OSHRC Docket No. 117

Occupational Safety and Health Review Commission

April 18, 1973

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners



VAN NAMEE, COMMISSIONER: This matter is before the Commission in accordance with Commissioner Burch's order to direct review of a decision and order rendered by Judge Harold A. Kennedy. Following a hearing, Judge Kennedy vacated the Complainant's citation wherein it was alleged that Respondent was in non-serious violation of the occupational safety standard prescribed by 29 C.F.R. 1518.105(a) (subsequently redesignated as 29 C.F.R. 1926.105(a)) and of Section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651, et seq.; hereinafter "the Act").

Judge Kennedy's action was predicated on two grounds. He concluded that Complainant had failed to prove a violation of the standard. He also concluded that the citation should be vacated because Complainant had failed to afford a representative of Respondent's employees the opportunity to accompany the Complainant's representative on his inspection.

Subsequent to both the Judge's decision and the direction for review, we determined that the right of accompaniment afforded by Section 8(e) is not mandatory. Secretary of Labor v. Chicago Bridge and Iron Company, In that case the majority found that the term "shall" as used in Section 8(e) of the Act is to be construed as directory. Thereafter we pointed out that our interpretation ". . . in no way diminishes the force of the direction. Quite obviously, Congress expects the Secretary to make every effort to afford accompaniment opportunities to authorized representatives of employees and employers." Secretary of Labor v. Wright-Schuchart-Harbor Contractors, In Wright-Schuchart we reversed the Judge because, among other things, Respondent had not been prejudiced by the Secretary's failure. Similarly, it has not been shown in this case that Respondent was prejudiced by the Secretary's failure to afford Respondent's employees the right of accompaniment. Accordingly, the Judge's decision was erroneous insofar as it was predicated on Section 8(e) of the Act.

The question remaining for disposition is the issue of whether Respondent is in non-serious violation of the standard at 29 C.F.R. 1926.105(a), as alleged. n1 We have reviewed the record, the briefs submitted by the parties, and the decision of the Judge. For the reasons given hereinafter, we conclude that Judge Kennedy's other reason for vacation was predicated upon a proper interpretation of the standard and correct evaluation of the evidence of record.

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n1 Review was also directed on the question of whether an employer has standing to raise as a defense lack of employee participation in the inspection, and the question of whether the non-serious violation of the cited standard should be elevated to a serious violation. The first question is rendered moot by our finding herein regarding the application of Section 8(e) of the Act; the second is resolved by the Commission Decision in Secretary of Labor v. Wetmore and Parman,

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The facts of the case are as follows:

In September, 1971, Respondent was constructing an approach to the Fremont Bridge in Portland, Oregon. At that time the Complainant's representative inspected the site and determined that Respondent had not rigged safety nets under a portion of the bridge structure upon which employees were working. The fall distance from the place of employment exceeded 25 feet. He did observe two employees wearing safety belts, however, the belts were not tied off to properly rigged life lines.

It is also a matter of record that Respondent routinely employed temporary work platforms on the job and required employees to wear tied off safety belts.

The standard prescribed by 29 C.F.R. 1926.105(a) is as follows:

Safety nets shall be provided when workplaces are more than 25 feet above ground or water surfaces, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical. (Emphasis added.)

The Complainant would have us construe the standard as requiring the provision and use of safety nets or any of the other devices named in the standard when construction workplaces are more than 25 feet above ground. That is, the Complainant would have us rewrite his standard such that it might read as follows:

Safety nets, ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts shall be provided and used when workplaces are more than 25 feet above the ground or water surfaces, or other surfaces.

We shall not follow his suggestion. n2

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n2 It is apparent upon a review of 29 C.F.R. Part 1926 and from the Complainant's arguments in this case that there is a need for a general standard of the type suggested. Accordingly, the Complainant should use his authority under Section 6(b) of the Act to fill the void.

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The language of the standard is clear and unambiguous. Accordingly, it requires what it says it requires. Safety nets are to be provided when construction workplaces are more than 25 feet above a surface and ". . . the use of ladders . . . or safety belts" is impractical.

