EBASCO SERVICES, INC.
OSHRC Docket No. 10514
Occupational Safety and Health Review Commission
April 20, 1977
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
Baruch A. Fellner, Office of the Solicitor, USDOL
T. A. Housh, Jr., Reg. Sol., USDOL
Peter M. Phillipes, for the employer
This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.
In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.
The Judge's decision is accorded the significance of an unreviewed Judge's decision. [*2] Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).
It is ORDERED that the decision be affirmed.
MORAN, Commissioner, Concurring:
I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A. For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.
DONALD E. McCOY and DANIEL J. MICK, Office of the Solicitor, U.S. Department of Labor, Appearing on behalf of Complainant
PETER M. PHILLIPES, Appearing on behalf of Respondent
MR. HUGH McCARTHY, Ebasco Services, Inc.
WAYNE KERN, on behalf of widow of deceased
Hearing held April 22, 1975, Courthouse, Seventh & Douglas Streets, Woodbury County, Sioux City, Iowa, Judge Paul E. Dixon presiding.
Paul E. Dixon, Judge:
This is an action under section 10(c) of the Occupational Safety & Health Act of 1970, 29 USC 651, et seq. (hereinafter referred to as the Act), contesting a citation for willful violation, amended to [*3] serious violation, as a result of an inspection by the Department of Labor made on September 20, 1974, at a place of employment known as Port Neal Station, Salix, Iowa, where respondent was engaged in work as an engineering and general contractor.
The original citation issued October 9, 1974, alleged violation of section 5(a)(1) of Public Law 91-596, in that:
"(At Southwest Mouthpiece End on West Precipitator) Employees were using lifelines that had a spring type latch on the hook. Under certain conditions, this spring latch would fail to contain the lifeline, causing it to become disengaged from its top attachment while in use. The employer knowingly permitted its use and, therefore, failed to provide employment which was free of a recognized hazard that was likely to cause death or serious injury to his employees."
An abatement date of October 15, 1974, was established, and a penalty proposed in the amount of $3,200.00.
Respondent filed its notice of contest on October 14, 1974, with complainant filing his complaint on the 4th of November, 1974, and responsive answer being filed March 24, 1975, bringing the case to issue.
MOTION OF RESPONDENT
Respondent filed a motion [*4] to dismiss the complaint on the grounds that specific standards were applicable; namely, 27 CFR 1926.28 and 29 CFR 1926.104, and therefore the "general duty" clause under section 5(a)(2) of the Act, and had been improperly charged with the violation of section 5(a)(1) of the Act. The Chief Administrative Law Judge "without prejudice to the right to renew (the motion) before the trial judge" denied said motion.
The aforesaid motion was again refiled with the trial judge on March 18, 1975, and upon consideration of the points and authorities raised by both respondent and complainant respondent's motion was denied on the basis that there was no standard or provision of a standard found which would apply to the use of a spring-type latch which would permit the life line to become disengaged while in use, and that therefore, the complainant must prove a 5(a)(1) violation.
Section 5(a)(1) of Public Law 91-596, codified, and 29 USC 654, Duties of Employers and Employees, states:
"(a) Each employer . . .
(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical [*5] harm to his employees;"
It was stipulated and agreed by respondent that:
1. Respondent is a corporation with its principal office at 22 Rector Street, New York, New York.
2. Respondent had a construction worksite at Salix, Iowa.
3. Respondent was engaged in construction of a coal-fired power plant.
4. There were approximately 700 employees on the worksite.
5. Respondent is under the jurisdiction of the Act.
6. Respondent was issued a citation under section 5(a)(1) on October 9, 1974.
7. On October 14, 1974, respondent filed a notice of intention to contest the citation and notification of proposed penalty.
Appearing on behalf of the complainant, Mr. Randy Jacobs, former boilermaker for respondent, testified that he was on a rigging crew with the deceased, Mr. Kenny Bechtel, for the first time the day of the fatality, September 16, 1975.
Jacobs and Bechtel were hanging a panel on precipitator B (Exhibit G-1), commencing about 9:00 a.m. They were raised to the work location, approximately 60 feet high, by a crane basket. As a panel piece approached, Bechtel slid down on the side of a brace (commonly referred to as a beam), and tied [*6] himself into an L-shaped angle iron brace which was welded into the beam.
Prior to this, Bechtel had been tied to a perimeter cable atop the beam, then lowered himself to tie into an angle iron with Jacobs standing overhead on top of the beam.
Jacobs testified that he observed Bechtel fasten his safety lanyard to the angle iron. Jacobs identified the deceased's safety belt, two holder, safety line (lanyard) and snaps for tying off.
Jacobs added that the deceased also wore shoulder straps, which it developed were the deceased's personal property and had been returned to his family.
Jacobs described the equipment represented by Exhibit R-1 as similar to the equipment furnished and worn by Jacobs.
Jacobs described the actions of the deceased as taking the snap end of his lanyard, passing it through the L-shaped angle iron and snapping the snap back over the rope lanyard. Jacobs testified that he saw the snap secured and heard it click. (T. 7-20; 28)
The throat opening inside diameter of the hook portion of the snap was measured and found to be 3/4 inch.
The rope lanyard was measured and found to be between 5/8 inch to 3/4 inch, with the opinion that it was probably 5/8 inch [*7] when new and tight (T. 217-220).
Witness Rutherford B. Mills referred to the lanyard as being 3/4-inch rope (T. 34).
After Bechtel reached out for the sheet, which was estimated by Jacobs to be 20 feet by 30 feet to 50 feet, Bechtel requested Jacobs to hold it and leaned down to draw it to the column.
Jacobs was also directing the lift which had stopped. As Bechtel reached and put his hand on the sheet he fell. Jacobs saw him reach for a cable which extended down from the beam but Bechtel went straight down. Quoting Jacobs: "There was no jerking or nothing." (T. 22)
After obtaining a "quick release" which fits into bolt holes (attached to Exhibit R-1), Jacobs returned the next day using the same equipment (T. 23; 24).
Jacobs testified as to Bechtel's reputation and concern for safety as being the finest, and further that Bechtel always tied off (T. 24).
Approximately two weeks after the accident, respondent made optional new safety lines and a new type of clip or snap with a safety catch. Jacobs was familiar with the use of the safety belt when he went up on the iron. (T. 30)
Jacobs had been involved in disciplinary problems on the job and had been discharged for chronic [*8] absenteeism, and at the time of the hearing had a labor grievance filed against respondent (T. 282).
Mills, Sr. Boilermaker pusher for respondent from May 1974 to March 1975, knew Bechtel and his reputation for being safety conscious and of his practice of tying off with either a safety lanyard or a quick release when working (T. 31; 33).
Mills identified the deceased's safety belt (Exhibit R-1) and lanyard as a type in general use on the job, although noting that there were other types with smaller lanyards, i.e., 5/8-inch or 1/2-inch nylon, with some having a lock on the snap (T. 33).
