HOFFMAN CONSTRUCTION COMPANY

OSHRC Docket No. 644

Occupational Safety and Health Review Commission

January 31, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter presents the issue whether by failing to require its employees to tie off safety belts as protection against a fall from a height Respondent acted contrary to 29 C.F.R. 1926.28(a) and thus committed a serious violation of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. hereinafter "the Act") as alleged by Complainant. n1 Complainant also asks that we reverse Judge Garl Watkins' decision to vacate a citation alleging a non-serious violation of the Act for failure to comply with 29 C.F.R. 1926.451(a)(4). n2

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n1 Section 5(a)(2) of the Act (29 U.S.C. 654(a)(2)) requires employers to comply with safety and health standards issued by the Secretary.

n2 We find no error in the judge's decision as to this citation and therefore affirm his disposition for the reasons assigned by him.

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The facts are that on February 15, 1972 the compliance officer observed approximately 10 men working [*2] on the intake structure under construction at the Trojan nuclear power plant near Rainier, Oregon. One of these men climbed onto a horizontal beam, or whaler, about 40 inches above a scaffold 20 inches wide and approximately 40 feet above ground level. Two more workers were standing on either reinforcing steel (rebar) or whalers 10-12 feet above the scaffold while installing forming to be used for pouring concrete. Finally two other workers, one of whom was handling forms, were standing on the framing of the structure and another was kneeling on a 2 by 10 plank. All were at a height of a least 40 feet above ground and some on the top of the structure were approximately 50 feet high.

While these men wore safety belts to which lanyards were connected they had not tied off or attached their lanyards to the structure.

There is no dispute that on the day in question Respondent had 10 carpentry employees installing forming for a concrete pour on the intake structure. Respondent's witness admitted that these employees could tie off safety belts while working in one place. Moreover, Respondent had required its employees to tie off while installing forming on the turbine building [*3] at the same worksite which also was approximately 50 feet in height.

On these facts Complainant charged Respondent with a serious violation of section 5(a)(2) of the Act alleging that Respondent's employees were not tied off to the intake structure contrary to the requirements of 29 C.F.R. 1926.28(a). At the time of the inspection and the charge this standard provided as follows: "The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions and where this part indicates the need for using such equipment to reduce the hazards to the employees."

It is obvious on the facts that the workmen observed by the compliance officer were exposed to the hazard of falling and Judge Watkins so found. He also properly inferred from the evidence that these workers were employees of Respondent.

The judge vacated on the basis that Complainant failed to prove that it would have been possible for Respondent's employees to have tied off their safety belts. On the contrary, however, the record establishes that, with one exception, the workers on the intake structure were stationary and that, [*4] being stationary, it was not only possible but indeed feasible for them to tie off their safety belts to the structure. Therefore the judge erred in not considering whether the terms of the cited standard require the use of tied-off safety belts to protect against the existing hazard. For the reasons given below we conclude that the standard does impose such a requirement and accordingly we reserve the judge's decision to vacate the citation for serious violation. n3

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n3 Respondent has contended throughout this proceeding that the citations are unenforceable because the inspection was not conducted in accordance with sections 8(a) and 8(e) of the Act (29 U.S.C. 657(a) and (e)). We agreed with Judge Watkins that the requirements of section 8(e) were satisfied in this case. We also conclude that under the circumstances Complainant has complied with section 8(a). Ron M. Fiegen, Inc.,

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The language of this [*5] standard is obviously broad in nature. It does not prescribe specific requirements for the use of particular items of protective equipment. In this regard it is similar to its counterpart in the general industry standards, n4 29 C.F.R. 1910.132(a), which provides, in pertinent part, that protective equipment must be used "wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact."

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n4 Construction work, the type of work being performed by Respondent, is governed by the regulations in Part 1926. The general industry standards, Part 1910, apply to construction only where no Part 1926 standards exist relating to the working conditions in issue. 29 C.F.R. 1910.5 and 1910.12.