Clearly, a violation of the standard can only be concluded on a record wherein the evidence shows (1) that it was impractical to use devices such as safety belts, (2) the construction workplace was 25 or more feet above ground or an other surface, and (3) safety nets were not provided.

The facts in this case fail to establish the first named element of proof. Indeed, it is clear on this record that it was practical to use safety belts, safety lines and other devices.

Accordingly, it is ORDERED that the decision of the Judge insofar as it ordered vacation for the reason of failure of proof be and the same is hereby affirmed.



MORAN, CHAIRMAN, concurring: I concur in the disposition of this case: that respondent was not in violation of the Act as charged by complainant.

The reasons for this disposition given by Judge Kennedy were correct. I would affirm that opinion.

It should be noted that this decision says directly what two earlier decisions n3 implied: That the employees walk-around rights, like those of the employer, are not mandatory. Therefore, a job safety inspection is valid under the Act, even though the inspector did not give a representative of the firm's employees the opportunity to accompany the inspector. n4

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n3 Secretary v. Chicago Bridge & Iron Company, supra; Secretary v. Wright-Schuchart-Harbor Contractors, supra.

n4 My reasons for disagreement with this proposition are set forth in Secretary v. Chicago Bridge & Iron Company, supra.

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This decision carries the untenable position taken in these two earlier cases to a rather ridiculous extreme: That a citation issued as the result of an inspection conducted under circumstances where employees were denied their right to have a representative accompany the inspector will not be invalidated unless it can be shown that the employer was prejudiced. n5

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n5 This conclusion is based on the following quotation taken from the decision: "In Wright-Schuchart we reversed the Judge because, among other things, [the employer] had not been prejudiced by the Secretary's failure [to let him accompany the inspector]. Similarly, it has not been shown in this case that [the employer] was prejudiced by the Secretary's failure to afford [the employer's] employees the right of accompaniment."

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This, to me, stands traditional concepts of Labor-Management relationships on their head. A statute gave employees the right to have a representative accompany inspectors when they are checking the job safety and health conditions under which such employees work. Now the Commission is saying that an inspection is valid even if this employee right is ignored so long as management is not prejudiced thereby.

In this case, according to Judge Kennedy's decision, employees on this jobsite were represented by six labor organizations. n6 His decision goes on to say:

Careful review of the record convinces the undersigned that the opportunity to accompany the Secretary's inspector was not given to any employee representative. Of course, under Section 8(e) where there is no authorized employee representative, 'a reasonable number of employees' must ('shall') be consulted. It is also clear from the record that the compliance officer did not consult with a reasonable number of Respondent's employees either. At most, he only met some employees, and they apparently were of management . . .

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n6 The title page of the Judge's decision listed the following employee representatives: Local 701, Operating Engineers; Local 162, Teamsters; Local 555, Cement Masons; District Council of Carpenters of Portland; Local 29, Ironworkers; and Oregon State District Council of Laborers.

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If the failure to extend walk-around rights to six unions or, in the alternative to consult with a reasonable number of employees, is not going to invalidate a citation based upon such an inspection, there is no conceivable way for employees ever to raise the issue of denial of their walk-around rights. I cannot agree with a position such as this.



BURCH, COMMISSIONER, dissenting: I dissent from the result reached in this case. I concur with Commissioner Van Namee's holding, based upon the decisions in Secretary of Labor v. Chicago Bridge and Iron Company, Secretary of Labor v. Wright-Schuchart Harbor Contractors, In this case, unlike Chicago Bridge and Wright-Schuchart, supra, employee rather than employer representatives were not afforded the opportunity to accompany the compliance officer or to otherwise assist in the inspection of the worksite. The legislative history of the Act fully supports the explicit reason for allowing accompaniment as stated in Section 8(e) -- it is "for the purpose of aiding such inspection" and is predicated upon the finding that under previously existing safety legislation employees were often unaware of the inspection and were thereby deprived of an opportunity to inform the inspector of alleged hazards. See, Chicago Bridge, supra.

