Docket No. 3580

LEON MARRANO & SONS, INC.

OSHRC Docket No. 3580

Occupational Safety and Health Review Commission

April 22, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before us on Judge Robert P. Weil's report finding Respondent, inter alia, in serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq. ). Respondent had been cited for having violated 29 C.F.R. 1926.28(a) because employees were working at heights of about 100 feet and were not protected by tied-off safety belts. The judge affirmed the citation and assessed a penalty of $700.

Thereafter I directed review on the issue:

Whether 29 C.F.R. 1926.28(a), as amended in the Federal Register of December 16, 1972, should be declared unenforceable for having been amended substantially without resort to the rulemarking procedures set forth in section 6(b) of the Act.

We have recently resolved this precise issue in the negative. Eichleay Corp., Dkt. 2610, BNA 2 OSHC 1635, CCH E.S.H.G. para. 19,324 (February 20, 1975); Island Steel and Welding Ltd., Dkt. 2931 (April 21, 1975).

Having reviewed the record, we conclude that the judge's report should be adopted for the reasons he assigns as the decision of [*2] the Commission, and it is so ORDERED.

CONCURBY: CLEARY; MORAN

CONCUR:

CLEARY, COMMISSIONER, concurring: I agree with Commissioner Van Namee's disposition of the case, and add only that in any event the Commission lacks jurisdiction to review the rulemaking action of the Secretary of Labor, U.S. Steel (concurring opinion), Nos. 2975 & 4349 (November 14, 1974).

MORAN, CHAIRMAN, concurring: While I concur with my colleagues in affirming Judge Weil's disposition of this case, I do not agree that the modification of 29 C.F.R. § 1926.28(a) published in the Federal Register of December 16, 1972, is valid since the Secretary of Labor failed to adhere to the procedures in 29 U.S.C. § 655(b) for modifying standards.

29 C.F.R. § 1926.28(a) was initially promulgated on April 17, 1971, pursuant to section 107 of the Contract Work Hours and Safety Standards Act. 40 U.S.C. § 333. At that time, it was worded as follows:

The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions and where this part indicates the need for using such equipment to reduce the hazards to the employees. [*3] n1 (Emphasis added.)

As so worded, it was adopted by the Secretary of Labor on May 29, 1971, as an occupational safety and health standard pursuant to his authority under 29 U.S.C. § 655(a) n2 to adopt any Federal standard as an occupational safety and health standard for a period of two years from the effective date of the Act without regard to the procedural safeguards of the Administrative Procedure Act, 5 U.S.C. § 553. On December 16, 1972, the Secretary published a revision of the construction standards contained in Part 1926 of the Code of Federal Regulations. Administrative reasons were given as the purpose for the revision, and the failure to follow the rulemaking procedures provided in the Administrative Procedure Act was justified on the basis that no substantive changes were made in the standards contained therein. n3 The only change in section 1926.28(a) was the substitution of the word "or" for the word "and." The respondent was cited under this revised version as the result of an inspection conducted on June 13 and 14, 1973.

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n1 36 Fed. Reg. 7374 (1971).

n2 29 C.F.R. § 1910.12, 36 Fed. Reg. 10469 (1971). The standard, originally designated as 29 C.F.R. § 1518.28(a), was redesignated as 29 C.F.R. § 1926.28(a) on December 30, 1971. 36 Fed Reg. 25232 (1971).

n3 37 Fed. Reg. 27503 (1972).

[*4]

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I disagree with the Secretary's contention that the revision made no significant substantive change in the original standard. To establish a violation under the prior wording, proof of the following two things was required:

(1) exposure to a hazardous condition warranting the use of personal protective equipment, and

(2) failure to use this equipment when its use was required elsewhere in Part 1926 of the regulation.

With the revision, proof of either one provides sufficient evidence of a violation, and a violation can be established by simply showing a failure to require the wearing of appropriate personal protective equipment where there is employee exposure to a hazardous condition. The former version required not only proof of exposure to a hazardous condition, but also proof that use of specific item of protective equipment was prescribed in another section of Part 1926.

Thus the deletion of an element of proof constitutes a substantive change, not an administrative one. When the Secretary desires to make such a substantive change in a standard, he must provide notice of the [*5] contemplated change to the public and allow them to submit written objections thereto and to participate in a public hearing thereon. 5 U.S.C. § 553; 29 U.S.C. § 655(b). Since those procedures were not followed, 29 C.F.R. § 1926.28(a) is invalid in its modified form because it was not properly promulgated. See Florida Peach Growers Association, Inc. v. United States Department of Labor, 489 F.2d 120 (5th Cir. 1974); Secretary v. Oberhelman-Ritter Foundry, Inc., 3 OSAHRC 1212 (1973).