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As we have held, standards employing broad terms are not per se defective so long as their scope may be defined [*6] by other regulations, industry customs and practices, or other extrinsic means. Modern Automotive Service, Inc., In that case we indicated that definable limits could be imposed on 29 C.F.R. 1910.132(a) by referring, among other things, to the specific regulations concerning particular types of protective equipment and hazards prescribed by Subparts G and I of Part 1910.

Clearly, the same approach can be used to determine the parameters of 29 C.F.R. 1926.28(a). Furthermore, unlike its general industry counterpart, the standard at issue contains an explicit direction to refer to other standards. By its terms it requires the use of personal protective equipment where there is exposure to hazardous conditions "and where this part indicates the need for using such equipment to reduce the hazards of employees" (emphasis supplied). Therefore, not only may we look to other standards as we said in Modern Automotive Service, but indeed, we are required to make such reference by the standard as written.

Subpart E of Part 1926, entitled "Personal Protective and Life Saving Equipment," [*7] includes specific provisions governing the use of safety belts and lanyards. In particular, 29 C.F.R. 1926.104(a) requires that "lifelines, safety belts, and lanyards shall be used only for employee safeguarding." Other subsections of this standard prescribe a minimum breaking strength of 5400 pounds for lifelines and lanyards and require that anchorages be capable of supporting 5400 pounds.

This regulation clearly intends that when safety belts, lanyards, and lifelines are used they must be used in a manner sufficient to insure the safety of employees. Obviously the mere wearing of a safety belt without attaching it to an anchorage or structure by means of a lanyard or lifeline is totally ineffectual. We therefore conclude that Part 1926 indicates a need that safety belts be tied off. Furthermore, as noted above, other pertinent standards in Part 1926 are in effect incorporated into 29 C.F.R. 1926.28(a) through the conjunctive "and." Therefore, it is not necessary that such other standards be specifically alleged by Complainant; 29 C.F.R. 1926.28(a) cited alone, as in this case, is sufficient to impose a duty that safety belts be tied off. n5

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n5 We note that on December 16, 1972, subsequent to Complainant's inspection, 29 C.F.R. 1926.28(a) was amended by changing the conjunctive "and" to the disjunctive "or." 37 Fed. Reg. 27510 (1972). Since the issue is not before us in this case we do not now consider whether our analysis is applicable to the standard as currently written.

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Moreover, as previously stated, industry customs may be used to determine the precise requirements of general personal protective equipment standards. There can be little doubt that the hazard of a fall is a hazard well known in the construction industry and that safety belts are commonly provided and attached to structures or to secured lifelines as protection against this hazard. Indeed, requirements that safety belts be secured appear in numerous American National Standards Institute safety codes developed by this industry. Furthermore, Respondent required its employees to be tied off while working at a considerable height on the turbine building. Therefore we conclude that Respondent is aware or [*9] reasonably should be aware of the necessity that safety belts be tied off to protect employees from falling. See Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974); McLean Trucking Company v. OSHRC, 503 F.2d 8, BNA 2 O.S.H.C. 1165, CCH E.S.H.G. para. 18,573 (4th Cir., Sept. 4, 1974).

For the reasons given we affirm Complainant's citation for serious violation. n6

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n6 We have considered and reject Respondent's further contentions on review that if a violation exists it is not serious in nature. Crescent Wharf and Warehouse Company,

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We turn now to the assessment of an appropriate penalty. Respondent's employees were exposed to the hazard of falling as much as 40 to 50 feet. A fall from such a height could easily result in death. Furthermore, a substantial number of employees were so exposed. We thus find the gravity of the violation to be high.

Considering the remaining factors specified [*10] in section 17(j), Respondent's size appears to be relatively small, and on the record, it has no prior history of violations. In addition, Respondent maintains an active, on-going safety program, and the record reveals that the violation was immediately abated. We conclude that Respondent's actions have been taken in good faith.

On balance, we find Complainant's proposed penalty of $850 to be appropriate.

