FRANK BRISCOE COMPANY, INC.

OSHRC Docket No. 12136

Occupational Safety and Health Review Commission

September 23, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

Louis J. Williams, Acting Chief Engineer, Frank Briscoe Company, Inc., for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

This case presents the questions whether Administrative Law Judge James D. Burroughs erred in (1) affirming a serious citation for violation of 29 C.F.R. 1926.500(d)(1), (2) affirming a serious citation for violation of 29 C.F.R. 1926.28(a) and (3) affirming a nonserious citation for violation of 29 C.F.R. 1926.450(b)(12). For the reasons that follow, we adopt the decision of the judge as modified herein.

Alleged Violation of 29 C.F.R. 1926.500(d)(1): n1

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n1 The standard states, in pertinent part:

Every opensided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(1) of this section, on all open sides. . . .

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Respondent was constructing a three-story building [*2] in Iselin, New Jersey. During an inspection made on December 23, 1974, Respondent's employees were seen preparing to pour a part of the concrete roof. They had constructed a wooden deck as a form for the concrete, and had placed plastic pans upside down on the deck in order to form a honeycombed surface on the underside of the concrete. Four or five employees had laid pans within four feet of the perimeter of the deck. The perimeter was not guarded with a guardrail. Accordingly, Complainant issued a citation for serious violation of 29 C.F.R. 1926.500(d)(1).

Respondent defended saying that it is impractical to install guardrails until the deck is completed and that Complainant failed to show that the deck had been completed where employees laid the pans. Judge Burroughs reviewed the evidence and found that Respondent had completed the deck along the side where employees laid pans.

We have reviewed the record and conclude that Judge Burroughs' finding is directly and adequately supported by the record. Complainant's compliance officer, the sole witness, stated that the employees were within four feet of the perimeter of the building when they laid the pans. From this, we [*3] must conclude that they were working on a part of the deck that had been completed to the exterior walls of the building. No reason appears, therefore, to show why a guardrail could not be installed along that edge.

However, it is undisputed that Respondent's employees were constructing a roof. We have recently reconsidered our prior decisions which held that 1926.500(d)(1) is applicable to flat roofs, and we have concluded that the cited standard is not applicable to flat roofs. Central City Roofing Company, Docket No. 8173 (June 4, 1976). Respondent has not defended on the basis that the cited standard does not apply to the construction of a flat roof. Nonetheless, we will apply the law as it is presently stated by our decision in Central City Roofing Company. Cf. Busey v. District of Columbia, 319 U.S. 579 (1943); United States v. Atkinson, 297 U.S. 157 (1936); Jacobs v. Office of Housing Expediter, 176 F.2d 338 (7th Cir. 1979).

Alleged Violation of 29 C.F.R. 1926.28(a): n2

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n2 The standard states:

The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

[*4]

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During the inspection, an employee was standing approximately eight feet up on a portable ladder on the third floor. The top end of the ladder leaned against a column and the base of the ladder was within a few inches of the perimeter of the floor. The perimeter was unguarded. Furthermore, the employee was not using a safety belt tied-off to a part of the building. The only structure to which he could tie a lanyard was the column itself. The column was built of wood formwork and structural steel. It is undisputed that the column could support the weight of a man but could not support a minimum dead weight of 5,400 pounds as required by 29 C.F.R. 1926.104(b). n3

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n3 29 C.F.R. 1926.104(b) provides:

Lifelinee shall be secured above the point of operation to an anchorage or structural member capable of supporting a minimum dead weight of 5,400 pounds.

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Respondent contends that there is no violation of 1926.28(a), requiring the use of [*5] personal protective equipment in hazardous conditions, if the employer would have to violate 1926.104, pertaining to strength of safety belts, lanyards, and lifelines, in order to use the safety belts. Judge Burroughs rejected this defense and found that Respondent violated 1926.28(a). He held that if there is an anchorage that will support the weight of a man, the added fact that it will not support 5,400 pounds does not excuse the employer from using safety belts. He reasoned that Respondent was charged with violation of the standard which requires the use of appropriate personal protective equipment to protect against hazards, and Respondent was able to use a safety belt to protect the one person from the fall hazard herein.

