KELLY CONSTRUCTION SERVICES, INC.  

OSHRC Docket No. 7102

Occupational Safety and Health Review Commission

July 26, 1976

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Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  

COUNSEL:

Albert H. Ross, Regional Solicitor, U.S. Dept. of Labor

David S. Perlman, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

Pursuant to 29 U.S.C. Sec. 661(i), we review a decision filed by Judge David J. Knight wherein he would vacate a serious citation alleging that Respondent had violated the standard published at 29 C.F.R. 1926.28(a). n1 For the reasons given hereinafter we reverse and affirm the citation and assess a $100 civil penalty.

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n1 The standard reads:

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.

Subsection (b) of the standard refers to Subpart E of 29 C.F.R. Sec. 1926.100-107 for the types of protective equipment to be used according to the circumstances.   The Secretary alleges that 29 C.F.R. Sec. 1926.104(d), in conjunction with the quoted standard, was violated:

Safety belt lanyards shall be a minimum of 1/2-inch nylon, or equivalent, with a maximum length to provide for a fall of no greater than 6 feet. The rope shall have a nominal breaking strength of 5,400 pounds.

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The facts are these.   Respondent is a subcontractor to the vertical transportation industry, i.e., the elevator erection industry.   On February 29, 1974, its employees were observed by the Secretary's compliance officers as they raised an elevator door frame into position at the edge of an open elevator shaft. The frame weighed two hundred pounds, was forty-two inches wide and nine feet - 4 inches long.   When in place it fitted into a channel (sill) along the floor and against structural steel members (struts) on its sides and top. Other vertical struts were located about twenty-three inches from each side of the door frame.

In raising the frame into position one man got on each side of it near the top and they walked it up until it was vertical with its base seated in the sill.   The frame was then bolted to the struts. Both employees were wearing safety belts with lanyards, but the lanyards were not tied-off during the frame raising operation.   The evidence is that the employees would tie the lanyards off at all times except while raising a door frame. The frame raising operation required the employees [*3]   to come within eighteen inches of the elevator shaft opening.

Respondent defends by asserting that a hazard has not been shown.   In essence, the defense is that the employees were either far enough away from the opening during the frame raising operation or were protected from falls by the vertically extending struts. Alternatively, Respondent argues that it was impossible to tie-off the lanyards without violating the requirement that lanyards be of such "maximum length to provide for a fall of no greater than 6 feet" (29 C.F.R. 1926.104(d)).

On these facts and arguments Judge Knight concluded that the employees were not exposed to the hazard presented by the open shaft during the frame raising operation.   He reasoned that the employees would not fall into the shaft because "the weight of the door frame, about 200 pounds, acts as a force away from the shaft and, when that weight is relaxed with the frame upright, the employees are protected by the steel members which act as barricades. Under these conditions even if an employee were to lose his balance and fall, he would not fall into the shaft. . . ." (Judge's report, findings Nos. 5 and 6).

Commissioner Cleary directed review [*4]   by granting the Secretary's petition particularly on the question whether the Judge erred in recommending vacation of the citation for violation of 29 C.F.R. 1926.28(a).   Having reviewed the record we do not agree with the finding that the door frame acts as a force away from the shaft such that employees will not fall into the shaft. And even if the frame acts as a force away from the shaft, it does not necessarily follow that an employee would fall in a direction away from the open shaft. The unsupported finding that an employee would fall away from the shaft must assume as fact that an employee would hold onto the door.   We cannot make the assumption.   In the circumstances we must find that an employee could fall in any direction while raising the door frame and thus could fall into the open shaft.

Having concluded as we do it isn't necessary to dispose of the Judge's finding that the struts acted as a barricade to prevent a fall.   Nevertheless, a twenty-three inch gap would not seem to be an adequate barricade, and clearly the employees must be in the gap while bolting the frame to the struts.

We turn now to the impossibility defense and note that the Judge would have rejected [*5]   it had he determined that a violation existed.   In his finding number 8, he states that he would have found a serious violation if the employees had followed Respondent's stated procedure for raising a door frame. n2 We also reject the defense.   What Respondent is saying, in effect, is that because the fall distance cannot be limited to six feet as required by 29 C.F.R. 1926.104(d) it is therefore permissible to expose employees to a fall distance of twenty-four stories by not protecting them in any manner.   The argument is fallacious.   We would require such protection as is reasonable even if it means the utilization of a lanyard in excess of six feet in length.   In this case the Judge vacated the 104(d) allegation; the Secretary did not petition for review; and we would agree.

