Docket No. 76-2894 -dup

JOHN T. BRADY & CO., INC.

OSHRC Docket No. 76-2894

Occupational Safety and Health Review Commission

February 26, 1982

[*1]

Before ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

Robert Rosenthal, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Seymour Fier is before us for review pursuant to section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). Judge Fier ruled that the John T. Brady & Co., Inc., committed a violation of the general duty clause, section 5(a)(1) of the Act. n1 We reverse the judge and vacate the citation on the ground that specific standards render citation to the general duty clause inappropriate.

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n1 Section 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1), provides that "[e]ach employer . . . shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."

Commissioner Cleary directed review of the judge's disposition of the 6(a)(1) charge. John T. Brady was also found in violation of the construction safety standards at 29 C.F.R. § § 1926.150(e)(1), 1926.150(e)(3), and 1926.500(d)(2). These items are before the Commission pursuant to a direction for review "for error" by former Commissioner Moran. Because neither party has taken exception to the judge's disposition of these items, and in the absence of a compelling public interest, the Commission will not review them. Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976); Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1976-76 CCH OSHD P20,428 (No. 9507, 1976).

[*2]

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The citation at issue alleged that John T. Brady violated the general duty clause by failing to provide overhead protection at entrances to a building that was under construction. The citation identified two conditions, or practices, at the construction site which allegedly posed a danger of physical injury: objects could fall onto employees from overhead loads being transported by a crawler crane, and objects could fall onto employees from the open-sided upper levels of the building. The Secretary contended that the entrances to the building should have been equipped with canopies.

The issues directed for review centered on whether the Secretary carried his burden in proving such elements of a general duty clause violation as employee exposure to the hazard and recognition of the hazard. However, after this case had been directed for review and the parties had submitted their review briefs, we issued our decision in A. Prokosch & Sons Sheet Metal, Inc., 81 OSAHRC 96/A2, 8 BNA OSHC 2077, 1981 CCH OSHD P24,840 (No. 76-406, 1980) ("Prokosch"). We held there that the general duty clause does [*3] not apply to the hazard of objects falling from a crane at a construction site. Although ordinarily we will not decide issues not directed for review, n2 in order that our decision in this case be consistent with Prokosch, we will decide the case on grounds other than those touched upon in the direction for review.

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n2 Commission Rule 95(d), 29 C.F.R. § 2200.92(d).

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It is well established that the applicability of a standard renders citation to the general duty clause inappropriate. Mississippi Power & Light Co., 79 OSAHRC 109/D12, 7 BNA OSHC 2036, 1980 CCH OSHD P24,146 (No. 76-2044, 1979). Citation to the general duty clause in the instant case is rendered inappropriate both as to the hazard of objects falling from a crane and the hazard of objects falling from upper levels of a building. ANSI B30.5-1968, section 5-3.2.3(f), which provides that "[t]he operator should avoid carrying loads over people," n3 renders the general duty clause inapplicable to the hazard of objects falling from a crawler crane. [*4] The hardhat standard at 29 C.F.R. § 1926.100(a) n4 and the perimeter guarding standards at 29 C.F.R. § § 1926.500(d)(1) n5 and 500(f)(3)(ii) n6 render the general duty clause inapplicable to the hazard of objects falling from upper levels of the building. See Prokosch, supra.

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n3 ANSI B30.5-1968, Safety Code for Crawler, Locomotive and Truck Cranes, is incorporated by reference into the construction industry standards at 29 C.F.R. § 1926.550(b)(2).

n4 29 C.F.R. § 1926.100(a) provides in pertinent part:

Employees working in areas where there is a possible danger of head injury from impact, or from falling or flying objects . . . shall be protected by protective helmets.

n5 29 C.F.R. § 1926.500(d)(1) provides as follows:

(d) Guarding of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent . . . on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.

n6 29 C.F.R. § 1926.500(f)(3)(iii) provides as follows:

Where material is piled to such height that a standard toeboard does not provide protection, paneling or screening from floor to intermediate rail or to top rail shall be provided.

"Toeboard" is defined at 29 C.F.R. § 1926.502(m):

A vertical barrier at floor level erected along exposed edges of a floor opening, wall opening, platform, runway, or ramp to prevent falls of materials.

