LEHR CONSTRUCTION COMPANY
OSHRC Docket No. 7240
Occupational Safety and Health Review Commission
February 2, 1978
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Before CLEARY, Chairman; and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor
Thomas M. Moore, for the employer
OPINION:
DECISION
BY THE COMMISSION:
Respondent, Lehr Construction Company, is a general construction contractor that was issued two citations on March 5, 1974. Citation 1 alleges that respondent failed to comply with the standard at 29 CFR § 1926.450(a)(2) by permitting employees to use a ladder on which the top rung was broken. Citation 2 alleges that respondent failed to comply with the standard at 29 CFR § 1926.28(a) because an employee unprotected by a safety belt was exposed to a fall of more than 30 feet while welding from atop an A-frame ladder placed near the edge of an unguarded platform. A notice of contest was timely filed and the controversy was heard by Administrative Law Judge Paul E. Dixon. Judge Dixon concluded that respondent had failed to comply with both standards and that, as alleged, the violations were nonserious in nature. He assessed a total penalty of $225.
Taking exception to these conclusions, n1 respondent filed a petition for discretionary review. Former [*2] Commissioner Moran granted the petition under the authority granted by section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 661(i) (the Act). The issues raised in the petition are:
(1) Whether the Act impairs rights provided to respondent by the First, Fifth, Sixth, and Seventh Amendments; n2
(2) Whether two of the Judge's findings of fact (Nos. 5 and 22) are supported by a preponderance of the evidence;
(3) Whether the standard at 29 CFR § 1926.28(a) is unenforceably vague; and
(4) Whether the employee conduct that precipitated the issuance of Citation 2 was unpreventable.
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n1 Respondent does not challenge the amount of the penalties assessed by the Judge.
n2 The Commission does not have the authority to consider constitutional attacks on the Act. Buckeye Industries, Inc., 75 OSAHRC 21/B3, 3 BNA OSHC 1837, 1974-75 CCH OSHD para. 20,239 (No. 8454, 1975), appeal docketed, No. 76-1467, February 19, 1976, 5th Cir. 1976. It suffices to note that the issues have been raised and therefore are preserved for judicial review. See Stockwell Mfg. Co. v. Usery, 536 F.2d 1306, 1309 (10th Cir. 1976).
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For reasons discussed below, the Commission members agree that there is no error in the Judge's disposition of Citation 1 and that it should be affirmed. However, they are divided on whether the Judge erred in affirming Citation 2. Nevertheless, in light of the absence of a third member since April 28, 1977, and the statutory purpose of expeditious adjudication, the present members agree to resolve their impasse by affirming the Judge's order but accord his decision on Citation 2 the precedential value of an unreviewed Judge's decision. Life Science Products Co., 77 OSAHRC 200/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD para. 22,313 (No. 14910, 1977).
Citation 1: The Broken Rung
On the day of inspection, several of respondent's employees were working on a platform that was accessible only by means of a ladder, the top rung of which was cracked and bent down to a steel reinforcing rod one-half inch below. The compliance officer testified that the top rung was level with the platform but that employees did not step on the rung. Respondent's safety official testified that no employees stepped on the [*4] rung because the ladder extended three feet above the platform. Resolution of this conflict is largely irrelevant, but we find that the safety official's testimony is accurate based on a photograph taken by the compliance officer.
It is clear that the gravamen of respondent's dispute is not with the Judge's fifth and twenty-second Findings of Fact. In those findings the Judge merely attributed certain testimony to the compliance officer, he did not accept the substance of the testimony as factual. Respondent actually contends that vacation of Citation 1 is required because: (1) employee safety was not affected by using a ladder on which the top rung was broken because of the presence of a reinforcing rod one-half inch below, and (2) the Secretary failed to prove employee exposure to the broken rung. We reject those contentions.
The standard with which respondent allegedly failed to comply reads, in pertinent part:
29 CFR § 1926.450 Ladder
(a) General requirements
* * *
(2) The use of ladders with broken or missing rungs or steps, broken or split side rails, or other faulty or defective construction is prohibited.
