HAVENS STEEL COMPANY

OSHRC Docket No. 13463

Occupational Safety and Health Review Commission

April 20, 1978

[*1]

Before CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

Thomas M. Moore, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

The decision of Administrative Law Judge Alan M. Wienman, dated January 29, 1976, is on review pursuant to 29 U.S.C. 661(i). The Judge affirmed "serious" and "nonserious" citations issued to respondent, Havens Steel Company, for noncompliance with 29 CFR 1926.105(a) n1 and 29 CFR 1926.450(a)(2), n2 respectively. A $200 penalty was assessed for the serious citation. No penalty was assessed for the nonserious citation.

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n1 1926.105 Safety nets.

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

n2 1926.450 Ladders.

(a) General requirements.

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(2) The use of ladders with broken or missing rungs or steps, broken or split side rails, or other faulty or defective construction is prohibited. When ladders with such defects are discovered, they shall be immediately withdrawn from service. Inspection of metal ladders shall include checking for corrosion of interiors of open end hollow rungs.

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Respondent raises several exceptions to the Judge's decision. We find no merit in respondent's contentions and, for reasons that follow, affirm the Judge's decision.

On May 12, 1975, a representative of the Secretary (compliance officer) inspected a warehouse construction site at 10500 Lackman Road, Lenexa, Kansas, where respondent was the steel erection subcontractor. Respondent's employees were observed erecting the building's skeletal steel framework 29 feet, 4 inches above ground without any fall protection. A defective ladder was also observed.

Serious Citation - Applicability of 1926.105(a)

Respondent argues that the Judge erred in finding that 1926.105(a) was not preempted by 1926.750(b)(2)(i), n3 which is the standard more specifically applicable to the skeleton steel erection being performed. n4

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n3 1926.750 Flooring requirements.

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(b) Temporary flooring - skeleton steel construction in tiered buildings.

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(2)(i) Where skeleton steel erection is being done, a tightly planked and substantial floor shall be maintained within two stories or 30 feet, whichever is less, below and directly under that portion of each tier of beams on which any work is being performed, except when gathering and stacking temporary floor planks on a lower floor, in preparation for transferring such planks for use on an upper floor. Where such a floor is not practicable, paragraph (b)(1)(ii) of this section applies.

n4 Respondent argues that it was in compliance with 1926.750(b)(2)(i) because the ground was the equivalent to a tightly planked and substantial floor within 30 feet of the exposed employees. As we find that standard inapplicable, we do not address this contention.

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The Judge held that 1926.750 is inapplicable as it refers exclusively to steel erection of "tiered" buildings. He found that the warehouse was not tiered. He determined that a "tiered" building is "multi-storied" or "multi-leveled" whereas this warehouse is a one-story structure. Accordingly, he held that the general construction industry standard at 1926.105(a) was applicable.

Respondent does not disagree with the Judge's findings that more than 95 percent of the warehouse's area was "single story construction" and that, on the day of the inspection, "[a]ll work . . . was being performed in the single story areas." It argues only that the specific steel erection requirements at 1926.750 apply in all instances of skeleton steel erection work. Respondent offers several grounds for its position. It argues that the language in the body of the standard supports its position as do the comments of the Secretary at 39 Fed. Reg. 24360 (1974), announcing the adoption of a revision of the temporary flooring requirement in 1926.750(b)(2). Also, respondent contends that the Judge's interpretation [*4] results in the "absurd" result that the protection afforded by the steel erection standard depends upon the irrelevant criterion of what is above the employee exposed to a fall.

The Judge's conclusion that the steel erection standard at 1926.750 applies only to "tiered" buildings correctly anticipated the decision by a divided Commission in Daniel Construction Company, 77 OSAHRC 21/A2, 5 BNA OSHC 1005, 1976-77 CCH OSHD para. 21,521 (No. 7672, 1977). There, the Commission majority held that a one-story structure is not a tiered building. That decision is controlling in the instant case. See McKee-Wellman Power Gas, 77 OSAHRC 133/A2, 5 BNA OSHC 1592, 1977-78 CCH OSHD para. 21,972 (No. 12618, 1977). Therefore, 1926.750 is inapplicable, and 1926.105(a) is the appropriate standard. Accord Unit Builders, Inc., No. 76-140, December 7, 1977; Ray Evers Welding Co., Inc., 77 OSAHRC 181/F7, 5 BNA OSHC 1948, 1977-78 CCH OSHD para. 22,220 (No. 76-628, 1977).

