OSHRC Docket No. 2931

Occupational Safety and Health Review Commission

April 21, 1975


Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners



VAN NAMEE, COMMISSIONER: This matter is before us on Judge Robert N. Burchmore's report finding Respondent in nonserious 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"). Respondent had been cited for having violated 29 C.F.R. 1926.28(a) because employees were working at heights of about 9 and 25 feet and were not protected by tied off safety belts. The judge affirmed the citation and assessed a penalty of $80.

Thereafter I directed review on the issue

Whether 29 C.F.R. 1926.28(a), as amended in the Federal Register of December 16, 1972 [37 F.R. 27,510] should be declared unenforceable for having been amended substantially without resort to the rulemaking procedures set forth in section 6(b) of the Act.

For the reasons that follow we adopt the judge's findings insofar as the citation alleged a violation of section 1926.28(a).

Prior to the 1972 amendment the section 1926.28(a) was as follows:

The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there [*2] is an exposure to hazardous conditions and where this part indicates the need for using such equipment to reduce the hazards to the employees. 29 C.F.R. 1926.28(a) (1971).

On December 16, 1972, the word "and" was changed to "or" and the amendment was made without resort to the rulemaking provisions of the Act.

Subsequent to the judge's decision herein we determined that section 1926.28(a) as it existed prior to amendment is enforceable. Hoffman Construction Co., Dkt. 644, BNA 2 OSHC 1523, CCH E.S.H.G. para. 19,275 (January 31, 1975); Carpenter Riging & Contracting Corp., Dkt. 1399, BNA 2 OSHC 1544, CCH E.S.H.G. para. 19,252 (February 4, 1974). Thereafter we said that the standard had not been substantively amended; it has the same meaning after amendment as it had before amendment. Eichleay Corporation, Dkt. No. 2610, slip opinion at note 1 (February 20, 1975). And even if the Secretary intended to amend substantively in December, 1972, his failure to use the Act's rulemaking machinery would nullify the attempted amendment and leave the original standard intact. United States Steel Corporation, Dkts. 2975 & 4349, BNA 2 OSHC 1343, 1345, CCH E.S.H.G. [*3] para. 19,047 (Rev. Com'n., 1974). Accordingly, we answer the issue raised in the direction for review in the negative. Section 1926.28(a) is enforceable.

Having reviewed the record, we find that Judge Burchmore's evidentiary findings are consistent therewith. Accordingly, we adopt his report that Respondent violated section 1926.28(a) and his penalty assessment of $80. Judge Burchmore also allowed the citation to be amended so as to alternatively allege a violation of section 1926.105(a). The alternative allegation is unnecessary in view of our conclusion as to section 1926.28(a). Accordingly, we reverse insofar as he accepted the amendment.

Therefore, the judge's report is adopted as the decision of the Commission insofar as it affirms the citation for a violation of 29 C.F.R. 1926.28(a) and assesses a penalty of $80 for such violation. It is so ORDERED.



CLEARY, COMMISSIONER, concurring: I concur in Commissioner Van Namee's opinion. I add only that the alternative allegation under section 1926.105(a) would have served as well as section 1926.28(a) as to work more than 25 feet above the ground. See Brennan v. Southern Contractors Service and O.S.H.R.C., [*4] 492 F.2d 498 (5th Cir. 1974), holding that the section must be read as requiring an employer to employ either a safety net or one of the other safety devices listed in the standard, including safety belts.



MORAN, CHAIRMAN, dissenting: I again disagree with the preposterous conclusion that the word "and" means the same thing as the word "or." See Secretary v. Carpenter Rigging & Contracting Corporation, 15 OSAHRC 400 (1975) (dissenting opinion).

The original version of 29 C.F.R. 1926.28(a) n1 was adopted by the Secretary of Labor on May 29, 1971, as an occupational safety and health standard pursuant to his authority under 29 U.S.C. 655(a) n2 to adopt any Federal standard as an occupational safety and health standard for a period of two years from the effective date of the Act without regard to the procedural safeguards of the Administrative Procedure Act, 5 U.S.C. 553. On December 16, 1972, the Secretary published a revision of the construction standards contained in Part 1926 of the Code of Federal Regulations. Administrative reasons were given as the purpose for the revision, and the failure to follow the rulemaking procedures provided in the [*5] Administrative Procedure Act was justified on the basis that no substantive changes were made in the standards contained therein. n3 The only change in 1926.28(a) was the substitution of the word "or" for the word "and." The respondent was cited under this revised version as the result of an inspection conducted on April 30, 1973.

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n1 36 Fed. Reg. 7347 (1971).

n2 29 C.F.R. 1910.12, 36 Fed. Reg. 10469 (1971). The standard, originally designated as 29 C.F.R. 1518.28(a), was redesignated as 29 C.F.R. 1926.28(a) on December 30, 1971. 36 Fed. Reg. 25232 (1971).

n3 37 Fed. Reg. 27503 (1972).

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In my opinion, the revision made a significant substantive change in the original standard. To establish a violation under the prior wording, proof of the following two things was required:

(1) exposure to a hazardous condition warranting the use of personal protective equipment, and

(2) failure to use this equipment when its use was required elsewhere in Part 1926 of the regulation.

