S & H RIGGERS & ERECTORS, INC.  

OSHRC Docket Nos. 76-1104; 76-1739

Occupational Safety and Health Review Commission

March 31, 1980

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Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor

Ira J. Smotherman, Jr., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

Respondent, S & H Riggers and Erectors, Inc., was issued two citations early in 1976 following the inspection of two construction sites in Atlanta, Georgia.   Both citations allege that respondent failed to comply with the standard at 29 C.F.R. §   1926.28(a) ("the standard") in that respondent's employees were not protected by safety belts, lanyards and lifelines from the hazard of falling from the edges of roofs of buildings under construction.   The citation at issue in Docket No. 76-1104, which concerns respondent's work at the World Congress Center, characterized the violation of the Act n1 as repeated and serious.   A penalty of $1,600 was proposed by the Secretary. The citation at issue in Docket No 76-1739, which concerns respondent's work at a bus maintenance facility, characterized the violation of the Act as serious.   A penalty of $600 was proposed.   Both citations were contested and the cases were docketed with the Commission [*2]   and consolidated for hearing before Administrative Law Judge James D. Burroughs.   At the hearing, Judge Burroughs permitted the Secretary to amend the citation in Docket No. 76-1104 to allege only a serious violation and to reduce the proposed penalty to $600.   The judge affirmed both citations and assessed penalties of $600 for the violation at the World Congress Center and $400 for the violation at the bus maintenance facility.   Respondent petitioned for review of the judge's decision.   The petition was granted and review was directed pursuant to the authority conferred by section 12(j) of the Act, 29 U.S.C. §   661(i).   We affirm the judge's decision.

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n1 The Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678.

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The following issues were raised by respondent:

(1) Whether the citations must be vacated or the evidence obtained during the inspections suppressed on the ground that respondent was denied the opportunity to be represented during the inspections;

(2) Whether the standard applies to the conditions [*3]   under which respondent's employees worked;

(3) Whether the conditions under which respondent's employees worked were "hazardous" within the meaning of the standard;

(4) Whether the use of safety belts by respondent's employees was proven to have been feasible and practical; and

(5) Whether the "greater hazard" defense has been established.

I

Two compliance officers arrived on the morning of February 24, 1976, to inspect the working conditions at the World Congress Center construction site. They requested a representative of the general contractor, Ira Hardin, to contact all subcontractors and convene a meeting of their representatives for an opening conference.   Hardin contacted all the subcontractors with employees working at the site, except for respondent and one other subcontractor. n2 The opening conference was held, and the inspection was nearly completed before respondent learned of it.

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n2 The record does not establish the reason for Hardin's failure to contact respondent.   However, compliance officer Cassell testified, on the basis of a conversation with Hardin, that Hardin apparently had not been aware that respondent was working at the construction site on the day of the inspection.

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Shortly before 3:30 p.m., the compliance officers observed two employees near the unguarded edge of a work platform at the roof level of the building.   The roof had not yet been installed and accordingly the platform had been erected to provide a temporary working surface.   The platform consisted of "a piece of Q plate" welded to the structural steel framework of the roof. The "Q plate" was composed of corrugated steel and had a rough uneven surface.   The platform was approximately eight feet wide, 60 feet above ground level, and 20 feet above a floor referred to as the "1052 level" which had a poured concrete surface.   There was a gap approximately one foot wide between the working platform and a steel beam which was part of the outside perimeter of the roof framework.   At the time the compliance officers observed the two employees, the compliance officers were standing on the 1052 level while the employees were guiding into position a precast concrete panel that was being lifted by a crane. n3 The employees were not wearing safety belts.

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n3 There is a conflict in the evidence as to whether the employees were leaning over the edge of the building while guiding the panel.   Judge Burroughs resolved this conflict by entering a finding that the employees were leaning over the edge. Because respondent has not taken exception to this finding and it is supported by evidence of record, we adopt the judge's finding.

