Docket No. 82-1137

SECRETARY OF LABOR,
Complainant,

THE L. E. MYERS CO. HIGH VOLTAGE SYSTEMS DIVISION,
Respondent.

OSHRC Docket No. 82-1137

DECISION

Before: BUCKLEY, Chairman; RADER and WALL, Commissioners.
BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. ї 661(1), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. її 651-678 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration. It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. ї 659(c).

This case arises out of an accident in which one employee of Respondent L. E. Myers Company was electrocuted and another injured when they fell from a ladder. As a result of his investigation of the accident, the Secretary issued citations charging L. E. Myers with violations of the Occupational Safety and Health Act, 29 U.S.C.ї 651 et seq. L. E. Myers contested the citations and the case was heard by Administrative Law Judge Edwin G. Salyers. Judge Salyers vacated two of the citation items because the Secretary failed to prove any violation, and that portion of the judge's decision is not before us. However, Judge Salyers did find that L. E. Myers violated 29 C.F.R. ї 1926.28(a) because its employees were not using safety belts and lanyards to protect against a fall.[[1]] The judge also found L. E. Myers in violation of 29 C.F.R. ї 1926.450(a)(7) for failing to position the ladder at a proper angle,[[2]] and 29 C.F.R. ї 1926.450(a)(6) for failing to keep the area at the base of the ladder clear.[[3]] Review was directed on whether 29 C.F.R. ї 1926.28(a) was validly promulgated and whether the judge erred in finding Respondent L. E. Myers in violation of її 1926.28(a), 1926.450(a)(6) and 1926.450(a)(7).

L. E. Myers is an electrical contractor who constructs and installs electrical transmission and distribution equipment.

Myers was engaged by Emery Industries to place protective rubber hosing over certain electrical power lines at Emery's plant at St. Bernard, Ohio.[[4]] Myers put, one of its foremen, Robert Sayre, in charge of this job. Sayre, an experienced lineman himself, was assisted by James Carmac, a journeyman lineman, and by Russell Miller, an apprentice.

The lines to be covered with rubber hosing ran from the top of a tower on the roof of Emery's boiler house downward to a pole and cross arm approximately 85 feet away. The roof of the boiler house was 60 feet above the ground and the tower on top of the roof was 20 feet high. The cross arm on the pole below was 47 feet above the ground.

Foreman Sayer and Carmac and Miller first attempted to use a 55-foot bucket truck to put the hoses on the lines at that height, and then push them uphill towards the tower. However, this method proved infeasible because of the friction on the wire and the weight of the hoses. Sayre then consulted with his supervisor, James Kevelder, who was Myers' district manager for the Cincinnati area. They determined that the work could be done from a ladder on the boilerhouse roof placed against the tower, which would allow the employees to place the hoses on the power lines at the top of the tower and slide them in a downward direction.

On the day of the accident, Sayre, Carmac and Miller began to do the job from the roof. Rubber blankets were placed over all electrical equipment and the employees wore protective rubber gloves and sleeves. None wore safety belts or lanyards on the day of the accident. The ladder was placed on the east side of the tower and secured. Foreman Sayre and Carmac then went up on the ladder, with Sayre ascending first. Miller, who stood on the roof below, began handing sections of hosing to Carmac. In turn, Carmac handed the pieces to Sayre, who placed them on the easternmost power line. When the weight of the hosing on the east line began to unbalance the pole and cross arm at the lower end, Sayre and Carmac came down off the ladder, and the crew moved the ladder to the west side of the tower to begin placing the hosing on the west power line.[[5]]

The roof area near the base of the west side of the tower was obstructed by an air conditioner box, with a pipe extending outward from the box toward the tower. In the same area there were also angle iron braces for the tower itself. In order to avoid the air conditioner box and the angle iron bracing, the employees placed the base of the ladder on the far side of the air conditioner box so that the air conditioner box was between the ladder and the tower. The top of the ladder was placed against a horizonal cross member of the tower that was 18 feet above the roof, and Carmac placed a piece of wood under one of the legs of the ladder to compensate for unevenness in the surface of the roof.

