ISAACSON STRUCTURAL STEEL COMPANY

OSHRC Docket No. 1731

Occupational Safety and Health Review Commission

April 30, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission in accordance with Commissioner Cleary's order directing review of a decision of Judge Garl Watkins. Judge Watkins vacated a citation alleging that Respondent was in serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et. seq., hereinafter "the Act") in that it failed to comply with standards published at 29 C.F.R. 1926.28(a) and 29 C.F.R. 1926.105(a). n1 We affirm his decision for the reasons stated herein.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The citation alleged a violation of 29 C.F.R. 1926.105(a). In his complaint, the Secretary sought to amend his citation to also allege a violation of 1926.28(a). While, for the purposes of this decision, we have assumed that the Secretary's amendment was proper, in view of our disposition of this case, we find it unnecessary to decide whether it was, in fact, proper.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

On August 29, 1972, the date of the inspection, [*2] Respondent was engaged in the erection, over water, of an "A-frame" support as part of a log deck it was constructing for a paper mill in Ketchikan, Alaska. At the time of the inspection, the A-frame, which was made of structural steel beams, had been placed in an inverted position (i.e., with the narrow end of the "A" down) on a concrete caisson, the top of which was above the water's surface. The peak of the A was attached to a bearing plate on the caisson, but since this arrangement did not immobilize the frame, it was necessary to use a crane to hold the frame in a vertical position. At this point in the operation, one of Respondent's employees, O'Brien had climbed to the top of the frame in order to drop a plumb line, while two of Respondent's welders, who were standing on a float scaffold, welded the frame to a horizontal truss. When the weld was completed, O'Brien would disconnect the crane from the A-frame. O'Brien was approximately 43 feet above the water, while the welders were approximately 34 feet above the water. The Secretary's compliance officer testified that these employees were not wearing safety belts. n2

- - - - - - - - - - - - - - - - - -Footnotes- [*3] - - - - - - - - - - - - - - - - -

n2 The Judge discredited the compliance officer's testimony that the employees were not wearing safety belts. In view of our disposition, we find it unnecessary to rule on the correctness of the Judge's credibility finding.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

On the basis of the compliance officer's observation of these employees, Respondent was issued the previously mentioned citation. We note as to the two welders, that the Secretary contended throughout this proceeding that the employees were not working on a float scaffold. n3 However, in its brief on review, the Secretary states:

The Secretary concedes that the horizontal truss on which the (welders) were working was a float scaffold and that Respondent should have been cited for a violation of 29 C.F.R. 1926.451(w)(6). Accordingly, we request that the proceedings (sic) be amended to conform to the evidence pursuant to Rule 15(b) of the Federal Rules of Civil Procedure.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 Float scaffolds are defined in 1926.452(b)(9) as:

A scaffold hung from overhead supports by means of ropes and consisting of a substantial platform having diagonal bracing underneath, resting upon and securely fastened to two parallel plank bearers at right angles to the span.

[*4]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

We agree with the Secretary that the two welders were working on a float scaffold and therefore that 1926.451(w)(6) was the applicable standard. n4 However, we cannot agree that a violation of this standard was tried by consent. In this regard, we note that during the hearing, counsel for the Secretary specifically disavowed that the scaffold on which the welders were working was a float scaffold and, therefore, that 1926.451(w)(6) was applicable. Furthermore, part of Respondent's defense at the hearing was based on the inapplicability of 1926.105(a) to the facts of this case. It would indeed be anomalous to say that a respondent who defended against a cited standard on the basis of its inapplicability, tried a violation of a standard that was not cited, by consent. In view of the foregoing, we cannot say that a violation of 1926.451(w)(6) was tried by consent.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 29 C.F.R. 1926.451(w)(6) provides:

(w) Float or ship scaffolds.

(6) Each employee shall be protected by an approved safety lifebelt and lifeline, in accordance with section 1926.104.

[*5]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

As to employee O'Brien, the Secretary contends that he should have been wearing a tied off safety belt (1926.28(a)) or that Respondent should have installed safety nets (1926.105(a)). In regard to the allegation that O'Brien should have been wearing a tied off safety belt, we find that the record clearly establishes that O'Brien was standing on the very top of the inverted A-frame, therefore making it impossible to tie off a safety belt in the manner required by 1926.104(a). n5 With regard to the allegation that Respondent should have provided safety nets, we note that the record establishes that there was no way that safety nets could be hung, and even if they could have been hung, that the cables being used by the paper mill to pull in logs would have torn the nets. Therefore, we conclude that the Secretary has failed to establish that Respondent could have complied with either of the cited standards.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 29 C.F.R. 1926.104(b) requires that safety belts shall be secured above the point of operation.

[*6] - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The focus of the Secretary's case appears to be that Respondent could have determined plumbness of the A-frame through the use of instruments set up on the ground (i.e. without sending an employee to the top of the structure). If this was the Secretary's intent, he should have cited Respondent for violation of section 5(a)(1) of the Act, since neither 1926.28(a) nor 1926.105(a) require an alternative means of performing the work. Furthermore, at this stage of the proceeding, we will not amend the pleadings to allege a violation of section 5(a)(1) since to do so would prejudice Respondent. Murro Chemical Company, Inc., 12 OSAHRC 364, BNA 2 OSHC 1268, CCH E.S.H.G. para, 18,818 (1974) (Concurring Opinion).

Accordingly, it is ORDERED that the Judge's decision be and the same is hereby affirmed.

DISSENTBY: CLEARY

DISSENT:

CLEARY, COMMISSIONER, dissenting: I would reverse the Judge for the reasons given below.

