CARPENTER RIGGING AND CONTRACTING CORPORATION

OSHRC Docket No. 1399

Occupational Safety and Health Review Commission

February 4, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On March 8, 1973, Judge Joseph L. Chalk issued an order in this case vacating a citation for serious violation and the proposed penalty. On April 9, 1973, the Commission directed the Judge's decision be reviewed in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter referred to as "the Act").

Review was directed on the question of "[w]hether substantial evidence of record supports the finding of a violation of 29 CFR [ ] 1926.28(a)[.]" Both complainant and respondent filed briefs with the Commission subsequent to the direction for review. We have reviewed the record in its entirety and we reverse the decision of the Judge in this case.

Respondent was cited on August 11, 1972, for one serious and four non-serious violations of the Act. The Secretary of Labor proposed a penalty of $650 for the serious violation. The penalties proposed for the four non-serious violations totaled $155. Respondent filed a timely notice of contest to the citation for serious violation on September 1, 1972. The citation for non-serious [*2] violations was not contested.

The citation for serious violation alleged that respondent failed to comply with 29 CFR 1926.28(a) by not requiring the use of safety belts and lanyards by employees working on girders approximately 21 feet above ground level. The Secretary of Labor's complaint alleged that this violation took place on July 28, 1972. n1 Respondent's answer admitted the allegations of fact on which the Secretary of Labor based the citation, although it did not specifically admit the allegation concerning the date of violation. Respondent also stipulated to these facts at the hearing.

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n1 The citation also bears this date, although it is not clear whether it refers to the date of the inspection or the date of the alleged violation.

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An examination of the record, however, indicates that the date of violation alleged is not correct. There is no testimony in the record to the effect that respondent's employees were working on the girders on July 28, 1972, the alleged date of violation. Rather, [*3] there is an inference that respondent's employees were not working on the girders at that time. An employee had died two days before as the result of a fall from the girders. Respondent reported the fatality to the Occupational Safety and Health Administration Regional Office and was expecting an inspection. The compliance officer also testified that the conditions which he observed on July 28, 1972, at the scene of the fatality were the same as those at the time of the accident on July 26, 1972. Thus, it appears that respondent was not in violation of the Act on July 28, 1972, the date alleged.

However, the record contains amply testimony concerning the events of July 26, 1972. We hold that the events of this day were tried by consent of the parties, n2 and, therefore, amend the pleadings to conform to the proof in accordance with rule 15(b) of the Federal Rules of Civil Procedure. n3

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n2 There is also testimony that the employees who removed planking on the third and fourth levels of the warehouse, 30 to 40 feet above the ground, failed to use fall protective equipment. However, the second level above ground was completely covered with planking at that time. We do not concern ourselves with this situation except in assessing the penalty as the date on which this occurred is unclear.

n3 Rule 15(b) of the Federal Rules of Civil Procedure provides in pertinent part:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. . .

[*4]

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At the time of the inspection, respondent was acting as a subcontractor in the construction of an automated container warehouse at John F. Kennedy Airport in New York. On July 26, 1972, two of respondent's employees were working on eight-inch wide girders that were approximately 21 feet above the ground. They were repositioning planking in order to make a walkway. Neither of these employees were wearing safety belts and lanyards, and one of the men fell, landing on the concrete floor below. He died as the result of the injuries suffered in this fall.

As previously mentioned, the allegation of violation is based on section 1926.28(a). When the citation in this case was issued, section 1926.28(a) read as follows:

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). n4

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n4 29 CFR 1926.28(a) was amended on December 16, 1972, 37 Fed. Reg. 27510 (1972). This section now reads as follows:

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 (emphasis added).

[*5]

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Respondent contends that this section requires the use of fall protective equipment only when there is: (1) a hazardous situation; plus (2) an indication elsewhere in the construction standards n5 that such safety equipment is required.

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n5 The phrase, "this part," as used in section 1926.28(a) refers to the construction standards.

