Docket No. 76-3682

SECRETARY OF LABOR,
Complainant,

TIPPENS STEEL ERECTION COMPANY,
Respondent.

OSHRC Docket No. 76-3682

DECISION

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

BY THE COMMISSION:
The Secretary of Labor issued a citation alleging that Tippens Steel Erection Company violated the personal protective equipment standard at 29 C.F.R. § 1926.28(a) by not requiring the use of safety belts by employees exposed to a fall hazard. Administrative Law Judge John S. Patton vacated the citation on the ground that the standard was not applicable to the steel erection work being performed. The Secretary filed a petition for discretionary review and Commissioner Cleary granted the petition under 29 U.S.C. § 661(i). At issue is: (1) whether the judge erred in concluding that Tippens' employees were engaged in steel erection and that Tippens was therefore subject to the requirements of the steel erection standards in Subpart R of 29 C.F.R. Part 1926; (2) whether the judge erred in concluding that Subpart R preempts the application of section 1926.28(a) to the facts of this case; and (3) whether Tippens was in violation of section 1926.28(a). The Commission concludes, for the reasons stated in Part III of this opinion, that Tippens' employees were engaged in steel erection. Commissioners Cleary and Cottine conclude, for the reasons stated in Part IV, that section 1926.28(a) is applicable and that the judge's contrary holding was incorrect. Chairman Rowland disagrees with their conclusion and, for the reasons stated in his separate opinion, would affirm the judge's vacation of the citation. Inasmuch as Commissioner Cleary finds, for the reasons stated in Part V, that the evidence is insufficient to show that the cited standard was violated, he joins Chairman Rowland in vacating the citation. Commissioner Cottine disagrees with this disposition, for the reasons stated in Part V.

At the time of the alleged violation, Tippens was engaged in constructing a one-story addition to a school in Smyrna, Georgia. At the hearing before Judge Patton, the parties stipulated that the building then consisted of concrete block walls, a poured concrete floor, interior steel columns, and steel beams. It was further agreed that three Tippens employees were engaged in positioning and welding steel bar joists and braces to form the roof supports. The bar joists were set approximately 2 feet apart. The employees were working at the highest point of the structure--approximately 12 feet above the concrete, ground-level floor--and were not wearing safety belts, lifelines or lanyards. No safety nets, scaffolds, or temporary flooring had been positioned under the work area and no cables or wires that could serve as a lifeline had been strung above, between, or across the work area.

The Secretary's only witness was Robert Wendell, the Assistant Regional Administrator for Federal-State OSHA Operations. Wendell testified that the mere fact that a building has structural steel members does not make it a structural steel building. He testified that the building in question was not a structural steel building but was a concrete block building with structural steel supports. Wendell testified that Tippens' workers could have secured themselves by tying off to the structural steel member upon which they were working. He also stated that a catenary line capable of supporting 5400 pounds could have been erected above the employees and that the employees could have attached their lanyards to that line. Wendell testified that he had observed both of these practices used on similar buildings in the past. Wendell added that an employee could erect the safety or catenary line while working from a ladder and thus avoid exposing himself to a hazardous fall during the installation procedure.

Jack Tippens, the owner of the company, and two of his employees testified that the work in question was structural steel work involving joists, beams, and columns as well as the basic steel erection tasks of welding and bolting-up. They added that it was not practical to tie off on this type of building nor was tying-off under these circumstances the practice in the industry. Lawrence Drachman, vice-president of Superior Rigging and Erecting Company, disputed Wendell's claim that a catenary line could be installed easily. Drachman contended that it was nearly impossible to anchor a catenary line on this type of structure. W.E. Fraser, the president of Erskine Fraser Steel Erecting Company, also testified that a catenary line on this type of structure would probably not support the weight of a man.

In his decision, Judge Patton found that Tippens was engaged in steel erection work, noting that the material composition of the building "does not change the fact that employees of [Tippens] were working on structural steel supports." The judge then considered the parties' arguments concerning the applicability of section 1926.28(a) during steel erection. He reasoned that provisions in Subpart R (Steel Erection) and Subpart Q (Concrete, Concrete Forms, and Shoring) which require the use of protective clothing and articles under specific conditions would be unnecessary if section 1926.28(a) were interpreted to require the use of safety belts in steel erection generally and in concrete work.[[2/]] He also accepted Tippens' contention that in certain circumstances, wearing safety belts might constitute a greater hazard; the judge assumed from his reading of Subpart R that the Secretary had taken these factors into consideration by specifically prescribing the use of safety belts in some situations, i.e., on floating scaffolds pursuant to section 1926.752(k), while not prescribing their use in all situations. He also noted that if the cited standard had already required safety belts to be worn in steel erection, then there would have been no reason for the Secretary to have amended Subpart R in 1974 in order to require that safety belts be worn when gathering and stacking planks. [[3/]] Thus, Judge Patton concluded that the cited standard did not apply here and, accordingly, he vacated the citation.