Once the ladder was repositioned and made secure, the employees recommenced installing the hosing on the power line. This time Miller went up the ladder to place the hosing on the power line, followed by Carmac, while Sayer remained on the roof to hand up the sections of hosing. For reasons unclear in the record, Miller fell off the ladder and struck an energized "pothead jumper" (a connection between energized conductors on either side of the tower) some four to six feet below where he had been standing on the ladder. Miller was electrocuted when he struck the pothead jumper, and he then fell to the ground below. Carmac was injured when he jumped off the ladder onto the roof to avoid the electric flash that resulted when Miller struck the pothead jumper. There was no evidence that Miller's fall was caused by the ladder tipping or sliding.

Alleged Violation of 29 C.F.R. ї 1926.28(a)

The Secretary charged Myers with a serious violation of' 29 C.F.R. ї 1926.28(a) for its failure to require its employees at the work site to wear safety belts and lanyards. Myers counters that it may not properly be cited under ї 1926.28(a) because the standard was invalidly promulgated and is therefore void. Myers also contends that the failure of its employees to wear safety belts and lanyards on the Emery job was a direct violation of Myers' published and enforced safety rules, was unknown to Myers, and could not have been reasonably anticipated. We deal with these contentions in order.

(a) Validity and Interpretation of ї 1926.28(a)

This standard was originally promulgated under the Contract Work Hours and Safety Standards Act, commonly known as the Construction Safety Act. Section 107 of that statute, 40 U.S.C. ї 333, authorizes the Secretary to prescribe safety and health standards for federal or federally-assisted construction contracts. The standard, then codified as 29 C.F.R. ї 1518.28(a), required that personal protective equipment be worn "in all operations where there is an exposure to hazardous conditions and where this part [1518] indicates the need for using such equipment to reduce the hazards to employees." (emphasis added). On May 29, 1971, the standards in Part 1518 were adopted as standards under the Occupational Safety and Health Act, 36 Fed. Reg. 10469, and on December 30, 1971, ї 28(a) was redesignated as 29 C.F.R. ї 1926-28(a). 36 Fed. Reg. 25232 (1971). This adoption of the standards at Part 1518 was accomplished pursuant to section 6(a) of the Occupational Safety and Health Act, 29 U.S.C. ї655(a), which allowed the Secretary for the first two years under the Act to adopt any existing federal or national consensus safety or health standard without regard for the notice and comment rulemaking procedures of the Administrative Procedure Act, 5 U.S.C. 551 et seq, or the promulgation procedures outlined in ї 6(b) of the OSH Act, 29 U.S.C. ї 655(b).

When ї 28(a) was republished in the January 1, 1972, revised Code of Federal Regulations the wording of the standard was still exactly the same as the old Construction Safety Act standard at 29 C.F.R. 1518.28(a). Subsequently, on December 16, 1972, without any notice and comment rulemaking procedure, the Secretary "revised" a number of the standards at Part 1926, including ї 1926.28(a). The revised ї 1926.28(a) read

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. (Emphasis added.)

37 Fed. Reg. 27510 (1972). This remains the language of the current section 1926.28(a) under which Myers has been cited.

Myers contends that the change of the word "and" to the word "or" was a substantive change in the standard, which is impermissible without notice and comment rulemaking. The Secretary, on the other hand, contends that the revision of ї 28(a) was only to "improve its usefulness" and to "correct a number of typographical and clerical errors," 37 Fed. Reg. 27503 (1972), and did not materially affect the duties of employers under the standard.

In its present form the standard is clearly in the disjunctive; that is, an employer must require the wearing of personal protective equipment either where there is an exposure to a hazardous condition or where Part 1926 elsewhere affirmatively indicates the need for using such equipment. But if the word "and" in the original standard was conjunctive, then it imposed a burden on employers to require the wearing of personal protective equipment only if there existed an exposure to a hazardous condition and also if Part 1926 elsewhere affirmatively indicated the need for the use of such equipment.

The Commission and the courts have held that in adopting consensus standards under ї 6(a) of the OSH Act the Secretary "was not empowered to make substantive changes from the source standard." Senco Products, Inc., 82 OSAHRC 59/E9, 10 BNA OSHC 2091, 2095, 1982 CCH OSHC І 26,304, p. 33,271 (No. 79-3291, 1982). See also Diebold, Inc. v. Marshall, 585 F.2d 1327, 1332 & n.6 (6th Cir. 1978). Thus, the question before us is, first, whether "and" in the standard as originally promulgated was conjunctive, and, if so, whether the subsequent change of the word "and" to "or" in the standard substantively affected the duties of employers. With respect to ї 1926.28(a), this Is not the first time that the question has been raised. Indeed, the history of ї 28(a) is particularly troublesome. Previous cases have resulted in inconclusive and inconsistent holdings, or have avoided the issue altogether.

