TAYLOR BUILDING ASSOCIATES

OSHRC Docket No. 3735

Occupational Safety and Health Review Commission

March 3, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Norman Winston, Assoc. Regional Solicitor, U.S. Department of Labor

Roy Finch, Jr., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On March 15, 1974, Administrative Law Judge John J. Larkin issued a decision vacating item one, alleging a failure to use safety nets contrary to 29 CFR 1926.750(b)(1)(ii), n1 and affirming item two of a citation for "serious" violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter "the Act"). Item two alleged a failure to comply with 29 CFR 1926.450(a)(1) n2 in that respondent did not use ladders to give safe access to elevations when temporary stairways, suitable ramps, or runways were not provided. On April 12, 1974, Commissioner Moran directed that the Judge's action as to item two be reviewed by the Commission. He invited submissions on the following issues:

(1) Whether impossibility of compliance is a valid defense against such charge based on the facts of this case.

(2) Whether this standard as applied to this case is unenforceably vague.

Former Commissioner Van Namee [*2] also invited submissions on the following additional issue concerning item one:

[(3)] Whether the trial Judge committed reversible error in concluding that the Respondent established the defense of impossibility of compliance with respect to the alleged safety net violation (29 C.F.R. 1926.750(b)[(1)](ii)?

We affirm both items of the citation, thereby reversing the Judge as to item one.

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n1 Section 1926.750(b)(1)(ii) reads as follows:

1926.750 Flooring requirements.

* * *

(b) Temporary flooring -- skeleton steel construction in tiered buildings.

(1) * * *

(ii) On buildings or structures not adaptable to temporary floors, and where scaffolds are not used, safety nets shall be installed and maintained whenever the potential fall distance exceeds two stories or 25 feet. The nets shall be hung with sufficient clearance to prevent contacts with the surface of structures below.

n2 Section 1926.450(a)(1) reads as follows:

1926.450 Ladders.

(a) General requirements.

(1) Except where either permanent or temporary stairways or suitable ramps or runways are provided, ladders described in this subpart shall be used to give safe access to all elevations.

[*3]

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On June 26, 1973, respondent Taylor Building Associates was engaged in steel erection of the superstructure of a building in Pearl, Mississippi. The erection procedure that was used consisted of raising a steel column with a crane, lowering it into a concrete base, and securing it in place with four large anchor bolts. After a second column was set by the same method, a crane lifted a horizontal beam, which was then bolted by respondent's employees that are called "connectors", to the top of the two vertical columns. The steel erection process continued in this fashion until completion.

1. Item One, 29 CFR 1926.750(b)(1)(ii); Safety Nets

Item one of the citation, as amended, alleged that respondent's connectors were not protected from falls by safety nets, contrary to 29 CFR 1926.750(b)(1)(ii). n3 That standard requires that on buildings or structures not adaptable to temporary floors, and where scaffolds are not used, safety nets shall be installed and maintained whenever the potential fall distance exceeds two stories or 25 feet. Its is not disputed and the evidence shows that the building [*4] in question was not adaptable to temporary floors, that neither safety nets nor scaffolds were in use, and that respondent's employees were actually exposed to fail distances greater than 25 feet.

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n3 The citation originally alleged a failure to comply with 29 CFR 1926.28(a), and also made reference to sections 1926.105 and 1926.750. The complaint amended the citation to allege a failure to comply with both 1926.28(a) and 1926.750(b)(1)(ii), but deleted any reference to 1926.105. In his brief on review, the Secretary urges that we find a filure to comply with 1926.750(b)(1)(ii) only, and no longer pursues the 1926.28(a) matter. We therefore consider only the 1926.750(b)(1)(ii) allegations in our review of this case.