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After taking photographs of the employees, see Exhibits C-1 and C-2, the compliance officers contacted them.   The employees identified respondent as their employer and stated that their foreman, Lester Samples, was on the ground.   One of the compliance officers remained with the employees to conduct an interview while the other descended to locate Samples.   Upon locating Samples, the compliance officer presented his credentials, stated that an inspection was in progress, and explained the working conditions of the men observed above.   The employees had finished work by this time and had left their work stations.   The compliance officer did not offer to take Samples to view the area where the employees had [*6]   been working.   Instead, Samples completed a routine form at the compliance officer's request, and the compliance officer held a closing conference for Samples at his request. n4

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n4 The closing conference for all subcontractors had been scheduled for the next day, but Samples requested the earlier conference because he was to be absent then.   The conference for the other subcontractors was held as scheduled.

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Samples had supervised the installation of hundreds of panels before the inspection was conducted.   He explained the procedure as follows.   Each panel was eight feet wide and twenty to thirty feet long.   A crane lifted each panel to its approximate position against the building, and the employees on the work platform manually guided and permanently welded the panels into place.   The top of each panel was less than two feet above the work platform when positioned by the crane and welded.   At the hearing Samples admitted that he was aware at the time of the inspection that the employees were not wearing safety belts [*7]   and also that he had told them that they were not required to wear belts. Moreover, Samples testified that, at the time the compliance officers observed the employees, he (Samples) was on the ground near the crane supervising the operation and that he could see the employees at the roof level "most of the time."

Compliance officer Cassell testified that the employees on the work platform could have fallen from the edge of the roof framework 60 feet to the ground below but that they could have been protected by tying the lanyards of safety belts to the structural steel at their feet. Samples admitted that lanyards could have been tied to the steel. He also testified, however, that employees wearing belts that are tied off while installing concrete panels would be impeded in attempting to escape from being crushed by a panel that either falls or is swung into a building with excessive force.   Finally, he stated that a lanyard tied to the steel at the World Congress Center would have been so long that an employee using a tied-off safety belt would have been "snapped in two" if he had fallen.

On the morning of March 11, 1976, a compliance officer, Masters, arrived to inspect the   [*8]   working conditions at the second construction site, on which a bus maintenance facility was being constructed.   Masters first went to the office trailer of the J.A. Jones Company, which was the coordinating engineering firm for the construction project.   A secretary in the trailer stated that the project coordinator was near the maintenance building, toward which Masters then went.   Before locating the coordinator, Masters observed two employees on the unguarded west edge of the top level of the maintenance building, 25 feet above the ground, manually positioning a concrete panel as the employees at the World Congress Center had done.   However, unlike the employees at the other site, the employees installing the panels at the bus maintenance facility attached them to the steel structure with only temporary welds.   The employees were not wearing safety belts. Masters returned to the trailer because he could not locate the coordinator. The secretary in the trailer then contacted the coordinator, who returned to the trailer.

Masters identified himself and stated the purpose of his visit.   He requested the coordinator to assemble representatives of each subcontractor for an opening   [*9]   conference.   The coordinator complied with the request and all subcontractors were represented at the conference.   During the conference, Masters inquired about the identity of the employees he had observed positioning the concrete panel.   Respondent's foreman, Pasley, identified the employees as respondent's.   Masters then told Pasley that the employees were not using fall protection equipment.   The conference ended and the inspection of the worksite began.

Representatives of each subcontractor did not accompany Masters during the entire inspection. Rather, one of the representatives was elected by the others to accompany Masters, and each representative joined the inspection party when it came into an area where the representative's employees were working.   Pasley joined the party when it arrived in respondent's work area.   When the inspection party arrived, the employees whom Masters had seen earlier were wearing safety belts that were attached to a lifeline secured to previously installed cement panels on the north and south sides of the building.

The compliance officer opined that the employees could have fallen from the top of the maintenance building when safety belts were [*10]   not being worn.   There is no testimony in conflict with this opinion.   However, Pasley did testify that employees wearing safety belts that are tied off to concrete panels would be in danger.   If the employees were tied off to installed panels they would be injured by falling more than six feet before their fall was broken.   If they were tied off to the panel being installed, they would fall with the panel if the panel fell.

The testimony of Pasley and Samples was corroborated by respondent's president, William J. Smith.   Smith explained that respondent requires the use of properly secured safety belts if they can be used safely.   For the same reasons advanced by respondent's foremen, Smith stated the employees involved in the initial installation of concrete panels could not tie off safely.   He also testified that employees who weld panels permanently into position after they have been erected are required to use properly secured belts. As an example, he said that the employees installing the panels at the bus maintenance facility were not expected to use secured safety belts, but that the employees who welded the panels permanently after they had been erected were expected to   [*11]   secure their belts.

