Docket No. 524

MISSISSIPPI VALLEY ERECTION COMPANY OF TENNESSEE

OSHRC Docket No. 524

Occupational Safety and Health Review Commission

December 6, 1973

Before VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission upon my order directing review of a decision issued by Judge John S. Patton. The Judge found, inter alia, that Respondent violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter "the Act") by violating, in a non-serious manner, the standard published at 29 C.F.R. 1926.752(a)(3). n1 The Judge also concluded that Respondent did not commit a non-serious violation of section 5(a)(2) because it did not violate the standard published at 29 C.F.R. 1926.451(w)(6). n2

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n1 The cited standard provides: "Air line hose sections shall be tied together except when quick disconnect couplers are used to join sections."

n2 The cited standard provides: "Each employee shall be protected by an approved safety lifebelt and lifeline, in accordance with section 1518.104."

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We have reviewed the entire record. The decision of the Judge is adopted only to the extent it is consistent with the following decision.

VIOLATION OF 29 C.F.R. 1926.752(a)(3)(NON-SERIOUS)

Respondent was issued two citations, one for serious violation and one for non-serious violation of the Act, on January 25, 1972. n3 On February 10, Respondent filed a notice of contest contesting one item of the citation for serious violation and five of the nine items of the citation for non-serious violation. With respect to the charge that it violated 29 C.F.R. 1926.752(a)(3), the Company's notice of contest stated, "The Company does not contest . . . the alleged violation of 29 C.F.R. 752(a)(3)."

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n3 All dates hereafter are 1972 unless otherwise indicated.

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On February 25, Complainant filed his complaint. The complaint contained allegations relating to all times in both citations. In effect, it treated all items as contested.

Respondent's answer was filed on March 8. It sought, inter alia, to amend the notice of contest with respect to the alleged violation of 29 C.F.R. 1926.752(a)(3) so as to contest the alleged violation.

A hearing was held on May 15. All issues, including the alleged violation of 29 C.F.R. 1926.752(a)(3), were tried. Thereafter, the Judge issued his decision finding, inter alia, on the basis of evidence presented, that Respondent violated the cited standard.

Section 10(a) of the Act provides that a cited employer wishing to contest a citation or proposed penalty must do so within 15 working days n4 from his receipt of the notification of the penalty proposed to be assessed by the Secretary. The section also provides that if the cited employer fails to contest within that time, "the citation and the assessment, as proposed, shall be deemed a final order of the Commission."

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n4 "'Working day' means all days except Saturdays, Sundays, or Federal Holidays." Commission Rule 1(L)(29 C.F.R. 2200.1).

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Because Respondent did not timely contest the violation, it was not properly before the Judge. He had no jurisdiction to take evidence with respect to a matter deemed a final order of the Commission or to examine into Complainant's proposed penalty.

We conclude as a matter of law that Respondent violated the cited regulation. In so concluding, we express no opinion as to what result we would reach were the issue of the violation before us. Our conclusion is based solely on Respondent's failure to contest timely. For like reasons, we do not pass on the appropriateness of the penalty (none) proposed by Complainant.

VIOLATION OF 29 C.F.R. 1926.451(w)(6)(NON-SERIOUS)

As concerns this alleged violation the evidence of record is that eight of Respondent's employees were working from float scaffolds at heights of 45 to 50 feet. Six of the employees were engaged in steel beam positioning work and necessarily had to be mobile. The remaining two employees were welders and their job did not require them to be mobile. The welders were provided with and wearing lifebelts, but they were not tied off to lifelines. The situation was pointed out to Respondent's project supervisor, but no immediate corrective action was taken. Respondent informally and through safety meetings instructs its employees to use lifebelts.

In vacating, Judge Patton noted Complainant had not shown the failure to tie off to be of a duration greater than a few minutes nor had he shown that the failure was a recurring practice. He therefore concluded that Complainant had failed to sustain his burden of proof because he had not eliminated the possibility that the violation was an isolated occurrence. Standard Glass, Inc., B.N.A. 1 O.S.H.R. 1045, CCH Employ. S. & H. Guide para. 15, 146 (Rev. Comm. 1972). That is, the Judge's position is Complainant must in establishing a prima facie case disprove the existence of an isolated occurrence. We do not agree.

We would point out that the isolated event concept, if it is to be cognizable at all, can only have meaning after it is shown that a violation has occurred. That is, the concept is by nature a legal defense. It should be raised affirmatively during the formulation of the issues in the case.

In this case, Complainant proved the existence of a violation. The welders were not protected by a lifebelt and lifeline when they could have been so protected. Respondent was made aware of the situation, and let it continue for some period of time.

We turn now to the assessment of an appropriate penalty.