We have seen no case where the Secretary has "denied" either an authorized employer or employee representative the opportunity to accompany the inspector. It is reasonable to assume that the Secretary will continue to comply with the spirit of the Section 8(e) language, which at times includes the observation of non-continuing violations while not accompanied by representatives of the cited employer and its employees. Not being constituted a court and not having contempt powers, the Commission has no appropriate remedy available to it in order to require that the Secretary comply with the Congressional exhortation of Section 8(e). This is so even were the Secretary blatantly to ignore the provision that representatives "be given an opportunity to accompany the Secretary."

The stated purpose of the Act is to provide ". . . every working man and woman in the Nation safe and healthful working conditions. . . ." To vacate citations against an employer for failure to have employee representatives accompany the compliance officer flies in the face of this purpose. Further, Chairman Moran, in a convoluted manner, argues the proposition that the only way for employees to ". . . raise the issue of denial of their walk-around rights . . ." is to vacate the citation against the employer. To re-state the proposition in clear terms is to demonstrate its absurdity.

Because an inspection is not as complete as it could be is no reason to vacate citations for violations that have been discovered by the compliance officer and that must be proved by the Secretary. To vacate citations on this ground could result in allowing violations to continue, thus exposing these same employees to existing hazards discovered without their assistance.

Although any person adversely affected by an order of the Commission may seek review, n7 it is clear that what is contemplated by that section of the Act and the similar section of the Administrative Procedure Act, n8 is that the aggrieved person be adversely affected in fact. n9 The failure to afford respondent's employees the opportunity to accompany the compliance officer has not, in this case, resulted in any adverse effect on respondent.

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n7 Occupational Safety and Health Act, Section 11(a); 29 U.S.C.A. 660(a).

n8 Administrative Procedure Act, Section 10(a); 5 U.S.C. Section 702.

n9 3 Davis, Administrative Law Treatise, Section 22.02 (1958).

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If the employees are aggrieved by the order as a result of the failure to accompany the compliance officer to aid in the inspection, they, too, have a right of appeal. Any violations not discovered at the inspection may also be brought to the attention of the Secretary by direct request for an additional inspection.

I strongly disagree with that construction of the standard upon which the majority relies to vacate the citation. "[I]n construing safety or remedial legislation narrow or limited construction is to be eschewed. Rather, in this field liberal construction in light of the prime purpose of the legislation is to be employed." St. Marys Sewer Pipe Company v. Director of U.S. Bureau of Mines, 262 F.2d 378, 381 (3rd Cir. 1959) aud authority cited therein.

The intent of the instant standard n10 is that less complex and, frequently, more easily available safety equipment such as ladders, scaffolds, catch platforms, temporary floors, safety lines and safety belts be utilized where practical and that nets be provided when the other devices are not used because of their impracticality. The majority's interpretation renders the standard an absurdity and a nullity in contravention of its intent and of the appropriate method of construction. See, St. Marys Sewer Pipe Company, supra.

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n10 A standard promulgated pursuant to the Act has the force and effect of law. See, e.g. Lilly v. Grand Trunk Western R. Co., 317 U.S. 481, 488 (1943), 1 Davis, Administrative Law Treatise, Section 203 (1958).