II

Respondent contends that either the citations must be vacated or the evidence obtained as a result of the inspections suppressed because the compliance officers failed to accord respondent its right, which is created by section 8(e) of the Act, to be represented during the inspections. n5 This same contention was raised before and rejected by Judge Burroughs.

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n5 The pertinent part of section 8(e) provides that

. . . a representative of the employer . . . shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace. . . .

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In Docket No. 76-1104, the judge found that compliance officer Cassell was unaware that respondent was a subcontractor at the World Congress Center site until "he discovered two employees in apparent violation of the Act" and was advised by them that they worked for respondent; that Cassell "immediately sought out" respondent's foreman, presented his credentials, informed him of the inspection, and [*12]   discussed the apparent violation; that, although Cassell did not take the foreman to reinspect the area, the employees had already come down from the roof and the walk-around inspection had been completed by the time Cassell contacted the foreman; that the employees were in the foreman's clear view while they were on the roof and the foreman was aware that they were not tied off; and that Cassell held a closing conference with the foreman.

In Docket No. 76-1739, Judge Burroughs found that compliance officer Masters observed the apparent violation while attempting to locate the project coordinator at the bus maintenance facility site; that once the coordinator was located an opening conference was held; that respondent's foreman was present at the opening conference; that Masters informed the foreman during the opening conference of the conditions he had observed after learning from the foreman that respondent was the employer of the employees involved; and that respondent's foreman accompanied Masters during his walk-around inspection of respondent's work area.

Based on these findings, the judge concluded as follows with respect to both of the inspections at issue:

Respondent has [*13]   failed to demonstrate that its position in these cases has been substantially prejudiced by the manner in which the compliance officers carried out their obligations under section 8(e).   The facts support the conclusion that the compliance officers acted reasonably under the circumstances and substantially complied with the walk-around provisions of the Act.

Respondent contends on review that the judge erred in finding in Docket No. 76-1104 that compliance officer Cassell "immediately" attempted to locate its foreman after observing the apparent violation.   It further contends that the judge erred in concluding in both cases that the compliance officers acted reasonably and substantially complied with section 8(e).   In support, it argues that the compliance officers made "no attempt" to comply with section 8(e) "prior to conducting the actual inspections" of respondent's work areas.   Respondent does not take exception to the judge's conclusion that it failed to demonstrate that it was prejudiced by the manner in which the compliance officers conducted their inspections. However, it does argue that the judge erred in relying on a lack of prejudice as a factor in rejecting its section [*14]   8(e) defense.   Respondent contends that under Commission precedent "the lack of proof of prejudice to the Respondent is fatal to the Respondent's defense only if the Secretary has first proven an 'adequate attempt' at compliance" (emphasis supplied by respondent).   As indicated, it argues that the Secretary did not meet this burden.

We reject respondent's contentions.   We have examined the record and conclude that the judge properly considered the evidence and respondent's contentions regarding the compliance officers' alleged noncompliance with section 8(e).   Accordingly, we adopt the judge's findings and conclusions and affirm his rejection of respondent's section 8(e) defense.   See Adrian Construction Company, 79 OSAHRC 16/A2, 7 BNA OSHC 1172, 1979 CCH OSHD P23,389 (No. 15414, 1979); Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD P22,737 (No. 14281, 1977).   In particular, we reject respondent's contention that the judge erred in relying on the lack of prejudice to respondent as a factor in rejecting respondent's defense.   The judge properly considered this factor.   Indeed, subsequent to the judge's decision, the Commission held that "an employer [*15]   claiming a violation of its rights under section 8(e) must show actual prejudice to the preparation or presentation of its defense." Able Contractors, Inc., 77 OSHARC 184/A2, 5 BNA OSHC 1975, 1980, 1977-78 CCH OSHD P22,250 at p. 26,784 (No. 12931, 1977).   Accordingly, it is clear that the judge's unchallenged conclusion that respondent failed to demonstrate prejudice in itself mandates denial of the relief sought by respondent. n6 See also, Marshall v. Western Waterproofing Company, Inc., 560 F.2d 947, 951-952, (8th Cir. 1977); Accu-Namics, Inc. v. OSHRC, 515 F.2d 828, 833 (5th Cir. 1975), cert den., 425 U.S. 903 (1976).