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We do not accept respondent's interpretation of this section. We agree that "and" is to be given its usual meaning in this section. However, the clauses joined by the word "and" are not two prerequisites to the requirement that personal protective equipment be used. Rather, these clauses define two separate situations in which personal protective equipment is required. The employer is responsible for the use of such equipment "where there is an exposure to hazardous conditions." It is also required to see that personal protective equipment is worn "where this part indicates the need for using such equipment." [*6]

This interpretation of section 1926.28(a) is supported by the dictionary definition of the word "and." "[A]s well as" is listed by Webster's Third New International Dictionary as one of the meanings of this word. n6 When this phrase is substituted for the word "and" the standard reads as follows:

The employer is resposible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardoud conditions [as well as] where this part indicates the need for using such equipment to reduce the hazards to the employees.

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n6 Webster's Third New International Dictionary 80 (P.B. Gove ed. 1971).

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This interpretation is consistent with the nature and purpose of the Act. The Act is remedial legislation designed to promote the health and safety of working men and women. n7 Standards promulgated pursuant to the Act should be interpreted so as to further this purpose, not detract from it. n8

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n7 The Act, 2(b) (1970).

n8 Brennan v. Southern Contractors Service & O.S.H.R.C., 492 F.2d 498 (5th Cir. 1974); Brennan v. O.S.H.R.C. & Gerosa, Inc. 491 F.2d 1340 (2d Cir. 1974).

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Reading section 1926.28(a) as requiring the use of personal protective equipment only when there is both a hazard and an indication elsewhere that such equipment is required, renders the standard redundant. Interpreted in this manner section 1926.28(a) would require nothing more than the precautions already mandated by other standards. When the language of an occupational safety and health standard fairly supports an interpretation which promotes employee safety, it should not be read as a nullity. n9

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n9 See Brennan v. Southern Contractors Service & O.S.H.R.C., 492 F.2d 498 (5th Cir. 1974).

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The Secretary of Labor has also interpreted the original language of section 1926.28(a) as requiring the use of fall protective [*8] equipment whenever employees are exposed to the danger of falls, regardless of whether they are working at heights greater than 25 feet. n10 Under Brennan v. Southern Contractors Service & O.S.H.R.C. n11 the Secretary's interpretation of the standards which he promulgates is entitled to considerable weight in the courts. This should be no less so in cases before the Commission. It would be arrogant for the Commission to take any other position.

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n10 29 CFR 1926.105(a) requires the use of fall protective equipment at heights above 25 feet. Brennan v. Southern Contractors Service & O.S.H.R.C., 492 F.2d 498 (5th Cir. 1974).

n11 Brennan v. Southern Contractors Service & O.S.H.R.C., 492 F.2d 498 (5th Cir. 1974).

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Contrary to respondent's contention, the amendment to section 1926.28(a) whereby the word "or" was substituted for "and," n12 does not establish that this section, as originally worded, requires the use of personal protective equipment only when there is both a hazard and [*9] an indication elsewhere in the construction standards that such equipment is required. The amendment to section 1926.28(a) was promulgated with a statement to the effect that the change was not substantive. n13 As amended this section clearly requires the use of personal protective equipment in two separate circumstances. n14 Thus, the amendment indicates that section 1926.28(a) as originally worded requires the use of personal protective equipment whenever employees are exposed to a hazard.

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n12 See note 4 supra.

n13 37 Fed. Reg. 27503 (1972).

n14 See note 4 supra. This is because the disjunctive "or" is used. However, regardless of whether "and" or "or" is used in the provision, for the reasons given above we read the section as indicating two separate situations wherein personal protective equipment is required. The words "and" and "or" are frequently misused, and any possible misuse here should not be permitted to detract from the essential intent of the writing.

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We therefore hold that as originally [*10] promulgated 29 CFR 1926.28(a) requires the use of personal protective equipment in two situations:

(1) Whenever employees are exposed to a hazardous condition; as well as (2) when the standards otherwise indicate the need for such requipment.

Respondent also argues that section 1926.28(a), as here interpreted, is unenforceably vague as applied to the facts of this case. In my view, the Commission does not have authority to hold duly promulgated occupational safety and health standards unenforceably vague. Rather, it is the duty of the Commission to construe the standards so as to eliminate any question of ambiguity. Santa Fe Trail Transport Co., No. 331 (December 18, 1973) (Cleary, Commissioner, dissenting) rev'd, No. 74-1049, (10th Cir., February 14, 1974). Cf. Divesco Roofing & Insulation Co., No. 345 (August 13, 1973) (Cleary, Commissioner, concurring).