Mills used a 1/2-inch nylon lanyard with a safety snap. He described a safety snap as being such that one part had to be pushed down before the spring-loaded clasp could be pushed backwards, in order that the snap be unhooked, which in essence was a two-handed operation (T. 34; 35).
Mills differentiated between the single-action snap and the safety lock snap, in that in the single-action snap a half-hitch could come around with a load and push down the spring-loaded clasp and the rope would kick out of the snap. As to the lock snap, the rope could not depress the spring-loaded clasp without the [*9] safety being released and would therefore not release from the snap.
Mills preferred the safety clasp snap and obtained them for his crew whenever possible (T. 35).
He described the correct way to use Bechtel's type of snap as to have what is called a pad-eye welder with a hole in the center where the snap could snap into the hole.
Mills and his crew always had something welded up for them to tie off to, such as a large nut off of a bolt where the hook would fit in, or they would tie off to their cages that they welded in; or snap into safety lines all the way around the top of the precipitators.
The helpers would snap off into 3/8-inch lines. The welders snapped their lanyards into their cages and the pad-eye they had welded on there. (T. 36)
Mills identified a Mr. Scott Carpenter as a safety supervisor on the job who had safety meetings every Thursday morning and who was on the job daily.
Bechtel's method of snapping back, onto the lanyard was referred to after his fall with the observation of Carpenter, quoted by Mills as stating that he did not see where it would do any harm (T. 37).
Mills described Carpenter's discussion with the men regarding accidents and conflicts [*10] with safety rules, and while touring the jobsite that Carpenter would point out unsafe situations on the spot (T. 38).
It was Mills' observation that most of the riggers tied off in the same manner as Bechtel prior to the fall, and some continue after his fall.
Mills disagreed with the manner of looping the rope and snapping back onto the rope, on the basis that a rope could develop a half-hitch and coil back onto the spring-loaded clasp and cause it to depress and release the snap not equipped with a lock and the rope would become disengaged (T. 38; 39).
Mills personally used a snap with a lock which was furnished by respondent. Mills did not see the fall, but did see Bechtel hit the ground. Bechtel's lanyard was on him, the free end was not snapped into the hook. The other end of the lanyard was snapped into the "D"-ring of the belt, with the snap being closed and intact.
After the fall, Mills and three or four men discussed with and demonstrated to Carpenter how a half-hitch in the lanyard could unsnap the clasp and cause a release of the rope (T. 41; 42).
The men used another 3/4-inch Manila lanyard in the demonstration before Carpenter, while Mills was of the impression [*11] Bechtel's line was more nylon. They utilized a snap hook of the same size. (T. 43)
Thereafter, nylon lanyards and lock snaps were acquired by respondent with their use first made mandatory, then optional because of the difficulty and time it took to unfasten, although the biggest part of the men used them.
At request of respondent's counsel, Mills was asked to demonstrate the unhooking phenomenon using Exhibit R-2, an angle iron cable mock-up, which Mills was unable to do utilizing Bechtel's lanyard and snap (T. 47).
In describing the demonstration to Carpenter, Mills testified that another line was used, stating:
"Q With another line?
A With another line, yeah. And showed that with the 1/2" throwed in there like that, that it could, when it come come go right out there. A weight of a man will flatten this part out and this part will pull right through there (indicating)." (T. 46-48)
Mills felt that a demonstration would have to be conducted with the lanyard attached to something 6 feet up or higher.
Mills has been in the construction industry about 33 years, and based on his experience testified that safety lanyards and equipment did not come out until approximately seven [*12] years ago with the lanyard having a snap on one end and a bowknot tied on the other (T. 52).
Over his entire industry experience, the single lockless-type snap was the most common in use (T. 53).
Mr. David LeRoy Cochran, a boilermaker for five years, was called by complainant and testified to having worked for respondent from October 1973 to February or March of 1974. Cochran knew the deceased, and while he formally worked as a high rigger with the deceased on the day of the fatality September 16, 1974, he was working on the ground making attachments to the sheets being raised to the girder.
He looked up to where Bechtel and Jacobs were working and viewed Bechtel leaning outwards and then stopping and then falling straight down. He could not tell if his feet were on the girder when he came to a stop. (T. 55-58).
Cochran went to Bechtel and unbuckled his safety belt in order for him to improve his breathing and noted that his lanyard was in one piece and was connected to his belt. It was open on the other end with a snap attached to the rope.
Cochran attested to Bechtel's concern with safety, noting that Bechtel's habit usually was not to use the rope in tying off, but would [*13] use his quick release hooking it into a bolt hole (T. 59; 60). Cochran, quoting his discussions with Bechtel, quoted Bechted as explaining that he preferred to use his quick release, in that should he slip and lose his footing he would not reach the end of the lanyard and come to a jerk, in that he was a large man, 230 or 240 pounds, and was afraid the rope itself would break and not hold him (T. 59-61).
Cochran had had discussions with Carpenter prior to September 16, 1974, requesting that pieces be welded for tying off, but no welders were available, quoting respondent as being in a hurry to get the iron up (T. 61).
Afterwards, respondent advised the employees that if they were not tied off they would be discharged (T. 62).
After the fatality, discussions were had with Carpenter pertaining to obtaining new lines with double safety catches as a manner of tying off, with Carpenter being quoted as telling the employees to use their own judgment and do what is best (T. 63; 64).
Cochran noted that the safety man was good about getting other safety lines that were requested and that had double safety catches.
After this event, new nylon lanyards were available, and the employees [*14] were requested to turn in the lines with the double safety catch (T. 64).
The new lanyards did not have the double safety catch (T. 65).
Cochran preferred the line with the double safety catch.
Cochran testified that when he would be working upon a girder and would want to move he would throw a half-hitch into his line, yank on it, disengage it and move to a new location. He has performed this maneuver many times. (T. 65; 66)
Cochran, in doing his disengagement maneuver, was using a smaller rope (T. 67). He believed his rope to be 1/2-inch or 5/8-inch, although he stated that he could still perform the maneuver with a 3/4-inch rope (T. 68). Cochran felt that a 50 or 75-pound pull would be sufficient to disengage the rope (T. 68).
Cochran acknowledged that no one saw Bechtel's rope come out of the snap; that the manner of his fall as described was pure speculation (T. 71).
Cochran had never heard Bechtel request a double-locking snap hook for his equipment (T. 76).
Cochran reiterated that with his rope and attachment he could perform with one hand the disengagement maneuver. However, he was not sure that he could perform such a maneuver with Bechtel's equipment. (T. 80) [*15]
While Cochran could perform the maneuver with his 1/2-inch rope, Cochran was not sure that he could do it with Bechtel's rope which was 3/4-inch, although he could do it with a 3/4-inch nylon rope which had been issued him (T. 81).
Compliance officer Douglas Mark Pechman appeared for complainant. His prior employment had been with the insurance industry as a safety representative and he had received training with OSHA. Pechman has a degree from Creighton University in Business Administration.
