of safety nets was impractical and other measures were practical; i.e., arguably the converse of a situation contemplated by the plain text. Cf. Brennan v. O.S.H.R.C. & Ron M. Fiegen, Inc., No. 74-1643 (8th Cir., April 18, 1975). In which event, it is clear that the hazard involved would result in a violation of section 1926.28(a). See Eichleay Corp., No. 2610 (February 20, 1975); Carpenter Rigging & Contracting Corp., No. 1399 (February 4, 1975); Hoffman Constr. Co., No. 644 (January 31, 1975).
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Complainant charged respondent with "repeat or willful" violation of 29 C.F.R. § 1926.28(a) and § 1926.105(a) [*10] based on an earlier citation that is the final order of this Commission. That citation, dated September 18, 1972, alleged respondent's violation of 29 C.F.R. § 1926.28(a). The description of the September 18, 1972, violation was as follows:
Employees working approximately 36 feet above adjacent surface were not wearing safety belts or lanyards while positioning and/or tying reinforcing steel rods on the south end of Control Bldg. No. 2, elevation 282.
The theory of the Secretary's case was that respondent was in repeated violation of 29 C.F.R. § 1926.28(a) based on the September 18, 1972, citation. Indeed, complainant's complaint amends the citations for a repeated violation issued to respondent with the following language: "Citation #1 and #2 for Repeat Violation. . . incorrectly refer to 'Repeat Violation.' In order to comply with the language of section 17(a) of the Act, they shall be deemed to be amended to read 'Repeat or Willful violation" (emphasis added). The Secretary has not attempted to establish a willful violation of 29 C.F.R. § 1926.105(a).
I do not find that the Secretary has established respondent's repeated violation of 29 C.F.R. § 1926.105(a). The underlying [*11] facts of the earlier violation differ substantially from the underlying facts in this case. The September 18, 1972, citation was issued because several employees were tying rebar 36 feet above the adjacent surface. This type of activity was a daily occurrence on the worksite. In the present case, however, respondent's employee was placed in a unique position. He was to direct a tower-crane in one specific operation. Once this was done he would not again be required to perform the same activity. The two citations had only one thing in common. In both instances the hazard of a fall was present. Otherwise, the situations do not match well.
I would reverse the Judge's disposition of this issue and find respondent in serious violation of 29 C.F.R. § 1926.105(a).
[The Judge's decision referred to herein follows]
BRENNAN, JUDGE: This is an action arising under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 659, (hereinafter the Act) to review two Citations for "Repeat or Willful" Violations and one Citation for Non-Serious Violations consisting of three Items, n1 and a Notification of Proposed Penalties issued pursuant to [*12] Sections 9(a) and 10(a) of the Act on February 22, 1973, by the Secretary of Labor through the Area Director of the Occupational Safety and Health Administration for Philadelphia, Pennsylvania (hereinafter Secretary or Complainant) to United Engineers & Constructors, Inc., Three Mile Island, Middletown, Pennsylvania (hereinafter Respondent).
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n1 Items numbered 1 and 2 of the Non-Serious Citation were not contested by Respondent and have become final orders of the Commission by operation of Section 10(a) of the Act, 29 USC 659(a). No penalties were proposed for these Items.
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The Citations herein, issued as a result of an inspection conducted on January 26, 1973, at the above location where Respondent was engaged in the construction of a nuclear generating station, (hereinafter work site), set forth the following information:
Standard allegedly Violated-Description of Alleged Violation-Abatement Date
I
Citation for Repeat or Willful Violation Number I
29 CFR 1926.28(a) and 1926.105(a), as adopted by 29 CFR 1910.12-On [*13] January 26, 1973, the employer did not require the wearing of appropriate protective equipment (lifelines, or other effective safety means), nor were safety nets provided for an employee working on the polar crane atop the #2 reactor building (with the perimeter unguarded), more than 25 feet above the adjacent surfaces, exposing the employee to the hazardous condition of falling.-Immediately upon receipt of Citation
The employer was previously cited for violation of 29 CFR 1910.28(a) on a Serious Citation issued September 18, 1972.