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Respondent does not deny that it did not comply with the standard, but instead attempts to interpose an affirmative defense of impossibility of compliance. Judge Larkin found that the defense had been established and vacated item one. On review, the Secretary argues that the Judge should not have [*5] entertained the defense. The Secretary reasons that if respondent could not have complied with the standard, the proper course would have been an application for either a permanent or temporary variance under sections 6(d) or 6(b)(6)(A) of the Act. n4 In this way, it is argued, the respondent would have been obligated to use alternative means to protect its employees, rather than leave employees without any protection whatsoever, as the Judge's decision would seem to do. In support of his position, the Secretary cites our decision in Industrial Steel Erectors, Inc., 6 OSAHRC 154, BNA 1 OSHC 1497, CCH 1973-74 OSHD para. 17,136 (No. 703, 1974) in which we recognized the distinct but somewhat analogous "greater hazards" defense. There we stated that our recognition of that defense was intended neither to detract from the Secretary's variance authority, n5 nor to relieve employers from an obligation to use available alternative means to protect employees. n6 Moreover, at least one court of appeals has indicated in another analogous case that the Commission may appropriately require a resort to variance procedures. Atlantic & Gulf Stevedores, Inc. v. O.S.H.R.C., 534 F.2d 541 [*6] (3d Cir. 1976). Also, in petition for modification of abatement cases, our rules of procedures require an employer to state what interim steps he has taken to protect employees during the period required for abatement. 29 CFR 2200.34(b)(4). We therefore recognize that the Secretary's argument is not lacking in some force and can draw upon some analogous authority in its support. n7 In the instant case, however, it is unnecessary to reexamine the imposibility defense recognized by our precedent. n8 As explained below, we agree with the Secretary's alternative argument that compliance with the standard would not in any event have been impossible.

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n4 Similar reasoning was expressed in Warnel Corp., BNA 4 OSHC 1034, 1038, CCH 1975-76 OSHD para. 20,576 (No. 4537, 1976) (concurring opinion).

n5 In subsequent cases dealing with the "greater hazards" defense, we have required, where appropriate, a resort to variance procedures. See e.g., Weyerhaeuser Co., BNA 4 OSHC     1972, CCH 1976-77 OSHD para. 21,465 (Nos. 1231 & 1758, 1977); Russ Kaller Inc., BNA 4 OSHC 1758, CCH 1976-77 OSHD para. 21,152 (No. 11171, 1976) (collecting cases); G.A. Hormel & Co., 11 OSAHRC 725, BNA 2 OSHC 1190, CCH 1974-75 OSHD para. 18,685, reconsideration denied, 12 OSAHRC 623, BNA 2 OSHC 1282, CCH 1974-75 OSHD para. 18,881 (No. 1410, 1974).

n6 See e.g., Weyerhaeuser Co., supra n.3; Russ Kaller, Inc., supra n.3; G. A Hormel & Co., supra n.3; Cimpl Packing Co., 14 OSAHRC 153 n.2, BNA 2 OSHC 1436, 1437 n.2, CCH 1974-75 OSHD para. 19,127 (No. 1987, 1974). Cf. Kelley Construction Services, Inc., BNA 4 OSHC 1491, CCH 1976-77 OSHD para. 20,925 (No. 7102, 1976) (impossibility defense); Anning-Johnson Company, BNA 4 OSHC 1193, CCH 1975-76 OSHD para. 20,690 (Nos. 3694 & 4409, 1976) and Grossman Steel & Aluminum Corp., BNA 4 OSHC 1185, CCH 1975-76 OSHD para. 20,691 (No. 12775, 1976) (multi-employer construction site defenses).

n7 It is arguable that an application for a variance would provide little or no actual relief if the construction work involved is highly transitory. It is noted, however, that the Secretary of Labor's applicable rules provide for summary procedures in 29 CFR 1905.40 and .41. Also, it is possible, and perhaps likely, that any variance on a construction technique would not be limited to a single job or jobsite.

n8 Warnel Corporation, supra. n.2 (lead opinion); Robert W. Setterlin & Sons Co., BNA 4 OSHC 1214, 1217, CCH 1975-76 OSHD para. 20,682 (No. 7377, 1976).

