S & H RIGGERS AND ERECTORS, INC.
OSHRC Docket No. 15855
Occupational Safety and Health Review Commission
April 13, 1979
[*1]
Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Bobbye D. Spears, Reg. Sol., USDOL
Ira J. Smotherman, Jr., for the employer
OPINIONBY: COTTINE
OPINION:
DECISION
COTTINE, Commissioner: This case involves the interpretation and application of two of the most commonly cited safety and health regulations for construction - 29 C.F.R. § 1926.28(a) n1 and 29 C.F.R. § 1926.105(a). n2 Administrative Law Judge James D. Burroughs found the Respondent, S & H Riggers and Erectors, Inc. ["S & H"], in serious violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. ["the Act"] for failing to comply with § 1926.28(a), the personal protective equipment standard. Former Commissioner Robert D. Moran directed that the case be reviewed by the Commission under 29 U.S.C. § 661(i), § 12(j) of the Act. n3
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n1 § 1926.28 Personal protective equipment.
(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 or where this part indicates the need for using such equipment to reduce the hazards to the employees.
n2 § 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.
n3 This case was consolidated with Docket No. 15960, involving the same respondent. By order dated August 24, 1977, Docket No. 15960 was severed pursuant to Commission Rule 10, 29 C.F.R. § 2200.10, and the judge's decision was affirmed because the parties had not taken issue with it and because there was no compelling public interest warranting further Commission review.
Although the direction for review in this case did not specify the issues to be reviewed, the Respondent filed a petition for discretionary review and a brief on review with specific exceptions to the judge's decision. On August 23, 1977, the Commission issued an order pursuant to subparagraph D2 of the Commission's Policy Statement of December 1, 1976, 41 Fed. Reg. 53015 (1976), affording the Secretary the opportunity to brief the issues raised by S & H in its petition and brief to the Commission. The Secretary's brief was filed with the Commission on November 4, 1977.
[*2]
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S & H was engaged in the construction of a 4-story precast concrete building when the worksite was inspected by an authorized representative of the Occupational Safety and Health Administration. During the inspection the compliance officer observed four S & H employees standing near the unguarded perimeter of the fourth floor of the structure, 40 feet above ground level. As a result of this inspection, a citation was issued to S & H alleging a serious violation of § 1926.28(a). The citation and the complaint described the alleged violation of § 1926.28(a) by referring to 29 C.F.R. § 1926.104, a standard that sets forth specifications for the use of safety belts, lifelines and lanyards. The violation was described as follows:
Failed to require the wearing of appropriate personal protective equipment as specified in 29 C.F.R. § 1926.104, exposing employees to the hazard of falling from the Fourth floor North Side of building under construction.
The evidence establishes that the four employees were standing on a temporary floor within 4 feet of the unguarded perimeter. They were not wearing personal [*3] protective equipment. It is not entirely clear whether these employees were installing shoring or preparing to install 30-foot long concrete facia panels on the exterior of the building. n4 When installed, the concrete panels span the horizontal distance between the exterior concrete columns. They are set into notches in the columns designed for this purpose. The panels are raised by a crane and guided by two or three employees working on the floor of the building. n5 While held in place by the crane, the panels are welded into permanent position. Perimeter guarding is subsequently installed for the protection of workers engaged in other crafts. Since the facia panels do not extend above the floor levels, they do not themselves provide perimeter protection.
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n4 According to the compliance officer, the Respondent's foreman told him the employees were preparing to install the panels. However, the foreman testified that they were "[p]robably putting up shoring." The compliance officer did not observe the men performing any work other than lowering a basket by means of a crane. The compliance officer testified that the basket "looked like it was being used to either take up, or bring down some oxygen bottle."
n5 The fourth floor of the building, on which the employees were standing, consisted of a prestress deck, called tees. Double tees form the deck for concrete buildings. The surface of the tees is retained in a rough state so that the floor slab will bond to it.
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The Secretary did not put forth any evidence on the appropriate form of personal protective equipment in this case. The testimony of the compliance officer establishes only that no form of fall protection was being used. However, both the citation and complaint referred to § 1926.104, the safety belt specification standard. In addition, the testimony of S & H's witnesses concerned the use of safety belts. The Respondent's two co-owners and two of its employees testified that belts and lanyards were never used by employees while installing concrete facia panels. They testified that safety belts and lanyards would inhibit necessary movement and create a hazard by preventing employees from moving away from swinging panels, and that the lanyards would snag and tear on the rough surface of the tees. It was established that the only structure to which employees could attach their lanyards would be the closest interior column, 30 feet from the perimeter of the building.
Judge Burroughs found that the employees were exposed to a hazardous condition and that a safety line could have been attached at a [*5] point 30 feet in the interior of the building. He rejected S & H's "impossibility" and "greater hazard" arguments, and affirmed the § 1926.28(a) charge. Judge Burroughs did not rule on the Respondent's argument that § 1926.28(a) is inapplicable because § 1926.105(a) is the more specifically applicable standard. n6
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n6 In its answer, S & H asserted that 29 C.F.R. § 1926.28(a) is inapplicable to the cited conditions before us. S & H expanded upon its applicability argument in its brief to the judge and on review. The Secretary did not address this issue in his brief to the Commission even though he was afforded the opportunity to do so. See note 3, supra.
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I. Applicability of § 1926.105(a).
Section 1926.105(a) requires that safety nets be provided where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines or safety belts is impractical. The application of the standard is conditional. The standard contemplates resort to the use of safety nets when (1) workplaces are more than 25 feet [*6] above the ground and (2) one of the preferred means of protection cannot be used. n7 This standard is not more specifically applicable than a standard requiring the use of one of the other enumerated safety devices in the first instance even when the height requirement has been satisfied. n8 To hold otherwise would be to ignore the fall protection priorities contained in § 1926.105(a).
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n7 It should be noted that when employees are exposed to fall hazards in excess of 25 feet and none of the enumerated safety devices are used, a prima facie violation of § 1926.105(a) is established. Southern Colorado Prestress Company, 586 F.2d 1342, 1350 (10th Cir. 1978); Brennan v. Southern Contractors Service, 492 F.2d 498 (5th Cir. 1974); Sierra Construction Corp., 78 OSAHRC 2/E6, 6 BNA OSHC 1278, 78 CCH OSHD P 22,506 (No. 13638, 1978).
n8 S & H refers to 29 C.F.R. § 1910.5(c)(1), which provides that a specific standard shall prevail over a different general standard when both are applicable to the same condition, practice, means, method, operation, or process.
