AMERICAN BRIDGE, DIVISION OF U.S. STEEL CORPORATION

OSHRC Docket No. 2249

Occupational Safety and Health Review Commission

October 2, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On July 17, 1973, Judge James A. Cronin, Jr. issued his decision and order in this case, vacating the Secretary's amended citation for serious violation and proposed penalty of $650.

On August 14, 1973, the Commission directed that the decision and order be reviewed in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. hereinafter referred to as "the Act").

The Commission has reviewed the briefs filed by the parties and has considered the entire record. We adopt the Judge's decision and order to the extent that it is consistent with the following.

Respondent was cited for violating 29 CFR 1926.28(a). n1 The citation resulted from an inspection of a worksite at which employees of respondent were observed traversing and climbing roof trusses more than 60 feet above ground level without tying off by means of safety belts, lifelines, or lanyards. Judge Cronin vacated the citation and attendant penalty based upon his finding that the cited standard is vague and unenforceable.

- - - - - - - - - - - - - - - - - -Footnotes- - [*2] - - - - - - - - - - - - - - - -

n1 The standard reads as follows:

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 indicated the need for using such equipment to reduce the hazards to the employees.

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

We affirm the Judge's order on other grounds. Evidence establishes that respondent's employees, while engaged in the process of connecting steel beams, were afforded protection from falls by means of cables, work platforms and "angle rings." Although wearing safety belts, the "connectors" were not tied-off to any stationary objects. Respondent's safety manual requires connectors to tie-off their safety lines except while getting from one point to another and in certain other circumstances. The job assignment involves considerable movement while making the initial connection of trusses. Testimony of respondent's employees demonstrates that their safety is enhanced by maximum freedom of movement, enabling [*3] them to avoid moving objects such as cranes and beams. Also, a requirement such as tieing-off, which requires use of the hands, under certain circumstances decreases safety by preventing the connectors from continuously holding onto the steel beams.

The Commission has held that an employer may assert and demonstrate by a preponderance of the evidence 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., No. 703 (January 10, 1974). Here, respondent has sustained the burden of proof. Accordingly, the citation is vacated. For a discussion of this doctrine with respect to the requirements of section 5 and 6(d) of the Act see Industrial Steel Erectors, Inc., supra.

The Judge's decision is modified in accordance with this decision and his order vacating the citation and proposed penalty is affirmed.

CONCURBY: MORAN; VAN NAMEE

CONCUR:

MORAN, CHAIRMAN, concurring: Vacating the citation and dismissing complainant's action is the appropriate disposition of this case and I concur therewith. The reason why such a disposition is proper was adequately covered by the [*4] decision of Judge Cronin and I am in complete agreement with his reasoning.

VAN NAMEE, COMMISSIONER, concurring: Assuming without deciding that 29 C.F.R. 1926.28(a) is reasonable for not being vague, I concur that vacation is proper on the facts of this case.

[The Judge's decision referred to herein follows]

CRONIN JUDGE: This is a proceeding under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereafter called the Act) contesting an Amended Citation for Serious Violation n1 and a Notification of Proposed Penalty issued by the Complainant on January 24, 1973 against the Respondent under the authority of Sections 9(a) and 10(a) of the Act. This amended citation was issued on January 24, 1973 as a result of an inspection on December 8, 1972 of a Respondent workplace at Diablo Canyon, near Avila Beach, California and alleges that Respondent committed a "serious" violation of Section 5(a)(1) of the Act.

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

n1 The official record does not contain initial citation but Respondent's brief at page 11 references a citation for violation of 1926.750(b)(1)(ii).

[*5]

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

On April 27, 1973 shortly before the hearing, the Secretary filed a motion for leave to amend his complaint by alleging a violation of the standard set forth at 29 CFR 1926.28(a) and 29 CFR 1926.104 instead of a violation of Section 5(a)(1) of the Act. At the outset of the hearing and on the representation by Secretary's Counsel that a violation of 29 CFR 1926.104 was not being alleged, an amendment of the complaint to allege a violation of 29 CFR 1926.28(a) was permitted. Respondent did not object to the change in the standard but filed a counter motion objecting to certain phrases of the proposed amendment. The counter motion was denied after Secretary's Counsel explained that the phrases in question were included in the amendment for the sole purpose of describing the hazardous condition which allegedly existed on December 8, 1972 and formed the basis of the alleged violation of 1926.28(a) (Tr. 3-6).

The amendment of paragraph IV A of the Secretary's complaint, as allowed, reads as follows:

On December 8, 1972, the respondent violated the standard set forth at 29 CFR 1926.28(a), in [*6] that respondent permitted employees to work on roof trusses at Unit 2 Turbine Building where the workplace was more than 25 feet above the temporary flooring, which workplace created an exposure to a hazardous condition; without providing safety nets, scaffolds, catch platforms or temporary floors, and without requiring the wearing of appropriate personal protective equipment, to wit, safety belts, life lines or lanyards, as specified in 29 CFR 1926.104.

