1 of 153 DOCUMENTS

BETHLEHEM STEEL CORPORATION

OSHRC Docket No. 16067

Occupational Safety and Health Review Commission

December 31, 1981

[*1]

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

Murray N. Shelton, Jr., for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Seymour Fier is before the Commission for review under section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). Judge Fier affirmed a citation that charged Respondent, Bethlehem Steel Corporation, with an other than serious violation of the Act for failing to comply with the occupational safety standard published at 29 C.F.R. 1926.28(a). n1 For the reasons that follow, we reverse the judge and vacate the citation.

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n1 The cited standard reads:

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

The citation on review was issued by the Secretary of Labor ("the Secretary") as a result of a routine inspection by a compliance officer of the Occupational Safety and Health Administration ("OSHA") of a large structural steel construction site in New York City. The citation alleged that Respondent had failed to comply with section 1926.28(a) in that its employees were "not using personal protective equipment while bolting up structural steel members 10 feet above the decking on the 10th floor level." The citation further charged that safety belts worn by the employees were not tied off.

At the hearing before Judge Fier, the compliance officer testified that, during his walk-around inspection of the construction site, he had observed two of Respondent's employees bolting up a horizontal member of the steel structure. The employees had been sitting on this cross beam ("H beam") in a straddled position facing each other as they performed their work. Both workers had been wearing safety belts and lanyards, but their lanyards had not been tied off. The "H beam" was 10 feet above a floor consisting [*3] of tightly-laid resilient wooden planks. In his testimony, the compliance officer stated his opinion that, if one of the employees had fallen, there was a "very reasonable chance" that the employee could have sustained a serious injury such as a broken arm or hip or a concussion. However, the compliance officer did not testify as to his assessment of the risk of an employee falling from the beam.

Respondent presented the testimony of three witnesses, who each had extensive experience in both the steel erection industry and safety matters. The testimony of these witnesses is consistent and mutually corroborative. It establishes the following: (1) the practice in the steel erection industry at the time was to require the use of fall protection only by employees working at a height of at least 25 or 30 feet; (2) the conditions observed by the compliance officer, specifically the absence of tied-off safety belts, were in accordance with the general practice in the industry; (3) employees straddling a beam are in one of the safest possible positions, a position that could be rendered more hazardous if the employees are required to reach beneath the beam to attach a lanyard; (4) the [*4] most likely result of a 10-foot fall onto a resilient planked floor is that the employee will not be injured; (5) neither steel erection workers generally nor the three witnesses in particular view the cited conditions as a safety hazard; and (b) skilled journeyman are customarily employed in work on high erection buildings. n2

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n2 The Secretary attempted to rebut Respondent's showing through the testimony of a second OSHA compliance officer, Peter Richardson, who had worked for 11-1/2 years in the steel erection industry. At best, Richardson's testimony establishes that his former employer, Harris Structural Steel Company ("Harris"), would have required the use of safety belts under the cited circumstances and that employees of Harris on two occasions had suffered serious injuries as the result of falls under conditions assertedly similar to those involved in this case. However, Judge Fier permitted Respondent to file a post-hearing affidavit executed by Harris' safety director and counsel. This affidavit contradicts Richardson's testimony concerning Harris' safety belt policy and one of the two incidents in question.

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II

In his decision, Judge Fier affirmed the citation for other than serious violation and assessed a penalty of $175. He found that the two employees had been exposed to the hazard of falling 10 feet and, based on the testimony of the compliance officer who conducted the inspection, that such a fall could have resulted in serious injury. In addition, the judge found that the employees could have tied off the lanyards attached to their safety belts.

Judge Fier impliedly rejected Respondent's contention that under the cited standard safety belts are required only when employees are working at heights of at least 25 feet in an untiered structure or 30 feet in a tiered building. Relying on a memorandum issued by an OSHA technical support group in Atlanta, Georgia, the judge found that the Secretary intended section 1926.28(a) to apply so as to require the use of safety belts whenever the fall distance is 10 feet or more. n3 The judge concluded that the memorandum "is sufficient by way of interpretation to lend conclusiveness to the enforcement policy of this particular standard." Accordingly, he further [*6] concluded that the Secretary had sustained his burden of proving Respondent's noncompliance with section 1926.28(a). n4

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n3 This memorandum, dated June 27, 1975, was directed to all OSHA area directors. It states in pertinent part:

The subject of personal protective devices and equipment during the erection of steel has resulted in some confusion as to what is required for the protection of the employees.