Citation for Repeat or Willful Violation Number 2
29 CFR 1926.700(b)(2), as adopted by 29 CFR 1910.12-On January 26, 1973, two employees working off of a ten-foot scaffold at the Southeast corner of the turbine building, unit #2, (elevation 305) were permitted to work above vertical protruding reinforcing steel, which had not been protected to eliminate the hazard of impalement.-Immediately upon receipt of Citation
The employer was previously cited for violation of this standard in Item #10 of the Citation issued September 18, 1972.
Citation for Non-Serious Violation - Item Number 3
29CFR 1910.252(a)(2)(iv)(c)-Oxygen cylinders and acetylene [*14] cylinders, in storage throughout the job site, were not separated by a minimum distance of twenty feet, or by a non-combustible barrier.-Immediately upon receipt of Citation
The Secretary proposed a $4500.00 penalty of each of the alleged Repeat or Willful violations and a $70.00 penalty for the alleged non-serious violation, (Item No. 3), totalling $9070.00.
Pursuant to Section 10(c) of the Act, Respondent, through a letter dated March 8, 1973 from its counsel, gave notice of its intention to contest the two Citations for Repeat or Willful Violations, Item No. 3 of the Non-Serious Violation, and the Secretary's proposed penalties.
In Paragraph V of his Complaint, filed with the Commission on March 28, 1973, the Secretary avers that, "Citation #1 for Repeat Violation, issued February 22, 1973, incorrectly refers to '29 CFR 1910.28(a) in its description of alleged violation, and shall be deemed to be amended to read '29 CFR 1926.28(a).'"
This amendment merely corrects a typographical error in the second paragraph of the "Description of alleged violation" of the Citation for Repeat Violation No. 1. The evidence of record establishes that Respondent was charged in a Citation for [*15] Serious Violation dated September 18, 1972, with a violation of 29 CFR 1926.28(a). (See Exhibit C attached to the Complaint herein, and Exhibit G-3 of record).
Also in this Complaint, the Secretary avers, "Citation #1 and #2 for Repeat Violation and the Notification of Proposed Penalty incorrectly refer to 'Repeat Violation.' In order to comply with the language of section 17(a) of the Act, they shall be deemed to be amended to read "Repeat or Willful Violation.'"
In its Answer filed with the Commission on April 13, 1973, Respondent admitted the issuance, on September 18, 1972, of a Citation for Serious Violation alleging non-compliance with the Standard set forth at 29 CFR 1926.28(a), and a non-serious Citation, which in Item No. 10, alleged non-compliance with the Standard set forth at 29 CFR 1926.700(b)(2), (Exh. C attached to Complaint, Exh. G-3 of record). It also admitted that these 1972 Citations were not contested.
By a letter dated April 19, 1973, Local Union No. 404 of the Bridge, Structural and Iron Workers International Association requested party status in this case, which party was represented at the trial of this case by counsel.
After postponing the [*16] hearing herein upon Respondent's request without objection, trial was held in Harrisburg, Pennsylvania.
After extending the time within which to file briefs and proposed findings, necessitated by the sudden illness of Respondents counsel, all briefs were finally received by September 28, 1973.
Having considered the entire record herein, the testimony and demeanor of the witnesses, the exhibits, stipulations, representations and admissions of the parties, it is concluded that the substantial evidence of record considered as a whole supports the following findings of fact and conclusions of law.
The following matters were stipulated to by the parties. The Respondent, incorporated in the State of Delaware, is a subsidiary of the Ranon Corporation, with its principal office in Philadelphia, Pennsylvania.
Respondent conceded that it was engaged in a business affecting commerce within the meaning of the Act. During 1972 Respondent had total sales in excess of $65,000,000 and is engaged in the construction of a nuclear generating station at Three Mile Island. It employed approximately 2250 employees at this worksite at the time of the January 26, 1973 inspection.
At the [*17] outset of the hearing, the Secretary's counsel moved to Amend the Citation for Repeat or Willful Violation No. 1, to plead the Standards allegedly violated in the disjunctive, rather than the conjunctive as set forth originally in this Citation. The Respondent objected to this amendment. Ruling was reserved. For the reasons set forth infra, the motion is hereby denied.
Citation for Repeat or Willful Violation No. 1
The Standards allegedly violated, appearing at 29 CFR, provide as follows:
§ 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.
Although not referred to in either the amended Citation or Complaint herein, subparagraph (b) of 1926.28 provides as follows:
(b) Regulations governing the use, selection, and maintenance of personal protective and lifesaving equipment are described under Subpart E of this part.
and
§ 1926.105 Safety nets.