The standard as promulgated by the Secretary provides:

1926.28 Personal protective equipment.

(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

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

Pursuant to due notice, this case was heard at Santa Maria, California on May 2, 1973. Subsequently, both parties filed briefs.

JURISDICTION AND ISSUES

Respondent does not contest Commission jurisdiction [*7] of this matter and admits it is an employer which has employees engaged in a business affecting commerce within the meaning of Section 3(5) of the Act.

The Respondent in its amended answer denies violation of 1926.28(a), and therefore, the issues to be resolved and determined are:

1. Whether Respondent violated 1926.28(a) as alleged?

2. If Respondent violated the cited standard, is the proposed penalty of $650.00 appropriate?

FINDINGS OF FACT

The entire record has been considered and evaluated in its entirety. The facts set forth below are specifically found in resolving the issues in this case.

On December 8, 1972 at an American Bridge, Division of U.S. Steel Corporation, work site at Diablo Canyon, three or four of Respondent's "connectors," out of a work force of less than 20, were observed, for approximately one hour, traversing roof trusses horizontally, and climbing the diagonal members of trusses, 63 to 78 feet above the ground, without tying off by means of safety belts, lifelines or lanyards (Tr. 9-11, 13, 22).

No safety nets, scaffolds, catch platforms or temporary floors for the purpose of preventing employees from falling were installed on December 8, 1972. [*8] "Angle rings," small work platforms, and tank type bracket work platforms, however, were provided by Respondent to its connectors (Tr. 64-65, Secretary's Exhibit No. 1, Photographs 4, 9).

The connectors held onto the flanges of the beams whenever moving laterally or diagonally along the trusses (Tr. 31). When walking on the bottom member of the truss, connectors walk in a trough 12 inches wide, with sides projecting vertically 3/4 of an inch (Tr. 61, 62); when walking up a diagonal member, a connector walks on the flat surface of the flange which is 8-1/2 inches wide (Tr. 64, 77).

If a connector is tied off with his lifeline, 100% of the time his movement is restricted and this restriction possibly could prevent him from avoiding a moving object such as a crane (Tr. 36-37). Connectors are assigned the task of making the initial installation connection on the trusses; final "bolting up" is done by the bolting crew (Tr. 35, 54, 55) and in performing their work on December 8, 1972 connectors were following Respondent's specific instructions.

The Respondent's "Safety Manual" (Respondent's Exhibit 1) which is given to all employees, provides in pertinent part:

1.4 When [*9] working aloft, all men must tie off their safety lines except while getting from one point to another. This includes connectors when it is necessary for them to use any tool other than one spud wrench to make a connection and when working off scaffolds at large points. If special provisions are required to provide a safe place for tieing off, it should be planned in advance of the operation, with the approval of the Construction Superintendent. Do not fasten safety line over sharp edges. Wherever possible, tie up your safety line before getting on any type of scaffolding. Safety lines should be tied as short as possible and to a point above the level of the workman. Safety lines, wherever possible, should be tied to the structure and not to float lines. See general rules in "Safety Rules and Requirements for Scaffolds."

5.14 Connectors working aloft must tie off their safety line when it is necessary for them to use any tool other than one spud wrench to make a connection, and when working off scaffolds at large points. If special provisions are required to provide a safe place for tieing off, it should be planned in advance of the operation, with the approval of the Construction [*10] Superintendent.

Standard practice in the steel erection industry has been for connectors not to tie off safety lines until they reach a work point and then only if two hands are necessary to perform the work operation (Tr. 66-67, 90, 93, 95, 106, Respondent's Exhibit 1). However, Respondent on December 8, 1972 and prior thereto, was aware of the requirements of Article 24, Sections 1669 and 1670 of the State of California, Divison of Industrial Safety, Construction Safety Orders, which provide:

1669. General. (a) When work is to be performed for thrustouts or similar exposed locations, suitable protection such as temporary guard-railings of wire or manila ropes, or equivalent, shall be provided, or workers shall be protected by safety belts with attached lifeline.

Note: Safety belts will customarily be used when exposed to the hazard of falling from buildings, bridges, structures, or construction members such as trusses, beams, purlins, or plates of 4-inch nominal width, or greater, at elevations exceeding 15 feet or 1 story above ground, water surface, or continuous floor level below.

(b) When requirements in (a) above are impractical, use shall be made of approved-type [*11] safety nets as provided in Section 1671.

(c) When the work is of short duration and limited exposure and the hazards involved in rigging and installing the safety devices required by this Article equals or exceeds the hazards involved in the actual construction, these provisions may be temporarily suspended, provided adequate risk control is recognized and maintained under immediate, competent supervision.