I

On August 29, 1972 Compliance Officer Darrell Miller conducted an inspection of respondent's worksite at Ward Cove, near Ketchikan, Alaska. Respondent was installing a log deck for the Ketchikan [*7] Pulp Company. A citation for serious violation was issued on October 17, 1972, alleging that employees were permitted to work 25 feet or more in the air without safety nets, safety belts, lifelines, scaffolds, or catch platforms, contrary to 29 CFR 1926.105(a). n6

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n6 The standard reads follows:

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.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

At the worksite respondent's employees were engaged in the erection, over water, or a structural steel inverted "A-frame" support tower on top of a concrete pier or caisson. The caisson had a surface of 20 square feet. The inverted A-frame had been hinged to the caisson, but a crane held it in place because it was not completely secure. Respondent's employees treated the A-frame as a "live load," i.e., a load not securely fastened and subject to movement. The last part of the operation [*8] which is of concern here was the welding of the A-frame to a horizontal steel truss. The truss was securely fastened to an adjacent pier, and extended to a point where the A-frame could be attached. n7

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n7 Part of the basis for the original citation was the fact that the welder, who was going to secure the A-frame, and his helper were working more than 25 feet in the air without benefit of any of the safety items listed in 29 CFR 1926.105(a). The facts revealed that a specific standard (29 CFR 1926.451(a)(6)) governed the welders' work. While ordinarily an amendment pursuant to Rule 15(b) F.R.C.P., to allege the proper standard would be in order, in this instance both at the hearing and in his post-hearing brief, the Secretary refused to concede that 1926.451(w)(6) was the proper standard. It was only before the Commission that the Secretary sought an amendment. On these facts I agree with the majority that the requisite consent for a Rule 15(b) amendment was lacking. The decision to affirm the Judge as to the welder and his helper is correct. See Godwin Bevers Co., Inc., No. 1373 (January 7, 1975) (Cleary, Commissioner, dissenting); Granite-Seabro Corp., No. 923 (August 16, 1974) (Cleary, Commissioner, concurring).

[*9]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

One of respondent's employees, Eddie O'Brien, who is a "connector," is particularly involved in this case. After the A-frame was hinged (albeit insecurely) to the caisson, O'Brien climbed up to a wide steel beam at the top of the A-frame in order to determine when the frame was correctly positioned so that it could be welded. During this operation the frame could move three of five inches. After the A-frame was welded to the truss, O'Brien was to release it from the crane. Safety nets were not used and the work was performed more than 40 feet above the water.

II

Judge Watkins found that the Secretary had produced no credible evidence that O'Brien failed to wear a safety belt. n8 The Judge discounted Compliance Officer Miller's testimony that the employee did not have a safety belt for two reasons: (1) his answers on direct examination were elicited by leading questions and (2) supposedly contradictory answers to questions asked on direct examination were given on cross-examination. The Judge was unduly concerned with a matter of form in eschewing the testimony. Any probative weakness [*10] ascribed to questions that elicit a "yes" or "no" response should not be exaggerated. Prince, Richardson on Evidence (9th ed.) 491.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n8 See note 2 of the majority opinion.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Judge also found that the following testimony "completely discredited" Miller.

Q. (By Mr. Short) [Respondent's lay representative.] Referring to the [S]ecretary's exhibit number 1 which indicates the employee on top of the A-frame, at any time, Mr. Miller were you close enough to this individual to where you personally could see that he was not wearing a safety belt of any kind from this distance (emphasis added)?

A. I was trying to recall. I can't actually remedmber. It may have been one of the other employees who climbed up, but it seems like I was there when he climbed up the steel. Well, I would honestly have to say no.

Q. You don't know for a fact that he did not have one on?

A. Right.

These questions and answers were directed to Miller's observations concerning the Secretary's exhibit number 1. This exhibit, [*11] a photograph, shows an employee on top of the A-frame. It was, however, taken from a considerable distance, and Miller's concession that, "from this distance" he could not spot a violation is understandable. I do not infer from the above testimony that he had never seen an employee on the A-frame without a life belt and lanyard.

The compliance officer's understanding of the situation is set forth later in the record on re-cross examination:

Q. [By Mr. Short] Now this, [S]ecretary's exhibit number 1, you indicated you didn't know for sure whether this was a man who was wearing a life belt or not, but on this one (Secretary's exhibit number 6) you say it is definite that he was not?

A. I believe your question, Mr. Short, was from this distance could I positively say he wasn't, and I said, no, I couldn't. This distance is considerably further than this one (depicted in Secretary's exhibit number 6).

Secretary's exhibit number 6 also shows a workman on the A-frame, but Miller took this photograph at close range. I therefore do not believe that Miller's testimony was discredited, and would accord it fair weight.

Miller testified that the connector was not wearing [*12] a safety belt. Furthermore, respondent's job superintendent and welding foreman both agreed that employees did not "tie-off" under a live load. From this very substantial credible evidence I would conclude that O'Brien was not wearing a safety belt. n9 Cf. Adolph Coors v. F.T.C., 35 Ad.L. (2d) 174 (10th Cir. 1974).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n9 Indeed, from the tenor of footnote 2 and text of the majority opinion I believe they have concluded that employee O'Brien was not wearing a safety belt.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

III

The majority vacates the citation issued to respondent for violation of section 5(a)(2) of the Act for non-compliance with 29 CFR 1926.28(a) and 1926.105(a) because the,

. . . record clearly establishes that O'Brien was standing on the very top of the inverted A-frame, therefore making it impossible to tie off a safety belt in the manner required by 1926.104(a) (footnote omitted) (emphasis added).

With respect to the 1926.105(a) allegation, the majority notes that the record establishes that "there was no way" that safety [*13] nets could have been hung.

I agree that safety nets would have interfered with the logging operation as noted by the majority and that they probably would have been ineffective in this case. The majority opinion notes at footnote 5, however, that 29 CFR 1926.104(b) provides that safety belts be secured above the point of operation. This is wrong. Safety standard 29 CFR 1926.104(b) provides that:

Lifelines shall be secured above the point of operation to an anchorage or structural member capable of supporting a minimum dead weight of 5400 pounds (emphasis added).