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n2 Under the stated procedure one employee steadies the frame while the other bolts it to the struts. The Judge would have found a violation as to the employee steadying the frame. He said, ". . . an untoward event, such as a sneeze, could precipitate his death." We note that this conclusion contradicts his other conclusion that the struts act as a barricade.

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In the circumstances there can be no doubt that the violation of 29 C.F.R. 1926.28(a) was serious.   As for the penalty, Judge Knight considered the statutory criteria and determined that $100 should be assessed in the event that a violation was found to exist.   We agree for the reasons he stated.

Accordingly, the citation insofar as it alleges a serious violation of 29 C.F.R. 1926.28(a) is affirmed and a penalty of $100 is assessed.   So ORDERED.  

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

The disposition ordered in Judge Knight's decision, which is attached hereto as Appendix A, is correct and should be affirmed.   The Commission's reversal of that disposition is erroneous because the record fails to establish that the respondent violated the only validly promulgated version of 29 C.F.R. §   1926.28(a) which, when originally adopted, provided that:

"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 [*7]   the employees." (Emphasis added.)

Prior to the inspection in this case, the standard was modified by substituting the word "or" for the word "and." For the reasons given in my dissenting opinion in Secretary v. Island Steel & Welding, Ltd., 17 OSAHRC 143, 144 (1975), the modification was improperly promulgated and the original version remains in effect.   Therefore, as I stated in that opinion, in order to establish a failure to comply with this standard, proof of two elements is necessary: (1) that there was exposure to a hazardous condition warranting the use of personal protective equipment, and (2) that there was a failure to use this equipment when its use was required elsewhere in Part 1926 of the regulation.   In this case, complainant has failed to establish the second element.

The complainant has not directed our attention to any standard in Part 1926 which requires employees to wear properly secured safety belts when, as here, they are performing work while standing on a floor. As we have previously indicated, a violation of 29 C.F.R. §   1926.105(a) cannot be found where employees were working on a floor. Secretary v. Rob't W. Setterlin & Sons Company, OSAHRC [*8]   Docket No. 7377, May 11, 1976, and the cases cited therein.   Furthermore, 29 C.F.R. §   1926.104, specifies no requirement for the wearing of safety belts.

Since complainant has failed to establish that any standard in Part 1926 required the wearing of safety belts under the circumstances of this case, there is no violation of 29 C.F.R. §   1926.28(a).   Standing alone, this standard cannot be the basis of a violation.

APPENDIX A

DECISION AND ORDER

Albert H. Ross, Regional Solicitor, U.S. Department of Labor and Paul J. Katz, for the Complainant

Daniel S. Perlman, with Barbara S. Perlman, on brief, for the Respondent

On March 13, 1974, the Occupational Safety and Health Administration of the U.S. Department of Labor (Complainant), under §   658(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651 et seq., issued a citation to Kelly Construction Services, Inc., of Swampscott, Massachusetts (Respondent), alleging that it seriously violated a safety standard at 29 C.F.R. §   1926.28(a) n2 in that it failed to assure that its employees used the proper protective equipment when they were exposed to hazardous conditions on February 25, 1974, on the 24th floor of 100 [*9]   Summer Street, Boston, where its employees were erecting the elevator door frames at the edge of the shafts. A civil penalty in the amount of $500 was proposed and the alleged violation was to be corrected immediately.

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n2 This standard reads:

(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.

Subsection (b) refers to Subpart E of 29 C.F.R. §   1926 for the types of protective equipment to be used according to the circumstances.   Complainant alleges that 29 C.F.R. §   1926.104, in conjunction with the quoted standard, was violated in that lifelines permitting a fall of no more than six feet were not used (Tr. 4).

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On March 14, 1974, the Respondent notified the Complainant that it intended to contest the alleged violation and penalty as provided for in §   659(a) of the Act.   On the same date, its certificate [*10]   indicates that notice of the pendency of this proceeding was given to two unions which represent affected employees.

The complaint and answer were filed, the latter denying all of the vital allegations in the complaint.   A hearing was held on July 25, 1974, at Boston, at which both sides were represented by counsel.   Notice of the hearing was given to employees (Tr. 3-4) but none came forward to claim party status.   Briefs by both parties were filed by October 1, 1974.

