J. W. CONWAY, INC.
OSHRC Docket No. 15942
Occupational Safety and Health Review Commission
September 7, 1979
[*1]
Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Kenneth Hellman, Reg. Sol., USDOL
J. W. Conway, Jr., President, J. W. Conway, Inc., for the employer
OPINIONBY: COTTINE
OPINION:
DECISION
COTTINE, Commissioner:
A decision of Administrative Law Judge Henry K. Osterman is before the Commission under § 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. ("the Act"). The judge found the Respondent, J.W. Conway, Inc. ("Conway"), in serious violation of the construction safety standard published at 29 C.F.R. § 1926.28(a) n1 and assessed a penalty of $650 for the violation.
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n1 The standard provides:
§ 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.
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I
Conway was cited [*2] for failing to comply with § 1926.28(a) following the inspection of a worksite in Washington, D.C., where Conway was engaged in roofing work. The evidence established that at the time of the inspection two of Conway's employees were working without fall protection at the edge of the roof of a building. n2 The roof was approximately 60 feet long. At the edge of the roof was a parapet about 8 inches high. A flat section of the roof about 18 inches wide was adjacent to the parapet. The roof sloped n3 upward from this level to a second flat area.
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n2 Conway did not provide any personal protective equipment for the employees.
n3 The compliance officer described the slope of the roaf as "steep" and "fairly steep". Conway did not rebut that testimony. In his pro se answer, the president of Conway simply asserted that the slope was 4 inches in 12 inches.
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The employees were working from the narrow flat area of the roof installing flashing. These employees moved up and down the sloped section of the roof to carry [*3] materials from the upper roof to the work area at the edge of the roof. The Secretary submitted into evidence photographs taken by the compliance officer at the time of the inspection that showed the employees leaning over the parapet while working at the edge of the roof. The distance from the edge of the roof to the ground was 40 feet. n4
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n4 A parapet wall and walkway were located approximately 29 feet below the edge of the roof. However, the compliance officer testified that, if an employee fell, he could fall to the ground because the wall and walkway were only 5 feet wide.
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The compliance officer testified that the employees were exposed to the hazard of falling over the roof's edge and that using safety belts and lines would eliminate the hazard. n5 Conway did not submit any evidence rebutting the Secretary's evidence that the employees were exposed to a fall hazard. However, Conway's foreman disputed the feasibility of belts and lines. He testified that using safety belts would cause a greater hazard because [*4] employees would be apt to trip and fall. According to the foreman, Conway rigged safety lines "from pipes across the roof and back over the vent to pipes" after the inspection. He claimed that these lines became tangled and that one employee tripped and "came close" to falling off the roof.
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n5 The compliance officer testified that he had been involved in construction as an iron worker for many years, had completed several courses in safety and health, and had taught courses in safety. He had also performed roofing work and supervised the installation of roofing.
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The compliance officer was recalled and testified that it is possible to rig lanyards on an almost flat surface without the lanyards themselves creating a hazard. He stated that the Respondent could have used vertical structural steel supports, which were positioned in a row along the upper roof, for attaching the lanyards. n6 The witness marked a photographic exhibit to indicate the location of the structural steel supports. He stated that the supports [*5] "run vertical about every two or three feet" and indicated that the lanyards could be successively tied to the closest support, as the work progressed across the roof:
[S]omebody could come in anyplace, approximately ten feet, tie off their line, walk down to the edge of the roof, and even if they slipped going down carrying their materials or anything, they couldn't fall over the edge of the roof. If they did fall it would be no more than a few inches. The rope with the lifeline [sic] properly attached would keep them from going over.
The compliance officer further testified that once lanyards were rigged in this manner the employees could maneuver "very easily" to perform their work, and they could adjust their lanyards. He also testified that the lanyards would be attached above the area where the employees were working. He stated that he had seen lanyards rigged in this manner and that he had personally installed and used this method of attachment "numerous times." Finally, he testified that, if a 3/4-inch line were used, the lanyard could sustain many times an employee's body weight.
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n6 Although the compliance officer used the term "lifelines" throughout this part of his testimony, it is clear that he was actually referring to lanyards, running directly from the structural member to the safety belt. Accordingly, the term "lanyards" is substituted throughout this discussion.
[*6]
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Judge Osterman held,
The record made at the hearing discloses that two of Respondent's employees were observed by the compliance officer to be working at the edge of a roof without the benefit of safety lines or other equipment which would prevent a fall to the ground approximately 40 feet below the edge of the roof. . . . Other testimony by the Secretary's witness indicated that the construction of the roof was such that it was possible for Respondent's employees to attach lifelines [sic] to portions of the structural steel supports on the roof so as to prevent a fall over the edge without materially affecting the efficiency of the workers or interfering with the work being done. . . . Respondent's argument that such a procedure was not feasible is not persuasive. It is my conclusion that the citation herein should be affirmed.