The prohibitions set forth in the standard are clear and [*5] exacting. The ladder used by respondent's employees was prohibited. The standard itself assumes that the use of ladders with broken rungs is hazardous. Cf. Vecco Concrete Construction, Inc., 77 OSAHRC 183/A2, 5 BNA OSHC 1960, 1977-78 CCH OSHD para. 22,247 (No. 15579, 1977).
Furthermore, the Judge properly found that the condition was hazardous. Respondent's safety official testified that the purpose of the reinforcing rod was to provide structural stability if a rung was broken, but he did not state that the strength of the ladder would not be reduced if a rung was broken as respondent claims in its brief. More importantly, it is evident, as the compliance officer testified and the Judge noted, that the gripping of the broken rung would have given an employee a false sense of security that could have resulted in a fall. In this connection, we observe that the standard at 29 CFR § 1926.450(a)(9) requires ladders to be extended at least 36 inches above landings or, in the alternative, the installation of grab rails, to provide employees with a secure grip when mounting or dismounting ladders.
Although there is no evidence that an employee actually gripped the broken rung, [*6] access to it was established. Respondent's employees used the prohibited ladder as the exclusive means of access to the platform on which work was being performed. A safe handhold is essential when an employee climbs from a ladder onto a platform. The broken rung was accessible and convenient because it was the top rung and only three feet above the platform. Access to noncomplying conditions, not actual exposure, is all that the Secretary must prove. Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD para. 20,448 (No. 504, 1976).
Citation 2: Safety Belt
During the course of the inspection, the compliance officer, respondent's site superintendent, Glenn Steele, and respondent's safety official, James A. Lehr, observed one of respondent's employees on an eight-foot A-frame ladder. The ladder was positioned two feet from the edge of a platform 25 feet above the ground. The employee straddled the top of the ladder while making a tack weld on the underside of a tank. The entire operation took two to three minutes. Although a scaffold was readily available, it was not used. The employee was not protected by a safety belt, although it could have been [*7] tied to the tank. The observers were standing approximately 60 feet from the base of the building. Lehr shook his head while he observed the employee's actions and said that the welder should not have been acting as he was. Steele left the others when he saw the employee begin welding and climbed the platform to confront and reprimand the welder.
Steele believed that the tack weld should have been made on the previous day when the welders working on the platform were using the rolling scaffold that was on the platform during the inspection. All other welding work on the platform had been completed and only one welder was in the area. Steele was told by the welder that he was finishing work that had been started the previous day and that he had decided not to use the scaffold because the weld required less than three minutes to complete. The welder added that he had tied the A-frame ladder to a column in the belief that this placed him in compliance with respondent's work rules. Pointing out how near the edge of the platform the ladder was positioned, Steele reprimanded the welder for failing to use either the scaffold or a safety belt while on the ladder. Steele testified [*8] that all welders had been issued safety belts and had been instructed by the ironworker foreman about wearing and attaching safety belts when working above ground on scaffolds and ladders. Lehr testified that the use of safety belts was required only when employees were in a hazardous position. Moreover, respondent's employee indicated that he thought he was in compliance with the respondent's work rules while making the tack weld.
Respondent does not dispute the facts summarized above. It contends, however, that the citation should be vacated for the following reasons: (1) the standard, 29 CFR § 1926,28(a), n3 is invalid because it is not a specific standard under section 5(a)(2) of the Act; (2) the standard is unenforceably vague; and (3) the welder's behavior was aberrant and unforeseeable.
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n3 The standard states:
§ 1926.28 Personal Protective Equipment
(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in 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.