PATTON, JUDGE, OSAHRC: This case is before this Judge on the complaint of James D. Hodgson, Secretary of Labor, United States Department of Labor, hereinafter referred to as complainant, against Mississippi Valley Erection Company of Tennessee, respondent, alleging that respondent has violated Section 5(a)(2) of the Occupational Safety and Health Act of 1970 (80 Stat. 1604; 29 U.S.C. 651, et seq. ), hereinafter called the Act and Occupational Safety and Health Standards 29 C.F.R. 1926.451(w)(6); 29 C.F.R. 1926.451(a)(16); 29 C.F.R. 1926.750(b)(2); 29 C.F.R. 1926.450(a)(5); 29 C.F.R. 1926.451(w)(5); 29 C.F.R. 1926.451(w)(2) and (3); 29 C.F.R. 1926.752(a)(3); 29 C.F.R. 1926.451(a)(10); 29 C.F.R. 1926.451(a)(18) and 29 C.F.R. 1926.105(a). It was alleged that the violation of Section 1926.105(a) is a serious violation and the other alleged violations are not serious violations of the Act. It was alleged that on or about January 24, 1972, the respondent was in violation in the following respects. Employees worked on four float scaffolds without safety lines or lanyards in violation of Standard 1926.451(w)(6); that the respondent had employees working with one scaffold directly above another without overhead protection for floor scaffold in violation of section 1926.451(a)(16); that no temporary flooring existed in the erection tower which was approximately 45 feet above the ground in violation of Standard 1926.750(b)(2); that the employer used a fixed ladder approximately 80 inches high without cage or platform in violation of Standard 1926.450(a)(5); that respondent used manila line roping on float scaffolds 3/4" in size instead of one inch in violation of Standard 1926.451(w)(5); that respondent used float scaffolds approximately 32" by 48" instead of the required 36" by 72" that the float scaffolds have no bearers or diagonal braces underneath; that said action was a violation of Standard 1926.451(w)(2) and (3); that respondent used airline hose sections not tied together in violation of Section 1926.752(a)(3); that respondent used planking for scaffolding which has knots and other apparent defects in size and location appearing to cause decreased working load intended for said planking in violation of Standard 1926.451(a)(10); that respondent permitted welding on 32" by 48" scaffoldings about 50 feet above the ground from float scaffolding suspended by means of fiber or synthetic rope in violation of Standard 1926.451(a)(18); that respondent was guilty of a serious violation in that connectors worked 60 feet above the ground without a safety net or other device to prevent falling in violation of Standard 1926.105(a).

Citations were issued by the Department of Labor alleging said violations and penalties in the amount of $500 for said alleged serious violation and penalties in the total amount of $260 for said non-serious violations were proposed. The respondent filed a notice of contest on February 10, 1972, whereupon the aforesaid complaint was filed by the plaintiff. Hearing was held before John S. Patton, Judge in Birmingham, Alabama, on May 15, 1972. Mr. Leighton A. Beers, Jr., appeared as counsel for the plaintiff and Mr. E. L. Kitrell Smith appeared as counsel for the respondent. There was no motion to intervene by the representative of the employees. All parties were accorded the right to present evidence and orally argue the case. The parties were accorded the right to file written briefs and briefs from both parties have been received.

LAW AND ISSUES OF THE CASE

Item 1. Section 1926.451(w)(6) of the standard reads as follows:

Each employee shall be protected by an approved safety lifebelt and lifeline, in accordance with section 1518.104.

Item 2. Section 1926.451(a)(16) reads as follows:

Overhead protection shall be provided for men on a scaffold exposed to overhead hazards.

Item 3. Section 1926.750(b)(2) reads as follows:

Where erection is being done by means of a crane operating on the ground, a tight and substantial floor shall be maintained within two stories or 25 feet, whichever is less, below and directly under that portion of each tier of beams on which bolting, riveting, welding, or painting is being done.

Item 4. Section 1926.450(a)(5) reads as follows:

Fixed ladders shall be in accordance with the provisions of the American National Standards Institute, A 14.3 1956, Safety Code for Portable Metal Ladders.

Item 5. Section 1926.451(w)(5) reads as follows:

Supporting ropes shall be 1-inch diameter manila rope or equivalent, free from deterioration, chemical damage, flaws, or other imperfections. Rope connections shall be such that the platform cannot shift or slip. If two ropes are used with each float, they shall be arranged so as to provide four ends which are to be securely fastened to an overhead support. Each of the two supporting ropes shall be hitched around one end of bearer and pass under the platforms to the other end of the bearer where it is hitched again, leaving sufficient rope at each end for the supporting ties.

Item 6. Section 1926.451(w)(2) and (3) reads as follows:

(2) The platform shall be not less than 3 feet wide and 6 feet long, made of 3/4-inch plywood, equivalent to American Plywood Association Grade B-B, Group I, Exterior, or other similar material.

(3) Under the platform, there shall be two supporting bearers made from 2- X 4-inch, or 1- X 10-inch rough, "selected lumber," or better. They shall be free of knots or other flaws and project 6 inches beyond the platform on both sides. The ends of the platform shall extend 6-inches beyond the outer edges of the bearers. Each bearer shall be securely fastened to the platform.

Item 7. Section 1926.752(a)(3) reads as follows:

Air line hose sections shall be tied together except when quick disconnect couplers are used to join sections.

Item 8. Section 1926.451(a)(10) reads as follows:

All planking shall be Scaffold Grade as recognized by approved grading rules for the species of wood used. The maximum permissible spans for 2- X 10-inch or wider planks shall be as shown in the following:

TABLE L-3
MATERIAL
	Full Thickness	Nominal
	Undressed	Thickness
	Lumber	Lumber n1
Working load (p.s.f.)	25	50	75	25
Permissible span	10	8	6	8
(ft.)

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n1 Nominal thickness lumber not recommended for heavy duty use.