Pechman investigated the fatality of September 16, 1974, and identified Exhibit G-2 as a letter with attachment containing the accident report of respondent pertaining to the fatality, and identified Exhibit G-3, a memorandum to Mr. Dale K. Jones, respondent's construction manager and project supervisor, from Carpenter, project safety representative, involving a fatality and his investigation thereof, noting that two of the witnesses claimed Bechtel fell while climbing down to the lower flange of the beam, both claiming that Bechtel tied his safety belt lanyard prior to the fall. All of the witnesses said that they saw Bechtel's safety belt lanyard tighten and saw him jerk as though the [*16] belt was going to hold him, but he then continued falling approximately 60 feet to the ground. One witness claimed that Bechtel hit the piece of steel that was being connected when he fell.
Cause was stated that Bechtel apparently lost his footing and handhold and fell. It was not known why the safety belt and lanyard failed to hold Bechtel. Upon inspection of the safety belt, lanyard and angle iron where the lanyard was attached, nothing could be found that would indicate failure of any of these items.
Under corrective action, the report stated that it was felt by some people that the safety latch on the lanyard hook could have been forced open by a kink in the lanyard allowing the lanyard to come free. In the future, safety belt lanyard hooks with a locking device to prevent accidental opening and a latch would be provided.
The compliance officer had previously inspected respondent and identified Exhibit G-5, referring to a citation issued respondent June 9, 1973, regarding barricades.
Between the time of respondent's letter and Pechman's investigation of Bechtel's accident he had inspected the Portney site, resulting in the issuance of a citation in August of 1974 (T. 93). [*17]
The basis of the citation was employees working on high steel who were not equipped with safety belts and lanyards (T. 94).
During the course of his experience with insurance companies and OSHA, Pechman became familiar with the two types of snap hooks, the single and the double-locking, noting that there was a variety of different types of double-locking snaps where the lock has to be moved before the spring-latch can be disengaged.
In describing what is called a "roll-out" with a single snap, he noted that it could occur by having a piece of lanyard looped over the spring-loaded latch, and with the snap hook lodged in a certain position and with weight applied to the lanyard it would snap through (T. 94; 95).
He felt that this could also happen if the hook was attached to a cable or a "D"-ring as opposed to a lanyard.
The unlatching would be more unlikely to occur if the attachment is made to a round piece as opposed to a piece where the latch could bump into something near the point of attachment (T. 96).
Pechman, while working for the insurance company, made some inspections in the construction industry. The respondent's power plant was the only large construction site that [*18] he ever inspected. (T. 97)
His recommendation to the area director of charging respondent with a 5(a) violation was made on the basis of his inspection and interview of witnesses, and not on the basis of his prior experience in the construction industry (T. 99).
He noted that he used the term "life line" in the citation, feeling that "life line" or "lanyard" is commonly used, noting that a more correct term is "lanyard".
Pechman defined a "lanyard" as a short piece of rope which is attached to a structure, and a "life line" as a longer piece of rope which is attached to the building structure, with the only difference being the length of the rope (T. 99; 100).
Pechman had no official knowledge of any other accident similar to the one in issue involving personal protective equipment as in Exhibit R-1, and where there was a roll-out.
Pechman conceded that in referring to 29 CFR 1926.104, if he had seen an employee tied off using Bechtel's equipment he would not have issued a citation (T. 101).
Jones, respondent's construction manager with a degree in Civil Engineering and a 21-year employee of respondent, testified on behalf of respondent.
Jones has held the position of party [*19] chief, field engineer, office engineer, construction engineer, resident engineer, construction superintendent, project superintendent, up to his present job as construction manager.
Jones is familiar with personal protective equipment and general use in the construction industry, including life lines, safety belts, lanyards and snap hooks.
All of respondent's employees working above 25 feet are required to wear safety belts and lanyards.
Respondent had received the prior OSHA citations at the Port Neal Station for failure to have a safety net under some steel erectors, one referring to clean-up and one referring to an employee who did have a safety belt but was not tied off. Respondent had also been cited by the State of Iowa in 1973 with reference to cleaning up a handrail.
On or about September 16, 1974, respondent's employees were required to use a safety belt with a lanyard attached to be tied off by a quick release item, and such equipment was furnished to all the employees engaged in such activity and had been available to them and in use after July 31, 1974 (T. 107-110).
Jones identified Bechtel's safety equipment and established its continuous custody (Exhibit R-1). [*20]
Jones was satisfied that on September 16, 1974, all the safety equipment utilized by Bechtel and other employees met or exceeded all existing federal, State, Industry and respondent's requirements.
Respondent had made some changes, due to the fact that when it was using 1/2-inch lanyards required by OSHA specifications it found on an independent survey that the 1/2-inch lanyards were not taking a backload of sufficient weight and were failing 50 to 60% of the time. Respondent proceeded to buy 5/8-inch lanyards and change every lanyard on the job.
They had never had a failure with a 1/2-inch lanyard (T. 112). Their actions were taken independently based on their tests. Life lines with spring-type latches have never been used on the project's life lines. (T. 113)
Exhibit R-2 was set up to illustrate a life line consisting of a 1/2-inch cable stretched between two columns. The lanyards were snapped onto the life line. (T. 114) Besides the angle iron support, there are other areas on the project where the life line is attached to existing structures or steel.
Jones described the difference between the life line and the lanyard, a life line, being a long cable to which a lanyard [*21] is tied into. Lanyards are 6 feet in length by OSHA standards. Spring-type latches form no part of any life line equipment. Spring-type latches form a part of the lanyard used on the safety belt. (T. 115)
The snap hook is used to attach the lanyard to the safety belt and to the life line or other attachments.
Jones is familiar with both single and double-locking type snap hooks, noting that the one most commonly used in the construction industry is the single type.
At the time of the occurrence, he was not even aware that there was a double-locking type latch available.
The reason the single snap hook is more commonly used is that the double latch hook requires two hands to attach and two hands to release, and there are cases where erectors would want to avoid a swaying or swinging load and have to move rapidly and therefore prefer the single latch hook.
Respondent has made both types available to its employees, and in Jones' opinion the safety equipment provided the employees is the safest and best suited to the operations in which they are engaged.
Jones had never heard of an accident where a worker, using the type of equipment provided Bechtel, had the snap hook released [*22] accidentally.
Jones uses the same type of equipment when he inspects a job (T. 117). Whatever Jones learned about double-action snap hooks he learned after the 16th of September, 1974.
Complainant referred Jones to Exhibit G-7, a Rose Manufacturing Co. catalog, a portion of which Jones remembered looking at, but could not establish at what time. The document was dated June 1974, and on the last page refers to "lanyards" with various types of snap hooks, some of which had what is referred to as a safety catch, with some having a single-action snap. Wording in the booklet was referred to as follows:
"CAUTION", "Roll-out can occur with single locking snaps."
While Jones was not aware of the term, by reference to the catalog he was acquainted with the term since the accident, and described the term as: Under certain circumstances the capability of a rope being pulled back through the sanp (T. 118-121).
Jones has seen a deliberate manual manipulation of a rope through a snap utilizing both hands, but has never seen such an event occur accidentally (T. 122). Referring again to the brochure, Jones' attention was called to the description of "snaps" and the language:
"No single-locking [*23] snap is 'roll-out' proof under all conditions."