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S & H argues that it satisfied the requirements of § 1926.105(a) by providing a temporary floor as a working surface for its employees. S & H refers to prior Commission and courts of appeals decisions holding that a temporary or permanent floor from which employees are working is one of the safety devices contemplated by § 1926.105(a), and that a violation of that standard cannot be found if employees are working from this type of surface. Brennan v. OSHRC & Ron M. Fiegen, Inc., 513 F.2d 713 (8th Cir. 1975); Brennan v. OSHRC & J. W. Bounds, 488 F.2d 337 (5th Cir. 1973); Robert W. Setterlin & Sons Co., 76 OSAHRC 53/D8, 4 BNA OSHC 1214, 1975-76 CCH OSHD P20,682 (No. 7377, 1976). We conclude that this interpretation misreads the requirements of the standard and is not consonant with the purposes of the Act. If the unguarded perimeter of a temporary floor itself gives rise to a fall hazard, it would be anomalous to conclude that the temporary floor constitutes an adequate method of fall protection. See also Marshall v. Southwestern Industrial Contractors and Riggers, Inc., 576 F.2d 42 (5th Cir. 1978). Furthermore, [*8] the construction safety standards at 29 C.F.R. Part 1926 clearly require perimeter guarding for open-sided floors, whether temporary or permanent, to protect employees from fall hazards. 29 C.F.R. § 1926.500(d)(1). n9
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n9 If the temporary floor that was used as a working surface in this case had been provided with standard guardrails, employees would not have been exposed to a fall hazard requiring additional fall protection measures. Apparently perimeter guarding was not used in this case because of the work processes involved.
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S & H argues that § 1926.105(a) is more specifically applicable because the regulation is found under Subpart E of 29 C.F.R. Part 1926, entitled "Personal Protective and Life Saving Equipment", whereas § 1926.28(a) is found under Subpart C of the same Part, entitled "General Safety and Health Provisions." S & H would have us rely on the term "general" in Subpart C to conclude that the standard cited is more general and, therefore, less specifically applicable to the cited conditions before [*9] us than the standard published under Subpart E.
Reliance on a subpart heading to determine the scope and application of a standard found within the subpart is inappropriate. It is a basic principle of statutory construction that titles and headings, which are simply tools of reference, cannot be used to limit or alter the meaning of the text contained in statutes and regulations. See Brotherhood of Railroad Trainmen v. Baltimore & Ohio Railroad, 331 U.S. 519, 529 (1947); Wray Electric Contracting, Inc., 78 OSAHRC 78/A2, 6 BNA OSHC 1981, 1978 CCH OSHD P23,031, (No. 76-119, 1978), appeal filed, No. 3597 (6th Cir., Nov. 6, 1978). Our interpretation of the standards in issue is rendered independent of the headings of Subparts C and E.
Under the factual circumstances of this case, we conclude that § 1926.105(a) is not more specifically applicable than § 1926. 28(a). Therefore, we proceed to consider whether the record establishes a violation of the cited standard.
II. Interpretation and Application of § 1926.28(a).
Prior Commission decisions dealing with § 1926.28(a) failed to, arrive at a majority position with respect to the interpretation of the standard. n10 [*10] A clear statement of the employer's duty under § 1926.28(a) is essential.
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n10 E.g., B & B Insulation, Inc., 77 OSAHRC 49/A2, 5 BNA OSHC 1265, 1977-78 CCH OSHD P21,747 (No. 9985, 1977), rev'd, 583 F.2d 1364 (5th Cir. 1978); Frank Briscoe Co., 76 OSAHRC 129/A2, 4 BNA OSHC 1729, 1976-77 CCH OSHD P21-162 (No. 7792, 1976).
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In B & B Insulation, Inc., 77 OSAHRC 49/A2, 5 BNA OSHC 1265, 1977-78 CCH OSHD P21,747 (No. 9985, 1977), rev'd, 583 F.2d 1364 (5th Cir. 1978), the Commission majority rejected the contention that § 1926.28(a) is unenforceably vague. Commissioner Barnako, writing the lead opinion in that case, indicated that the standard's applicability should be limited to those situations in which industry custom or practice, or other extrinsic criteria, indicate the need for using personal protective equipment. Commissioner Barnako mandated satisfaction of a two-prong test before personal protective equipment is required under § 1926.28(a). Under that test, there must be (1) exposure to a [*11] hazardous condition, and (2) another referrable standard in Part 1926 indicating a need for the use of personal protective equipment. Chairman Cleary filed a separate opinion in B & B Insulation, concurring with the disposition but reaffirming his position that the two clauses in the standard describe separate situations where the use of personal protective equipment is required. He also rejected the view that the applicability of § 1926.28(a) depends on industry custom and practice. Former Commissioner Moran dissented for the reasons set forth in his dissenting opinion in Island Steel and Welding, Ltd., 75 OSAHRC 51/A2, 3 BNA OSHC 1101, 1974-75 CCH OSHD P19,545 (No. 2931, 1975).
We do not subscribe to an interpretation of § 1926.28(a) that would require satisfaction of both preconditions in the standard before personal protective equipment is required. The two clauses of the standard are joined by the disjunctive "or." Use of a disjunctive normally "indicates alternatives and requires separate treatment unless such a construction renders the provision repugnant to the Act." George Hyman Construction Co. v. OSHRC, 582 F.2d 834, 840 n. 10 (4th Cir. 1978). In order [*12] to invoke the personal protective equipment requirement of § 1926.28(a), one, but not both, of the two above-noted preconditions must be met.
This interpretation is consistent with prior Commission decisions upholding the validity of § 1926.28(a). Sweetman Construction Co., 76 OSAHRC 35/A2, 3 BNA OSHC 2056, 1975-76 CCH OSHD P20,466 (No. 3570, 1976); Isseks Brothers, Inc., 76 OSAHRC 8/B9, 3 BNA OSHC 1964, 1975-76 CCH OSHD P20,361 (No. 6415, 1976); Island Steel & Welding, Ltd., supra: Eichleay Corp., 75 OSAHRC 35/B6, 2 BNA OSHC 1635, 1974-75 CCH OSHD P19,324 (No. 2610, 1975), Carpenter Rigging & Contracting Corp., 75 OSAHRC 32/D13, 2 BNA OSHC 1544, 1974-75 CCH OSHD P19,252 (No. 1399, 1974). Section 1926.28(a) was an established federal standard, originally promulgated under the Contract Work Hours and Safety Standards Act, 40 U.S.C. § 333, and adopted by the Secretary of Labor as an occupational safety and health standard under section 6(a) of the Act, 29 U.S.C. § 655(a), 36 Fed. Reg. 10469 (May 29, 1971). The standard was amended and republished in its current form by the Secretary at 37 Fed. Reg. 27510 (Dec. 16, 1972). As originally promulgated and adopted, [*13] the standard required the use of personal protective equipment where employees were exposed to hazardous conditions and where "this part indicates the need for using such equipment. . . ." In its republished form, the word "or" replaces the word "and." We have consistently held that the change was not substantive in nature, Isseks Brothers, Inc., supra; Island Steel & Welding, Ltd., supra; Eichleay Corp., supra, relying on the interpretation of the original standard as set forth in Carpenter Rigging & Contracting Corp., supra. In Carpenter Rigging we held that the two clauses of the standard defined two separate situations in which personal protective equipment was required. The change from "and" to "or" did not constitute a substantive amendment to the standard because the amended standard has the same meaning as the original standard. Island Steel & Welding Ltd., supra.
