Document

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v. OSHRC DOCKET NO. 9622

CRAWFORD STEEL CONSTRUCTION CO.,

Respondent.

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

MORAN, Commissioner: A decision of Review Commission Judge J. Paul Brenton,

dated May 8, 1975, is before this Commission for review pursuant to 29 U.S.C. § 661(i).

Having examined the record, the Commission finds no prejudicial error therein.

Accordingly, the Judge’s decision is hereby affirmed in all respects.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATED: DEC 7, 1976

A copy of the Judge’s decision is attached hereto as Appendix A.

BARNAKO, Chairman, concurring:

I agree that the citation should be vacated, but reach this conclusion for reasons

somewhat different than those the Judge assigned.

Respondent was erecting the steel framework of an exit ramp from a bridge. At the

particular part of the structure which is here at issue, two vertical concrete piers had been

erected. Respondent was using a crane to lay steel beams between the piers. While the beams

were still held by the crane, they would be connected by bolts to each pier. A ladder was used by

Respondent’s employees to gain access to one of the piers in order to connect the beams. They

would then reach the other pier by walking across one of the beams.

On these facts, Respondent was cited for allegedly violating 29 C.F.R. § 1926.105(a)

for failing to utilize safety nets to protect the employees walking across the beams from the

effects of a possible fall. Respondent’s uncontradicted evidence, however, established that,

because of the weight of the beams, it was necessary to operate the crane almost directly under

the locations at which the beams were to be set. Accordingly, a safety net erected under the

beams would be torn down by the crane. Based on this evidence, Judge Brenton found that the

use of safety nets was impossible. His finding is supported by the record, and, indeed, the

Secretary does not take exception to it. Instead, the Secretary argues that Respondent violated

§ 1926.105(a) by not utilizing any of the means of fall protection enumerated therein. He relies

on the decision in Brennan v. Southern Contractors Service, 492 F.2d 498 (5th Cir. 1974), which

held that the standard requires the use of at least one of the specified means of fall protection.

I respectfully disagree with the Court’s decision in Southern Contractors. In my opinion,

§ 1926.105(a) is solely a safety net standard. Warnel Corp., Docket No. 4537, BNA 4 OSHC

1034, CCH OSHD para. 20,576 (March 31, 1976). Although § 1926.105(a) does mention other

types of fall protection, it must be read in conjunction with other construction safety standards

which specify under what conditions the other means of fall protection should be used. Section

1A This standard provides:

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.

For example, 29 C.F.R. § 1926.28(a) provides:

The employer is responsible for requiring the wearing of appropriate personal

protective equipment in all operations where there is an exposure to hazardous

1926.105(a) supplements these other standards by requiring the use of safety nets when the other

means of fall protection are impractical.

The evidence in this case shows, however, that safety nets could not be used.

Accordingly, a violation of § 1926.105(a) cannot be found. See Warnel Corp., supra. There was,

however, evidence concerning the feasibility of using safety belts. Consideration must therefore

be given to whether a violation of § 1926.28(a) was tried by consent. See note 2, infra.

Respondent’s foreman testified that it was not customary to use safety belts during the

steel erection phase of this type of construct on. In order to safety belts, a safety line to which the

belts could be tied-off would have to be strung. According to the foreman, this could only be

done by erecting posts to the beams and stringing the line between the posts. He thought,

however, that it was impractical to erect posts to the beams before the beams were connected to

the piers. He also thought that such posts would create tripping hazards to the employees walking

along the beams.

The Secretary introduced evidence which showed that an arrangement utilizing a safety

line strung between posts had subsequently been used on the same project by the contractor who

installed the decking on the ramp. Respondent points out, however, that this occurred after the

beams were connected, and that this evidence is therefore consistent with its position that such an

arrangement could not be used before the beams were connected. Respondent also points out that

the decking contractor’s employees would work in fixed positions for considerable lengths of

time, and would therefore not require the mobility of employees using the beams to move from

one pier to another.

In order to prove a violation of § 1926.28(a), the Secretary must show that the use of

safety belts is an appropriate means of fall protection. Frank Briscoe Co., Docket No. 7792, (Oct.

4, 1976). In this case, the evidence establishes that it is not customary in Respondent’s industry

to utilize safety belts under the existing conditions, and that their use is not practical.

Accordingly, even if the issue of whether § 1926.28(a) was violated was tried by consent, a

violation was not shown.

conditions and where this part indicates the need for using such equipment to

reduce the hazards to the employees.