[*5]

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Although we conclude that specific standards rather than the general duty clause apply to the cited hazard and workplace conditions and practices, n7 we will not amend the citation and complaint to allege violations of those standards. ANSI B30.5-1968, section 5-3.2.3(f) is an advisory standard and therefore cannot serve as a basis for finding a violation of the Act. Prokosch, supra, 8 BNA OSHC at 2080-81, 1980 CCH OSHD at p. 30,630. The standards at 29 C.F.R. § § 1926.100(a), 1926.500(d)(1) and 1926.500(f)(3)(ii) are mandatory, not advisory, but amendment at this juncture would be inapporpriate inasmuch as citations resting on these standards would raise questions of law and fact which the parties have not had an opportunity to address. Mississippi Power & Light Co., supra.

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n7 Chairman Rowland does not agree with his dissenting colleague's suggestion that the standards on which the majority relies do not render the 5(a)(1) citation inappropriate because they would not provide employees with complete protection against the hazards of falling objects. He notes that it is not the Commission's function to question the wisdom or adequacy of the Secretary's standards. See The Budd Co., 74 OSAHRC 12/A2, 1 BNA OSHC 1548, 1973-74 CCH OSHD P17,387 (No. 199, 1974), aff'd, 513 F. 2d 201 (3d Cir. 1975). The applicability of a specific standard or standards to the cited conditions renders § 5(a)(1) inapplicable regardless of whether more protection against the cited hazard would be desirable.

Chairman Rowland further disagrees with his colleague's suggestion that the majority errs in holding that the floor guarding standards at § 1926.500 are applicable because different standards apply during steel erection in tiered buildings. He notes that, even if the steel erection perimeter guarding standard applies in this case, the critical point is that there is an applicable standard. Whether that standard is sufficiently stringent is not an appropriate inquiry.

[*6]

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Accordingly, the section 5(a)(1) citation is vacated. In all other respects, the judge's decision is affirmed. SO ORDERED.

DISSENTBY: COTTINE

DISSENT:

COTTINE, Commissioner, dissenting:

In A. Prokosch & Sons Sheet Metal, Inc., 81 OSAHRC 96/A2, 8 BNA OSHC 2077, 1980 CCH OSHD P24,840 (No. 76-406, 1980), appeal dismissed, No. 80-4241 (2d Cir. March 27, 1981), I stated in dissent that my colleagues had once again created a void in the protection afforded American workers. Today that void expands again.

Testimonial evidence establishes that employees at the construction site using the unprotected or inadequately protected entrances were exposed to the hazard of being struck by any one, or any combination of, the following: sparks, slag, bolts, wire, hand tools, concrete chips, lumber, nails, steel decking, reinforcing rods, and other miscellaneous debris. The sources of these overhead hazards from work being performed above and adjacent to the entrances included the following: hauling of steel by [*7] crane, overhead welding, concrete pouring and concrete stripping, forming out of columns, placement of reinforcing rods, and spot welding of steel decking. According to both the compliance officer and the Respondent's field superintendent, the purpose of an overhead canopy at entrances is to protect employees from materials accidentally dropped or kicked over the edge of the building. Furthermore, the compliance officer testified that wind conditions at this site created an additional problem because materials on the roof or open-sided floors could be blown off. These included untacked sections of steel decking.

The Commission majority concludes that citation under section 5(a)(1) of the Act, the general duty clause, is inappropriate because specific safety standards are applicable. The standards they cite are: (1) ANSI B30.5-1968, section 5-3.2.3(f), an ANSI standard that deals with the carrying of crane loads over people and assertedly incorporated by reference at 29 C.F.R. § 1926.550(b)(2); (2) 29 C.F.R. § 1926.100(a), the construction hardhat standard; and, (3) 29 C.F.R. § § 1926.500(d)(1) and 500(f)(3)(ii), construction standards covering the guarding of open-sided floors, [*8] platforms, and runways. For the reasons that follow their conclusion is in error.

Commission precedent clearly establishes that "a citation for a violation of section 5(a)(1) is invalid and will not lie where a duly promulgated occupational safety and health standard is applicable to the condition or practice that is alleged to constitute a violation of the Act." Brisk Waterproofing Co., Inc., 73 OSAHRC 30/E1, 1 BNA OSHC 1263, 1264, 1973-74 CCH OSHD P16,345 at p. 21,261 (No. 1046, 1973) (emphasis added). See A. Prokosch & Sons Sheet Metal, Inc., supra (dissenting opinion) and cases cited.