III
One of the bases for the Secretary's objection to Judge Patton's determination that the steel erection standards preempt section 1926.28(a) is that the steel erection standards are inapplicable in this case because the employees were not engaged in steel erection. He maintains that the structure was basically concrete block at the time of the inspection and was well past the steel erection stage. We reject this contention because we agree with Tippens' assertion that the standards contained in Subpart R are not restrictively applied to work being performed on buildings with an all-steel structural framework, but apply as well to the process of structural steel assembly and erection regardless of whether the entire building framework consists of steel members. The parties stipulated that the workers were engaged in welding and positioning steel bar joists and braces to form the roof supports. The testimony clearly indicates that work involving bar joists and structural steel members is structural steel work. Moreover, the Secretary's witness, Robert Wendell, admitted that bolts were used in this case to put the beams together and that bolting beams together is one of the operations in structural steel erection. Furthermore, the work at issue is classified as structural steel both in the contract documents and in Tippens' bid on the job; although the industry's classification of the work is not controlling, it is relevant. Accordingly, we conclude that the judge properly held that the work being performed in the cited location was steel erection within the meaning of the standards in Subpart R.

The Commission comprehensively considered the preemption question in Williams Enterprises, Inc., Docket No. 79-0843 (Apr. 27, 1983). In Williams we rejected the claim that the standards contained in Subpart R are exclusive for steel erection and therefore exempt ironworkers from being afforded fall protection required by safety standards located outside of Subpart R. We noted that the two courts that have addressed this problem have both held that the steel erection standards in Subpart R are not exclusive. L.R. Willson & Sons v. Donovan, 685 F.2d 664 (D.C. Cir. 1982); Bristol Steel & Iron Works v. OSHRC, 601 F.2d 717 (4th Cir. 1979). An employer engaged in construction activities is required to comply with any general standard applicable to its working conditions unless a specific standard sets forth measures that an employer must take to protect its employees from a particular hazard. L.R. Willson & Sons v. Donovan, supra at 670. Thus, we held in Williams that where general standards provide meaningful protection to employees that supplements the protection afforded by the steel erection standards, the general standards apply to steel erection work.

Inasmuch as Subpart R does not address the hazards of a fall that, though less than 30 feet, is of sufficient height to result in injury or death, section 1926.28(a), a general standard that requires the use of safety belts, is not preempted under Williams. See L.R. Willson & Sons, Inc. v. OSHRC & Donovan, 698 F.2d 507, 511 (D.C. Cir. 1983). Indeed, because the building involved in this case is not tiered, the preemption argument is even less meritorious here than it was in Williams, where the building was tiered. Section 1910.5(c)(1) makes clear that a general standard such as section 1926.28(a) can be preempted only if Subpart R prescribes "specifically applicable" standards.[[4/]] Yet, the primary fall protection standards that Tippens points to--those in section 1926.750--are not applicable here in any sense because they apply only to tiered buildings. See Larkan Steel Erectors, 77 OSAHRC 167/B12, 5 BNA OSHC 1783, 1977-78 CCH OSHD ś 22,100 (No. 15016, 1977).[[5/]] Accordingly, we conclude that section 1926.28(a) is applicable.

V

The Secretary contends that the evidence establishes a violation of section 1926.28(a) because Tippens' employees were not tied off or otherwise protected from the hazard of a 12-foot fall onto a concrete floor. He argues that the potential severity of the fall was established by Wendell's testimony that a 6-foot fall at another location had resulted in a fatality. The Secretary notes that the means of protection were identified by the compliance officer and were clearly feasible in that Tippens' employees wore the belts and lanyards immediately after the inspection.

The Secretary disputes Tippens' claim that the belts were impractical and hazardous. He notes that the inconvenience and potential hazard of tied-off workers forgetting to unclip themselves from the beam also exists with respect to fall hazards of 30 feet, for which Tippens admittedly has its employees tie off. Further, the Secretary argues that the additional time needed to complete the work as a result of tying off should not be weighed against the increased safety to the employees. The Secretary also contends that Tippens' claim that the installation of safety equipment would create a greater hazard is without basis. Moreover, the Secretary argues that Tippens has failed to sustain its burden of proving under the greater hazard affirmative defense that alternative means of protecting the employees are unavailable and that a variance would be inappropriate.