[*7]

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Respondent's basic theory is that the use of safety nets would have interfered with the movement of its crane. As noted by the Judge, Mr. Helsing testified that in his opinion during the steel erection sequence, safety nets could not be used because they would obstruct the crane. But the witness conceded that this might not be the opinion of another steel erection contractor. Also the compliance officer testified that respondent could have used an erection derrick instead of the crane, and that as the job progressed, a net could have been installed after the erection of each vertical column and before respondent's connectors had to climb up to secure the horizontal beam. While this process would have probably added to the costs and difficulty of performing the work, and would have required a change in working techniques, it would not have made the work impossible. Diebold, Inc., BNA 3 OSHC 1897, 1901, CCH 1975-76 OSHD para. 20,333 (No. 6767 etc., 1976); Sheet Metal Specialty Co., 17 OSAHRC 212, BNA 3 OSHC 1104, CCH 1974-75 OSHD para. 19,546 (No. 5022, 1975).

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n9 We do not read Universal Sheet Metal Corp., 9 OSAHRC 742, BNA 2 OSHC 1061, CCH 1973-74 OSHD para. 18,163 (No. 657, 1974) to have established a different rule. We read that decision to have held only that compliance with a standard would not have offered protection to employees and was otherwise impossible. The members' use of the words "very difficult" was not central to their reasoning and, is not regarded as controlling here in view of the cases cited above.

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Respondent also noted that according to post-inspection telephone conversations with dealers and suppliers, nets were not available in either Little Rock, Arkansas; Jackson, Mississippi; Memphis, Tennessee; or New Crleans, Louisiana. This is not decisive. Respondent is in the business of steel erection, and is therefore in a position to be particularly familiar with the requirements of Subpart R of Part 1926. It could have reasonably anticipated that 1926.750(b)(1)(ii) would have been applicable to its work, and should have obtained the necessary equipment before it began work. [*9] As far as future abatement is concerned a reasonable time can be allowed to obtain the nets. Under these circumstances, we find no basis on which to hold that the affirmative defense of impossibility has been established. n10

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n10 In his opinion, Judge Larkin seems to have placed the burden of persuasion upon the Secretary. It is well settled, however, that impossibility, if it is to be recognized at all, is at most an affirmative defense for which the employer must bear the burden of persuasion. See e.g. Brennan v. O.S.H.R.C. and Underhill Constr, Co., 513 F.2d 1032 (2d Cir. 1975).

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Finally, respondent argues that the standard is vague because it does not specify how, when, and what kind of nets must be installed. The standard, however, clearly apprises respondent that safety nets must be used in certain stated circumstances and leaves it to respondent to devise ways of installing whatever nets it finds appropriate to its work. Greater specificity is not required. Turner Company, BNA 4 OSHC 1554, [*10] CCH 1976-77 OSHD para. 21,023 (No. 3635, 1976); Diebold, Inc., BNA 3 OSHC 1897, CCH 1975-76 OSHD para. 20,333 (No. 6767 etc., 1976). Item one is therefore affirmed.