Serious Citation - Burden of Proof For Alleged Violation of 1926.105(a)

Respondent argues that the Judge improperly relied upon Ace Sheeting & Repair, 75 OSAHRC 23/C13, 3 BNA OSHC 1868, 1975-76 CCH OSHD [*5] para. 20,256 (No. 5284, 1975), aff'd, 555 F.2d 439 (5th Cir. 1977), in affirming the violation of 1926.105(a). Further, respondent contends that the Judge erred by holding that the Secretary need not prove the feasibility and practicality of using ". . . at least one of those methods. . ." of compliance enumerated by the standard. n5

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n5 Respondent's brief states;

. . . 105(a) offers a myriad of alternatives for compliance with the Act; unless the feasibility and practicality of at least one of those methods [is] shown by the Secretary, it is impossible for the respondent to be aware of the proper mode of abatement. Abatement, of course, is the procedure by which safety on a project will be afforded under and by virtue of the provisions of the Act. Without a showing of practicality and feasibility, there is no abatement procedure to follow - therefore, there can be no violation. (Page 20).

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We find no merit in respondent's contentions. In Ace Sheeting & Repair supra, the Commission held that the [*6] Secretary is not required to demonstrate feasible methods of compliance to establish a violation of 1926.500(b)(4). n6 The Commission stated, "the standard itself suggests feasible means of compliance (guardrails or covers) thus enabling respondent to know the nature of the violation and the means for compliance." While Ace is not precisely apposite, for the reasons which follow, the Judge's result is affirmed.

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n6 1926.500 Guardrails, handrails, and covers.

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(b) Guarding of floor openings and floor holes.

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(4) Wherever there is danger of falling through a skylight opening, it shall be guarded by a fixed standard railing on all exposed sides or a cover capable of sustaining the weight of a 200-pound person.

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The Commission has not expressly addressed the question of whether the Secretary has the burden of proving the feasibility of using a specific safety device other than nets where a respondent has been cited under 1926.105(a). The Commission has held however that the Secretary can establish [*7] a prima facie case as to a violation of 1926.105(a) by showing that no means of protection listed in the standard was used to protect employees exposed to a fall in excess of 25 feet. Sierra Construction Corp., 78 OSAHRC 2/E6, 6 BNA OSHC 1278, 1977-78 CCH OSHD para. 22,506 (No. 13638, 1978). n7 An employer may affirmatively defend by establishing that it is impossible to erect safety nets, that safety nets would make performance of the work impossible n8 or result in a greater hazard. n9

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n7 The Commissioners disagree on whether 1926.105(a) requires use of any device other than safety nets. See Crawford Steel Construction Co., 76 OSAHRC 143/A2, 4 BNA OSHC 1891, 1976-77 CCH OSHD para. 21,338 (No. 9622, 1976). Here, however, the Secretary cited respondent for noncompliance with the standard without specifying any one particular device. Thus, despite their differences, the Commissioners agree that there is a violation at least insofar as to safety nets. Therefore, they do not address the Secretary's burden of proof with respect to those devices other than nets. See generally Sierra Construction Corp., supra; Alberici-Koch-Laumond, A Joint Venture, 77 OSAHRC 179/A2, 5 BNA OSHC 1895, 1977-78 CCH OSHD para. 22,211 (No. 13026, 1977).

n8 See Alberici-Koch-Laumond, A Joint Venture, supra.

n9 See Cornell & Co., 77 OSAHRC 18/D10, 5 BNA OSHC 1018, 1976-77 CCH OSHD para. 21,532 (No. 9353, 1977).

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Respondent has neither claimed nor presented evidence as to these defenses. The Judge found that the erection and use of safety nets would have been burdensome but not impossible. We agree with that determination. Accordingly, we conclude that a violation, at least with respect to safety nets, has been established.

Nonserious Citation

The compliance officer testified that during the inspection he observed a wooden ladder providing access to the roof area where some of respondent's employees were welding bridging in bar joists. The ladder had a cracked bottom rung approximately six inches above the ground. He stated that respondent's name was on it and that its ownership was confirmed by both respondent's job site superintendent and field superintendent. The compliance officer further testified that the ladder was caked with fresh mud indicating recent use but that he at no time observed it being used.

Judge Wienman affirmed the citation noting that the compliance officer's testimony was unrebutted. On review, respondent argues that the Secretary did not sustain his burden of proof inasmuch [*9] as there is no proof of employee exposure to the hazard or that the ladder was ever used in this condition.

We find no merit in respondent's argument. The Secretary met his burden by establishing that the ladder was available for use in a violative condition. Morris Enterprises, Inc., 77 OSAHRC 44/F8, 5 BNA OSHC 1248, 1977-78 CCH OSHD para. 21,717 (No. 12283, 1977).

Accordingly, the Judge's decision is AFFIRMED.