SCIOTO ERECTORS, INC.

OSHRC Docket No. 76-2258

Occupational Safety and Health Review Commission

October 25, 1977

[*1]

Before: CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

William S. Kloepfer, Regional Attorney

James E. Gary, President & General Manager, Solioto Erectors, Inc., for the employer

Christopher S. Kilgore, Safety Officer Kokosing Construction Co., Inc., for the employer

OPINION:

DECISION

BY THE COMMISSION: A decision of Review Commission Judge Frank B. Zinn, dated March 17, 1977, is before this Commission for review pursuant to a direction for review by former Commissioner Robert D. Moran under 29 U.S.C. 661(i). Judge Zinn vacated three alleged violations and affirmed three others. The direction for review indicates that the case was directed for review "to determine whether the record justifies" all of the Judge's findings of fact and conclusions of law. The respondent has not taken issue with the Judge's decision. The complainant has taken exception to Judge Zinn's vacation of Citation No. 3 which alleged a repeated violation of 29 C.F.R. 1926.105(a) n1 for a failure to provide safety nets.

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n1 That standard 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.

[*2]

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The Judge's vacation of Citation No. 3 is affirmed by a divided Commission. Since the parties have not taken issue with the Judge's disposition of the remaining alleged violations, the Commission will not review his action on them. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD para. 20,780 (No. 4136, 1976); Crane Co., 76 OSAHRC 37/A2, 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976). The portion of the Judge's decision pertaining to these alleged violations is accorded the significance of an unreviewed Judge's decision. Leone Constr. Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20, 387 (No. 4090, 1976).

The respondent was engaged as a steel erection subcontractor on a construction project in Marion, Ohio. A number of respondent's employees were observed putting up roof joists and tacking cross-bracings at elevations of sixty feet. The employees were equipped with safety belts and lanyards which they tied off at those locations where they welded the ends of the joists and bolted the cross-bracings. However, [*3] when moving from place to place, when stringing welding leads, and when getting on and off the beams the employees were not tied off. The record clearly establishes that it was possible to erect safety nets at the site.

Relying on Brennan v. OSHRC & Ron M. Fiegen, Inc., 513 F.2d 713 (8th Cir. 1975), and Brennan v. OSHRC & J. W. Bounds, 488 F.2d 337 (5th Cir. 1973), n2 Judge Zinn concluded that the respondent's use of safety belts, albeit not as effective as safety nets, was sufficient to comply with 1926.105(a).

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n2 Those decisions held that, in view of the imprecision of the term "impractical" in the standard, an employer may comply with section 1926.105(a) by using any one of the enumerated devices even though it is not necessarily the most effective means of fall protection.

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On review the complainant contends that the Judge's reliance upon Fiegen and Bounds was improper. The complainant argues that those cases were incorrectly decided. Moreover, he asserts that the instant case is distinguishable [*4] because, unlike the employees in Fiegen and Bounds, the respondent's employees were not using the chosen safety device at all times.

Commissioner Barnako would affirm the Judge's decision. Commissioner Barnako adheres to Commission decisions upholding the propriety of the decisions in Fiegen and Bounds. See Robert W. Setterlin & Sons Company, 76 OSAHRC 53/D8, 4 BNA OSHC 1214, 1976-77 CCH OSHD para. 20,682 (No. 7377, 1976); Carr Erectors, Inc., 76 OSAHRC 60/F12, 4 BNA OSHC 1269, 1976-77 CCH OSHD para. 20,773 (No. 7909, 1976). Furthermore, he concludes that a safety belt is being "used" even where movement requires the detaching of a lanyard. He observes that under Commission holdings as well as the Secretary of Labor's own policy, safety belts are considered appropriate fall protection even where they cannot be tied off during periods of movement. See B & B Insulation, Inc., 77 OSAHRC 49/A2, 5 BNA OSHC 1265, 1977-78 CCH OSHD para. 21,747 (No. 9985, 1977); Cornell & Company, Inc., 76 OSAHRC 122/C11, 4 BNA OSHC 1715, 1976-77 CCH OSHD para. 21,118 (No. 9054, 1976); Carpenter Rigging & Contracting Corporation, 75 OSAHRC 32/D13, 2 BNA OSHC [*5] 1544, 1974-75 CCH OSHD para. 19,252 (No. 1399, 1975).

Chairman Cleary would reverse the Judge and find that the respondent failed to comply with 1926.105(a). Chairman Cleary finds that the instant case is distinguishable from the Fiegen and Bounds cases. He observes that in Fiegen and Bounds employees constantly "used" one of the forms of protection specified in 29 C.F.R. 1926.105(a) in that they were standing upon temporary floors and scaffolds at all times. Considering the evidence most favorable to the respondent, he concludes that in this case the respondent's employees did not "use" their safety belts for significant periods of time. That evidence shows that three to five of the respondent's employees were not tied off for ten percent of the time over a period of five days. In his opinion, it is incongruous to say that a safety belt is being "used" when a lanyard is detached and the device affords absolutely no protection against a fall for such a substantial period of time.

Chairman Cleary agrees with Judge Zinn's finding that the respondent failed to establish a "greater hazard" defense. n3 He disagrees, however, with the Judge's conclusion that "the [*6] planks and beams [used by employees] to reach work stations seems in the same cateogry as the runway" involved in another citation which cited the respondent for violating 1926.500 (d)(2) by failing to install standard railings on a beam that was used by the respondent's employees as a means of reaching the location where they performed their work. A runway is "[a] passageway for persons, elevated above . . . ground level, such as a footwalk along a shafting or a walkway between buildings." 29 C.F.R. 1926.502(f). In Chairman Cleary's opinion, the employees were using the beams as working surfaces within the meaning of section 1926.105(a). He observes that the evidence clearly establishes that work was being performed on the beams and that they were not being used as mere passageways. He also finds that safety nets should have been erected because the record clearly establishes that they would have offered a greater fall protection than safety belts.

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n3 See Russ Kaller, Inc., 76 OSAHRC 130/F10, 4 BNA OSHC 1758, 1976-77 CCH OSHD para. 21,152 (No. 11171, 1976).

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Since the present two-member Commission is unable to agree on the disposition of the complainant's contentions, no official action can be taken. 29 U.S.C. 661(e). The Judge's decision therefore becomes the final action of the Commission. See Vappi & Company, 77 OSAHRC 72/D7, 5 BNA OSHC 1358, 1977-78 CCH OSHD para. 21,787 (No. 8282, 1977).