* * *

In view of the requirements of 29 C.F.R. 1926.451 and 29 C.F.R. 1926.500 which require lifesaving devices to protect the employee against falls, 29 C.F.R. 1926.105 which requires safety nets to limit the fall when other devices are impracticall, 29 C.F.R. 1926.750 and 29 C.F.R. 1926.752 which require permanent and temporary flooring, and the requirements of 29 C.F.R. 1926.28 and 29 C.F.R. 1926.104, it is concluded that lifelines, lanyards, and safety belts should be provided and used during steel erection, when the fall distance is 10 feet or greater, by persons working in such elevated positions. These personal protective devices are in addition to the lifesaving equipment specifically required by the various paragraphs of the standards. (Emphasis added.)

Although it is marked as court exhibit C-1 and included in the official file, the memorandum was never introduced or admitted into evidence. Rather, Respondent sent the memorandum to Judge Fier after the hearing in response to the judge's request for a copy of the document.

n4 At some point after the hearing but prior to his decision, Judge Fier received a large volume of unsolicited letters from employers in the steel erection industry. These letters requested that the judge consider that it is not the industry custom or practice to require iron workers to tie off when working on intermediate floors in tiered buildings. These letters were forwarded to the Review Commission with the official file in this case. There are 40 letters in the file from employers. We agree with the judge that these letters cannot be considered as evidence in the case. The letters were not introduced or admitted as evidence and their authors did not at any time seek to participate in these proceedings either separately or collectively. See 29 C.F.R. 2200.21.

[*7]

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Respondent subsequently filed a petition for discretionary review taking excepting to the judge's finding that its employees were exposed to a hazardous condition and his conclusion that Respondent failed to comply with section 1926.28(a). n5 Former Commissioner Moran directed that the case be reviewed "for error." In response, the Secretary filed a letter stating his reliance on the judge's decision.

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n5 Respondent also contends that 1926.28(a) cannot be read alone but must be read in conjunction with 29 C.F.R. 1926.28(b), 1926.104 and 1926.105(a). When so read, it continues, 1926.28(a) requires the use of safety belts only when employees are working at heights of at least 25 feet. We reject this contention on the basis of Commission precedent holding that 1926.28(a) in itself contains a requirement that safety belts be tied off and further holding that 1926.28(a) applies to fall distances less than the 25-foot distance specified in 1926.105(a). Joseph Bucheit & Sons Co., 78 OSAHRC 43/E9, 6 BNA OSHC 1640, 1978 CCH OSHD P22,770 (No. 14739, 1978); Hoffman Constr. Co., 75 OSAHRC 31/E12, 2 BNA OSHC 1523, 1974-75 CCH OSHD P19,275 (No. 644, 1975), rev'd, 546 F.2d 281 (9th Cir. 1976).

Before the judge, Respondent further contended that 1926.28(a) is inapplicable to the cited conditions because the employees were engaged in steel erection work on a tiered building and these conditions are governed by Subpart R of 29 C.F.R. Part 1926. However, Respondent has abandoned this contention on review. Accordingly, we do not address the issue.

[*8]

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III

In order to establish noncompliance with section 1926.28(a), the Secretary must prove, among other things, that "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." S&H Riggers & Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1263, 1979 CCH OSHD P23,480 at p. 28,436 (No. 15855, 1979), rev'd, No. 79-2358 (5th Cir. Oct. 26, 1981). We conclude that the Secretary has not sustained this burden in the case now before us. n6 Indeed, the clear preponderance of the evidence, as set forth above, supports a contrary finding. We therefore independently find that a reasonable person familiar with the factual circumstances surrounding the alleged violation, including those facts unique to the steel erection industry, would not have recognized that Respondent's employees were exposed to a hazard warranting the use of personal protective equipment. See Accu-Namics, Inc. v. OSHRC, 515 F.ed 828 (5th Cir. [*9] 1975), cert. denied, 425 U.S.903 (1976) (Commission's authority to enter findings of fact). Based on this finding, we reverse the judge's decision and vacate the citation at issue.