2. Item Two, 29 CFR 1926.450(a)(1); The Ladders.

Item two alleged that respondent's employees did not use ladders in ascending steel columns, contrary to 29 CFR 1926.450(a)(1). With one exception not pertinent here, the standard requires that "ladders described in this subpart [L, dealing with ladders and scaffolding] shall be used to give safe access to all elevations." Respondent conceded that it did not use ladders, but defended on the grounds that compliance was impossible and that the standard is unenforceably vague. We find that Judge Larkin's disposition of these contentions was correct, and we adopt it for the reasons he assigned. We note only that respondent argues in part that ladders should not be required because its steelworkers "are a special type of person" and can "climb steel like squirrels" with their customary practice of "cooning" (i.e., accending and descending vertical steel columns by wrapping their arms around the flanges and applying pressure against the column with either their [*11] knees or feet). The standard, however, attempts to protect employees with measures that are not predominantly dependent upon the skill and experience of employees. Inasmuch as the wisdom of this requirement is not before us (Hana Shoe Corp., BNA 4 OSHC 1635, CCH 1976-77 OSHD para. 21,033 (No. 5856, 1976)), the practice of "cooning," no matter how skillfully performed, cannot be considered a substitute for the physical protection required by the standard. See Huber, Hunt, Nichols & Blount Bros., BNA 4 OSHC 1406, CCH 1976-77 OSHD para. 20,387 (No. 6007, 1976); Slyter Chair, Inc., BNA 4 OSHC 1110, CCH 1976-77 OSHD para. 20,589 (No. 1263, 1976); Akron Brick & Block Co., BNA 3 OSHC 1876, 1975-76 OSHD para. 20,302 (No. 4859, 1976).

3. Penalties

To expedite the dispostion of the case we take up the matter of penalty assessment concerning item one. See Accu-Namics v. O.S.H.R.C., 515 F.2d 828 (5th Cir. 1975). We leave undisturbed Judge Larkin's penalty assessment for item two which is not challenged.

With respect to item one, the characterization of the violation as "serious" is not challenged before us, and we find the violation to be of high gravity. [*12] But we are impressed with respondent's good faith, apparent small size, and its lack of a history of previous violations, we hold that a penalty of $250 is appropriate, rather than the proposed penalty of $700.

Accordingly, it is ORDERED that items one and two of the citation for a "serious" violation of the Act be affirmed, and that a penalty of $250 be assessed for each item.

CONCURBY: BARNAKO; MORAN (In Part)

CONCUR:

BARNAKO, Chairman, concurring:

I concur but disassociate myself from Commissioner Cleary's discussion of the impossibility defense. The question in this case is whether use of safety nets would have made it impossible for Respondent to have performed its job. Our decision is essentially controlled by the Commission's precedents which have permitted this defense. Robert W. Setterlin & Sons, Co., 76 OSAHRC 53/D8, 4 OSHC 1214, 1975-76 OSHD para. 20,682 (R.C. 1976); Universal Sheet Metal Corp., 9 OSAHRC 742, 2 OSHC 1061, 1973-74 OSHD para. 18,163 (R.C. 1974); W.B. Meredith II, Inc., 9 OSAHRC 245, 1 OSHC 1782, 1973-74 OSHD para. 18,003 (R.C. 1974). Also see Warnel Corp., 76 OSAHRC 41/C5, 4 OSHC 1034, 1975-76 OSHD para. 20,576 (R.C. 1976). Precedents dealing with the [*13] greater hazard defense such as the Commission's decision in Industrial Steel Erectors, Inc., 6 OSAHRC 154, 1 OSHC 1497, 1973-74 OSHD para. 17,136 (R.C. 1974) are inapposite. Therefore, I do not agree that there is "force" to the Secretary's argument that employers must seek a variance.

The weakness of the argument is that a filing for a variance can constitute a useless gesture. This is particularly true in construction work where the condition giving rise to an impossibility defense may be highly transitory.

However, I do agree with my colleague that in such situations an employer must protect his employees by using such reasonable alternative means as are available. The record in this case demonstrates that performance was literally possible, and the Judge erred in vacating simply because the method Respondent chose to employ in performing the steel erection work would not permit the use of conventional safety nets.

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

The citation charging respondent with failing to comply with the occupational safety standard codified at 29 C.F.R. 1926.750(b)(1)(ii) was vacated by Judge Larkin on the ground that [*14] compliance with the standard would have rendered erection of the superstructure impossible. His well-reasoned decision, which is attached hereto as Appendix A, is fully supported by the evidence and should be affirmed.

