JULIUS NASSO CONCRETE CORPORATION

OSHRC Docket No. 7542

Occupational Safety and Health Review Commission

April 11, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, USDOL

Frederick Cohen and M. Carl Levine, for the employer

Local 18a, Cement and Concrete Workers, for the employees

Local 6a, Cement and Concrete Workers, for the employees

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

Pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter cited as "the Act"], a decision of Administrative Law Judge Robert P. Weil has been directed for review before the Commission on the basis of the Secretary's exceptions raising the following issue:

Whether the Administrative Law Judge erred in vacating the citation for serious violation of the Act for failure to comply with the standard at 29 CFR 1926.45(o)(7). n1

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n1 1926.451 Scaffolding.

* * *

(o) Horse Scaffolds.

* * *

(7) Guardrails made of lumber, not less than 2 X 4 inches (or other material providing equivalent protection), approximately 42 inches high, with a midrail, of 1 X 6 inch lumber (or other material providing equivalent protection), and toeboards, shall be installed at all open sides and ends on all scaffolds more than 10 feet above the ground or floor. Toeboards shall be a minimum of 4 inches in height. Wire mesh shall be installed in accordance with paragraph (a)(6) of this section.

[*2]

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Having considered the entire record, we reverse the Judge's decision, and remand the case for further proceedings.

In February 1974, respondent, Julius Nasso Concrete Corporation, was engaged as a masonry subcontractor at a construction site in New York City. It is alleged that during an inspection conducted on February 26-28, an OSHA compliance officer observed one of respondent's employees standing on an unguarded horse scaffold located on the tenth floor of the building, 170 feet above the ground. Although, the scaffold was elevated only eight feet above the floor, one edge was parallel to and directly above the floor's west perimeter, from which there was a 100 foot drop to a platform below. The Secretary further alleges that the employee was working only three feet from the west edge and was not provided with any form of protection from falling.

As a result of this condition, respondent was cited for a serious violation of section 5(a)(2) of the Act for failure to comply with the standard published at 29 CFR 1926.451(o)(7). A penalty of $600 was proposed for the violation. The citation [*3] was timely contested and the matter scheduled for a hearing.

Before the hearing, respondent moved for summary judgment pursuant to Fed. R. Civ. P. 56, as applied to this proceeding by Commission Rule 2(b), on the grounds that the scaffold was in compliance with the literal meaning of the cited standard. According to respondent, the ten-foot requirement of the standard should be measured from the surface upon which the scaffold rests. Because the scaffold in question was only eight feet above the floor, respondent contends that the standard does not require that the scaffold be guarded.

In his memorandum in opposition to the motion, the Secretary argued that the ten-foot requirement should be calculated on the basis of the distance which an employee could fall. Inasmuch as a fall from the scaffold's west edge allegedly would have resulted in a drop of 100 feet to the platform below, the Secretary contends that at least that side of the scaffold should have been guarded according to the requirements of the standard.

Judge Weil granted respondent's motion for summary judgment. n2 He noted that the standard requires guarding horse scaffolds more than ten feet "above the ground or [*4] floor." He found that in other standards, such as 29 CFR 1926.451(a)(4), n3 the terms "above the ground or floor" and "height" are used interchangeably. Accordingly, he interpreted the term as used in the cited standard to mean "height". Finding that the scaffold was only eight feet in height, the Judge concluded that the scaffold was in literal compliance with the standard. He also indicated that he was persuaded to grant the motion because of the standards at 29 CFR 1926.500, which provide safety procedures to protect employees against falls from wall openings.

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n2 Subsequent to the granting of the motion, a hearing was held concerning a citation for nonserious violation also issued pursuant to the February inspection. The disposition of that citation is not before us on review. However, in his decision the Judge referred to his vacating the 1926.451(o)(7) item by granting respondent's motion for partial summary judgment. The Judge's decision and his ruling on the motion for summary judgment were both filed with the Commission on July 28, 1975.

n3 1926.451 Scaffolding

(a) General requirements.

* * *

(4) Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground or floor . . . Scaffolds 4 feet to 10 feet in height, having a minimum dimension in either direction of less than 45 inches, shall have standard guardrails installed on all open sides and ends of the platform.