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n6 In Able Contractors, supra, the Commission remanded the case for further findings and conclusions, including a determination as to whether the employer's defense had been prejudiced by the Secretary's alleged noncompliance with section 8(e).   The Commission based this remand on the fact that the controlling legal test had been changed in the interval between the judge's decision and the Commission's decision in that case.   Here also there has been an intervening change in the law, that is, the Commission's decision in Able Contractors, between Judge Burroughs' decision and our decision in this case.   Nevertheless, there is no need for a remand.   Judge Burroughs' decision clearly placed respondent on notice that the lack of prejudice could be a factor in our resolution of its section 8(e) claim.   Yet respondent has not even asserted prejudice before us and it did not take exception to the judge's conclusion that it was not prejudiced by the manner in which the compliance officers conducted their inspections. Moreover, it is clear under the facts of these cases that respondent could not establish that it was prejudiced.   The employees at both construction sites followed respondent's standard safety practices and work procedures while installing the concrete panels.   Foremen Samples and Pasley knew that the employees were not wearing tied-off safety belts. Samples was watching his employees while they were working, Pasley accompanied the compliance officer back to the work area in question, and both foremen were fully informed of the Secretary's charges on the dates of the inspections. Under these circumstances, it is clear that respondent could not establish that it was prejudiced in the preparation or presentation of its defense.   Cf., Belger Cartage Service, Inc., 79 OSAHRC 16/B14, 7 BNA OSHC 1233, 1979 CCH OSHD P23,440 (No. 76-1480, 1979) (remand unnecessary despite intervening change in law where employer could not rebut showing that violation was repeated).

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III

Respondent's failure to comply with the standard is evident. n7 In order to prove noncompliance with the standard, n8 the Secretary must establish that a cited employer's employees were exposed or had access to a hazardous condition from which the employees could have been, but were not, protected by the use of personal protective equipment, which must be identified by the Secretary. S & H Riggers & Erectors, Inc., note 7 supra. It is undisputed that respondent's employees were working at the unguarded edges of buildings without wearing tied-off safety belts. Respondent contends, however, that the conditions under which the employees worked were not shown to be "hazardous" within the meaning of the standard.   This contention is grounded on the evidence that the respondent's employees considered their work practices to be the safest method for installing the panels and the testimony of respondent's foremen and president that these practices were common in the industry.

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n7 Respondent contends that section 1926.28(a) is not applicable to the cited conditions because another standard, 29 C.F.R. §   1926.105(a), is more specifically applicable.   See 29 C.F.R. §   1910.5(c)(1).   It also contends that it was in compliance with section 1926.105(a) because its employees were working from temporary or permanent floors.   Because the employees were thereby assertedly protected by one of the devices enumerated in section 1926.105(a), respondent argues that it was under no obligation to provide any of the other enumerated devices, specifically safety lines and safety belts. In support of this interpretation of section 1926.105(a), respondent cites the following cases: Robert W. Setterlin & Sons Co., 76 OSAHRC 53/D8, 4 BNA OSHC 1214, 1975-76 CCH OSHD P20,682 (No. 7377, 1976); Brennan v. OSHRC and Ron M. Fiegan, Inc., 513 F.2d 713 (8th Cir. 1975); and Brennan v. OSHRC and J. W. Bounds, 488 F.2d 337 (5th Cir. 1973).

