Docket No. 3010

UNITED STATES STEEL CORPORATION, d/b/a AMERICAN BRIDGE

OSHRC Docket No. 3010

Occupational Safety and Health Review Commission

July 29, 1975

[*1]

Before MORAN, Chairman; and CLEARY, Commissioner

OPINION:

BY THE COMMISSION: A decision of Review Commission Judge Sidney J. Goldstein, dated January 31, 1974, has been before the 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 the case at this time.

Chairman Moran would vacate the citation on the basis that it was not issued with reasonable promptness as required by 29 U.S.C. § 658(a). His views on this issue are set forth in his dissenting opinions in Secretary v. Plastering, Inc., 8 OSAHRC 150 (1974), and Secretary v. Advance Air Conditioning, Inc., 7 OSAHRC 736 (1974).

Commissioner Cleary's position on the reasonable promptness issue is set forth in the attached opinion. Additionally, he agrees with the Judge's resolution of the remaining issues and finds that the Judge correctly affirmed the citation.

Accordingly, the decision of the Judge is affirmed by an equally divided Commission. This decision has no precedential weight. Secretary v. Garcia Concrete, Inc., 18 [*2] OSAHRC 184 (1975).

CLEARY, COMMISSIONER: In Brennan v. Chicago Bridge & Iron Co. & O.S.H.R.C., 514 F.2d 1082 (7th Cir. 1975), the court considered the meaning of the term "reasonable promptness" as used in section 9(a) of the Act. The court expressly rejected the rationale of a divided Commission that the legislative history of the Act contemplated the issuance of a citation within 72 hours from the time the Secretary formed a belief that a eviolation had occurred. The court continued, however, and noted that:

"We do not hold, however, that the Commission is powerless to fashion a rule giving the 'reasonable promptness' language some effect. [Footnote reference omitted.] In other words we find it unnecessary to decide, as the Secretary argues here, that the phrase is merely hortatory, precatory, or directive.

514 F.2d at 1085.

The reasonable promptness language of section 9(a) is obviously for the protection of employees since prompt abatement of hazards can be best achieved by issuance of citations. Chicago Bridge & Iron Co., No. 744 (January 24, 1974) (Cleary, Commissioner, dissenting). The Commission's experience since its decision in Chicago Bridge [*3] & Iron strongly suggests that no practical remedial order can be fashioned against the Secretary for his alleged dilatoriness without such an order resulting in diminished protection for employees. Abatement of a hazard is never fostered by vacating a valid citation. Chicago Bridge & Iron Co., No. 744 (January 24, 1974) (Cleary, Commissioner, dissenting) slip op. at 13. Even if the citation were to be issued with some period of delay, the resulting enforcement is far more desirous than no enforcement at all. The predominant, if not exclusive, protection for the employer from the possibility of delay is contained in section 9(c) of the Act, not in section 9(a).

In any event, careful review of the record reveals no evidence from which it could be concluded that the approximately 8-day delay in issuing the citation was unreasonable or that respondent was in any way prejudiced by it. Indeed, the issue of "reasonable promptness" was raised in this case for the first time by respondent as an amendment to its petition for discretionary review.

[The Judge's decision referred to herein follows]

GOLDSTEIN, JUDGE: This matter arises under Section 10(c) of the Occupational Safety [*4] and Health Act of 1970, and involves the application of Section 5(a)(2) of this statute and regulations relating to construction safety nets promulgated thereunder.

After an inspection of a work site of the United States Steel Corporation, a Corporation, doing business as American Bridge (sometimes hereinafter referred to as the Respondent of the Company) the Occupational Safety and Health Administration issued it a Citation for Serious Violation, together with a proposed penalty of $900. The Company filed a Notice of Contest to the Citation. Thereupon the Secretary of Labor filed his Complaint with this Commission to affirm the contested Citation and proposed penalty, and in response the Company submitted an Answer. Upon these pleadings, a hearing was held in Chicago, Illinois, on September 5 and 6, 1973.

The alleged infraction is described in the Citation in the following terms:

Failure to install and maintain safety nets hung with sufficient clearance to prevent contacts with the surface or structure below wherever the potential fall distance exceeds two stories or 25 feet on buildings or structures not adaptable to temporary floors, catch platforms, scaffords, [*5] ladders, safety lines or safety belts. For example: No Safety nets, catch platforms or scaffold used for employees working erecting steel on the 109th floor and the clear fall distance was in excess of 25 feet to the next temporary floor on the 106th floor.

in violation of Regulations 29 CFR 750(b)(1)(ii) which provides as follows:

On buildings or structures not adaptable to temporary floors, and where scaffolds are not used, safety nets shall be installed and maintained whenever the potential fall distance exceeds two stories of 25 feet. The nets shall be hung with sufficient clearances to prevent contacts with the surface of structures below.