Tippens contends that, even if one assumes that section 1926.28(a) is applicable to these facts, the Secretary has failed to carry his burden in this case. Tippens contends that the Secretary has failed to prove the feasibility and utility of safety belts, lanyards, and lifelines, citing Frank Briscoe Co., 76 OSAHRC 129/A2, 4 BNA OSHC 1729, 1976-77 CCH OSHD ś 21,162 (No. 7792, 1976). Tippens submits that the only evidence adduced by the Secretary as to feasibility and utility is the opinion of Robert Wendell that employees could have tied off to the beams or could have erected post anchorages for a life line. Tippens argues that its witnesses are more credible, and that their testimony as to the impracticality and difficulty of erecting posts rebuts Wendell's proposals and establishes that industry practice is not to employ safety belts under the cited circumstances. Tippens adds that, even if the testimony of the employees were not deemed to have established the defense of greater hazard, it should be given great weight to refute the alleged feasibility and utility of the suggested safety measures, because the judgment of experienced employees as to the essentials of their safety is not to be treated lightly. Tippens further argues that, as there was nothing above the point of operation to which a belt could be attached, it established impossibility of compliance and, hence, no violation can be found.

B
In order to establish noncompliance with section 1926.28(a), the Secretary must prove that 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. S&H Riggers & Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD ś 23,480 (No. 15855, 1979), rev'd, 659 F.2d 1273 (5th Cir. 1981). In addition, the Secretary must identify an appropriate form of personal protective equipment to protect against the hazard. Id. The Secretary is not obliged to affirmatively establish the feasibility and likely utility of safety belts, lifelines and lanyards. Id.

Commissioner Cleary concludes that the Secretary has not sustained his burden in this case. He is not persuaded that a reasonable person familiar with the factual circumstances surrounding this allegedly hazardous condition, including the facts unique to the steel erection industry, would recognize that ironworkers, working approximately 12 feet above the surface on bar joists located approximately 2 feet apart, are exposed to a hazardous condition warranting the use of personal protective equipment. The 2-foot spacing of the joists made it so highly unlikely that the workers could fall to the surface below that the use of safety belts was not warranted. Paul Kennedy, a journeyman ironworker employed by Tippens, testified that the closeness of the joists prevented him from falling between them on those occasions after the inspection when he forgot to untie his belt and lost his balance when he was jerked back. Commissioner Cleary credits Kennedy's testimony and notes that the photographic evidence corroborates it. Accordingly, Commissioner Cleary concludes that the Secretary failed to show that the use of personal protective equipment was warranted under the circumstances of this case and, thus, failed to establish a violation of section 1926.28(a).[[6/]]

Commissioner Cottine concludes that the Secretary has established that Tippens' employees were exposed to a fall of 12 feet, a hazardous condition requiring the use of personal protective equipment. See Bethlehem Steel Corporation, 81 OSAHRC 108/A2, 10 BNA OSHC 1264, 1982 CCH OSHD ś 25,839 (No. 16067, 1981) (Cottine, Commissioner, dissenting); PPG Industries, Inc., 77 OSAHRC 196/E5, 6 BNA OSHC 1050, 1977-78 CCH OSHD ś 22,344 (No. 15426, 1977), appeal denied, 582 F.2d 1275 (3d Cir. 1978). He finds that the hazard was not diminished by the 2-foot spacing between joists.[[7/]] In addition, the Secretary has identified the appropriate means of personal protective equipment needed to abate the hazard, i.e., safety belts and lanyards. Commissioner Cottine notes that the Commission has affirmed citations alleging noncompliance with section 1926.28(a) where employees were working on steel beams without the benefit of fall protection. See, e.g., Structural Painting Corp., 79 OSAHRC 70/A12, 7 BNA OSHC 1682, 1979 CCH OSHD ś 23,817 (No. 15450, 1979); Ray Evers Welding Co., Inc. 77 OSAHRC 181/F7, 5 BNA OSHC 1948, 1977-78 CCH OSHD ś 22,220 (No. 76-628, 1977), rev'd, 625 F.2d 726 (6th Cir. 1980); Larkan Steel Erectors, supra. [[8/]] He also rejects Tippens' reliance on industry practice. Certainly, industry custom and practice are useful reference points in determining whether a reasonable person familiar with the facts would recognize a hazard requiring the use of personal protective equipment; however, custom and practice are not dispositive. S&H Riggers & Erectors, Inc., supra. The Act was passed to improve the safety of working conditions in industry, not to maintain a hazardous status quo. As a consequence, industry cannot be permitted to maintain that status quo by setting its own standards of care. General Dynamics Corp., Quincy Shipbuilding Div. v. OSHRC, 599 F.2d 453 (1st Cir. 1979).