"Never snap a single-locking snap to a lanyard less than 1/2 inch in diameter or to another snap."
"For maximum safety double-locking snaps should be used."
"Always use a double-locking snap if the ring into which you are snapping has less than a 2 1/2-inch inside diameter or any material onto which you are snapping is less than 1 inch diameter." (T. 123)
Jones acknowledged that it was fairly common practice to snap single-action hooks into 1/2-inch lines, and they were also snapped to 1/2-inch life lines consisting of the 1/2-inch cable (T. 124).
Jones noted that the 1/2-inch lines that were used had the same type fasteners on the lanyards, but Jones did not know if the fasteners were the same size as that of Bechtel's lanyard (T. 125).
Complainant, using a smaller line than Bechtel's, using a Rose Manufacturing Co.'s dead single-action snap hook, demonstrated a role-out maneuver with Jones agreeing that it could happen with 3/4-inch line if manually manipulated with your hands. He noted that he had never seen it occur on the job, and that in his opinion the single-acting snap was as safe as one with a safety catch.
Jones first [*24] became aware of the role-out phenomenon the afternoon after the accident or the following day, based upon a demonstration made to Carpenter (T. 126-128). The role-out phenomenon was demonstrated with use of the hands, but Jones had never known of it occurring on a project accidentally (T. 129).
Since the accident, respondent has switched to 5/8-inch line (t. 129). Jones testified that he did not feel that the manual manipulation of the single-locking snap was a fair test, in that the equipment has to be held in a certain position to cause the roll-out to occur; that a test should be made with the lanyard around a member and a pull upon it without use of the hands holding onto the clamp.
Depending on how iron workers are tied off, they normally disengage their snap hooks with one hand, in that there is a possibility of the employee being struck and knocked off the iron, or in the event a load accidentally started toward him to possibly release and move; which condition Jones felt was a recognized hazard, and for that reason a lot of people will not use the double locking type latch, as it significantly reduces the time in which they can disengage and get out of the way of a swinging [*25] piece of iron (T. 130; 131).
The angle iron to which Bechtel was tied off to was erected to support a life line cable and was 40 to 42 inches above the been he was working on.
There was a channel attached to the bottom of the beam, and apparently Bechtel was standing on that channel making it impossible for him to be tied off to the cable because of the length of his lanyard (T. 132; 133).
Carpenter, respondent's safety representative for three years at the Port Neal Station, with a B. S. Degree in Education and three years of prior safety work, including one year of training and employment as safety engineer with the E.I. duPont de Nemours & Co., described his duties as project safety representative.
He administers the safety program, conducts continuous inspections to see that respondent is in compliance with safety standards, investigates accidents and conducts some 14 weekly meetings with all crafts and supervisors, including an orientation program for new employees which they receive the first week (T. 140; 141).
Respondent requires all employees working 25 feet above the ground to wear safety belts and lanyards, or the next lower level to have a safety net under them. [*26]
Carpenter described Exhibit R-1 as a typical safety apparatus, noting its lanyard for tying off and the toggle attachment for utilization through a bolt hole in the event of lack of a place to tie off.
Respondent permits the employees to tie off by clipping a snap hook into a substantial item or a lug, or by wrapping a lanyard around a structural member and clipping back onto the rope.
Prior to Bechtel's accident, the method had never been questioned (T. 142; 143).
Following a prior citation, Carpenter and other members of management had a six-week discussion pertaining to the employees attaching their safety belt lanyards (T. 144).
Carpenter was personally satisfied with the safety of Bechtel's equipment, observing that the respondent had never used any other type; nor had it received any complaints from the crafts or supervisors regarding the equipment (T. 145-158).
To Carpenter's knowledge, the safety belt and lanyard met all Federal, industrial and safety standards of respondent. Carpenter uses similar equipment with a single snap hook, in that he feels it is safer.
Since Bechtel's accident, Carpenter has become familiar with alternative equipment. Carpenter changed the [*27] 1/2-inch nylon lanyards that had been in use to 5/8-inch lanyards and purchased double-locking snaps for those who wanted to use them. Respondent did not require the use of the double-locking snap, but made both types available. (T. 146)
Carpenter was of the opinion that the single lock snap was safer, in that it allows more mobility for the employees to release and get away from swinging steel (T. 147; 163).
Prior to Bechtel's accident, Carpenter had never seen a double-latching snap. It was his observation that the most commonly used snap was the single-latching snap. (T. 148)
Carpenter identified Exhibits R-3 to R-11 as being views of the portion of the structure where Bechtel was working at the time of his fall, and Exhibits R-12 and R-13 as being photographs of Bechtel's belt and lanyard.
Carpenter, during his entire industrial history, had never heard of an accident where it was suspected that the opening of a snap lock occurred with the type of equipment that Bechtel was using, and would continue to recommend the use of the single snap hook (T. 154).
Referring to Exibit R-10, Carpenter testified that he had examined the angle iron, upright portions, and the welded [*28] angle iron and knee braces, and all were intact with no indications of markings or scratches. Some witnesses had told Carpenter that Bechtel tied off on the angle brace which he identified on the Exhibit at the top beam level.
Carpenter thought that witness Jacobs may have told him Bechtel was tied off to the "L"-shaped angle bracket below the top of the beam and conceded that a snap could lodge on an angle brace (T. 156; 157).
Carpenter was of the opinion that the safety catch snap shown him by witness Mills on the day of the occurrence had probably been purchased by accident, as that was the only safety catch snap he had ever seen on the job (T. 158-160).
In the discussion that followed the fall roll-out was speculated upon. As a result, within a week respondent ordered a considerable number of locking safety latches for those employees who preferred that type; however, a tremendous number of the employees complained that the safety latch took too long to get unhooked (T. 161).
Carpenter was of the opinion that roll-out was less likely to occur with a double latch snap hook, but not impossible (T. 164).
Carpenter had never had a roll-out demonstrated to him with the type rope [*29] and lanyard that Bechtel used. The demonstration presented to Carpenter was with 1/2-inch nylon lanyard. He had never had the roll-out demonstrated with a 5/8-inch lanyard such as Bechtel wore. (T. 165)
In the performance of respondent's work, there are many instances where it is necessary that the lanyard be wrapped around the beam and snapped back upon itself, such as the men who have to go upon the steel to attach the attachments for later workers to hook into or where they have to weld a lug for the cable to support the safety line (T. 166; 167).
Carpenter chooses the type of safety equipment that is issued to respondent's employees and uses the type of safety practices on the jobsite, based upon what he believes to be the safest practices available.
Mr. James Pakenham appeared on behalf of respondent. He is employed by respondent as corporate safety manager. He has a B. S. Degree from Hofstra University and is a member of the American Society of Safety Engineers; the Certified Safety Professional National Safety Management Society; he represents respondent in a National Safety Council; and, is on the Executive Committee in the Construction Division of the National Construction [*30] Association, and has served with the Accident Prevention Committee.