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The record establishes that the compliance officer observed eight to ten of respondent's employees engaged in laying forms for pouring concrete at a height in excess of 25 feet, without the use of a safety net and without the use of other safety equipment. The undisputed evidence is that, at the time of the occurrence of the instant violation, as observed by the inspector, safety lines were not being utilized by any of respondent's employees. Testimony reveals that two of respondent's personnel were wearing safety belts but that their safety lines were not secured to a structural member capable of supporting the statutorily required stress. Whether safety belts, ladders, scaffolds, catch platforms, temporary floors and safety lines were impractical for use in respondent's work is irrelevant to this decision. The evidence shows conclusively that none of these items were utilized at the time of the citation. In the absence of these devices and the absence of a safety net, the violation is established. There is no evidence of record demonstrating that the observations of the inspector were inaccurate or incomplete. Judge Kennedy's statement that ". . . it is not clear from the record that temporary platforms were not in place . . ." is hardly sufficient to rebut the Secretary's prima facie case, in which the substantial evidence requirement has been sustained. By stating that it was not shown that ". . . tieing off was called for . . ." Judge Kennedy is apparently taking it upon himself to rewrite the standard in question or to grant a variance. An employer is entitled to apply for a variance, pursuant to Section 6(d) of the Act. Respondent did not avail itself of this opportunity. The instant standard, based upon alternative safety procedures already affords an employer a choice of safety precautions, none of which were utilized by respondent.

Although the use of a net may well have been difficult at certain stages of construction n11 and other procedures might have unduly hindered work progress at certain times and thus have been impractical, an analysis of the facts demonstrates that one or another of the allowable precautionary methods could have been utilized. The fact that the net could not be erected under ideal conditions cannot be used as an excuse for failure to provide the required safe working conditions. To argue that no net is more consistent with the purpose of the Act than the use of a tightly strung net or one that does not extend beyond the border of the bridge, especially with the presence of guard rails, is to place form ahead of substance in contravention of the expressed will of Congress.

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n11 A net was used on another part of the bridge.

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I would vacate the Judge's decision and affirm the Secretary's citation and proposed penalty.

[The Judge's decision referred to herein follows]

KENNEDY, JUDGE, OSAHRC: On October 15, 1971 Respondent Drake-Willamette Joint Venturers n1 of Portland, Oregon was cited for non-serious violation of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ) for allegedly violating four safety and health construction standards at a workplace in Portland, Oregon. Respondent filed a notice of contest in the form of a letter dated October 25, 1971 as to the four Items of the citation but only one item, Item 4, was tried before the undersigned. n2 The case was filed with the Review Commission on October 28, 1971. The contested allegation of the citation reads:

Failure to provide safety nets for employees when workplaces are more than 25 feet above ground or working surface and the use of safety lines or safety belts are empractical (sic).

The citation fixed October 27, 1971 as the time when abatement must be completed.

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n1 Respondent actually does business under the name of Drake-Willamette Venturers.

n2 In a letter dated January 20, 1972, which was accepted as Respondent's answer to the complaint, Respondent indicated that it was contesting only Item No. 4 of the citation. This fact was confirmed at the hearing (Tr. 14).

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The safety standard allegedly violated appears at 29 CFR 1518.105(a) and reads:

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 are impractical.

Section 5(a) of the Occupational Safety and Health Act of 1970 provides in part that each employer:

(2) shall comply with occupational safety and health standards promulgated under this Act.

The Secretary proposed a penalty of $15.00 for the alleged violation. The amended complaint, n3 filed with the Secretary on November 10, 1971, alleges that the time of the violation was September 29, 1971 and that the place of the violation was "at a worksite in Portland, Oregon, in the construction of a section of the Fremont Bridge, which crosses the Willamette River in Portland, Oregon and is a part of the Interstate Highway System among and between the States" (Paras. III & IV).

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n3 The original complaint was filed on November 8, 1971.

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The amended complaint describes the violation as involving the (Para. IV):

Failure to provide safety nets for employees where workplaces were more than 25 feet above ground or other surface and the use of safety lines, or other prescribed protective measures were impractical, contrary to 29 CFR 1915.105(a).

The amended complaint identifies Respondent as a joint venture consisting of Donald M. Drake Company and Willamette-Western Corporation allegedly engaged in construction work and a business affecting commerce within the meaning of Section 3 of the Act (Paras. II & III). n4 According to the complaint, 131 construction worker-employees of Respondent were affected by the alleged violation(s). Affected employees were believed to be represented by (Para. IX):

1. Local 701 of the Operating Engineers, Portland; Oregon;

2. Local 162 of Teamsters, Portland, Oregon;

3. Local 535 of the Cement Masons of Portland, Oregon;

4. District Council of Carpenters of Portland, Oregon;

5. Local 29 of the Iron Workers of Portland, Oregon; and

6. Oregon State District Council of Laborers of Portland, Oregon (Para. IX).

The complaint also acknowledges the possibility of there being affected employees not being represented by any of these six labor organizations.

