UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 7909
CARR ERECTORS, INC.,
Respondent.

June 4, 1976

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

MORAN, Commissioner:

A decision of Review Commission Judge Charles K. Chaplin, dated February 24, 1975, is before this Commission for review pursuant to 29 U.S.C. § 661(i). By that decision, attached hereto as Appendix A,[1] respondent was found not to be in violation of 29 U.S.C. § 654(a)(2) for failure to comply with occupational safety and health standards codified at 29 C.F.R. §§ 1926.105(a) and 1926.500(d)(1). We affirm that disposition.

Review of this case was directed on March 17, 1975, on the following issue:

‘Whether the Administrative Law Judge erred in finding that respondent complied with the provisions of the standard at 29 C.F.R. § 1926.105(a)?’

In addition, respondent argues that the direction for review was untimely under 29 U.S.C. § 661(i) and should therefore be dismissed.

We have previously considered the latter issue under similar circumstances in Secretary v. Rob’t. W. Setterlin and Sons Company, OSAHRC Docket No. 7377, May 11, 1976. We adhere to our holding in that case. Consequently, we find that the direction for review in this case was timely because it was executed before March 26, 1975, the date on which the Judge’s decision would otherwise have become a final order of the Commission. 29 U.S.C. § 661(i).

Furthermore, we hold that the Judge correctly vacated the citation for noncompliance with § 1926.105(a), which provides 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.

Although a safety net was not provided, the two employees involved were working from a ‘pic,’ described by complainant as an ‘aluminum, ladder-type platform approximately 20 feet long and 20 to 25 inches wide.’ Inasmuch as the employees were provided with and used an alternative safety device contemplated by the standard, a violation of § 1926.105(a) for failure to provide safety nets has not been established. Brennan v. OSAHRC and Ron M. Fiegen, Inc., 513 F.2d 713 (8th Cir. 1975); Brennan v. OSAHRC and J. W. Bounds (Pearl Steel Erection Co.), 488 F.2d 337 (5th Cir. 1973); Secretary v. Rob’t W. Setterlin and Sons Company, supra.

Accordingly, the Judge’s decision is affirmed.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATED: JUN 4, 1976

CLEARY, Commissioner, DISSENTING:

I respectfully dissent.

The relevant citation issued to the employer described the alleged violation of section 1926.105(a) as follows:

1926.105(a): ‘Failure to provide safety nets 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. e.g. During the inspection, one employee was observed walking across an I beam 10 to 12 inches wide, 62 feet long and 42 feet in height from the ground without any type of protection being provided to prevent his falling nor was a safety net installed. e.g. During the inspection, four other employees were observed walking horizontal I beams at different areas 42 feet from the ground without any type of safety equipment being installed to prevent their falling.’

The evidence shows that two employees were walking on I-beams while unprotected by safety nets, ladders, scaffolds, catch platforms, temporary floors, and safety lines or belts. The majority, however, focuses only on the fact that the two employees were working from a ‘pic,’ a portable, aluminum, ladder type device, 20 inches wide, which was placed horizontally upon and between two roof beams. The majority holds that the ‘pic’ is an alternative safety device contemplated by the cited standard. They do so even though the ‘pic’ had no guardrail or toeboard. The Administrative Law Judge held that the use of a guardrail and toeboard would render the performance of the work impossible and therefore were not required.[2]

The majority loosely describes the ‘pic’ as a ‘ladder-type standard. The ‘pic’ bears only a superficial standard. The ‘pic’ bears only a superficial resemblance to a ladder. I would hold that it is not a ‘ladder’ under the standard,[3] and that it does not come within any of the other regulatory terms. I read section 1926.105(a) as requiring the protection of employees by at least one of the devices specified in the standard. Brennan v. Southern Contractors Service, 492 F.2d 498 (5th Cir. 1974).

Even if the ‘pic’ could be fairly characterized as a ‘ladder’ or compassed by any other term in section 1926.105(a). I would consider it to be ‘impractical’. Without the use of guardrails and toeboards it provides no protection whatsoever to employees from the hazard of falling. If the word ‘impractical’ has any meaning at all under the standard, it would seem to bar a device having little or no safety value. Contra. Brennan v. O.S.H.R.C. and Ron Fiegen, Inc., 513 2d 713 (8th Cir. 1974).

Finally, the employer argues that it is complying with section 1926.105(a) by requiring the use of safety belts. The briefs of both parties suggest that the crucial issue that should be decided in this case is whether the employer has done all that was possible to require the use of safety belts. The majority ignores the issue.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 7909
CARR ERECTORS, INC.,
Respondent.