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Respondent first argues that 1926.28(a) is in effect nothing more than a specific application of section 5(a)(1) of the Act, the socalled "general duty" clause. Respondent argues that the standard improperly shifts the burden of proving the existence of a recognized hazard from the Secretary, where it is placed when a violation of section 5(a)(1) is alleged, to employers, who must bear the burden when noncompliance with a standard promulgated under section 5(a)(2) is alleged. The Commission has rejected this argument in a case very similar to the instant one. Isseks Brothers, Inc., 76 OSAHRC 8/B9, 3 BNA OSHC 1964, 1975-76 CCH OSHD para. 20,361 (No. 6415, 1976). We remain unpersuaded by the argument.
The Commission has long held that the standard will not be considered vague on its face. See, e.g., Hoffman Construction Company, 75 OSAHRC 31/E12, 2 BNA OSHC 1523, 1974-75 CCH OSHD para. 19,275 (No. 644, 1975), rev'd, 546 F.2d 281 (9th Cir. 1976); B & B Insulation, Inc., infra. Commissioner Barnako, however, considers the standard to be unenforceably vague unless its scope [*10] is defined and limited by extrinsic means such as other regulations or industry customs and practices. B & B Insulation, Inc., 77 OSAHRC 49/A2, 5 BNA OSHC 1265, 1977-78 CCH OSHD para. 21,747 (No. 9985, 1977) (lead opinion), appeal docketed, No. 77-2211, 5th Cir., June 14, 1977. He finds no extrinsic yardstick, such as another standard, indicating that safety belts should be used by persons working on ladders. Compare Schiavone Constr. Co., 77 OSAHRC 78/A2, 5 BNA OSHC 1385, 1977-78 CCH OSHD para. 21,815 (No. 12,767, 1977) (lead opinion), appeal docketed, No. 77-1807, 3d Cir., June 20, 1977. Thus, he concludes that the appropriate question is whether a reasonably prudent employer in respondent's industry would have recognized the need for the use of personal protective equipment. See Cape and Vineyard Division v. OSHRC, 512 F.2d 1148 (lst Cir. 1975).
Commissioner Barnako finds that there is no evidence that reasonably prudent employers in the construction industry recognize that safety belts should be used to provide fall protection for employees working on ladders. Indeed, he notes that the Secretary's standards apparently indicate otherwise. Another [*11] construction safety standard, 29 CFR § 1926.105(a), n4 seems to allow the use of ladders instead of other fall protection devices, including safety belts. n5 Furthermore, Commissioner Barnako observes that one of the Secretary's general industry standards, 29 CFR § 1910.28(a)(1), n6 appears to permit the use of ladders as an alternative to scaffolds when work cannot be done safely at heights.
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n4 The standard provides:
§ 1926.105 Safety Nets
(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 is impractical.
n5 See Carr Erectors, Inc., 76 OSAHRC 60/F12, 4 BNA OSHC 1269, 1976-77 CCH OSHD para. 20,773 (No. 7909, 1976), and cases cited therein; Brennan v. Southern Constructors Service, 492 F.2d 498 (5th Cir. 1974).
n6 This standard should not be confused with 1926.28(a), the standard cited in this case. Section 1910.28(a)(1) provides:
§ 1910.28 Safety Requirements For Scaffolds
(a) General requirements for all scaffolds.
(1) Scaffolds shall be furnished and erected in accordance with this standard for persons engaged in work that cannot be done safely from the ground or from solid construction, except that ladders used for such work shall conform to 1910.25 and 1910.26.
Section 1910.25 and 1910.26 primarily contain design specifications for various types of ladders. They do not contain any requirement that safety belts be used when work is done from ladders.