There is no requirement that a safety belt be secured above the point of operation. The standard 29 CFR 1926.104(a) is limited specifically to lifelines. The terms "safety belt" and "Lifelines" have separate meanings. See 29 CFR 1926.107. Moreover, respondent did not investigate whether O'Brien could have tied-off by means of a lanyard n10 to another steel girder. There is no requirement that a lanyard be tied-off above the point of operation. In fact, respondent's general superintendent admitted on cross-examination that he did not know if a rope (lanyard) could be secured by a [*14] steel girder and used for purposes of tying-off. Thus, the record does not establish any defense that it was impossible for O'Brien to have tied-off. n11 Respondent's assertions and the majority's conclusions on this point are at best speculative.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n10 Safety standard 29 CFR 1926.107(b) defines "Lanyard" to mean:

. . . a rope, suitable for supporting one person. One end is fastened to a safety belt or harness and the other end is secured to a substantial object or a safety line.

n11 Respondent's superintendent gave no consideration to determining the plumbness of the A-frame by any other method than to have O'Brien climb the frame, i.e., from the ground by use of instrumentation.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

IV

Respondent argued at the hearing that its policy of not requiring safety belts when employees worked under a live load was necessary for safety purposes. This Commission considered a similar contention in Industrial Steel Erectors, Inc., No. 703 (January 10, 1974). In that case we held that an employer may affirmatively [*15] establish that compliance with a standard would endanger employees rather than protect them. In Industrial Steel Erectors, however, we expressly noted "that the scope of this decision is narrow and is to be construed strictly in light of the peculiar circumstances of this case." In Industrial Steel Erectors, employees were working under a live load. A steel structure was being dismantled. In order to dislodge one steel truss, the bolts were removed. It was contemplated that, when pressure would be exerted to spring the truss loose, its movement would be unpredictable and hazardous. The employees refused to tie-off under these circumstances. Industrial Steel Erectors successfully demonstrated that a tied-off lanyard would restrict employee movement when the truss was dislodged, thus preventing possible escape.

The instant case is readily distinguishable from Industrial Steel Erectors on its facts. Substantial reasons for fearing that the A-frame would break loose do not appear in the record. Furthermore, the reasonableness of respondent's fears are belied by the fact that the two welders working under the unsecured A-frame were told to tie-off after the compliance [*16] officer made his presence known. Another employee, working on the caisson to which the unsecured A-frame was hinged, was also tied-off. I would herefore hold that respondent has failed to establish "that the safety or health of employees would be endangered rather than protected by compliance with a standard in light of the operative facts. . . ." Industrial Steel Erectors, Inc., supra.

The decision of Judge Watkins was issued before the Court of Appeals decision in Brennan v. Southern Contractors & O.S.H.R.C., 492 F.2d 498 (5th Cir. 1974). See also, Brennan v. Verne-Woodrow & O.S.H.R.C., 494 F.2d 1181 (5th Cir. 1974). On facts similar to those herein, the Court in Southern Contractors reversed the Commission and held that 29 CFR 1926.105(a):

. . . must be read to require an employer to employ either a safety net or one of the other safety devices listed in the regulations, and hence that failure to use any of such devices is a proper predicate for the imposition of sanctions prescribed in the Occupational Safety and Health Act of 1970. 492 F.2d at 501. n12

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n12 But see Brennan v. O.S.H.R.C. and Ron Fiegen, Inc., 513 F.2d 713 (8th Cir., 1975), which holds differently, but which is silent on the holding of Southern Contractors.

[*17]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In this case, none of the safety devices included in 29 CFR 1926.105(a) were used by respondent to protect employee O'Brien. Judge Watkins' conclusion that the Secretary failed to carry his burden of proof that O'Brien was not wearing a tied-off safety belt is error. As discussed above, the weight of evidence establishes that O'Brien was not tied-off while he worked on top of the A-frame.

V

Section 17(k) of the Act requires, among other things, that for a serious violation to be established the employer must have known, or "with the exercise of reasonable diligence" could have known of the presence of a violation. Judge Watkins concluded that "one-to-one" supervision would have been necessary for respondent to have known of the violation regarding O'Brien. I do not agree. Respondent's job superintendent was on the job at the time of inspection. O'Brien was "perched" on top of the inverted A-frame, clearly visible from any place on the job-site, for over 45 minutes. Moreover, there were only eight of respondent's employees working, and O'Brien was performing a critical function during [*18] that period. On these facts, respondent's job superintendent could have, "with the exercise of reasonable diligence," discovered the violation. Accordingly, I would find respondent in serious violation of section 5(a)(2) of the Act for failing to comply with 29 CFR 1926.105(a).

[The Judge's decision referred to herein follows]

WATKINS, JUDGE: In this enforcement action under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq. ), the only question for decision is whether on August 29, 1972, Respondent Isaacson Structural Steel Company, was in serious violation of Section 5(a) of the Act at a work site located at Ward Cove, near Ketchikan, Alaska; where Isaacson was installing a log deck for a mill of the Ketchikan Pulp Company.

The incident had to do with alleged hazard to three of Respondent's employees during the process of installing an "A frame" support tower on top a concrete pier or caisson constituting part of the understructure of the log deck. Inspection by a Compliance Officer was on August 29, 1972. A citation was issued October 17, and an amended Citation for another violation, and thus a new Notification of Proposed [*19] Penalty, on October 26. The Citation under consideration here stated:

Citation for Serious Violation

Citation Number: 1

Date Issued: October 17, 1972;

EMPLOYER: Isaacson Structural Steel Co.