Jurisdictional Statement:

Respondent's answers to Complainant's Request for Admissions show that the Respondent is engaged as a subcontractor to the vertical transportation industry; that its employees regularly and customarily handle goods and materials which have moved in interstate commerce; and that its employees were working at 100 Summer Street, Boston, on February 25, 1974, (see also Tr. 5-7).

Based on these admissions, I conclude that (a) Respondent is an employer which affects commerce as defined in the Act, 29 U.S.C. § §   652(3) and (5), and (b) the requirements of the Act are applicable to it, 29 U.S.C. §   653(a).

The Issues:

The basic issue of fact is whether Respondent's employees, while raising [*11]   a nine foot elevator door frame into position at the very edge of an elevator shaft without their safety belts' lanyards tied off, are exposed to a hazard.

If this hazard and non-compliance with the safety standard are found, the question arises of whether the $500 proposed penalty adequately takes into account the gravity of the violation, the Respondent's size, its good faith and its history. n3

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n3 These four elements are the components of the penalty.   29 U.S.C. §   666(i).

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The Evidence:

The Complainant presented a single witness, its Safety Compliance Officer.   He inspected the 24th floor of 100 Summer Street, Boston, & building under construction, on February 25, 1974.   At 11:00 o'clock that morning he saw two of Respondent's employees raising an elevator door frame into position at the edge of the elevator shaft. The frame was laid on the floor at a 90 degrees angle from its final position and, with one employee on each side starting at the top of the frame, it was lifted and as the men progressed down   [*12]   along the length of the frame it was placed in an upright position against the elevator shaft opening. It fitted into a channel along the concrete floor and against structural steel members on its sides and top. There were to be three elevators in each of two shafts and these were separated by structural steel not walls (Tr. 9-11).

Both of the employees were wearing safety belts with lanyards attached but neither of the men had the lanyards tied off at a secured point during this process (Tr. 11 and 24).   The officer spoke to the Respondent's foreman at the site and indicated the hazard of this operation.   He stated that the men could trip on bits of cement near the opening of the shaft or their own belts or they could lose their balance on hitting a steel member.   They would surely be killed if they fell into the shaft and dropped 24 stories.   The formenan told the officer that they ordinarily wear their belts except during this particular operation and that a man could trip on his own lanyard while raising the frame if it were secured to a point in the shaft and in front of the man as he approached the shaft (Tr. 11-12).

The officer returned to the 24th floor after lunch and   [*13]   he saw the two men again and their belts were still not tied off (Tr. 14).   At that point he took a picture which was introduced into evidence as Exhibit C-1 (Tr. 15).

The elevator company places a safety line in each shaft to which men working in or near the shaft may tie off their lanyards. This safety line is a steel cable (Tr. 55) located about two or three feet into the shaft (Tr. 28 and 66) with knots in it about five or six feet apart (Tr. 56).   The men, according to the officer, could also have tied off on the steel members located in the shaft some of which were directly inside the edge of the shaft so that if they did fall, the drop would only be a few feet (Tr. 16-18).

The officer estimated that the lanyards were about 10 feet long and that the frame was about eight feet tall (Tr. 25).   It would require two feet of lanyard to tie off to steel columns within the shaft which measured six inches square (Tr. 29-30).   The implication here is that the 10 foot length of lanyard would not be sufficient.   In any event, the officer could not satisfactorily answer the question of how a man could tie off a 10-foot lanyard to provide for only a six foot drop which is the maximum allowed [*14]   by the safety standard [29 C.F.R. §   1926.104(d)] (Tr. 48-50). n4

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n4 I refused to permit testimony by this witness on how the men could tie off to a cable located behind them as being too speculative (Tr. 49).   This does not mean that it would be impossible for the men to be so secured.

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At his afternoon inspection, the officer saw one of the employees within six inches to a foot of the opening [Mr. Lees (Tr. 36)] and the other employee was directly to the left of the opening [Mr. Slik (Tr. 36)]. n5

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n5 The officer identified the men incorrectly (Tr. 64-65).

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Because death would be the certain result of a 24-story fall, the officer considered the alleged violation to be severly grave.   He assessed a gross penalty of $1,000 and reduced this by allowing a 20% reduction for Respondent's good faith; 10% because it is a small company; and 20% for Respondent's [*15]   history meaning that this was the first inspection n6 (Tr. 19-20).