We agree with Judge Burroughs' reasoning. The record is clear that Respondent was able to protect the employee by requiring him to wear a safety belt tied-off to the column. Therefore, it is clear that it was not impossible to provide the protection required by 1926.28(a). If Respondent were later cited for failure to use life-lines or lanyards that are capable of supporting a weight of 5,400 pounds, then Respondent has available to it the defense that [*6] there was no anchorage that would support that weight. n3a

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n3a See: Kelly Constr. Services, Inc., No. 7102, BNA 4 OSHC 1491, CCH OSHD para. 20,925 (R.C., July 26, 1976).

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On review, Respondent argues that proof that there are feasible methods of complying with both the cited standard and other related standards is a part of Complainant's case. Respondent thus contends that Complainant must prove that it was possible for Respondent to comply, rather than Respondent having to prove that it was impossible. In taking this position, Respondent relies on National Realty & Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973).

The short answer to this contention is that Complainant alleged and clearly established that the method of abatement was to require the employee to wear a tied-off safety belt. Accordingly, the burden shifted to Respondent to prove that it was impossible to comply with the cited standard, and Respondent failed to carry the burden since the record shows it was possible to tie-off.

[*7] Alleged Violation of 29 C.F.R. 1926.450(b)(12): n4

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n4 The standard states:

Cleats shall be inset into the edges of the side rails one-half inch, or filler blocks shall be used on the rails between the cleats. The cleats shall be secured to each rail with three 10d common wire nails or other fasteners of equivalent strength. Cleats shall be uniformly spaced, 12 inches top-to-top.

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In the basement of the building, Respondent's employees were using a manufactured portable wood ladder as access to a scaffold. The bottom rung had broken, and was repaired by nailing a 2 X 4 to the side rails.

Respondent did not dispute the facts but defended on the basis that the cited standard does not apply to manufactured ladders. Respondent contended that 29 C.F.R. 1926.450(b), concerning job-made ladders, covers only ladders that are constructed on the jobsite. It does not apply, says Respondent, to the repair of a part of a manufactured ladder even if the repair is made on the job.

In response, Complainant asserts that a [*8] ladder becomes job-made when the rapair is made on the job. Therefore, according to Complainant any job-made repair of a manufactured ladder must be made in the manner specified in the appropriate job-made ladder standard.

As we read section 1926.450, the standards prescribed by paragraph (b), entitled, "Job-made ladders," describe completely how the employer is required to construct a particular type of ladder when it is built on the site. The remainder of the ladder standards, set forth under paragraph (a), set forth general requirements for structure, strength, and use of all ladders, particularly manufactured ladders. Subparagraph (a)(2) specifies that ladders with defective rungs must be removed from service. Subparagraph (a)(3) provides that manufactured portable wooden ladders "shall be in accordance with the provisions of the American National Standards Institute, A14.1-1968, Safety Code for Portable Wood Ladders," (hereinafter "ANSI"). Accordingly, although the standards under paragraph (a) do not describe how an employer is to repair parts of manufactured portable ladders, it is clear that manufactured ladders must be maintained in the condition described in the ANSI [*9] standards for manufacture of ladders, or defective ladders must be removed from service. It follows that any repair must be made in the manner specified in ANSI. Since this is so, Respondent cannot also be required to look to the job-made ladder standards of paragraph (b).

The ANSI standard regarding construction of the rungs of portable wood ladders, section 4.3.1.3 of A14.1-1968, requires that the rungs be inset into the side rails. Since Respondent merely nailed a 2 X 4 to the side rails, Respondent did not repair the ladder in compliance with ANSI. Accordingly, the ladder was not in compliance with 1926.450(a)(3).

Respondent has contended that the cited standard does not apply, and we have so found. However, Rule 15(b) of the Federal Rules of Civil Procedure states that, in certain circumstances, the court may allow amendment of the pleadings to include issues raised by the evidence:

If evidence is objected to at trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy [*10] the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits.

Herein, the parties tried the violation as a failure to inset the rung. The violation was shown, and Respondent presented no defense other than that an inapplicable standard was cited. Since the merits of the cited standard 1926.450(b)(12), and the amended standard, 1926.450(a)(3), are identical, it does not appear that Respondent will be prejudiced by amendment of the citation and complaint to allege a violation of 1926.450(a)(3). Accordingly, we will amend the citation and complaint to allege a nonserious violation of 1926.450(a)(3), and we affirm the citation as thus amended, but will stay the effective date of our order to allow the parties a reasonable time in which to show good cause why the pleadings should not be so amended. Kaiser Aluminum & Chemical Corp., No. 3685, BNA 4 OSHC 1162, CCH OSHD para. 20,675 (R.C., May 3, 1976).

