Docket No. 703

INDUSTRIAL STEEL ERECTORS, INC.

OSHRC Docket No. 703

Occupational Safety and Health Review Commission

January 10, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: Judge John J. Larkin issued a decision and order in this case that, among other things, affirmed a citation for a serious violation for the respondent's failure to comply with 29 CFR 1926.104(b) and assessing a penalty of $1.00 therefor.

Pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ) review of this action was directed by the Commission on the following questions:

(1) Did the Judge properly conclude that respondent had committed a violation of a serious nature by failing to comply with 29 CFR 1926.104(b) as alleged herein?

(2) If so, is the penalty of $1.00 appropriate in the circumstances of this case?

The Commission has reviewed the entire record in this case, and adopts the Judge's decision only insofar as it is consistent with this decision.

The employer was dismantling a steel structure on March 14, 1972, and was found, among other things, to have been in serious violation of section 1926.104(b) because of a failure to require employees to wear safety lanyards when removing steel trusses between columns of the building [*2] being demolished. The employer had a safety rule that employees must work in protective cages, and must wear safety lanyards that were provided. The employees complied except in one instance when they refused to tie-off the safety lines while removing the last four bolts and safety pins holding a truss in place. There was testimony to the effect that the truss was likely to spring free and uncontrolled when the tension holding it in place was removed. The employees involved stated that it was much more hazardous to tie-off than to remain unfettered so as to enable them to dodge an out-of-control truss. There was no contradictory testimony.

The Judge found a nominal serious violation of the standard, and assessed a penalty of $1.00 therefor. Section 17(b) of the Act requires the assessment of a penalty, even though nominal, for a serious violation, i.e., when there is a substantial probability that death or serious physical harm could result.

The Secretary of Labor argues that the refused of the employees to tie-off cannot be relied upon as a defense by the employer. He asserts that employee attitude, whether generated by fatalism or self-confidence, should not be [*3] determinative of when a standard should be applied. He argues, without cited support, that the history of industrial accidents is replete with examples of employees who rationalized themselves out of using personal protective equipment.

The preponderance of the evidence establishes that in the circumstances of this case the employees were safer in not tying-off than if they had. They were in the process of dislodging a truss in the column of the framework. There were about 20 bolts in the truss being removed. The employer-required protective cage had been used by the employees to remove all but four of the bolts used to secure the truss until the crane cable could be attached. The four bolts and safety pins would then be removed so the pressure could be exerted, if necessary, to break the truss loose from the columns. It was adduced that when the bolts are removed or the truss is dislodged with pressure, it is impossible to predict its movement. It may flip end-over-end, sideways, fold together, warp, or fly in any direction. The employees refused to tie-off under these circumstances because a lanyard would restrict their movement when the truss was dislodged. [*4]

The two employees involved were thoroughly experienced workers, and had worked for the respondent eight years. Their judgment as to the essentials of their own safety is not to be treated lightly. Accordingly, the Secretary of Labor's arguments concerning the employees' refusal to comply with the standard are not persuasive.

The critical issues in this case are whether an employer had a duty to comply with a standard under section 5(a)(2) of the Act under facts outlined above, and whether employees have a corresponding duty under section 5(b) of the Act. While concededly employers have an obligation to comply with applicable standards, in a given situation, we do not read section 5 so literally as to require a form of compliance that will diminish rather than enhance the safety of employees. As Judge Learned Hand once observed, there is no more likely way to misconstrue the language of the statute than to read the words literally and forget its purpose. Central Hanover B & T Co. v. Commissioner of Internal Revenue, 159 F. 2d 167, 169 (2d Cir. 1947). The text of section 5 of the Act must be construed in light of the essential purpose of the Act as expressed in section [*5] 2 thereof; i.e., to assure so far as possible every working man and woman safe and healthful working conditions. Thus the purpose of the statute is to augment and not to reduce the safety of working conditions. Employers and employees alike should not be required to comply with a standard so sedulously as to follow a course of conduct that is shown by the weight of the evidence to be less safe than an existing work practice.

This is not to say that the standards adopted by the Secretary are not substantive rules having the force and effect of law. But in our view an exception to the requirements of section 5(a)(2) and section 5(b) themselves must be implied to permit a condition of greater safety or health to prevail in the workplace than is possible under a standard that has general application.

