ROANOKE IRON & BRIDGE WORKS, INC.
OSHRC Docket No. 10411
Occupational Safety and Health Review Commission
May 3, 1977
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Marshall H. Harris, Reg. Sol., USDOL
Charles N. Buhrman, Personnel/Safety Director, Roanoke Iron & Bridge Works, Inc., for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Chairman:
This case presents issues concerning fall protection for employees engaged in steel erection work. The issues on review are whether Judge Joseph L. Chalk erred in 1) vacating a citation for a serious violation of the standard at 29 C.F.R. § 1926.450(a)(1), n1 and 2) denying Complainant's motion to amend a citation which alleged noncompliance with the standard at 29 C.F.R. § 1926.500(d)(1). n2 For the reasons that follow, we find that Respondent violated § 1926.450(a)(1), but affirm the Judge's denial of the motion to amend.
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n1 § 1926.450(a)(1) states:
Except where either permanent or temporary stairways or suitable ramps or runways are provided, ladders described in this subpart shall be used to give safe access to all elevations.
n2 § 1926.500(d)(1) states:
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 as specified in paragraph (f)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. 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.
[*2]
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The case was submitted upon stipulated facts. Respondent is engaged in the business of steel fabrication and erection. At the time the alleged violations occurred, Respondent was erecting the steel framework for a five-story office building.
The sequence of operations followed by Respondent in the erection of the building involved: setting and loose connecting of steel components, the fill-in bolting of all open holes, the placement of temporary decking or planking, installation of ladders to decked floors, and installation of safety cables on decked floors.
The compliance officer who inspected the worksite observed two employees sliding down vertical columns of steel from the third level of the building to the ground, a distance of approximately 50 feet. The employees had actually begun their slide from the fifth level. This method of descent was regularly used despite the fact that a ladder was available for use from the third level to the ground. No other means of descent was provided or used, nor were the employees protected from the hazard of falling while sliding down the columns. Respondent [*3] was aware of this practice but did not enforce any rule requiring employees to use ladders.
Various employees were also observed working either at the edge of the open-sided floors on the second and third levels or on horizontal beams adjacent thereto. These employees were installing temporary metal deck flooring. The floors were not equipped with a standard railing or a safety railing of 1/2 inch wire rope. In addition, while working under these conditions, Respondent's employees were not using any personal protective equipment, and a safety net was not provided.
ALLEGED VIOLATION OF § 1926.450(a)(1)
As noted above, the employees slid down vertical columns from the fifth level to the ground. The citation, however, alleged a violation only due to their sliding down from the third level.
Judge Chalk vacated the citation on the basis that compliance with the standard would have been more hazardous than noncompliance. He determined initially that it was impossible to use a ladder from the fifth floor to the third floor since the structural steel members above the third floor had not yet been permanently secured. n3 The Judge reasoned that, inasmuch as the employees were [*4] already sliding down the columns when they arrived at the third level, it was less hazardous for them to continue their descent rather than to "disengage themselves from the column and transfer to the ladder, both of which acts would not be entirely free of hazards themselves." Having thus determined that the procedure followed was less hazardous than compliance with the standard, the Judge vacated, relying on our decisions in American Bridge, 12 OSAHRC 22, BNA 2 OSHC 1222, CCH OSHD para. 18,702 (1974) and Industrial Steel Erectors, 6 OSAHRC 154, BNA 1 OSHC 1497, CCH OSHD para. 17,136 (1974).
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n3 Inasmuch as a violation was only alleged from the third level down, we express no opinion on this aspect of the Judge's decision.
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In Industrial Steel Erectors and American Bridge, we held that employers could affirmatively defend against an alleged violation of a standard on the basis that compliance would be less safe than the work practice actually used. This "greater hazard" defense, however, is only a complete [*5] defense under limited circumstances. See Russ Kaller, t/a Surfa-Shield, No. 11171, BNA 4 OSHC 1758, CCH OSHD para. 21,152 (1976). In this case, even the basic element of the defense, i.e. the existence of a greater hazard, has not been established. Even if the use of a ladder under the circumstances of this case was not, as the Judge determined "entirely free of hazards," the stipulation of facts does not establish the existence of such hazards. Clearly, it cannot be said on this record that such hazards are greater than the hazard of sliding down the columns. Furthermore, there is no evidence on the other elements of the defense, i.e. that alternative means of protection were unavailable and that a variance application would have been inappropriate. See Russ Kaller, supra. Accordingly, the Judge erred in vacating the citation on the basis of the "greater hazard" defense. Since none of the means of descent permitted by § 1926.450(a)(1) was used, Respondent violated the standard.
It was stipulated that Respondent had knowledge of the practice of sliding down the columns and that a substantial probability existed that death or serious physical harm could result. Thus, [*6] a serious violation has been established. 29 U.S.C. § 666(j).
We have considered the gravity of the violation, Respondent's size, good faith, and history of previous violations. We find that the $800 penalty proposed by the Secretary is appropriate.