(Street);

ADDRESS: P.O. Box 3625, (City) Seattle, (State) Washington, (Zip) 98124

An inspection of a workplace under your ownership, operation, or control located at Ward Cove, Alaska, Ketchikan Pulp Company and described as follows: Structural Steel Construction -- Log Deck has been conducted. On the basis of the inspection it is alleged that you have violated the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, in the following respects:

Standard or regulation allegedly violated 29 CFR Part 1926 -- Description of Alleged Violation August 29, 1972 -- Date on which alleged violation must be corrected

(Formerly 29 CFR Section 1518, as adopted by 29 CFR Section 1910.12)

1926.105(a) -- Employees permitted to work 25 feet or more above ground or water were exposed to falling without the use of safety nets, safety lifelines with attached safety belts, scaffolds or catch platforms. -- Immediately upon receipt of this citation.

The proposed penalty was $600.00.

It should be [*20] noted here the Citation, while alleging a violation of "29 CFR Part 1926" specifically alleged "1926.105(a)." Section 105 has to do only with safety nets and requires their use under certain conditions. The description of the alleged violation also referred to "safety lifelines with attached safety belts, scaffolds or catch platforms."

When the Secretary's Complaint was served December 1 it sought to correct the Citation, alleging:

IV

On August 29, 1972, at the aforesaid worksite and place of employment, the respondent violated the safety and health regulations for construction in the following respects:

Employees permitted to work 25 feet or more above ground or water were exposed to falling without the use of (safety) nets, safety lifelines with attached safety belts, scaffolds or catch platforms, or other appropriate personal protective equipment, contrary to 29 C.F.R. 1926.105(a) and as required by 29 C.F.R. 1926.28.

(Bracketed word of Citation omitted from the Complaint -- underlined portion added.)

Paragraph XI of the Secretary's Complaint states:

This Complaint has clarified, and otherwise amended the above mentioned Citations in the description of the [*21] violations as well as the designation of regulations violated. Accordingly, the Citations heretofore issued in this proceeding are deemed to be hereby also so amended.

This generalization and "deemer" regarding amendment of the Citation -- otherwise known as a shotgun approach -- does not conform to Rule 33(a)(3) of the Rules of Procedure of the Commission. This fact was pointed out to Counsel at the outset of the hearing. Respondent did not object to the amendment or to any evidence.

In fact no ruling was made on the amendment, presumably because Respondent's lay representative made no request for it. Hindsight indicates to the trial judge that a more orderly proceeding would have followed if a ruling had been made at the start of the hearing on (1) the timeliness of the proposed amendment, and (2) the sufficiency of the pleading, as amended. (This decision does not pass on the question of timeliness, nor does it decide the timeliness of the issuance of the Citation -- a month and eighteen days after the inspection.)

The standard added by the amendment provides:

1926.28 Personal protective equipment.

(a) The employer is responsible for requiring the wearing of appropriate [*22] 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.

(b) Regulations governing the use, selection, and maintenance of personal protective and lifesaving equipment are described under Subpart E of this part.

It should be noted that paragraph (a) places on the employer the duty of requiring the wearing of "appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions." The term "hazardous conditions" is not defined.

Paragraph (b) points out that regulations regarding the "use, selection and maintenance of personal protective and lifesaving equipment are described under Subpart E."

Subpart E, so headed, then provides for seven different kinds of equipment, or situations in which it should be used, in the following subparagraphs:

100 -- Head protection

101 -- Hearing protection

102 -- Eye and face protection

103 -- Respiratory protection

104 -- Safety belts, lifelines and lanyards

105 -- Safety nets

106 -- Working over or near water

There is no indication whether "safety [*23] belts, lifelines and lanyards" are designated as "personal protective equipment," or "lifesaving equipment," or both.

At this point the pleading alleged only a violation of the safety net standard. As to any other claimed violation, an allegation that Respondent failed to provide ". . . . nets, safety lifelines with attached safety belts, scaffold or catch platforms, or other appropriate personal protective equipment, . . . ." and including only the safety net standard and 29 CFR 1926.28; hardly meets the test of Section 9(a) of the Act that ". . . each citation . . . . shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated."

The sufficiency of an allegation of even a safety net violation is questionable, since there is no allegation the use of other devices was "impractical."

Counsel for the Secretary contends among other things that since 29 CFR 1926.104 does not require the use of lifebelts, a charge of failure to use them must necessarily come under the general section -- 29 CFR 1926.28. This contention is not sound because:

First: The fact there [*24] may be no valid way to charge a violation does not validate a defective pleading -- or defective proof.

Second: Throughout the standards there are specific provisions requiring the use of safety belts and lifelines. For example, two of the three men involved were working on a float scaffold and there are two sections requiring the use of safety belts and lifelines in this situation. 29 CFR 1926.451 Scaffolding, under subsection (w)(1) provides in part:

They . . . . [float scaffolds] . . . . shall be constructed as designed in subparagraphs (2) through (6) of this paragraph, unless substitute designs and materials provide equivalent strength, stability, and safety.

Subsection (w)(6) also provides:

Each employee shall be protected by an approved safety lifebelt and lifeline, in accordance with 1926.104.

29 CFR 1926.752 "Bolting, Reveting, Fitting-Up, and Plumbing-Up," under Section (k) provides:

Employees shall be provided with safety belts in accordance with 1926.104 when they are working on "float scaffolds."

Third: This is not a definite charge of failing to provide safety belts. It is equivocal; in the Secretary's pleading, in his proof and in his argument. [*25]

A statement of counsel in colloquy during his closing argument is indicative of the Secretary's position. The trial judge asked "Mr. Preston, have you charged anything but the violation, the charge that they required a safety net?" Counsel replied:

Mr. Preston: The respondents violated the safety and health violation -- regulations in the following respect: "Employees permitted to work 25 feet or more above the water exposed to fall without the use of nets," or in essence, safety lines with attached safety belts, scaffolds or catch platforms or other personal protective equipment contrary to 105. Also as required by 1926.28. As I understand the Judge's comment, it's not saying 105 and as 105 is required by 28 it's saying that as required, meaning that these are meeting the requirements of both of these standards, that you have to do something; either you have to meet the requirements of 105 by the net, if the others are impractical, or generally, meet the requirements of 28 which means providing something. If they provide something, for example, lifelines, they would have met the requirements of 105.