He has been a safety professional in the construction industry since 1958 and is generally familiar with safety practices and requirements in the construction industry (T. 169; 170).
He is familiar with Government and industry regulations in the use of life lines, safety belts, lanyards and snap hooks, and with such safety equipment as used by respondent at Port Neal Station.
In his professional capacity he covers all of respondent's jobsites, and with reference to Bechtel's safety belt and lanyard, Exhibit R-1, he testified that the equipment met all Government and industry standards (T. 171).
He identified Exhibit R-14, Code of Federal Regulations pertaining to standards 29 CFR 1926.28 and 29 CFR 1926.104, referrable to personal protective equipment and safety belts, life lines and lanyards.
He quoted the pertinent section of 29 CFR 1926.28(a), requiring the wearing of appropriate personal protective equipment, and to 29 CFR 1926.104(a), referring to life lines, safety belts and lanyards, and to subsection (b) that life lines shall be secured above the point of operation, and to subsection (c), life lines to [*31] be a minimum of 7/8-inch wire core Manila rope, and to subsection (d) that safety belt lanyards shall be a minimum of 1/2-inch nylon or equivalent with a maximum length to provide for a fall of no greater than 6 feet, with the rope having a nominal breaking strength of 5,400 pounds.
He referred to subsection (e), that all safety belt lanyard hardware be of drop forged or pressed steel in accordance with Federal specifications, and to subsection (f), that all safety belt lanyard hardware, except rivets, to be capable of withstanding the tensile loading of 4,000 pounds without cracking, breaking or taking a permanent deformation.
In his professional opinion, Bechtel's equipment on the day of the occurrence, Exhibit R-1, met all of the requirements of the standards (T. 171; 174).
Pakenham then referred to Exhibit R-15, which is ANSI standard A10.13 pertaining to safety requirements for steel erection, and noted that it did not include any requirement for a double lock on a snap hook used in connection with the lanyard. Further, that the personal protective equipment practices in effect at the respondent's worksite conform to the requirements of ANSI A10.13.
Referring to ANSI standard [*32] requirement on safety belts, A10.4.1, he noted:
"Safety belts with attached safety lines shall be worn by employees whose work exposes them to falling in excess of 30 feet. The anchor end of the safety line shall be secured in such a way as to limit free fall to 8 feet." (T. 175; 176)
He referred to proposed ANSI standard A10.14, Exhibit R-16, which is the proposed American National Standard requirement for safety belts, harnesses, lanyards, life lines and drop lines, which is in the final stages of its approval in ANSI and has been signed by the chairman of the A10.14 committee, describing the document as the most current expression of industry requirements on personal protective equipment for construction industry. Pakenham noted that the proposed ANSI standard A10.14 did not include any requirement for a double lock snap hook in connection with the lanyard.
Pakenham referred to proposed A10.14.3.2.3, quoting therefrom:
"Snap hooks shall be proportioned to minimize the possibility of accidental disengagement. The snap keeper shall be restrained by the snap nose to absorb slide loads." (T. 176; 177)
He referred to proposed subpart 220.127.116.11, quoting:
"Snaps with a gate opening [*33] of one (1) inch or larger, such as ladder snaps and reinforcing bar snaps, shall not be used over dee rings."
He quoted from proposed subpart 18.104.22.168:
"Lanyards shall not be lengthened by connecting two snap-hooks together."
He referred to proposed subpart 3.1.4, quoting:
"Dee Rings and Snap Hooks - Which may be subjected to impact loads shall be drop-forged steel with corrosion resistant finish. They shall withstand a five thousand (5000) pound (2300 kg) tensile test without failure. Failure of a snap-hook will be distortion sufficient to release the keeper. Failure of the dee ring will be breaking or cracking."
Relating back to the foregoing proposed standard, it was Pakenham's professional opinion that Bechtel's equipment, and that used by the other Port Neal Station employees, met the requirements of ANSI A10.14 (T. 176-178).
Pakenham's inspections of the Port Neal Station are conducted three or four times a year, setting down the guidelines as to how the job is to be run safetywise, which are implemented by Carpenter, who in turn relies on the foremen and the men. Most safety equipment purchases are made through Carpenter, and are made to meet the requirements of 29 [*34] CFR 1926. (T. 179; 180)
Pakenham agreed that a proper piece of equipment could be used improperly and could endanger an employee, and noted that the requirements of OSHA in the use of lanyards does not require that they be anchored above the working position, merely that the lanyards whould be constructed so that a 6-foot fall not be exceeded (T. 181; 182), further noting that you cannot tie off to a life line if there is no structure above to tie off to (T. 187).
Pakenham noted that ANSI standard A10.14 recognized the possibility of a roll-out from a snap hook onto the "D"-ring (T. 187).
In referring to proposed ANSI standard A10.14, subpart 3.2.4, Pakenham noted that:
"Rope lanyards shall be spliced directly to the belt through an integral rope loop, spliced to a dee ring or spliced to a snap hook for attaching to the dee ring. Splices to hardware shall be over suitable thimbles."
In reference to Bechtel's safety belt, he noted that the lanyard did not have any suitable thimbles (T. 189).
However, in his professional opinion, the lanyard far exceeded the Government specifications, in that in the absence of the thimble, the nylon diameter of the rope far exceeded the tensile [*35] strength requirements which would eliminate the need for the thimble or at least compensate for it (T. 196).
Any slight deviation in the equipment, including the thimble, from ANSI standard A10.14 does not in any way relate to the operation of the snap hook or its ability to meet the specifications set forth in A10.14 or 29 CFR 1926.104 (T. 196; 197).
Pakenham approved of the method of tying off the lanyard by wrapping it around a piece of angle iron and snapping it back onto itself.
He noted that the problem created by the double-locking device was that the employee has another device to deal with while he is in a very hazardous location.
With the single lock, he can have one hand free to hold on while he releases his snap hook with his other hand. When he utilizes the double-locking snap he has to use two hands, subjecting him to a fall if he is in a hazardous position, including that with the double snap you are creating an additional problem where you already have one problem.
Pakenham noted that the double-locking device was in use in 2% of all the safety belts used in the country, and afforded a very small percentage of which to build up a statistical base as to whether [*36] it was better or worse (T. 189-191).
Pakenham had seen a double-locking snap prior to September 16, 1974, and knew that they were in existence and available on the market. He could only guess as to roll-out being eliminated by the safety catch because of lack of statistics, noting that the locking device takes a lot of beating and becomes less and less efficient to where it can hang up on the employee, making the situation worse than not having it at all. (T. 192)
Pakenham explained that the purpose of a double-locking snap hook was not to prevent a roll-out with a rope as such, but to prevent a roll-out where there is a hook-to-hook type attachment, which is considered a dangerous procedure until a double-locking device is placed upon it.
The carpenter's trade utilizes the hook-to-hook because of having to go around forms and such, whereas iron workers do not normally go hook-to-hook. The roll-out can occur as a result of the design of the "D"-ring if the hook and the "D"-ring are not correctly matched by specifications. (T. 193; 194)
Referring to Bechtel's equipment, Pakenham testified that the lanyard was designed to be doubled around and hooked to the latch itself in accordance [*37] with the manufacturer's specifications.
