STEEL ERECTORS, INC.

OSHRC Docket No. 5482

Occupational Safety and Health Review Commission

September 23, 1975

[*1]

Before BARNAKO, Chairman: MORAN and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, COMMISSIONER: A July 25, 1974, decision of Review Commission Judge Charles K. Chaplin is before this Commission for review pursuant to 29 U.S.C. 661(i). That decision vacated a single charge which alleged that respondent had violated 29 U.S.C. 654(a)(2) by failing to comply with occupational safety standards set forth at 29 C.F.R. 1925.105(a) and 1926.28(a). n1

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n1 Because of our disposition of this case we need not reach the issue of the propriety of the amendment allowed at the hearing changing the charge from a nonserious to a serious violation.

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The Judge correctly held the evidence insufficient to establish a violation of section 1926.105(a) n2 because the complainant failed to prove that the employees involved were working at heights in excess of 25 feet above subjacent ground level. At issue is whether the Judge erred in vacating the portion of the charge alleging a violation of section 1926.28(a) which requires the wearing [*2] of personal protective equipment "in all operations where there is an exposure to hazardous conditions." We hold that he did not because the complainant's case at trial was not based on the respondent's failure to comply with that standard.

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n2 This section provides: "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 is impractical."

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Throughout the proceedings complainant has maintained that respondent's employees were exposed to the hazard of falling approximately 26 feet. n3 The case was tried on the theory of a violation of 1926.105(a). n4 Having failed to meet his burden in this regard, complainant would now have us find respondent in violation of a standard for which it was charged but never tried. This we will not do.

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n3 Indeed, such was his description of the alleged violation for which respondent was cited:

"The employer did not require the wearing and use of appropriate personal protective equipment (safety belts and lifelines or other effective means) or provide safety nets below the work place (on top of warehouse roof -- near east end) more than 25 feet above the ground where employees were exposed to the hazard of falling."

n4 At no point in the hearing was evidence presented to indicate the existence of a hazardous condition other than that described in the pleadings.

[*3]

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The burden of proof on all elements of a violation rests with the complainant. Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Company, 511 F2d 1139 (9th Cir., 1975). The mere allegation of a violation, without supporting evidence having been brought forth at a hearing on the merits, is insufficient to establish such a violation.

Complainant had an opportunity to pursue his appellate theory at trial, but he failed to do so. Respondent cannot be found in violation on a theory which was not tried and against which it had no opportunity to defend.

Having examined the record, we find no prejudicial error therein. Accordingly, we affirm the Judge's disposition of this matter.

DISSENTBY: CLEARY

DISSENT:

CLEARY, COMMISSIONER: I respectfully dissent from the action of my colleagues because in my view it is unsupported by the record.

The respondent is a Pennsylvania corporation engaged in steel erection and construction. Respondent's employees were welding bar joists to roof trusses in the construction of a warehouse in Mechanicsburg, Pennsylvania. The employees were wearing safety belts. The belts, [*4] however, were useless because they were not tied-off or attached to any device to prevent falling. n5 No ladders, catch platforms, scaffolds or safety lines were used. While straddling trusses, respondent's employees spot-welded joists. After each spot-weld they would slide along the truss to the next joist.

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n5 Hoffman Constr. Co., No. 644 (January 31, 1975).

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An employee of the general contractor at this worksite died after he fell through a hole in the same roof on which respondent's employees were working. As the result of an inspection of the worksite, a citation was issued to respondent alleging a violation of section 5(a)(2) for failure to comply with the occupational safety and health standards at 29 CFR 1926.28(a) and 1926.105(a). These sections read 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 hozardous conditions or where [*5] this part indicates the need for using such equipment to reduce the hazards to the employees.

1926.105 Safety nets.

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

The citation cited the above two standards, but also described the alleged violations as follows:

Standard, regulation or

section of the Act

Description of alleged

allegedly violated

violation

29 C.F.R. 1926.105(a)

The employer did not require the wearing and

as adopted by 29 C.F.R.

use of appropriate personal protective equip-

1910.12 and 29 C.F.R.

ment (safety belts and lifelines or other

1926.28 as adopted by

effective means) or provide safety nets below the

29 C.F.R. 1910.12

work place (on top of warehouse roof -- near

east end) more than 25 feet above the ground

where employees were exposed to the hazard of

falling.