1670. Safety Belts and Lifelines.

(a) Approved safety belts and lifelines shall be worn by those employees whose work exposes them to falling in excess of 15 feet from the perimeter of a structure of through shaftways and openings not otherwise adequately protected under the foregoing provisions of the Article. The anchor end of the lifeline shall be secured at a level not lower than the workman's waist, and at a horizontal distance not to exceed 6 feet, except where the waist level connection is not possible, connections at feet level may be permitted provided that adequate risk control procedures are followed. Lifelines shall be secured to a substantial member of the structure or to securely rigged lines, using a positive-descent control device.

Note: The use of nylon rope [*12] is recommended.

(b) If worker's duties require horizontal movement, rigging shall be provided so that the attached lifeline will slide along with him.

Such rigging shall be provided for all suspended staging, outdoor adverstising sign platforms, flats, and all other catwalks, or walkways 15 feet or more above the ground or level beneath.

(c) When working on roofs of 1/3 pitch and stceper, workmen shall wear a safety belt with a lifeline securely fastened to a substantial anchorage. On roofs of 1/4 pitch or steeper, any electrical or air supply line shall be secured at roof level in such a manner as to provide ample, but not excessive, amounts of line. 1/8 pitch is a slope ratio of 8-inch vertical to 12-inch horizontal. 1/4 pitch is a slope ratio of 6-inch vertical to 12-inch horizontal (Administrative Notice, Tr. 15-16).

Respondent conducts weekly safety meetings of its work crews (Tr. 62, 92, Respondent's Exhibit 2) and foremen of Respondent also maintain individual contact cards utilized for contacting individual employees on safety rule infractions and potential safety trouble spots (Tr. 62-63, Respondent's Exhibit 3).

For the past five years Respondent has had [*13] a disabling injury frequency of about four disabling injuries per million man hours of exposure compared with the construction industry average of about fourteen disabling injuries in that period (Tr. 104).

The Secretary's compliance officer testified in response to the presiding judge's questions that in computing the proposed penalty of $650.00, the Respondent was given credit reductions of 10% for "size", 20% for no prior history of violations and 10% for "good faith" (Tr. 23-24). n2

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

n2 If accurate this testimony indicates that the unadjusted penalty was calculated from a base greater than $1000.00 in contravention of the Secretary's Compliance Manual (See Chapter XI, 4.C.)

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

DISCUSSION

For an employer to be held liable for a violation of any safety and health standard or regulation under the Act, the cited standard's provisions should clearly put the employer on notice of what he must do to comply. As a minimum, a standard must specify what the employer is required to do, and the circumstances under which, or [*14] the time when, it is to be done. Secretary of Labor v. Grayson Lumber Co., Inc.,

The language of the first part of 1926.28(a), however, does not provide an employer with this requisite notice. While placing on the employer the responsibility of requiring the wearing of appropriate personal equipment in all operations where there is exposure to hazardous conditions, the standard fails to clearly define what is meant by "hazardous conditions" or prescribe the type of "appropriate personal protective equipment" required in a specific situation. Because of this failure, the standard in question must be held impermissibly vague and, therefore, unenforceable.

Moreover, we would suggest that, when read in context, it is clear that 1926.28 was meant to be prefatory and adjunctive in nature; never intended for enforcement as a separate standard as was attempted here. In this regard we would agree with the presiding judge's conclusion in Secretary of Labor v. Edward M. Ream, Inc., [*15] as imposing a general duty obligation on employers, would effectively negate the clear intention of Congress to limit the general responsibility of employers to furnishing employees places of employment free from recognized hazards. n4

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

n3 When requesting leave to amend, Secretary's Counsel in this case represented that Respondent was not being charged with a violation of 1926.104 (T. 5-6).

n4 See Section 5(a)(1) of Act.

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

The second part of 1926.28(a), requiring the wearing of appropriate personal protective equipment "where this part indicates the need for using such equipment to reduce the hazards to the employees," is considered inapplicable to the factual situation of this case because neither Section 1926.104, "Safety belts, lifelines, and lanyards," nor any other section of part 1926, spells out when, or under what circumstances, such equipment is needed or must be used. As the Secretary conceded, the provisions of 1926.104 et seq., relate only to the capability requirements of such equipment if used [*16] (Tr. 5).

Furthermore, we suggest that the second part of 1926.28(a), which attempts to incorporate other unidentified provisions of part 1926, is too indefinite to permit its enforcement.

For the foregoing reasons, the alleged serious violation of 1926.28(a) and the proposed penalty based thereon, must be vacated.

CONCLUSIONS OF LAW

1. The Respondent is an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act and obliged to comply with those standards promulgated under Part 1926, Title 29, of the Code of Federal Regulations.

2. The standard found at 29 CFR 1926.28(a) is impermissibly vague and, therefore, unenforceable.

ORDER

Based on the foregoing findings, conclusions of law and the entire record, it is ORDERED that:

1. The alleged violation of 29 CFR 1926.28(a) and the proposed penalty based thereon, are hereby VACATED.