We have interpreted this standard as requiring the use of safety belts tied off to lifelines where

this is shown to be a practical and feasible means of fall protection. Frank Briscoe Co., Docket

No. 7792 (Oct. 4, 1976), and cases cited therein.

CLEARY, Commissioner, DISSENTING:

Undisputed evidence adduced in this case indicates the existence of a serious hazard to

respondent’s employees. Moreover, it is clear that respondent took no steps to protect its

employees from the consequences of a fall in excess of 25 feet. Nevertheless, my colleagues

vacate the citation at issue and fail to enter an appropriate abatement order. For the following

reasons I would affirm the citation and issue an abatement order requiring that respondent use

safety nets to protect its employees.

Respondent was cited for allegedly failing to comply with the safety standard at 29 CFR

§ 1926.105(a).2a Respondent used none of the safety devices enumerated in § 1926.105(a), and

failure to use any of them has been held to constitute noncompliance with the standard. Brennan

v. Southern Contractors Service & O.S.H.R.C., 492 F.2d 498, 501 (5th Cir. 1974). This reading

of the standard was expressly adopted by this Commission in Allied Structural Steel Co., 2 BNA

OSHC 1457, 1974–75 CCH OSHD para. 19,184 (No. 1681, January 1, 1975).

During the erection of the steel framework of an exit ramp to a bridge, respondent’s

employees were required to use an unsecured steel girder as a walkway. In some places the

girder was in excess of 25 feet above the ground.

There was little dispute that safety nets could have been erected beneath the girder that

served as a walkway for respondent’s employees. Nevertheless, with very little discussion of the

facts the Judge ruled that the use of a safety net was ‘impractical.’ According to the Judge, the

impracticality of safety nets coupled with the impracticality of a protection system incorporating

safety belts required that the citation be vacated. I disagree.

I read the standard involved to require the use of safety nets under work areas that are

above 25 feet from the ground when the listed devices are not ‘practical,’ that is to say possible

with reasonable performance. Words and Phrases, ‘Practical.’ Since the use of any of the listed

devices exempts the employer from the requirement of a safety net under general principles the

Thus, the Chairman’s reading of the standard as expressed in Warnel Corp., supra and in his

concurring opinion in the instant case does not state a majority view of the Commission. In this

regard it should be noted that Judge Brenton properly followed the Fifth Circuit’s reading of

§ 1926.105(a).

While § 1926.105(a) requires the use of one of the enumerated devices, the standard by its

terms requires that safety nets be used only if the use of all the other enumerated safety devices is

‘impractical.’

employer should have the burden of proving the exemption. Only the possible use of safety belts

was tried, and the Judge correctly held that it was impractical to use them. Thus, the employer

was required to use one of the other listed devices.

But assuming arguendo that their use was also impractical, the employer was required to

erect safety nets, unless there is a defense of impossibility concerning this requirement.

If impossibility of compliance is a valid method of avoiding the requirements of a

specific standard, it is at most an affirmative defense. Brennan v. O.S.H.R.C. & Underhill

Constr. Corp., 513 F.2d 1032, 1035 (2d Cir. 1975). Consequently, it is incumbent upon the cited

employer to establish the claim of impossibility. See e.g., United States Steel Corp. v.

O.S.H.R.C., 537 F.2d 780, 782 (3rd Cir. 1976); Slyter Chair, Inc., 4 BNA OSHC 1110, 1975–76

CCH OSHD para. 20,589 (No. 1263, April 8, 1976).

If there were a defense it has not been proved here. It was physically possible to install

safety nets beneath the elevated steel girder that respondent’s employees used as a walkway. A

crane was used to set the girders in place in preparation for bolting. Respondent showed,

however, that because of the weight of the girders it was necessary to position the crane beneath

the girders. Thus, as noted in the concurring opinion, any safety netting erected beneath the

girders would be torn by the crane. While I agree with the opinion’s analysis insofar as it

concludes that it was impossible to use nets under these conditions, I disagree with his

conclusion that this evidence establishes impossibility of compliance with the safety net

requirement of § 1926.105(a).

Inasmuch as it was physically possible to erect safety nets beneath the girder, in order to

establish impossibility, respondent would at the very least have to show that it could not perform

work with the safety net system in place. Although the evidence showed that the crane used by

respondent had to be operated beneath the girders, it was also established that operation of the

crane beneath the girders was necessary because of the crane’s limited lifting capacity.