We have previously considered and rejected these identical contentions in S & H Riggers & Erectors, Inc., 79 OSAHRC    , 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979), pet. for review filed, No. 79-2358 (5th Cir., June 7, 1979).   We reject them here for the reasons stated in that decision.   Thus, we reaffirm our holdings in S & H Riggers that section 1926.105(a) is not more specifically applicable than section 1926.28(a) and that an employer is not in compliance with section 1926.105(a) when, as here, "the unguarded perimeter of a temporary floor itself gives rise to a fall hazard." 7 BNA OSHC at 1261, 1979 CCH OSHD at p. 28,434. Also for the reasons stated in S & H Riggers, we again decline to follow the interpretation of section 1926.105(a) set forth in Robert W. Setterlin & Sons, Ron M. Fiegen, and J. W. Bounds.

n8 The standard at 29 C.F.R. §   1926.28(a) provides that

[t]he employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

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We have previously held that "[t]he crucial question in determining whether a hazardous condition exists within the meaning of §   1926.28(a) is whether a reasonable person familiar with the factual circumstances surrounding the allegedly hazardous condition, including any facts unique to a particular industry, would recognize a hazard warranting the use of personal protective equipment"; "industry custom and practice are useful points of reference . . . [but] are not controlling" in making this determination.   S & H Riggers & Erectors, Inc., note 7 supra, 7 BNA OSHC at 1263, 1979 CCH OSHD at p. 28,436. The propriety of this test, and the necessity of not relying exclusively on industry practice, are demonstrated by this case.   Here the falling hazard at both worksites was obvious.   Indeed there is no evidence that respondent's employees declined to use safety belts because of an asserted absence of a hazard. Both compliance officers testified that the employees were exposed to a fall hazard and this testimony was not refuted by respondent's foremen or president.   Moreover, the thrust of the   [*18]   testimony of respondent's witnesses is not that a fall hazard did not exist, but that employees could not have tied off or would have been exposed to greater hazards if they had tied off.

In addition it is clear that a reasonable person would have recognized that the use of personal protective equipment was warranted in view of the hazard. In fact, it is evident that respondent itself recognized the appropriateness of personal protective equipment.   Thus, respondent's president testified that each employee was issued a safety belt and instructed to tie off whenever the employee thought he could do so safely.   Respondent's president further testified that, while employees installing and tack welding panels were not expected to tie off, employees who followed them to put in the permanent welds were required to tie off.   (This procedure was followed at the bus maintenance facility).   Furthermore, as found by the judge, respondent's employees at the bus maintenance facility erected a lifeline and tied off their safety belts between the time the compliance officer first observed them and the time of the walk-around inspection. We conclude that a reasonable person familiar with the circumstances [*19]   surrounding the alleged violations would have recognized hazards warranting the use of personal protective equipment. n9

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n9 In B & B Insulation, Inc. v. OSHRC, 583 F.2d 1364 (5th Cir. 1978), the U.S. Court of Appeals for the Fifth Circuit rejected the Commission's interpretation of section 1926.28(a), concluding that the Commission erred in disregarding industry custom in its application of the reasonable person test.   The court stated that, "[w]here the reasonable man is used to interpolate specific duties from general OSHA regulations, the character and purposes of the Act suggest a closer identification between the projected behavior of the reasonable man and the customary practice of employers in the industry." 583 F.2d at 1370. We have expressly declined to follow this holding of the court, stating in S & H Riggers & Erectors, Inc., supra note 7, that industry custom and practice are not controlling in determining whether a reasonable person familiar with the facts, including those unique to a particular industry, would recognize the existence of a hazard warranting the use of personal protective equipment.   We continue to adhere to our interpretation of §   1926.28(a) because the interpretation set forth by the court in B & B Insulation, Inc., v. OSHRC permits industry to continue unsafe work practices by failing to protect against known hazards. Consistent with the purposes of the Act, industry may not set its own standard of reasonableness, when there are "precautions so imperative that even their universal disregard will not excuse their omission." The T. J. Hooper, 60 F.2d 737, 740 (2d Cir. 1932), cert. denied, 287 U.S. 662.