Pakenham spoke with the chairman of the committee on ANSI standard A10.14, Mr. Joe Nelms, while the standard was in development, and a discussion was had regarding wrapping a lanyard around a beam and hooking it back onto itself, with the specific request if Nelms had any objection to such a practice, which he did not. In Nelms' words, it was a standard practice in the industry to attach a lanyard in such fashion among other methods. (T. 284)
In connection with respondent's work in Canada, Pakenham testified as to the Canadian standard in their testing of safety belts, life lines and harnesses; they take the lanyard, wrap it around an upright and snap it back into the rope and then drop the dummy (T. 284; 285).
Mr. Bernard Enfeld appeared on behalf of respondent. Enfeld owns his own construction consulting firm and is a safety consultant in the construction industry. He has a B. S. Degree in Civil Engineering with a Structural Major, and has attended the OSHA courses given by the Federal Government. He is a member of the American Society of Safety Engineers, Veterans of Safety, Construction Safety Association, American Society of Civil [*38] Engineers, and a private member of the National Safety Council.
He is a National Board certified safety professional and has been employed continuously since 1956 as such, with 19 years experience in jobs related to construction safety and safety engineering. He has been employed by the General Services Administration for the demolition and construction of the Military Personnel Center in St. Louis and supervised the safety program of the construction and demolition operation.
He has had a contract with the Corps of Engineers in Washington to make a comparative study of all areas of subparts in OSHA.
He has prepared training manuals for instructors for the Construction Engineering Research Laboratory, which is a part of the Corps of Engineers.
He has worked for the National Safety Council in writing the first draft of the Contractor's Self-Evaluation Checklist for OSHA, and is familiar with current safety practices and requirements in the construction industry.
He is familiar with the Federal and voluntary standards, such as the ANSI requirements pertaining to life lines, safety belts, lanyards and snap hooks (T. 197-201).
Enfeld is on six ANSI co-committees and was on the [*39] Editorial Committee for ANSI standards A10.13 and A10.14.
It was Enfeld's opinion that the two ANSI standards represented the latest safety requirements covering the use of personal protective equipment that could generally be accepted within the construction industry, in addition to the provisions set forth in 29 CFR 1926.104 and 29 CFR 1926.28.
Enfeld pointed out that nowhere in the ANSI standards or in the OSHA standards is there a requirement for the use of double-locking snap hooks on a lanyard for persons engaged in above-ground work such as steel-connecting; nor was he familiar with any other industry-wide standard which required or recommended the use of such devices (T. 202-205).
Enfeld described the history of the term "roll-out", which commenced around 1956 or 1957 when about 6,000 boilermakers wanted different sizes of hooks. Boilermakers wanted a big hook that would go over everything, which is currently called a ladder rung hook and which has about a 3-inch opening. Enfeld then began hearing complaints from boilermakers and ironworkers that the hook was unsafe, and found several reports where it had come undone by itself from the "D"-ring.
He noted that the ladder [*40] rung hook is very heavy and its weight causes it to fall into the lower portion of the "D"-ring at which time a rope can cause a release, which is referred to as "roll-out".
The ladder rung hooks were gotten rid of, and Enfeld went back to the type of hook represented by Exhibit R-1, which was the smallest hook they could buy.
He had never heard of a roll-out occurring used in connection with the type of hook and line represented by Exhibit R-1.
Enfield named Forgecraft as one of the largest producers of personal protective hardware, and referring to its catalog, R-17, noted that the double-locking snap hook was not offered. There were three different models of the single-locking snap hook of the type used by Bechtel and existing on Exhibit R-1.
Enfeld referred to other independent companies in the safety field, such as the Miller Equipment Co., which majors in the area of safety equipment and referred to their catalog, Exhibit R-18, noting that they did not offer the double-locking hook.
He referred to the Rose catalog, Exhibit G-7, and ventured the opinion that the safety equipment industry is a highly competitive industry and a lot of the cautionary statements made in connection [*41] with the equipment are forms of sales enducement or puffing to promote their products (T. 206-214).
Enfeld was familiar with the Federal Agency specifications for safety belts and lanyards, referring to Exhibit R-19 as Federal Specification KK-B-151G and Exhibit R-20 as the Military Standard 1212.
Exhibit R-19 refers to linemen's belt and strap, and Exhibit R-20 refers to industrial safety belts and straps.
While the specifications cover snap hooks, neither requires nor contemplates the use of a double-locking snap hook (T. 215; 216).
Enfeld examined Bechtel's equipment, Exhibit R-1, and found it in conformity with ANSI standards A10.13 and A10.14. Enfeld measured the throat opening to be 3/4-inch. (T. 218)
He measured the rope to be 5/8-inch and 3/4-inch, with the observation that it was probably 5/8-inch when new (T. 219).
Enfeld was of the opinion that the snap hook conformed to his understanding of OSHA standards 29 CFR 1926.28 and 29 CFR 1926.104, the Federal Specification and the Military Standard (T. 220).
Enfeld was of the opinion that the snap hook represented by Exhibit R-1 was the one most commonly used and accepted as safe within the construction industry, and [*42] in his almost 20 years experience there were no accidents caused by a lanyard doubling back and releasing a single-locking snap of the type used by Bechtel. Further, that the hazard of a lanyard doubling back on the snap lock of the type used by Bechtel would not be one that would be recognized professionals in the industry. (T. 222)
Enfeld prefers the single snap hook, noting that he uses gloves in his work as do boilermakers, and that he cannot operate two hands with the gloves on and maneuver where he has no other protection, which would be required with a double-locking snap hook (T. 222).
While complainant was able to demonstrate a 1/2-inch rope disengaging itself from a single snap hook by manual manipulation, Enfeld had never been able to see the operation successfully demonstrated with a 5/8-inch rope; nor was he able to demonstrate with a 5/8-inch rope, that the rope would come around on itself through the hook whether done manually or attached to an object (T. 233-235).
Mr. John Greenup was called by respondent. He has been a boilermaker for 40 years and has been employed by respondent for the last three years. He is union representative and job steward at the jobsite [*43] and made an examination of Bechtel's safety harness, Exhibit R-1, following the accident. He found no defects in the gear whatsoever. He identified the gear typical of that used by other employees at Port Neal Station.
He expressed a preference for the single-locking snap hook as opposed to the double-locking snap hook because of the double-locking snap hook requiring two hands to disengage, noting that when he was in a dangerous position he wanted to have one hand free while he disengaged his snap hook. He has seen a double-locking snap hook released with one hand, but noted that it is usually a snap hook that has been in use for awhile, but that with wearing gloves and in cold weather it is a different story.
Greenup briefly reviewed the boilermaker's history of first working with no safety equipment, then working with tie off ropes and then wearing the safety belts with the snap hooks.
Greenup would use the single-action snap hook on a line less than 3/4 inch, although he did not remember ever using a line less than 3/4 inch and was more fearful of the safety belt breaking his back than he was of anything else (T. 239-245).