THE AMENDMENT ISSUE
Respondent was cited for allegedly violating § 1926.500(d)(1) by failing to provide standard guardrails around the second and third floors. In his complaint, the Secretary moved to amend the citation to allege, in the alternative, a violation of another perimeter protection standard, § 1926.750(b)(1)(iii). n4 The Secretary further moved to amend in the alternative to charge that Respondent's failure to use personal protective equipment, safety nets, or other life saving equipment violated § 1926.28(a) and § 1926.105(a). n5 Respondent has consistently opposed the Secretary's motion to amend the citation.
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n4 § 1926.750(b)(1)(iii) is in 29 C.F.R. § 1926 Subpart R which contains specific standards applicable to the steel erection industry. The standard states:
Floor periphery-safety railing. A safety railing of 1/2-inch wire rope or equal shall be installed approximately 42 inches high around the periphery of all temporary-planked or temporary metal-decked floors of tier buildings and other multifloored structures during structural steel assembly.
n5 § 1926.28(a) states:
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 equipment to reduce the hazards to the employees.
§ 1926.105(a) states:
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.
[*7]
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Judge Chalk found that neither § 1926.500(d)(1) nor § 1926.750(b)(1)(iii) was violated. He held that § 1926.500(d)(1) was not applicable to the facts because of the applicability of § 1926.750(b)(1)(iii), a specific steel erection standard requiring perimeter protection. He also found that the sequence followed by Respondent of installing temporary metal deck flooring, and then installing safety cables around the perimeter conformed to the requirements of § 1926.750(b)(1)(iii). He relied on the fact that this standard requires railings around the periphery of "temporary-planked or temporary metal decked-floors," rather than around the periphery of the skeleton steel framework before temporary floors are installed. n6 Having thus found that § 1926.750(b)(1)(iii) was not violated, the Judge did not reach the issue of whether the citation was properly amended to allege that standard.
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n6 The Judge noted that temporary floors are themselves a safety feature required by § 1926.750(b)(1)(i) of the steel erection standards. This standard states:
(b) Temporary flooring-skeleton steel construction in tiered buildings.
(1)(i) The derrick or erection floor shall be solidly planked or decked over its entire surface except for access openings. Planking or decking of equivalent strength, shall be of proper thickness to carry the working load. Planking shall be not less than 2 inches thick full size undressed, and shall be laid tight and secured to prevent movement.
[*8]
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Regarding the amendment requested to allege violations of § 1926.28(a) and § 1926.105(a), the Judge denied the motion, holding that since the citation referred only to perimeter protection, it could not be amended to charge a violation due to the lack of other forms of fall protection. On review, the Secretary does not take exception to the Judge's rulings concerning § 1926.500(d)(1) and § 1926.750(b)(1)(iii). He contends, however, that the Judge erred in denying that part of the motion to amend to add alleged violations of § 1926.28(a) and § 1926.105(a). The Secretary notes that citations are issued by non-legal personnel, and argues that the Judge's reason for denying the amendment would lead to the result "that the Secretary's legal theory in all OSHA proceedings would be irrevocably controlled by the opinion of his nonlegal staff."
The amendments sought, however, do not simply seek to change the legal theory underlying the citation. They also add new factual allegations in that the absence of safety belts and safety nets, as well as perimeter protection, are now alleged to be part of the alleged [*9] violation. While it may be true that the Secretary's non-legal personnel who issue citations cannot be expected to always know the correct legal theory under which to proceed, they should be capable of identifying the appropriate means of abating safety hazards.
Furthermore, in this case the Secretary's legal staff seeks to alternatively allege violations of four separate standards. The reason given for this procedure is that, regardless of the nature of the surface on which the employees were working, one of the four standards was violated. Thus, rather than attempting to determine the correct standard under which to proceed, the Secretary seeks to allege every standard which might conceivably apply.
We have previously noted the difficulties encountered in applying the Secretary's fall protection standards for construction work. See Warnel Corp., 76 OSAHRC 41/C5, BNA 4 OSHC 1034, CCH OSHD para. 20,576 (1976). We do not, however, think it is justifiable for the Secretary to attempt to overcome these difficulties by means of the approach taken in this case. If the Secretary, who is presumably familiar with the requirements of his various standards, cannot determine the [*10] proper one under which to proceed, it is doubtful if an employer can be said to have had fair notice of the violation with which it is charged.
We are therefore inclined to deny the Secretary's motion to amend. We need not, however, rest our decision solely on whether the motion should be denied, for in any event the record does not establish that Respondent violated § 1926.28(a) or § 1926.105(a). n7
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n7Although the Judge denies the part of the motion to amend that sought to add alleged violations of § 1926.28(a) and § 1926.105(a), evidence relevant to these allegations was included in the stipulation of facts. The Judge did not exclude any evidence sought to be admitted, and the Secretary does not seek a remand to present additional evidence in the event his motion to amend is allowed. Accordingly, even if we were to allow the motion to amend, the decision on the merits would be based on the evidence now of record.