Commissioner Cottine would also reject Tippens' claim that tying off in this situation exposes the workers to a greater hazard. Tippens has not established the greater hazard defense because it has failed to show that the hazards of compliance with the standard are greater than those existing due to noncompliance, that alternative means of protecting employees are unavailable, and that a variance application under section 6(d) of the Act would be inappropriate. See National Steel & Shipbuilding,Co., 78 OSAHRC 48/A2, 6 BNA OSHC 1680, 1978 CCH OSHD ś 22,808 (Nos. 11011 & 11769, 1978), aff'd, 607 F.2d 311 (9th Cir. 1979). Accordingly, Commissioner Cottine would conclude that the Secretary has established a violation of section 1926.28(a).

Both Chairman Rowland, see infra, and Commissioner Cleary conclude, although for different reasons, that the citation must be vacated. Accordingly, the judge's disposition is affirmed. The citation is vacated.

IT IS SO ORDERED.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: APR 27 1983

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FOOTNOTES:

[[1/]] The standard reads:

§ 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 hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

[[2/]] Judge Patton referred specifically to §§ 1926.700(b), 1926.752(a)(4), 1926.752(j) and 1926.752(k).

[[3/]] The Secretary amended section 1926.750(b)(2) of Subpart R, by adding subsection (iii):

§ 1926.750 Flooring requirements.
(b) Temporary flooring--skeleton steel construction in tiered buildings.
(2) ... (iii) When gathering and stacking temporary floor planks from the last panel, the employees assigned to such work shall be protected by safety belts with safety lines attached to a catenary line or other substantial anchorage.

[[4/]] Section 1910.5(c)(1) provides in part:
§ 1910.5 Applicability of standards.
* * *
(c)(1) If a particular standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any different general standard which might otherwise be applicable to the same condition, practice, means, method, operation, or process.... [Emphasis added.]

[[5/]] Tippens also relies on § 1926.752(a)(4), which requires that eye protection be provided in accordance with Subpart E, and § 1926.752(j), which requires that openings in floors be guarded in accordance with Subpart M. Tippens argues that the specific incorporation of these subparts indicates that they would not otherwise be generally applicable to steel erection work. In Tippens' view, the contrasting failure of Subpart R to specifically incorporate Subpart C--which includes the cited standard here--indicates that Subpart C is not applicable to steel erection. Tippens also argues that where safety belt protection is deemed necessary in the steel erection industry, the standards specifically provide for it; it points to § 1926.750(b)(2)(iii), which prescribes the use of safety belts when gathering and stacking temporary floor planks, and § 1926.752(k), which requires safety belts for employees working on float scaffolds. Tippens maintains that it § 1926.28(a) provides fall protection in all instances, then there would be no reason to have separate, specific requirements for the wearing of belts elsewhere in Subpart R. Moreover, applying the statutory construction principle of expressio unius est exclusio alterius, Tippens argues that Subpart R implicitly indicates by its silence those instances where the use of safety belts is deemed undesirable or unwarranted. We reject the contentions because they are inconsistent with § 1910.5(c)(2):

§ 1910.5 Applicability of standards
(c)(2) On the other hand, any standard shall apply according to its terms to any employment and place of employment in any industry, even though particular standards are also prescribed for the industry,.... to the extent that none of such particular standards applies ....

The maxim Tippens invokes must of course yield to the Secretary's specific applicability rule.

[[6/]] Commissioner Cleary finds this case distinguishable from Western Waterproofing Company, Inc., discussed in note 7 infra. In that case, employees were working on a scaffold between the tenth and eleventh floors of a building. The space between the front of the scaffold and the building was approximately 14 to 18 inches, but the scaffold was not affixed to the building, and the scaffold would logically move away from the building if an employee fell between the building and the scaffold. As discussed in the case there was also the danger of the scaffold swinging in windy conditions which would increase the aperture substantially.
Commissioner Cleary also notes that the factual circumstances here stand in marked contrast to those in the cases cited infra in which the Commission affirmed citations under § 1926.28(a) where employees were exposed to serious fall hazards while working on steel beams: Structural Painting Corp. (28-30 feet above a river); Ray Evers Welding Co. (18-24 feet above the ground); Larkan Steel Erectors (23 feet above the ground).

[[7/]] Commissioner Cottine notes that in Western Waterproofing Co., Inc., 79 OSAHRC D/11, 7 BNA OSHC 1625, 1979 CCH OSHD ś 23,785 (No. 1087, 1979), the Commission acknowledged that an open space of 14 to 18 inches between the front of a scaffold and the adjacent wall was large enough to permit an employee to fall through. In that case an employee had sustained fatal injuries when he fell through the open space to a surface five stories below.

[[8/]] Furthermore, other standards contained in Title 29 of the Code of Federal Regulations clearly require fall protection at heights less than the 12 feet involved in this case, e.g., § 1910.23(c)(general industry: open-sided floors or platforms--4 feet or more); § 1926.500(b)(1) (construction: wall openings--more than 4 feet); § 1926.500(d)(1)(construction: open-sided floors or platforms--6 feet or more).