[Transcript cites omitted]
II
The direction for review issued by former Commissioner Moran did not specify the issues to be considered by the Commission. However, Conway submitted a pro se petition for review, objecting to the judge's reliance on the compliance [*7] officer's testimony regarding the feasibility of using personal protective equipment.
Conway argues that the Secretary's witness is not qualified to describe how lifelines and lanyards could be used without creating a tripping hazard and without the lines being dragged through acid that was used in Conway's work. The compliance officer's testimony established that he was knowledgeable about roofing work. In addition, the compliance officer testified that he had installed and used the system that he recommended. Moreover, Conway's assertion that the employees were using acid is not supported by the record. There is no evidence that acid was used on the job and the compliance officer's testimony adequately explained how a tripping hazard could be avoided. We conclude that the judge properly relied on the compliance officer's testimony that lanyards and belts were feasible.
Conway further contends that the structural steel supports referred to by the compliance officer were not components of the roof where the work was being performed. In addition, it argues that the flat area of the roof was 24 inches wide, sloped on one side and bordered by a parapet on the other side. The [*8] compliance officer's testimony and his marking of exhibit C-2 constitute the only evidence establishing the presence of the steel supports. The Respondent has not rebutted this evidence. Conway's contention that the flat area of the roof was 24 inches wide is contrary to the record. In fact, Conway stipulated at the hearing that the flat part of the roof was 18 inches wide.
To the extent that Conway is contending that the employees were not exposed to hazardous conditions within the terms of the standard because they were working on a flat surface with protection on all sides, the contention must also be rejected. Conway did not rebut the compliance officer's testimony that the employees were exposed to the hazard of falling 40 feet to the ground below. Moreover, the record shows that the employees worked at and leaned over the edge of the building. The 8 inch parapet could not have prevented a fall. [*9] Furthermore, we find that the fall hazard was obvious. See PPG Industries, Inc., 77 OSAHRC 196/E5, 6 BNA OSHC 1050, 1977-78 CCH OSHD P22,344 (No. 15426, 1977), pet. denied, No. 77-2608 (3d Cir. Sept. 11, 1978). n7
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n7 In S & H Riggers & Erectors, Inc., 79 OSAHRC , 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979), appeal filed, No. 79-2358 (5th Cir. June 7, 1979), the Commission ruled:
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 industry, would recognize a hazard warranting the use of personal protective equipment.
7 BNA OSHC at 1263, 1979 CCH OSHD at p. 28,436. Here, the reasonable person familiar with the facts would recognize that the employees were exposed to a fall hazard requiring the use of personal protective equipment.
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Conway objects to the judge's not [*10] receiving into evidence photographs purportedly showing guardrails in lowered positions. It was not prejudicial error for the judge to deny Conway's motion to submit this photograpic evidence. Conway conceded that the pictures were taken after the date of the inspection and that complainant's exhibits showing the employees working without any protection were accurate representations of the worksite at the time of the inspection. Moreover, Conway did not respond to the contention of the Secretary's counsel that the conditions in its proffered exhibits were materially different from the conditions at the time of the inspection.
In its petition, the Respondent argues that compliance with the cited standard was impossible because there was no overhead structure, capable of supporting a 5,400 pound load, to which a lanyard or lifeline could be attached. It also maintains that the use of safety belts and lifelines would create a greater hazard than noncompliance. In S & H Riggers & Erectors, Inc., supra, we ruled that it is not the Secretary's burden to prove the feasibility of his suggested means of abatement. To establish a prima facie violation of § 1926.28(a) the Secretary [*11] must demonstrate employee exposure to a hazardous condition requiring the use of personal protective equipment and must identify the appropriate form of personal protective equipment to abate the hazard. We further ruled that an employer may affirmatively defend by proving that it is impossible to use the suggested means of abatement or by proving a "greater hazard" defense. See Russ Kaller, Inc., T/A Surfa Shield, 76 OSAHRC 130/F10, 4 BNA OSHC 1758, 1976-77 CCH OSHD P21,152 (No. 11171, 1976). n8 Conway essentially argues that it established these affirmative defenses. n8
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n8 In Russ Kaller we held that, in order to establish a "greater hazard" defense, the record must show that the hazards of compliance are greater than the hazards of noncompliance, that alternative means of protecting employees are unavailable, and that a variance application under § 6(d) of the Act would be inappropriate.