Assuming, arguendo, that the Commission has authority to rule on this question, section 1926.28(a) as originally worded is not unenforceably vague as applied to the present facts. The language of the standard gave respondent reasonable notice that the use of personal protective equipment was [*11] required whenever employees were exposed to a hazard.

The standard provided that personal protective equipment was to be used "where there is an exposure to hazardous conditions and where this part indicates the need for using such equipment . . ." (emphasis added). Reasonably interpreted this states two separate situations in which the use of personal protective equipment is required, not two prerequisites to the requirement that such equipment be used. If the standard was meant to state two preconditions to the requirement that personal protective equipment be used, the draftsman might have worded it as follows:

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 this part indicates the need for using such equipment . . . (emphasis added).

Contrary to respondent's contention the reference in 29 CFR 1926.105 to 25 feet as the height at which the use of fall protective equipment should begin does not compel the conclusion that section 1926.28(a), as herein interpreted, is unenforceably vague.

That section 1926.105 requires the use of fall protection [*12] equipment only at heights over 25 feet cannot reasonably be viewed as an assurance that the use of such equipment is not required at lesser elevations by another standard.

Nor does the broad language of the requirement that "appropriate personal protective equipment" be used "where there is an exposure to hazardous conditions . . ." render section 1926.28(a) unenforceably vague as applied to the facts of this case. The standard for vagueness in cases such as this was stated by the Fifth Circuit in Ryder Truck Lines, Inc. v. Brennan. n15 That case involved 29 CFR 1910.132(a), the general industry analogue to section 1926.28(a), a broadly worded provision which requires the use of personal protective equipment when necessary to protect employees against hazards of processes or environment. n16 In dealing with the question of vagueness the court wrote:

[W]e think inherent in that standard is an external and objective test, namely, whether or not a reasonable person would recognize a hazard of foot injuries [on the facts of this case]. . . . So long as the mandate affords a reasonable warning of the proscribed conduct in light of common understanding and practices, [*13] it will pass constitutional muster. n17

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n15 Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974).

n16 29 CFR 1910.132(a) provides:

Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

n17 Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974).

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Judged by this standard, the requirement in section 1926.28(a) that personal protective equipment be used "where there is an exposure to hazardous conditions" gives ample warning of what is required in the present situation. To examine the conditions [*14] under which respondent's employees were repositioning the planking is to recognize that they were exposed to the danger of falls. It is equally obvious that safety belts and lanyards were an appropriate means of protection.

Thus, the application of section 1926.28(a) to the present facts is not precluded on the grounds of vagueness. Having reached this conclusion, we now proceed to a determination of whether respondent was in violation of the Act for failure to comply with this standard. Respondent did not assure that its employees use fall protective equipment as required by section 1926.28(a). Its employees were clearly exposed to the danger of falls by respondent's failure to comply with this section.

Respondent contends, however, that the use of safety belts is not required in this situation because using them would be more dangerous than allowing the men to work without fall protective equipment. The Commission has recognized that there are certain novel situations in which the use of prescribed safety equipment would be more dangerous than its non-use. In such situations the Commission has held that the use of safety equipment is not required. n18

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n18 Industrial Steel Erectors, Inc., No. 703 (January 10, 1974).

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In this case, however, it is far from clear that the use of safety belts would be more dangerous than allowing the employees to work without protection. Respondent has not established that the unclipping and reclipping required when employees using safety belts changed direction n19 would actually increase the risk of falls.

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n19 In repositioning the planking, the employees worked on two girders, one running north-south and the other running east-west. At the hearing complainant's safety expert testified concerning how these employees could have been protected against falls. He stated that horizontal lifelines approximately four feet above the floor level should have been run between beams at opposite ends of both girders. Thus there would be a lifeline parallel to each girder. The employees would attach their lanyards to the lifelines. This set-up would require the employees to unclip and reclip each time they changed from a north-south to an east-west direction or vice versa.