This decision does not detract from the authority of the Secretary of Labor to grant variances from standards over section 6(d) of the Act in situations where an employer may be able to demonstrate that the working conditions of his employees are as safe and healthful as those which would prevail if he complied with a standard. A variance issued by the Secretary is a "rule;" [*6] that is, a policy having future effect, rather than "adjudication" or disposition on matters involving past conduct that have not been the subject of a variance. See 5 U.S.C. 551(4), (6), and (7). See also section 1905.5 of Title 29, Code of Federal Regulations, explaining the legal effect of any variances granted by the Secretary of Labor under the Act.

When an employer does not seek a variance concerning facts that he believes may be cognizable under section 6(d), he is of course proceeding at his peril with respect to the outcome of any possible subsequent adjudication involving the facts involved. In this regard, it should be emphasized that the scope of this decision is narrow and is to be construed strictly in light of the peculiar circumstances of this case. It is not intended to sanction frivolous departures from the requirements of the Secretary of Labor's standards because of the personal whims of employers or employees grounded in personal convenience or other considerations not related to safety or health. What is intended is permitting the assertion of an affirmative defense by an employer the safety or health of employees would be endangered rather than [*7] protected by compliance with a standard in light of the operative facts, and giving the employer the burden of sustaining this defense by a preponderance of the evidence.

The citation for the violation of section 1926.28 specifies the same facts giving rise to the alleged violation of section 1926.104(b), and is not expressly treated by the Judge. In view of what has been said above concerning the alleged violation of section 1926.104(b), the alleged violation of section 1926.28 must also fall.

Accordingly, the order of the Judge is modified by vacating the citation and penalty proposed for a violation of section 1926.104(b).

CONCURBY: VAN NAMEE

CONCUR:

VAN NAMEE, COMMISSIONER, concurring. I concur that the Judge erred in concluding Respondent violated 29 C.F.R. 1926.104(b). n1 As is evident from the plain language of the standard it does not require lanyards to be tied off to lifelines. Even had the standard been written so as to impose a tie-off requirement, I agree with Commissioner Cleary that vacation is proper on the facts of this case.

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n1 The standard provides as follows:

"Lifelines shall be secured above the point of operation to an anchorage or structural member capable of supporting a minimum dead weight of 5,400 pounds."

[*8]

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In concurring, I note that Complainant cited Respondent for a single alleged serious violation of 29 C.F.R. 1926.28(a), n2 3 and 1926.104(b). Judge Larkin vacated the allegation with respect to 29 C.F.R. 1926.105(a) n3 saying that the facts established imposibility of compliance. I agree, W.C. Sivers Company. BNA 1 O.S.H.R. 1074. 1076 (1972).

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n2 At the time of citation the standard provided as follows:

"The employer is responsible for 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."

n3 The standard provides:

"Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines or safety belts are impractical."

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Judge Larkin did not dispose of the allegation that Respondent violated 29 C.F.R. 1926.28(a). Assuming without deciding that the standard is reasonable for not being vague n4 I would vacate. By its terms the standard requires the use of personal protective only when Part 1926 indicates the need for such use. In view of what has been said above the other two standards cited herein do not indicate such need, and our attention has not been directed to any other standards which indicate such need. Accordingly, I concur in the disposition of this case.

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n4 Santa Fe Trail Transportation Co., C.C.H. Employ. S. & H. Guide (December 18, 1973).

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[The Judge's decision referred to herein follows.]

LARKIN, JUDGE. OSAHRC: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq, (referred to as the Act) to review a "Citation for Serious Violation" and "Notification of Proposed Penalty" in the amount of $550, issued by the Secretary of Labor (referred to as [*10] the Secretary) pursuant to Sections 9(a) and 10(a) of the Act.

The trial was held on June 27, 1972, in Birmingham, Alabama, as a result of a citation issued on March 16, 1972, citing an alleged violation of the following standards:

29 CFR 1926.28, The employer is responsible for the wearing of appropriate personal 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.

29 CFR 1926.104(b), Lifelines shall be secured above the point of operation to an anchorage or structural member capable of supporting a minimum dead weight of 5400 pounds.

