December 19, 1977


BEFORE CLEARY, Chairman; and BARNAKO, Commissioner.

BARNAKO, Commissioner:

            A December 4, 1975 decision of Administrative Law Judge John J. Morris is before this Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970.[1] The issue is whether the Judge properly found that the Respondent violated the standard at 29 C.F.R. 1926.28(a).[2] We affirm the Judge’s decision.

            Respondent was the prime contractor for the construction of a sodaash processing plant. The exposure to hazardous conditions allegedly occurred when two of Respondent’s employees climbed from the inside wall of certain forming, where there was a scaffold, to the outside where no scaffold was provided in order to tighten the bolts on the outside walers. This operation took approximately five minutes. The compliance officer who inspected Respondent’s worksite testified that the employees were working at an estimated elevation of twenty-five feet without an attached lifeline safety belt. He conceded, however, that he had not actually measured the height. On the other hand, several of Respondent’s employees testified that the elevation was approximately ten feet.[3] Respondent’s carpenter-foreman and Respondent’s safety coordinator testified that the men were working above soft backfilled dirt. The employees obtained safety belts immediately after questioning by the compliance officer, and they used them throughout completion of the operation.

            The Judge made a finding of fact that the employees were working at a height of twenty-five feet. Rejecting Respondent’s argument that the employees were not exposed to hazardous work conditions, he concluded that Respondent had violated the standard. The Judge viewed the brevity of the five-minute exposure as a factor to be weighed in assessing a penalty but not as a defense to the violation.

            On review, Respondent continues to argue that its employees were not exposed to hazardous work conditions. It contends that the Secretary failed to establish exposure to a hazard because, (1) the total time for completion of the work was only a few minutes, (2) the surface above which the employees were working was soft fill dirt, and (3) the work was performed at a height of approximately ten feet rather than the twenty-five foot height alleged in the complaint.

            As to the Judge’s finding with respect to the disputed height, we see no reason to reevaluate such a finding where, as here, it has a firm basis in the record. See CTM, Inc., 77 OSAHRC 136/C12, 5 BNA OSHC 1578, 1977 78 CCH OSHD para. 21,957 (No. 13008, 1977). Further, we conclude that a fall of twenty-five feet is hazardous regardless of the type of surface beneath the workers. The nature of the surface would affect the type of injury which would likely result from a fall, but here the violation is alleged as nonserious. Compare Schiavone Construction Co., 77 OSAHRC 78/A2, 5 BNA OSHC 1385, 1977 78 CCH OSHD para. 21,815 (No. 12767, 1977). While both the brevity of the exposure and the nature of the underlying surface affect the gravity of the violation and hence the penalty assessment under Section 17(j) of the Act, neither of these factors is sufficient to negate the existence of the violation.

            Respondent also argues that its policy of providing safety belts but leaving their use to the discretion of its employees is sufficient to comply with the standard. This Commission has previously rejected a similar argument. The decision of whether fall protection is necessary cannot be left to the unbridled discretion of the foreman or employees on the jobsite. Rather, such a decision is controlled by the standard of conduct of a reasonably prudent employer in the circumstances. See B & B Insulation, Inc., 77 OSAHRC 49/A2, 5 BNA OSHC 1265, 1977 78 CCH OSHD para. 21,747 (No. 9985, 1977). We note that Respondent itself recognized that safety belts should be used at heights of 25 feet and above.

            Finally, Respondent argues that a statement made by opposing counsel during closing argument describing the elevation as ten feet constitutes a binding admission of the height now in dispute. We disagree. An attorney’s statement during the course of trial does not conclusively bind his client unless the statement can be properly characterized as a judicial admission. Formal judicial admissions are to be distinguished from mere evidential admissions. See Taylor v. Allis-Chalmers Manufacturing Co., 320 F. Supp. 1381 (E.D. Pa. 1969), aff’d per curiam 436 F.2d 416 (3rd Cir. 1970); See also McCormick, Evidence 8267, at 643 644 (2d ed. 1972). In Rhoades Inc. v. United Airlines Inc., 340 F.2d 481 (3rd Cir. 1965), the Court noted that a formal judicial admission exists only where there is no doubt or ambiguity regarding counsel’s statement.[4] In our case, however, the statement which Respondent characterizes as an admission was an apparent misstatement contained in a hasty recapitulation of the evidence. Moreover, the statement was directly contradicted by the testimony of the Secretary’s own witness with regard to the disputed height. On these facts, we conclude that the statement falls short of the formality and conclusiveness necessary to constitute a binding judicial admission.