Since the modified version of the standard is invalid, it does not repeal the original standard. See 1A Sutherland Statutory Construction § 23.24 (4th ed. C. Sands reg. 1972). Thus in this case, as in other cases before us, we must decide whether an alleged violation can be affirmed under the original standard.

The evidence in this case does establish that respondent was in violation of the original standard. The compliance officer testified that he observed an employee of respondent walk to the edge of the tenth floor of a building under construction, grasp the end of a form which had been positioned for the pouring of concrete, and swing himself around to the other side of the form. [*6] When he made this swing, the employee's feet and part of his body were completely over the edge of the tenth floor and he was not wearing a safety belt.

A violation of 29 C.F.R. § 1926.28(a) with respect to safety belts is established when a standard in Part 1926 indicates the need for using this equipment and when failure to use the equipment exposes an employee to hazardous conditions. The standard which appears at 29 C.F.R. § 1926.105(a) has been interpreted to direct the use of safety belts when work is performed at heights of more than 25 feet. Brennan v. Southern Contractors Service, 492 F.2d 498 (5th Cir. 1974). As the employee in this case was working on the tenth floor, the evidence establishes that he was working at a height greater than 25 feet. The fact that he was at the very edge of the tenth floor and, in fact over the edge, establishes that his failure to use a safety belt exposed him to a hazardous condition. Accordingly, I would affirm the citation.

[The Judge's decision referred to herein follows]

WEIL, JUDGE: This is a proceeding by the Secretary of Labor under the Occupational Safety and Health Act, 29 USC Sections 651-78, for a final order [*7] affirming two citations and the penalties proposed in respect thereof.

Respondent was the subcontractor for the concrete work on a group of 19-story apartment buildings on Roosevelt (formerly "Welfare") Island in the East River.

Complainant inspected the job on June 13-14, 1973, and on June 20, 1973, he issued two citations and notices of proposed penalties. In a citation for serious violation he alleged that respondent had failed to safeguard employees working on the tenth and eleventh floors of building under construction by not requiring them to wear safety belts and lanyards, in violation of 29 USC Section 654(a)(2) and 29 CFR 1926.28(a), for which he proposed a penalty of $700; and in a citation for nonserious violation he alleged that respondent had failed to protect ten employees working on the ninth floor by not requiring them to wear hard hats, in violation of Section 654(a)(2) this time implemented by 29 CFR Section 1926.100(a), with a proposed penalty of $100. Respondent filed due notice of contest and issue was thereupon drawn on complaint and answer.

The threshold question is to be examined with particular care in view of its technical nature and the [*8] circumstance of respondent's pro se appearance. Is Section 28(a) of the construction standard merely a general, introductory provision, preempted as to safety belts and lifelines by Section 104, so that, under 29 USC Section 658(a) and 29 CFR Sections 1903.14(b) and 1910.5(c), the citation here is invalid and must be dismissed? No clear decisional trend can be discerned on this point. See, e.g., the following cases which seem to stand for the proposition that Section 28(a) can be cited alone, unaccompanied by reference to Section 104, or by reference to Section 105 which pertains to safety nets: Miller & Long, Inc., No. 320, final order August 3, 1972; Chicago Bridge & Iron Co., No. 762, review ordered May 9, 1973; E.W. Howell & Co., No. 1382, and J.B. Eurell Co., No. 1396, final orders July 5, 1973; Continental Heller Corp., No. 1598, final order July 20, 1973; General Bronze Architectural Products, No. 2031, review order Sept. 10, 1973; Dic-Underhill, No. 2232, review order Nov. 9, 1973; and see Commissioner Van Namee's concurring opinion, last paragraph, in Industrial Steel Erectors, Inc., No. 703, Jan. 10, 1974. Contra: Farrow Co., Inc., [*9] No. 572, final order Sept. 22, 1972; Carpenter Rigging & Contracting Co., No. 1399, review ordered April 9, 1973; Edward M. Ream, Inc., No. 1504, review ordered April 24, 1973; Vaughan Roofing Co., No. 2183, review ordered Aug. 15, 1973; Bethlehem Steel Corp., No. 2384, review ordered Nov. 13, 1973; Kaywood Construction Co., No. 3068, review ordered Dec. 28, 1973; United Engineer & Constructors, No. 2414, review ordered Feb. 10, 1974. In this posture I hold as follows.