[*16]

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Even if respondent is correct in its contention that the unclipping and reclipping involved in the use of safety belts would cause somewhat more falls, these employees would be safer if they used safety belts and lanyards attached to lifelines. An employee who falls six feet n20 to the end of his lanyard may well sustain some injury. It, however, is highly unlikely that he would be killed. The record established that an employee falling 21 feet to a concrete floor is almost certain to die or sustain very serious injuries.

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n20 29 CFR 1926.104(d) provides that lanyards shall be of a length that allows a maximum fall of six feet.

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The facts of this case show a serious violation. "[T]here [was] a substantial probability that death or serious physical harm could result from" n21 a 21 foot fall onto a concrete floor. Respondent also knew of the violation or could have known with the exercise of reasonable diligence. n22 The [*17] record establishes that respondent's employees rarely used fall protective equipment when working on the girders and it is reasonable to infer that management representatives were aware of this long-standing practice.

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n21 The Act, 17(k) (1970).

n22 Id. A violation cannot be serious if the employer did not know of the violation, and could not have discovered it through the exercise of reasonable diligence.

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An examination of the statutory factors to be considered in assessing penalties n23 establishes that the $650 proposed penalty is appropriate. Respondent had an average of approximately 80 employees during the past year, and therefore is a medium-size employer. It has no previous history of violations. There is also some evidence of good faith on the part of respondent. The deceased and his co-worker were at least wearing protective helmets. While these helmets would afford no protection in the case of a fall, their use indicates that respondent had some concern for safety.

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n23 Section 17(j) of the Act provides:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and this history of previous violations.

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The gravity of the violation is high. n24 The record indicates that respondent's employees rarely used fall protective equipment. Thus, the employees working in the air were constantly exposed to the danger of falls. There was a high probability that someone would fall and the precautions taken against injury were minimal. The factors to be considered in assessing a penalty need not be given equal weight, n25 and in light of the gravity of the violation, the proposed penalty of $650 is appropriate.

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n24 The following elements are to be considered in determining the gravity of a violation: (1) number of employees exposed to the hazard; (2) duration of exposure; (3) precautions taken against injury; and (4) degree of probability that an injury would occur. National Realty & Constr., Co., No. 85, rev'd on other grounds, 489 F.2d 1257 (1973).

n25 Nacirema Operating Co., No. 4 (February 7, 1972).

[*19]

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Accordingly, it is ORDERED that the citation and proposed penalty are affirmed.

CONCURBY: VAN NAMEE

CONCUR:

VAN NAMEE, COMMISSIONER, concurring: I concur in the disposition, but I do not join in the lead opinion's stated interpretation of 29 C.F.R. 1926.28(a) nor do I join in the lead opinion's statement that we are without jurisdiction to determine whether a standard is vague. I concur for the reason that the cited standard is not vague and may be cited by itself ( Hoffman Construction Co., No. 644 (Rev. Com'n., 1975), and because on the facts of this case Respondent was in serious violation of the standard as stated in the lead opinion. I also concur that Respondent has not carried the burden of establishing a greater hazard defense.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: Like a religious mystic hearing voices from on high, the author of the lead opinion has heard the real meaning (as distinguished from the merely expressed meaning) of the safety regulation at issue in this case. It adds to the store of lexicographical progress which has emanated from the Commission in the past, i.e., "shall" means [*20] "may," n26 "floor" means "roof" n27 and (or should I say as well as) "Secretary" means "Commission." n28

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n26 Secretary v. Chicago Bridge & Iron Co., (Order of Remand) 14 OSAHRC 361 (1974).

n27 Secretary v. S.D. Mullins Co., Inc., 4 OSAHRC 1415 (1973).

n28 Secretary v. H.K. Porter Co., Inc., 11 OSAHRC 53 (1974).

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The tortuous reasoning employed in the lead opinion does not, of course, represent the opinion of anyone except its author. Consequently, it is not dispositive. Nevertheless, it should not go unchallenged.

The standard at issue is obviously intended as a regulation prescribing both the wearing of personal protective equipment by construction workers and the time when (or the conditions under which) it is necessary for the same to be worn.