Nevertheless, the record in this case does suggest a closer identification between industry's awareness of the cited fall hazard and our conclusion that a reasonable person would under the circumstances recognize a hazard requiring the use of personal protective equipment then may have been apparent from the record considered by the court in B & B Insulation. The court noted that of the eleven witnesses who testified at the hearing only the compliance officer thought that a fall hazard requiring protection existed and that safety belts were appropriate.   The court specifically referred to the testimony of the employer's witnesses who considered the cited conditions to be nonhazardous.   In contrast, the testimony of the witnesses in this case establishes an awareness of the employees' exposure to a fall hazard and the availability of safety belts to protect against the hazard. The Respondent's president testified that employees applying permanent welds who were exposed to the same unguarded perimeters as those installing and tack welding panels were expected to tie off whereas the latter were not because of an asserted greater hazard. This witness also indicated an awareness of the legal requirement that safety belts be used by testifying that he is a member of an organization that is "trying to get a variance on this particular item of prestressed concrete and being tied off when you're actually in the point of erection." Hearing Transcript 89.   See 29 U.S.C. § §   655(b)(6) & (d); S & H Riggers & Erectors, Inc., supra note 7, 7 BNA OSHC at 1267 n. 24, 1979 CCH OSHD at p. 28,440 n. 24. Accordingly, the record in this case clearly establishes that the Respondent actually recognized and a reasonable person would recognize, the existence of a hazardous condition requiring the use of personal protective equipment.   This conclusion is not based merely upon the opinion of people employed by the Government, but includes evidence drawn from people in the industry.

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Finally, respondent contends that it has not violated the Act because compliance with the standard would have been impossible n10 or would have created greater hazards for the employees.   In order to establish the "greater hazard" defense, an employer must prove that: (1) the hazards that would have been created by complying with the cited standard are greater than those resulting from noncompliance; (2) alternative means of employee protection were either used or unavailable; and (3) application for a variance pursuant to section 6(d) of the Act would be inappropriate.   The elements of the impossibility of compliance defense are: (1) compliance with the requirements of the cited standard was functionally impossible and (2) alternative means of employee protection were either used or unavailable.   M.J. Lee Construction Company, 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD P23,330 (No. 15094, 1979).

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n10 Respondent takes exception to Judge Burroughs' conclusion that "safety belts were practical and feasible" at both of the worksites in question.   It argues that the judge erred in concluding that the Secretary sustained his burden under Frank Briscoe Co., Inc., 76 OSAHRC 129/A2, 4 BNA OSHC 1729, 1976-77 CCH OSHD P21,162 (No. 7792, 1976) of proving the feasibility and likely utility of personal protective equipment.   However, subsequent to the judge's decision in this case, we overruled the holding in Frank Briscoe Co. followed by the judge.   We held that the Secretary does not have the burden of proving the feasibility and likely utility of the recommended form of personal protective equipment.   Instead the employer has the burden of proving an affirmative defense such as impossibility of compliance or the "greater hazard" defense.   S & H Riggers & Erectors, Inc., note 7 supra, 7 BNA OSHC at 1265-1266, 1979 CCH OSHD at pp. 28,438-28,439. Accordingly, we treat respondent's contentions concerning the infeasibility of using personal protective equipment as an assertion of the impossibility of compliance defense.

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Respondent has not established any of the elements of either defense.   In concluding that safety belts were "practical and feasible" at the worksites in question, Judge Burroughs relied on his findings that "[e]mployees [at the World Congress Center] could have tied off to the steel girders located at foot level" and that "[t]he two employees standing at the edge of the floor 'T' [at the bus maintenance facility] were tied off by the time the walk-around inspection got to their area." Respondent does not take exception to these findings, which are supported by the record.   Based on these findings we conclude that respondent has not established that the use of safety belts was functionally impossible.   Respondent contends, however, that compliance with the standard was impossible because there was nothing above the point of operation to which a safety belt could be attached.   In making this argument, respondent implicitly refers to the requirement of 29 C.F.R. §   1926.104(b) that "[l]ifelines shall be secured above the point of operation. . . ." We reject this argument.   Impossibility of compliance with [*22]   section 1926.104(b) is not a defense to an alleged violation of section 1926.28(a).   J.W. Conway, Inc., 79 OSAHRC    , 7 BNA OSHC 1718, 1979 CCH OSHD P23,869 (No. 15942, 1979); Blakeslee-Midwest Prestressed Concrete Company, 77 OSAHRC 191/A2, 5 BNA OSHC 2036, 1977-78 CCH OSHD P22,284 (No. 76-2552, 1977).