Accordingly, it is ORDERED that the citation for serious violation is affirmed and a penalty of $850 is assessed therefore and that the decision of the Judge is modified to be consistent herewith and as modified is affirmed.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur in finding a serious violation of 29 U.S.C. 654(a)(2) by Hoffman Construction Company for its failure to comply with 29 CFR 1926.28(a). I further concur in the assessment of a penalty in the amount of $850.

At the time of inspection 29 CFR 1926.28(a) provided as follows:

The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions and where this part indicates the need for using [*11] such equipment to reduce the hazards to the employees (emphasis added).

The lead opinion refers to the emphasized "and" above as a "conjunctive" that in effect incorporates "other pertinent standards in 29 CFR Part 1926." The net effect of this interpretation is to have a two step test before personal protective equipment would be required. Thus, employees would have to be: (1) exposed to hazardous conditions; and (2) Part 1926 of 29 CFR would have to indicate a need for using equipment to reduce the hazard to employees. This interpretation is not consistent with the nature and purpose of the Act. n7

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n7 29 U.S.C. 651(b) (1970).

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Standards promulgated pursuant to the Act should be interpreted so as to further the purpose of the Act. By reading the two clauses of 1926.28(a) to define two separate situations in which personal protective equipment is required the purposes of the Act will be fostered. The employer is responsible for the use of personal protective equipment "where there is an exposure [*12] to hazardous conditions." It is also required to see that personal protective equipment is worn "where . . . part [1926] indicates the need for using such equipment." n8

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n8 By interpreting 29 CFR 1926.28(a) in this manner, in the instant case, respondent is given its choice in the way it could protect its employees. Clearly, pursuant to the latter part of the standard, safety belts and lanyards and lifelines could be used by respondent. Moreover, under the first part of the standard, respondent could protect his employees in a number of different ways. The hazard faced by respondent's employees was that of a fall. Any action undertaken by respondent in compliance with 29 CFR 1926.28(a). Cf. Secretary of Labor v. Southern Contractors Service & O.S.H.R.C., 492 F.2d 498 (5th Cir. 1974).

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This interpretation of section 1926.28(a) is supported by the dictionary definition of the word "and." "[A]s well as" is listed by Webster's Third New International Dictionary as one of the meanings of this word. n9 When [*13] this phrase is substituted for the word "and" the standard reads as follows:

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

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n9 Webster's Third New International Dictionary 80 (P.B. Grove ed. 1971).

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Reading section 1926.28(a) as requiring the use of personal protective equipment only when there is both a hazard and an indication elsewhere in Part 1926 that such equipment is required, renders the standard redundant. Interpreted in this manner section 1926.28(a) would require nothing more than the precautions already mandated by other standards. When the language of an occupational safety and health standard fairly supports an interpretation which promotes employee safety, it should not be read as a nullity. n10

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n10 See Brennan v. Southern Contractors Service & O.S.H.R.C., 492 F.2d 498 (5th Cir. 1974).

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Review of the record herein reveals an apparent misunderstanding on the part of Hoffman Construction Company as to when and how safety belts, lanyards and lifelines are to be used. Hoffman contends that its employees need only tie off when their work allows them to remain stationary. Moreover, the lead opinion seems to give credence to this position. I would go further than the lead opinion and find 29 CFR 1926.28(a) to require Hoffman's employees to be tied off at all times when they are exposed to the possibility of a fall and when the method of fall protection selected is that of safety belts, lanyards, and lifelines.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: The Judge's ruling that complainant failed to sustain its burden of proof is correct and should be affirmed. The facts of record do not support by a preponderance of the evidence the finding that respondent's employees were stationary so as to permit the tying off of their life lines.

Moreover, the citation for [*15] serious violation is unenforceable because the standard allegedly violated is unenforceably vague. Its broad wording requires an employer to guess as to its applicability. See Cramp v. Board of Public Instruction of Orange County, Florida, 368 U.S. 278, 287 (1961).