As between Sections 28 and 104 it ought not be said that one is the general and the other is the specific. Section 28 imposes the duty and Section 104 gives the specifications of the safety belts and lifelines which are to be used in those situations where Section 28 requires that they be used. It might have been better pleading if complainant had alleged that the safety belts and lifelines to be supplied and worn were those specified in Section 104 but the lack of that refinement, especially in view of the cross reference contained in Section 28(b), did not render the complaint fatally deficient.

Nor, as it worked out, did the rather broad phraseology of Section 28(a) failed to [*10] apprise respondent of the issue which it was being called upon to meet. The compliance officer found perimeter guards on all floors except the tenth, where respondent was pouring concrete with the aid of "flying forms," with which forms, the compliance office thought, perimeter guards could not be used. The sole issue litigated under the citation for serious violation was the quite specific one as to whether that portion of this group of buildings, solely in the area in which flying forms were in use and during the period of such use, was an area in which safety belts and lifelines were needed to protect the men against the hazard of a fall which would probably prove fatal. Respondent was informed of complainant's position no later than first inspection, on June 13, 1973, and it was emphasized in the course of the second inspection, on June 14, 1973. As will appear more in detail below the case was tried on the validity of respondent's theory that safety belts and lifelines were not required by Section 28 because (1) the use of flying forms did not require anyone to work at or adjacent to the perimeter of the building; and (2) the use of safety belts and lifelines would have increased [*11] rather than decreased the hazard. With the issue thus clearly framed by the standard and by the pleadings, respondent received a fair hearing.

The use of "flying forms" is a new technique in the construction of concrete buildings. Plywood forms about 60 feet long are supported at five-foot intervals by longitudinal steel trusses consisting of an upper and a lower member, with a web made out of cross braces. In the first stage of positioning for use, the form would be "flown" by a crane up to approximately the desired height. The form would then be rolled into more exact location; and finally would be jacked into precise alignment. Then, when the concrete was poured and partically hardened, the form would be jacked down, away from the concrete, pushed out, and then "flown" to the next location by the crane (clt's. Ex. 1). By climbing between the cross braces a man could get from one side of the form to another. Another way would be to walk out to the extreme perimeter of the building and swing out through thin air from one side of the form to the other.

On June 13, 1973, in the course of the inspection the compliance officer saw Davis, respondent's stripping [*12] foreman, do just this in the course of the final operation in which the form was being jacked into place. He wore no safety belt and was not tied to any lifeline. Gargiula, the management representative who accompanied the compliance officer on the inspection, said that respondent had safety belts and lifelines on the job; but there were none on the tenth floor, where Davis was working, which he could point out to the compliance officer. And on June 14, 1973, the compliance officer saw several more of respondent's men without safety belts and lifelines swing out over the edge of the building around a form.

As indicated above, respondent offers several defense. It says that neither Davis nor the two other men just mentioned nor anyone else in respondent's employ was obliged to do so; that each could have gotten from one side of the form to the other by crawling through the cross bracing; and that the use of a lifeline by a man crawling through the cross bracing would increase rather than decrease the hazard of the work. But Mittleman, respondent's vice-president in charge of safety matters, who gave this opinion in his testimony was rather vague when it came down to giving his [*13] reasons:

Using a safety belt underneath the flying forms where you have the struts that Mr. Marrano briefly described would be a dangerous situation, because I think they would become entrapped and even entangled in the safety line itself . . . it would be almost like needle point if they were attached to the belt themselves, and attached to one member, and they began to thread their way through, and if they went in and out of it, they would be knitted into it, tangled into the steel trusses which the flying forms are composed of. On top, where there is no vertical obstruction and no columns poured yet and they work near the edge, I could see need for it there, and I saw use of it there, but working with safety slings and tangles in the flying form trusses, I think would be a dangerous situation.

Moving on to his argument that the work did not oblige the men to swing out over the edge of the building, Mittleman said:

. . . the building is about 60 feet wide, and these flying forms are tremendous in length. There are trusses every five feet apart, roughly, the steel which comprises the diagonal members of the truss. There are some 12 or 14 openings for the men. If [*14] Mr. Davis chose to go on the outside, it was his own particular choice to do so at that particular moment. There are 10, 12 openings. He could have gone from one part of the truss to the other part of a truss.