            Accordingly, the Judge’s decision is hereby affirmed.




Ray H. Darling, Jr.

Acting Executive Secretary

















December 4, 1975


Ronald G. Whiting, Esquire, Office of Henry C. Mahlman, Associate Regional Solicitor, U.S. Department of Labor,

15019 Federal Building, 1961 Stout Street, Denver,

Colorado, for the Complainant,


James O. Ball, Esquire, and Jeff Lee, Esquire, Counsel, Legal Department, Fifty Beale Street, San Francisco, California, for the Respondent.



Morris, Judge, OSAHRC.

            Citations against respondent allege violations of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereafter called the Act). Complainant alleges that while constructing a plant respondent violated Section 654(a)(2) of the Act in failing to comply with occupational safety and health standards. Without conceding the existence of a hazard or the validity of any standard, respondent stipulated that if a violation occurred its employees were exposed (Tr. 48).

            Citation 3 alleges a serious violation of 29 CFR 1926.750(b)(1)(ii) and proposes a civil penalty of $800. During the trial the Judge amended citation 3, in accordance with Rule 15(b), F.R.C.P., to allege a violation of 29 CFR 1926.28(a). The parties did not object to the amendment (Tr. 212–214).

            The citation reads:

On November 6, 1974 while welding on the bottom structure section of the coa hopper, employee was permitted to work at a height which could have resulted in a potential fall distance in excess of 25 feet. Scaffolds were not used nor were safety nets installed and maintained.


            The standards read:

§ 1926.750 Flooring requirements.

(b) Temporary flooring-skeleton steel construction in tiered buildings. (1)(ii) On buildings or structures not adaptable to temporary floors, and where scaffolds are not used, safety nets shall be installed and maintained whenever the potential fall distance exceeds two stories or 25 feet. The nets shall be hung with sufficient clearance to prevent contacts with the surface of structures below.


§ 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.


            Complainant’s evidence: A worker did not tie off his lanyard and no other safety devices could prevent a potential fall of 25 feet on this steel erection project. (Tr. 21–24, 27, 31; compl’s. ex. 1).

            Respondent’s evidence: The exposed worker had only momentarily arrived at the work station carrying an oxyacetylene torch (Tr. 113–115). A co-worker, the first to arrive at the work station, had already tied off. and was taking the torch from the exposed worker (Tr. 116–117, compl’s. ex. 1). There was no opportunity for the exposed worker to tie off his six foot line (Tr. 115–116, 119–120, 124–125). A worker cannot tie off while moving across the iron or while holding a torch in one hand (Tr. 125–126).

            Iron bracking interlaced beneath the workers rendered safety nets impractical (Tr. 133, 139, 192; compl’s ex. 1; resp’s. ex. A & B).

            The facts establish the defense of impossibility of performance. The exposed employee moved 90 feet across an iron beam (Tr. 225), momentarily arrived at the work station, and was passing equipment to his co-worker. He could not tie off without causing a greater danger to himself. He is not required to do so in this circumstance. Secretary v. American Bridge and Iron 12 OSAHRC 22 (1974).

            Complainant’s evidence advocating safety nets lacks persuasiveness and fails in view of contradictory evidence (Tr. 28, 133, 139, 192; compl’s. ex. 1; resp’s. ex. A & B).

            Citation 4 alleges a serious violation of 29 CFR 1926.752(k) and proposes a civil penalty of $800. The citation reads:

            On November 6, 1974, while welding in the Boiler #5 area, employee was permitted to work from a float scaffold approximately 12 feet from the floor level, and he was not provided a safety belt in accordance with 29 CFR 1926.104.

            The standard reads:

§ 1926.752 Bolting, riveting fitting up, and plumbing-up.

(a) General requirements.

(k) Employees shall be proved with safety belts in accordance with § 1926.104 when they are working on float scaffolds.