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Regarding § 1926.28(a), we have held that, to show a violation of this standard, the Secretary must [*11] establish that a particular type of personal protective equipment is appropriate, and that the use of such equipment is feasible. Frank Briscoe Co., No. 7792, BNA 4 OSHC 1729, CCH OSHD para. 21,162 (1976). In this case, the evidence establishes only that employees were not using personal protective equipment. There is no evidence that the use of such equipment is appropriate or feasible under the circumstances of this case. Accordingly, a violation of § 1926.28(a) has not been established. Frank Briscoe Co., supra.
Turning to § 1926.105(a), we note that Respondent was in fact using temporary floors as a means of fall protection, in accordance with the applicable steel erection standards. Section 1926.105(a) only applies "where the use of . . . temporary floors . . . is impractical." Therefore, even if the temporary floors did not provide as complete protection against falls as might have been possible, a violation of § 1926.105(a) cannot be found. n8 Brennan v. OSHRC (Ron Fiegen, Inc.), 513 F.2d 713 (8th Cir. 1975); Brennan v. OSHRC (Pearl Steel Erection Co.), 488 F.2d 337 (5th Cir. 1973).
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n8 In reaching this conclusion, we have considered the fact that some of the employees affected were standing on beams rather than on the temporary floors. That does not, however, affect our conclusion. Temporary floors are used in steel erection both as a working surface and to protect employees who might fall from higher levels. See 29 C.F.R. § 1926.750(b)(1)(i), (b)(1)(ii), and (b)(2). In this case, the employees working on beams would apparently have received the fall protection from temporary floors intended by the steel erection standards in § 1926.750.
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Accordingly, we affirm the citation for noncompliance with 29 C.F.R. § 1926.450(a)(1) and assess a penalty of $800. In all other respects, the Judge's decision is affirmed.
CONCURBY: MORAN; CLEARY (In Part)
CONCUR:
MORAN, Commissioner, Concurring:
I concur in the foregoing opinion except insofar as it is asserted therein that a "greater hazard" defense entails elements other than establishing that compliance with the cited standard would impose a greater hazard to employees than the work practice for which the employer was cited. Requiring [*13] more than this is contrary to common sense and unfair to the employers of this country.
It is totally unreasonable to require that on-going construction work be suspended pending the endless bureaucratic delays involved in seeking a variance. It is also unreasonable to require an employer to establish that alternative means of protection were unavailable. Such a requirement improperly shifts the burden of proof to the employer who is then required to prove that he did not violate various other standards that might be applicable even though he was not charged with violating those other standards.
Employee safety is the only reason for the Act's existence. If during the course of the work, it appears that such safety would be lessened by strictly observins the requirements of an occupational safety and health standard, the worn should proceed in a safe manner and the employer should be able to successfully defend against a failure-to-comply charge so long as he can establish such facts. This was the law when the Commission first articulated the "greater hazard" defense. Secretary v. Industrial Steel Erectors, Inc., 6 OSAHRC 154 (1974). The attenuation of that defense by [*14] my prosecutorial-minded colleagues is a serious blow to justice under the Act.
DISSENTBY: CLEARY (In Part)
DISSENT:
CLEARY, Commissioner, CONCURRING IN PART AND DISSENTING IN PART:
I concur in the disposition of the issues by my colleagues except their affirmance of the Judge's denial of the Secretary's motion to amend his pleadings to allege in the alternative violations of section 1926.28(a) and section 1926.105(a). I would reverse, grant the Secretary's motion to amend in order to allege a violation of section 1926.28(a) for a lack of personal protective equipment from a fall hazard, and remand for further proceedings.
I agree with Judge Chalk that there is a shift in legal theory by the Secretary from the cited failure to have perimeter guarding. But the Judge erred in not permitting alternative pleading of section 1926.28(a). The shift is slight. The essential underlying facts still deal with the lack of safety protection for employees installing the temporary floors. n9 The only difference concerns the method of abatement of the hazard. Amendments of this kind should be liberally granted. See Carr Erectors, Inc., 4 BNA OSHC 2009 (No. 7247, January 21, 1977) (dissenting opinion). [*15] See also 2A J. Moore, Federal Practice para. 8.02 (2d ed. 1975), concerning the application of Fed. R. Civ. P. 8(e)(2) which is incorporated by reference by Commission Rule 2(b), 29 CFR § 2200.2(b). Instead of deciding the controversy as to appropriate protection for the employees involved, the action of the majority merely postpones a disposition on the merits to another time and another jobsite.
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n9 The parties stipulated that employees of respondent employer were standing on steel beams on the edge of opensted floors installing temporary metal deck flooring without any protection whatsoever from falling. It was further stipulated that there was a substantial probability of either death or serious physical harm would have resulted from a fall, and that the respondent employer's foreman and supervisors were aware of this condition.
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Finally, I share my colleague's concern about the failure of citations to cite the correct regulations and to describe more precisely the violations. At least one court of [*16] appeals has shown the same concern. See Ringland-Johnson, Inc. v. Dunlop and O.S.H.R.C., No. 76-1687 (8th Cir., March 23, 1977). This concern, however, should not obscure an essential concern with the carrying out of the statutory purpose of protecting employees. This case should not be disposed of on a narrow issue of pleading when procedural fairness does not require it.