Section 5-3.2.3(f) of ANSI B30.5-1968, Safety Code for Crawler, Locomotive, and Truck Cranes, states that "[t]he operator should avoid carrying loads over people." This provision is advisory, not mandatory. A. Prokosch & Sons Sheet Metal, Inc., supra (lead & dissenting opinions). Consequently, it is not a standard nor was it duly promulgated. A. Prokosch & Sons (dissenting opinion). As I noted in Prokosch, section 5(a)(1) is intended "to cover those situations which might not be treated by a standard promulgated by the . . . [Secretary]." Sun Shipbuilding [*9] & Drydock Co., 73 OSAHRC 44/A9, 1 BNA OSHC 1381, 1973-74 CCH OSHD P16,725 (No. 161, 1973). The hazard of overhead falling objects from the crane operating above the cited entrances is not regulated by a promulgated occupational safety and health standard. Accordingly, for the reasons more fully set forth in my separate opinion in Prokosch, the ANSI provision discovered by my colleagues does not preclude application of section 5(a)(1) to these facts.

The record evidence regarding the usefulness of hard hats in protecting against falling objects at this site consists of the following testimony of the compliance officer:

Q. Would the fact that the employer's man may be wearing a hard hat prevent the kind of injury that you are talking about from occurring?

A. If a man is lucky enough to be hit on the head and he has a hard hat on, he might not have a serious injury there, but other parts of his body are exposed, which is the reason for a canopy. A canopy is the general protection in an entrance area. A man, if he walked under an unprotected area, then his shoulder or maybe worse, his extremities are exposed even if he is wearing a hard hat. If he is struck by a bolt [*10] falling three, four stories and he gets hit on the shoulder it could cause serious harm.

Hearing transcript at 42.

Section 1926.100(a) requires that employees working in area where there is a danger of head injury from falling objects be protected by protective helmets. However, the only relevant evidence indicates that although a hard hat may protect against serious head injury, it provides no protection against other bodily injury. n1 Simply stated, it is not a substitute for other protection against falling materials.

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n1 It must also be noted that the Commission has previously acknowledged that a hard hat would not abate the hazard of a heavy overhead load falling onto a worker. Ceneral Electric Co., 80 OSAHRC 9/B9, 7 BNA OSHC 2183, 2186 n. 10, 1980 CCH OSHD P24,268 at p. 29,552 n. 10 (No. 15037, 1980).

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At the time of inspection the structure was in various stages of construction with areas above and adjacent to the cited entrances either completed with roof areas, or in the steel erection stage, including [*11] erection of structural steel members and placement and welding of steel decking. The compliance officer noted that the floors of the structure were open-sided, did not have toeboards, but did have perimeter protection in the form of a wire cable.

The final standards my colleagues have uncovered that assertedly apply to the cited conditions are the construction perimeter guarding standards published at 29 C.F.R. § § 1926.500(d)(1) and 500(f)(3)(ii), dealing with guarding of open-sided floors, platforms, and runways. Their conclusion is in error for several reasons.

First, during steel erection in tiered buildings the perimeter guarding standards at section 1926.500, requiring standard railings and toeboards, do not apply. Rather, the requirement in section 1926.750(b)(1)(iii) that the periphery be guarded by a "safety railing of 1/2-inch wire rope or equal" applies. n2 Wire cables were in place where required. Second, certain sections of the structure had completed roof areas. Under Commission and courts of appeals precedent, a roof is not a floor within the meaning of section 1926.500(d)(1) and the standard would not apply to these areas. n3 See Dun-Par Engineered Form [*12] Co., 80 OSAHRC 14/E6, 8 BNA OSHC 1044, 1980 CCH OSHD P24,238 (No. 16062, 1980), appeal filed, No. 80-1401 (10th Cir. Apr. 17, 1980); Central City Roofing Co., Inc., 76 OSAHRC 61/A2, 4 BNA OSHC 1286, 1976-77 CCH OSHD P20,761 (No. 8173, 1976). Finally, perimeter protection in the form of a wire cable or standard railing and a toeboard would not prevent materials from being dropped over the perimeter by employees working near the edge, would not stop sparks and slag created by the welding of metal decking to the structural steel from falling over the edge, and would not be an effective barrier to material being carried by the wind, particularly sheets of decking.

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n2 The Respondent was not cited for noncompliance with perimeter protection requirements. The Respondent was cited for a violation of section 1926.500(d)(2) for failing to erect guardrails on a 30-foot-long, 2 - 3 foot wide runway leading to its office trailer. This item was affirmed by the judge. The Respondent did not petition for review of this item.

n3 Although there is no direct testimony that work was being performed on the roof, the compliance officer specifically stated that materials on a roof area could be blown off because of wind conditions.

[*13]

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III

For the reasons set forth above, citation to section 5(a)(1) of the Act is appropriate and the merits of the charge should be decided by the Commission. Accordingly, I dissent.