JAKE HEATON ERECTING CO., INC.
OSHRC Docket No. 15892
Occupational Safety and Health Review Commission
April 17, 1978
[*1]
Before CLEARY, Chairman; BARNAKO, Commissioner
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Bobbye D. Spears, Reg. Sol., USDOL
J. Roy Weathersby, for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Commissioner:
A decision of Judge John S. Patton is before this Commission pursuant to 29 U.S.C. section 661(i). Only Citation 2, involving an alleged serious violation of 1926.28(a), n1 remains in dispute. n2 The citation contains two subparts. Judge Patton affirmed one subpart, vacated the other, and assessed a $400 penalty. We affirm the citation in its entirety and assess an $800 penalty.
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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.
n2 The Judge also affirmed one other violation and permitted the Secretary to withdraw another. The Judge's action regarding those items will not be reviewed in this decision as no party has taken exception thereto. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD para. 20,780 (No. 4136, 1976); Crane Co., 76 OSAHRC 37/A2, 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976).
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The Storage Building
Heaton was engaged in the construction of a steel plant and an adjacent office building in Cartersville, Georgia. Subpart (b) of the Citation involves a storage building in the steel plant where a welder was grinding joints on an 18 inch wide beam. Although the beam was approximately 30 feet above the floor, the employee was not using a safety belt, and no other type of fall protection was provided. The beam was not part of the structural framework of the building, but instead was intended to hold a rail on which an overhead crane would ride. Supporting the beam were steel pillars. The building's outside wall was 6 feet from the beam and was supported by vertical steel columns which were placed approximately 25 feet apart along the beam's 650 foot length. Running at an angle from the front of these steel columns to the wall were steel rods termed "vertical angles". At their closest, they came within 3 feet of the beam.
The OSHA compliance officer who inspected the worksite testified that safety belts could have been utilized in either of two ways. When the welder was [*3] working on those portions of the beam closest to the vertical angles, the compliance officer suggested that the employee could have attached a lanyard from a safety belt to the vertical angle. The second proposal was to string a cable between the steel columns and parallel to the beam, enabling the worker to hook his lanyard to the cable while performing the grinding.
Heaton argued that neither proposal was viable. Regarding the attachment of a lanyard to the vertical angles the company's job superintendent testified that at points the worker is 12 feet from the nearest vertical angle. Thus, in order to tie off a lanyard to the angles, the lanyard would have to exceed the maximum 6 foot length permitted under another standard, 1926.104(b). n3 In addition, a lanyard of such length would cause a falling employee to swing into a steel column with considerable force.
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n3 This standard provides in pertinent part:
"Safety belt lanyards shall be . . . with a maximum length to provide for a fall of no greater than 6 feet."
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Turning to the parallel cable, the job superintendent asserted that the proposal was impractical, although he offered no reason why such a cable could not be strung. He thought, however, that tying off to either a cable or the angles would pose a "greater hazard" because the employee, who grinds a different joint every 5 minutes, would be endangered by the need to repeatedly clip the lanyard on and off. Finally, Heaton asked that the citation be dismissed because specific standards, the 1926.750 "steel erection" standards, applied to work on a steel beam and therefore the general safety standard at 1926.28(a) did not apply.
Judge Patton found merit in this last contention. He concluded that since the employee was working on a high elevation steel beam he was engaged in "skeleton steel erection" and therefore the 1926.750 standards applied. Accordingly, he granted Heaton's motion to dismiss the citation insofar as it involved the storage building.
We reject the Judge's conclusion that application of the steel erection standards is appropriate here. In Daniel Construction Co., 77 OSAHRC 21/A2, 5 BNA OSHC 1005, 1076-77 CCH OSHD para. 21,521 (No. 7734, 1977) a divided [*5] Commission held that the 1926.750 standards were restricted to "tiered buildings". In turn, "tiered buildings" were defined as those which upon completion would have a number of floors, as do conventional office and apartment buildings. The standards are not applicable to open bay or loft-type buildings or to single story buildings. Ray Evers Welding Co., Inc., 77 OSAHRC 181/F7, 5 BNA OSHC 1948, 1977-78 CCH OSHD para. 22,220 (No. 76-628, 1977). The photographic exhibits and the testimony at the hearing demonstrate that the storage building does not contain floors. To the contrary it had no floors betweeen the ground level and roof and was described as a single story, loft-like, hangar type structure. Since it is not a "tiered building", the 1926.750 steel erection standards cannot apply and preempt 1926.28(a). n4 Accordingly, the Judge erred in vacating the citation subpart concerning the storage building on the basis that the steel erection standards were applicable. n5
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n4 Because of our disposition, we need not resolve the Secretary's argument that, even if the 1926.750 steel erection standard did apply, it would not preempt the application of 1926.28(a) under the circumstances of this case. See Bristol Steel & Iron Works, 77 OSAHRC 181/D6, 5 BNA OSHC 1940, 1977-78 CCH OSHD para. 22,240, (No. 14537, 1977), petition for review docketed, No. 77-2485 (7th Cir., 11/28/77).
n5 We also note that the beam on which the employee was working was not part of the structural framework of the building itself, but was part of a piece of equipment which was located inside the building. It may be that, even if the building itself was "tiered", the 1926.750 steel erection standards would not apply to such work. In view of our disposition, however, we need not resolve this question.