Respondent’s foreman, Patrick Crawford, testified as follows:

Q. Mr. Crawford, does that crane have to be in the midst of all those beams, or couldn’t it

be repositioned outside the area where the beams are being installed?

A. The crane didn’t have the capacity to get too far away from the girders.

Q. How far away could it be?

A. I can’t remember the exact weight of them girders, but it would depend on the size of

the crane and the weight of the girders as to how far away you can get.

It is therefore, possible that respondent could have protected its employees with safety

nets if it had used a crane with a greater lifting capacity. While this testimony does not

necessarily indicate that a change in operation was possible, it does leave open a significant

question as to whether it was impossible for respondent to perform its job with safety nets in

place.

Inasmuch as respondent is required to affirmatively establish impossibility, the mere

existence of such an unanswered question derived from testimony of its foreman results in

respondent’s failure to sustain a defense of impossibility.

5 Transcript at 93.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v. OSHRC DOCKET NO. 9622

CRAWFORD STEEL CONSTRUCTION CO.,

Respondent.

Brenton, Judge: This is a proceeding pursuant to section 10 of the Occupational Safety and

Health Act of 1970 (29 U.S.C. §§ 651, et seq., 84 Stat. 1590, hereinafter referred to as to Act)

contesting a citation issued by the complainant against the respondent under the authority vested

in complainant by section 9(a) of the Act.

The contested citation, which is citation no. 2, alleges that as the result of the inspection

of a workplace under the ownership, operation or control of the respondent, located at I–471

Bridge Construction, Cincinnati, Ohio, and described as ‘steel erector’, the respondent has

violated section 5(a)(2) of the Act by failing to comply with a certain occupational safety and

health standard promulgated by the Secretary of Labor pursuant to section 6 thereof.

The contested citation, which was issued on July 29, 1974, alleges that the violation

results from a failure to comply with a standard promulgated by the Secretary by publication in

the Federal Register and codified in 29 CFR 1926.

The description of the alleged violation contained on said citation states:

Item 1. ‘29 CFR 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. Two employees were observed during the inspection

walking on steel I beams 14–16 inches wide with a drop of 26 feet, 9 inches to the

adjacent ground without a safety net, guard rails, or other devices installed to

prevent their falling, nor were provisions made for employees to hook their

lanyards to a cable while walking.

The standard as promulgated by the Secretary provides as follows:

Item 1. ‘Section 1926.105 Safety Nets

(a) 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.’

Pursuant to the enforcement procedure set forth in section 10(a) of the Act, the

respondent was notified by letter dated July 29, 1974, from R. J. McCann, Area Director of the

Cincinnati, Ohio, area, Occupational Safety and Health Administration, U. S. Department of

Labor proposed to assess a penalty for the violation alleged in the amount of $550.00.

After respondent contested this enforcement action, and a complaint and an answer had

been filed by the parties, the case came on for hearing at Cincinnati, Ohio, on December 5, 1974.

FINDINGS OF FACT

1. Respondent, a corporation, whose principal office is located in Hamilton, Ohio, utilizes

equipment and material, imported from points outside the state of Ohio, in the business of steel

erection.

2. At the time of the alleged violation respondent was engaged in the sole function of

erecting, setting, and securing in place steel girders upon concrete piers as a part of the

construction of an exit ramp to a new bridge spanning the Ohio River, designated as I–471

project.

3. The first step in the performance of this function is to lift a girder from the ground by

means of a crane, swing it into position, and set it in place on the piers. Next this girder is tied

down against the pier, after which a second girder is put in position on the pier and the two are

then held together upon the installation of X bracing. Also on top of the pier a rocker is set and

welded to the girder for expansion and contraction. And this process is continuous with the final

stage of splicing which is bolting down the girders.

4. After a girder is put in place upon the piers and workmen are required to ascend the

structure, to perform the several tasks, it was accomplished by means of climbing a ladder placed

against one pier then using the top of the girder as a walkway.

5. The height of this beam above the ground ranged from 19 feet six inches to 26 feet

nine inches.

6. The work to be performed upon reaching a work area positioned the workmen within

the structure at points less than 25 feet above the ground.

7. No safety net nor was any other safety device provided, such as a scaffold, catch

platform, temporary floor, safety line, or safety belt, to prevent falling in excess of 25 feet during

the course of going to and from these tasks by means of the girder as a walkway.