Mr. James H. Maxwell, boiler supervisor for Ebasco, [*44] with 30 years in the construction industry and 15 years with Ebasco, testified on behalf of respondent.
He was Bechtel's supervisor, and went up to the beam where Bechtel had fallen from and made an investigation. He could not find anything that was broken loose.
He was familiar with Bechtel's safety harness, Exhibit R-1, and identified it as equipment typical of that in use by other employees on the job and that on other jobs where he had worked in his 30 years experience in the industry.
He did not consider Bechtel's equipment defective in any way; nor had he ever heard of any other accident involving a snap hook releasing accidently.
He has used equipment similar to Bechtel's and feels safe in doing so.
The snap hook used in Bechtel's lanyard is the one most commonly used in jobs in the industry in which he has worked.
Maxwell also had supervisory authority over Jacobs, complainant's witness, and testified that Jacobs was discharged due to absenteeism, leaving the job and for undependable and unsatisfactory work.
Maxwell also noted that witness Cochran had disagreements with his foreman on how to do a job and was transferred from one job to another. He could not say that [*45] Cochran harbored any ill feeling toward the company or his foreman because of the transfer. (T. 246-251)
Mr. Ralph Benton Brown appeared on behalf of respondent, as he has 25 years experience in the construction industry and works as general boiler supervisor for respondent, a position he has held for eight years.
He is familiar with the use of life lines, safety belts, lanyards and snap hooks in the construction industry and has used such equipment himself.
Brown was familiar with the safety equipment, including the belt, lanyard and snap hook used by Bechtel, noting that Bechtel also wore suspenders to equalize the weight of his equipment on his hips.
The equipment, Exhibit R-1, was described as being typical as that used by other employees at Port Neal Station, and the same kind of belt and equipment that he would use personally.
Brown had never heard of an incident comparable to Bechtel's, although he did know of an instance of a man being knocked off a catwalk where the belt saved him.
He has never heard of any other fatality or injury related to the equipment used by Bechtel.
It was Brown's opinion that it was important for boilermakers and steel connectors to be able [*46] to quickly release their lanyard because of instances where they have to move fast, with such experiences having happened to Brown himself.
Brown corroborated Jacobs' poor work attendance and was aware of the disciplinary action taken. He was also aware of Cochran having a disagreement with his foreman (T. 251-257).
Brown noted that the advent of general usage of safety belts coincided with industry standards and OSHA standards and the enforcement of OSHA, which he estimated overall spanned a time of approximately 10 years.
He noted that respondent has available a double safety on the snap that is optional with the men, but did not know of any double safety catch hooks being on the jobsite September 16, 1974, and had never seen them used (T. 257-259).
Compliance officer Bruno was called in rebuttal by complainant. He has been with the Department of Labor since 1972, with previous experience working as a safety engineer for various insurance companies since approximately 1954.
Although he has never used any safety equipment, he is familiar with the use of life lines, lanyards, safety belts and connect apparatus which have come into use since the advent of OSHA.
It was Bruno's [*47] opinion that the lanyard represented by Exhibit R-1 was designed to snap over something to hold, with basically a vertical pull on it. The hook was not designed for any other type of pull except a vertical pull.
He referred to one contractor in Minneaplis utilizing lanyards without hooks using 3/4-inch line, which was tied off.
In his experience, Bruno has seen the looping of a lanyard over a beam in attaching it back onto itself, and by talking to various manufacturers he learned that the feeling was that the hook was not to be hooked back onto the lanyard (T. 263-268). On cross-examination, it was developed that Bruno's observation was based upon having talked to one manufacturer (T. 273).
Bruno was of the opinion that if the lanyard was tied around a beam or around a piller there would be a chance of a roll-out.
However, if tied overhead, the hook would slip along the top (T. 268). He also described the utilization of a timber hitch which a man would tie and fasten and then hook his snap up.
Bruno is familiar with the double-action safety catch type hooks (T. 269), noting that they are designed to push up and be able to use with one hand (T. 270).
He described the purpose [*48] of the double lock snap hook as being to prevent a roll-out. He felt that if they were tied overhead the probability of roll-out was not as great, and with the safety catch attachment that the probability is very remote but it could occur. (T. 269-271)
Bruno has never done any work on the design of snap hooks, but he has done investigations of the failures or where snap hooks become unfastened. Bruno would prefer a bolt line tied around an angle iron as opposed to tying off with a snap hook.
Other than the one manufacturer he spoke to, no other manufacturer has ever recommended to Bruno the double-locking snap hook (T. 272-275).
Bruno acknowledged that a boilermaker in his work and in utilizing his safety equipment, that the equipment would be dirty and it might get banged around.
Bruno testified that the assessment of a roll-out occurring a Bechtel was an assumption, based on the fact that witnesses said that the man was definitely tied off. He acknowledged that Bechtel could have tipped his hook over the angle or there might be a dozen other possibilities of his not having tied off or not havin buckled it properly.
Bruno made his assumptions based upon a testimony that [*49] he heard at the hearing and not on an independent investigation (275-277).
Bruno expressed familiarity with various books discussing safety matters and the use of life lines and lanyards and had never seen an instruction for the use of the lanyard that included its being wrapped around an object and snapping back on the rope itself. He had seen such things as 3/8-inch chokers which were utilized.
With regard to 29 CFR 1926.104, Bruno could find nothing wrong with Exhibit R-1, with the exception of the thimbles, but basically felt that the belt looked sturdy (T. 280).
Pakenham was recalled and rebutted Bruno's testimony pertaining to the practice of tying off with a timber hitch, noting that there had been a violent reaction among the boilermakers at such a suggestion.
In his opinion, it was a dangerous practice, since once you take the tension off the timber hitch it tends to loosen up.
Other, with regard to the attachment of a lanyard hook back onto itself, Pakenham noted that the chairman of the A10.14 committee, Joe Nelms of Miller Safety Equipment, stated that it was a standard practice in the industry to so attach (T. 284).
Complainant has charged respondent [*50] to be in violation of section 5(a)(1) of the Act, in that:
"Employees were using lifelines that had a spring type latch on the hook. Under certain conditions, this spring latch would fail to contain the lifeline, causing it to become disengaged from its top attachment while in use . . ."
In order to sustain a 5(a)(1) violation, the complainant must prove 1) that the employer failed to render its workplace free of the hazard which was 2) recognized and 3) causing or likely to cause death or serious physical harm.
The hazardous condition is not, by itself, sufficient to sustain a violation. Feasible measures to reduce the likelihood that the hazard would occur must be demonstrably established.
Section 5(a)(1) requires the elimination of preventable hazards. (National Realty & Construction Co., Inc. v. OSAHRC, 489 F.2d 1257 (D.C. Cir., 1973))
Actual knowledge of a hazard on the part of an employer satisfies the general duty clause requirements of recognition. (Secretary v. OSAHRC and Vy Lactos Laboratories, Inc., 494 F.2d 460 (8th Cir., 1974))
Complainant presented his case through witness Jacobs, an employee discharged for disciplinary reasons, witness Cochran, an [*51] employee who had jobsite disputes with management, witness Mills, former boilermaker pusher for respondent, and the testimony of compliance officer Pakenham and compliance officer Bruno.