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Item 9. Section 1926.451(a)(18) reads as follows:

No welding, burning, riveting, or open flame work shall be performed on any staging suspended by means of fiber or synthetic rope. Only treated or protected fiber or synthetic ropes shall be used for or near any work involving the use of corrosive substances or chemicals.

Alleged serious violation. Section 1926.105(a) reads as follows:

Safety nets shall be provided above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts are impractical.

The respondent conceded that the citations and penalties for Citations 2, 4 and 8, relating to Standard 29 C.F.R. 1926.451(a)(16); 29 C.F.R. 1926.450(a)(5) and 29 C.F.R. 1926.451(a)(10) respectively should be sustained. The other citations are at issue in this case.

EVIDENCE OF THE CASE

CITATION NO. 1

As above noted, the allegation as to Citation No. 1 is that two employees each were on four float scaffolds without a lifeline or lanyard. Mr. Carl T. Frazier, Compliance Officer for the complainant testified that he inspected the work project on January 24, 1972, and personally observed that four float scaffolds had two employees on each scaffold and that the employees did not have safety belts or lanyards. He defined a lanyard as a line or rope that ties and connects a safety belt to a life line. He stated they did not have on safety belts per se, but had the equivalent of a safety belt, however, it was not tied to a lifeline and, therefore, the employees were not protected.

Mr. J. R. Nichols testified that said employees were working at approximately 45 to 50 foot level. He stated that the project supervisor Mr. Phifer was with him on the inspection and saw the men working without use of the belts. He stated that Mr. Phifer took no corrective action right then, when they saw the men on the floats without safety belts. He stated that it was possible that Mr. Phifer could have taken action later. He stated that a citation would still have been issued if safety belts had been worn, because the belts were not connected to a safety line or lanyard. He stated that the regulation required that the safety belt be attached to a point above the point of operation and this couldn't be done until another column was put up to attach it to. He stated that many columns were erected. He stated the claimant could have put up riggers to hand nets from and does not know the extent that respondent could have used high poles with nets like trapeze nets. He stated there was enough steel on the outside perimeter but not on the inside perimeter. He stated that on that date the claimant showed good faith and a desire to comply. Mr. Nichols testified that employees were instructed as to the use of safety belts, being instructed to use the safety belts all bolted up and tightened off. He subsequently stated that they had some safety belts on the job in January and that most of the iron workers' belts were carried with their tools. He was not certain however, whether there was enough to supply every individual; that perhaps one or two got by both him and the company. He stated they had a few when they started, he did not know exactly how many. No one ever complained he did not have his safety belt.

He stated that most of the employees at the time of inspection could not have been tied on with their safety belts. He said that when the beam is lifted in the air, the beam may give a little whip and if the operator is picking up a piece of steel he stops the break, the boom is limber and this may cause movement of the steel five to six feet toward the employee. If he is tied off into an area, sometimes he cannot get away from it. He has to be untied so he can keep moving with the steel. He stated that if an employee is on a higher beam, 100 feet high or higher, some of the depths of the beams are 4 or 5 feet and perhaps a gust of wind will hit them and a 30 foot beam will rake the employee right off the top of the iron. If the employee is stationary he can tie off, but 99 per cent of the time it is impossible to tie off because he has to run and meet the iron and bring it to him and put it into position. He stated that once the employee gets the bolt into it he is gone to get another piece in another area. He stated that at the time of inspection they were not tied off; he further stated however, that there were a couple of welders bolting up who were in a stationary position and could have been tied off. He stated that said men were not tied off because neither their foreman nor Mr. Nichols had observed it.

Mr. Herman Dowlen testified that he had been erection manager for ten years. He stated that safety belts and lanyards were sent to the job when the job first started. The employees were not instructed in the use of safety belts because they were experienced iron workers and were assumed to already have such knowledge. He stated that if a man was caught without a safety belt tied off, he was automatically fired.

Mr. Wayne Warren, welding foreman also stated that employees were furnished safety belts by the company and instructed in the use of the belts. He stated that so far as the employees under his direct charge were concerned he would probably fire them if they failed to use said safety equipment. He stated that he was instructed to tell the employees they were to wear belts anytime they left the ground. He stated that there were several cables around the outside edge of the tower for men to fasten their belts to. He further testified as follows: "Question: But they have no hard and fast rule do they about using them? Answer: No sir, they don't give us a paper out to make them." He reiterated following this testimony however, that he would fire a man he saw without a safety belt.

CITATION NO. 2

Citation No. 2 that scaffolding was directly above another without overhead protection on or for floor scaffold was not contested.

CITATION NO. 3

The allegation was made that there was no temporary flooring in the erection tower approximately 45 feet above the ground in violation of Standard 1926.750(b)(2). It was stipulated that there was a crane operating on the ground. Mr. Frazier, the Compliance Officer testified that the erection tower was a temporary tower for the purpose of putting girders or other beams up. Mr. Nichols testified that it was 60 to 70 feet high. The estimate of distance by Mr. Frazier was 55 feet and he stated that he saw an employee on the tower 45 feet above the ground. The tower was erected for the purpose of giving a temporary support until the permanent girders and beams were put up, at which time the tower would be demolished. The employee who was at approximately 45 foot elevation at the instructions of Mr. Phfier came down the tower. The employee was not actually performing work at the time Mr. Frazier saw him and Mr. Frazier did not know what his purpose in being there was, but assumed it must have been for a purpose related to work. There was no temporary flooring erected according to Mr. Frazier or Mr. Nichols. Mr. Nichols stated that he worked on the tower himself and that he had been working on it about eight to ten days to two weeks, when the inspection occurred. He stated that a number of people worked on it, the connectors, bolters and so forth. Mr. Dowlen, erection manager, stated that he doubted if there was any temporary flooring in at the time of inspection because respondent was still in the process of putting the tower together in large sections and he doubted it had reached the spot where they could put a floor in. He stated that the only work in the support tower after it was erected was bolting splices of the tower together. Mr. Warren the welding foreman stated that at the time of inspection there was partial flooring in the tower; that there was lumber on the job and flooring could have been put in as the job progressed.