(a) Safety nets shall be provided when workplaces are more than 25 [*18] 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.
I have previously held that, standing alone, 29 CFR 1926.28(a) can not form the basis of a violation of Section 5(a)(2) of the Act due to its vagueness. n2 An employer, charged with a violation of 29 CFR 1926.28(a) must "guess" to determine what this Standard means by "appropriate personal protective equipment" if indeed, he guessed correctly as to its need because of a "hazardous caution." Subparagraph (b) of this Standard refers the employer to other regulations in Subpart E of Title 29 to ascertain a description of the ". . . use, selection, and maintenance of personal protective and lifesaving equipment. . .". Thus, 1926.28(a), standing alone is unconstitutionally vague. (See Sec. of Labor v. Grayson Lumber Co., Inc.,
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n2 See Sec. - U.S. Dept. of Labor v. Richmond Primoid, Inc.,
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The question of the vagueness of 1926.28(a) is before the Commission on the review of two cases in which the presiding judges have held this Standard fatally vague. (See American Bridge, Division of U.S. Steel Corp., Docket No. 2249 (7/17/73) and Carpenter Rigging and Contracting Corp. Docket No. 1399 (3/8/73), called for review on 4/9/73 and 8/14/73 respectively). In the absence of a Commission opinion on this question, I continue to believe that 1926.28(a) standing alone, is fatally vague.
Because of the language of 1926.28(b), it is my belief that 1926.28(a) was intended by its drafters to be merely ". . . prefatory and adjunctive in nature --" (See American Bridge, Division of U.S. Steel Corp., supra), and was not intended to be used as the sole basis for an alleged violation of Section 5(a)(2) of the Act. Rather, 1926.28 in its entirety, when coupled with an appropriate standard set forth in Subpart E, as referred to in 1926.28(b), would, in my opinion, be the only adequate and proper method to charge an employer with a failure to require its employees to utilize "appropriate personal protective equipment."
Thus [*20] in this case, in the light of the foregoing conclusions, the Secretary, as a matter of sufficiency of pleading, accurately alleged a violation of 1926.28(a) and 1926.105(a) in the conjunctive and the motion to allege the violation in the disjunctive must be denied.
The graveman of the Secretary's charge in his Citation for Repeat or Willful Violation No. 1, essentially is that the Respordent did not require one employee observed on a polar crane girder at the worksite involved, to wear, ". . . appropriate protective equipment (lifelines or other effective safety means), nor were safety nets provided --" said worker. (See Description of Alleged Violation, Citation for Repeat Violation No. 1).
Reduced to its simplest form, the Secretary charged the Respondent with a failure to require this employee to wear a safety belt while atop this polar crane girder or to rig a safety net under him.
The charge as it relates to safety belts, is of course, predicated on the assumption that either 1926.28(a) or 1926.105(a) or both of these standards, require the use of safety belts for employees working above 25 foot heights. This assumption is not supported by the wording of either [*21] Standard. The Standard appearing at 1926.28(a) or (b) does not contain the words "safety belt" or "safety lines." No such requirement can reasonably be concluded from the wording of this standard.
Similarly, the Standard set forth at 1926.105(a) does not require the use of safety belts or safety lines for employees working at heights in excess of 25 feet in sufficiently clear and unambiguous language to adequately inform employees of any such requirement consistent with the requirement of due process. The Commission has held that this Standard does not require the use of safety belts or safety lines, but merely "safety nets." (See Sec. of Labor v. Drake-Williamette Joint Ventures, Docket No. 117, 4/18/73 pp. 4, 5).
Indeed, a reading of all of the Standards set forth in Subpart E fails to reveal any standard requiring the use of safety belts or safety lines sufficiently specific to clearly advise an employer what he must do, under what circumstances and when. (See Secretary of Labor v. Grayson Lumber Co., Inc., supra). n3
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n3 The requirement to use safety belts and safety lines has been clearly and specifically set forth by the Secretary in other Standards not pertinent here, see 29 CFR 1926.451(i)(8); (p)(9); (w)(6).
[*22]
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There remains for resolution as to this Citation, the sole question of whether Respondent was in violation of 1926.105(a) because of its failure to rig a safety net under the employee on the polar girder.