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n6 Respondent had received a prior citation (Request for Admission 13) which was not contested (Respondent's Answer Par. VI).

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At the closing conference and at the scene, the officer testified that he suggested to the Respondent several points where the men could have tied off their safety lines while erecting the door frame. They could have used the safety line or the steel members running vertically or horizontally in the shaft (Tr. 39-40).

This witness completed the Complainant's presentation and at that point the Respondent's motion to dismiss was denied (Tr. 56-57).

The Respondent presented three witnesses: the two employees who were present when the compliance officer made his inspections and the president of the company.

Michael J. Slik, an ironworker who is shown on Exhibit C-1 facing the shaft (Tr. 74) described the process of erecting the door frame. First the floor is swept clean so that the distances can be marked off where the frame [*16]   is to be finally placed (Tr. 62).   The frame is placed on the floor in position and its top end is raised on a sawhorse and the header is attached (Tr. 97).   The header is the horizontal piece across the top of the frame which holds it in place (Tr. 60 and 75).   The frame is now complete and measures 9 feet 4 inches in length and weighs approximately 200 pounds (Tr. 60-61).   With a man on each side of the frame, it is raised into place to the sill which is a piece of aluminum welded to a structural member at the opening of the shaft. The sill, five inches wide, is fitted into a recess in the cement extending 14 or 15 inches from the shaft (Tr. 71).   The frame is placed against the vertical and horizontal structural steel struts which are its support and to which it will be bolted (Tr. 61).   When it is in that position, the employee supporting the frame would be between 18 inches to two feet away from the shaft (Tr. 74).   This employee was in that position when the compliance officer made his late morning inspection (Tr. 72).   His hands would be a couple of inches from the opening while he is supporting the frame (Tr. 88).   He is not sure if his lanyard is tied off in Exhibit C-1   [*17]   (Tr. 88) and he doesn't know what that Exhibit shows him to be doing (Tr. 89).

According to this witness, each man would then affix a bolt through the frame into the structural steel. They would then immediately tie off their lanyards to the safety line in the shaft (Tr. 98-99).   Then the installation is completed and the frame is plumbed up (Tr. 98).

The lanyard used by these employees is eight feet long (Tr. 64) and will always be tied off to a secure point except during the frame-raising operation (Tr. 83, 91).   The employees' safety belt and lanyard are standard in the industry (Tr. 63-64) and if a 10 foot lanyard was used and tied off to the safety line in the shaft the men could trip over it while raising the frame (Tr. 90).

John Lees, the foreman on the job and an ironworker for 18 years with 12 years experience in this particular business, corroborated the testimony of the witness, Slik.   The description of the raising of the door frame is the customary way of accomplishing it (Tr. 101).   In the photograph, Exhibit C-1, he is the man on the left and at the time the picture was taken he had just gotten off the staging shown there and was walking away (Tr. 102).   On the staging,   [*18]   he was bolting the top of the frame to the steel members and was tied off (Tr. 107).

The other man shown in Exhibit C-1, Mr. Slik, was at the struts at the time of the taking of the picture.   The struts between two elevator wells within one shaft are about 12 inches apart (Tr. 75).   The distance between the side of the door frame and the strut is less than 23 inches (Tr. 76).   The struts, according to witness Slik, are three inches square (Tr. 78).

The Respondent's President who was not present at the time of the inspection (Tr. 115-116) described a somewhat different procedure for raising the door frame. Once the frame is in position, one man will hold it and the other will put a bolt on each side.   The man holding the frame will be about 2-1/2 feet away from the opening and the man bolting will be up against the struts through which he couldn't be pushed (Tr. 116).   Because of the distance from the opening in the one case and the struts in the other case, neither man is exposed to any hazard (Tr. 113-114).   He does not know of any employee having fallen into the shaft during this operation (Tr. 115).

This company has been in business since November, 1971 (Tr. 109) and in 1973 [*19]   it suffered a loss of $4,872 (Tr. 112).   As of March, 1974, it was losing $26,000 but the president hoped by August 1 that things would straighten out (Tr. 110).

He described the company as being ultra-safety conscious with the men having the best equipment.   They are made to sweep the floors even if it didn't appear that they had to.   He has pulled men off jobs that he didn't consider as being safe enough (Tr. 111).