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n4 Donald M. Drake Company is also a corporation (Tr. 20).

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Respondent's answer asserts that the compliance officer at the time of the inspection explained "that this was not an official visit and that no assessment would be made" and pleads in part as follows as the contested charge:

. . . We contest this most vigorously. All men on the job that are working in suspended areas above ground are supplied with safety belts and life lines. The impracticability of installing safety nets in this case is obvious and was certainly pointed out to the inspector. The installation of these nets would droop down to the deck below and cause hindrance and obstruction to the crews below. Application of nets are not practical when and where life belts and life lines are utilized. The inspector obviously has a very limited knowledge of this type of operation by suggesting the use of nets here. While we wish to comply and indicate good faith and intent to the Compliance Officers, we feel that in this instance we were unfairly and certainly impractically cited.

The case came up for hearing, after due notice to all parties, in Portland, Oregon on March 8, 1972. No employee and no employee representative sought to participate in the proceeding, although given opportunity to do so. The parties were given opportunity to present evidence, cross-examine witnesses and present briefs and proposed findings.

The Secretary sought to establish its case through the testimony of Compliance Officer James J. Dworak, III. n5 Mr. Dworak said he made an inspection of a section of the east approach to the Fremont Bridge portion of an Interstate Highway in Portland being constructed by Respondent on September 29, 1971. He made an inspection tour of the worksite with Respondent's Project Engineer Charles F. Gaskill. He also met and spoke with Mr. Gaskill's supervisor, Project Manager or Superintendent John R. Gray.

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n5 The parties stipulated that Respondent is an employer and in a business that affects commerce (Tr. 15, 20). The Secretary also called Compliance Officer Dworak's Supervisor, Area Director for the OSHA Office in Portland. He testified that he approved the issuance of a citation against Respondent and a Notification of a Proposed Penalty.

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Mr. Dworak testified that he observed the alleged violation on the right side of the upper deck ramp approach to the bridge going sough at a point approximately 150 feet above the ground and approximately 200 yards east of the Willamette River (Tr. 28-30). He marked the place of the alleged violation on a photograph of the east side of the Fremont Bridge taken at about the time of his inspection (Tr. 30, HE Ex. 16).

Mr. Dworak testified that at the time of inspection the ramp and roadway where the alleged violation occurred was like a grid pattern made up of "I" beams and "V" girders with "gaps" or openings in between. The "I" beams were said to be in place laterally across the bridge (although some "I" beams ran longitudinally, Tr. 154) whereas the "V" girders ran lengthwise. He estimated the width of the bridge at that point at 70 feet and that the men were about one-third of the distance from the north edge (Tr. 60). Respondent's employees at the time were placing forms for pouring of concrete in the open areas between the beams and the girders. He estimated the open areas to be about 10 X 10 feet. He estimated that the "V" girders were about 10 feet in depth or height and had a top surface, or "flange," of two and a half to three feet in width. The "I" beams he thought had a top surface or flange of about one to three feet in width. Sticking out from the flanges every 12 or 18 inches were Nelson studs -- i.e., rods of steel "about a half inch round . . . about 8 inches long . . . welded to the flange" (Tr. 36). Mr. Dworak testified that workmen would walk on the flanges and carry form braces to be put in place in the open areas between the "I" beams and the "V" girders, although he said he actually never saw the braces carried or put in place (Tr. 39). The form braces were 2 X 12's, approximately 10 or 12 feet in length, and weighed about 80 to 100 pounds. A metal bar was placed in between the 2 X 12's, and the braces would then be covered with plywood and the concrete poured. Mr. Dworak estimated that men would move about "anywhere from 20 to 40 feet" (Tr. 39A). He said he also recalled that there were 12 feet long 4 X 4's lying acros the "V" girders which were used as"deck plates" for placing the forms in the open areas (Tr. 37). He believed there were eight to ten employees working at the site of the alleged violation with only two wearing life belts or lifelines, and they were not "tied off" -- i.e., "securely fastened to any fixed object" (Tr. 40). He acknowledged, however, that it "would be, a lot of times impractical to tie off" with the kind of work that was being done (Tr. 65).