The facts surrounding this alleged violation are not in dispute.
During an inspection of Respondents worksite on January 26, 1973 an employee of Respondent, John Thomas was observed by Compliance Officer Lawrence Barber in the company of two other compliance officers whom he was training, among others, atop a polar crane girder at reactor building number 2. This girder was 36 inches wide with a trolly rail 6 inches high and 2 to 3 inches wide running along its top. The girder was approximately 225 feet above the ground.
Mr. Thomas was on this girder to direct a tower crane operator in the task of lowering a cherry picker crane n4 into the center section of reactor area number 2. Due to the size of the cherry picker crane, there was very little clearance about 2-1/2 feet remaining between the walls of the reactor shell and this load as it was lowered into the shell. (See Exhs. G-5, G-6, [*23] G-7). This task could not have been successfully accomplished unless someone was on the polar girder to guide the tower crane operator. This was Mr. Thomas' sole task and he was on this girder for not more than 20 minutes. Mr. Thomas testified that he wore a safety belt but did not tie off to anything on the girder because there was nothing atop the girder to which a safety belt could be attached.
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n4 A mobile, rubber tired, telescoping crane.
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The Respondent has a safety policy requiring the use of safety belts when employees are working off the ground and where the safety belts may feasibly be attached to a secure anchorage. This safety policy is enforced by Respondent by disciplinary actions up to and including dismissal.
No safety net was rigged under Mr. Thomas because any such net, in order to comply with the standard set forth at 29 CFR 1926.105(c)(1) would have to extend 8 feet beyond the edge of the girder. A net so positioned would partially block the opening into which the cherry picker crane was to [*24] be lowered and thus make the accomplishment of this task impossible.
A logical construction of the wording of the Standard allegedly violated, 1926.105(a) leads me to the conclusion that safety nets must be provided when employees are working 25 feet or more above the ground, when the other safety methods mentioned are impractical, and the use of the safety net is practical. Certainly this Standard can not be construed to require the use of a safety net when such use would stop the work above it. Such a construction would vitiate this standard, a result clearly at odds with the Act pursuant to which it was promulgated. The Secretary introduced no evidence to support a conclusion that the use of a safety net was either practical or possible. (See Secretary of Labor v. Industrial Steel Erectors, Inc., Docket No. 703, presently on review of questions not pertinent here).
Based upon the forgoing, it is concluded that Respondent was not in violation of the Standard set forth at 29 CFR 1926.105(a).
Although the word "willful" is not defined in the Act, there is a plethora of authority which has defined it. Essentially, the term "willful" means, intending the result [*25] which actually comes to pass; intentional; not accidental or involuntary. U.S. v. Illinois Cent. R.R. Co., 58 S. Ct. 533, 535, 303 U.S. 239. A "willful" act may be described as one done intentionally, knowingly, and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. Lobdell Car Wheel v. Subieski, 125 A 462, 464. (See also, Blacks Law Dictionary, Rev. 4th Ed. (1968); Sec. - U.S. Dept. of Labor v. Wetmore & Parman, Inc., Docket No. 221, Commission Decision 1/18/73 p. 4 and authorities cited therein).
Section 17(a) of the Act (29 U.S.C. 666(a)) refers to the assessment of a civil penalty for a willful or repeated violation of Section 5 of the Act. (29 U.S.C. 654). What must be done in order to incur liability under Section 17(a) of the Act is to "willfully" or "repeatedly" violate the requirements of Section 5 of the Act. Thus to establish a "willful" violation, it is necessary to establish by substantial evidence of record, that the employer intentionally, knowingly, and purposely, without justifiable excuse, violated a requirement of Section 5 of the Act.
There [*26] is no evidence in this record to establish that this Respondent "willfully" violated any requirement of Section 5 of the Act.
The Secretary has not established either a repeat or willful violation as alleged in this Citation Number 1 and it must therefore be vacated.
Citation for Repeat or Willful Violation No. 2
The Standard allegedly violated in this Citation, appearing at 29 C.F.R. 1926.700(b)(2) provides as follows:
(2) Employees shall not be permitted to work above vertically protruding reinforcing steel unless it has been protected to eliminate the hazard of impalement.