Previous Review Commission cases reflect a sharp division over whether the word "and" in the original standard was in the conjunctive or the disjunctive. See, e.g., Hoffman Construction Co., 75 OSAHRC 31/E12, 2 BNA OSHC 1523, 1974-75 CCH OSHD І 19,275 (No. 644, 1975), rev'd, 586 F.2d 281 (9th Cir. 1976); Carpenter Rigging & Contracting Corp., 75 OSAHRC 32/D13, 2 BNA OSHC 1544, 1974-75 CCH OSHD І 19,252 (No. 1399, 1975); General Bronze Architectural Products, 75 OSAHRC 62/C14, 3 BNA OSHC 1244, 1974-75 CCH OSHD І 19,690 (No. 2031, 1975); United Engineers & Constructors, Inc., 75 OSAHRC 69/A2, 3 BNA OSHC 1313, 1974-75 CCH OSHD І 19,780 (No. 2414, 1975); Isseks Brothers, Inc., 76 OSAHRC 8/B9, 3 BNA OSHC 1964, 1975-76 CCH OSHD І 20,361 (No. 6415, 1976). However, it seems clear to us that the use of the word "and" in the standard as originally promulgated was in the conjunctive,[[6]] and that a violation could be established only upon proof of both (1) an exposure to a hazardous condition requiring the use of personal protective equipment, and (2) the failure to use this equipment when the need for its use is indicated elsewhere in Part 1926. Our view is buttressed by the holding of the Ninth Circuit in Hoffman Construction Co., supra, 546 F.2d at 283, where the court held that
Liability under 29 C.F.R. ї 1926[.28(a)] as then written required proof of three elements: (1) that the employer did not require the wearing of protective equipment; (2) that there was exposure to hazardous conditions; and (3) that [some other section of] Part 1926 of the regulations indicated a need for protective equipment.

It is equally clear that the revised ї 28(a) is in the disjunctive. Under the standard as presently worded, a violation may be established by proof of either a hazard or the failure to use personal protective equipment when the need for its use is indicated elsewhere In Part 1926. With the revision, a violation can be established by simply showing a failure to require the wearing of "appropriate" personal protective equipment where there is employee exposure to a hazardous condition. The former version required not only proof of exposure to a hazardous condition, but also proof that need for a specific item of protective equipment was indicated in another section of Part 1926. Thus, the revision of ї 28(a) obviously deleted an element of proof necessary to establish a violation.

Previous Review Commission cases have, again, sharply divided over whether this deletion of an element of proof, and the corresponding obligation of employers under the Act, was substantive.[[7]] See, e.g. Carpenter Rigging & Contracting Corp., supra; Island Steel & Welding, Ltd., 75 OSAHRC 51/A2, 3 BNA OSHC 1101, 1974-75 CCH OSHD І 19,545 (No. 2931, 1975); Isseks Brothers, Inc., supra; Sweetman Construction Co., 76 OSAHRC 35/A2, 3 BNA OSHC 2056, 1975-76 CCH OSHD І 20,466 (No. 3750, 1976); Schiavone Construction Co., 77 OSAHRC 78/A2, 5 BNA OSHC 1385, 1977-78 CCH OSHD І 21,815 (No. 12767, 1977); cf. Eichleay Corp., 75 OSAHRC 35/B6, 2 BNA OSHC 1635, 1974-75 CCH OSHD І 19,324 (No. 2610, 1975); Die-Underhill, 75 OSAHRC 35/F10, 2 BNA OSHC 1651, 1974-75 CCH OSHD І 19,328 (No. 2232, 1975); General Bronze Architectural Products, supra; B & B Insulation Inc., 77 OSAHRC 49/A2, 5 BNA OSHC 1265, 1977-78 CCH OSHD І 21,747 (No. 9985, 1977), rev'd, 583 F.2d 1364 (5th Cir. 1978). The decisions of the respective courts of appeals unfortunately provide no guidance in resolving this question. Thus far the courts of appeals have declined to rule on the direct issue of whether the revision to ї 28(a) was substantive. See, Austin Building Co. v. OSHRC, 647 F.2d 1063, 1067 (10th Cir. 1981); Ray Evers Welding Co. v. OSHRC, 625 F.2d 726, 730 n.5 (6th Cir. 1980); B & B Insulation, Inc., supra, 583 F.2d at 1368; Hoffman Construction Co., supra, 546 F.2d at 283 n-5.