In his brief after an argument that the "float scaffold -- safety [*26] belt" provision in the standards is not applicable (and interestingly because "the Respondent has produced no evidence that the platform the welder and his helper were working from was a float scaffold within the meaning of the standards,") counsel states on page 18 of the brief:

The standard also has no application because the complaint does not allege a failure to provide or require the use of safety belts, but rather that the employer permitted employees to work or move above the ground or water where they were exposed to falling without the use of nets, safety lifelines with attached safety belts, scaffolds or catch platforms, or other appropriate personal protective equipment, contrary to 29 C.F.R. 1926.105(a) and as required by 29 C.F.R. 1926.28. This is a charge of a failure to select from and enforce one of several alternative appropriate remedies, and not one particular one.

The Complaint probably contains a sufficient allegation of the violation of the safety net standard, even though expressed in the alternative. Following that however, the Secretary in effect is saying "Respondent's employees were in danger of falling. It should have provided whem with a safety [*27] net, safety lifelines with attached safety belts, scaffolds, catch platforms or SOMETHING."

The standard is broad, general, vague and indefinite; requiring personal protective equipment "where there is an exposure to hazardous conditions." The allegation of the Complaint -- and subsequent proof -- are even less specific.

Thus this is either a safety net case (29 CFR 1926.105(a), or an attempt to prove a violation of the general duty clause of the Act (Section 5(a)(1)).

The Secretary's effort fails in either case. First, there is no safety net violation because the required proof of the impracticality of other devices is absent.

Counsel has at no time contended there was a violation of 5(a)(1). The record simply comes closer to showing this than it does to showing any other violation. On this theory the Citation and Complaint fall because:

1. a general duty clause violation cannot be proved under allegations of the violation of specific standards, and

2. proof is insufficient to show a violation of Section 5(a)(1) of the Act.

Nor is the proof such that the pleading can be deemed amended to conform to it. It is simply insufficient. There is no proof of a "recognized" [*28] hazard "causing or likely to cause death or serious physical harm." Nor does the record meet the test of Rule of Civil Procedure 15(b) that ". . . issues not raised by the pleadings . . ." were ". . . tried by express or implied consent of the parties . . ." The Secretary has specifically asked only for a finding of a violation of one of several specific standards -- without designating which; and without proving any.

Under the circumstances a somewhat detailed analysis of the evidence seems necessary.

John Kelly is the general superintendent of Respondent. In meetings or planning sessions before the job started he discussed the use of safety equipment with engineers and safety people of Ketchikan Pulp Company.

Safety nets were ruled out because they were impractical. The nearest place to tie them would be more than one hundred feet away. If it were possible to install them with existing structures, they would be used during the day shift in an area where they could not remain on the two night shifts of the pulp mill because of the presence of boats, logs and equipment used in the regular course of the mill's operation. During construction the mill operated two night shifts [*29] and suspended its day shift "leaving the daylight" to the construction crews.

Buoyant life jackets and safety belts and lifelines were agreed upon as the most practical safety equipment to be used.

Leo Kelly was Respondent's job superintendent. Work started about August 14. Life jackets were issued to all employees at the time they were hired. Safety belts and lifelines were first issued on August 18 or 19 when the crew first started "putting up the steel."

Safety meetings were held weekly. Kelly admitted to some difficulty in getting the men to wear both types of safety equipment. Nonetheless, he enforced the company rule that all men were to tie off when they were in a position requiring it, unless to do so would increase the danger to them, or be impossible. Since the entire crew, including Kelly, consisted of eight men, only five of whom worked "on the steel" at any time, he was successful most of the time. Some resistance to the use of the equipment continued, and increased as the job neared an end because of the expense of obtaining additional help. The workmen involved were not identified, and the times safety equipment was not used were not specified. [*30]

One of Kelly's eight man crew "counting myself" was Dave Turner. His job was "welding detail foreman." Kelly testified Turner was the "welding foreman" and also that he was the foreman who was responsible for the job when Kelly was away.

However, Turner was the only welder on the job. He had one helper, Art LaFrance. Kelly was not away from the job at any time pertinent to this inquiry. There is no evidence in the record from which it might be inferred that any responsibilities of Respondent regarding safety to its employees were delegated to Turner. Testimony of both Kelly and Turner is to the contrary.

The log deck for which Respondent provided and erected the structural steel (or perhaps a portion of the deck -- we are here concerned with only one small area) was constructed over water. The depth does not appear from the record. Four solid concrete caissons or piers had been erected about one hundred feet apart. The top of each was level, flat, twenty feet square, and about sixteen feet above high water at extreme high tide. One of the witnesses testified the top was sixteen feet square or less. This is corrected by the scale drawing in evidence as Secretary's Exhibit [*31] No. 9, which shows it to be twenty feet.

On the flat top of each caisson or pier are bearing plates held by anchor bolts embedded in the concrete. Respondent's employees were setting in place an A frame support tower. The A is in an inverted position. Each end of the peak fits into a bearing plate and is fastened there by a pin, described as from six to eight inches in diameter and a foot to a foot and one-half long.

Thus with the A frame inverted, and with the pins inserted holding it to the caisson or pier, it is in effect "hinged" to the pier. All the while it was supported by the crane which had hoisted it into place. The last part of the operation was to weld the A frame to a horizontal structural steel truss which is securely fastened on an adjacent pier, and extends to a point where it can be welded to the A frame to be put in place.

Three of Respondent's employees are involved. Eddie O'Brien was a "connector." After the structure was fastened to the pier, he climbed to a wide steel beam, forty-three feet above the pier and about three-fourths of the way to the top.