According to Mr. Dworak, a man could fall 150 feet if he went through the opening in the lower deck to the ground; if he were "lucky" he would fall 30 to 35 feet and hit the lower deck, which, like the upper deck, was a skeleton of girders with Nelson studs sticking up (Tr. 39B). He observed safety nets had been installed to protect railroad tracks from falling objects at another site but not at the location where the men were placing forms between the girders and beams. n6

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n6 Mr. Dworak said there were handrails along the edge of the ramp so his only concern was with employees falling in between the girders (Tr. 54).

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Mr. Dworak testified that Mr. Gaskill displayed a sample safety netting to him during the closing conference, but he was not sure of its intended purpose or whether it had been purchased or not.

The compliance officer was uncertain how to install a net to protect employees working on a bridge, explaining that "it's hard to do on a particular job, like a bridge" (Tr. 44; see also 45-46; 59-61). He could not recall whether or not he had discussed the feasibility of installing nets at the time of his inspection. Mr. Dworak agreed on cross-examination that it was not practical or feasible to extend a neg eight feet beyond the edge of the work surface as the standard provides, especially on a bridge so wide and constructed of light steel (Tr. 53-56). Aslo, on cross-examination, Mr. Dworak said the only persons he talked to about the inspection were Mr. Gray, Gaskill and "a couple of other people there" to whom he was introduced. He stated that "I can't recall their names" but "I believe one was a carpenter foreman" (Tr. 58).

Mr. Gaskill, Mr. Gray and another employee, Mr. Richard Barber, a safety coordinator for Willamette Western Corporation, testified for Respondent. In addition, Respondent called Ronald McReary, a consulting engineer, to testify as an expert in bridge construction. Mr. McReary is a registered professional engineer, is a member of a number of professional societies and has had considerable experience supervising the construction of buildings, dams, bridges and other large projects. Mr. McReary made a study to determine how the standard in question could be applied to the construction of the East Fremont Bridge Interchange. He made an on-site inspection and took several photographs (Resp's Exs. 2-7). In his opinion the use of work platforms, or temporary floors, and safety lines was the only practical solution, and that such satisfied the requirements of the standard:

. . . It is customary to use walk planks between the cross beams in getting the materials out to the voids where the plywood will be placed in the openings between the main girders, so that the concrete can then be placed. And in Exhibit R-3A, is seen a series of deck form in place, which will then serve as a work platform to install the forms in the next adjacent bays. . . .

. . . It is customary and is the practice whenever possible, for the workmen to tie off two objects, but obviously, when they are walking any great distance, they would spend all day tying and untying and do no work (Tr. 96-7).

. . . The suspension of the net below the upper deck, that had the necessary droop so that it had the reserve elasticity to do its job, would, in my opinion, touch the lower deck and eliminate its effectiveness.

It would further prevent the removal of the materials from underneath the upper deck concrete that has been placed, because those materials must be taken out of there at a specific time when the concrete is ready to support itself; and it would bar any access to the underside of that -- to that area, so that the only practical solution to that problem is to do precisely what's shown on Exhibit R-3A, to use temporary platforms; to use temporary railings on the outside of the span, which are visible on the left side of R-3A, and to use safety lines and belts whenever they can possibly be used; and beyond that, to use nothing but trained journeymen, who are experienced in the field and who have demonstrated by their work performance, that they are safety conscious workers -- adequate safety program of constantly reminding the workmen of the problem that they very well know, and of the necessity to use these tie-off lines wherever possible, to me, is the only practical method that, by which the work on the upper deck can be accomplished (Tr. 100-1).