Judge Salyers below, ruled that the revision of ї 28(a) from "and" to "or" was not substantive, following the Commission's decision in S & H Riggers and Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD І 23,480 (No. 15855, 1979), rev'd on other grounds, 659 F.2d 1273 (5th Cir. 1981). In S & H Riggers the Commission rejected an identical challenge to ї 28(a) on the belief that "we have consistently held that the change was not substantive." 7 BNA OSHC at 1263. The majority in S & H Riggers thought that the earlier Commission decisions in Carpenter Rigging & Contracting Corp, supra, Isseks Brothers, Inc., supra, Island Steel and Welding Ltd., supra, and Eichleay Corp, supra, established that the change in ї 1926.28(a) was not substantive. Analysis of those cases, however, reveals that a majority of the Commissioners never could agree on the proper interpretation of ї 28(a) either before or after the amendment. Indeed, as Commissioner Barnako correctly pointed out in his separate opinion in S & H Riggers, the cases relied on in S & H Riggers actually reflect inconsistent and sharply divided views as to the proper interpretation of ї 28(a).[[8]]

After careful consideration we conclude that the holding in S & H Riggers was predicated on a misperception of Review Commission precedent. Therefore, to the extent that S & H Riggers holds that the revision of ї 28(a) was not substantive, we overrule that decision. We conclude, rather, that the revision or amendment of ї 28(a) constituted a substantive change, not an administrative one.[[9]]

When the Secretary desires to make such a substantive change in a standard, he must provide notice of the contemplated change to the public and allow the opportunity to submit written objections thereto and to participate in a public hearing thereon. 5 U.S.C. ї 553; 29 U.S.C. ї 655(b).[[10]] Those procedures were not followed in amending 29 C.F.R. ї 1926.28(a). Section 28(a) is therefore invalid in its modified form because it was not properly promulgated. Senco Products, Inc., supra; Florida Peach Growers Association, Inc. v. United States Department of Labor, 489 F.2d 120 (5th Cir. 1974). Since amendment of ї 28(a) was invalid, it did not repeal the original standard. Frost v. Corporation Commission, 278 U.S. 515, 525-527 (1929); United States v. Tufti, 542 F.2d 1046 (9th Cir. 1976); Conlon v. Adamski, 77 F.2d 397 (D.C. Cir. 1935). We therefore conclude that the original version of ї 1926.28(a) remains in effect and that to establish a violation the Secretary must prove (1) exposure to a hazardous condition; (2) that some other section of Part 1926 indicates a need for the use of particular protective equipment in the circumstances presented; and that (3) the employer failed to require the use of the equipment. Hoffman Construction Co., supra, 546 F.2d at 283.

(b) Proof Of A Violation

In the present case the Secretary proved the first element necessary to establish a violation. The facts plainly demonstrate that the three Myers' employees were exposed to the hazard of a fall warranting the use of safety belts. Indeed, Myers concedes this in its brief on review.

The second part of the Secretary's burden under ї 1926.28(a) requires him to prove that some other section of Part 1926 indicates the need for the particular personal protective equipment under the circumstances of this case.[[11]] By "indicates the need" we mean that the other section indicates that a particular form of personal protective equipment is a practical and an appropriate means of protection against a specified hazard. We do not mean that the other section necessarily requires the use of the particular equipment, but that it cites the equipment as among the satisfactory means of protecting against a described hazard so as to put an employer on notice that a particular type of personal protective equipment is appropriate in a given case. The Secretary has alleged, and we agree, that ї 1926.105(a) "indicates the need" for safety belts where the "workplace is more than 25 feet above the ground." The record in this case clearly establishes that Myers' employees were working "more than 25 feet above the ground" and were exposed to a fall hazard.[[12]]

Finally, under the clear wording of the standard, the Secretary must prove that the employer failed to "requir[e] the wearing of" the prescribed safety equipment under the circumstances specified. We find here that Myers did require its employees to use safety belts and lanyards under the conditions cited. The record shows that Myers' safety rules specifically address the appropriate use of safety belts and require employees to use safety belts when "working at elevated locations on poles, towers or other structures." Each supervisor is given a copy of Myers' safety manual containing these rules, must sign an acknowledgment of receipt, and is expected to follow and enforce the rules. Myers' safety supervisors visit the various worksites to insure that safety directives are received, understood and followed. The company's safety program is enforced through a progressive system of discipline consisting of verbal and written reprimands, demotion to a lower classification, suspension from duties, and discharge. At the hearing the compliance officer acknowledged that the company's procedures for belts and ladders set forth in the safety rules and manual were appropriate, and that he did not consider Myers' employee training to be deficient. Myers' evidence concerning the communication of its rule regarding safety belts for all employees, including foremen, established that Sayre received the same training afforded all employees.