He stayed there about forty-five minutes. He had two jobs. First, to lower a plumb line [*32] to determine when the frame was exactly in place so the welders could "freeze" it. At this time the frame might move three to five inches. Second, after the structure was welded firmly in place, O'Brien's job was to release it from the crane.

Further down, fourteen feet above the pier, Dave Turner and his welder's helper, Art LaFrance, were on a float scaffold fastened securely to the horizontal truss to which the A frame was then welded.

The two men were not tied off before the weld was made; and were tied off thereafter. This is the testimony of Turner, and is accepted.

The evidence does not disclose whether or not O'Brien, the man up on the A frame; wore a life belt, or whether he was tied off. The only credible evidence regarding this is from Turner on pages 109 and 110 of the transcript:

Q. You previously stated that when you were working on the welder's float which is attached to the truss, the reason you didn't tie off to this was because this was also not secure?

A. That's right. After this support had been secured then these men were tied off again, including myself, but it's hard to get the picture here from a photograph. It's very difficult even for [*33] me. I know this whole thing, but it's hard to picture the problem there. You see, this thing is moving all the time, the rig itself is on water so that the boom is moving constantly, and our job was to catch this thing with the welding and freeze it in a plumb position, and we had to be free to move. (Emphasis added)

This evidence is not deemed sufficient to show that the connector, Eddie O'Brien, was or was not tied off at any particular time.

To so find, of course, is to disregard the testimony of the Compliance Officer, Darrell Miller. We regret to find his testimony on this point not to be credible, and therefore as to this fact it is disregarded entirely.

Miller testified he saw the employees on the concrete pier and did not "observe any safety belts being used by anyone." As to ". . . violations evidenced in this photograph?" (Secretary's Exhibit 6), he answered, "The lack of protection for the employees. Safety belts or nets." He also said on page 62:

Q. Did you see any safety belts or safety lines whatever on any of the men at that time?

A. No, I did not.

He answered "No" to the question, "Did you observe any safety belts or safety lines on the employee [*34] on top of the A frame?"

Further testimony refers to a time somewhat later after Miller belatedly talked to the job superintendent. After contacting Kelly, in answer to question, "Did you observe the violations that you had observed prior to your contact with Mr. Kelly?" the witness answered, "Yes." Further, on pages 72 and 73 of the transcript is the following:

Q. From the area where you were standing, could you see violations that you have alleged?

A. Yes.

Q. Were the violations you observed during your conversation with Mr. Kelly the same violations you observed prior to your contact with Mr. Kelly when you were standing on the dock?

A. Yes.

Q. Were these violations also the same violations which are evidenced in secretary's exhibits 1 through 8 which you have taken?

A. Yes.

However, on cross examination is the following testimony:

Q. (By Mr. Short) Referring to the secretary's exhibit number 1 which indicates the employee on top of the A-frame, at any time, Mr. Miller, were you close enough to this individual to where you personally could see that he was not wearing a safety belt of any kind from this distance?

A. I was trying to recall. I can't actually [*35] remember. It may have been one of the other employees who climbed up, but it seems like I was there when he climbed up the steel. Well, I guess I would honestly have to say no.

Q. You don't know for a fact that he did not have one on?

A. Right. (Emphasis added)

There were later statements of the witness on redirect examination when counsel attempted to rehabilitate him to same effect as the evidence previously given. It is difficult to see how any rehabilitation could destroy the effect of the foregoing questions and answers. At least as to this part of his evidence, Mr. Miller is completely discredited.

We note that almost without exception Miller's testimony on direct examination was a "yes" or "no" answer to leading questions about whether he "observed" or "saw" safety belts or "violations." Only one answer referred to O'Brien alone, and it was "No" to a question about whether he "observed."

When the A frame had been attached to the pier, Kelly went to a nearby telephone to make a call. The record does not disclose how long he was gone, but when he returned the weld had not been made. When he left O'Brien was on the pier. When he returned he did [*36] not see O'Brien.

Immediately on his return he was paged over the loud speaker and started immediately for the barge where Miller was waiting for him. He did not know at that time who was there to see him.

As he left the pier, he noticed the life belts of Turner and his helper lying on the pier beneath them. He tossed the men the two belts and told them to tie off.

Thus for the purpose of discussion we can assume (if we care to do so) that there is a valid charge of failure to provide life belts and require the men to use them -- even at a time when the load on the crane was not secure. On this assumption -- and on this record -- there is no proof of a violation on the part of Respondent.

Kelly had no reason to know whether or not O'Brien was wearing a life belt and lifeline or whether or not he was tied off. Absent "one on one" supervision no violation is proved.

As to Turner and LaFrance, he noticed their life belts were on the pier, tossed them up and told the men to tie off.

We are mindful of the testimony in the abstract of John Kelly, the general superientendent, Leo Kelly, the superintendent on the job, and Dave Turner, the welder, that it was unsafe to tie off under [*37] a live load; or that steel workers do not tie off under a live load; or that it was unsafe to tie off until the load carried by the crane was "froze." Leo Kelly further testified that he would not require a man to tie off under a live load, but there is no evidence he gave such instructions to the three men, or to any others. He did not know O'Brien was on the structure. He tossed safety belts to Turner and LaFrance, and told them to tie off.

Counsel for the Secretary goes to some length to argue that the scaffold from which Truner and his helper were working was not a float scaffold. The statement of his position was made at the conclusion of the hearing.

An argument is made to this effect in counsel's brief (page 18) where the somewhat amazing observation is made that "Respondent has produced no evidence . . ." to prove the welder and his helper were on a float scaffold; without suggesting a reason Respondent must prove anything in other to avoid being found in violation of law. Counsel's apparent reason is to avoid a finding of an invalid citation and complaint because they were not based on 29 CFR 1926.451(w)(6) or 752(k), both of which require safety belts [*38] on float scaffolds.