This violation is alleged to be a "Repeat" violation because Respondent did not contest Item No. 10 of a non-serious Citation issued to it on September 18, 1972 which alleged a violation of this Standard. Thus the prior violation has become a final order of the Commission by operation of Section 10(a) of the Act (29 U.S.C. 659(a)). It is alleged to be a "willful" violation by amendment via the Complaint, "In order to comply with the language of section 17(a) of the Act . . ." (Complaint para. V).
The facts surrounding this alleged violation are these. On January 26, 1973, during the walk-around inspection, [*27] the inspection party n5 came upon two cement finishers working in the Southeast corner of turbine building, unit No. 2. These employees were utilizing a portable scaffold on wheels. It was constructed of metal tubing with a wooden work platform enclosed on three sides by a guardrail. The platform was approximately 10 feet above the floor. This scaffold was positioned next to a cement column, with the open side of the platform flush to the column surface which was being finished. The other side of this column had been finished at some prior time. When first observed, one employee was on the enclosed work platform of the scaffold, and a second employee was standing on one of the ladder-like tubes on the side of the scaffold, approximately 6 or 7 feet above the ground. Below this latter employee, and 31 inches to the side of this end of the scaffold, were vertically protruding steel reinforcing rods, which were not protected in any manner. A photograph of this scene was taken and admitted into evidence as Exhibit G-8.
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n5 The inspection party consisted of three Compliance Officers, Respondent's Chief Safety Engineer Mr. Merryman, and two employee representatives.
[*28]
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The evidence is not clear as to precisely what the worker on the side of the scaffold was doing. It is clear however, that when first observed, the employee was called over to the inspection party by Mr. Merryman, and reprimanded. The finishing of the 3rd face of this column took approximately three hours. After the discovery of this situation it was corrected within thirty minutes.
The Respondent argues that it was not in violation of the Standard as alleged essentially for three reasons; first, the ". . . employees were not above the unprotected reinforcing steel;" second, "The employee on the side of the scaffold was not working;" and third, "Respondent's company policy requires all vertical protruding reinforcing steel to be protected and no employees are permitted to work above unprotected steel;" (Respondent's Brief p. 18).
Respondent's first argument is bottomed on a definition of the word "above" to mean "directly over; on top of." Thus, because the scaffold was 31 inches to the side of the unprotected steel bars, the one employee observed on the side of the scaffold nearest the bars [*29] was not directly over the bars, hence was not "above" the bars and therefore there was no violation.
I am unable to accept such a restrictive definition of the word "above" as it is used in the cited Standard. Webster's Third New International Dictionary, Unabridged, Copyright 1971 defines "above" as; in or to a higher place than, higher than; further up than. Webster's New World Dictionary 2nd Ed. 1972 defines "above" as overhead; over, in, at, or to a higher place.
When applying these definitions to the word "above" in the Standard at issue, it is clear that the intent of the Standard is to prohibit employees from working at a place higher than vertically protruding reinforcing steel, and in such proximity thereto so that a fall would subject them to impalement.
In this case, if the one employee observed on the side of the portable scaffold, which was a mere 31 inches away from the unprotected steel bars, did fall death or serious physical harm by impalement could have resulted.
I therefore conclude that the term "above" in this standard, when read in context, is sufficiently definite, as is the Standard itself so as not to be fatally vague.
Respondent's [*30] second argument is not persuasive. Essentially Respondent argues that because the one cement finisher employee was on the side of the scaffold when first observed, not actively finishing cement, he was not working, and thus the cited standard does not apply.
Again, such a restrictive meaning of the words "to work" in the Standard is not justified. Respondent would have us believe that climbing or descending the scaffold in question was not part of the "work" task of the cement finishers involved here. The statement of the proposition is its own refutation. Obviously, the task of finishing the cement column here in question made it necessary for the employees to climb to the level where the precise act of applying cement was done. Equally necessary of course was descending the scaffold, for tools, material or for any reason incident to the act of finishing the column. The observed worker was concededly on Respondent's payroll, and was engaged in the performance of his "work" in all tasks reasonably incident to and necessary for the practice of his trade while on the job site. There is no evidence of record that the employee was on the side of the portable scaffold as a lark, [*31] or outside of the scope of his employment as a cement finisher. Although the evidence is not sufficiently clear to determine what precise task this employee was engaged in when first observed on the scaffold, the scaffold and this employee were located at the location where cement finishing was in progress, and in the absence of creditable evidence to the contrary, it is reasonable to conclude that this employee was engaged in his assigned work task and was on the side of this scaffold executing some task incident and necessary to this task.