29 CFR 1926.105(a), Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines or safety belts are impractical.

Respondent is a corporation with home office in Birmingham, Alabama (Tr. 3). It is engaged in business primarily as a steel erection contractor of industrial and commercial properties (Tr. 9-11). Respondent is an employer "affecting interstate commerce" [*11] under the provisions of the Act (Tr. 3, 13, 14, 20, 21). Respondent employs an average of 35 to 45 employees with about 20 considered as regular employees (Tr. 8). Eight of these are usually iron workers (Tr. 8). During 1971, Respondent grossed approximately $650,000 (Tr. 7, 8).

During March 1972, Respondent was dismantling a steel structure at H.K. Porter Corporation, Conners Steel Division, 5000 Powell Avenue, Birmingham, Alabama (Tr. 3, 4). During an inspection of the premises of Conners Steel Division on March 14, the Secretary's Compliance Officer noticed two of Respondent's employees working on a support truss of the structure and not wearing lanyards (Tr. 14-16, 29). The two men were working at a height of 30 to 35 feet above ground (Tr. 28).

In dismantling, a crane with metal cable is used to lower the framework pieces when dislodged to the ground (Ex. 2, Tr. 27). For maximum utility, the crane must be located inside the framework interior (Tr. 64). Respondent's employees were provided a mobile safety platform approximately 3' X 8' with metal bar side rails and toeboards (Ex. 1, Tr. 26, 27). It contained connecting cables with a center ring for attachment [*12] to the crane cable (Ex. 1). The crane operator then manuevered the cage to the appropriate height (Tr. 27). The employees attached their lanyards to a side bar and cables of the cage (Tr. 60). The safety cage was used for most of the dismantling of the building (Tr. 33.34).

At the time of the inspection, the dismantling of the framework was in its final stages (Tr. 31-35). The employees were in the process of dislodging a truss from the columns of the framework (Tr. 31-35). There were approximately 20 bolts in the truss being removed (Tr. 32-33). The safety cage had been used by the employees to remove all but four of the boits to secure the truss until the crane cable could be attached (Tr. 30-31, 33, 66). The bolts and safety pins would then be removed so the pressure could be exerted if necessary to break the truss loose from the columns (Tr. 30-31, 39, 59). When the bolts are removed or the truss is dislodged with pressure, it is difficult to predict its movement (Tr. 29-30, 59). It may flip end over end, sideways, fold together, warp, or fly in any direction (Tr. 30, 59, 65, 66). As a result, the truss cannot be controlled or its movement predicted when initially dislodged [*13] (Tr. 59). This is due to the pressure exerted from the weight of the truss on the columns when initially installed as the truss tends to push the columns out (Tr. 66). Also, pressure on the truss can result from settling or movement of the building over a period of time (Tr. 38-39).

From the beginning of the project, Respondent's president had instructed the superintendent that the employees were to be "tied off" at all times (Tr. 31, 34, 35). These instructions were given by the superintendent to the employees (Tr. 39, 31). At the time of the inspection, the Compliance Officer advised Respondent's superintendent that the men were in violation of safety requirements due to their failure to be tied off with a lanyard (Tr. 28-29, 31). The superintendent again instructed the men to tie off. (Tr. 29, 31, 35). The employees refused to tie off on that particular piece of iron and emphasized they would quit rather than use a lanyard under the circumstances (Tr. 29, 31, 35). The reason given was that the lanyard restricted their movement when the truss was dislodged (Tr. 29-30, 35, 38, 61). Both employees were experienced iron workers and had worked for Respondent for approximately [*14] eight years (Tr. 35).

The safety cage was not used in the final stage of removing the truss as Respondent's superintendent and the employees felt it provided inadequate flexibility for the employees when the final bolts and safety pins were removed (Tr. 58-59, 61).

The use of ladders, scaffolds, catch platforms, or temporary floors would have been impractical due to the lack of a place to attach these items once the truss was dislodged (Tr. 48-52). Also, their installation would have interfered with operation of the crane (Tr. 48-52). The use of any one of these items would have created an additional hazard to the employees (Tr. 48-52). No safety net was provided. The same problem existed in attempting to install a safety net (Tr. 52, 56-57, 67).

A fall from a height of 25 feet could result in death or serious physical harm (Tr. 24). The truss had the potential, when dislodged, of knocking the two employees to the ground (Tr. 30, 59, 65-66).