ISSUES

Whether compliance with 29 CFR 1926.105(a) makes it impossible for respondent to

perform its work.

If compliance is feasible do the facts support a violation.

Does the fact that there is a variation in the height requirement of the regulation alleged

and 29 CFR 1926.705(b)(2) render the charge unenforceable.

If affirmance is required what penalty, if any, is appropriate.

DISCUSSION

Respondent contends where, as here, the height requirements of two safety standards,

which seek to prevent injury or death from falls, is not uniform, the cited standard is unenforcible

because enforcement is thereby arbitrary, inconsistent, and discriminatory.

The requirements of the cited standard relate to workplaces in construction generally.

Whereas, 29 CFR 1926.750(b)(2) relates to a specific steel erection situation with a single

requirement upon encountering special facts and circumstances. It would appear had respondent

been found to have been working in a situation encompassed by 29 CFR 1926.750(b)(2) then he

might properly involve the defense that the specific standard prevails over the general.

Neither a rational basis for the difference in height requirement in the two regulations,

nor the lack of it, has been successfully demonstrated. Moreover, the Secretary is authorized to

promulgate and amend regulations and his interpretations thereof are entitled to great weight.

Surely the respondent must show that the promulgator’s action and interpretation is clearly

unreasonable or manifestly unjust.

Respondent’s contention and argument here is untenable and of no merit. 1 It is therefore

rejected.

See Griggs v. Duke Power Co., 401 U.S. 424; Roy Bryant Cattle Co. v. U.S. 463 Fed 2nd 418

Although the charge set forth in the citation might be couched in more appropriate

language it effectively charges a violation of the regulation alleged. It spelled out to respondent

that he had not provided any kind of safety measure to protect falls in excess of 25 feet.

Neither the wisdom nor the avowed purpose of the regulation is subject to any further

significant debate in view of the pronouncements in Brennan v. Southern Contractors Service,

492 Fed 2d 498. This case stands for the proposition that upon the exposure, by an employer, of

an employee to a workplace more than 25 feet above the ground, without providing either a

safety net or one of the other safety devices listed in the regulations, subjects the employer to

sanctions for violation of the cited standard. This proposition is conditioned on whether the

evidence establishes that it was, in fact, practical to use one of the safety devices.

According to the evidence the girder at the scene of the alleged violation was within the

area of the several workplaces and was used as a means of getting to them for the performance of

work tasks as well as for placing kegs of bolts accessible for use in performing the bracing

operation. Apparently it was necessary to traverse all or part of the 26 feet nine inch height to

acquire a supply of bolts. Thus, it is inescapable that this walkway, to the extent that its height

exceeded 25 feet, was part and parcel of the workplaces to which employees were subjected.

The evidence was rather conclusive that the employment of a safety net was impractical.

On the other hand, the evidence is also rather conclusive that here, under the facts and

circumstances, only a steel cable, supported by a metal span between girders upon which is

mounted a pole with an eyelet, to which a workman’s lanyard is attached, could properly afford

protection from falling and at the same time afford mobility, be somewhat practical, and not

impossible. In reaching the latter conclusion it is inferred that the cable, which is the lifeline, is

secured above the point of operation, namely, the top of the girder used as a walkway, and that

the anchorage is capable of supporting a minimum dead weight of 5,400 pounds, which complies

with the commands of 29 CFR 1926.104(b).

This method of protection was suggested by the compliance officer who had observed

this kind of safety device, in use by the decking contractor at a later date and at a place, on the

project where respondent’s work had been completed. Thus, at that time it may be reasonably

inferred that the girders were secured and firm. Also it may be inferred, from the fact this officer

approved this method of protection, that he determined the girders, then firm and secure, were

capable, as the anchorage for the lifeline of supporting a minimum dead weight of 5,400 pounds.

At what stage during the course of the work performed by respondent the girders, as an

anchorage, become capable of supporting a minimum dead weight of 5,400 pounds is left to

speculation and guesswork. The evidence does show at the time a girder is put in place on the

piers a strong wind can blow it over or off its resting place unless it is tied down. After it is tied

down it is then capable of remaining erect and in place permitting it to be used as a walkway.

Then after an adjacent girder is tied down they will support, apparently, two workmen, each on a

board extended between these girders at the bottom, during the installation of the bracing. And,

of course, the final stage of respondent’s work is to bolt down a girder, at the conclusion of

which it apparently becomes good and solid for all purposes to which it may or could be

subjected.