CITATION NO. 4

Citation No. 4 which was that there were fixed ladders approximately 80 inches high without cage or platform in violation of 29 C.F.R. 1926.450(a)(5) was not contested and, therefore, no evidence was presented with respect to this citation. The respondent conceded that the citation was correct.

CITATION NO. 5

Citation No. 5 was to the effect that the respondent used a manila line with which to hang the float scaffolds, which line was only 3/4" in diameter instead of 1", in violation of Standard 29 C.F.R. 1926.451(w)(5). Mr. Frazier stated that at the time of inspection four scaffolds were in the air with 3/4" lines and that Mr. Phfier admitted to him on said occasion that the line was only 3/4". The ropes were manila rope, two men per scaffold were working on the scaffold approximately 60 feet above the ground. The respondent also had two scaffolds on the ground. Mr. Frazier stated that a 3/4" line will hold more than a 1" line. Mr. Nichols stated that a 3/4" manila rope is not as safe as a 1" manila rope because it's continually pulled across sharp edges of steel. He stated that floats had to be moved an average of four or five times a day. He stated however, that when a rope is worn it has to be replaced. It was not necessary to replace any ropes on the job because of breaking and it is standard procedure for each worker to examine his own ropes.

Mr. Dowlen, erection manager, stated that a 3/4" rope was entirely adequate for safety purposes. He stated that they started doing away with the 1" rope when riviting went out of style and high strength bolts took its place. He stated that the 3/4" rope was easier and safer to tie. On the other hand Mr. Nichols stated there is no danger of slippage if a 1" rope is properly tied; that there is no difference in that regard as to size of the rope. A minimum breaking strength of the 3/4" rope was described by Mr. Dowlen as 5400 lbs. with 4" of rope that would be 20,000 breakage strength. The evidence was to the effect that there were only two ropes but they took care of four corners and the weight would be based upon the four corners. A one-inch rope's breakage strength would be 9,000 pounds, making total carrying power of 36,000 for a 1" rope. Mr. Dowlen testified that a 3/4" rope was entirely safe but that a 3/4" rope couldn't be equivalent to a 1" rope. It was testified that no rope had to be replaced during the three or four months of operation of the job, that a rope would not become frayed from a single operation but only from use for a considerable period of time. Mr. Dowlen stated he had never heard of an accident with a 3/4" manila rope. Mr. Warren also was of the opinion that a 3/4" rope was easier to tie. He stated that a knot would slip on a larger line, also that saturation of a 1" line makes it difficult to tie a knot in. He preferred a 3/4" rope.

CITATION NO. 6

Citation No. 6 was that float scaffolds were approximately 32" by 48" in size rather than the required minimum of 36" by 72". It was further alleged to be a violation that float scaffolds had no bearers or diagonal braces underneath and it was alleged that this constituted violations of Standard 1926.451(w)(2) and (3). Mr. Frazier testified that there were two scaffolds on the ground and four in the air, each of which were 32" by 48" in size. The fact that the scaffolding was of said size was not denied by any witness. There were only two men on each float. Mr. Nichols stated that a larger float had more stability and more room and there was less chance for a fall; a float is used as a temporary platform to get to a point that's too dangerous to work without one or almost impossible to get to by hanging to the beam. He testified that they have to have an area where the float will bump into something that will keep it stable. He stated that too small a float is comparable to paddling an aluminum canoe standing up. The float will be moved an average of four or five times a day. It was testified that formerly there had been four-man riviting gangs but that only two men worked on any of these floats. A large float could buck into something and tie it off. He stated he could move the large float by himself. It was testified by Mr. Dowlen that if they had had a need for more than two men they would have furnished the larger float. He testified that generally there was only one man on a float although sometimes there were two. They changed to the smaller float because it was easier to move; safer to move and work on. Two men could move the large float but with more difficulty. He stated one man could not move the larger float, but could move the smaller. Mr. Warren also stated that he had never observed more than two men on a float. He preferred a smaller float because of the difficulty of moving the larger float. He stated it was not crowded on the float, there was no danger of being pushed off.

Mr. Frazier testified that the standard required bearers or diagonal bracing underneath the scaffold, the scaffolds had neither. He described a bearer as a member on which the boards of the platform rests and the ropes are tied to it. Mr. Nichols testified that years ago such a job required driving rivets; there were two or three people on the float, and the bearer was almost mandatory because it gave the plywood more strength and it was safer. He stated there were a lot more tools to lay on the float. With a yo-yo, air rubber and 8 or 10 different snaps and extra bolts and reamers, there was a lot more weight. It was almost mandatory for the bearer to be made of an X of 2 by 4s turned toe wise in a position so that the outer perimeter could be tied on. There was the full support of the rope, and the bearer was wide enough so that it would lean into a column, beam or knee-brace. It gave more bearing to work with, was safer and stronger. He stated floats without bearing are naturally weaker, the weakness being in the perimeter. He described the bearer as 1 by 4s making an X under the plywood and all the way across. The center could be reinforced. He stated that in fact under this type of operation it was the bearers which supported the plywood more than the ropes. Mr. Warren testified that no cross beams were needed under the float because ropes under it were sufficient.