Respondent's third argument, i.e. that this company's policy requires all vertical protruding reinforcing steel to be protected and that no employees are permitted to work above unprotected steel, is not supported by the evidence.
The evidence of this record does establish that Respondent does have a company policy to either cover or bend over all protruding reinforcing steel bars, even though no one is expected to work above it. Mr. Merryman testified that inspection for unprotected protruding steel is done on a daily basis.
Respondent introduced into evidence 24 photographs showing hundreds of pieces of such steel which were protected [*32] by either bending over or being covered by wooden boxes. (See Exhs. R-1-A thru R-1-X). However, the evidence of record conclusively establishes that the vertical steel reinforcing steel adjacent to the scaffold in question here, was not protected in any way on the day of the inspection. Respondent does not maintain that these steel rods were protected. The evidence also establishes that the one employee on the side of this scaffold was, within the meaning of the applicable Standard, working above this unprotected steel, and because this steel was unprotected, the hazard of impalement was not eliminated. Respondent argues that, ". . . there is nothing to suggest that Respondent knew or could have known of the presence of the alleged violation; i.e., that an employee would descend from his scaffold so as to place himself near unprotected steel." (Respondent's brief, p. 27).
Respondent misconceives the nature of the violation. The circumstance proscribed by the Standard in question is allowing employees, ". . . to work above vertically protruding reinforcing steel unless it has been protected to eliminate the hazard of impalement." (29 CFR 1926.700(b)(2)). In the circumstances [*33] of this case, employees were directed to complete the finishing of the cement column in question immediately adjacent to and above unprotected steel reinforcing bars. One of the two employees directed to accomplish this task chose to descend on or perform an essential part of this work task from the side of the scaffold nearest the steel bars, thus positioning himself "above" the unprotected steel. This violation was committed when this employee positioned himself above the unprotected reinforcing steel.
The Respondent obviously knew what the Standard in question prohibited, because it expended great time and effort in protecting reinforcing steel thoughout this gigantic construction site. (Exhs. R-1-A thru R-1-X). The violation herein found to exist, could have been avoided by either following its own policy of protecting the steel bars, or instructing the cement finishers not to go upon the side of the scaffold nearest the unprotected steel for any reason. There is no evidence that any such instruction was ever given these employees. This Respondent, under its policy of daily inspections for unprotected steel bars, knew or reasonably should have known of the presence [*34] of the unprotected steel bars at this specific location. The cement finishers were engaged in their work task of finishing the third face of the cement column presumably upon direction from one of Respondent's foremen or supervisors, for there is no suggestion in this record that these employees were engaged in this activity upon their own whim.
It is therefore concluded that Respondent was in violation of the Standard set forth at 29 CFR 1926.700(b)(2), and that this violation was a repeat violation.
The record however is totally devoid of any substantial evidence to establish that this violation was "willful," and it is hereby concluded that this violation was not willful within the meaning of Section 17(a) of the Act (29 U.S.C. 666(a)).
The Secretary proposed a $4500.00 penalty based upon this repeat violation. In the circumstances of this case it is concluded that this penalty is unreasonably high, and not consistent with the provisions of Section 17(j) of the Act (29 U.S.C. 666(j)).
Taking fully into consideration the factors mandated by Sections 17(a) and (j) of the Act, and weighing the evidence of record which establishes that but for this one instance, the Respondent [*35] throughout this extremely large construction site had fully complied with the requirement of this Standard by protecting hundreds of vertically protruding reinforcing steel rods, that only one employee was exposed to the hazard of impalement for an extremely brief period, and that the violation, once detected, was immediately corrected, and in view of Respondent's over all attentive attitude toward the safety of its employees, n6 it is concluded that a penalty of $500.00 for this Repeat Violation is consistent with the purposes of the Act and is reasonable.
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n6 The Respondent employed a Chief Safety Engineer with three assistants, two safety engineers and one "safety man", at this worksite.