The purpose of an occupational safety and health standard is to inform employers what they must do to avoid workplace hazards. Secretary v. Mountain States Telephone & Telegraph Company, 2 OSAHRC 168 (1973). To do this, it must be so framed that its provisions may be known, understood, and uniformly applied by those enforcing it and those against whom enforcement is directed. See Boutilier v. Immigration and Naturalization Service, 387 U.S. 118 (1967).

An employer is entitled to receiver fair warning of the conduct required or proscribed by a regulation. See Jordan v. De George, 341 U.S. 223 (1951); Fleuti v. Rosenberg, 302 F.2d 652 (9th Cir. 1962). In this regard, the Commission has previously indicated that an employer is entitled to rely upon a standard's "clear language, uncolored by additional and subjective criteria." Secretary v. California Stevedore & Ballast Company, 1 [*16] OSAHRC 366, 369 (1972). They are also entitled to be free from the arbitrary application of regulations which are capable of multiple interpretations. Bouie v. City of Columbia, 378 U.S. 347 (1964). I believe that 29 C.F.R. 1926.28(a) denies these entitlements to employers. n11

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n11 A standard such as this also defeats the purposes of the Act. If an employer did not think the conditions at this workplace were "hazardous," he would not do what the standard required. His employees would therefore be denied the protections which the Secretary of Labor believed to be necessary.

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The primary defect in the instant standard is that it does not tell an employer specifically when he must require his employees to wear personal protective equipment. The term "hazardous conditions" is subject to wide and varied interpretations by reasonable minds. It requires employers to guess at how it will be interpreted by various enforcement and adjudicatory officials. Therefore, it is unenforceably vague.

The Commission held [*17] in Secretary v. Moser Lumber Company, 4 OSAHRC 265 (1973), that a standard employing the term "hazardous area" was unenforceably vague. I find no significant difference between that term and the term "hazardous conditions."

Even if the standard were not vague, the citation could not be affirmed because the inspection giving rise to the citation did not conform to the requirements of 29 U.S.C. 657(a) and (e). The former provision requires that before conducting a job safety inspection, the Secretary's representative must present "appropriate credentials" to the "owner, operator, or agent in charge." The latter provision requires that representatives of both employer and employees be given an opportunity to accompany the inspector for the purpose of aiding such inspection.

It is undisputed that the inspection in this case was conducted without regard to either of these statutory mandates. A the time of the inspection, complainant's representative was en route between an inspection of the operations of two subcontractors, neither of which were the respondent. The inspector, accompanied only by the safety engineer of the general contractor, viewed respondent's employees [*18] from a bank a substantial distance away from their activities. No credentials were ever presented to the person in charge of respondent's worksite. The inspection therefore was invalid, and a citation based upon an invalid inspection such as this is itself invalid and cannot lie. In Secretary v. Ron M. Fiegen, Inc., 9 OSAHRC 999 (1974) and Secretary v. Chicago Bridge and Iron, 14 OSAHRC 361 (1973), I set forth in detail the reasons for such disposition.

[The Judge's decision referred to herein follows]

WATKINS, JUDGE: In this case Respondent Hoffman Construction Company is defending a charge of violations of Section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. by its alleged February 15, 1972 breach of two construction standards adopted under the provisions of the Act; at its worksite where it was constructing the intake structure at the Trojan Nuclear Power project near Rainier, Oregon.

A serious violation of a Personal Protective Equipment section is alleged in Respondent failing to require its employees to "tie off" their lifelines while working about 40 feet from the ground installing a concrete form structure for the next [*19] pouring of concrete -- or "lift." The second Citation alleges a violation, not serious in character, of scaffolding standards in failing to have guard rails and toe boards at the ends of scaffolding on this same structure while it was being set up.

Respondent contends the Secretary failed to prove a violation of either of the standards: secondly, that the alleged lifeline incident was not a serious violation in any event, and third, that if there were violations, the total proposed penalties of $1,275.00 were inappropriate.