Respondent's president had been in steel erection and dismantling since June 1, 1955 (Tr. 7). Respondent's superintendent had 16 years experience as an iron worker including eight years as superintendent for Respondent (Tr. [*15] 53-54). Neither had ever seen a safety net used in dismantling of steel framework although the superintendent had seen nets used in erecting towers and bridge-support girders (Tr. 52-53, 56). The Secretary's investigating officer did not testify at the trial (Overall record).

Respondent has not had an accident due to the type of operation involved in this proceeding since going into business on June 1, 1955 (Tr. 7, 70). Respondent was receptive to complying with safety requirements (Tr. 70).

OPINION

Section 5(a)(2) provides that each employer shall comply with occupational safety and health standards promulgated under the Act.

Section 17(b), as pertinent, provides that any employer who has received a citation for a serious violation under any standard shall be assessed a civil penalty of up to $1,000.00.

Section 17(j) as pertinent, provides that the Commission shall have authority to assess all civil penalties giving due consideration to the appropriateness of the penalty with respect to the size of the business, the gravity of the violation the good faith of the employer, and the history of previous violations.

Section 17(k), as pertinent, provides that a serious violation [*16] shall be deemed to exist if there is a

. . . substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

Part 2200.33 of the Rules of Procedure of the Review Commission, as pertinent, provides that the burden of proof shall be on the Secretary to sustain the assertions contained in the citation and notification of proposed penalty.

Respondent admits that the two employees were not wearing lanyards at the time of the inspection. The safety officer of H.K. Porter Corporation testified that a fall from a height of 25 feet could result in death or serious physical harm. Respondent admitts that the truss had the potential when dislodged of knocking the two employees to the ground. On the basis of these facts, it must be concluded that a serious violation did exist.

Respondent's defense is that safety belts and lanyards were furnished and the employees were instructed [*17] from commencement of the project that lanyards were to be worn at all times. The employees were again instructed to "tie off" at the time of the inspection and again refused. Their reason was that the condition of attaching created a greater hazard than without it. The dismantling was in the final stages. Prior to that time, all work had been done from a safety cage and respondent had consistently enforced the wearing of lanyards.

Although recognizing that the Act places the primary responsibility upon the employer to enforce health and safety rules, Section 5(b) specifies that an employee "shall comply with . . . standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct." Although no enforcement procedures are provided against an employee, this section would certainly imply that the responsibility for health and safety is not solely that of the employer.

Without equity powers, the facts can only be considered in the light of the requirements of the Act. Section 17(b) specifies that a penalty shall be assessed for a serious violation. Section 17(j) provides that the penalty should be determined [*18] in the light of the "size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of provious violations."

Where an employer has furnished the required equipment, issued instructions requiring compliance, compliance has been enforced with the exception of an isolated incident where the employee has refused to comply, substantial weight should be given to that employer for good faith. When the foregoing facts are weighed in the light of the criteria of Section 17(j), it is concluded that a penalty of $1.00 is appropriate.

Although safety nets were not discussed with Respondent at the conclusion of the inspection and not specifically mentioned in the descriptive language of the citation, 29 CFR 1926.105(a) pertaining to safety nets was also included in the citation. The record shows that no safety net was used. Safety nets are specified as an alternative to other safety devices including safety belts. Respondent contends that installation of a net was impractical if not impossible. The evidence shows that the crane used in dismantling, operates within the interior of the framework, thus prohibiting utilization [*19] of a net. As the dismantling was within the final stages, a place to hang the net was difficult, if not impossible, due to the removal of the truss. Respondent superintendent's with 16 years experience as an iron worker and at least eight years experience as Respondent's superintendent, and Respondent's President with 17 years experience in steel erection and dismantling, had never seen a net used in dismantling steel framework. The Compliance Officer did not testify and the petitioner who has the burden of proof offered no evidence to refute Respondent's facts. In the light of this record, it is concluded that petitioner has failed to carry his burden of proof regarding Section 29 CFR 1926.105.

DECISION

Respondent committed a violation of a serious nature under the Act by failing to conform with the provisions of 29 CFR 1926.104(b) and a penalty in the amount of $1.00 is appropriate taking into consideration the size of Respondent's business, the gravity of the violation, good faith and history of previous violations. The record fails to show that Respondent was in violation of 29 CFR 1926.105(a) and no penalty shall be assessed with respect to this Section.

IT [*20] IS ORDERED:

That the Secretary's citation is affirmed only as modified in the decision paragraph and a penalty in the amount of $1.00 shall be assessed against the Respondent.