Moreover, Myers had no reason to suspect that Sayre's crew was likely to perform work in violation of its safety rules. Sayre was a good supervisor who in the past had never been known to engage in or supervise any activity during which he or his crew failed to use safety belts when they were necessary. We find no evidence in the record before us that Robert Sayre's conduct here was reasonably foreseeable to or preventable by Myers. When Myers became aware of his violation, it took decisive action. After the company determined that Sayre had failed to require the use of safety belts on September 17, 1982, he was given a two-week disciplinary suspension with the expectation that he would not return to work.

Based on this evidence, we conclude that the Secretary failed to sustain his burden of proving a violation of section 5(a)(2) of the Act. See Pennsylvania Power & Light Co. v. OSHRC, 737 F.2d 350 (3rd Cir. 1984); Horne Plumbing & Heating Co. v. OSHRC, 528 F.2d 564, 571 (5th Cir. 1976); H.E. Wiese, Inc., 82 OSAHRC 18/A2, 10 BNA OSHC 1499, 1505, 1982 CCH OSHD І 25,985, pp. 32,613-14 (Nos. 78-204 & 78,205, 1982), aff'd, No. 82- 4202, (5th Cir. Apr. 27, 1983) (unpublished). As the Ninth Circuit stated in Brennan v. OSHRC (Alsea Lumber Co.), 511 F.2d 1139, 1144 (9th Cir. 1975). "Fundamental fairness would require that one charged with and penalized for violation be shown to have caused, or at least knowingly acquiesced in, that violation." Since the Secretary did not make such a showing here, we vacate the citation alleging noncompliance with 29 C.F.R. ї 1926.28(a).

Alleged Violation of 29 C.F.R. ї 1926.450(a)(7)

Section 1926.450(a)(7) requires that the pitch of a portable ladder be "about" one-to-four. In concluding that Myers had violated this standard, Judge Salyers found that the base of the 18 foot ladder upon which the employees were working was placed 9 feet 8 inches from the tower. However, it is not at all clear from the evidence in the record that this distance is correct.

Myers contends that the distance between the base of the tower and the base of the ladder was not that great, and from our review of the photographic evidence we are inclined to agree. Moreover, it appears that the air conditioning box, the pipe, and the angle iron bracing precluded placing the ladder anywhere other than on the far side of the air conditioning box. The ladder could not be placed between the box and the tower because the space was clearly too narrow to allow the ladder to be safely pitched against the tower. The ladder would also have been obstructed by the pipe extending from the box if Myers had attempted to place the ladder on the tower side of the air conditioner box. From our review of the evidence it appears that Myers' employees had no alternative but to place the ladder on the far side of the air conditioner box, when working on the west side of the tower.

Section 1926.450(a)(7) does not require that the horizontal distance to the base of a portable ladder must be precisely onefourth of the working length of the ladder but, rather, requires only that the ratio between the horizontal distance and the length of the ladder be "about" one-to-four. The standard, therefore, permits an employer to deviate from a strict one-to-four ratio but does not indicate the precise degree of deviation permitted. In interpreting a standard that uses terms which are relative rather than absolute, the Commission must consider all objective factors that may give guidance to the meaning of the standard. See Austin Bridge Co., 85 OSAHRC __/__, 12 BNA OSHC 1181, 1985 CCH OSHD І 27,169 (No. 81-1049, 1985), petition for review filed, No. 85-4190 (5th Cir. Mar. 21, 1985). These factors should obviously include the purpose of the standard, to the extent that purpose can be discerned. Cf. F.L. Heughes & Co., 83 OSAHRC 31/A2, 11 BNA OSHC 1391, 1983 CCH OSHD І 26,520 (No. 14519, 1983) (standard allowing guardrail to be placed at "approximately" a 42-inch height does not permit the employer to position the guardrail at a height that defeats the purpose of a guardrail). The record here does not indicate the purpose of the pitch requirement of the standard. We may reasonably conclude, however, that the standard is intended to insure that the angle at which a portable ladder is placed is neither too great nor too shallow to permit an employee to climb the ladder without losing his balance or causing the ladder to tip or fall. The judge here found, and the Secretary does not dispute, that the ladder had been properly secured and was stable. Photographs taken shortly after the accident show that the ladder had remained in place against the tower. Thus, the ladder did not move while the employees were working from it, and it remained in position even after Miller fell and Carmac jumped from it. Therefore, it is clear that the angle at which the ladder had been placed did not cause the ladder itself to be incapable of safely supporting the employees. Since the record fails to explain what may have caused Miller to fall, it would be purely speculative to conclude that the angle of the ladder exposed Myers' employees to injury.