CITATION NO. 7

Citation No. 7 was to the effect that airline hose sections were not tied together constituting a violation of Standard 1926.752(a)(3). It was testified by Mr. Frazier that the regulation required that there be quick relief type of connector which must be pinned and tied and they were not pinned. A quick disconnect hose was described by Mr. Frazier as round, having a coupling that pulls back and disconnects. He stated that it only requires a twisting motion and disconnects almost immediately. The quick disconnect is put on a collar and released. The other method of connecting requires taking out a pin, undoing two chains, a safety coupling and then twisting it. He stated most of the time it is unnecessary to remove a pin because it isn't there. He stated there was a violation because the regulation required that if there are no quick relief type connectors, they must be pinned and tied; and these were not pinned, they were twisted connectors.

CITATION NO. 8

Citation No. 8 was not contested and, therefore, it was not necessary for evidence to be presented as to said citation.

CITATION NO. 9

Citation No. 9 alleged welding on scaffolds suspended by means of fiber or synthetic rope in violation of Standard 1926.451(a)(18). Mr. Frazier testified that the rope from which the scaffolding was hanging was manila rope and that two iron worker welders were welding connections. He was of the opinion that a synthetic fiber rope with wire core would be better than what was used. Company witnesses stated that they had never heard of the wire core type rope. He stated that the wire core type rope would not be dangerous from a standpoint of electric shock until the manila had burned off. Mr. Nichols confirmed that welding was done on two of the floats. Mr. Dowlen testified that a manila rope would not burn from one operation and that over a long period of time a rope would be frayed by sparks. He did not know of any accident ever happening because of welding with the type rope used. He knew of no rope preferable to that used. Mr. Warren stated that rope was never charred by welding except over a period of several months. He stated that it was highly unlikely that a rope would burn through on one welding operation. No rope on the job was replaced because it was frayed according to the testimony of Mr. Nichols. It was stated by Mr. Dowlen that the job was started with a new rope and that there had been no fraying. He stated that after each job material and tools are sent back to Chattanooga to be inspected, repaired and reissued.

ALLEGED SERIOUS VIOLATION

It was alleged that the connectors were 60 feet above the ground without safety nets or other safety devices to prevent falling in violation of Standard 1926.105(a) and that this constituted a serious violation as said term is defined in the Act. Mr. Frazier testified that connectors were working approximately 60 feet above the ground at the time of inspection. He stated that respondent did not comply with the standard's requirements that they must be tied off with a lifeline or lanyard or safety belt or have a catch platform and so forth. He stated that none of the requirements of said standards had been met. Employees were standing on steel beams connecting columns to the beams. There was no net under them. He stated that many columns were erected and that the respondent could have rigged up riggers to hang the nets from. He did not know how expensive this would be. He stated it also would have been possible to use high poles like those used by trapeze artists. There was enough steel to hang nets on the outside perimeter, but not on the inside perimeter.

Mr. Nichols stated that it would be quite a problem to put a net up. The man erecting the net would be exposed to danger. He stated there would be nothing to break the man's fall, and there was nothing to break the fall of men that were working without a net. He stated there was no practical alternative to a net or false planking and on this type of building false planking was not practical. He stated some jobs are inherently unsafe and you cannot do anything about it. He stated that nets could have been hung on two wings but nowhere else. It would have taken three days on each wing to hang the nets and they would have been through hanging the iron by that time. Mr. Dowlen testified that there was not enough steel erected at the time of inspection to hang safety nets. He stated that to have installed something additional to hang nets from would have, itself, created a hazard. He testified that nets were hung when they reached the level where there was something to hang them from. The best he recalled, the company received safety nets late in February or early in March, 1972. He stated that to hang nets sooner respondent would have had to erect something to support the nets with additional hazard and expense, and that it would have taken several days to do it. He testified that there had been no accidents on the job.

Mr. Warren testified that there were steel cables around the erection tower at the time of inspection however, Mr. Nichols stated that those steel cables were around the tower at the time of inspection. He first testified that it was one of the safest jobs ever erected, but subsequently stated the safety improved a great deal following the inspection.

EVALUATION OF THE EVIDENCE

CITATION NO. 1

As hereinabove stated, it is alleged that the respondent failed to have all of his employees wear safety belts and lifelines as required by Standard 29 C.F.R. 1518.104. There is no dispute as to the allegation that safety belts were not worn. The respondent, however, took the position that most of the employees could not have used safety belts because when the beam is brought up in the air, the beam will give a small whip and if the operator is picking up a piece of steel, and he stops the brake, the boom is limber, and this may cause movement of the steel five to six feet toward the employee. If he is tied off from an area, sometimes he cannot get away from it. He has to be untied so he can keep moving with the steel. Respondent also stated that if an employee is on a higher beam 100 feet or higher, perhaps a gust of wind will strike the beam and a 30 foot beam will rake the employee off the top of the iron. It an employee was stationary, he could tie off, but 99 per cent of the time, it was impossible to tie off because he had to run and meet the iron and bring it to him and put it into position. I am of the opinion that in those instances which fit the above-described facts, the respondent was not in violation by the employees failing to be tied on with safety belts. Safety belts could not be used by an employee who had to be mobile in his work.