            Complainant’s evidence: A worker did not wear a safety belt while welding on a twelve foot high float scaffold (Tr. 32, 33, 37, 145; compl’s. ex. 2).

            Respondent’s evidence: The worker ascended to his workplace to remove his tools and let the scaffold down; while there he decided to make “one or two additional passes” on his work. This effort took 2 or 3 minutes: his safety belt remained in his tool box (Tr. 35–36, 144–145, 147, 149).

            Under 29 U.S.C. 666(j) a serious violation is deemed to exist unless the employer did not, and could not with exercise of reasonable diligence know of the presence of the violation. The facts here do not establish actual or constructive knowledge by respondent of the violation. Secretary v. North American Rockwell Corporation, 16 OSAHRC 444 (1975).

            Citation 5, item 1 alleges a nonserious violation of 29 CFR 1910.22(d)(1) and proposes no civil penalty. The citation reads:

Maintenance shop and general warehouse: Overhead area used for storage was not capacity rated nor placarded as to clearly identify their capacity.


            The standard reads:

§ 1910.22 General requirements.

(d) Floor loading protection. (1) In every building or other structure, or part thereof, used for mercantile, business, industrial, or storage purposes, the loads approved by the building official shall be marked on plates of approved design which shall be supplied and securely affixed by the owner of the building, or his duly authorized agent, in a conspicuous place in each space to which they relate. Such plates shall not be removed or defaced but, if lost, removed, or defaced, shall be replaced by the owner or his agent.


            The evidence: In a storage area above an office and tool crib, respondent stored various light-weight items (Tr. 39, 40–42, 46). The storage area did not have a placard showing rating capacity (Tr. 39).

            In Secretary v. Deering Milliken 18 OSAHRC –––– Docket Number 8960 (final order May 21, 1975) Judge John J. Larkin vacated a citation based on 29 CFR 1910.22(d)(1) for the reason that the standard lacks ascertainable criteria. It nowhere defines the key term of “building official” or “plates of approved design”. In Secretary v. Deering Milliken, Inc. (Gainsville Plant) 18 OSAHRC ––––, Docket Number 11109 (final order June 4, 1975) Judge John S. Patton reached essentially the same conclusion. The foregoing cases succinctly point out the defects in the cited standard.

            Citation 5, item 2 alleges a violation of 29 CFR 1910.25(d)(2)(x)(1) and proposes a civil penalty of $65.

            The citation reads:

New change house area: A painter was using two step ladders as legs for a scaffold, with a 2″ x 12″ plank suspended between them. This practice is contrary to the step ladders’ intended purpose.


            The standard reads:

§ 1910.25 Portable wood ladders.

(d) Care and use of ladders—

(2) Use. The following safety precautions shall be observed in connection with the use of ladders:

(xi) Ladders shall not be used as guys, braces, or shids, or for other than their intended purposes.


            Complainant’s evidence: Two 7 foot “A” type step ladders, 6 to 10 feet apart, formed the base for a 2 x 12 plank suspended between them (Tr. 49051, 57, 58). This use was not customary in the industry (Tr. 57). The hazard of a 56 inch fall exists if one falls or steps off the plank (Tr. 50). At less than 48 inches (as respondent contended) two sawhorses could be utilized (Tr. 52–53). In the opinion of the compliance officer any use not consisting of work directly off of the step ladder was not an “intended use” (Tr. 57).

            Respondent’s evidence: The positioning of the 36 inch high plank was proper, safer than a ladder, and used by most painters (Tr. 73, 75, 108, 172, 203–204).

            Respondent challenges the standard as unconstitutionally vague; further, it asserts complainant did not carry his burden of proof.

            Leading cases construing a safety standard are: Ryder Truck Lines, Inc. v. Brennan 497 F.2d 230 (5th Cir.1974) and McLean Trucking Company v. OSAHRC and Secretary of Labor, 503 F.2d 8 (4th Cir.1974). The respective appellate courts outline the factors to be considered in determining the validity of a standard challenged for vagueness; these are:

            —that the standard implements remedial civil legislation in contradistinction to criminal legislation;

            —that the standard should be considered in the light of its application rather than on its face since the rights guaranteed by the First Amendment are not even remotely involved;

            —that the standard will be approved if drafted with as much exactitude as possible in light of the myriad of conceivable situations which could arise and which would be capable of causing injury;

            —that inherent in the regulatory standard is an external and objective test, namely whether or not a reasonable person would be afforded a reasonable warning of the proscribed conduct in light of common understandings and practices.