The Pre-Hearing Conference, argument of Respondent's Motion for Summary Judgment, the hearing and the submission of briefs all occurred while the Commission had under review the cases of Chicago Bridge & Iron Company, Docket No. 224, Wright-Schuchart-Harbor, Docket No. 559, and Drake-Willamette Joint Ventures, Docket No. 117, and before the decisions of the Commission in the first two of these. Because of similarity of facts in this case, Respondent's greatest attention was given to its contention that there was no inspection under Section 8 of the Act which would give rise to an enforceable citation in this case. Likewise the Secretary's [*20] greatest attention was given to rebutting this contention on the part of Respondent. The two decisions mentioned are controlling here, as will be pointed out briefly, after the language of the Citations, the allegations of the Complaint and the standards in question are set out.

Citation for Serious Violation

Citation Number: 1 Date Issued: March 8, 1972

EMPLOYER: Hoffman Construction Company, Inc.

ADDRESS (Street) 900 S.W. 5th, Suite 240 -- (City) -- Portland -- (State) -- Oregon -- (Zip) 97204

An inspection of a workplace under your ownership, operation, or control located at Trojan Nuclear Power Plant and described as follows: Construction site has been conducted. On the basis of the inspection it is alleged that you have violated the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, in the following respects:

Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected

29 CFR Part 1926 (Formerly Part 1518) as adopted by 29 CFR Part 1910.12 -- February 15, 1972 -- 1926.28(a) -- In the construction of the intake structure it was observed that workmen were working in hazardous areas without [*21] the use of life lines. One workman was observed standing on a handrailing with one foot & the other foot on the whaler and it is approx. 20' drop to rebar sticking up 6' & a 40' drop to the bottom of the hole. Six other workmen were observed standing on whalers and the drop to lower levels varied between 20 and 30'.

These workmen were wearing life belts but the life belts were not tied off -- Immediately

PROPOSED PENALTY: $850.00

COMPLAINT:

IV

On February 15, 1972, at the aforesaid worksite and place of employment, the respondent violated the construction work regulations (specifically 29 CFR 1926.28(a)) in the following respect:

In the construction of the intake structure, workmen were working in hazardous areas without the use of life lines. One workman was standing with one foot on a handrailing and the other foot on the whaler, it being an approximately 20 feet drop to rebar which was sticking up 6 feet and an approximately 40 foot drop to the bottom of the hole. Six other workmen were standing on whalers, the drop to lower levels varying between 20 and 30 feet. These workmen were wearing lifebelts, but the lifebelts were not tied off.

VII

The violation [*22] alleged in Citation Number 1, and charged in paragraph IV above, was a serious violation within the meaning of section 17(k) of the Act, in that there was a substantial probability that death or serious physical harm could result from the condition alleged to exist, or the practices, means, methods, operations or processes which are alleged to have been adopted or in use at the aforesaid worksite, and the respondent knew, or could with the exercise of reasonable diligence have known, of the presence of the violation.

STANDARD: 29 CFR 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.

Subpart E -- Personal Protective and Life Saving Equipment.

29 CFR 1926.104 Safety belts, lifelines, and lanyards.

(b) Lifelines shall be secured above the point of operation to an anchorage [*23] or structural member capable of supporting a minimum dead weight of 5,400 pounds.

"CATATION"

Citation Number: 2 Date Issued: March 8, 1972

EMPLOYER: Hoffman Construction Company, Inc.