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n6 Because the Secretary failed to satisfy his burden of proof as set forth in the Commission decision in S&H Riggers & Erectors, Inc., supra, Chairman Rowland agrees to apply the Commission precedent in the circumstances of this case. Chairman Rowland does not at this time express a view as to whether the burden of proof set forth in S&H Riggers is the appropriate test for determining a violation of 29 C.F.R. 1926.28(a). For the same reason Chairman Rowland finds it unnecessary to consider in this case whether the standard requires the use of safety belts at heights less than 25 feet and therefore does not join in that portion of footnote 5, supra, which addresses this issue.

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In particular, we conclude that the judge improperly relied on the memorandum issued by the Atlanta OSHA technical support group. Memoranda [*10] prepared by the Secretary or his designees do not have the force and effect of law. FMC Corp., 77 OSAHRC 153/D4, 5 BAN OSHC 1707, 1977-78 CCH OSHD P22,060 (No. 13155, 1977). It is sufficient for purposes of deciding this case to conclude that the document in question is an internal statement of enforcement policy and, because there is no showing that at the time of the inspection Respondent was aware of the contents of the memorandum, it has no probative value. Accordingly, the memorandum, which was neither introduced nor admitted into evidence at the hearing, is valueless in determining the issues before us.

For the reasons stated above, the judge's decision is reversed, and the citation alleging an other than serious violation of the Act for failure to comply with 29 C.F.R. 1926.28(a) is vacated.

IT IS SO ORDERED.

DISSENTBY: COTTINE

DISSENT:

COTTINE, Commissioner, dissenting:

The record in this case establishes employee exposure to a hazardous condition requiring the use of personal protective equipment and the Secretary has identified an appropriate form of personal protective equipment to abate the hazard. See, e.g., Turner Welding & Erection Co., 80 OSAHRC 62/A2, 8 BNA OSHC [*11] 1561, 1980 CCH OSHD P24,553 (No. 16235, 1980); J.W. Conway, Inc., 79 OSAHRC 75/F3, 7 BNA OSHC 1718, 1979 CCH OSHD P23,869 (No. 15942, 1979); S & H Riggers & Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979), rev'd, No. 79-2358 (5th Cir. Oct. 26, 1981). Thus, the Secretary has sustained his burden under the cited standard and the citation should be affirmed. n1

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n1 In order to rationalize their vacation of the citation, the majority has entered an independent finding that a reasonable person would not have recognized that the Respondent's employees were exposed to a hazard warranting the use of personal protective equipment. Regrettably, my colleagues fail to set forth the basis for their conclusion. Thus, it can only be surmized, from their general recitation of the facts, whether they discounted the potential for a fall by the unprotected employees or minimized the significance of the resulting injuries if a fall occurred.

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The Commission has consistently affirmed [*12] citations alleging noncompliance with 29 C.F.R. 1926.28(a) where employees were working on steel beams without the benefit of fall protection. See, e.g. Structural Painting Corp., 79 OSAHRC 70/A12, 7 BNA OSHC 1682, 1979 CCH OSHD P23,817 (No. 15450, 1979); Larkan Steel Erectors, 77 OSAHRC 167/B12, 5 BAN OSHC 1783, 1977-78 CCH OSHD P22,100 (No. 15016, 1977); Ray Evers Welding Co., Inc., 77 OSAHRC 181/F7, 5 BNA OSHC 1948, 1977-78 CCH OSHD P22,220 (No. 76-628, 1977), rev'd, 625 F.2d 726 (6th Cir. 1980). Bethlehem's claim that the straddled position is the safest in the steel industry does not require a different result. The straddled position does not eliminate the hazard of falling. It is simply a less precarious position than other positions an employee might assume.