In response to the testimony of respondent's expert witness that the use of safety nets would have interfered with the movement of the crane, thus preventing construction of the building, complainant's safety inspector suggested that a net could be installed after the erection of each vertical and horizontal beam and before respondent's connectors climbed up to secure the horizontal beam. My colleagues perfunctorily accept this suggestion and conclude therefrom that the use of safety nets would not have rendered erection of the building impossible. Such a conclusion is all too typical of the way in which Messrs. Barnako and Cleary consistently apply the law in a vacuum, totally divorced from reality. In this respect, it is important to explain exactly what it is my colleagues would have respondent do in order to comply with the standard.

First, respondent would have to raise a steel column with a derrick, lower it into a concrete base, and secure it in place [*15] with four anchor bolts. After a second column is set by the same method, respondent would raise a horizontal beam with the derrick. Respondent would then have to erect a safety net before the "connectors" could ascend a ladder to the top of the vertical columns and bolt the horizontal beam thereto. After the horizontal beam was bolted, the safety net would then be taken down so that the derrick could raise another vertical column and lower it into a concrete base. After this column was secured in place and the next horizontal beam hoisted atop the two vertical columns, respondent would again have to install a safety net until the connectors ascended the columns and bolted the horizontal beam. Then, the safety net would have to be taken down again so that the derrick could raise the next vertical and horizontal beams. This procedure would be continued for the erection of the entire superstructure, with respondent removing and installing a safety net before and after the erection of each and every new column and horizontal beam.

The imposition of such totally unreasonable requirements on employers does nothing to encourage compliance with the Act and is, in fact, the very [*16] type of nonsensical requirement that has engendered such hostility toward enforcement of the Act. In their actions today, my colleagues have once again joined forces with so many of the other Federal bureaucrats who blindly and inflexibly attempt to apply a given regulation to a variety of situations without even a trace of accompanying common sense. Such actions do nothing to enhance the safety of this country's workers and, in fact, they probably do just the opposite. n11

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n11 I think it is particularly unfortunate that Chairman Barnako has concurred in the disposition of this case. His statement pointing out the uselessness of the variance procedure in cases such as this is absolutely correct and displays the exercise of sound logic which, however, is unfortunately lacking in the majority's disposition.

I also agree with Chairman Barnako's conclusion that the precedent established in Secretary v. Industrial Steel Erectors, Inc., 6 OSAHRC 154 (1974), does not apply in the instant case. Therefore, the views expressed on that matter in the lead opinion represent only Commissioner Cleary's position and not that of the Commission. Furthermore, a showing of greater hazardousness by complying with the cited standard is all that is required to establish the defense under the Industrial Steel case. The additional requirements which Commissioner Cleary would create are improper for the reasons I have previously stated in my dissenting opinions in Secretary v. Cimpl Packing Company, 14 OSAHRC 153 (1974), and Secretary v. George A. Hormel and Company, 11 OSAHRC 725 (1974).

[*17]

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The defense of "impossibility" is an affirmative defense that must be established by the employer. Secretary v. Garrison and Associates, Inc., 17 OSAHRC 188 (1975); Secretary v. W.B. Meredith, II, Inc., 9 OSAHRC 245 (1974). The defense does not require a showing of absolute impossibility, but rather a showing of such extreme difficulty and infeasibility as to be tantamount thereto. See Secretary v. Universal Sheet Metal Corp., 9 OSAHRC 742 (1974). To require a showing of absolute impossibility n12 leads inevitably to the type of absurd requirements my colleagues would impose on this respondent.

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n12 An interesting question arises as to whether compliance is ever absolutely impossible, particularly when, as here, my colleagues do not exclude requiring an employer to totally change its work procedure. It seems to me that in reality my colleagues are attempting to abolish the defense altogether.

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With respect to the "ladder" [*18] charge, I agree with the Judge and my colleagues that respondent failed to establish the defense of impossibility and that the standard is not unenforceably vague. I therefore join in the affirmance of that charge.