Contentions of the Parties:

The Complainant contends that a hazard exists while the men are raising the frame to the very edge of the shaft without being tied off.   They have to maneuver the door at the edge and there is a risk that they could trip on the channel or over bits of cement.   They could tripton their own lanyards hanging united from their belts or an employee might hit a steel member or in some way lose his balance, falling to the left or the right or through the middle of the 42 inch opening and down 24 stories.

Complainant disputes the testimony that the men tie off immediately after the first bolts are put into the frame because the compliance officer on his afternoon inspection, when the frame was already up, testified that the men were not tied [*20]   off.

Complainant argues that a very definite hazard has been shown and that the penalty is proper.

The Respondent contends that no hazard has been shown.   During the brief period that the men are not tied off they are either sufficient distance from the opening, or are protected by the struts which are about one foot apart.   It would be impossible to even push anyone in between.

The evidence, according to the Respondent, shows that it is not a practice in the industry to tie off the safety lines during this operation and it is impossible to do so in conformance with the safety standard to provide for a drop of no more than six feet.

Findings of Fact and Conclusions:

As to the issue of whether the employees, during the frame-raising procedure, are exposed to a hazard to need to use protective equipment to reduce a hazard, I find the following facts based on the evidence:

1) The employees are tied-off at all times except when raising the frame from a prone to an upright condition exactly at the opening of the shaft;

2) While the employees are preparing and completing the frame and predetermining its final position at the shaft, they are an adequate distance from the shaft [*21]   and not exposed to the danger of the open shaft;

3) The frame is raised with an employee proceeding along at each of its sides pushing it toward the shaft and, according to the witness-employees, and the photograph marked Exhibit C-1, these sides abut the shaft against steel struts which are not more than 23 inches apart with the next nearest strut being about a foot away;

4) At that point, each employee would secure the frame to the steel members with a bolt and immediately thereafter tie-off his lanyard to the safety line running vertically through the shaft;

5) Following this procedure, I cannot find that these employees are exposed to the danger of the open shaft for when they enter its dangerizone, the weight of the door frame, about 200 dead pounds, acts as a force away from the shaft and, when that weight is relaxed with the frame upright, the employees are protected by the steel members which act as barricades;

6) Under these conditions, even if an employee were to lose his balance and fall, he would not fall into the shaft and I perceive this frame-raising procedure as little different from an employee walking up to the open shaft for the purpose of securing his lanyard [*22]   to the safety line;

7) The foregoing procedure was followed at the times of the inspections and the photograph (Exhibit C-1) as explained by the employees, does not warrant any different findings; and

8) Had the frame-raising procedure as described by Respondent's President been followed -- which it wasn't -- with one employee holding the frame facing the 42 inch opening while the other places the bolts, the former is exposed to the shaft's hazard and an untoward event, such as a sneeze, could precipitate his death.   That employee should be tied off before the frame is raised in accordance with the safety standard, preferably from behind.

With regard to the issue of the propriety of the proposed penalty had the facts warranted a finding that the employees were exposed to a hazard if they had been following the procedure of one man holding and one bolting, I would find that:

1) The probability n7 of an accident, as severe as its consequences might be, is slight in terms of an occurrence which could lead to an accident and the short time of exposure.

2) Respondent is a small company and, at the time of the hearing, was losing money and the proposed penalty does not adequately take [*23]   this factor into account. n8 A penalty, if any were to be assessed, of more than $100 would be excessive.

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n7 Probability is a facet of a violation's gravity, see Secretary v. Natikin & Co., Mech. Contrs., 2 OSAHRC 1472 at 1475, and Secretary v. Emory H. Mixon, 5 OSAHRC 579 at 580.

n8 A Respondent's financial condition must be taken into account to determine its size.   Secretary v. Colonial Craft, 1 OSAHRC 933.

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Based on the foregoing, I conclude that, on February 25, 1974, on the 24th floor of 100 Summer Street, Boston, the two employees of Respondent were not exposed to a hazard and Respondent was not in violation of 29 C.F.R. §   1926.28(a) in conjunction with 29 C.F.R. §   1926.104(a).

ORDER:

It is ordered that the citation issued to Kelly Construction Services, Inc., on March 13, 1974, alleging a violation of 29 C.F.R. §   1926.28(a) together with a proposed penalty of $500 be vacated.

DAVID J.   [*24]   KNIGHT, Judge, OSAHRC

Boston, Massachusetts