However meritorious, and whether or not material, the effort fails. The definition of float scaffold is not inflexible with respect to size and type of construction (29 CFR 1926.451(w)(1)). Miller, the Compliance Officer, so named it in his testimony. Counsel so described it in questioning his witness, and as a "welder's float" in questioning another. Dave Turner labeled it a "welder's float"; and from the pictures introduced as exhibits by the Secretary, the platform appears to be what the standards define and describe as a "float scaffold"; which it is found to be.

Darrell Miller is the Assistant Area Director of the Occupational Safety and Health Administration for Alaska. With an assistant he was training, he had conducted three inspections that day. Respondent was the fourth.

The two men approached the area where Kelly and his men were working and stood on the "dock" (pier) for a half hour. While there Miller took pictures -- six of which were introduced as exhibits. This took "a few minutes."

He said he called out to no one because he was afraid such a call might endanger the men in their work. A barge and crane operator were "50 to 75" or "50 [*39] to 100" feet from him during the entire time, and he made no move to speak to the crane operator. Finally a workman passed him -- apparently not an employee of Respondent -- and in response to an inquiry Miller was told Kelly was probably on the barge with the crane operator. He and his assistant then travelled the fifty feet and asked the crane operator where he could find Kelly, who was then paged on the public address system and came down immediately.

When he first saw Kelly, Miller had already made all the observations and taken all the pictures he felt he needed to substantiate the charges he intended to bring against Respondent. He so informed Kelly. He took two more pictures -- one on the barge and one after he returned to "land" but they add nothing to the record.

Kelly estimates that his talk with Miller lasted fifteen to twenty minutes. Miller said it lasted an hour to an hour and a half. The difference is immaterial. The entire "inspection" consisted of Miller telling Kelly the "violations" he had found; and in the process taking one more picture.

This case presents first, an allegation of a violation of the safety net standard (29 CFR 1926.105(a)) of [*40] questionable sufficiency. The Respondent must prevail on this charge because there is neither allegation nor proof that the use of "ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical." From the evidence it would appear that temporary floors and ladders would be impractical. There is some evidence that the use of safety belts and safety lines might be impractical during part of the erection of the A frame support tower. This need not be decided because there is neither allegation nor evidence of the impracticality of the other named safety devices. Verne-Woodrow Co., Docket #1607, Southern Contractors Service, Docket #1492, B & J Mechanical Contractors, Docket #1670, Drake -- Willamette Joint Ventures, Docket #117; and cases and authorities cited therein.

Paragraph IV of the Complaint, in adding to the Citation language "or other appropriate personal protective equipment, contrary to 29 CFR 1926.105(a) and as required by 29 CFR 1926.28" does not allege a violation other than the safety net charge -- or otherwise make an additional violation an issue in the case.

1. A fair reading of the language indicates [*41] the added standard refers only to the safety net violation (105(a)) and to that alone.

2. 29 CFR 1926.28 is broad, general, vague and indefinite. No specific violation was charged. Rentenbach Engineering Co. and McDowell -- Purcell, Inc., Dockets #507 & 525, Tilo Co., Docket #211, Grayson Lumber Co., Docket #793, Moser Lumber Co., Docket #1221, Edward M. Ream, Inc., Docket #1504 (under review).

The proof does not improve Complainant's position. Under the evidence the only possible contentions of violations of specific standards that could be made are requirements for (1) safety net, or (2) safety belts and lifelines. As heretofore pointed out, the proof fails on both.

Although not so stating, the whole thrust of the Secretary's effort in the case in the pleadings, statements of counsel, the proof, and in Secretary's brief has been to show, not that Respondent was in violation of any specific standard or standards, but rather that Respondent failed to provide its employees a safe place to work and was thus in violation of the general duty clause. There was no allegation of a violation of Section 5(a)(1) of the Act and no motion to amend. Most important, [*42] there was a failure of proof of any such violation.

The Citation and proposed penalty must be vacated, and the Complaint of the Secretary dismissed.

A number of other interesting questions are presented but are not discussed because their resolution is unnecessary to this decision. They include:

1. the timeliness of the issuance of the original Citation one month and eighteen days after the inspection;

2. whether Respondent was prejudiced by the amendment to the Complaint. As stated at the outset, no specific ruling was made as to whether the Complaint should be amended. This was regrettable even though no objection was made to such amendment; and the case was treated as though the amendment had been allowed. Ancillary to this would be the further question as to whether the amendment had the effect of charging a new and different violation and thus whether this was timely.

3. the ill-advised conduct of the Compliance Officer in failing to comply with statutory procedural etiquette. n1

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 This term is used advisedly because it is appropriate. This is true even though some may deplore the use of an epithet of social deportment to describe a situation involving somebody's fundamental rights.

So far as we recall, the Review Commission has thus far dealt only with the rights of the parties ". . . . during the physical inspection of" . . . . a . . . . "workplace" under Section 8(e) of the Act. It has thus far been unnecessary to determine the rights of the same parties during an investigation.

The statute clearly contemplates that a Citation may be based on evidence developed by an investigation; and is not limited to that produced by an inspection.

The statutory language is permissive and in no way restrictive in allowing the Secretary to "inspect and investigate . . . ." the workplace; and in giving him subpoena power "in making his inspections and investigations" (Sections 8(a) and 9(b)).

Then Section 9(a) provides that a Citation may be issued "upon inspection or investigation."

We find no statutory provision limiting or delineating the course this investigation is to follow. Other than an implied requirement of legality -- there would seem to be no limit on the Secretary's actions. Nor are there limits on the time, place or methods; and certainly none on the attendance or notification of anyone. Indeed, we find no requirement that the Secretary make an inspection at all -- or that his representative go near the workplace.

We suggest that when the Review Commission faces the prospect of so limiting and delineating the course of investigations, it may find inappropriate any suggestion that failure to follow the procedure of Section 8(e) may prevent a party from invoking the jurisdiction of the Commission.