In conclusion, we find that the pitch of the ladder was sufficiently within the standard's relative requirement that the angle be "about" one- to-four, and that the Secretary failed to demonstrate that any discrepancy between a precise one-to-four pitch and the slope of Myers' ladder was excessive in light of the totality of the circumstances here.[[13]]

Alleged Violation of 29 C.F.R.ї 1926.450(a)(6)

The Secretary alleged that there were pieces of wood and metal on the roof near the base of the ladder, and cited Myers for a tripping hazard. Myers acknowledges that when the employees moved the ladder to the west side of the tower they placed a piece of wood under one leg of the ladder to brace it because the roof was uneven. Myers contends that there was nothing other than that piece of wood near the base of the ladder and that it cannot properly be found in violation of this standard when it placed material at the base of the ladder for the purpose of stabilizing the ladder. The judge found that, there were pieces of angle iron "in the area around" the foot of the ladder and affirmed the citation.

The standard says "Portable ladder feet shall be placed on a substantial base and the area around the top and bottom of the ladder shall be kept clear." The standard clearly intends that the ladder shall be firmly established on a base to prevent slippage or movement of the ladder, and also seeks to prevent tripping hazards that could occur while an employee is ascending or descending the ladder. We do not believe that the purpose of ї 1926.450(a)(6) is to prevent the use of a piece of wood to brace and stabilize the foot of the ladder. Rather, we find here that the ladder feet were "placed on a substantial base" and conclude that there was no violation of the standard as to proper bracing and stabilizing of the ladder.

With respect to a possible tripping hazard, the evidence does not establish that any material other than the wood piece used to stabilize the ladder was placed directly at the foot of the ladder. The inspector's photograph relied on by the judge clearly shows pieces of metal some distance away from the ladder's base. However, the standard requires only that the "area around" the base of the ladder be kept clear. Thus, the issue before us is whether Myers can be found in violation of this standard merely on the fact that metal objects were located on the roof in the general vicinity of the ladder.

The standard does not define the term "area," nor does it otherwise indicate the extent of the area the employer is required to keep clear. As we said in discussing the alleged violation of section 1926.450(a)(7), the Commission must rely on objective factors in order to give meaning to a standard that uses imprecise and relative terminology. There is no evidence showing the actual distance between the base of the ladder and the pieces of metal depicted in the photograph. From the photograph, however, it- appears that there is a considerable clear area along the roof from the metal objects to the ladder. It is plain from the photograph that these objects are not in a location where they would obstruct an employee in ascending or descending the ladder. Indeed, on the limited record here, there is no apparent relationship between the metal objects and the ladder. Absent any indication to the contrary, we cannot conclude that the standard was intended to apply in these circumstances. We therefore vacate this citation item.

Accordingly, the citation items alleging violations of 29 C.F.R. її 1926.28(a), 1926.450(a)(6) and 1926.450(a)(7) are vacated.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: January 16, 1986

The Administrative Law Judge decision in this matter is unavailable in this format. To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] 29 C.F.R. ї 1926.28(a) provides as follows:
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]] 29 C.F.R. ї 1926.450(a)(7) requires that
Portable ladders shall be used at such a pitch that the horizontal distance from the top support to the foot of the ladder is about one quarter of the working length of the ladder (the length along the ladder between the foot and the top support). Ladders shall not be used in a horizontal position as platforms, runaways, or scaffolds.

[[3]] Section 1926.450(a)(6) requires that "[P]ortable ladder feet shall be placed on a substantial base, and the area around the top and bottom of the ladder shall be kept clear."