The crucial question in determining whether a hazardous condition exists within the meaning of § 1926.28(a) is whether a reasonable person familiar with the factual circumstances surrounding the allegedly hazardous condition, including any facts unique to a particular [*14] industry, would recognize a hazard warranting the use of personal protective equipment. n11 See Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974); Roadway Express, Inc., 77 OSAHRC 189/C9, 5 BNA OSHC 2039, 1977-78 CCH OSHD P22,278 (No. 76-1108, 1977). Although industry custom and practice are useful points of reference with respect to whether a reasonable person familiar with the circumstances would recognize a hazard requiring the use of personal protective equipment, they are not controlling.
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n11 It is a basic principle of due process that laws must provide reasonable and intelligible standards to guide the conduct of affected individuals and to prevent arbitrary and discriminatory enforcement by those who apply them. In order to satisfy this due process requirement, laws must be sufficiently clear to give persons of ordinary intelligence a reasonable opportunity to know what is prohibited or demanded so that he or she may act accordingly. Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). The "reasonable person" test meets this due process requirement.
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In contending that the Judge erred by ruling that the evidence established the existence of a hazardous condition requiring the use of personal protective equipment, the Respondent relies on Cape & Vineyard Division of the New Bedford Gas and Edison Light Co. v. OSHRC, 512 F.2d 1148, 1152 (1st Cir. 1975). S & H argues that the appropriate test, when dealing with a broadly worded standard, is whether a reasonably prudent man familiar with the circumstances of the industry would have protected against the hazard. However, the Cape & Vineyard court acknowledged that industry practice is not conclusive. 512 F.2d at 1152. The failure of industry to deal adequately with abatable hazards does not excuse an employer's failure to exercise that degree of care which the law requires. Compliance may require methods of employee protection of a higher standard than industry practice. Continental Oil Company, 78 OSAHRC 63/E1, 6 BNA OSHC 1814, 1978 CCH OSHD P22,903 (No. 1829, 1978), remanded without opinion, No. 75-1961 (6th Cir. Oct. 17, 1977); B & B Insulation, Inc., supra (concurring [*16] opinion); Southern Railway Co., 75 OSAHRC 88/C2, 3 BNA OSHC 1657, 1975-76 CCH OSHD P20,091 (No. 5960, 1975), appeal withdrawn, No. 75-2493 (6th Cir. June 4, 1976).
In its recently issued decision in B & B Insulation, Inc. v. OSHRC, 583 F.2d 1364 (5th Cir. 1978), the U.S. Court of Appeals for the Fifth Circuit rejected the Commission's interpretation of § 1926.28(a), relying on Cape & Vineyard, supra, to conclude that the Commission erred in disregarding industry custom in its application of the reasonable man theory. However, as noted above, the Cape & Vineyard court acknowledged that industry custom is not conclusive on this issue.
Occupational safety and health standards must be interpreted not only in light of existing industry practice, but also in light of the Act's express Congressional purpose of providing a safe and healthful workplace. See Southern Railway Co. v. OSHRC, 539 F.2d 335, 338 (4th Cir. 1976); Brennan v. OSHRC & Gerosa, Inc., 491 F.2d 1340, 1343 (2d Cir. 1974). The Occupational Safety & Health Act of 1970 was enacted "in response to an appalling record of death and disability in our industrial environment," Southern [*17] Railway Co. v. OSHRC, supra. n12 It was intended to promote and improve employee safety beyond the existing levels of injuries and illnesses that were found to impose a substantial burden on interstate commerce. 29 U.S.C. § 651. n13 The Act was designed
to reduce "work-related injuries and illnesses," which cause "ever-increasing human misery and economic loss." S.Rep. No. 91-1282, 91st Cong., 2d Sess. (1970) . . .
Brennan v. OSHRC & Gerosa, Inc., supra at 1342. It was never intended to merely maintain the status quo. See Society of the Plastics Industry, Inc. v. OSHA, 509 F.2d 1301 (2d Cir. 1975), cert. denied, 421 U.S. 992 (1975).
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n12 The annual death and injury receve Congress confronted were truly appalling. For the years 1966-70, industrial accidents resulted in 14,500 deaths and 2.2 million disabilities annually. Lost wages amounted to $1.5 billion annually for lost workdays and the annual loss to the Gross National Product exceeded $8 billion. H.R. Rep. No. 91-1291, 91st. Cong., 2d Sess. (1970), reprinted in Legislative History of the Occupational Safety and Health Act of 1970, 831, 844 (1971). See Brennan v. OSHRC & Underhill Const. Corp., 513 F.2d 1032, 1038 (2d Cir. 1975); Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255, 1259 (4th Cir. 1974); Brennan v. OSHRC & Gerosa, Inc., supra. In addition, the court in Brennan v. OSHRC & Underhill Const. Corp., supra, cites to a 1974 survey of the Bureau of Labor Statistics (BLS) indicating that the construction industry had the highest injury rate of any major category of employment surveyed and that the years 1972 through 1973 showed an increase in injury rates for the contract construction industry of 4.2 percent. 513 F.2d at 1038-39. A more recent BLS survey reports that during 1977, job-related injuries and illnesses increased 5 percent over 1976, rising from 5.16 million to 5.46 million. Construction was among those industry categories registering increases in total injury rates, with mining and construction recording the highest lost workdays rates. U.S. Department of Labor, BLS Reports on Occupational Injuries and Illnesses for 1977, USDL Release No. 78-951 (Nov. 21, 1978).
n13 Sec. (2) The Congress finds that personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments.