At the hearing counsel for the Secretary of Labor framed the issues as follows:

MR. SOLTAN: This concerns, as you have noted, a citation . . . for failure to provide . . . employees [*6] with the personal protective equipment or nets, alternative safety nets. The respondent failed to provide this equipment. The complainant intends to prove that this failure was of a continuing nature and that the use of personal protective equipment and safety nets was feasible . . .

The Judge dismissed the 1926.105(a) portion of the citation for failure of proof that respondent's employees were more than 25 feet above ground. The Secretary takes no exception to this ruling, but urges that the citation be affirmed for the employer's failure to comply with section 1926.28(a).

The majority, however, does not consider the point. It holds that: "[t]hroughout the proceedings complainant has maintained that respondent's employees were exposed to the hazard of falling approximately 26 feet;" and that "[a]t no point in the hearing was evidence presented to indicate the existence of a hazardous condition other than that described in the pleadings." Thus, the majority in effect holds that the case was not tried on the alternative theory that respondent's employees were exposed to the hazard of falling from this roof contrary to section 1926.28 (a), as opposed to the hazard [*7] of falling approximately 26 feet, contrary to section 1926.105(a).

This holding is unsupported by the record.

Clearly, the issue was raised in the first instance by the citation's allegation of non-compliance with 1926.28(a). Moreover, the citation's reference to work at more than 25 feet above the ground level, while relevant to the 1926.105(a) theory, is simply not relevant to the 1926.28(a) theory. The latter standard does not speak of a particular height. Hence, the 1926.28(a) claim must be considered without reference to the height allegation. In addition, the citation did allege, if awkwardly, that a fall from the warehouse roof was a hazard. If it had not, the 1926.28(a) allegation would be surplusage.

The majority's construction of the citation is unduly narrow.

The rule [that administrative pleadings are very liberally construed] has particular pertinence here, for citations under the 1970 Act are drafted by non-legal personnel, acting with necessary dispatch. Enforcement of the Act would be crippled if the Secretary were inflexibly held to a narrow construction of citations issued by his inspectors.

National Realty & Constr. Co. v. O.S.H.R.C., [*8] 489 F.2d 1257, 1264 (D.C. Cir. 1973).

At no time before Judge Chaplin or before us did the Secretary abandon the 1926.28(a) allegation. Indeed he asserted proof thereof in his proposed findings of fact and conclusions of law submitted to Judge Chaplin.

Also, Judge Chaplin expressly dealt with the merits of the 1926.28(a) theory after having found a failure of proof of the 1926.105(a) allegations. Certainly the respondent considered the point in issue. Note the intensity of its attack on the "did not require" language of the citation (see e.g., Tr. 24-25, 34, 35, 74-76) which is plainly relevant to the 1926.28(a) allegation. Moreover, the exhibits, the testimony, and the evidence of the fatal fall that has been described show that the hazard of falling from the roof, as well as the hazard of falling 26 feet, was vigorously tried.

In federal practice, which has pertinence here because the Federal Rules of Civil Procedure are frequently applicable to our proceedings under Commission Rule 2(b), any question which has been presented to a court for a ruling and not thereafter waived or withdrawn is preserved for appellate review. United States v. Hayashi, 282 [*9] F.2d 599, 601 (9th Cir. 1960). But a point is not considered abandoned if it is fairly put in issue by the pleadings even if not stressed in the course of proof. Maxwell v. United States, 334 F.2d 181, 184 (5th Cir. 1964); De Laval Turbine, Inc. v. West India Industries, Inc., 502 F.2d 259, 271 (3d Cir. 1974). Abandonment is not lightly inferred. Cf. Newburgh v. Florsheim Shoe Co., 200 F. Supp. 599, 604 (D. Mass. 1961).

