OSHRC Docket No. 16058

Occupational Safety and Health Review Commission

April 11, 1977


Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  


Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor

James P. Mannion, for the employer



This case is before the Commission pursuant to a sua sponte order for review.   The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review.   Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest.   Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded the significance of an unreviewed Judge's decision.   [*2]   Leone Constr. Co. 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.  



MORAN, Commissioner, Concurring:

I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A.   For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976.   I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.



JAMES M. CLEETON, U.S. Department of Labor, Office of the Solicitor, for the Secretary of Labor

JOSEPH P. MANNION, JR., for the Respondent

Wienman, Judge, OSHRC:


This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting a citation issued to respondent November 5, 1975, under the authority vested in complainant by section 9(a) of that Act.   The citation resulted from an inspection November 3, 1975, of a construction worksite at 6100 Leavenworth Road, Kansas City, Kansas.   The citation alleged [*3]   a serious violation of occupational safety regulations 29 CFR 1926.500(c)(1)(i) and 29 CFR 1926.28(a) for which complainant proposed a $500 penalty.   The alleged violation was described on the citation as follows:

"Employees working at edge of fifth floor, window wall openings, without protection of a midrail guard or safety belts and life lines to reduce the danger of falling approximately 40 feet to ground level."

Occupational safety regulation 29 CFR 1926.500(c)(1)(i) provides:

"(c) Guarding of wall openings.

(1) Wall openings, from which there is a bottom drop of more than 4 feet, and the bottom of the opening is less than 3 feet above the working surface, shall be guarded as follows:

(i) When the height and placement of the opening in relation to the working surface is such that either a standard rail or intermediate rail will effectively reduce the danger of falling, one or both shall be provided;"

Occupational safety regulation 29 CFR 1926.28(a) provides:

"(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   [*4]   for using such equipment to reduce the hazards to the employees."

Respondent filed a timely notice contesting the alleged violation and proposed penalty.   After complaint and answer had been filed by the parties, a hearing was held at St. Louis, Missouri, on April 12, 1976.


No jurisdictional issues are in dispute, the parties having pleaded facts sufficient to establish that the respondent is subject to the Act and that the Commission has jurisdiction of the parties and the subject matter.   The general issues to be decided are whether respondent violated occupational safety regulations as alleged in the citation, and, if so, what penalty is appropriate.


John Tulipana, OSHA Safety Specialist, testified he conducted an inspection November 3, 1975, at 6100 Leavenworth Road, Kansas City, Kansas.   The worksite was a construction project where he found two of respondent's employees framing windows on the fifth floor. One employee, Robert Glen Dix, was working on his knees in front of a 4' X 8' window opening approximately 40 feet above the ground (T. 11-12).   He was not wearing a safety belt (T. 13).   There was a guardrail in [*5]   the opening approximately 42 inches from the floor, above the level of Dix' head and shoulders.   There was no midrail or toeboard (T. 13-14).

Tulipana asked Dix why the guardrails had been taken down, and was told the work could not be performed with the rails in place due to the need for accuracy in aligning the window frames (T. 24).   Tulipana suggested safety belts as an alternative safeguard, but Dix pointed out that there were no permanent fixtures to which a lifeline could be attached.   Tulipana agreed with this observation (T. 25).   They then discussed ways of providing falling protection, and Tulipana again suggested guardrails. Bryan, respondent's superintendent, said it would be a little more difficult but it could be done.

Tulipana believed it possible for the work to be performed with midrails in place, basing his opinion on the fact that the men later said they could do it (T. 51).

He stopped short of testifying that an intermediate rail placed approximately halfway between the toprail and floor level would have stopped a fall, stating: ". . .   I didn't ask for a midrail, I asked for a barricade across the window approximately where it would prevent whoever was working [*6]   there at that ledge from falling out.   I did not give halfway from 42 inches, or, you know this would depend on the superintendent, depending on the individual that he had." n1

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n1 Tulipana, in effect, suggested a variance from the regulations which set forth the specifications for guardrails in 29 CFR 1926.500(f):

"(f) Standard specifications

(1) A standard railing shall consist of top rail, intermediate rail, toeboard, and posts, and shall have a vertical height of approximately 42 inches from upper surface of top rail to floor, platform, runway, or ramp level.   The top rail shall be smooth-surfaced throughout the length of the railing. The intermediate rail shall be halfway between the top rail and the floor, platform, runway, or ramp.   The ends of the rails shall not overhang the terminal posts except where such overhang does not constitute a projection hazard. Minimum requirements for standard railings under various types of construction are specified in the following paragraphs:

(i) For wood railings, the posts shall be of at least 2-inch by 4-inch stock spaced not to exceed 8 feet; the top rail shall be of at least 2-inch by 4-inch stock; the intermediate rail shall be of at least 1-inch by 6-inch stock."