            In this case the constitutional issue of vagueness need not be decided. Complainant failed to sustain his burden of proof. The compliance officer asserted that any use of the ladder except directly working therefrom was improper. On the other hand, respondent’s painters enshrined this usage over many years.

            Citation 5, items 3 and 15 allege violations of 29 CFR 1910.106(e)(2)(iv)(a) and 29 CFR 1926.350(a)(9) and propose no civil penalty. After commencement of the trial complainant moved to vacate these items. The notice of hearing was posted and no person objected to the motions (Tr. 6–7).

            Citation 5, items 4 through 12 all involve the spray paint area and allege as follows:

Item Number



Standard Allegedly Violated



Description of Alleged Violation






29 CFR 1910.106(e)(6)(ii)



Paint spray area: 55 gallon drums of flammable paint thinner were not bonded and grounded when transferring solution to safety cans. (No proposed penalty).






29 CFR 1910.107(b)(1)



The paint spray area was not constructed of a substantial noncombustible material and had no exhaust system which would sweep air currents towards the exhaust outlet. ($65 proposed penalty.)






29 CFR 1910.107(b)(2)



Spray paint area: The interior surfaces were not smooth and continuous without edges and otherwise not designed to prevent pocketing of residues and to facilitate cleaning. (No proposed penalty).






29 CFR 1910.107(c)(2)



Spray paint area: An open flame forced air heater was located to the left of the entrance to spray paint area and within 20 feet of the exposure of flammable vapors and mists. ($45 proposed penalty).






29 CFR 1910.107(c)(6)



Spray paint area: Electrical wiring and electrical paint mixer located in spraying area was not explosion-proof type approved for Class 1, Group D locations and did not conform to the provisions for Class 1, Division 1 hazardous locations. ($45 proposed penalty).






29 CFR 1910.107(d)(2)



Spray paint area: This area did not have mechanical ventilation which would remove flammable vapors and mists to a safe location and confine and control combustible residues. ($45 proposed penalty)






29 CFR 1910.107(e)(2)



The quantity of flammable or combustible liquids kept in the vicinity of the spraying operation exceeded supply need for a one day or one shift operation. (No penalty)






29 CFR 1910.107(g)(2)



Spray paint area: Walls were not kept free from excessive accumulation of residues. (No peanlty)






29 CFR 1910.107(g)(7)



The required ‘NO SMOKING’ signs in large letters on contrasting colors background was not posted at the paint spray area and paint storage area. (No penalty)




            The standards read:

§ 1910.106 Flammable and combustible liquids.

(e) Industrial plants—(6) Sources of ignition.

(ii) Grounding. Class I liquids shall not be dispensed into containers unless the nozzle and container are electrically interconnected. Where the metallic floorplate on which the container stands while filling is electrically connected to the fill stem or where the fill stem is bonded to the container during filling operations by means of a bond wire, the provisions of this section shall be deemed to have been compiled with.


§ 1910.107 Spray finishing using flammable and combustible materials.

(b) Spray booths—(1) Construction. Spray booths shall be substantially constructed of steel, securely and rigidly supported, or of concrete or masonry except that aluminum or other substantial noncombustible material may be used for intermittent or low volume spraying. Spray booths shall be designed to sweep air currents toward the exhaust outlet.


(2) Interiors. The interior surfaces of spray booths shall be smooth and continuous without edges and otherwise designed to prevent pocketing of residues and facilitate cleaning and washing without injury.


(c) Electrical and other sources of ignition—(1) Conformance. All electrical equipment, open flames and other.


(2) Minimum separation. There shall be no open flame or spark producing equipment in any spraying area nor within 20 feet thereof, unless separated by a partition.