Contrary to what a plain reading of the standard would indicate, Mr. Cleary is of the opinion that the standard's two clauses ". . . define two separate situations in which personal protective equipment is required . . . ." Such an interpretation is based [*21] on the conjunctive "and" being read to mean "as well as." He has chosen this interpretation, he says, because "as well as" is one of the meanings listed in Webster's Third New International Dictionary [hereinafter referred to as Webster's] for the word "and" and because he believes that this interpretation is consistent with the nature and purpose of the Act. But, to use his own epistemology, if the standard were to be read to mean "as well as" why did the drafters use "and"? Then, of course, they changed "and" to "or" in a subsequent revision. Why would they go to this trouble if the word could be used as loosely as he claims.

In the preface to Webster's the editors state:

In definitions of words of many meanings the earliest ascertainable meaning is given first. Meanings of later derivation are arranged in the order shown to be most probable by dated evidence and semantic development. Webster's, p. 6a.

Thus it would appear that the oldest and most commonly understood meaning of "and" is that listed first in Webster's: "along with or together with." The meaning chosen by Mr. Cleary is the third listed meaning. n29

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n29 The other five meanings listed under the first definition of "and" in Webster's are:

"b.) added to or linked to; d.) again then again; e.) also at the same time; f.) then; g.) in addition to being; h.) but not less truly."

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Although it would appear that "and," taken in its usual meaning, would mean "along with or together with," he says that the Secretary really meant "as well as." Such a conclusion is unfounded. There is no evidence offered but a reference to how counsel for the Secretary chose to interpret the standard in this particular case. While the Secretary's interpretation of the standards which he promulgates are entitled to considerable weight, Brennan v. Southern Contractors Service & OSAHRC, supra, that weight is less where the interpretation is inconsistent with what the standard plainly says. Here, there is no interpretation by the Secretary. Statements of counsel are not "interpretations."

Using the same tactic employed by Mr. Cleary, I shall substitute the usual meaning of "and," as offered by Webster's, so the standard reads:

The [*23] employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions [along with] or [together with] where this part indicates the need for using such equipment to reduce the hazards to the employees.

Read this way the standard clearly states two elements, both of which must be present to require compliance by an employer: (1) exposure to hazardous conditions along with (2) operations where the construction standards indicate the need for using personal protective equipment to reduce hazards to employees. Both elements must be present to determine compliance. The conjunctive "and" mandates it.

The subsequent amendment changing "and" to "or" may alleviate this particular interpretation problem for the future but, interestingly when Mr. Cleary talks about this point he puts his Webster's aside and chooses to believe that the substitution of the disjunctive "or" for the conjunctive "and" was not a substantive change because the Secretary said it was not. I submit that consistency requires that Webster's meaning of "and" as well as his meaning of "or" be given equal status. [*24] That is not followed here, of course, because a simple reading of the definition of "or" in the oft-quoted Webster's would prove the contrary of what the Secretary and Mr. Cleary would like. n30

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n30 Webster's defines "or" as:

"used as a function to indicate (1) an alternative between different or unlike things, states, or actions; (2) choice between alternative things, states or courses; (3) the synonymous equivalent, or substitutive character of two words or phrases." p. 1585.

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The Cleary construction of this standard does nothing to further the nature and purpose of the Act. Rather, it seeks to conform a standard to the proof offered by complainant in this case; proof of one but not both of the elements of the standard. There is no way that the distorted construction of a standard which (because of the amendment) has since been abandoned by the Secretary can promote the health and safety of working men and women. Quite the contrary is true. The interpretation of words so that they mean something different from [*25] what ordinary people understand them to mean runs counter to the philosophy enunciated recently by the Labor Department's chief occupational safety and health official when he said:

The best way to achieve workplaces free from safety and health hazards is through teamwork, understanding, and the cooperation of all concerned. n31

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n31 Address by John H. Stender, Assistant Secretary of Labor for Occupational Safety and Health before the 62nd Annual National Safety Congress, Chicago, Illinois, October 2, 1974

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Commissioner Cleary also asserts once again the proposition that this commission has no authority to invalidate vague standards. That belief n32 is derived from the following premises (a) that the Occupational Safety and Health Review Commission is an "administrative agency," (b) that administrative agencies do not have the power to pass on constitutional questions and (c) that no provision of law gives this tribunal the jurisdiction to hear questions concerning a standard's validity. None of these premises [*26] can be established.