It is self evident from the testimony of complainant that his predicate for a violation of

the alleged standard at the time of investigation, issuance of citation and during the presentation

of his case at the hearing was based upon the failure to provide a safety net. Apparently,

however, during trial in rebuttal, complainant abandoned that predicate in favor of a lifeline

(cable) and lanyard, because respondent showed that a safety net was impractical as well as

impossible to use.

Complainant in his brief did not concede that safety nets were impractical. Nevertheless,

he hailed to come forward with any evidence tending to show the feasibility and likely utility of

this kind of protection under the facts and circumstances surrounding respondent’s steel erection

on the job site under consideration. And, of course, he did not argue the point. He resorted to the

argument that the alternative of a safety line attached to a cable, as proposed by the compliance

officer, could and should have been used.

Although respondent’s foreman, an experienced steel worker testified that ‘you can put

up the angles, and I guess you could put one up there, if you wanted to,’ respondent rejected the

utility of such device as being cumbersome and likely to cause tripping on the angles.

It is most difficult to ascertain from the evidence how much of the top of the girder was

elevated above the 25 feet height from the ground. It is concluded that only a small portion

extended beyond that height. Exposure at any given time was certainly less than a few seconds.

Regardless, there still existed the possibility of a fall from a point more than 25 feet above the

ground. And there appears to be no dispute with respect to the proposition that in the event of

such a fall it could result in serious injury or death, concerning which respondent was aware.

Thus, respondent had the duty of employing some method to protect its workmen from the

consequences of such a fall. It should be observed that falls from various heights of less than 25

feet could have the same consequences, however, respondent is not so charged nor has there

been any deviation from the terms and conditions of the regulation alleged.

Now, therefore, has complainant established that respondent did in fact and law violate

the standard alleged.

It is undisputed that respondent did not employ a safety net. It is also undisputed that it

did not employ any one of the safety devices listed in the regulations. Therefore, noncompliance

is obvious, however, complainant has an additional burden of showing the specific steps a cited

employer should have taken to avoid a citation. As heretofore indicated his attempt to sustain this

burden failed with respect to utilization of a safety net. Therefore he advanced the safetyline—

lanyard safety device as the only means proscribed by the regulations that would have afforded

the protection avoiding the citation. As has been demonstrated this proposition was grounded on

the fact that the decking contractor was using the suggested safety device after respondent had

completely erected and installed the steel. None of complainant’s witnesses were qualified as

experts capable of testifying as to feasible safety precautions within the knowledge of the steel

erecting industry. No expert testimony was adduced in support of complainant’s case. Generally,

reference to industry custom and practice will establish the standard of conduct. Perhaps it may

be concluded from respondent’s testimony that the situation here is an instance where industry

practice fails to take reasonable precautions against this hazard which is generally known in the

industry.

Where as here, however, the employment of the suggested means of avoiding the citation

may or could be a violation of another regulation, namely 29 CFR 1926.104(b), without proof to

the contrary, the practicality and utility of the safety requirements as so interpreted by

complainant are suspect. The substantial evidence on the record considered as a whole does no

more than create a suspicion of the existence of the truth of the fact to be established. The

relevant evidence is inadequate to support the conclusion submitted by complainant.

Complainant has simply failed to show that his suggested method of compliance would be

feasible and usable under all the facts and circumstances existing at the time and place of the

Cope and Vineyard Etc. v. Occupational Safety and Health Review Commission, —— Fed 2nd

——, 73–1223 (1st CA) (3/3/75)

alleged violation. 3 Accordingly, complainant has failed to make a case for violation of 29 CFR

1926.105(a).

CONCLUSIONS OF LAW

1. The Review Commission has jurisdiction to hear and decide this case.

2. Where the evidence shows the use of a safety net is impractical and further fails to

show the feasibility and usability of a safety line and lanyard, in lieu thereof, in a particular fact

and circumstance situation there can be no violation of the commands of 29 CFR 1926.105(a).

ORDER

Wherefore it is Ordered that item 1 of citation 2 and the $550.00 penalty to be assessed

be and each is hereby vacated.

It is so Ordered at Dallas, Texas.

J. Paul Brenton

Judge

Date: May 8, 1975

Secretary v. The Ceco Corporation, OSAHRC Docket 9467.