(b) The Congress declares it to be its purpose and policy, . . . to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources --
(1) by encouraging employers and employees in their efforts to reduce the number of occupational safety and health hazards at their places of employment, and to stimulate employers and employees to institute new and to perfect existing programs for providing safe and healthful working conditions;
* * *
(4) by building upon advances already made through employer and employee initiative for providing safe and healthful working conditions;
(5) by providing for research in the field of occupational safety and health, including the psychological factors involved, and by developing innovative methods, techniques, and approaches for dealing with occupational safety and health problems;
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Under the circumstances, we cannot base the resolution of the issue before us solely on a determination of whether the cited employer's conduct fell below existing industry practice. Certainly, industry custom and practice are important reference points in determining whether a reasonable person familiar with the facts unique to a particular industry would recognize a hazard necessitating the use of personal protective equipment. However, custom and practice are not controlling. It is on this point that we differ with the Fifth Circuit's interpretation of § 1926.28(a) set forth in B & B Insulation, and recently relied on in Power Plant Division v. OSHRC, No. 77-2967 (5th Cir. March 9, 1979).
The Commission has consistently held that § 1926.28(a) is valid and enforceable. Nevertheless, this decision represents the first interpretation of § 1926.28(a) subscribed to by a majority of the Commission. The Fifth Circuit specifically referred to the fact that the Commission decision in B & B Insulation consisted of three separate opinions, thereby arguably giving some credence to the employer's [*19] vagueness attack on the standard. We adhere to the view that the cited standard provides adequate notice as to its requirements. Moreover, the majority interpretation set forth today should resolve any perceived ambiguities regarding an employer's duty of compliance. n14
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n14 "[A]uthoritative judicial or administrative interpretations which clarify obscurities or resolve ambiguities" may cure arguably vague regulations. See Diebold, Inc. v. Marshall & OSHRC, 585 F.2d 1327, 1338 (6th Cir. 1978).
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Congress established the Occupational Safety and Health Review Commission in an effort to achieve uniformity in adjudications involving national occupational safety and health policy. 29 U.S.C. § 651(b)(3); See Keystone Roofing Co., Inc. v. OSHRC, 539 F.2d 960, 963, 964 (3d Cir. 1976); Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255, 1262 (4th Cir. 1974). In fulfilling this statutory purpose, the Commission, like the National Labor Relations Board, n15 adheres to the principle that an administrative [*20] agency charged with the duty of formulating uniform and orderly national policy in adjudications is not bound to acquiesce in the views of U.S. courts of appeals that conflict with those of the agency. See Monroe & Sons, Inc., 77 OSAHRC 14/B7, 4 BNA OSHC 2016, 1976-77 CCH OSHD P21,470 (No. 6031, 1977), appeal filed, No. 77-3157 (6th Cir. March 16, 1977); Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD P20,691 (No. 12775, 1976). Naturally, the Commission gives due deference to the views of the circuits, but unless reversed by the U.S. Supreme Court the Commission is obligated to establish its own precedent in carrying out its adjudicatory functions under the Act. Thus, the Commission must independently decide the issues presented by this case. n16
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n15 E.g., Ford Motor Co., 230 NLRB No. 101, 95 LRRM 1397 (1977), enforced, 571 F.2d 993 (7th Cir. 1978), cert. granted on other grounds, 47 USLW 3239 (U.S. Oct. 10, 1978) (No. 77-1806) (Board states, "With all due respect to the First, Fourth, and Seventh Circuits, we adhere to our position . . . .," 95 LRRM at 1399); Iowa Beef Packers, Inc., 144 NLRB 615, 54 LRRM 1109 (1963); Insurance Agents' International Union, AFL-CIO, 119 NLRB 768, 41 LRRM 1176 (1957), set aside on other grounds, 260 F.2d 736 (D.C. Cir. 1958), aff'd, 361 U.S. 477 (1960).
n16 In National Labor Relations Board v. Insurance Agents' International Union, 361 U.S. 477 (1960), the Court recognized "without hesitation" that, subject to limited judicial review, Congress had committed to the National Labor Relations Board ("Board") the responsibility of balancing the conflicting interests involved in formulating national labor policy. 361 U.S. at 499. See also National Labor Relations Board v. Truck Drivers Union, 353 U.S. 87, 96 (1957); Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 194 (1941). In Insurance Agents' International Union the Court affirmed the action of the U.S. Court of Appeals for the District of Columbia Circuit in setting aside the Board's cease-and-desist order. However, the Court did not disapprove of the Board's failure in that case to follow the previously stated substantive views of the D.C. Circuit. Deciding the case on the merits, the Court determined that in entering its order the Board had intruded into an area of collective bargaining that had not been committed to it by Congress. Had the Board confined itself to what the Court considered an appropriate area for administrative regulation, the Court would not "question in any way the Board's powers to determine the . . . question" before it. 361 U.S. at 498.
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Having carefully considered the holding of the Fifth Circuit and its supporting rationale in light of the Commission's important adjudicatory function under the Act, we respectfully decline to follow B & B Insulation, Inc. v. OSHRC, supra.
We conclude that a reasonable person familiar with the factual circumstances of the alleged hazard would recognize the presence of a fall hazard requiring the use of personal protective equipment when employees stand within 4 feet of an unguarded building perimeter, 40 feet above ground level.
Our examination of prior decisions interpreting § 1926.28(a) (see note 10 supra), as well as the cases applying those interpretations, n17 also leads us to the conclusion that the respective burdens of the parties when litigating cases arising under the standard must be reassigned. In Frank Briscoe Co., Inc., 76 OSAHRC 129/A2, 4 BNA OSHC 1729, 1976-77 CCH OSHD P21,162 (No. 7792, 1976), a divided Commission held that in order to establish noncompliance with § 1926.28(a) the Secretary is required to set forth the specific measures that an employer must undertake [*22] to avoid citation and establish the feasibility and likely utility of these measures. n18 In assigning this burden to the Secretary, the Commission majority employed a line of reasoning previously reserved for analysis of cases arising under the general duty clause of the Act, 29 U.S.C. § 654(a)(1). n19 See National Realty & Construction Company v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973). n20 We consider the extension of the § 5(a)(1) analysis to cases arising under a specific duty standard to be inappropriate. Unlike the general duty clause, the cited standard in this case specifies the employer conduct required to avoid citation. Section 1926.28(a) clearly indicates that "[t]he employer is responsible for requiring the use of personal protective equipment. . . ." The employer's duty is specific, arising under section 5(a)(2) of the Act, 29 U.S.C. § 654(a)(2). Otis Elevator Company v. OSHRC, 581 F.2d 1056 (2d Cir. 1978). The considerations that the court dealt with in National Realty are inapposite. n21
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n17 E.g., Valley Roofing Corp. and J.B. Eurell Co., 78 OSAHRC 27/C14, 6 BNA OSHC 1513, 78 CCH OSHD P22,633 (Nos. 15800 & 15945, 1978); Lehr Construction Co., 78 OSAHRC 12/B4, 6 BNA OSHC 1352, 1977-78 CCH OSHD P22,542 (No. 7240, 1978); M.K. Binkley Construction Co., 77 OSAHRC 79/F7, 5 BNA OSHC 1411, 1977-78 CCH OSHD P21,823 (No. 12876, 1977).