By clear implication respondent conceded that it considered unsafe the practice of swinging over the edge of the building around the form. Thus Mittleman continued:

I never observed men going -- if I observed men going around as Mr. Davis did at the end of the form, I certainly would have stopped the man and spoken to him. I have never seen that particular practice performed on the job. I have, however, see dozens and dozens and dozens of men walking through the trusses as I just described which is the normal operation.

Yet no such safety restrictions were ever given to any man working on the level below the form, as were Davis on the thirteenth and the other two men observed on the fourteenth.

Zidek, a carpenter of 27 years' experience, shop steward of Local 135 of the Carpenters Union and, in safety matters, the man in direct contact for respondent with its employees on the Welfare Island job, had another theory to support respondent's proposition that safety [*15] belts and lifelines would add to, rather than detract from, the job hazards. The only place to which to "tie off" would be to one of the trusses which support the forms and if a man was tied to the form when it was flown out he would be dangling in the air. But Zidek conceded that the form would be in place for three or four days and that the gang working in the vicinity of the form would of course be notified when it was to be moved. Zidek conceded that a safety belt and lifeline would afford protection to a man who had occasion to go to the edge of the building while the form was in place.

The compliance officer, with many years of experience as a safety supervisor in the construction industry and with about 250 construction job inspections for OSHA to his credit, testified that the use of safety belts and lifelines would decrease rather than increase the hazard here in question.

Clearly respondent did not bring itself within the narrow limits of the affirmative defense of "safer than" carefully delineated the Commission in Industrial Steel Erectors, Inc., supra.

Equally clearly, respondent did not make out the "unforseeable conduct" defense since, as it conceded, [*16] it never instructed the men working on the level on which the flying forms rested that they should wear safety belts and lifelines. And since Davis, the stripping foreman, was himself one of the violators, and since Gargiula, the management representative was accompanied by the compliance officer on the inspection saw both violations, respondent is chargeable with the scienter which, by definition, is part of a serious violation. 29 USC Section 666(j).

Accordingly the citation for serious violation is affirmed.

III

The penalty proposed by the Secretary in respect of the serious violation is likewise affirmed. A fall from the tenth story would have meant death; yet despite the direct warning of the compliance officer on June 13th with respect to the stripping foreman, respondent permitted the same violation in the case of at least two men seen by the Compliance officer on the fourteenth. To be sure, complainant charged that the serious violation occurred on the tenth and eleventh floors and while he proved violations on two separate days, they seem both to have occurred on the tenth floor. But had complainant exercised his discretion to charge a violation on the fourteenth [*17] under 29 USC Section 666(a), it might well have been deemed that the evidence in this record would have made out a prima facie case thereunder.

A wing of the building adjacent to that referred to above was designed to go up only nine stories. On the ninth floor the compliance officer observed ten employees of respondent spreading wet mortar, which they obtained from a large receptacle located approximately in the center of the floor. The wet mortar was brought up to them and poured into the tank from a large iron bucket of four cubic yards capacity. The bucket was swung in over the floor at a height of above ten feet, and then lowered and emptied through an aperture in the bottom into the tank. The operation was guided by a lookout man who stood at the edge of the building and signalled the crane operator. The compliance officer was of opinion that there was a danger that the men could be accidently struck by the bucket swinging back and forth over the area in which they were working. None of the men was wearing a hard hat. Garigiula, respondent's representative, disputed the opinion of the compliance officer that a danger was present; but he directed all [*18] the men to put on hard hats immediately and wear them doing the operation. Thus, according to the compliance officer, this violation was abated on the spot; and a penalty of $100 was proposed.

Respondent produced no evidence on this item, relying solely on the argument that with the lookout man signalling the crane operator so that the bucket was brought in well over the heads of the men to a point directly over the tank, no hazard existed.

The standard provides that employees working in areas where there is "a possible danger of head injury from impact" shall wear hard hats. Section 1926.100(a). Complainant made out a prima facie case under that standard; and the citation for non-serious violation is affirmed.

As above shown, the probability that there would be an accident was not great; but if an accident occurred the injury to a man struck on the head by a steel bucket six feet high and capable of carrying four cubic yards of concrete could easily require medical care. On the other hand, abatement was prompt once the matter was brought to respondent's attention. The proposed penalty is affirmed.