ADDRESS (Street) 900 S.W. 5th, Suite 2400 (City) Portland (State Oregon (Zip) 97204

An inspection of a workplace under your ownership, operation, or control located at Trojan Nuclear Power Plant and described as follows: Construction site has been conducted. On the basis of the inspection it is alleged that you have violated to Occupational Safety and Health Act of 1970, 29 U.S.C. 651, in the following respects:

Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected

29 CFR Part 1926 (Formerly Part 1518) as adopted by 29 CFR Part 1910.12 -- February 15, 1972 -- 1926.451(a)(4) -- In the construction of the intake structure it was observed that workmen were working on scaffolding and this scaffolding was approx. 40' above ground level, this scaffolding did not have guardrails and toeboards at the ends. -- Immediately

PROPOSED PENALTY: $425.00

COMPLAINT:

V

On February 15, 1972, at the aforesaid worksite [*24] and place of employment, the respondent further violated the construction work regulations (specifically 29 CFR 1926.451(a)(4)) in the following respect:

In the construction of the intake structure, workmen were working on scaffolding approximately 40 feet above ground level, which scaffolding did not have guardrails and toeguards at the ends.

STANDARD: 29 CFR 1926.451(a)(4):

Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 6 feet above the ground or floor, except needle beam scaffolds and floats. Scaffolds 4 feet to 6 feet in height, having a minimum horizontal dimension in either direction of less than 45 inches, shall have standard guardrails installed on all open sides and ends of the platform.

There was full compliance with procedural regulations regarding notice to additional parties, both named and unnamed and unknown. There was no appearance.

A motion for summary judgment by Respondent was argued in Portland on August 23, 1972 at the time of the pre-trial conference in the case. It was denied. The hearing was on August 29, 1972 in Portland, Oregon.

Perhaps a brief recital of the facts leading to the issuance [*25] of the citations in this case would be helpful, not only as they bear on a decision on the merits, but also to show the application of the decisions in Chicago Bridge & Iron and Wright-Schuchart-Harbor, supra. Both those cases go farther than would be necessary in order to refute Respondent's contention there was no jurisdiction because of a failure to comply with the inspection procedures in Section 8 of the Act.

On February 1, 1972, Compliance Officers Richard Jackson and Paul Thomas, of the Occupational Safety and Health Administration, United States Department of Labor, started their inspections at the Trojan Nuclear Power Project near Rainier, Oregon. This is a large construction project with perhaps 15 to 20 contractors and subcontractors.

They appeared at the site that morning, talked to representatives of Bechtel Corporation, the Project Engineers, and arranged for a meeting with representatives of all contractors. At the meeting plans for inspection of the entire project were outlined. The inspections were to be made one contractor at a time and each was invited to send along an employer representative as well as an employee representative. When most convenient, [*26] the inspection started at the office -- usually a trailer -- of the contractor, where records were inspected.

The inspections continued through February 4. Jackson stated at the meeting that, if the work were not finished that week, it might be continued the following week. At one point in his testimony he stated he told the group it might be continued that week or in the next two weeks following.

He did not return to the site until February 15. He came back to inspect Fabindustries and Research Cotrell, neither connected with the Respondent. Again he called at the office of Bechtel Corporation and Pat Sims, the Safety Engineer for this company, went with him on the inspection.

Jackson was finished at Fabindustries some time between 9 and 10 o'clock and was on his way to Research Cotrell with Sims when the two walked past the area where Respondent was constructing the intake structure. This was not the most direct route to Research Cotrell, but Jackson said he wanted to go by another contractor's work site to see whether certain violations had been abated.

As Jackson passed the intake structure on a bank above it and on the side away from the river, he saw several [*27] men working on top a structure which was in fact being set up as forms for another "lift" or concrete pour. He concluded there were two violations of construction standards, took three pictures, and then with Sims went to the office of Respondent where he talked to Lester Bickmore, Field Office Manager (in charge of accounting, personnel, safety, first aid) and he believed, to Jim Nelson, Respondent's Project Manager.

Bickmore remembered that Jackson visited the office, told him he had taken some pictures, and that he had found a violation. He did not recall any detailed discussion and apparently thought little about it until he received a telephone call from Jackson. He believed this was the next day. He then told Nelson about Jackson's statements and a general safety meeting was held of all foremen, particular attention being paid to tieing off lifelines.

Under the facts in the two cases mentioned, it is clear the Citations were not invalid for failing to follow the procedures outlined in Section 8 of the Act.

