ORVILLE LARKAN, d/b/a LARKAN STEEL ERECTORS

OSHRC Docket No. 15016

Occupational Safety and Health Review Commission

August 29, 1977

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Before: BARNAKO, Chairman; and CLEARY, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Reg. Sol., USDOL

Orville Larkan, Larkan Steel Erectors, for the employer

OPINION:

DECISION

BY THE COMMISSION: This case is before the Commission for review pursuant to 29 U.S.C. 661(i). The issues on review partain to whether Review Commission Judge Jerry W. Mitchell properly held that the respondent had failed to comply with the personal protective equipment standard codified at 29 C.F.R. 1926.28(a). n1 The Judge concluded that the respondent violated that regulation by not requiring two employees to use safety belts while exposed to a serious fall hazard. Those employees were not equipped with any protective devices as they worked about 23 feet above the ground. One was working near the edge of a roof, and the other was stop a steel beam.

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n1 That standard provides:

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.

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The respondent argues that the Judge's decision should be reversed on many different grounds. The essential issues are the following:

(1) Section 1926.28(a) is unenforceably vague.

(2) The failure of respondent's employees to wear safety belts was not a recognized hazard.

(3) The Judge incorrectly concluded that safety belts had not been provided by the respondent.

(4) The use of safety belts was not feasible and would be more hazardous than not using them.

(5) The evidence fails to establish that respondent knew of the violative condition.

(6) The steel erection standards in 29 C.F.R. 1926.750, rather than the cited standard, governed the respondent's activities.

The respondent has contended throughout this proceeding that its employees were required to wear safety belts when confronted by a fall hazard. This policy, albeit ineffective, displays that respondent actually knew that safety belts were required to protect its employees from falling. Consequently, the respondent cannot argue persuasively that the standard is vague. See Sweetman Construction Company, 76 OSAHRC 35/A2, BNA [*3] OSHC 2056, 1975-76 CCH OSHD para. 20,466, (No. 3750, 1976).

The evidence establishes that the exposure to a serious fall hazard was patent. Responable prudence would dictate that protective measures were necessary. Therefore, the respondent's contention that the hazard was not recognized is rejected. See Brennan v. OSHRC and Vy Lactos Laboratories, Inc., 494 F.2d 460, 463-4 (8th Cir. 1974).

Although there was conflicting testimony concerning whether the respondent had furnished safety belts at the worksite, Judge Mitchell concluded that none had been provided. The Commission has no reason in this case to evaluate differently the evidence underlying the Judge's credibility finding. CTM, Inc., 77 OSAHRC 136/C12, 5 BNA OSHC 1578, 1977-78 CCH OSHD para. 21,957 (No. 13008, 1977); Okland Construction Company, 76 OSAHRC 30/F4, 3 BNA OSHC 2023, 1975-76 CCH OSHD para. 20,411 (No. 3395, 1976); Paul L. Heath Contracting Co., 75 OSAHRC 84/B2, 3 BNA OSHC 1550, 1975-76 CCH OSHD para. 20,006 (No. 5467, 1975).

The defense that wearing safety belts was not feasible or would be more hazardous is rejected in light of the testimony of respondent's president. He conceded that [*4] it would have been possible to erect a lifeline to which safety belts could have been attached and that those devices might have made the work safer.

The evidence establishes that respondent's foreman knew that the employees were working without safety belts. The respondent argues, however, that his knowledge should not be imputed because his failure to require safety belts was a deviation from company policy. An employer is only excused from responsibility for the acts of its supervisors if it shows that such acts were contrary to a uniform and effectively enforced work rule. Western Waterproofing Company, Inc., 77 OSAHRC 25/A2, 5 BNA OSHC 1064, 1976-77 CCH OSHD para. 21,572 (No. 9225, 1977). The respondent has failed to establish that it maintained any semblance of a safety program. To the contrary, the record reveals that the respondent's dissemination of safety information and procedures was sporadic and ineffectual.

Finally, the respondent's reliance upon the steel erection standards is misplaced because they apply only to tiered buildings. Since the structure involved in this case was a single story building, those regulations are inapplicable. McKee-Wellman Power [*5] Gas, 77 OSAHRC 133/A2, 5 BNA OSHC 1592, 1977-78 CCH OSHD para. 21,972 (No. 12618, 1977); Deniel Construction Company, 77 OSAHRC 21/A2, 5 BNA OSHC 1005, 1976-77 CCH OSHD para. 21,521 (Nos. 7734 & 7672, 1977).

The Judge's decision is therefore affirmed.