While the citation was inartfully drawn, in that it referred to a spring-type latch on the hook and its attachment to a life line rather than the thrust of the allegation tried, namely, respondent was in violation of section 5(a)(1) for permitting its employees to wrap a 6-foot lanyard around an object and snap the hook back onto the lanyard to position themselves, it was apparent throughout the testimony the various witnesses used the expression "life line" in describing what is technically defined as a "lanyard" and vice versa. Therefore, there being the custom of interchange of terms by persons trained in the art of construction, it is felt that this deficiency of description is not fatal.
Complainant's case was rife with both obfuscating and incredible testimony.
Witness Jacobs, who unequivocally testified that he observed deceased loop his lanyard around an angle iron and snap the hook back up onto the lanyard and heard it click while standing above Bechtel, then went on to describe Bechtel [*52] reaching out and falling straight down with "no jerking or nothing". Jacobs wore the same safety equipment and lanyard, namely, a 6-foot lanyard with 5/8 to 3/4-inch rope with a hook opening of 3/4 inch. After obtaining an additional "quick release device", Jacobs returned to the job wearing the same equipment.
Witness Mills, who knew deceased and was familiar with his equipment, identified deceased's equipment as having the 5/8-inch rope lanyard, and testified that there were other 1/2-inch nylon lanyards on the job, with some having locks on the snaps.
While Mills went into great deal of discussion between the characteristics of the single-action snap hook and a safety lock snap hook, with his preference of using a 1/2-inch nylon lanyard with a safety snap hook, he went on to describe the capacity of a lanyard looped around an object and snapped back on the rope to become disengaged, venturing the opinion that most of the riggers tied off in the same manner as deceased, but avoiding a description of the type lanyard used by the men.
Mills then went on to characterize a demonstration made to the respondent's safety officer following Bechtel's fall, wherein he testified that [*53] the men used a 3/4-inch Manila lanyard, creating a half-hitch in pulling it through the snap hook. Upon being challenged as to the capability of this occurrence, Mills then changed his testimony, testifying that the men had used a 1/2-inch line in their demon stration to Carpenter of the so-called "roll-out" phenomenon.
Mills was then asked, utilizing Bechtel's equipment with the 5/8 to 3/4-inch lanyard with the single-snapping hook, to demonstrate the phenomenon on an angle iron mock-up, which Mills was unable to do with a great deal of physical exertion and manual manipulation of the rope, lanyard and the snap hook.
Respondent's witness Enfeld, a civil engineer and highly qualified in the field of safety, could not perform the described so called "roll-out" with an equal amount of strenuous effort and manual manipulation.
Witness Cochran came up with a different version of Bechtel's fall. He observed Bechtel lean outwards, stop, and then fall straight down. Cochran frankly acknowledged that the review of Bechtel's fall and the method in which it occurred was pure speculation.
Again, some obfuscating testimony was given, in that Cochran quite confidently explained that he could [*54] snap his lanyard onto a girder and when he would want to move he would merely throw a half-hitch into his line, yank on it, disengage it and move to a new location. However, Cochran shaded his testimony by equivocation in that the rope he used to perform this maneuver might be a 1/2-inch or a 5/8-inch rope, although he felt that he could still perform the maneuver with a 3/4-inch rope, but then went on and contradicted himself by stating that he was not sure he could perform such a maneuver with Bechtel's equipment, namely, a 5/8-inch lanyard.
While compliance officer Pakenham expressed a little confusion over the definition of "life line" as opposed to "lanyard", and his familiarity with the single and double-locking snap hooks and his description of the "roll-out" phenomenon with the single snap hook, he had no knowledge of any other accident similar to the one in issue involving personal protective equipment where there was a roll-out. In fact, Pakenham conceded that if he had seen an employee tied off using Bechtel's equipment, as was described in the testimony, he would not have issued a citation.
Compliance officer Bruno conceded that there were a dozen possibilities other [*55] than "roll-out" that could have accounted for Bechtel's fall.
Therefore, any finding of a "roll-out" having occurred would be based on pure conjecture and speculation.
FINDINGS OF FACT
Based upon the preponderance of the credible evidence of record, the following findings of fact are made.
1. Respondent is a corporation with its principal office at 22 Rector Street, New York, New York.
2. Respondent had a construction site at Salix, Iowa.
3. Respondent was engaged in construction of a coal-fired power plant.
4. There were approximately 700 employees at the worksite.
5. Respondent is under the jurisdiction of the Act.
6. Respondent was issued a citation for an alleged violation of section 5(a)(1) on October 9, 1974.
7. On October 14, 1974, respondent filed a notice of intention to contest the citation and notification of proposed penalty.
8. The alleged citation for willful violation was reduced by motion to an alleged serious violation.
9. On September 16, 1974, Bechtel fell some 60 feet to his death, after having been observed to have been tied off.
10. The cause of Bechtel's fall was not established.
11. At the time of Bechtel's fall, he was using personal [*56] protective equipment that met and exceeded all existing Government and industry standards.
12. The single-locking snap hook used by respondent's employees is the device of its kind most commonly used in the construction industry.
13. Respondent and its representatives had no knowledge prior to Bechtel's accident that the use of a single-locking snap hook to "tie off" might be hazardous.
14. No witness at the hearing was aware of another accident comparable to that of Bechtel's.
15. The use of a single-locking snap hook does not create a hazardous condition recognized by persons experienced in construction industry safety.
16. Most persons experienced in the use of personal protective equipment in the construction industry prefer the single-locking snap hook as opposed to the double-locking snap hook, because the single-locking snap hook provides the mobility needed to avoid common, more serious hazards, such as the possibility of being struck by a swinging piece of steel, and provides employees with necessary mobility to disengage rapidly.
17. The use of a double-locking snap hook is not specifically required by personal protective eauipment standards 29 CFR 1926.28 and [*57] 29 CFR 1926.104; nor under any proposed ANSI standard; nor under any military standard.
18. The wrapping of an appropriate-sized lanyard and hook around an object and snapping the lanyard back onto itself is not a recognized hazard in the industry.
19. The use of inappropriate equipment of inadequate matching sizes and the attachment of lanyards in an inappropriate manner, one onto the other, or of unmatching sizes is a recognized industry hazard.
20. There was no evidence that respondent furnished, allowed or permitted the use of inappropriate-sized lanyards and snap hooks or that it allowed or permitted the inappropriate attachment of lanyards to equipment.
CONCLUSION OF LAW
The complainant has failed to sustain his burden of proof that respondent's conduct constituted a "recognized hazard" within the meaning of section 5(a)(1) of the Act.
The citation for willful violation of section 5(a)(1), as amended to serious violation of section 5(a)(1) of the Act, and the proposed penalty therefor, are vacated.
DATE: January 5, 1976
Paul E. Dixon, Judge, OSAHRC