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Regarding the "impossibility" claim, we infer that Conway is relying on 29 C.F.R. § 1926.104, n9 which sets forth [*12] specific requirements for safety belts, lifelines, and lanyards. Based on the record evidence, we conclude that it was feasible for Conway to use lanyards tied directly to the structural steel supports. A lifeline was not necessary. Furthermore, the record does not support a conclusion that the lanyards would not comport with the strength requirements of the standard. The compliance officer recommended using a 3/4-inch line, which is thicker and stronger than the minimum requirements of § 1926.104(d) for lanyards. Finally, even if Conway were not able to comply with a requirement of § 1926.104, impossibility of compliance with that standard is not a defense to a citation for noncompliance with § 1926.28(a). Frank Briscoe Co., 76 OSAHRC 125/D7, 4 BNA OSHC 1706, 1976-77 CCH OSHD P21,191 (No. 12136, 1976).
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n9 The standard provides in pertinent part:
§ 1926.104 Safety belts, lifelines, and lanyards.
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(b) Lifelines shall be secured above the point of operation to an anchorage or structural member capable of supporting a minimum dead weight of 5,400 pounds.
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(d) Safety belt lanyard shall be a minimum of 1/2-inch nylon, or equivalent, with a maximum length to provide for a fall of no greater than 6 feet. The rope shall have a nominal breaking strength of 5,400 pounds.
[*13]
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With respect to the greater hazard defense, the record does not support Conway's conclusion that use of safety belts and lanyards would create a hazard. Thus, Conway did not prove the threshold element of a "greater hazard" defense under Russ Kaller, supra -- that compliance will diminish employee safety. n10
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n10 Conway raised additional issues in its brief on review. However, inasmuch as Conway did not raise those issues at any time in the proceedings below, and they were not expressly or impliedly tried, they will not be considered by the Commission. See Gulf Stevedore Corp., 77 OSAHRC 135/E11, 5 BNA OSHC 1625, 1977-78 CCH OSHD P21,975 (No. 76-926, 1977).
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III
Accordingly, the judge's decision and his assessment of a $650 penalty are affirmed.
It is so ORDERED.
CONCURBY: BARNAKO
CONCUR:
BARNAKO, Commissioner, Concurring:
I agree with the majority that J. W. Conway violated 29 C.F.R. § 1926.28(a). However, my rationale for concluding [*14] that J. W. Conway violated 29 C.F.R. § 1926.28(a) differs from that of my colleagues.
In S & H Riggers and Erectors, Inc., 79 OSAHRC , 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979) (concurring opinion), I stated that I would affirm a citation for violation of 29 C.F.R. § 1926.28(a) only if the following conditions were met: 1) evidence of record establishes Respondent's employees were exposed to a hazard which a reasonable person familiar with the industry would recognize as requiring the use of personal protective equipment, 2) the Secretary establishes a feasible means of protecting against the cited hazard and 3) reference to other standards in Part 1926 indicates the need for using the personal protective equipment which the Secretary asserts Respondent's employees should have used.
J. W. Conway was cited for a violation of 29 C.F.R. § 1926.28(a) because its employees were not wearing safety belts while working on a roof. With respect to the first criteria set forth above, my colleagues note the evidence establishing that J. W. Conway's employees were exposed to a fall hazard and that a reasonable person familiar with the industry would recognize a hazard [*15] requiring the use of personal protective equipment.
With respect to the second criteria noted above, the compliance officer testified that lanyards could have been tied directly to structural steel supports, which were positioned in a row along the upper roof. n1 Respondent argues, however, that there was no overhead structure which would support a 5,400 pound load and that use of safety belts would create a greater hazard.
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n1 See footnote 6, supra, of the majority's opinion.
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The majority concludes that such evidence is relevant to an impossibility defense and a greater hazards defense and that J. W. Conway has not established these defenses. I disagree that the evidence is relevant to those defenses. In S & H Riggers and Erectors, Inc., I stated that I would consider any evidence relating to impossibility and any separate hazards arising from the use of the personal protective equipment recommended by the Secretary as relating to the question of feasibility rather than bearing on a separate defense. I [*16] 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. Rather once the Secretary has shown 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 show that the use of such equipment will cause consequences so adverse as to render its use infeasible.
In the instant case, I agree with my colleagues that the record does not support a conclusion that the lanyards would not be able to support a 5,400 pound load. Nor does the record support the conclusion that the use of safety belts would create any hazards. I therefore conclude that the Secretary has established a feasible means of protecting against the cited hazard.
Finally, as I stated in S & H Riggers and Erectors, Inc., 29 C.F.R. § 1926.104 places employers on notice that lifelines, lanyards, and safety belts are an appropriate means of protecting against fall hazards and therefore satisfies the third criteria set forth above. Accordingly, since the criteria I set forth in S & H Riggers [*17] and Erectors, Inc. have been satisfied, I would affirm the citation for violation of 29 C.F.R. § 1926.28(a).