With the revision, proof of either [*6] one provides sufficient evidence of a violation, and a violation can be established by simply showing a failure to require the wearing of appropriate personal protective equipment where there is employee exposure to a hazardous condition. The former version required not only proof of exposure to a hazardous condition, but also proof that use of a specific item of protective equipment was prescribed in another section of Part 1926.

Obviously, the deletion of an element of proof constitutes a substantive change, not an administrative one. When the Secretary desires to make such a substantive change in a standard, he must provide notice of the contemplated change to the public and allow them to submit written objections thereto and to participate in a public hearing thereon. 5 U.S.C. 553; 29 U.S.C. 655(b). Since those procedures were not followed, 29 C.F.R. 1926.28(a) is invalid in its modified form because it was not properly promulgated. See Florida Peach Growers Association, Inc. v. United States Department of Labor, 489 F.2d 120 (5th Cir. 1974); Secretary v. Oberhelman-Ritter Foundry, Inc., 3 OSAHRC 1212 (1973).

Because the modified version of the [*7] standard is invalid, it does not repeal the original standard. See 1A Sutherland Statutory Construction 23.24 (4th ed. C. Sands rev. 1972). In my view, however, the alleged violation cannot be affirmed under the original standard.

A violation of the original standard is not established unless the use of a safety belt was required somewhere within Part 1926 of the regulation. The standard that comes closest to requiring the use of a safety belt is 29 C.F.R. 1926.105(a) which provides:

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. (Emphasis added.)

This standard has been interpreted to require the use of safety nets or one of the other enumerated items when work is performed at heights of more than 25 feet. Brennan v. Southern Contractors Service, 492 F. 2d 498 (5th Cir. 1974).

In the instant case, there is no evidence that any of the respondent's employees were not using safety belts or one of the other items specified in section 1926.105(a) while working in a location [*8] where a fall of more than 25 feet was possible. To the contrary, the evidence establishes that the unprotected workers were working only 18 feet above a platform that was located along the top of the first floor of a building. Furthermore, just as "and" does not mean "or," "about . . . 25 feet" does not mean "more than 25 feet."

Accordingly, since there is no evidence that the respondent's employees were working more than 25 feet above the platform, I submit that there was no violation of 29 C.F.R. 1926.105(a) and, correspondingly, no violation of 29 C.F.R. 1926.28(a).

[The Judge's decision referred to herein follows]

BURCHMORE, JUDGE: By citation issued May 3, 1973, the Secretary charges that on April 30, 1973, the Respondent violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq ) in that Respondent failed to comply with the regulation contained in 29 C.F.R. 1926.28(a). The citation was subsequently amended to charge, alternatively, failure to comply with 29 C.F.R. 1926.105(a).

Timely notice of contest was filed by Respondent and the proceeding was assigned to the undersigned judge for hearing and determination. [*9] Hearing was held at Honolulu, Hawaii, on September 11, 1973. Opportunity was afforded for the filing of briefs, but only the Secretary filed one.

Respondent purchases materials outside the state of Hawaii, which it uses in construction work within the State. It is an employer engaged in a business affecting commerce and is subject to the Act. On April 30, 1973, it caused two of its employees (Joseph Woo and Vernon Olson) to engage in welding steel members on a building project, under supervision of company superintendent, Robert Tai. A compliance officer for the Secretary inspected the work on that date, and found both men working on top of a wall three stories above the ground level. They had no safety belts or other device to protect against falling to the ground. There was a platform at first floor ceiling height on part of the building, but at other points along the wall the drop from the top of the wall to ground level was uninterrupted. There was therefor a hazard of falling about 16 feet at one place and about 25 feet at other places along the wall. Both men were at one time or another working right on top of the wall at all of the places just described.

[*10] The cited section 28(a) provides:

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

Section 105 requires the use of safety nets on workplaces more than 25 feet above the ground where the use of safety nets is impractical, but in this case that regulation is inapplicable because the parties agreed at the hearing that the use of safety belts was, in fact, practical in the particular situation presented.

Respondent does not dispute the facts recited above and does not contest that its employees may have worked unsafely. It defends upon the ground that it has an adequate safety program and conducts its operations safely at all times; according to Respondent it holds regular safety meetings and the employees are required to use safety belts wherever needed. However, the evidence shows that Respondent's supervisor was at the job site and knew that Olson and Woo were working atop the wall without belts, yet he did not require them to get belts and use them. We [*11] have, therefor, a simple case of failure on the part of the employer to exercise sufficient supervisory control to bring about compliance with the regulation. Where, as here, the regulation places on the employer the responsibility for "requiring" the use of protective equipment, it is not enough for the employer simply to issue a general order and leave it to the employees to follow it or not. Reasonable supervision and enforcement of the requirement must be provided. Here that was not done. The citation must accordingly be affirmed.

The Secretary proposed a penalty of $80. Considering the gravity of the violation as revealed by the facts recited above, the history and good faith of the employer which has never before been cited under the Act, and the size of the employer which has 50 employees, it is my opinion that the proposed penalty is appropriate and should be affirmed.

It is ORDERED that the citation as amended and the proposed penalty of $80 be and the same are hereby affirmed, and that this proceeding be and the same is hereby discontinued.