FINAL ORDER DATE: March 26, 1975

APPEARANCES:

William Curphey, III, Esq. For Complainant

R. Larry Schneider, Esq. For Respondent

DECISION AND ORDER

Charles K. Chaplin, Judge:

This is a proceeding pursuant to section 659 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereafter the Act) wherein the respondent contested both the fact of violations as well as the total proposed penalty of $650 for alleged serious violations of section 5(a)(2) of the Act by failing to comply with the standards codified at 29 CFR 1926.105(a) and 1926.500(d)(1).

The standard at 1926.105(a) provides:

The standard at 1926.500(d)(1) provides:

‘Every opensided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent . . . The railing shall be provided with a standard toeboard . . .’ (Emphasis added)

The citation, issued May 6, 1974, after a May 1, 1974, inspection, described the alleged violations as follows:

1926.500(d)(1): ‘Failure to guard every opensided floor or platform 6 feet or more above adjacent floor or ground level by a standard railing, or equivalent. 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. e.g. Two employees were observed working on an unsecured ladder-type platform approximately 18 to 20 inches wide, with a drop of 42 feet laying across two steel I beams without any guardrails and toeboards installed on all opensides and ends.

THE ABOVE TWO ITEMS TOGETHER CONSTITUTE AN ALLEGED SERIOUS VIOLATION’

During the hearing respondent made motions to dismiss both alleged violations. These motions are denied.

Complainant’s motion, also made during the hearing, to amend the pleadings in the alternative to a charge under 1926.750(b)(ii) is denied because the untimeliness thereof would clearly prejudice respondent, and this subpart is inapplicable under the circumstances here.

THE EVIDENCE

The parties have stipulated that respondent is an employer within the meaning of section 652 of the Act and employs approximately 14 employees in and about its aforesaid worksite; in addition, that respondent’s construction business affects commerce within the meaning of section 3(3) of the Act. Furthermore, relation to the charge under 1926.105(a), respondent stipulated that there was no safety net at the worksite during the time of the inspection.

The unrebutted evidence developed upon the record shows that on May 1, 1974, respondent’s employees were working on a one-story cement bulk plant located at 2930 Crescentville Road, Sharonville, Ohio (Tr. 31, also see the complaint and answer hereunder). Five employees were working on the roof which was 41–42 feet above ground level (Tr. 33, 44, 70–71). Of these five, three employees were ‘tied off,’ while the remaining two used no apparent safety devices (Tr. 44) even though they had been provided with and instructed to use safety belts and lines (Tr. 59–61, 67, 73, 83). The inspector testified that some type of safety line would have been acceptable in lieu of the use of safety nets (Tr. 96). He also testified that at various times he saw two men not wearing any safety belt or line, walking on the ‘I’ beams and working from an aluminum ladder type platform having no handrail or toeboard (Tr. 34, 36–39, Exhibits C–2 through C–8, and C–10). However, respondent’s employee ironworker, Paul M. Kates, testified that no work could have been accomplished had a handrail or toeboard been attached thereto (Tr. 74–75).

ISSUES

The issue is whether there is a preponderance of the evidence[4] showing respondent is in violation of the charged standards.

DISCUSSION

Respondent has been charged with a violation of 1926.105(a). That standard makes it mandatory that safety nets be provided upon two findings: (1) the workplace is more than 25 feet above the ground, and (2) the use of listed alternative safety measures is impractical. Clearly, the failure to so do, i.e., to not use the alternative listed safety devices when practical and no safety net is provided, under said conditions demands finding a violation thereunder. Brennan v. Southern Contractors Service, 492 F2d 498, 501 (5th Cir. 1974). However, when a listed alternative is practical and used, no violation can be found. Brennan v. Occupational Safety and Health Review Commission, 488 F2d 337 (5th Cir. 1973).

Here, the evidence establishes that five of respondent’s employees were working more than 25 feet above the ground. Though no safety net had been provided, all of the employees had been given safety lines and belts together with instructions requiring the use thereof. This use was a practical alternative to providing A safety net. On the day of the inspection, three of them were wearing these safety devices.