And in violation of 29 CFR 1926.105(a) which states:

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, scaffolds, catch platforms, temporary floors, safety lines, or safety belts are impractical.

Summarized, the record in this case discloses that the Respondent is engaged in the construction of skeleton steel tiered buildings, and in April, 1973, and for some months prior thereto, was occupied in the latter stages of the erection of the Sears [*6] Tower in Chicago. On Saturday, April 14, 1973, the Respondent was placing 75 feet long girders on the 109th floor of this structure. Its derrick and other equipment were located on the 106th floor, with open space of approximately 38 feet between these two floors.

As detailed in the testimony, the Respondent's derrick lifted the steel girders from the 106th floor to the 109th floor where they were bolted in place by two ironworkers, known as connectors. The connectors then walked from their positions located at both ends of the 75 foot long, 18 inch wide beam to its center where they removed the sling which was used in the lifting process. Two of six beams were placed without mishap, but when the connectors walked to the center of the third beam, one of them lost his balance and fell approximately 38 feet to his death.

A subsequent investigation of the accident by Compliance Officers of the Occupational Safety and Health Administration revealed that there were no safety nets beneath the beams although a prospective fall would exceed 25 feet. One of the Officers was of the opinion safety nets could have been installed and suggested two methods whereby the Respondent [*7] could have been in compliance with the safety net standards. This Officer was also of the opinion that the structure was not adaptable to temporary floors, and he noted that scaffolds were not used. Furthermore he determined that the use of ladders, scaffolds, catch platforms, temporary floors, safety lines or safety belts was impractical.

The project manager and the superintendent of construction for the Respondent both agreed that the area was not adaptable to temporary floors and that scaffolding was not utilized. They were also of the view that the use of ladders, scaffolds, catch platforms, temporary floors, safety lines or safety belts were impractical for the task at hand.

An expert in the field called as a witness by the Company testified that he would have put up a hand rail on the girder, and this safety line would have been a practical approach. However, he added that "It's not likely that it would be done on erecting this building." Two safety people employed by the Company agreed with the expert, but did not state why such a safety device was not in use.

In general the Respondent's witnesses testified that they were aware of the safety problem but, after much discussion, [*8] concluded that there would be less danger if the safety nets were not provided. The reason advanced was that the safety net workers would be involved in some danger in the placement of the safety equipment. Although it would have been awkward to work with safety nets, Respondent's witnesses did not deny that it was possible to do so. They also did not consider it unsafe to a connector to walk unprotected along an 18 inch wide beam.

The record further discloses that the accident occurred on a Saturday when the safety net crew was not on duty. In prior discussions relating to the safety or the feasibility of safety nets, officials of the Respondent did not consult with the supervisor of the safety net crew in an attempt to ascertain if their installation could be made without danger to the crew. Nor did they check with manufacturers of safety nets or experts in the field to seek advice in the safe erection or placement of this equipment on the special project.

Based upon the foregoing status of the record, this case presents a situation wherein the Respondent's project managers, with full knowledge of the regulations relating to safety nets and cognizant of the special [*9] dangers involved in the construction operation, decided to bypass the standards and permit its connectors to work without any protection from a fall of approximately 38 feet. They defend this action on the ground that a thorough review of the circumstances indicated that fewer individuals would be exposed to a hazardous operation for a shorter period of time if no safety nets were provided. It was their conclusion that the individuals involved in safety net installation would be exposed to more danger than the connectors walking on a presumably safe 18 inch wide girder. Thus the Respondent's supervisors arrogated to themselves the responsibility of deciding who was to work under extremely hazardous conditions and who was to work in comparative safety. The Occupational Safety and Health Act of 1970 does not authorize an employer to make this choice, for the law was designed to assure safe and healthful working conditions for all working people. Thus Section 2(b) of the statute declares that the Congressional purpose underlying the enactment was "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions. . . ."

From the foregoing [*10] it is concluded that when the Company's management and engineering personnel permitted the connectors to work without safety nets where the possible fall was over 25 feet; where the building was not adaptable to temporary floors and scaffolds were not used; and where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines or safety belts was impractical, there was a resultant violation of the standards in question.

The position of the Respondent is that, as applied to the workplace in question, the standard embodied in 29 C.F.R. 1926.750(b)(1)(ii) is arbitrary and capricious and therefore invalid because to require the employer to install safety nets would be impractical,

. . . but would also be detrimental to the employer's efforts to create a safe workplace since the installation of such nets would create a greater hazard to the employees involved in such installation than would the absence of such nets.