[[4]] Emery wanted to protect the power lines from any accidental contact by a crane doing construction work at the plant.

[[5]] The weight on the east and west lines had to be balanced to prevent the pole at the lower level from twisting.

[[6]] It is axiomatic that "and" normally has a conjunctive meaning. United States v. Castellana, 433 F.Supp. 1309 (M.D. Fla. 1977). See De Sylva v. Ballentine, 351 U.S. 570, 573-74 (1956). When "and" is used to join two clauses, it normally indicates that both must be read together in determining the rights or obligations of those affected by the statute or regulation in question. See Areizaga v. Quern, 442 F.Supp. 168 (N.D. Ill. 1977), aff'd, 590 F.2d 226 (7th Cir. 1978); United States v. Gera, 279 F.Supp. 731 (W.D. Pa. 1968), rev'd and rem'd on other grounds, 409 F.2d 117 (3d Cir. 1969). Conversely, "or" is normally a disjunctive rather than a conjunctive; it separates alternative or fully independent provisions. United States Customs Service v. FLRA, 739 F.2d 829 (2d Cir. 1984); United States v. Garcia, 718 F.2d 1528, 1532-33 (11th Cir. 1983), aff'd 105 S.Ct. 479 (1984); George Hyman Constr. Co. v. OSHRC, 582 F.2d 834, 840, n. 10 (4th Cir. 1978); Piet v. United States, 176 F.Supp. 576, 583 (S.D. Cal. 1959), aff'd 283 F.2d 693 (9th Cir. 1960). As a disjunctive, therefore, "or" is not freely interchangeable with "and." Illinois v. ICC, 687 F.2d 1047, 1054 (7th Cir. 1982); United States v. Moore, 613 F.2d 1029, 1040 (D.C. Cir. 1979), cert. denied, 446 U.S. 954 (1960). We recognize, of course, that there may be circumstances in which strict adherence to the usual definitions of "and" and "or" would frustrate the drafter's intent or create an inconsistency with other provisions. United States v. Fisk, 70 U.S. 445 (1866); Moore, supra; In re Rice, 165 F.2d 617, 619 n.3 (D.C. Cir. 1947). However, there is no history of section 1926.28(a) or other material to indicate the Secretary's intent when he promulgated the standard under the Construction Safety Act and adopted it under the OSH Act. We therefore cannot conclude that the Secretary intended "and" to be read disjunctively. See Alabama v. Marshall, 626 F.2d 366 (5th Cir. 1980), cert. denied, 452 U.S. 905 (1981) (interpretation of a statute must accord with its plain language if a contrary intent is not clearly and distinctly shown). Nor is there any conflict with other standards arising from the term "and" to necessitate construing it in a disjunctive manner. The circumstances presented here, therefore, do not justify construing "and" in a manner contrary to its usual meaning.

[[7]] Under the standard as originally promulgated the Secretary had the duty to specify elsewhere in his standards the circumstances where personal protective equipment must be used under ї 1926.28(a). By contrast, under the standard in its present form the employer is liable for evaluating whether the conditions in its workplace necessitate the use of personal protective equipment without the benefit of guidance from the Secretary as provided under the original version of the standard.

[[8]] In Carpenter Rigging & Contracting Corp, supra, Commissioner Cleary interpreted the original standard as being in the disjunctive and therefore concluded that the change from "and" to "or" was not substantive. Commissioner Moran took the opposite view. Commissioner Van Namee expressly did "not join in" Commissioner Cleary's interpretation of the standard, but voted to affirm the citation on other grounds. 2 OSHC at 1549. In Eichleay Corp, and in Island Steel and Welding, Ltd. the majority held only that the standard meant the same after the amendment as it did before the amendment. Commissioner Cleary so held because he believed that the "and" in the original standard was in the disjunctive, so that the change to "or" was not substantive. Commissioner Van Namee had stated earlier in Hoffman Constr. Co., supra, his contrary view that "and" in the original standard was conjunctive, but expressly declined to address that issue in Island Steel and Eichleay. He indicated instead that if the meaning of the standard after the amendment was not the same as the meaning before the amendment, then the change must be deemed substantive and the Secretary's "failure to use the Act's rulemaking machinery would nullify the attempted amendment and leave the original standard intact." Island Steel, supra, 3 BNA OSHC at 1102, 1974-75 CCH OSHD at p. 23,335. Commissioner Moran consistently asserted that the change in the standard was substantive. Similarly, in Isseks Brothers, Inc., supra, Commissioner Cleary adhered to his previous interpretations of the standard. Although Commissioner Barnako voted to affirm the citation, he expressly disassociated himself from Commissioner Cleary's "discussion of the vagueness and validity" of ї 28(a). 3 BNA OSHC at 1967, 1975-76 CCH OSHD at p. 24,288. Commissioner Moran again dissented on the grounds hat the amendment to the standard was invalid. Thus, there has never been a clear majority holding as to either the interpretation or the validity of ї 28(a). Indeed, this divergence of views prompted the Fifth Circuit to comment that "each decision by the Commission has produced as many conflicting interpretations as there were participating Commissioners, both under the old regulation and the new." B & B Insulation, Inc., supra, 583 F.2d at 1368.