Based on this evidence, I can not conclude respondent is in violation of the standard. As required, respondent has provided practical safety devices which were used. Section 5 of the Act requires both employers and employees to comply with standards promulgated thereunder. The record here establishes that the respondent has done what 1926.105(a) demands of it. The two employees acting contrary to their fellow workers and instructions must also accept responsibility for adhering to these requirements. Furthermore, to find a violation in the face of this evidence would, in essence, make the respondent an absolute guarantor or insurer that its employees will observe all the Secretary’s standards at all times. This would be contrary to the holdings of this Commission. See Secretary v. Standard Glass Co., 1 OSAHRC 594 (Docket No. 259, July 27, 1972).

Therefore, because practical alternative safety devices were provided and used, I conclude no violation can be found under the charged standard.

Respondent was also charged with a violation of 1926.500(d)(1). That standard requires a guardrail and toeboard on platforms that are six feet or more in height above the working surface. Considering the definition of ‘platform’ in 1926.502(e),[5] I am of the opinion that the aluminum ladder type platform in question so qualifies. However, such a finding does not inevitably mean a violation must be found therefrom. Only when the use of protective measures, such as those described in the standard, does not severely disrupt or make impossible the performance of work can there be such a finding. Secretary v. Mohawk Manufacturing Co., 1 OSAHRC 520 (Docket No. 608, July 7, 1972); Secretary v. Deluca Construction Co., 2 OSAHRC 435 (Docket No. 1225, February 9, 1973); Secretary v. LaSala Contracting Co., 2 OSAHRC 976 (Docket No. 1207, March 28, 1973); See Secretary v. Tilo Co., 2 OSAHRC 1391 (Docket No. 211, April 27, 1973); Secretary v. Masonry, Inc., 5 OSAHRC 524 (Docket No. 2693, December 6, 1973; Secretary v. W.B. Meredith II, Inc., 9 OSAHRC 245 (Docket No. 810 June 7, 1974).

No such finding can be made here. In fact, the unrebutted evidence clearly establishes that the performance of the work would not have been possible from the aluminum ladder type platform if it was equipped with a handrail or toeboard. Upon so concluding, no violation can be found.

FINDINGS OF FACT

1. On May 1, 1974, respondent was in the process of constructing a cement bulk plant located at 2930 Crescentville Road, Sharonville, Ohio.

2. Five of its employees were working on the roof thereof with no safety net being provided or used.

3. This roof was 41–42 feet above the ground.

4. All of these employees were provided with and instructed to use safety belts and lines.

5. Three of them were using safety belts and lines on the day in question; however, two were not using any of the provided safety equipment.

6. Under these circumstances, the provided and used safety devices were practical within the meaning of 1926.105(a).

7. On the roof of subject building some of the employees were working from an aluminum ladder type platform.

8. This platform is of such a type as to be subject to the requirements under 1926.500(d)(1).

9. The platform had no guardrail or toeboard.

10. Because of the physical characteristics thereof, no work could have been performed if it was so equipped.

CONCLUSIONS OF LAW

1. Respondent is, and was at all times, relevant to the issues herein, engaged in a business affecting commerce within the meaning of section 652 of the Act.

2. Respondent is, and was at all times herein mentioned, an employer within the meaning of section 652 of the Act and subject to the provisions of sections 653 and 654 thereof and standards authorized by section 655.

3. Respondent was not in violation of section 654 of the Act for failure to comply with occupational safety and health standards codified at 29 CFR 1926.105(a) and 1926.500(d)(1).

It is hereby ORDERED:

That the citation for two serious violations herein and civil penalty proposed therefor, dated May 6, 1974, and directed to the respondent, are vacated.

CHARLES K. CHAPLIN

Judge, OSAHRC

Dated: February 24, 1975

Washington, D.C.

[1] Chairman Barnako does not agree to this attachment.

[2] This holding of the Judge is not before us.

[3] A ladder has been aptly defined as an appliance which rises at an angle and is used for ascending or descending to and from a desired height. See Streetman v. Andress Motor Co., 189 So. 321, 324 (La. App. 1939); Cole v. List & Weatherly Constr. Co., 156 So. 88, 90 (La. App. 1934); Washburn v. Skogg, 204 Wis. 29, 233 N.W. 764, 766 (1930); Montgomery Ward & Co. v. Snuggins, 103 F.2d 458, 462 n.3 (8th Cir. 1939); Davis v. Duss Machine Works, 169 Mich. 498, 135 N.W. 303, 304 (1912).

[4] See Secretary v. Armor Elevator Co., 5 OSAHRC 260 (Docket No. 425/426, November 20, 1973).

[5]1926.502(e) defines platform as ‘[a] working space for persons, elevated above the surrounding floor or ground . . . for the operation of machinery and equipment.