. . . These nets are designed to be in a relaxed position, so that they have their maximum potential for stretching, when something falls in them. Customarily, that -- in a width of 70 feet, this drop would be, say, 30 feet. The net droops 30 feet and when something hits that net, it stretches another 20 feet. But you have it drawn tight enough so that it is up high enough against the underside of this system, then you then have all but removed its ability to stretch; and if it does stretch, one or two things is going to happen. The object is either going to go through the net, because you have taken part of its life out by stretching it, or it is going to stretch so much that you are going to hit what's below you anyway (Tr. 121). n7

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n7 Mr. McReary explained that it would be particularly difficult to extend nets eight feet beyond the edge of the bridge (Tr. 103-4).

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Both Mr. Barber and Mr. Gray were of the opinion that the installation of safety nets on the Fremont Bridge Interchange would serve to increase the hazard to the workmen rather than reduce it (Tr. 111-112; 148-50). Project Manager Gray explained that a wood walkway would be constructed and bolted to each girder unit before it is raised. Two iron workers are the workmen who are primarily exposed in raising the stringers, and they are furnished with safety belts and are tied off. The other workers walk on a two-board walkway for short distances or on a deck surface. Mr. Gray also testified that regular safety meetings are held and that any man violating the rule on tying off (after one warning) is terminated (Tr. 141-51).

Project Engineer Gaskill testified that on the day of the inspection, he met with the compliance officer, toured the job site with him and then met with him again at a closing conference. He could not recall that the compliance officer talked to any employees while at the job site.

Respondent contends that the Secretary's case should be dismissed because the Occupational Safety and Health Act was not intended to apply to on-going major construction jobs, and if it did, the Secretary had not satisfied the statutory requirements of issuing a citation with "reasonable promptness" following an inspection and of describing any alleged violation "with particularity" (Sec. 9(a)). The undersigned must reject these contentions.

The Act became effective on April 28, 1971 and the particular work standard involved here was in effect on September 29, 1971, the time of the alleged violation (36 Fed. Feg. 10469, Saturday, May 29, 1971). The citation does not indicate the time of the alleged violation and gives Respondent's office address as the site where it allegedly occurred. The complaint, filed subsequently, does fix the time and identifies a section of the Fremont Bridge as the worksite in question. In any event, Respondent was on fair notice of the nature and basis of the Secretary's charge and was able sufficiently to prepare its defense. See Conley v. Gibson, 355 U.S. 41 (1955). It is true, as Respondent contends, that there is legislative history indicating that the Secretary should not ordinarily delay issuance of a citation more than 72 hours. However, Congress decided on use of the phrase "reasonable promptness," thus affording the Secretary some flexibility in issuing a citation. Issuance of the citation on October 15, 1971, following an inspection on September 29, 1971, does not involve such extended delay as to invalidate the citation in the opinion of the undersigned.

The undersigned has concluded, however, that the citation and the notification of proposed penalty should be vacated because of a procedural defect in the Secretary's case and also due to his failure to carry the burden of proof.

Section 8(a) of the Act authorizes the Secretary, upon presentation of appropriate credentials to the owner of a business or his representative, to enter upon the premises during reasonable hours and to inspect and investigate a place of employment. Section 8(e) of the Act provides:

Subject to regulations issued by the Secretary, a representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace under subsection (a) for the purpose of aiding such inspection. Where there is no authorized employee representative, the Secretary or his authorized representative shall consult with a reasonable number of employees concerning matters of health and safety in the workplace. n8

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n8 The Secretary's regulations on this subject follow the provisions of the statute (29 CFR 1903.8; 36 Fed. Reg. 17851, Saturday, September 4, 1971). See also Chapter V (B.2.d) of the Secretary's Compliance Manual.