Respondent contends that compliance with section 1926.28(a) would expose its employees to greater hazards, particularly the hazard of being crushed by swinging panels or injured as the result of falling panels.   These same contentions were raised before and rejected by Judge Burroughs.   The judge applied the same test for determining whether respondent established the "greater hazard" defense that we have previously set forth in this decision.   He held that "[t]he record does not establish these necessary elements", analyzing the record evidence as follows:

The testimony of respondent's foremen that tieing off was hazardous to employees is more imaginary than real.   They attempted to raise the spector of unrealistic hazards. The concrete panels were being boomed into the structures at approximately the proper height for installation.   There was no danger of the panels falling [*23]   on employees since the employees were at the top of the structure and the panels were 20 to 30 feet in height.   The panels were being positioned so that only 18 to 24 inches protruded above the structure.   There was no necessity for the panels to be boomed above the heads of employees and the evidence shows this was not the case.

There was some evidence that panels might fall although this appeared to be an unrealistic hazard. It was not necessary for employees to tie off to the panels.   An employee tied to the steel girders at the World Congress Center or to runners erected at the bus maintenance facility would have been unaffected by a panel breaking loose from the side of the structure.

Judge Burroughs applied the proper test for determining whether respondent established its "greater hazard" defense.   He considered respondent's evidence and its arguments and stated his reasons for rejecting respondent's defense.   Inasmuch as the judge correctly decided this issue, we adopt the judge's conclusions.   See Adrian Construction Co., supra; Gulf Oil Co., supra. See also, Blakeslee-Midwest Prestressed Concrete Company, supra (similar "greater hazard"   [*24]   defense raised before and rejected by the Commission).   Respondent's noncompliance with the standard and violation of the Act have, therefore, been established. n11

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n11 In its answers in both cases, respondent asserted as an affirmative defense that the citations and proposed penalties should be vacated on the ground that "the enforcement procedures of the Occupational Safety and Health Act of 1970 are in contravention of the Fourth, Fifth, Sixth and Seventh Amendments to the United States Constitution." Judge Burroughs declined to rule on these contentions, stating that "[t]he Commission is not the proper forum for determining the constitutionality of the Act." Respondent has not taken exception to the judge's action or otherwise reasserted its constitutional defenses on review.   Accordingly, Commissioner Barnako and I do not address those defenses.   However, Commissioner Cottine would rule upon respondent's contentions for the reasons stated in his separate opinion in Hurlock Roofing Co., 79 OSAHRC 7/A2, 7 BNA OSHC 1108, 1979 CCH OSHD P23,358 (No. 76-357, 1979).   He would reject respondent's contentions under the Sixth and Seventh Amendments on the ground that the United States Supreme Court has rejected the same contentions in Atlas Roofing Co., Inc. v. OSHRC, 430 U.S. 442 (1977). Furthermore, Commissioner Cottine would reject respondent's contention under the Fourth Amendment for the reasons stated in Meadows Industries, Inc., 79 OSAHRC    , 7 BNA OSHC 1709, 1979 CCH OSHD P23,847 (No. 76-1463, Sept. 7, 1979).   Finally, to the extent that the respondent's Fifth Amendment claim raises constitutional issues concerning the Commission's statutory enabling authority, Commissioner Cottine would affirm the judge's holding that the Commission does not have jurisdiction to rule on the claim.   Chromalloy American Corp., 79 OSAHRC    , 7 BNA OSHC 1547, 1548, 1979 CCH OSHD P23,707 at p. 28,749 (No. 77-2788, 1979).

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No exception has been taken to that part of the judge's decision characterizing the violations as serious and assessing penalties of $600 (Docket No. 76-1104) and $400 (Docket No. 76-1739).   The record fully supports the characterization and the assessments.   Accordingly, we hold that respondent violated the Act by failing to comply with the standard at 29 C.F.R. §   1926.28(a) at both construction sites mentioned above, and affirm the judge's characterization of the violations and penalty assessment.  

CONCURBY: BARNAKO

CONCUR:

BARNAKO, Commissioner, Concurring:

I agree with the majority that the judge properly rejected Respondent's defense that the citations should be vacated or evidence suppressed because the compliance officers allegedly failed to comply with section 8(e) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678.   I also agree with the majority that Respondent violated 29 C.F.R. §   1926.28(a).   However, my rationale for concluding that Respondent violated 29 C.F.R. §   1926.28(a) differs from that of my colleagues.