We are mindful of the case of Alsea Lumber Co., Docket No. 1228, and all implications of the decision; including the holding as a matter of law that the Secretary failed to meet his burden of proof on evidence considered "in the light most favorable to the Secretary."

In this case, the actions of the Compliance Officer were not illegal -- they were unwise; and the Secretary insists there was an "inspection."

[*43]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Based upon a complete review of the entire record in this case the undersigned hereby makes the following

FINDINGS OF FACT

I

The Respondent Isaacson Structural Steel Company is a division of the Isaacson Corporation of Seattle, Washington. Its business is structural steel fabrication and erection, primarily of bridges and other structures. Since about 1957, its annual gross volume has averaged about ten million dollars. It operates in Washington, Northern California, Oregon, Idaho, Alaska, the South Pacific and Hawaii.

At the hearing in Seattle, Washington on March 20, 1973 no one other than named parties appeared and sought to assert a party status, although there was full compliance by Respondent on the Rules of Procedure regarding posting.

II

In 1972 Respondent undertook to provide and erect the structural steel in the construction of a log deck for a mill of the Ketchikan Pulp Company at Ward Cove, near Ketchikan, Alaska. The job started about August 14th. John Kelly was the general construction superintendent of Respondent. He was not at the job site at all times. Leo Kelly [*44] was the superintendent on the job. Respondent's crew consisted of eight men including the superintendent.

III

All men were provided with buoyant life jackets at the time they were employed and were required to wear them at all times on the job. About August 18 or 19, when the work of the men took them off the barge for the first time in starting to erect the steel structure, all were issued safety belts and lifelines and instructed in their use. They were instructed to tie off the lifelines at any time they were in danger of falling unless it was impossible to do so, or unless so fastening the line would place them in a position of greater danger. These instructions were repeated frequently, including at least once weekly at safety meetings. Dave Turner was a welding detail foreman on the job. He was the only welder and had one helper. On this job Respondent delegated no more authority or responsibility to Turner than to any other workman in the enforcement of safety rules.

IV

On August 29, 1972 Respondent's workmen were in the process of placing a steel structure on top a concrete caisson or pier. On that date the work site was visited by Darrell Miller, Assistant [*45] Area Director of the Occupational Safety and Health Administration, United States Department of Labor. The activities of three employees of Respondent gave rise to the Citation forming the basis of this action. Eddie O'Brien was a "connector" working on a broad steel beam approximately forty feet above the concrete pier or caisson and about three-fourths of the way from the bottom to the top of the steel structure being put in place. It was necessary for him to move around from time to time, and he may have come down from this position to the pier or caisson one or more times. There is no credible evidence as to whether or not he wore a life belt or lifeline, or was tied off with a lifeline.

V

Dave Turner was the welder on the job and Art LaFrance was his helper. They were working on a float scaffold attached to a solid horizontal truss extending over the concrete pier or caisson and to which the structure being put in place was welded. When the Compliance Officer arrived at the scene, these men were not wearing their safety belts and lifelines. Leo Kelly, the foreman, tossed their belts and lifelines up to the float scaffold where they were working as soon as he determined [*46] they were not wearing them and told them to "tie off." Kelly did noit know that Eddie O'Brien was in the position described and reasonably did not have occasion to know.

VI

The superintendent, Leo Kelly, acting on behalf of Respondent, used all reasonable means to assure the wearing of safety equipment and the following of safety practices by all members of his crew. This includes but is not limited to the wearing and using of safety belts and lifelines. If there were a valid allegation of failure on the part of Respondents to require the use of safety belts and lifelines, the actions of Kelly were sufficient for Respondent to comply with its duty to require the use of such equipment by its employees.

VII

No safety net was provided. There is no evident that the use of scaffolds or catch platforms was impractical and no substantial evidence that the use of safety belts or safety lines was impractical.

VIII

There is no evidence that Respondent did not comply with any occupational safety and health standard in violation of Section 5(a)(2) of the Act. There is no evidence that Respondent did not furnish each of its employees a place of employment free from recognized [*47] hazards likely to cause death or serious physical harm to them in violation of Section 5(a)(1) of the Act.

Based upon the foregoing Findings of Fact and upon all facts admitted, stipulated or established by uncontroverted substantial relevant credible evidence, the undersigned now makes the following

CONCLUSIONS OF LAW

I

The Respondent at all times herein mentioned was engaged in a business affecting commerce and was "an employer" under the provisions of Section 3(5) of the Occupational Safety and Health Act of 1970. The Occupational Safety and Health Review Commission has jurisdiction of the parties and the subject matter of this action.

II

Respondent was not in violation of 29 CFR 1926.105(a) because there is no evidence of the impracticality of the use of scaffolds or catch platforms and no substantial evidence of the impracticality of the use of safety lines or safety belts by the workmen of the Respondent.

III

Respondent was not in violation of Section 5(a)(2) of the Act for the reasons stated and for the further reason that there is no evidence of its failure to comply with the provisions of any other occupational safety or health standard promulgated under [*48] the Act.

IV

Respondent was not in violation of Section 5(a)(1) of the Act because there is no evidence that it failed to furnish each of its employees employment and a place of employment free from recognized hazards that are likely to cause death or serious physical harm.

V

The Citation and proposed penalty should be vacated and the Complaint of the Secretary dismissed with prejudice.

ORDER

Based upon the foregoing, it is hereby

ORDERED that the Citation Number One for Serious Violation issued to Respondent and dated October 17, 1972, naming therein a worksite at Ward Cove, Alaska, Ketchikan Pulp Company, be and the same hereby is vacated. It is further

ORDERED that the Notification of Proposed Penalty issued to Respondent by the Secretary on October 26, 1972 and proposing therein a penalty of $600 for the alleged violation be and the same hereby is vacated. It is further

ORDERED that the Complaint of the Complainant be and the same hereby is dismissed with prejudice.