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It is apparent that Congress intended that the Act would be enforced only after an "authorized" inspection or investigation and that the Secretary must give employees as well as the employer's "opportunity" to accompany the Secretary's representative in making an inspection of a workplace. The use of the word "shall" makes it clear that the requirement is mandatory and jurisdictional. n9

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n9 Section 9(a) of the Act in providing for the description of an alleged violation with particularity also employs the word "shall." The particularity requirement thus is also mandatory, and an employer must be furnished with specific details of the alleged violation before he is called upon to defend a charge at a hearing. The statutory pleading defect can be cured, however, by a timely amendment. The failure to give an employer or employees opportunity to accompany the Secretary's representative on an inspection tour can not be corrected in that manner.

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Being jurisdictional, it does not matter who raises the issue of whether there was an authorized inspection. The issue was raised during the trial, and the Secretary did not attempt to show that Section 8(e) of the Act had been satisfied. Six labor organizations are allegedly involved as authorized employee representatives, and the amended complaint indicates that there may be affected employees not members of any one of them. Careful review of the record convinces the undersigned that the opportunity to accompany the Secretary's inspector was not given to any employee representative. Of course, under Section 8(e) where there is no authorized employee representative, "a reasonable number of employees" must ("shall") be consulted. It is also clear from the record that the compliance officer did not consult with a reasonable number of Respondent's employees either. At most, he only met some employees, and they apparently were of management status (Tr. 58).

Further, the evidence shows that Respondent did not violate 29 CFR 1518.105(a). The Secretary and Respondent agree that 1518.105(a) and 1518.105(c) must be read together:

(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 are impractical.

(c) Nets shall extend 8 feet beyond the edge of the work surface where employees are exposed. n10

The citation and complaint charge Respondent with violating the standard by failing to provide safety nets for its employees. It is clear that 1518.105 requires installation of safety nets only when other prescribed safety measures are not practical: "where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines or safety belts are impractical." And, when nets are used, they "shall extend 8 feet beyond the edge of the work surface. . . ."

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n10 Respondent points out that subparagraph (c) has been amended since the Secretary's inspection.

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There was no evidence that temporary platforms and safety lines or belts were impractical. On the other hand, the Secretary's compliance officer acknowledged more than once that installation of safety nets was neither feasible nor practical. n11 This was enough to defeat the Secretary's charge against the Respondent. Respondent's witnesses likewise testified as to impracticality of erecting safety nets on the East Fremont Bridge. They also testified that the utilization of Respondent's procedures involving the use of safety belts and work platforms or temporary floors provided a practical solution that was acceptable under the cited regulation. As for the testimony of the compliance officer that two employees were not tied off and others were not wearing safety belts, it is not clear from the record that temporary platforms were not in place at the time or that tying off was called for. n12 In any event, the citation and complaint were not directed at the wearing of safety belts or lifelines.

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n11 The record gives little information about how and where nets had been erected over the railroad (Tr. 43, 144).

n12 And see Hutchison Brothers Excavation Co., Inc. v. D.C., 278 A.2d 318 (D.C. 1971) cited by Respondent. This was a criminal case instituted for violation of District of Columbia safety regulations. The Court held with respect to a regulation requiring construction employees to wear hard hats that the regulation could require an employer to issue such safety equipment and require its use, but an employer would be liable thereunder "only if the employer knew or reasonably should have known an employee was not wearing the issued hard hat, and did nothing to correct the situation."

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It is not necessary to consider the propriety of the Secretary's penalty as no violation was shown.

* * *

Based upon the foregoing it is found:

1. Respondent is, and at all times relevant herein, an "employer" and a person engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.

2. Jurisdiction is conferred by Section 10(c) of the Act.

3. The requirement that a representative of Respondent's employees "shall be given an opportunity to accompany" the Secretary's representative during the physical inspection of a workplace is mandatory, and it was not satisfied.

4. The record does not establish that Respondent violated the standard appearing at 29 CFR 1518.105 of the Act or any other standard or provision of the Act.

Based on the foregoing, and upon the entire record, it is ORDERED that Item No. 4 of the citation issued herein on October 15, 1971, and the notice of proposed penalty therefor issued herein, be and the same, are VACATED.