n18 S & H argues that the Secretary failed to establish the feasibility and likely utility of safety belts as a means of personal protection in this case.
n19 Section 5 of the Act, 29 U.S.C. § 654, describes the duties of employers as follows:
Section 5. (a) Each employer --
(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;
(2) shall comply with occupational safety and health standards promulgated under this Act.
n20 The Frank Briscoe burden of proof as to feasibility and utility was assigned by the majority to the Secretary because it agreed with the National Realty court that Congress intended only to impose achievable duties on employers. We do not dispute the court's interpretation. However, we disagree with the extension of that interpretation in Frank Briscoe that place the burden as to achievability with the Secretary. The Act is designed to protect employees from preventable workplace hazards. It is not intended to make employers insurers of safety or to hold employers to a standard of strict liability. As will be discussed later in this opinion in relation to the Respondent's affirmative defenses, the Commission has recognized that there are occasions when hazards cannot be completely eliminated from the workplace. However, the burden of providing unpreventability necessarily rests with the employer. It is the employer who has the greater knowledge of its workplace and work practices. The employer is best able to assess those factors which enable it to improve the safety and health of its employees and those factors which actually hinder its attempts. Furthermore, Congress clearly imposed the duty of achieving maximum safety in the workplace on the employer. Atlantic & Gulf Stevedores, Inc., 75 OSAHRC 47/A2, 3 BNA OSHC 1003, 1010-1011, 1974-75 CCH OSHD P19,526, at p. 23,304 (Nos. 2818, et al., 1975), aff'd, 534 F.2d 541 (3d Cir. 1976). It is, therefore, properly the burden of the employer to show why this objective cannot be achieved at a particular worksite.
n21 The § 5(a)(1) charge in National Realty alleged that an employee was permitted to ride the running board of a front end loader while the loader was in operation. The employee involved in that case was fatally injured when the loader went out of control and rolled over on him. The evidence indicated that equipment riding by employees was contrary to company policy. Faced with an employee's apparent failure to comply with his employer's safety policy, the court concluded that the record failed to demonstrate what more National Realty should have done to improve its safety policy, as well as the feasibility and likely utility of these additional efforts. The court vacated the Commission's finding of a violation. In this case S & H admittedly did not require that its employees use any protective equipment. Accordingly, there is no issue of employee compliance with company policy.
[*23]
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Nonetheless, the standard in this case is written in broad terms. Therefore, it is appropriate to place upon the Secretary the burden of establishing employee exposure to a hazardous condition requiring the use of personal protective equipment n22 and identifying the appropriate form of personal protective equipment to eliminate the hazard. To the extent that prior Commission decisions have broadened that burden and require the Secretary to also affirmatively establish the feasibility and likely utility of the recommended form of personal protective equipment, they are overruled.
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n22 Because of the broadly worded nature of this standard, the Secretary's burden is greater than it is with respect to standards that presuppose the existence of specific hazards when the requirements of the standard are not met. See Greyhound Lines-West v. Marshall, 575 F.2d 759, 762 (9th Cir. 1978); Vecco Concrete Construction, Inc., 77 OSAHRC 183/A2, 5 BNA OSHC 1960, 1977-78 CCH OSHD P22,247 (No. 15579, 1977).
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The Secretary sustained his burden of proof in this case. The record establishes employee exposure to an obvious fall hazard, thereby requiring personal protective equipment to be used. The reference to § 1926.104(a) in the citation and complaint clearly indicates that the use of safety belts and lines was the appropriate method of protection. We acknowledge S & H's unrebutted evidence that the practice in the precast concrete construction industry does not require the use of this equipment. Nevertheless, industry cannot be permitted to set its own standards for protecting employees when those standards fail to adequately protect employees exposed to safety and health hazards recognized by the reasonable person familiar with the facts. Cape and Vineyard Division, supra; Continental Oil Company, supra; Southern Railway Co., supra.
III. Affirmative Defenses.
S & H defends on the basis that compliance with the cited standard would be impossible and would create a greater hazard for its employees. It argues that the use of personal protective equipment was "highly impractical" due to the [*25] rough surface of the tees and because the only point of attachment was 30 feet in the interior of the building.
Judge Burroughs rejected S & H's arguments, ruling that (1) the photographic exhibit introduced into evidence by S & H "shows no rough spots large enough to present any hazard to the use of a safety line," and (2) "a safety line attached to the interior of the building would afford employees fiexibility of movement and still protect them from an accidental fall. . . ."
S & H asserts that the rough surface of the tees would catch the lines to which safety belts would be attached. The Secretary maintains that this assertion is not sufficient to meet the burden of proving impossibility of compliance. He also points to testimony of S & H witnesses who acknowledged that employees could have been tied off to a lifeline in the building interior.
The Commission has recognized that there are limited circumstances in which compliance with the exact terms of a standard may be impossible. We have consistently held, however, that a showing of impracticability or inconvenience is not enough. General Steel Fabricators, Inc., 77 OSAHRC 166/E14, 5 BNA OSHC 1768, 1977-78 CCH OSHD [*26] P 22,104 (No. 13646, 1977); Taylor Building Associates, 77 OSAHRC 27/A10, 5 BNA OSHC 1083, 1977-78 CCH OSHD P21,592 (No. 3735, 1977); K & T Steel Corp. 76 OSAHRC 31/A2, 3 BNA OSHC 2026, 1975-76 CCH OSHD P20,445 (No. 5769, 1976); Sheet Metal Specialty Co., 75 OSAHRC 51/F1, 3 BNA OSHC 1104, 1974-75 CCH OSHD P19,546 (No. 5022, 1975). Furthermore, in order to sustain its affirmative defense, an employer must not only establish that compliance with the requirements of the cited standard was functionally impossible, it must demonstrate that alternative means of employee protection were unavailable. Julius Nasso Concrete Corp., S & A Concrete Co., Inc., A Joint Venture, 77 OSAHRC 208/F2, 6 BNA OSHC 1171, 1977-78 CCH OSHD P22,401 (No. 16012, 1977). S & H has not indicated why alternative means of protection could not have been used. n23 We agree with the Secretary that the affirmative defense has not been established.
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n23 In its brief, the Secretary suggested several alternative methods for attaching personal protective equipment: an overhead lifeline, a retractable lanyard or a line tender.