Even if a shift in legal theory had occurred there is no resulting prejudice to respondent. Respondent was given adequate notice of the alleged underlying facts, i.e., that a fall from this warehouse roof is a hazard. The application of this principle is well established, both under Fed. R. Civ. P. 15(b), n6 Monod v. Futura, Inc., 415 F.2d 1170, 1174 (10th Cir. 1969), and section 5(b)(2) of the Administrative Procedure Act (5 U.S.C. 551 et seq.), n7 N.L.R.B. v. United Aircraft Corp., Hamilton Standard Div., 490 F.2d 1105, 1111-1112, 34 Ad.L.2d 121 (2d Cir. 1973). Respondent's unsupported claims of prejudice are insufficient. It does not even allege that it failed to produce evidence or that its litigation strategy was upset in any [*10] way. See Hodgson v. Colonnades, Inc., 472 F.2d 42, 47-48 (5th Cir. 1973). Instead, respondent only claims the "amendment" should not be allowed because there was insufficient evidence of hazardous conditions. This is a non sequitur.

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n6 The Federal Rules of Civil Procedure are applicable to our proceedings. See section 12(g) of the Act and Commission Rule 2(b).

n7 The Administrative Procedure Act is made applicable to our proceedings by section 10(b) of the Act.

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Because of its disposition, the majority does not reach Judge Chaplin's holding that 29 CFR 1926.28(a) cannot be cited by itself when employees are exposed to the hazard of falling less than 25 feet.

The Judge's decision preceded our dispositions in Hoffman Constr. Co., No. 644 (January 31, 1975), petition for review docketed, No. 75-1741, 9th Cir., March 27, 1975; Carpenter Rigging & Contracting Corp., No. 1399 (February 4, 1975); and Eichleay Corp., No. 2610 (February 20, 1975). These cases may be read as establishing [*11] that 1926.28(a) is a valid standard which may be relied upon without resort to other standards when hazardous conditions are present. Therefore, the Judge's decision on this point should be reversed.

On the merits, the 1926.28(a) allegations stand proved. Respondent did not require its employees to use appropriate personal safety equipment (safety belts and lifelines). Indeed, respondent condoned a practice known as "cooning." The employees would wrap their legs around steel supports, in the expectation that by intertwining their legs, they would be secure from falls. The employees were working at a height of about 26 feet, n8 and as plainly indicated by the exhibits, this height was considerable. A workman of another employer had died from a fall through this same roof. The compliance officer testified that even heights over five feet would necessitate safety belts. The respondent itself recognized the hazardous nature of its work by providing safety belts, and by approving the practice of "cooning" as a substitute safety measure.

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n8 As noted above, this height was not established with precision. The allegation that the height was 26 feet was based on statements in a fatal-accident report filed by the general contractor and on the height of prefabricated concrete exterior walls, which was about 26 to 30 feet. But, under 1926.28(a) the exact height need not be established, so long as it is established as in this case that falls from the roof would be hazardous.

[*12]

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[The Judge's decision referred to herein follows]

CHAPLIN, JUDGE: The above identified cause arose at a construction site in Mechanicsburg, Pennsylvania, where respondent was a subcontractor for the construction of a flat roof warehouse.

This proceeding is pursuant to section 659 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereafter the Act) wherein the respondent contested the jurisdiction, violation and penalty respecting a citation for nonserious violation dated November 5, 1973, alleging that respondent did, on October 9, 1973, expose its employees to a hazard by failing to require that they wear and use appropriate personal protective equipment or provide safety nets below a warehouse roof more than 25 feet above ground while erecting steel.

The alleged violation was described as follows:

Standard, regulation

Item

or section of the Act

number

allegedly violated

Description of alleged violation

1

29 C.F.R. 1926.105

The employer did not require the wearing and

(a) as adopted by

use of appropriate personal protective equip-

29 C.F.R. 1910.12

ment (safety belts and lifelines or other

and 29 C.F.R. 1926.

effective means) or provide

28 as adopted by

safety nets below the

29 C.F.R. 1910.12

work place (on top of warehouse roof -- near

east end) more than 25 feet above the ground

where employees were exposed to the hazard of

falling.