Knowledge:

After the compliance officer identified himself to Respondent's Project Engineer at the worksite, the Project Engineer advised the compliance officer that he had a number of employees and various unions on [*11] the site. The Project Engineer thereafter accompanied the compliance officer during the inspection as Respondent's representative. Through his discussion of the various operations on the site, he indicated that he was aware of their nature. He particularly stated that he knew that an employee was working without a safety belt from a ladder at the edge of the third floor, and advised that he had never seen personal protective equipment used during the operation.

Complainant relied on the above evidence to establish that Respondent knew or reasonably could have known of the violations alleged as serious. n5 Respondent contended that this evidence fails to show that the Project Engineer was a management official rather than simply an employee, and that there is no basis on which to find that he knew of the guardrail violation on the roof level. Judge Burroughs found the evidence sufficient to establish knowledge.

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n5 Section 17(k), 29 U.S.C. 666(j), provides:

For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a conditions which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

[*12]

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We agree. We can infer from the actions and statements of the Project Engineer during the inspection that he had supervisory duties at the worksite. Since there is no evidence to show that he was merely an employee, we will conclude that he was a management official at the site. It is accordingly clear that one of Respondent's management officials actually knew that an employee was working at a height without a safety belt, knew of the type of task that the employee was performing, and knew that a safety belt was not customarily used by the employee who performs this task. From this we must conclude that Respondent knew of the violation but did not take reasonable steps to prevent its occurrence.

On review, Respondent questions whether the record shows sufficient knowledge of the nonserious violation. The record reveals that the Project Engineer was aware of the nature of the work which required the use of the wooden ladder. Additionally, a foreman was working with the employees, and the defective ladder was in plain view. Responable diligence on Respondent's part would have revealed the violation, [*13] and it is therefore clear that Respondent failed to take reasonable step to prevent its occurrence.

Penalties:

We turn now to the assessment of appropriate penalties. The gravity of the safety belt violation is moderate to high since the foot of the ladder was very close to the open perimeter of the third floor. As to the nonserious ladder violation, the gravity was low. Respondent is large in size, employing a total of 1,000 employees. Respondent has received other citations but there is no evidence that indicates any lack of good faith. On balance, we conclude that penalties in the amount of $700 for the serious violation of 1926.28(a), and $25 for the nonserious violation are appropriate.

Accordingly, the citation for serious violation of 29 C.F.R. 1926.28(a) is affirmed and a penalty of $700 is assessed. The citation for serious violation of 29 C.F.R. 1926.500(d)(1) is vacated. The citation for nonserious violation of 29 C.F.R. 1926.450(b)(12) is amended to allege a violation of 29 C.F.R. 1926.450(a)(3) and as amended the citation is affirmed, and a penalty of $25 is assessed therefor, unless within 20 days from receipt of this decision either party shows good cause [*14] why the pleadings should not be so amended. So ORDERED.

CONCURBY: MORAN (In Part); CLEARY (In Part)

DISSENTBY: MORAN (In Part); CLEARY (In Part)

DISSENT:

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

Vacation of the citation alleging a violation of 29 U.S.C. 654(a) for noncompliance with 29 C.F.R. 1926.500(d)(1) is required by Commission precedent. I therefore concur in this disposition. I disagree, however, with the action of my colleagues on the remaining charges.

The conditional amendment affirming a violation of 29 C.F.R. 1926.450(a)(3) is improper because a procedural rule for amendment of pleadings has been misused in order to amend a document which is not a pleading. A citation is a unique creature of statute to which the liberal rules of amendment contained in the Federal Rules of Civil Procedure do not apply.

There are two reasons why the citation alleging noncompliance with 29 C.F.R. 1926.28(a) should be vacated.

First, it is obviously [*15] wrong to hold an employer liable for a violation of one standard where he can avoid that violation only by violating another. This injustice does not trouble Messrs. Barnako and Cleary, however, as they illogically conclude that, if cited for failure to comply with 29 C.F.R. 1926.104(b), respondent could then defend on the basis that no overhead anchorage existed which would support the weight. Nonsense! Judge Brenton properly disposed of this same problem in Secretary v. Ceco Corporation, 16 OSAHRC 651, 657 (1975), where in vacating the citation, he recognized that:

"The point is that the hazard is there and insofar as is possible should be eradicated. But this is an enforcement function and not an adjudicatory function."