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Citation for Non-Serious Violation - Item No. 3
The Secretary alleges in this Item of this Citation that, "oxygen cylinders and acetylene cylinders, in storage throughout the jobsite, were not separated by a minimum distance of twenty feet, or by a non-combustible barrier." (Exh. G-1 - Non-Serious Citation). The Standard [*36] allegedly violated, appearing at 29 C.F.R. 1910.252(a)(2)(iv)(c) provides as follows:
(c) Oxygen cylinders in storage shall be separated from fuel-gas cylinders or combustible materials (especially oil or grease), a minimum distance of 20 feet or by a noncombustible barrier at least 5 feet high having a fire-resistance rating of at least one-half hour.
The Respondent concedes that there were, on the day of the inspection, a number of oxygen and acetylene cylinders throughout the working areas of the jobsite which were not separated by either a distance of 20 feet or a noncombustible barrier, but denies that these cylinders were "in storage", arguing that these cylinders were positioned at work areas throughout the jobsite, and were therefore "in use," not "in storage" and therefore there was no violation of the cited Standard.
The Secretary's position essentially is that because the cylinders observed did not have regulators and hoses attached to them, they were "in storage" and consequently were in violation of the cited Standard. (See Exh. G-19).
The resolution of this controversy depends upon a definition of the term "in storage" as used in the Standard, which term [*37] is not defined in either the Act or Regulations.
Webster's New World Dictionary. Second coll. Ed. 1972, defines "storage" - as, "a place or space for storing goods." The term "store" is defined as "to put aside or accumulate, for use when needed; to put in a warehouse."
Black's Law Dictionary, Rev. 4th Ed. 1968 defines "storage" as "Safekeeping of goods in a warehouse or other depository."
Consistent with the above definitions it is reasonable to conclude that the term "in storage" as used in the cited Standard means cylinders which are put aside or accumulated at a depository or central location for safekeeping to be available for use when needed.
The facts here are not in dispute. The Respondent does maintain a depository or safekeeping area for oxygen and acetylene cylinders, among other gases. This storage area, used to store hundreds of cylinders, is in compliance with the cited Standard. Photographs showing this cylinder storage facility were admitted into evidence as Exhs. R-2-A thru R-2-I.
The cylinders observed by the Compliance Officers, outside of this storage area, did not have hoses or regulators attached to them, and were therefore classified by these [*38] officers as being "in storage."
The Secretary's position is not tenable because, the Standard cited does not define "in storage" to mean what his compliance officers construe it to mean. No mention whatever is made in this Standard of a cylinder being "in storage" when it is observed any place on a jobsite without a regulator or hose attached. If that is the Secretary's intended definition of the term "in storage," a properly promulgated amendment to this Standard must first be effected before such a definition would be binding upon employers.
The unrebutted evidence establishes that the cylinders observed during the inspection were positioned at various worksites at this construction site, where welding and burning operations are done on an intermittent basis. The Respondent's policy regarding these gas cylinders was that they were to be used as needed, but each night, as a safety precaution to prevent leaks, the hoses and regulators were removed. As the need for cylinders arose at any given worksite, the different craftsmen would go to Respondent's storage facility with a truck, pick up required cylinders and return any empty or unneeded cylinders which they had. [*39]
In order to assure that cylinders did not accumulate outside of the storage area, Respondent had a three phase program to collect and remove unneeded cylinders on a daily, bi-weekly and bimonthly general cleanup basis.
There is no evidence of record that this program of Respondent's was not in effect and operating on the day of the inspection. It is therefore concluded that the cylinders observed by the Compliance Officers were "in use" and not "in storage," and the Secretary has not established this violation as alleged.
At all times involved in this case, Respondent furnished employment to its employees at the worksite hereinbefore identified. The Act is applicable to such employment within the meaning of Section 4(a) thereof and the Commission has jurisdiction of the parties and the subject matter herein pursuant to the provisions of Section 10 thereof.
Based upon the foregoing findings and conclusions and pursuant to the provisions of Sections 10(c), 12(j), 17(a) and (j) of the Act, it is hereby ORDERED: that,
1. The Amended Citation for Repeat or Willful Violation Number 1 and the penalty proposed thereon are VACATED.
2. The Amended Citation for Repeat or Willful Violation [*40] Number 2 is modified to charge a Repeat Violation only, and as modified, is AFFIRMED. A penalty in the amount of $500.00 is assessed.
3. Item Number 3 of the Citation for Non-Serious Violation is VACATED.