An exhaustive study of the record in this case leads to the inevitable conclusion that both Citations must fall because the Secretary has failed to meet his burden [*28] of proving there was a violation in either case. There is not even a question of reconciling conflicting evidence. There is no substantial evidence of a breach of either standard.

In passing it might be noted it is doubtful if there is proof that the employees Jackson claims to have been in danger were employees of Respondent. Other subcontractors employing pipefitters, electricians and iron workers working on rebar were in the same area at the same time. A reasonable inference from the evidence, however, taking into account the fact that Hoffman was undertaking to do work in the particular area at the time, is that the men observed by Jackson were employees of Respondent.

The standard alleged to have been violated is indefinite but it can be applied sensibly. There is no prohibition against men being 40 feet in the air and not tied off or otherwise protected. For example, they cannot be secured by their lifelines when they are moving about a distance greater than the length of the line when tied. If they are working in one spot for a time, they should be tied off. In most situations it would seem reasonable they should have the lines secured at any time when they [*29] are not actually moving from one place to another.

All testimony was to the effect that the use of the lifeline is a matter of "individual judgment"; possibly tempered by specific instructions from the employer -- and by enforcement of specific orders. We take it to be a question for the trier of the fact to determine whether there was "an exposure to hazardous conditions," and whether as to each person the use of lifelines would "reduce the hazards." In each case the basic question is whether the use of the line was possible and reasonable.

With this as a guideline, the evidence most favorable to the Secretary's case should be examined. Jackson's attention was first attracted to several men who were on top a structure some distance away and somewhat below his position on the bank. He watched for a minute or two, then took his first picture. At intervals of a few minutes he moved twice down the bank to his right, each time taking a picture. He estimated he remained at the scene 15 minutes. He did not make his presence known.

He testified that at about the time he was taking the third picture, a "foreman" in a white hard hat came within view and yelled at the men. He did [*30] not hear the words. Quite a number of the workmen hastened to "tie off" their lifelines.

None of Jackson's testimony about any workman in itself is descriptive of a person in a position of danger, not in the act of moving from one place to another, and with his lifeline not fastened. Perhaps his testimony regarding the three pictures (Secretary's Exhibits 1, 2 and 3) is most favorable to the Secretary's case.

Jackson's testimony about the man who seemed to be about in the center of Secretary's Exhibits 2 and 3, comes closer to establishing a case for the Secretary than any other evidence in the record. Jackson probably observed this man for something between two and five minutes. The difficulty is he had no idea what the man was doing.

Nor did he have any idea what any of the other men were doing. At one place in his testimony, he labeled the men visible in the pictures as "a," "b," "c," "d" and "e." He said there were several more not in this alphabetical sequence. At one time he said there were about 10 men and that, when the "foreman" came into sight, about 8 of them secured their lifelines. On his deposition he testified there were possibly 6 men in view on [*31] top the structure.

Again the important fact is that the compliance officer did not know what any man was doing at any time -- he did not know any facts indicating that any man was not justified in having his safety belt or lifeline unfastened at the time he saw him.

Of equal importance is the fact that Jackson did not know which men had their safety belts "tied off," he said.

Q. Did you observe that he was wearing his safety belt?

A. I observed -- I can't remember exactly which men at this time exactly were totally wearing their safety belts and who were not totally wearing their safety belts; but it was very evident when the Foreman started hollering at these men, the safety belts were coming out from underneath rubber coats and around them.

Respondent's carpenter foreman, testifying while viewing the pictures, had a logical explanation for the activities of every man; what he was doing and why he did not have his lifeline "tied off." The possible exception was the one man mentioned above in the middle of the pictures constituting-Secretary's Exhibits 2 and 3. This man, the foreman, Jim Wilbert, said was probably climbing over the wall.

Mr. Wilbert's testimony was helpful [*32] but unnecessary. All men had lifelines. If every workman on the Trojan Nuclear Project "tied off" at the same time -- on signal or otherwise -- this would not be evidence that any one of them needed to do so. There is simply no evidence to support a finding of a violation because we do not know what any man was doing at any time, or that any needed to secure their lines because of "exposure to hazardous conditions," the hazards of which could be reduced by tieing off when it was reasonably possible to do so.