My colleagues seem to have forgotten that the Commission's functions are solely adjudicatory in their zeal to act as an arm of the prosecution. Dale M. Madden Construction, Inc. v. Hodgson, 502 F.2d 278 (9th Cir. 1974); Secretary v. Wetmore & Parman, Inc., 2 OSAHRC 288 (1973); 29 U.S.C. 651(b)(3).

Second, the evidence is insufficient to establish a violation of 1926.28(a) in its original - and only validly promulgated - version. That [*16] version provided that

"The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions and where this part indicates the need for using such equipment to reduce the hazards to the employees." (Emphasis added.)

Prior to the inspection in this case, the standard was modified by substituting the word "or" for the word "and." For the reasons stated in my dissenting opinion in Secretary v. Island Steel & Welding, Ltd., 17 OSAHRC 143, 144 (1975), the modification was improperly promulgated and the original version remains in effect. Therefore, in order to establish a failure to comply with this standard, proof of two elements is necessary: (1) that there was exposure to a hazardous condition warranting the use of personal protective equipment, and (2) that there was a failure to use this equipment when its use was required elsewhere in Part 1926 of the regulation.

Although 29 C.F.R. 1926.104 contains several rules regarding safety belts, lifelines, and lanyards, it does not require the wearing or use of that equipment at any time. The standard that comes closest to requiring [*17] the use of a safety belt is 29 C.F.R. 1926.105(a) which provides:

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

This standard has been interpreted to require the use of safety nets or one of the other enumerated items when work is periormed at heights of more than 25 feet. Brennan v. Southern Contractors Service, 492 F.2d 498 (5th Cir. 1974). However, since in this case the alleged violation involved an employee who was working on a ladder, there is no violation of 1926.105(a). Accordingly, there can be no violation of 29 C.F.R. 1926.28(a) on the record before this Commission.

CLEARY, Commissioner, CONCURRING IN PART AND DISSENTING IN PART:

I concur with the Chairman's disposition concerning section 1926.28(a) and section [*18] 1926.450(a)(3) for the reasons that he has assigned. I dissent, however, from my colleagues' vacation of the citation alleging a violation of section 1926.500(d)(1) on the basis of Central City Roofing.

The Commission should request supplemental briefs by the parties on the issue of whether Central City Roofing is distinguishable. Commission precedent suggests that this should be done. See Western Steel Manufacturing Co., No. 3528 (August 31, 1976); Research Cottrell, Inc., No. 11756 (August 31, 1976); Leone Construction Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976) Petition for review withdrawn, No. 76-4070 (2d Cir., May 17, 1976); D. Federico Construction Co., Inc., 3 BNA OSHC 1970, 1975-76 CCH OSHD para. 20,422 (No. 4395, 1976), petition for review docketed, No. 76-1084 (1st Cir., Feb. 26, 1976). See also Bendix Corp. v. FTC, 450 F.2d 534, 542 (6th Cir. 1971); Rodale Press, Inc. v. FTC, 407 F.2d 1252 (D.C. Cir. 1968).

There is no plain error here justifying the majority's action. Respondent is a general contractor who was performing concrete work. It is not a roofing contractor [*19] or subcontractor. The employees involved were working on a part of a wooden deck at the fourth level that had been completed to the exterior walls of the building. No reason appears why a guardrail could not have been installed along the edge. The workmen were doing concrete work, i.e., pouring concrete form work and installing reinforcing rods. They were not roofers. In respondent's words, they were "deck installers".

The purpose of the concrete work was to create a waffling or honeycombed effect for a ceiling. The employees were working on an open-sided platform in doing the work. It is therefore arguable that section 1926.500(d)(1) applies despite Central City Roofing. Administrative Law Judge Riehl has recently held that this standard applies to concrete construction workers in circumstances similar to those here. See Dun-Par Engineered Form Co., Direction for review ordered, Sept. 7, 1976.

Further, Central City Roofing is based largely upon the Fifth Circuit's decision in Diamond Roofing Co. v. OSHRC, 528 F.2d 645 (5th Cir. 1976). One underpinning of the Fifth Circuit's decision is that roofers are accustomed to work without [*20] the roof perimeter being guarded, while general construction workers are used to working on guarded floors. 528 F.2d at 650. Here, general construction workers are doing concrete work.