[*13]

A penalty of $70 was proposed.

The standards in issue provide:

29 C.F.R. 1926.105 Safety Nets

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

29 C.F.R. 1926.28

(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.

(b) Regulations governing the use, selection, and maintenance of personal protective and lifesaving equipment are described under Subpart E of this part.

During the trial the complainant moved to amend the citation and complaint to charge a serious violation which motion was granted and respondent took an exception to this ruling.

THE EVIDENCE

The parties stipulated that respondent is a Pennsylvania corporation, purchasing and receiving goods from other states; it had gross income in 1973 of $500,000; and had 45 employees during the year. [*14]

The complainant offered the testimony of Mr. Louis R. O'Matz, one of its compliance officers, who testified that in October 1973 he inspected a warehouse under construction where he observed respondent's employees welding roof trusses without using any personal protective gear and no safety net. However, at all times the employees were wearing safety belts. The surface below was concrete slab and ground that had not as yet been cemented over. Subsequent testimony was that although the men were wearing safety belts they were not tied off. The work area was the roof supports consisting of open steel girders or trusses with steel bar joist spacers. Respondent's employees were straddling the trusses to weld the joist to the truss and then slide along the truss to the next joint. Mr. O'Matz estimated that the bar joists were approximately 26 feet over the ground. He determined the height was approximately 26 feet because the general contractor sent in an accident report for an employee who fell, through a roof hole, 26 feet to his death. This was the extent of his knowledge and he did not measure the height. Subsequently, he related that he also knew that the prefabricated concrete [*15] exterior walls were also about 26 feet in height.

After presenting testimony regarding the penalty, the complainant rested whereupon respondent moved for a dismissal on the ground that it had not been established that the employees were working more than 25 feet above the ground. A ruling on this aspect of the motion was reserved.

DISCUSSION

The respondent's motion to dismiss must be granted because the complainant did not, by a preponderance of the evidence, establish that the respondent's employees were working more than 25 feet above the ground. While only the cited standard at Part 1926.105(a) speaks of a hazard where the workplace is more than 25 feet above another surface and the standard at Part 1926.28(a) requires safety belts where a need is indicated by Part 1926, a review of the subparts of Part 1926 does not disclose a safety belt requirement applicable to the work situation described herein. There is a requirement for safety belts in Concrete Construction and Masonry work and also in Power Transmission and Distribution work. Thus, the implication of 105(a) is that safety belts in the work situation here in issue are only required where the workplace [*16] is over 25 feet above another surface.

The Secretary's witness estimated the workplace to be approximately 26 feet above another surface where a previous accident from the warehouse roof under construction had been reported as a 26 foot fall. However, there was no evidence whether the workplace in the accident situation was the same workplace or over the same "other surface." He also indicated, as an afterthought when the accuracy of his approximation became apparent as an issue, that the fact that the sides of the warehouse were approximately 26 feet in height was a factor in his determination. However, such height does not establish the distance from the surface below to the point where respondent's employees were welding.

Since the citation and complaint set forth that the workplace was more than 25 feet above the ground and this is a requirement of the cited standard, the Secretary's case must fall for his failure to establish by any acceptable proof what the height of the workplace was.

Respondent's objection to the amendment of the citation is mooted by the foregoing.

FINDINGS OF FACT

1. Respondent had employees welding steel roof framing at some indeterminate [*17] distance above another surface.

2. While so employed the workmen were wearing safety belts but they were not tied off to prevent a sustained fall.

CONCLUSIONS OF LAW

1. Respondent is, and at all times material herein was, an employer engaged in a business affecting commerce and the Review Commission has jurisdiction over the parties and the issue.

2. Complainant has not sustained his burden of proof to establish noncompliance with 29 C.F.R. 1926.105(a) and 28 and thus the respondent is held not to be in violation of section 5(a)(2) of the Act.

ORDER

Upon the foregoing findings of fact and conclusions of law, and the entire record:

1. Respondent's motion to dismiss the complaint is granted; and

2. The citation and proposed penalty of November 5, 1973, are hereby vacated.

It is so ORDERED.