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Tulipana affirmed there was no structural member within the room to which a lifeline could have been attached, but suggested the use of concrete buckets and a cable, or erecting wooden braces as an anchor for lifelines (T. 58-59).   He did not know if the floor could have supported a weight of 5,400 pounds (T. 62).

Tulipana also testified that he had never heard of an employee engaged in window erection falling from a window opening (T. 49).

Respondent presented three witness who attested to the difficulty of window erection with guardrails in the openings. Philip Crowley, owner of Phil Crowley Steel Corporation, one of respondent's competitors, testified that the customary practice in the industry is to take down whatever is in the way and to replace it later.   All perimeter guarding must be removed in order to land loads and install the windows themselves (T. 73).   He believed it would be extremely difficult for a man installing trim to work with a 21-inch guardrail because of the necessity of working under the guardrail to make measurements, drill holes and "strike your line." (T. 74)

Robert Glen [*8]   Dix, the ironworker who was observed at the site by Mr. Tulipana, testified it was impossible to work with toeboards in place and also "impossible to work with the biggest percentage of intermediate rails." He explained that the rails were usually 1 X 8 and that with a 1 X 8 positioned on the floor and a second 1 X 8 approximately 21 inches from the floor there was insufficient space for a man to perform the work (T. 86).   He recalled that Tulipana agreed that it would be appropriate to raise the rails so that the men could fit underneath in a kneeling position, somewhat higher than 21 inches (T. 86-87).

Dix also testified that the final stages of window installation cannot be performed with any rails in place (T. 95-96). The inspection was conducted during the initial framing stages when the workers require free space both to reach out and peer out (T. 97).   After the inspection the framing work was completed without toeboards and with an intermediate rail high enough to leave a 21 to 24 inch opening (T. 98).

Clyde Eugene Quick, respondent's president, testified he knew of no instance where a window erector had fallen from an opening during his 35 years in the business (T. 105-106).   [*9]   He also affirmed that all railings had to be removed in order to install a window unit in the opening and that it was quite awkward for the erectors to work with an intermediate rail because it was harder to drill, read a level, or set a plumb line.   "You practically have to be a contortionist to get the work done." (T. 112) He conceded that it was not impossible to make the installation of the trim with an intermediate rail or toeboard in place but it was very impractical and, in his opinion, increased the hazard (T. 112).

Respondent raises a number of arguments by way of defense.   Among the least persuasive is the contention that the wall openings present no falling hazard because no witness had personal knowledge of window erectors falling during the course of installation. In a similar vein, it was contended that there was no showing that "either a standard rail or intermediate rail will effectively reduce the danger of falling," a necessary element of proof for the application of 29 CFR 1926.500(c)(1)(i).   While noting these arguments, we do not find them persuasive.   Window erectors work in close proximity to sizable openings at dangerous heights. Despite the industry's   [*10]   good safety experience there is an ever present danger of falling. Railings effectively positioned to impede passage through an opening reduce the chances of falling through that opening.

We do not accept the argument that there is no need for falling protection in the window erection industry, but the problem in the instant case relates to the means suggested by complainant.   The record is murky, with both the OSHA representative and the respondent's witnesses waffling on the question of whether the frames could be installed with an intermediate rail in place.   The record may not literally support a finding that it is impossible to align and fasten a frame with an intermediate rail in place, but it is clear that a rail "halfway between the top rail and the floor, platform, runway or ramp" constructed of "at least one inch by six inch stock" renders subsequent steps in the installation process impossible.   It is elementary that a window cannot be fitted into a barricaded opening.