[*27]
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S & H's greater hazard argument is premised on the alleged inability of its employees to avoid being struck by swinging panels because their movement would be hindered by the attached safety lines. The Secretary argues that, contrary to S & H's assertions, the use of safety belts and lanyards tied off at the interior of the building does not increase the hazard presented by swinging facia panels. He also refers to the judge's finding, with which we agree, that the floor surface was not sufficiently rough to cause the lines to snag and thereby immobilize employees.
Noncompliance with the terms of specific standards has been excused where an employer has shown that compliance would diminish rather than enhance the safety of its employees. However, we have indicated that the scope of this defense is narrow. National Steel & Shipbuilding Co., 78 OSAHRC 48/A2, 6 BNA OSHC 1680, 1978 CCH OSHD P22,808 (Nos. 11011 & 11769, 1978) appeal filed, No. 78-2695 (9th Cir. Aug. 3, 1978). In order to establish its affirmative defense the employer is required to demonstrate that alternative means of protection [*28] are not available and that resort to the variance procedures of section 6(b)(6) of the Act, 29 U.S.C. § 655(b)(6), is inappropriate. n24 Russ Kaller, Inc., T/A Surfa Shield, 76 OSAHRC 130/F10, 4 BNA OSHC 1758, 1976-77 CCH OSHD P21,152 (No. 11171, 1976). n25
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n24 S & H's impossibility and greater hazard arguments focus on the difficulties of compliance it encounters when engaged in the type of precast concrete construction involved in this case. Inasmuch as this involves a standard construction technique, it is likely that a variance would have widespread application for this employer and would provide more relief than it might for more transitory construction activities. Taylor Building Associates, supra at n. 7.
n25 Accord, General Electric Co. v. Secretary of Labor, 576 F.2d 558 (3d Cir. 1978).
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In this case S & H has failed to meet even the minimum burden of proving that compliance would have been more hazardous than noncompliance. First, when observed by the CO at the time of inspection, [*29] the unprotected employees were not landing panels. Second, Judge Burroughs concluded, and we agree, that "[a] safety line attached in the interior of the building would afford flexibility of movement and still protect them from an accidental fall over the edge of the floor." Testimony established that the panels could swing as much as 8 feet into the building interior when being raised. If employees used the interior column as a point of attachment they would have sufficient slack on their lanyards to avoid the panels. n26
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n26 The Commission rejected the employer's greater hazard defense in Blakeslee-Midwest Prestressed Concrete Co., 77 OSAHRC 191/A2, 5 BNA OSHC 2036, 1977-78 CCH OSHD P22,284 (No. 76-2552, 1977), agreeing with the judge's conclusion that the record failed to indicate that swinging panels would penetrate the floor area to a point beyond the lanyard radius.
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IV. Appropriate Relief.
Judge Burroughs found that the Respondent's employees were exposed to a potential fall of 40 feet, and that a fall [*30] from this height presented a substantial probability that death or serious injury could result. Accordingly, he concluded that the violation was serious within the meaning of section 17(k) of the Act, 29 U.S.C. § 666(j). n27 The penalty was set at $300, based on the penalty assessment criteria set forth in section 17(j) of the Act, 29 U.S.C. § 666(i). n28 We find the assessed penalty to be appropriate.
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n27 Section 17(k) defines a serious violation in the following terms:
(k) For the 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 condition 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.
n28 Section 17(j) authorizes the Commission to assess all civil penalties, giving due consideration to the size of the employer's business, the gravity of the violation, the employer's good faith, and its history of prior violations.
[*31]
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Accordingly, the disposition of the Administrative Law Judge is AFFIRMED. It is so ORDERED.
CONCURBY: BARNAKO
CONCUR:
BARNAKO, Commissioner, Concurring:
I agree that Respondent violated 29 C.F.R. § 1926.28(a) and that a penalty of $300 is appropriate. My interpretation of the standard, however, substantially differs from that of my colleagues, and I therefore think it necessary to set forth my separate views. n1
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n1 As a threshhold matter, I agree with the majority that 1926.105(a) is not more specific with respect to safety belts than § 1926.28(a). Crawford Steel Construction Co., 76 OSAHRC 143/A2, 4 BNA OSHC 1891, 1976-77 CCH OSHD P21,338 (No. 9622, 1976). I do not, however, agree that headings can be ignored in determining the scope and application of standards contained within the headings. Wray Electric Contracting Co., 78 OSAHRC 78/A2, 6 BNA OSHC 1981, 1978 CCH OSHD P23,031 (No. 76-119, 1978) (dissenting opinion), pet. for review filed, No. 78-3597 (6th Cir. Nov. 6, 1978). In this case, however, the subpart headings on which Respondent relies are uninformative on the question of which standard is more specifically applicable.
[*32]
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The majority concludes that, because the standard uses the disjunctive "or," it must be read as establishing two independent situations requiring the use of appropriate personal protective equipment: either "an exposure to hazardous conditions," or "where this part indicates the need for using such equipment to reduce the hazards to the employees." Although recognizing that the word "or" was added to the standard in place of "and" in an earlier version of the standard without resort to rulemaking proceedings, the majority concludes that the amendment was permissible because it was not substantive; it was not, in their view, substantive because the "and" in the earlier version was to be read in the disjunctive. The majority asserts that this interpretation comports with Commission precedent, citing Carpenter Rigging & Contracting Corp., 75 OSAHRC 32/D13, 2 BNA OSHC 1544, 1974-75 CCH OSHD P19,252 (No. 1399, 1974).
The interpretation in Carpenter Rigging to which the majority refers represented only the views of Chairman Cleary, and not a majority of the Commission members. Hence, I do not [*33] regard it as Commission precedent. Nor do I think that interpretation is correct. It not only is inconsistent with the ordinary conjunctive meaning of "and", but it also violates a basic principle of statutory construction by rendering the second condition under which protection is required -- "where this part indicates the need for using such equipment to reduce the hazards to the employees" -- superfluous for whenever this condition is satisfied, there will necessarily be an "exposure to hazardous conditions." I therefore read the standard as requiring appropriate personal protective equipment "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."