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In some circumstances, an employer's own knowledge that a condition is hazardous may be sufficient to establish the notice required to withstand an attack on the vagueness of the cited standard. See Cape and Vineyard Division v. OSHRC, supra, at 1152; Brennan v. OSHRC and Vy Lactos Laboratories, Inc., 494 F.2d 460 (8th Cir. 1974). Respondent recognized the hazard of falling from heights and told its employees generally to use safety belts in such circumstances. Commissioner Barnako does not, however, think that general recognition of falling hazards by an employer would be enough to alert him that § 1926.28(a) requires employees working from ladders to be tied-off. He notes that there is some evidence of record upon which it could be found that respondent would have employees use safety belts while on ladders, such as safety official Lehr's reaction to the welder's conduct and the reprimand given by Steele. He reads the record as indicating that any knowledge concerning a requirement that employees wear safety belts while working on ladders was obtained solely as the result of the [*13] inspection, not as a result of a prior reading of the Secretary's very broadly worded standard. Commissioner Barnako agrees with the First Circuit that "turning a very general rule of this sort against the company would needlessly discourage an employer from exhorting employees to take every possible safety precaution." Cape and Vineyard Division, supra, at 1154. He therefore finds merit in respondent's vagueness argument.
As stated in his opinions in several cases, n7 Chairman Cleary considers the standard to give adequate notice of a duty to use safety belts whenever a fall hazard exists. In this case, Chairman Cleary finds that straddling the top of an A-frame ladder while welding constitutes an obvious fall hazard that could have been eliminated by the use of a safety belt. Moreover, Chairman Cleary finds that any vagueness problem is obviated by respondent's knowledge that the employee should have been using a safety belt. Unless it is assumed that Steele sought to impress the compliance officer or had some other ulterior motive, neither of which is suggested by the record, the reprimand given to the welder can only be understood as an expression of Steele's [*14] belief that the welder's conduct was improper. This conclusion is fortified by Lehr's remarks during the inspection. n8
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n7 See, e.g., Schiavone Construction Co., supra; B & B Insulation, Inc., supra.
n8 The Chairman finds unpersuasive Commissioner Barnako's reliance on the standards at 29 CFR § § 1910.28(a)(1) and 1926.105(a). The former standard, if read most narrowly, permits use of ladders in lieu of scaffolds, it does not address the question of the propriety of safety belts when ladders are used. As to the latter standard, it is the Chairman's view that use of one of the safety devices enumerated in that standard does not relieve an employer from using other devices when the device used does not adequately protect an employee from a hazardous condition. See Scioto Erectors, Inc., 77 OSAHRC 190/A2, 5 BNA OSHC 2025, 1977-78 CCH OSHD para. 22,351 (No. 76-2258, 1977); cf. Frank Briscoe Co., 76 OSAHRC 125/D7, 4 BNA OSHC 1706, 1976-77 CCH OSHD para. 21,191 (No. 12136, 1976).
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The Chairman agrees with the Judge's disposition of the isolated incident defense but for a reason not assigned by the Judge. Respondent relies on its work rule to support the argument that the welder's behavior was an isolated occurrence of misconduct that absolves respondent of responsibility for the welder's exposure to the fall hazard. Respondent bears the burden of proving the isolated occurrence defense. Murphy Pacific Marine Salvage Company, 75 OSAHRC 28/A3, 2 BNA OSHC 1464, 1974-75 CCH OSHD para. 19,205 (No. 2082, 1975). Respondent must prove that the employee's alleged misconduct was (a) unknown and, with the exercise of reasonable diligence, could not have been discovered, and (b) contrary to instructions and a company work rule that (c) was communicated to employees and effectively and uniformly enforced. The Weatherhead Co., 76 OSAHRC 61/E7, 4 BNA OSHC 1296, 1976-77 CCH OSHD para. 20,784 (No. 8862, 1976).
Respondent produced a wealth of testimony concerning its safety program. Regular safety meetings were conducted for supervisors, and supervisors were required to read established safety instructions. Work rules were enforced by reprimand and termination. [*16] The program was, however, incomplete with respect to the use of safety belts. Belts were issued to all welders, but the evidence shows that welders were only given general instructions as to wearing safety belts. Such a warning is insufficient. Specific safety instructions and work rules concerning hazards peculiar to the job being performed were required. See Iowa Southern Utilities Company, 77 OSAHRC 32/C10, 5 BNA OSHC 1138, 1977-78 CCH OSHD para. 21,612 (No. 9295, 1977).
Accordingly, the Judge's decision is affirmed.