Tulipana's inspection was conducted during an earliest stage in the erection process, i.e., while employees were attempting to align and fasten the frame or trim which would ultimately receive the window.   [*11]   The alignment process can be accomplished only if the worker has sufficient space to peer out and to reach out beyond the edge of the building.   A rail placed at a height which obstructs the workers view and reach is "awkward as the devil" because "it is harder to drill, read a level and set a plumb line."

That complainant recognized the near impossibility of installing the frame with an intermediate rail in place is evident from the citation which alleges, in the alternative, the failure to employ either a midrail guard or safety belts and lifelines.

Even though complainant's evidence be construed in its most favorable light, it carries little conviction that guardrails are an appropriate form of falling protection at any stage of the window erection process.   The alternative, the use of safety belts and lifelines, appears eminently more feasible since their use would not obstruct installation. We therefore find that while regulation 29 CFR 1926.500(c)(1)(i) is not applicable to window erection. Regulation 29 CFR 1926.28(a), the standard which mandates "the wearing of appropriate personal protective equipment in all operations where there is exposure to hazardous conditions"   [*12]   is pertinent, and we must consider its application.

The problem in applying 29 CFR 1928(a) to the instant facts is another form of the "impossibility" defense.   Regulations governing the use of safety belts, lifelines, and lanyards are codified in 29 CFR 1926.104 which provides, in pertinent part:

"(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."

Tulipana and Dix agreed there was no structural member available near the work area capable of supporting a lifeline system.   Tulipana suggested that some form of anchorage be constructed, either from concrete buckets or wooden bracing.   But Tulipana could not state that the floor itself could have supported a 5,400 pound weight.

The record is unsatisfactory and raises fine problems regarding the burden of proof.   Normally, complainant need not introduce evidence regarding the manner of anchoring lifelines when the issue is the employer's failure to require its employers to wear safety belts to reduce falling hazards. But when challenged by testimony that lifelines could not be properly anchored in accord with 1926.104(b), complainant [*13]   must show an available means of anchorage in order to establish that the recommended protective equipment is "appropriate" within the meaning of 1926.28(a).   This complainant has not done, and we are constrained to vacate the alternative allegations referenced to 29 CFR 1926.28(a).

In summary, while persuaded that ironworkers engaged in window erection at dangerous heights should be afforded falling protection, we find no violation of the cited regulations on the basis of the particular facts in the record.


Having held a hearing and considered the entire record herein, it is concluded that a preponderance of the reliable, probative, and sustantial evidence supports the following findings of fact:

(1) Respondent, Quick Erectors, Inc., at all times mentioned herein was a corporation with a principal office and place of business at 597 Hanley Industrial Court, St. Louis, Misouri.

(2) On November 3, 1975, respondent employed approximately four workmen at a construction worksite at 6100 Leavenworth Road, Kansas City, Kansas.

(3) On November 3, 1975, at respondent's aforesaid worksite in Kansas City, Kansas, two employees were working installing frames for windows [*14]   at the edge of wall openings approximately 4' X 8' in size.   There was a drop of approximately 40 feet to the ground from the bottom of the openings.

(4) The wall openings were not provided with an intermediate rail to reduce the danger of falling during the frame installation, nor were the employees wearing personal protective equipment in the form of safety belts attached to lifelines.

(5) The evidence established that it was a near impossibility to complete the frame installation if the openings were barricaded with an intermediate rail constructed and positioned in accordance with the requirements of regulations 29 CFR 1926.500(c)(1)(i) and 1926.500(f), and the evidence established that the final window installation was impossible unless all barricades were removed from the window opening.

(6) The evidence failed to establish the existence of any anchorage or structural member above the point of operation at the fifth floor worksite capable of supporting a minimum dead weight of 5,400 pounds.


(1) Respondent is and at all times material hereto was an employer within the meaning of section 5(a) of the Act.

(2) Jurisdiction of the parties and the subject [*15]   matter is conferred upon the Occupational Safety and Health Review Commission by section 10(c) of the Act.

(3) On November 3, 1975, respondent was not in violation of the safety regulations codified as 29 CFR 1926.500(c)(1)(i) and 29 CFR 1926.28(a).


Based on the above findings of fact and conclusions of law, it is ORDERED that the citation for serious violation issued to respondent November 5, 1975, and the penalty proposed thereon are hereby vacated.

Alan M. Wienman, Judge, OSHRC

June 28, 1976