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n32 Stated in Secretary v. Divesco Roofing and Insulation Co., supra, and Secretary v. Santa Fe Trail Transport Co., Supra.

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Davis, Administrative Law Text, 20.04 at 388 (3rd ed. 1972), is quoted for the proposition that:

. . . we do not commit to administrative agencies the power to determine [the] constitutionality of legislation. (Emphasis added.)

The sentence subsequent thereto gives the reader an insight into the meaning of the term "legislation." It states:

Only the courts have authority to take action which runs counter to the expressed will of the legislative body. (Emphasis added.)

The "expressed will" of Congress in the Occupational Safety and Health Act of 1970 n33 is that the Secretary of Labor has authority to promulgate standards. Sections 6(a), (b) and (c) of the Act. To be in conflict with the above stated rule n34 would require that this Commission consider the constitutional validity of one of the above sections. Declaring a standard vague [*27] that has been promulgated thereunder is not a consideration of the validity of the section itself.

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n33 84 Stat. 1590, 29 U.S.C. 651 et seq., hereinafter referred to as the Act.

n34 Davis cites Public Utilities Commission v. U.S., 355 U.S. 534, 78 S.Ct. 446 (1958), as support for such rule. That case is inapposite to the situation under the Occupational Safety and Health Act. There, a state statute gave the Commission certain express powers to approve or disapprove of reduced shipping rates of the U.S. Justice Douglas stated that the state commission could not be expected to entertain the issue of validity of that power. To do so would mean that they could declare the statutory provision invalid.

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We are requiring, however, that standards promulgated under this Act be in compliance with the "expressed will" of Congress. That will is stated in 3(a):

The term occupational safety and health standard means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, [*28] operations, or processes, reasonably necessary to appropriate to provide safe or healthful employment and places of employment.

To meet these requirements, the substance of a standard must afford reasonable notice, Secretary v. J.A. Walden, Inc., 2 OSAHRC 881 (1973), it must have clear language uncolored by subjective criteria, Secretary v. California Stevedoring Co., 1 OSAHRC 366 (1972), and it must contain sufficient specificity to put an employer on notice, Secretary v. McDowell-Purcell, Inc., 1 OSAHRC 1033 (1972).

It is part of our adjudicatory function n35 to require that the Secretary promulgate standards in compliance with the express will of Congress. Declaring a standard vague is to do nothing more than effectuate that purpose.

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n35 29 U.S.C. 651(3); Secretary v. Wetmore and Parman, Inc., 2 OSAHRC 288 (1973).

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It should be noted that if Mr. Cleary's view that this tribunal cannot apply the Constitution were to prevail, we could never decide any case since we must find every cited employer [*29] to be engaged in a business affecting commerce -- a constitutional question -- before we can reach any substantive issue in the case.

The reference to the rule for the handling of constitutional law questions by "administrative agencies" is not only improperly stated but it is meaningless in the context employed. One cannot assume that this is an administrative agency, especially since it has nothing to administer. The attempt by this tribunal to perform an administrative function (appearing in court to defend its opinions) was flatly rejected in Madden v. Hodgson, 502 F.2d 278 (9th Cir., 1974), with the unequivocal statement that the law "limits the Commission to adjudication."

The standard at issue in this case requires the wearing of "appropriate" personal protective equipment where there is an exposure to "hazardous conditions" along with a need, as indicated in the construction standards, for the use of such equipment. Nowhere is "hazardous conditions" defined. If an employer has no way of determining whether his operation creates a "hazardous condition," how can he determine what personal protective equipment is "appropriate?" The lead opinion quotes Ryder [*30] Truck Lines, Inc. v. Brennan, supra, for the appropriate criteria by which vagueness is measured. The first part of that quote refers to 29 C.F.R. 1910.132(a), a standard which, though admittedly broad, refers to certain kinds of hazards sought to be protected against. n36 However, the second part of that quote is particularly applicable to the standard concerned herein when it says: "So long as the mandate affords a reasonable warning of the proscribed conduct in light of common understanding and practices, it will pass constitutional muster." (Emphasis added.) What in 1926.28(a) is the proscribed conduct? It is exposure to "hazardous conditions" along with a need for the use of "appropriate" personal protective equipment. We come full circle.