Presumably, if the same employees were performing the same work on the same beam at a height of 30 feet rather than 10 feet, the majority would conclude that a hazard requiring the use of personal protective equipment exists. However, the record in this case indicates that a fall hazard exists at 10 feet. n2 The compliance officer testified that a fall of 10 feet could result in a broken [*13] arm, broken hip, or concussion. Theodore McKosky, Bethlehem's maintenance coordinator, conceded that a fall of 10 feet could result in injury, depending on the position of one's body at impact. Another of Respondent's witnesses, Robert Koch, an individual with 40 years of experience in construction, conceded that a broken bone is possible from a fall of 10 feet. Clearly, a fall is hazardous if one must look to the vagaries of the landing to predict the probability and extent of an injury. n3

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n2 CF. PPG Industries, Inc., 77 OSAHRC 196/E5, 6 BNA OSHC 1050, 1977-78 CCH OSHD P22,344 (No. 15426, 1977), appeal denied, 582 F.2d 1275 (3d Cir. 1978) (hazard obvious where employees exposed to 10 to 15 foot fall).

n3 Other standards contained in Title 29 of the Code of Federal Regulations clearly require fall protection at heights of 10 feet or less, e.g., 1910.23(c) (general industry: open-sided floors or platforms - 4 feet or more); 1926.500(b)(1) (construction: wall openings - more than 4 feet); 1926.500(d)(1) (construction: open-sided floors or platforms -- 6 feet or more).

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Bethlehem's claim that no hazard existed because only skilled workers labored on the beam is unpersuasive. The Commission has consistently rejected reliance on employee skill or attentiveness to protect against workplace hazards. Experience working under hazardous conditions is not a substitute for protective measures or devices. n4 Dun-Par Engineered Form Co., 80 OSAHRC 14/E6, 8 BNA OSHC 1044, 1980 CCH OSHD P24,238 (No. 16062, 1980), pet. for review filed, No. 80-1401 (10th Cir. Apr. 17, 1980); Cornell & Co., Inc., 77 OSAHRC 18/D10, 5 BNA OSHC 1018, 1976-77 CCH OSHD P21,532 (No. 9353, 1977).

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n4 Similarly, Bethlehem's claim that tying off in this situation exposes the workers to a greater hazard is unpersuasive. Bethlehem has not established the greater hazard befense because it has failed to show that: (1) the hazards of compliance with the standard are greater than those existing due to noncompliance, (2) alternative means of protecting exployees are unavailable, and (3) a variance application under 6(d) of the Act would be inappropriate. See National Steel & Shipbuilding Co., 78 OSAHRC 48/A2, 6 BNA OSHC 1680, 1978 CCH OSHD P22,808 (Nos. 11011 & 11769, 1978), aff'd, 607 F.2d 311 (9th Cir. 1979).

[*15]

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Furthermore, Bethlehem's reliance on industry practice must be rejected. Certainly, industry custom and practice are useful reference points in determining whether a reasonable person familiar with the facts would recognize a hazard requiring the use of personal protective equipment; however, custom and practice are not dispositive. S & H Riggers & Erectors, Inc., supra. The Act was passed to improve the safety of working conditions in industry, not to maintain a hazardous status quo. As a consequence, industry cannot be permitted to maintain that status quo by setting its own standards of care. General Dynamics Corp., Quincy Shipbuilding Div. v. OSHRC, 599 F.2d 453 (1st Cir. 1979), citing with approval, S & H Riggers & Erectors, Inc., supra. Furthermore, industry custom and practice must yield to the minimum standards of care mandated by the Act. See Bunkoff Construction Co., Inc., 80 OSAHRC 117/A2, 9 BNA OSHC 1043, 1980 CCH OSHD P24,988 (No. 76-2760, 1980) (Cottine, Commissioner, dissenting). To the extent that the majority bases its conclusion in this case [*16] on record evidence regarding the existing practice in the steel erection industry, their reliance is inconsistent with the Act's goal of improving employee safety and health.

Accordingly, I dissent from the majority's refusal to affirm this citation.