Thus, in my view, § 1926.28(a) mandates reference to other standards in Part 1926 as a step in determining the conditions under which § 1926.28(a) requires the use of personal protective equipment. An examination of Part 1926 reveals certain standards that specifically require the use of personal protective equipment under well-defined circumstances. See, e.g., 29 C.F.R. § 1926.451(i)(8) (employees on two-point suspension [*34] scaffolds must be protected by safety belts attached to a lifeline). n2 Other standards do not specifically require the use of personal protective equipment, but give employers notice that such equipment is useful in protecting against a hazard. See, e.g., Schiavone Construction Co., 77 OSAHRC 78/A2, 5 BNA OSHC 1385, 1977-78 CCH OSHD P21,815 (No. 12767, 1977), pet. for review filed, No. 77-1907 (3rd Cir. June 20, 1977) (29 C.F.R. § 1926.603(a)(8)); Sweetman Construction Co., 76 OSAHRC 35/A2, 3 BNA OSHC 2056, 1975-76 CCH OSHD P20,466 (No. 3750, 1976) (29 C.F.R. § 1926.602(a)(2)). Included in the latter category is 29 C.F.R. § 1926.104, which establishes specifications for safety belts, lanyards, and lifelines. Section 1926.104 places employers on notice that lifelines, lanyards, and safety belts are an appropriate means of protecting against fall hazards. Thus, employers whose employees are exposed to fall hazards against which lifelines, lanyards, and safety belts are an appropriate type of protection can properly be cited under § 1926.28(a). See Commissioner Van Namee's opinion in Hoffman Construction Co., 75 OSAHRC 31/E12, 2 BNA OSHC 1523, 1974-75 CCH OSHD [*35] P19,275 (No. 644, 1975), rev'd, 546 F.2d 281 (9th Cir. 1976), with which I expressed my agreement in B & B Insulation, Inc., 77 OSAHRC 49/A2, 5 BNA OSHC 1265, 1977-78 CCH OSHD P21,747 (No. 9985, 1977), rev'd, No. 77-2211 (5th Cir. Nov. 16, 1978).
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n2 To the extent that another standard more specifically applies to a given factual situation than § 1926.28(a), the more specific standard takes precedence. 29 C.F.R. § 1910.5(c).
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Even when § 1926.28(a) is read together with § 1926.104(a), however, the problem remains of determining when a fall hazard requiring the use of lifelines and safety belts exists. As the majority observes, the standard is broadly drafted, requiring us to construe the standard so that it provides adequate notice to employers of the conditions to which it applies. I agree that the "reasonable person" test enunciated by Commissioner Cottine satisfies this requirement. n3 remedial purpose of the Act dictates that employers cannot be permitted to allow their employees to be exposed to conditions [*36] that a reasonable person familiar with the industry would perceive as hazardous simply because other employers in the same industry fail to take precautions against the same hazard. Thus, as long as a reasonable person familiar with the industry would perceive a hazard and safety belts are an appropriate means to protect against that hazard, § 1926.28(a) mandates that the employer require its employees to use safety belts.
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n3 Commissioner Cottine refers to "a reasonable person familiar with the factual circumstances surrounding the allegedly hazardous condition, including any facts unique to a particular industry." In my opinion this is the same as "a reasonable person familiar with the industry." Because this latter phrase is simpler and not verbose, I will use it to apply to the same "reasonable person" as does the majority.
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I would, however, require the Secretary to prove that safety belts are a feasible means to protect against the hazard. I therefore disagree with the majority's reassignment of the burden of [*37] proof from that set forth in Frank Briscoe, Inc., 76 OSAHRC 129/A2, 4 BNA OSHC 1729, 1976-77 CCH OSHD P21,162 (No. 7792, 1976).
An employer's duties under the Act flow from two sources. Pursuant to § 5(a)(2), 29 U.S.C. § 654(a)(2), an employer must comply with the standards promulgated pursuant to the Act; where no specific standard applies, employers must fulfill the general duty imposed by § 5(a)(1), 29 U.S.C. § 654(a)(1), which provides:
Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.
See National Realty and Construction Co. v. OSHRC, 489 F.2d 1257, 1261 (D.C. Cir. 1978). Noting the breadth of § 5(a)(1), the Court of Appeals for the District of Columbia held:
Because employers have a general duty to do virtually everything possible to prevent and repress hazardous conduct by employees, violations exist almost everywhere, and the Secretary has an awesomely broad discretion in selecting defendants and in proposing penalties. To assure that citations issue only upon careful deliberation, the Secretary [*38] must be constrained to specify the particular steps a cited employer should have taken to avoid citation, and to demonstrate the feasibility and likely utility of those measures. Id at 1268.
Relying on the rationale of National Realty, the Commission has consistently required the Secretary to prove, as a necessary element of a § 5(a)(1) violation, the feasibility and likely utility of a means of abating a recognized hazard. See, e.g., Barker Brother, Inc., 78 OSAHRC 5/E7, 6 BNA OSHC 1282, 1977-78 CCH OSHD P22,488 (No. 12964, 1978).
Normally, in a case where he alleges that an employer violated a standard, the Secretary does not have to prove a feasible means of compliance with the standard. A.E. Burgess Leather Co. v. OSHRC, 576 F.2d 948, 950 (1st Cir. 1978); Ace Sheeting and Repair Co. v. OSHRC, 555 F.2d 439, 441 (5th Cir. 1977). There are sound reasons for this rule. When a specific standard applies to a certain situation, the "awesomely broad discretion" to issue citations that concerned the court in National Realty becomes considerably circumscribed. Moreover, once the Secretary can demonstrate that an employer failed to comply with the requirement [*39] of a specific standard, the Secretary has made out a prima facie case of a violation and it is appropriate to place on the employer the burden of establishing why compliance should not be required. Ace Sheeting and Repair Co. v. OSHRC, supra. However, these considerations do not necessarily apply to extremely broadly worded standards. In dealing with the general machine guarding standard at 29 C.F.R. § 1910.212(a)(3)(ii), n4 the Sixth Circuit placed the burden of proving a specific and technologically feasible means of compliance on the Secretary, stating:
We believe that this approach places an eminently reasonable limitation on the breadth to which the standard's literal language might otherwise be extended Diebold, Inc. v. Marshall, 585 F.2d 1327, 1333 (1978). n5
See also Ace Sheeting and Repair Co. v. OSHRC, supra.
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n4 This standard provides:
The point of operation of machines whose operation exposes an employee to injury, shall be guarded. The guarding device shall be in conformity with any appropriate standards therefore, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle.
n5 In quoting this language from Diebold, I do not imply that I agree with the Sixth Circuit's conclusion that § 1910.212(a)(3)(ii) is the type of standard for which it is appropriate to place on the Secretary the burden of proving a feasible means of compliance. The Commission has not previously placed such a burden on the Secretary, and this case presents no occasion to reconsider the point. Hughes Brothers, Inc., 78 OSAHRC 65/A2, 6 BNA OSHC 1830, 1978 CCH OSHD P22,909 (No. 14523, 1978). Diebold does, however, demonstrate that the Court recognized a similar problem of potential overbreadth can exist with broadly drafted standards as with § 5(a)(1).