In S & H Riggers and Erectors, Inc., 79 OSAHRC    , 7 BNA OSHC 1260, 1979 [*26]   CCH OSHD P23,480 (No. 15855, 1979) (concurring opinion), I stated that I would affirm a citation for violation of 29 C.F.R. §   1926.28(a) if the following conditions were met: 1) evidence of record establishes Respondent's employees were exposed to a hazard which a reasonable person familiar with the industry would recognize as requiring the use of personal protective equipment, 2) the Secretary establishes a feasible means of protecting against the cited hazard and 3) reference to other standards in Part 1926 indicates the need for using the personal protective equipment which the Secretary asserts Respondent's employees should have used.

In the instant case the evidence establishes that Respondent's employees were working "off a piece of Q plate" at the edge of the roof of the World Congress Center.   The side of the "Q plate" on which the employees were working was sixty feet above ground level.   Respondent's employees were also working at the edge of the top floor of a bus maintenance facility twenty-five feet above the ground.   When first observed by the compliance officers, none of the employees were protected against falling over the edge. As my colleagues note, the falling [*27]   hazard to which these employees were exposed is an obvious one.   Accordingly, a reasonable person familiar with the industry would recognize a hazard requiring the use of personal protective equipment in these circumstances.   Martin-Tomlinson Roofing Co., 7 BNA OSHC 2122, 2126, 1979 CCH OSHD P24,167 (No. 76-2339, 1980) (concurring opinion); Hurlock Roofing Co., 79 OSAHRC 93/A2, 7 BNA OSHC 1867, 1873, 1979 CCH OSHD P24,006 (No. 14907, 1979) (concurring opinion); J.W. Conway, Inc., 79 OSAHRC 75/F1, 7 BNA OSHC 1718, 1721, 1979 CCH OSHD P23,869 (No. 15942, 1979) (concurring opinion); Voegele Co., 79 OSAHRC 76/A2, 7 BNA OSHC 1713, 1717, 1979 CCH OSHD P23,860 (No. 76-2199, 1979) (concurring opinion).   Hence the first criteria set forth above has been met.

With respect to the second criteria noted above, the evidence establishes that employees at the World Congress Center could have used safety belts tied-off to steel girders located at "foot level." Similarly, Respondent's employees at the bus maintenance facility could have used safety belts with lifelines tied to runners secured to panels at each end of the floor.   Respondent argues, however, that safety belts were not [*28]   feasible. n1 Respondent notes that there was nothing above the surface upon which its employees were working to which safety belts could be attached.   Respondent apparently is arguing that compliance with section 1926.28(a) is not required because it cannot comply with 29 C.F.R. §   1926.104(b).   In the majority's view, impossibility of compliance with section 1926.104(b) does not establish the defense of impossibility of compliance with section 1926.28(a).   In my view, it does not establish the infeasibility of using personal protective equipment.   Respondent's argument that compliance with section 1926.28(a) would create greater hazards also lacks merit since the evidence fails to establish that employees would be exposed to injury from swinging or falling panels.   Since Respondent's arguments are not persuasive, the Secretary has established the feasibility of safety belts.

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n1 My colleagues address Respondent's arguments as relevant to the impossibility of compliance and greater hazard defenses.   In S & H Riggers and Erectors, Inc., supra, I stated that I would consider any evidence relating to impossibility and greater hazards arising from the use of the personal protective equipment recommended by the Secretary as relating to the question of feasibility rather than bearing on separate defenses.   I would not, however, require the Secretary to anticipate all possible problems that personal protective equipment might create and to negate such problems in establishing his prima facie case.   Rather once the Secretary has shown that personal protective equipment can be used and that its use would provide protection against the cited hazard, the burden than shifts to the employer to show that the use of such equipment will cause consequences so adverse as to render its use infeasible.

  [*29]  

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Finally, as I stated in S & H Riggers and Erectors, Inc., supra, 29 C.F.R. §   1926.104 places employers on notice that lifelines, lanyards, and safety belts are an appropriate means of protecting against fall hazards and therefore satisfies the third criteria set forth above.   Accordingly, since the criteria I set forth in S & H Riggers and Erectors, Inc. have been satisfied, I would affirm the citation for violation of 29 C.F.R. §   1926.28(a).