A Review Commission Judge cannot pass upon the wisdom of a standard but it cannot be the purpose of the standard to require an employee not working in a fixed position to wear something which ties him to a fixed position. It was testified, however, that there were a couple of men bolting who were in a stationary position and could have been tied off with safety belts. It was stated they were not tied off because neither the foreman nor superintendent had observed it.

It is necessary for a company not only to have rules that conform with safety standards but it is also necessary for management to see to it that these rules are observed. The question arises as to whether by the exercise of reasonable diligence the employer should have known that this rule was being violated by said employees. Mr. Dowlen testified that any employee working in a stationary position who was caught without a safety belt tied off was automatically fired. Mr. Warren, welding foreman stated that he would probably fire an employee working under his direction if the employee failed to wear a safety belt. The length of time that the employees had worked without safety belts was not established by the evidence. I am of the opinion that if the employees were working only a few minutes without safety belts prior to the time they were observed and if this was an isolated incidence of such an occurrence, the respondent could not reasonably be held to be responsible for this violation of the Act. On the other hand, if this was a recurrent problem, or if the employees were working without safety belts for such length of time as to have given the respondent opportunity by the exercise of reasonable diligence in supervision of the employees to have observed this violation of the standard, the respondent would be responsible for the violation, and I should so find. The record is silent as to all of these factors. The burden of proof rests on the complainant. In the absence of proof as to the length of time the employees had been so engaged in work without safety belts and in the absence of proof as any other instance of this occurring, I am of the opinion that the complainant has not borne his burden and has failed to establish that the respondent was lacking in proper care in failing to have knowledge of this violation of the standard. This is particularly true in view of the evidence that employees who worked in a stationary position without safety belts were fired. For this reason I am of the opinion that said citation has not been sustained. See the Decision of the Commission in the case of Hodgson v. Standard Glass Company, Inc.

CITATION NO. 3

Citation No. 3 as above stated alleged that the respondent violated Standard 29 C.F.R. 1926.750(b)(2) in that the respondent failed to provide temporary flooring in the erection tower. It is not disputed that no temporary flooring was provided. Mr. Frazier, the Compliance Officer, testified that he saw an employee on the tower 45 feet above the ground. It is contended by the respondent that there is no evidence that the employee was in the tower 45 feet above the ground for the purpose of working and that the standard would only apply to protect employees engaged in working. It is not, in any way, denied by the respondent that said employee was the respondent's employee and that said employee was on said premises during the employees' working hours. It may reasonably be assumed that an employee on the tower during working hours and in the respondent's employ was on the tower for a reason related to his work. It is not incumbent upon the complainant to establish the particular type of work the employee was engaging in. This particular work that took the employee to the tower is more peculiarly within the knowledge of the respondent and the respondent has not produced any evidence to indicate that the employee was in the tower for any reason unrelated to his work. It is true that the burden of proof is upon the complainant. I am of the opinion, however, that a presumption arises that an employee in an elevated place on the job during his own working hours is there for a reason related to his employment. There certainly has been no rebutting of such a presumption and I am, therefore, of the opinion that the respondent was engaged in work and that there was an obligation on the part of the respondent to see that said employee was protected by the temporary flooring required by the standard. It was testified there was a partial flooring in the tower and Mr. Warren stated that there was lumber on the job which could have been put in to make a complete flooring as required by the standard and it could have been erected at the time of said inspection. I am, therefore, of the opinion that the said Citation No. 3 has been sustained.

CITATION NO. 5

Citation No. 5 alleges a violation of Standard 29 C.F.R. 1926.451(w)(5) because only 3/4 inch ropes were used rather than one-inch manila ropes or equivalent to support the moveable scaffold. It is conceded that only 3/4 inch diameter rope was used. It is insisted by the respondent, however, that the 3/4 inch rope was the equivalent of the one inch rope. Considerable evidence was introduced to establish that the 3/4 inch rope was adequate. Mr. Dowlen, Erection Manager, expressed the opinion that 3/4 inch rope was easier and safer to tie. On the other hand, Mr. Nichols stated there's no danger of slippage of a 1 inch rope if properly tied. He stated that there was no real difference in regard to the safety of tieing it. Mr. Dowlan stated he never heard of an accident with a 3/4 inch manila rope. Mr. Warren was of the opinion that a 3/4 inch rope was easier to tie. It was testified, however, that a minimum breaking strength of the 3/4 inch rope is 5400 pounds for each corner to which the rope is tied and which multiplying by four would make in excess of 20,000 pounds breaking strength. On the other hand, the one inch rope breaking stength would be 9,000 pounds on each place tied making a total carrying power of 36,000 pounds. There is substantial evidence in the record as above stated that a 3/4 inch rope is safe. I am of the opinion, however, that in view of the substantial greater breakage strength of the one inch rope, it cannot be said that the two ropes are equivalent of each other. There is an added margin of safety in the one inch rope. I do not have the authority to pass upon the wisdom of the standard. The question of the wisdom of a standard is one for the Secretary of Labor just as the question of the wisdom of a statute is one for the legislative body and not one for the courts. It may be as suggested by the respondent that the additional strength in a one inch rope is excess and not required, but the fact remains that this is not my decision and the undisputed testimony is to the effect that there is a difference in strength in favor of the one inch rope. I, therefore, am of the opinion that the 3/4 inch rope is not the equivalent of the one inch rope and that the standard has been violated.