(6) Wiring type approved. Electrical wiring and equipment not subject to deposits of combustible residues but located in a spraying area as herein defined shall be of explosion-proof type approved for Class I, group D locations and shall otherwise conform to the provisions of subpart S of this part, for Class I, Division 1, Hazardous locations. Electrical wiring, motors, and other equipment outside of but within twenty (20) feet of any spraying area, and not separated therefrom by partitions, shall not produce sparks under normal operating conditions and shall otherwise conform to the provisions of subpart S of this part for Class I, Division 2 Hazardous Locations.


(d) Ventilation—(1) Conformance.

(2) General. All spraying areas shall be provided with mechanical ventilation adequate to remove flammable vapors, mists, or powders to a safe location and to confine and control combustible residues so that life is not endangered. Mechanical ventialation shall be kept in operation at all times while spraying operations are being conducted and for a sufficient time thereafter to allow vapors from drying coated articles and drying finishing material residue to be exhausted.


(e) Flammable and combustible liquids-storage and handling.


(2) Quantity. The quantity of flammable or combustible liquids kept in the vicinity of spraying operations shall be the minimum required for operations and should ordinarily not exceed a supply for 1 day or one shift, bulk storage of portable containers of flammable or combustible liquids shall be in a separate constructed building detached from other important buildings or cut off in a standard manner.


(g) Operations and maintenance—


(2) Cleaning. All spraying areas shall be kept as free from the accumulation of deposits of combustible residues as practical, with cleaning conducted daily if necessary. Scrapers, spuds, or other such tools used for cleaning purposes shall be of nonsparking material.


(7) “No Smoking” signs. “No smoking” signs in large letters on contrasting color background shall be conspicuously posted at all spraying areas and paint storage rooms.


            The evidence: Iron beams are spray painted with combustible enamel paint. Any overspray could not be cleaned from the visque plastic sidewalls. Such walls would tear (Tr. 60–62, 64–65, 86–87). An open flame heater inside the entrance warmed the structure (Tr. 65, 66, 82–83). Vapors could enter the heater. No mechanical system removed any flammable vapors (Tr. 62–63, 68).

            A worker mixed the contents of a five gallon can with a non class rated, non explosion proof, electric drill (Tr. 66, 83). The mixer plugged into a non-explosion proof outlet just two and one half inches from the spray area (Tr. 67–68, 90). Fifty gallons of paint stored in a cubicle two feet from the spray area exceeded normal usage estimated by the parties at 5 to 25 gallons (Tr. 70).

            The compliance officer did not see any “No Smoking” signs but respondent’s evidence indicates such signs abound the area (Tr. 87, 110, 169, 202).

            Respondent tested the painting area with an explosion meter; the highest reading was in the satisfactory range (Tr. 201–202).

            Citation 5 consisting of those items relating to the spraying area fails; Complainant did not prove the enclosed building was a spraying area as defined by 29 CFR 1910.107(a)(2). The definition reads:

Spraying area: Any area in which dangerous quantities of flammable vapors or mists, or combustible residues, dusts, or deposits are present due to the operation of the spraying process.


            This paint spray structure falls far short of being an architectural triumph, but complainant with the burden of proof must establish it to be a spraying area as defined by his own standards.

            Citation 5, item 14 alleges a nonserious violation of 29 CFR 1926.28(a) and proposes a civil penalty of $110.

            The citation reads:

Two carpenters working on the coal unloading pit, were over 25 feet from the ground or other surfaces while tightening whaler bolts which had become loosened during a concrete pouring operation. They were without safety life lines and safety belts in a situation calling for/or requiring the use of such personal protective equipment.


            The standard is set forth in citation 3, supra.

            The evidence: When a whaler bolt came loose during a concrete pour one of the workers attempted to tighten it. The worker had no safety line working twenty five feet above ground level (Tr. 34, 94–95, 98). The foreman directed the employee to undertake this five minute project (Tr. 177, 183).

            Respondent challenges that an exposure to a hazard occurred because the work was performed in a few minutes at a height of ten feet (as respondent claims) over soft backfilled dirt. These contentions are without merit: A height of ten feet is sufficient to invoke the use of personal protective equipment. A bulldozer was then moving the soft dirt into the backfill; its steel components hardly provide a soft landing place. The exposure of five minutes relates to the penalty and not to the fact of a violation. In determining a civil penalty gravity should generally be afforded the greatest consideration. Secretary v. Baltz Brothers Packing Company, 2 OSAHRC 384 (1973). Considering all of the statutory criteria the proposed civil penalty of $110 is appropriate.