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n36 29 C.F.R. 1910.132(a) refers to:

". . . hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact."

There is no mention of a hazard similar to the hazard alleged in this case.

[*31]

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Nor are we aided by the other element of this standard, for Part 1926 does not express a need for personal protective equipment for employees working at heights less than 25 feet.

The standard is unenforceably vague as originally written. Whether or not the amended standard (if properly in effect) is also vague must be determined in a proper case.

The Judge's decision vacating the citation in this case because the cited standard is unenforceably vague was correct. The decision of the Commission overturning that ruling is incorrect.

[The Judge's decision referred to herein follows]

CHALK, JUDGE: On August 11, 1972, a Citation for Serious Violation, accompanied by a Notification of Proposed Penalty in the amount of $650.00, was issued against Respondent as a result of an inspection on July 28, 1972, of its workplace at the Lufthansa Freight Terminal, J.F.K. Airport, New York, N.Y. Respondent filed a Notice of Contest thereto on August 30, 1972. n1

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n1 Respondent did not contest a Citation for four non-serious violations and penalties proposed therefor, issued the same date as the contested serious charge.

[*32]

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The data pertinent to the contested charge are as follows:

Standard allegedly violated -- Description of alleged violation

29 CFR 1926.28(a): 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) n2 -- Failure to require the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions; e.g. repositioning planking 2nd level above ground level (approximately 21'2") employees standing or girder and/or outside gird, not wearing safety belts and lanyards.

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n2 The word "and" was changed to the word "or" in the December 16, 1972, republication of the standard (Fed. Reg. Vol. 37, No. 243).

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The parties stipulated that Respondent was a New York [*33] concern engaged in a business affecting the commerce of the United States by reason of the facts that it utilized supplies shipped from points outside the state and was working on facilities designed for use in both interstate and foreign commerce, that Respondent was of medium size, having an average total of about eighty employees, twenty-five of whom were employed at the worksite in question, that it had control over the work being done and the deceased employee at the time and place in question, and that it had a history of no violations of the Act.

Respondent stipulated to the operable facts in the case. These facts were also established by the testimony of witnesses at the hearing. Thus, substantial evidence of record establishes that on August 27, 1972, at the worksite in question, an employee of Respondent, who was not wearing a safety belt while repositioning temporary flooring planks on the second level above ground, was killed when he lost his footing and fell about twenty-one feet to a concrete floor below. n3

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n3 My ultimate decision renders it unnecessary to set forth the evidence adduced by Respondent tending to show that the use of life belts in this instance would have created greater hazards to the employees involved.

[*34]

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The foregoing facts, according to Respondent, do not establish a violation of the Act, primarily for the reason that safety belts are not required at heights below those in excess of twenty-five feet. Alternatively, Respondent urges that if its first argument is deemed invalid, then the standard in question is so vague and uncertain as to be unenforceable. Finally, Respondent postulates that in the event his first two arguments are not deemed valid, then there is no requirement that safety belts be worn where their use would be impracticable or would create additional hazards. While I do not necessarily subscribe to these arguments in their totality, I agree that the standards involved cannot, as a matter of law, serve as a predicate for the charge in this case.

An administrative regulation, such as a standard promulgated by the Secretary under the Act, where not inconsistent with its enabling statute, has the force of law (see Paul v. United States, 83 S.Ct. 426, 371 US 245, 9 L.Ed.2d 292 (1963); United States v. Mersky et al, 80 S. Ct. 459, 361 US 431 (1960); Public Utilities [*35] of the State of California v. United States, 78 S. Ct. 446, 335 US 534, 2 L.Ed.2d 470 (1958); Rucker v. Wabash Railroad Co., 417 F2d 146 (7th Cir. 1969)). Even though it is not a statute, it has been referred to as a "little law," just as if its provisions had been included in the statute itself (United States v. Mersky et al, supra). Thus, it is said that the statute itself is not complete, since it merely "declares the range of its operation and leaves to its progeny the means to be utilized in the effectuation of its command" (id.).