[*40]
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The rationale underlying the burden placed on the Secretary in § 5(a)(1) cases also applies to standards having a breadth of applicability comparable to § 5(a)(1). Section 1926.28(a) is such a standard. Under my interpretation, the standard, when read in conjunction with § 1926.104, applies, inter alia, whenever a fall hazard exists in construction work. n6 While certain specific standards also apply to such hazards, n7 § 1926.28(a) serves as a "catchall" provision, applying whenever a fall hazard is not addressed by a more specific standard. Essentially, then, § 1926.28(a) is similar to § 5(a)(1) in that it is intended to fill gaps in coverage left by more specific standards. See Brisk Waterproofing Co., 73 OSAHRC 30/E1, 1 BNA OSHC 1263, 1973-74 CCH OSHD P16,345 (No. 1046, 1973). While standards such as § 1926.28(a) may serve a useful purpose "in light of the myriad conceivable situations which could arise and which would be capable of causing injury," n8 and provide at least as much notice to employers of the conduct required of them as does § 5(a)(1), n9 some limitation must be placed [*41] on the Secretary to assure that he only issues citations alleging violation of the standard in circumstances in which a hazard can properly be abated by the use of "appropriate personal protective equipment," as the standard provides. n10 Thus, based on the similarity between § 5(a)(1) and § 1926.28(a), and the reasoning of the courts in National Realty and Diebold, I would require the Secretary, in a case in which he cites § 1926.28(a), to demonstrate that the type of personal protective equipment he seeks to require the employer to use can feasibly be used to provide useful protection against the hazard.
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n6 As noted above, the standard has even broader application under the majority's interpretation, for they interpret it to apply whenever there is an "exposure to hazardous conditions."
n7 See Warnel Corp., 76 OSAHRC 41/C5, 4 BNA OSHC 1034, 1975-76 CCH OSHD P20,576 (No. 4537, 1976).
n8 Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974).
n9 See B & B Insulation, Inc., supra.
n10 If personal protective equipment is not the appropriate means of eliminating a particular fall hazard, the Secretary should not cite § 1926.28(a), but should either cite another standard that requires the appropriate means of abatement or, if no standard applies, he should cite § 5(a)(1).
[*42]
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When this case was tried, the Commission decision in Frank Briscoe placing the burden of proving feasibility on the Secretary in a § 1926.28(a) case had not yet issued, and the Secretary did not present any evidence on feasibility during his case in chief. Respondent, however, introduced evidence on the point in attempting to establish that compliance would be impossible or would result in greater hazards.
As the lead opinion notes, the Commission permits an employer to affirmatively defend against the Secretary's prima facie showing of noncompliance with a standard by proving that compliance would be impossible or would result in greater hazards. These defenses, however, were developed in connection with cases involving standards for which the Secretary does not bear the burden of proving that compliance is feasible. Since I would place the burden of proving feasibility on the Secretary in § 1926.28(a) cases, I would regard evidence that normally concerns the issues of impossibility and greater hazards as bearing on the question of feasibility. Obviously, if the use of safety belts is not possible, [*43] there use is also not feasible. Feasibility also, however, involves questions of suitability and practicality. Therefore, in determining whether the use of personal protective equipment is feasible in a particular case, I would consider any separate hazards arising from such use as relating to the question of feasibility, rather than as bearing on a separate defense. I would not, however, require the Secretary to anticipate all possible problems that personal protective equipment might create and to negate such problems in establishing his prima facie case. The Secretary need only show that personal protective equipment can be used and that its use would provide protection against the cited hazard. The burden then shifts to the employer to produce evidence tending to show that the use of such equipment will cause consequences so adverse as to render its use infeasible.
Under this allocation of the burden of proof, an employer can rebut the Secretary's prima facie case of feasibility without establishing that a variance application would be inappropriate or that alternative means of protection could not be used, as it would otherwise be required to do in cases involving the impossibility [*44] and greater hazard defenses. n8 Moreover, like the defenses themselves, these elements were developed in cases involving standards requiring specific means of abatement, n9 and they cannot be appropriately applied to a general standard such as § 1926.28(a). In order to obtain a variance, an employer must show "that the conditions, practices, means, methods, operations, or processes used or proposed to be used by an employer will provide employment . . . as safe and healthful as those which would prevail if he complied with the standard." 29 U.S.C. § 655(d). However, as the majority observes at footnote 9, if Respondent had used an alternative means of fall protection, there would have been no fall hazard and Respondent would not have been in violation of § 1926.28(a). Moreover, as discussed above, § 1926.28(a) attempts to fill the gaps left by other standards that require means of fall protection other than personal protective equipment. If such a means of protection is appropriate and had been used, Respondent would not have been in violation of § 1926.28(a). In either event, a variance is not needed. Similarily, if another means of fall protection is appropriate rather than [*45] that which was originally specified by the Secretary, then the Secretary should identify the other form of protection if under § 1926.28(a), or should cite the employer under the appropriate standard or § 5(a)(1). It is therefore inappropriate to place the burden on the employer to establish the unavailability of alternative means of protection.
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n8 The elements of these defenses are stated at pages 21 and 22 of the lead opinion.
n9 See, e. g., George A. Hormel and Co., 74 OSAHRC 67/A2, 2 BNA OSHC 1190, 1974-75 CCH OSHD P18,685 (No. 1410, 1974), aff'd on reconsideration, 74 OSAHRC 77/F5, 2 BNA OSHC 1282, 1974-75 CCH OSHD 18,881 (1974) (greater hazard defense); Taylor Building Associates, 77 OSAHRC 22/A10, 5 BNA OSHC 1083, 1977-78 CCH OSHD P21,592 (No. 3735, 1977) (impossibility defense).
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Turning to the facts of this case, I would consider whether the Secretary established a violation in the context of three questions. The first question is whether the Secretary established that Respondent's employees were exposed [*46] to a hazardous condition within the meaning of § 1926.28(a). I agree with the majority that the record evidence establishes employee exposure to an obvious fall hazard. The second question is whether Part 1926 indicates the need for using safety belts. As I indicated previously, § 1926.104 places employers on notice that safety belts are an appropriate means of protecting against fall hazards. The remaining question is whether the Secretary proved that safety belts could feasibly be used. The evidence shows that belts could be tied to a lifeline attached to an interior column 30 feet from the location where the employees were working. Respondent's only substantial objection to this arrangement was that the lines could become snagged and torn on rough spots on the floor. As the Judge observed, however, photographs of the floor do not reveal any spots large enough to present this problem. Having examined the record, I agree with his conclusion. Accordingly, the Secretary carried his burden of proof that Respondent violated the standard as alleged.