            1. Respondent’s answer did not plead to the allegations of coverage contained in the complaint hence such allegations are deemed admitted under Commission Rule 33(b)(2). (Complaint, Answer)

            2. The exposed worker 25 feet above ground level had no opportunity to tie off his lanyard.

            3. Safety nets were not practical.

            4. The welder on the float scaffold was not observed by supervisory personell in the two or three minutes he worked without an attached safety belt.

            5. Complainant failed to carry his burden of proof to establish the intended use of ladders.

            6. Complainant moved to vacate citation 5, items 3 and 15.

            7. Complainant failed to prove the area where paint spraying was conducted was a spraying area as defined by 29 CFR 1910.107(a)(2).

            8. An employee without an attached life line tightened a whaler bolt working 25 feet above ground level.


            1. Respondent is subject to the Act (Facts 1).

            2. Respondent did not violate 29 CFR 1926.750(b)(1)(ii) or 29 CFR 1926.28(a) and citation 3 and the proposed penalty of $800 should be vacated (Facts 2, 3).

            3. Respondent did not violate 29 CFR 1926.752(k) and citation 4 and the proposed penalty of $800 should be vacated (Facts 4).

            4. Respondent did not violate 29 CFR 1910.22(d)(1) as the standard lacks ascertainable criteria; citation 5, item 1 and the proposed civil penalty of “None” should be vacated.

            5. Respondent did not violate 29 CFR 1910.25(d)(2)(x)(1) and citation 5, item 2 and the proposed civil penalty of $65 should be vacated (Facts 5).

            6. Citation 5, items 3 and 15 and the civil penalties “none” on the motions of complainant should be vacated (Facts 6).

            7. Complainant failed to prove a violation of the various subparts of 1910.106 and 1910.107 and citation 5, items 4 through 12 should be vacated together with all proposed civil penalties therefor (Facts 7).

            8. Respondent violated 29 CFR 1926.28(a) and citation 5, item 14 and the proposed civil penalty of $110 should be affirmed (Facts 8).


            Based on the foregoing findings of fact and conclusions of law it is hereby ORDERED and ADJUDGED:

            1. Citation 3 and the proposed civil penalty of $800 are vacated.

            2. Citation 4 and the proposed civil penalty of $800 are vacated.

            3. Citation 5 items 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 15 are vacated together with all proposed civil penalties therefor.

            4. Citation 5 item 14 and the proposed civil penalty of $110 are affirmed.


So ordered in the City and County of Denver, Colorado.


John J. Morris



[1] 29 U.S.C. 651 et seq.

[2] The standard provides:

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.

Initially, Respondent received two serious citations and one non-serious citation containing thirteen items. The Judge vacated all of the allegations except for the nonserious personal protective equipment violation. Neither party petitioned for review of the Judge’s decision. Former Commissioner Moran directed that the Judge’s decision reviewed, but did not state specific issue(s) for adjudication. Respondent filed a brief on review in which it takes exception to the Judge’s affirmance of the 28(a) violation. The Secretary has taken no exception to the Judge’s decision. Consistent with our Policy Statement at 41 Fed. Reg. 53015 (Dec. 3, 1976), only the Judge’s disposition of the 1926.28(a) allegation is currently before us.

[3] Respondent’s foreman testified that each employee is provided with safety belts, but that their use is not mandatory at elevations below twenty-five feet.

[4] Accord Berner v. British Commonwealth Pacific Airlines, Ltd., 346 F.2d 532 (2d Cir. 1965) cert. den. 382 U.S. 983, in which the Court rejected plaintiff’s argument that the defendant should have been bound by the statement of defendant’s counsel during opening argument. Although the Court agreed that defendant’s counsel had ‘virtually conceded that the burden of proof on complete immunity had not been met,’ a jury verdict awarding no damages was allowed to stand since counsel’s statement lacked sufficient formality or conclusiveness to constitute a judicial admission. Id. at 542.