CITATION NO. 6

It was alleged in Citation No. 6 that respondent had violated Standard 29 C.F.R. 1926.451(w)(2) and (3) in that float scaffolds were approximately 32 inches X 48 inches whereas the standard required them to be 36 inches X 72 inches. There was no dispute in the evidence as to the size of the floats. It was insisted by the respondent that the 32 inch X 48 inch float was preferable, and that therefore, a violation had not occurred. Mr. Nichols stated that a larger float had more stability and more room and less chance for a fall. A float is used as a temporary platform to get to a point that's too dangerous to work without one, or where it's almost impossible to do work by hanging to the beam. Mr. Nichols stated that there had to be an area where the float would bump into something that would keep it stable. He described too small a float as comparable to paddling an aluminum canoe standing up. It was testified the float would be moved an average of four or five times a day and Mr. Dowlen stated that only two men were ever on the float and that the smaller float was easier to move and handle. He stated two men could move the larger float but with more difficulty, and that one man could not move the larger float, but could move the smaller. Mr. Warren substantiated the fact that there were never more than two men on a float. He also was of the opinion that the smaller float was preferable because of the difficulty of moving the larger float. He stated the floats were not crowded and there was no danger of a man being pushed off. I am of the opinion that this defense goes to the question of the practicability or wisdom of the standard. As hereinabove stated, I am of the opinion that the question of practicability or wisdom of a standard is not a judicial problem, but is one that addresses itself to the legislative function of the Secretary of Labor in the issuance of standards. I can only determine whether a standard exists and whether the standard has been violated. I cannot second guess the Secretary of Labor as to whether another standard or a standard differently phrased would have been more practical. Under these circumstances, it is not for me to determine whether a 32 inch X 48 inch float is better than a 36 inch X 72 inch float. The standard requires a 36 inch X 72 inch float and this standard has not been complied with. I, therefore, am of the opinion that Citation No. 6 should be sustained. It will further be noted that there was no barrier or bracing. It was stated that a barrier added support, that with it there would be the full support of a rope and a barrier. He stated that floats without barriers were naturally weaker, primarily in the center which is described as the weakest point. It was one by fours making an X under the plywood. It will be noted that the standard requires a barrier and although there was evidence that the ropes underneath were adequate, anything other than a barrier would not comply with the standard. For this additional reason, I am of the opinion that the standard has been violated. I am of the opinion that Citation No. 6 should be sustained.

CITATION NO. 7

It was alleged in Citation No. 7 that there was no quick release connector connecting the airline hose section in violation of 29 C.F.R. 1926.752(a)(3). As hereinabove stated, the type of disconnection that was used did not meet the definition of a quick disconnect. Mr. Frazier testified that the type used by the company required to be taken out, that it necessitated undoing two chains, and then twisting it. He stated the quick disconnect only required pushing up on a collar and releasing it. Mr. Nichols substantiated this testimony of Mr. Frazier. I am of the opinion the disconnect used by the respondent does not meet the standard and, therefore, the allegation of violation of the standard has been sustained.

CITATION NO. 9

Citation No. 9 alleged that welding was engaged in on scaffolds suspended by means of fiber or synthetic rope in violation of standard 29 C.F.R. 1926.451(a) (18). There was considerable testimony by the respondent to the effect that the type of manila rope which was used was safe, that it would not burn on one operation, and that it would only be frayed by sparks over a long period of time giving ample time for replacement. He stated they had not had to replace any rope on the job. This defense, however, goes to the question of the wisdom or practicability of the standard rather than whether the standard has been violated. It is admitted that the type of rope required by the standard was not supplied and, therefore, the citation has been violated.

As hereinabove noted, Citation Nos. 2, 4 and 8 are conceded by the respondent to be sound and are not contested.

ALLEGED SERIOUS VIOLATION

It was alleged that the connectors worked over sixty feet above the ground without safety nets or the other safety devices required by Standard 1926.105(a). Employees were standing on steel beams connecting columns to the beams. As above stated, it was testified that nets were not erected because construction had not progressed to the point where there was anything to hang the net from. It was further testified that it would take several days to hang the nets and that there would be no security for the person hanging the net and that this would create as dangerous a situation as if no nets were provided. It was suggested by witnesses for the plaintiff that the type of net that is used by trapeze artists might have been used. Since the work was performed at a sixty foot level, these nets could not have complied with Section 1926.105(c) which requires that the nets be within 25 feet of the employee. The question therefore arises as to whether a partial compliance with a standard where a total compliance might not be possible by such means would be required. I am of the opinion that the fact that the net could not be brought to within 25 feet of the employees would not change the fact that the providing of a net would provide some safety and would comply with 29 C.F.R. 1926.105(a), although not constituting complete compliance with 29 C.F.R. 1926.105(c). The fact that such a device would not have been a complete compliance does not excuse the respondent from doing nothing, and I am of the opinion that the type net suggested such as those used by trapeze artists could and should have been provided. It may well be argued that the standard requiring the net contemplates that progress in construction must have reached the point where it is practical for there to be something for a net to hang from. On the other hand, I am also of the opinion that if there was a way in which nets could be hung, the fact that it would be dangerous to erect the proper supports for the net is an argument that addresses itself to the Secretary in the request for a variance rather than being a proper defense in a hearing before a Judge of the Review Commission. I am, therefore, of the opinion that the standard has not been met. It is conceded that there was no net provided and further conceded that the men were working in excess of a 25 foot height. Therefore, the standard was not complied with. There was a way in which supports could have been provided either by building these supports even though there is testimony that this would in itself be dangerous, or as a possible substitute, a net could have been provided such as that provided by a trapeze artist.