[*6]
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We turn now to the merits of the alleged violation. Heaton does not dispute that the employee in question was exposed to a fall hazard. Heaton contends, however, that the Secretary failed to prove that safety belts would be feasible and useful, citing Frank Briscoe Co., Inc., 76 OSAHRC 129/A2, 4 BNA OSHC 1729, 1976-77 CCH OSHD para. 21,162 (No. 7792, 1976). We reject the argument. Without commenting on the alleged difficulties of attaching safety lanyards to the vertical angles, we conclude that stringing a cable parallel to the beam would be feasible. Even Heaton's witness conceded that the cable was not impossible to install.
In addition we find no merit to the claim that repeatedly hooking the lanyard on and off the cable would present a greater hazard to the welder. To establish a "greater hazard" defense an employer is required to affirmatively show that the hazards of compliance are greater than the hazards of non-compliance, that alternative means of protecting employees are unavailable and that an application for a variance would have been inappropriate. General Steel Fabricators, [*7] Inc., 77 OSAHRC 166/E14, 5 BNA OSHC 1768, 1977-78 CCH OSHD para. 22,104 (No. 13646, 1977). Heaton has not met this test. Although repeatedly hooking the lanyard on and off the cable would entail momentary lapses in safety belt protection while the employee repositioned himself, the fall hazard from this cannot be said to be more dangerous to his safety than continuous exposure to a 30 foot fall. See C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1977-78 CCH OSHD para. 22,481 (No. 14249, 1978). We also note that a metal ring connecting the end of the lanyard to the cable would eliminate the need to regularly rehook the lanyard. Additionally, Heaton has not established that it used alternative protective means or that an application for a variance would have been inappropriate. Therefore, we conclude that Heaton violated 1926.28(a) when it failed to require that the welder working on the beam in the storage building use a safety belt.
The Roof n6
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n6 The storage building aspect of the citation is before us because Chairman Cleary granted the Secretary's petition for discretionary review of the Judge's vacation of that part of the citation. In addition, former Commissioner Moran directed that the ALJ's decision be reviewed "for error" and Heaton filed exceptions to the Judge's findings and conclusions regarding the office roof portion of the citation. Paragraph 2 of the Commission's Policy Statement, 41 Fed. Reg. 53015 (1976), requires us to consider Heaton's arguments.
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Attached to the storage building is a two story office building, which ranges from 17 to 37 feet high. Six employees were observed working on the building's roof, some of whom worked near the edge. None of the employees were wearing any personal protective equipment, and no other type of fall protection was provided. The rooftop work was of two varieties. First, panels of steel roof sheeting were laid on top of the purlins which constituted the structural base of the roof. Then the flashing ws installed where the roof and the siding come together. The workers observed by the compliance officer at the time of the inspection were engaged in the installation of the flashing.
The compliance officer testified that a safety line could have been affixed to the structural members in the center of the roof and then brought down each side of the roof, ending that the structural members along the peak. The workers could then attach the lanyards from their safety belts to this line.
Heaton countered that (1) the 1926.750 steel erection standards apply to these working conditions, (2) 1926.28(a) cannot be [*9] applied to a virtually flat roof, and (3) the Secretary's proposed lifeline was neither feasible nor useful because (a) when laying the roof panels the workers needed to walk on the narrow purlins where the presence of a safety line would create a tripping hazard and (b) the structural members at the center of the roof would themselves be covered with panels thereby preventing the attachment of a safety line.
Judge Patton dismissed the contention that the 1926.750 standards apply, correctly observing that the installation of steel roof penals is not within the purview of "skeleton steel erection". While 1926.750(b) does make reference to temporary flooring placed on top of steel beams, the materials installed here were the permanent roofing on the building. Heaton's second objection is also without merit. This Commission has stated that where there is a hazard of workers falling over the edge of even a flat roof, then personal protective equipment may be required under 1926.28(a). Central City Roofing Co., Inc., 76 OSAHRC 61/A2, 4 BNA OSHC 1286, 1276-77 CCH OSHD para. 20,761 (No. 8173, 1976). As to the alleged difficulty of workers tripping over the safety line, the Judge [*10] construed this to be a "greater hazard" defense and concluded that the defense had not been established. We agree. The judge correctly found that the results of a tripping incident would not be as severe as the consequences of falling 17 to 37 feet to the ground and accordingly Respondent's defense must fail. Cf. Sierra Construction Corp., 78 OSAHRC 2/E6, 6 BNA OSHC 1278, 1977-78 CCH OSHD para. 22,506 (No. 13638, 1978). In addition, we note that at the time of the inspection the workers were installing the flashing. Therefore the roofing was already in place, and Heaton's argument concerning the purported tripping hazard to employees walking on the purlins is inapplicable.
As to Heaton's contention that the covered structural members would preclude attachment of the proposed safety line, the compliance officer suggested that by leaving a few of the structural members uncovered until the end this problem could be averted. Heaton did not offer any testimony that this could not be done. Accordingly, we conclude that the use of safety belts would have been feasible. We affirm the Judge's decision as to the roof operations.
The Secretary has proposed a penalty of $800. [*11] After he vacated on subpart of the citation, the Judge assessed $400. After considering the entire record in conjunction with the statutory criteria in 29 U.S.C. section 661(i), and in view of our decision to affirm the entire citation, we assess the full proposed penalty.
Accordingly, the citation for a serious violation of 1926.28(a) is affirmed and a penalty of $800 is assessed.