[[9]] We reject the Secretary's contention that the Commission should defer to the statement accompanying the revision of the standards that no substantive changes were made. As a subsequent, noncontemporaneous document, the revision and its preamble cannot be relied on to establish the meaning the Secretary intended when he originally promulgated section 1926.28(a) under the Occupational Safety and Health Act. Waterman Steamship Corp. v. United States, 381 U.S. 252, 269 (1965); United States v. Price, 361 U.S. 304, 313 (1960). In any event, the Secretary's characterization of his rulemaking actions is not binding on the Commission. See Marshall v. Huffhines Steel Co., 488 F.Supp. 995 (N.D. Tex. 1979), aff'd mem., 645 F.2d 288 (5th Cir. 1981), and cases cited therein.

[[10]] We do not view the notice and comment requirements of 5 U.S.C. ї 553 as meaningless technicalities to be disregarded when it is inconvenient to follow these procedures. Section 553 was enacted to give the public an opportunity to participate in the rulemaking process. Section 553 also contemplates that the agency promulgating the rule (or amendment) will use this procedures which have a substantial impact on those regulated. See Texaco, Inc. v. Federal Power Commission, 412 F.2d 740, 744 (3rd Cir. 1969). This principle of fundamental fairness was emphasized by the Supreme Court in N.L.R.B. v. Wyman Gordon Company, 394 U.S. 759, 764 (1969), wherein the Court observed that the rule-making provisions of section 553 "where designed to assure fairness and mature consideration of rules of general application."

[[11]] We do not say, at this point, that the Secretary must specify in the citation itself the conjunctive section in Part 1926 that "indicates the need" for personal protective equipment under the particular circumstances, although that seems to us to be the better approach. We only reiterate the due process requirement that at some point in the proceedings the respondent must have fair notice of the conjunctive section upon which the Secretary relies. In the present case we find that Myers had fair notice of the charge of failure to use safety belts to abate the hazard of a fall exceeding twenty five feet.

[[12]] Section 1926.105(a) states as follows:

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.

If the issue of the interpretation of this language were one of first impression, Commissioner Rader would conclude that this standard does not indicate a need for the use of personal protective equipment as fall protection. Rather, in Commissioner Rader's view, section 1926.105(a) speaks only to safety nets, and under the plain wording of the standard, safety nets are called for only when the other specified means of fall protection, including safety belts and safety lines, cannot feasibly or practicably be used. Commissioner Rader recognizes, however, that the courts and the Commission have interpreted section 1926.105(a) otherwise, and have held, as the majority states here, that the standard includes safety belts as an appropriate means of fall protection. See Southern Colorado Prestress Co. v. OSHRC, 586 F.2d 1342, 1350 (10th Cir. 1978); Brennan v. Southern Contractors Service, 492 F.2d 498 (5th Cir. 1974); Sierra Constr. Corp., 78 OSAHRC 2/E6, 6 BNA OSHC 1278, 1978 CCH OSHD І 22,506 (No. 13638, 1978). In view of the controlling case law, Commissioner Rader joins in the majority's conclusion that section 1926.105(a) indicates a need for using safety belts in the circumstances of this case.

[[13]] In this case, assuming, arguendo, that the distance figures given by the inspector are correct, Myers' ladder had been placed at an angle to the tower of approximately 62 degrees. An exact ratio of one-to-four between the horizontal distance and the length of the ladder constitutes an angle of approximately 75 degrees. We do not find this deviation to be sufficient under the circumstances to justify finding that Myers violated the standard.