The identical argument was advanced by an employer in the case of Secretary of Labor v. Jos. Bucheit and Sons Company, There also it was alleged that the Company was in violation of the safety net regulation. The [*11] Employer defended its posture by testimony to the effect that the cost of placing a net under the bridge would be at least $5,000; that the cost of providing a temporary floor would be $20,000; that a safety net would interfere with the passage of trains beneath the bridge; that the safety net was not practicable; and that it would be dangerous to erect a safety net.

On this specific point in issue, the Commission let stand a decision wherein Judge Patton held that:

Similarly the defense that a greater danger would be presented to employees in erecting the nets than to employees who work without the nets is a question of the wisdom of the standard and addresses itself to the Secretary of Labor and not to me.

The Respondent also argues that it was not in violation of the standards because it was following the well-accepted industry practice in performing the steel erection in question. A study of the Act fails to reveal any exception to the compliance with standards promulgated under the Act for this reason, and the Respondent fails to cite any authority for this conclusion in its belief. If an employer finds that the compliance with a standard would be inimical to safety or is [*12] onerous for any reason, the statute provides for a procedure whereby a variance could be sought by a hearing before the Department of Labor.

In its brief the Respondent also argues that the Regulation embodied in 29 C.F.R. 1926.750(b)(1)(ii) is not a valid occupational safety and health standard because it is impermissibly vague. No mention of the problem of vagueness is made in the Respondent's Notice of Contest, Answer, or other documents filed in this case. In addition there is nothing in the record to establish that any of Respondent's management people did not understand the nature of the Citation or what it required of them. In original conversations in connection with the inspection tour, there appears no complaint regarding inability to comply with either of the standards because they were too vague. At the hearing also not a single witness for the Respondent testified that he could not understand the regulations or their implications. On the contrary the testimony was to the effect that the company engineering and safety staff were well aware of the requirements of the standards and spent considerable time in attempting to solve the safety problem involved. [*13]

It may be added in passing that many cases have been decided by this Commission in connection with Citations under the two standards involved, and no Citation has been vacated because the regulations were considered too vague to be enforceable. A U.S. Circuit Court of Appeals has taken a similar view. In the very recent case of Secretary of Labor v. OSHRC and J. W. Bounds (Pearl Steel Erection Company), United States Court of Appeals, Fifth Circuit, No. 73-1558, Summary Calendar, dated December 11, 1973, the Court upheld a decision of the Commission interpreting one of the two regulations involved here.

The next argument of the Respondent is that the Complainant failed to prove a violation of 29 C.F.R. 1926.105(a) because the Secretary failed to prove that the use ladders, scaffolds, catch platforms, temporary floors, safety lines and safety belts are impractical, and that the Secretary offered no evidence relating to the practicality or impracticality of the alternative safety devices.

In fact, however, the Compliance Officer testified that the alternatives to a safety net were impractical. Furthermore, the Respondent's construction engineer and its superintendent of [*14] construction both offered testimony to the effect the situation was not adoptable to temporary floors and scaffolds were not used. They were also of the opinion that the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts was impractical. One expert suggested a handrail type of safety line but added that it was not likely that it would be done on erecting this building. Two safety people employed by the Company concurred in this opinion but offered no reason why the method was not employed. In view of the Company's excellent safety record, it would appear that the Respondent would not expose its connectors to peril if it considered any of the alternatives practical.

Finally, if there is a variance in the testimony on this point offered by the Respondent's witnesses, I am placing more reliance upon the views of those who were responsible for the day to day operations on the job, who appeared at the job site on an almost daily basis, who watched the progress of the building from their office nearby; and who were thus in the best position to decide that alternatives to the safety net were not practical.

There remains the matter [*15] of the proposed penalty. It is noted that there was no special objection to the size of the proposed penalty, and it appears that the Compliance Officer took into consideration the various statutory factors in the determination. The suggested penalty appears reasonable in view of the facts adduced at the hearing, and it is affirmed.

On the basis of the foregoing record in this case, I find (1) That the Respondent failed to install and maintain safety nets at the building site under consideration although the potential fall distance exceeded 25 feet and the building was not adaptable to temporary floors and scaffolds were not used;

(2) That the respondent failed to provide safety nets at the building site under consideration although the workplace was more than 25 feet above the surface and although the use of ladders, scaffolds, catch platforms, temporary floors, safety lines or safety belts was impractical.

It is also concluded that at all times mentioned herein the Respondent was an employer within the meaning of Section 3 of the Occupational Safety and Health Act of 1970, and that the Occupational Safety and Health Review Commission has jurisdiction over the parties and subject [*16] matter.

Based upon the foregoing findings of fact and conclusions of law, it is hereby ordered that the Citation dated April 24, 1973, as amended May 8, 1973, and the proposed penalty therefor, be AFFIRMED.