Administrative regulations are subject to the same rules of construction or interpretation as those applicable to statutes (Rucker v. Wabash Railroad Co., supra). To this end, courts look first to the plain language of the statute or regulation and the legislative purpose behind the enactment (id.). Where such language and objective appear with reasonable clarity, they must not be thwarted by resort to mechanical rules of construction, whose function is not to create doubts but to resolve them when the real issue or statutory purpose is obscure ( United States v. Rice, 66 S.Ct. 835, 327 US 742, 90 L.Ed. [*36] 982 (1946); United States v. State of California, 56 S.Ct. 421, 297 US 175, 80 L.Ed. 567 (1936)). On the other hand, administrative regulations, like statutes, may be attacked on the ground that they are so constitutionally vague as not to convey, with a reasonable degree of certainty, what is or is not required ( United States v. Pope, 189 F.Sup. 12 (DC, S.D.N.Y., 1960); Sentner v. Colarelli, 145 F.Sup. 569 (DC, ED Mo. 1956), affirmed, Barton v. Sentner, and Sentner v. Barton, 77 S.Ct. 1047, 353 US 936, 1 L.Ed. 2d 901 (1957)).

The foregoing broad principles serve as guidelines in resolving the issue in this case.

The standard charged in this case, as reproduced earlier herein, speaks in very broad terms prior to the word "and." I need not, however, reach a determination whether such terms, standing alone, are so constitutionally vague as to be unenforceable, for that which follows the word "and" mandates those concerned to look to other specific standards for amplification. Clearly, the words before and after the conjunctive "and" must be read together, in order to determine what is required of the employer ( Schumann v. Ross, 199 F2d [*37] 219 (7th Cir., 1952); Walling v. Morris, 155 F2d 832 (6th Cir., 1946); George Lawler and Son Co. v. South, 140 F2d 439 (1st Cir., 1944)). Thus, in furtherance thereof, subparagraph (b) of 1926.28 provides:

Regulations governing the use, selection, and maintenance of personal protective and lifesaving equipment are described under Subpart E of this part. (Emphasis added)

Subpart E, in turn, deals separately with head protection (1926.100), hearing protection (1926.101), eye and face protection (1926.102), respiratory protection (1926.103), safety belts, lifelines and lanyards (1926.104), safety nets (1926.105), and life jackets or buoyant vests (1926.106). Accordingly, a charge of violating 1926.28(a) is a proper one, in my view, where the other standard to which the employer's attention is directed appropriately prescribes the circumstances under which the personal protective equipment must be used.

While the foregoing standards relating to head protection, hearing protection, eye and face protection, respiratory protection, safety nets, and life jackets or buoyant vests prescribe the circumstances under which each particular device must be used, [*38] and thus are not open to attack, 1926.104 in its entirety is wholly silent and thus deficient in this regard as to safety belts, lifelines, and lanyards. Accordingly, this standard, failing, as it does, to inform the employer of what he must or must not do, is inadequate and unenforceable on its face. n4 The Citation for Serious Violation must therefore be vacated as a matter of law.

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n4 This conclusion evidences my disagreement with Judge John J. Larkin's opinion in Secretary of Labor v. Industrial Steel Erectors, Incorporated, Docket No. 703, August 30, 1972, wherein he reaches the opposite conclusion. That case is presently under review by the Commission.

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I purposely express no opinion concerning the change in 1926.28(a) of the word "and" to the word "or" (see ftn. 2), for the former word appeared in the standard at all times crucial to these proceedings. n5 Moreover, I find no need to determine the effect on safety belt charges of the following provision of 1925.105 concerning safety nets, because the height [*39] involved in this case was under that specified therein:

(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.

Similarly, references to safety belts appearing in Subpart L, dealing with ladders and scaffolding, are limited to that subpart and thus bear no relationship to the question under consideration (see 29 CFR 1926.451).

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n5 It is noted that the word "or" is interpreted in the conjunctive rather than the disjunctive sense in many instances (see Words and Phrases, Vol. 30, pp. 66-98).

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Upon consideration of the entire record, including Respondent's post-hearing submissions, I reach the following conclusions of law:

That this Commission has jurisdiction over the cause.

That the standard is so constitutionally vague as to be unenforceable in this case.

That Respondent did not violate the Act.

The Citation for Serious [*40] Violation and the penalty proposed therefor are vacated.

It is so ORDERED.