The answer to the evidence about the second alleged violation is just as simple -- but easier to describe. A structure was being erected. Three different kinds of scaffolding were used, depending upon the particular part of structure involved. It is not clear which was used in the "offending" scaffolding shown in the pictures or described by Jackson.

In none of the three, however, even if the entire scaffolding was fastened securely to the outer wall before the ladder was erected, was it possible to close the ends of the scaffolding with toeboards and handrails until some time after it was put up. This is true whether the end went "around the corner" or not. [*33]

There is no evidence that the construction had reached the point where it was possible for the scaffolding in question to have had handrails and toeboards installed on the ends.

The Complaint must be dismissed and both Citations and Proposed Penalties must be vacated.

Based upon the entire record in this case, the undersigned does hereby make the following:

FINDINGS OF FACT

I.

Respondent is and on February 15, 1972 was a corporation engaged in the construction business and maintained a work site at the Trojan Nuclear Project near Rainier, Oregon, about 40 miles northwest of Portland. Fifteen to twenty contractors and subcontractors were engaged in work on that complex covering an area of about 200 acres.

II.

As a result of observations made by a compliance officer of the Occupational Safety and Health Administration, United States Department of Labor on February 15, 1972, the two Citations involved in this case were issued. The first alleged a serious violation of 29 CFR 1926.28(a) in failing to require workmen to wear and use safety belts and lifelines. The second alleges a violation of 29 CFR 1926.451(a)(4) in having a scaffolding without guardrails and toeboards at the [*34] ends.

III.

Respondent's contract included construction of the intake structure of the nuclear power project. On the date in question, several workmen on that structure at a height of approximately 40 feet from the ground were in positions where they would have been better protected had the lifelines which they were wearing been "tied off" and secured. At such times, however, there is no evidence that such workmen were not required to move about on the structure and be in such positions that it would have been unreasonable or impossible to have had their lifelines so secured in order to protect them from exposure to hazardous conditions then existing. There is no proof that it was possible to use such equipment to reduce the hazard to them.

IV.

On February 15, 1972, certain scaffolding was on the same structure. The ends of it did not have guardrails and toeboards. The entire structure, including the scaffolding, was being erected. There is no evidence that the work had proceeded to a point where it would have been possible to have guardrails and toeboards in place.

V.

The Secretary has failed to prove by a preponderance of the evidence that there was a violation [*35] of either of the Citations as alleged.

Based upon the foregoing, and upon all facts admitted, stipulated or proved by substantial credible, uncontroverted evidence, the undersigned hereby makes the following:

CONCLUSIONS OF LAW

I.

Respondent, on February 15, 1972, was engaged in busines affecting commerce and was an employer within the meaning of Section 3(5) of the Act. The Commission has jurisdiction of the parties and subject matter of this action.

II.

On February 15, 1972, Respondent was not in violation of 29 CFR 1926.28(a) or 29 CFR 1926.451(4); standards having to do, respectively, with "Personal Protective Equipment" and "Scaffolding."

III.

Respondent is entitled to an Order dismissing the Complaint of the Secretary and vacating the Citations and Proposed Penalties.

ORDER

Based upon the foregoing, it is hereby ORDERED

I

That Citation for Serious Violation No. 1, dated March 8, 1972 and directed to the Respondent, and the Complaint of the Secretary based thereon, be and the same hereby are vacated and dismissed. It is further ORDERED that the Proposed Penalty in the amount of $850.00 based on this Citation be and the same hereby is vacated.

II

That [*36] Citation No. 2, dated March 8, 1972, directed to the Respondent and the Complaint of the Secretary based thereon, be and the same hereby are vacated and dismissed.

It is further ORDERED that the Proposed Penalty in the amount of $425.00 based on this Citation be and the same hereby is vacated.