FINDINGS OF FACT

1. Respondent is a corporation having a place of business and doing business among other places in Birmingham, Alabama, where it engaged in steel erection and the construction of the music hall of the Birmingham Civic Center.

2. Respondent has at all times relevant hereto been engaged in a business affecting commerce within the meaning of the Act.

3. On or about January 24, 1972, respondent's employees worked on four float scaffolds without safety lines or lanyards.

4. On or about said date, employees worked on one scaffold directly above another without overhead protection on or for the floor scaffold.

5. On said date, employees worked in the erection tower approximately 45 feet above the ground with no temporary flooring.

6. On said date, respondent's employees used a fixed ladder approximately 80 inches high without a cage or platform.

7. On said date, respondent's employees worked on float scaffolds supported by 3/4 inch manila line rope.

8. On said date, respondent's employees worked on float scaffolds approximately 32 inches X 48 inches in size.

9. On said date, employees worked on float scaffolds having no barriers or diagonal basis underneath.

10. On said date, airline hose sections were not tied together with an automatic disconnect.

11. On said date, respondent's employees used scaffolds which had planking with knots and/or other apparent defects inside the location causing decreased workload intended for said planks.

12. On said date, employees engaged in welding on 32 inch X 48 inch floats-scaffolds suspended by means of fiber or synthetic rope.

13. On said date, respondent's employees worked 60 feet above the ground without a safety net or other device to prevent falling.

CONCLUSIONS OF LAW

1. The Occupational Safety and Health Act applies to the business of respondent and the Occupational Safety and Health Review Commission has jurisdiction of this cause.

2. The respondent had not violated Standard 29 C.F.R. 1926.451(1)(w)(6).

3. Operation of one scaffold directly above another without overhead protection on or above the floor scaffold constituted a violation of Standard 29 C.F.R. 1926.451(a)(16).

4. The failure to have temporary flooring in the erection tower constituted a violation of Standard 29 C.F.R. 1926.750(b)(2).

5. The failure to have a cage or platform on fixed ladder approximately 80 inches high constituted a violation of Standard 29 C.F.R. 1926.450(a)(5).

6. The use of 3/4 inch manila line ropes rather than one inch ropes constituted a violation of Standard 29 C.F.R. 1926.451(w)(5).

7. The use of floats-scaffolds approximately 32 inches X 48 inches in size constituted a violation of Standard 29 C.F.R. 1926.451(w)(2).

8. The failure to provide barriers or diagonal braces under float scaffolds constituted a violation of Standard 29 C.F.R. 1926.451(w)(3).

9. The use of planking scaffold with knots and other apparent defects constituted a violation of Standard 29 C.F.R. 1926.451(a)(10).

10. The use of airline hose sections without automatic disconnects constituted a violation of Standard 29 C.F.R. 1926.752(a)(3).

11. Permitting of welding on scaffolds suspended by means of fiber or synthetic rope constituted a violation of Standard 29 C.F.R. 1926.451(a)(18).

12. Permitting employees to work 60 feet above ground without a safety net or other device to prevent falling constituted a violation of Standard 29 C.F.R. 1926.105(a).

13. The violation recited in No. 12 above constituted a serious violation.

14. All other violations found were non-serious violations as defined by the Act.

ORDER

It is therefore ORDERED that:

The citation alleging violation of Standard 29 C.F.R. 1926.451(a)(16) is affirmed and no penalty is assessed for said violation.

The citation alleging violation of Standard 29 C.F.R. 1926.750(b)(2) and the penalty in the amount of $65 proposed are affirmed.

The citation alleging violation of Standard 29 C.F.R. 1926.450(a)(5) and the penalty of $40 proposed are affirmed.

The citation alleging violation of Standard 29 C.F.R. 1926.451(w)(5) and the proposed penalty of $65 are affirmed.

The citation alleging violation of Standard 29 C.F.R. 1926.451(w)(2) and (3) and the proposed penalty of $40 are affirmed.

The citation alleging violation of Standard 29 C.F.R. 1926.752(a)(3) is affirmed. No penalty is assessed for said violation.

The citation alleging violation of Standard 29 C.F.R. 1926.451(a)(10) is affirmed. No penalty is assessed for said violation.

The citation alleging violation of Standard 29 C.F.R. 1926.451(a)(18) and the proposed penalty in the amount of $65 is affirmed.

The citation alleging serious violation of Standard 29 C.F.R. 1926.105(a) and the penalty in the amount of $500 are affirmed.

The citation alleging violation of Standard 29 C.F.R. 1926.451(w)(6) is dismissed.

The proposed abatement dates except as to Standard 29 C.F.R. 1926.451(w)(6) are affirmed.