[*5]

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We reverse. The Secretary's interpretation of the standard is adopted. Occupational safety and health standards should be interpreted in light of the conduct to which they are addressed. Brennan v. O.S.H.R.C. and Santa Fe Trail Transportation Co., 505 F.2d 869, 872 (10th Cir. 1974); Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974).

The obvious purpose of the standard is to provide protection for employees exposed to the hazard of falling a distance of more than ten feet from a horse scaffold. Interpreting the term "ground or floor" to mean the distance of the scaffold from its base, rather than any greater distance to the ground, is inconsistent with the regulatory purpose, as well as with a literal reading of the term "ground."

It is also significant that in other parts of 1926.451 the Secretary uses the measurement "10 feet above the ground or floor" when referring to hanging scaffolds, which have no base. There, the ten-foot distance can only refer to the distance that an employee may fall. See e.g., 29 CFR 1926.451(g)(5); 29 CFR 1926.451(h)(15). [*6]

Also, 1926.451(o)(1) n4 separately requires that horse scaffolds shall not be more than ten feet in height. Thus, reading the ten-foot measurement of 1926.451(o)(7) as being the distance from a scaffold to its supporting base would render meaningless 1926.451(o)(1). These two standards can only be reconciled by construing the ten-foot requirement of 1926.451(o)(7) as contemplating a consideration of the distance of the fall, regardless of the height of the scaffold above its supporting base. n5

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n4 1926.451 Scaffolding

* * *

(o) Horse Scaffolds

(1) Horse scaffolds shall not be constructed or arranged more than two tiers or 10 feet in height.

n5 The Chairman limits his concurrence to the reasons set forth in this paragraph.

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Analysis also reveals the error in the Judge's speculating about the applicability of the general standards at 29 CFR 1926.500. When two standards are applicable to a given set of facts, the more specific standard should be cited by the Secretary. Plessy, Inc., 2 BNA OSHC [*7] 1302, 1974-75 CCH OSHD para. 18,907 (No. 946, 1974). Thus, inasmuch as 1926.451(o)(7) is specifically designed as the fall protection standard for horse scaffolds, it preempts more general fall prevention standards.

Our reversing the Judge's granting of respondent's motion for summary judgment requires a remand to allow the parties an opportunity to adduce evidence on issues of material fact, such as respondent's knowledge of the violation and the exposure of respondent's employee, which have not been tried. See Williams Enterprises, Inc., 4 BNA OSHC 1663, 1976-77 CCH OSHD para. 21,071 (No. 4533, 1976).

Accordingly, it is ORDERED that the decision of Judge Weil granting respondent's motion for summary judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

Once again the Commission is basing their decision on what they believe a safety standard should say, rather than on what it clearly does say. n6 The order of Judge Weil dated September 9, 1974, is correct and should be affirmed.

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n6 See, e.g., Secretary v. Rust Engineering Co., OSAHRC Docket No. 12200, March 28, 1977 (holding that the equivalent of a ladder must be a ladder), and the cases cited in footnote 6 thereof.

[*8]

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The cited standard, 29 C.F.R. 1926.451(o)(7), requires that guardrails be installed at open sides and ends of horse scaffolds "more than 10 feet above the ground or floor." The majority interprets this to require guardrails when the fall distance to adjacent ground or floor is more than 10 feet and therefore affirm the citation even though respondent's scaffold was only 8 feet above the floor upon which it was erected. Had the drafters of the standard intended it to address the fall distance to an adjacent surface, "they very easily could have and should have said so." Diamond Roofing Co. v. OSAHRC, 528 F.2d 645, 648 (5th Cir. 1976). In other instances where the Secretary has meant to refer to "fall distance," he has said so. n7 Similarly, where he has meant to refer to "adjacent" floor or ground he has so indicated. n8 "[W]here a term is carefully employed in one place and excluded in another, it should not be implied where excluded." Diamond Roofing Co. v. OSAHRC, supra at 648.

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n7 For example, 29 C.F.R. 1926.750(1)(b)(ii) requires all protection during steel erection "whenever the potential fall distance exceeds two stories or 25 feet."

n8 For example, 29 C.F.R. 1926.500(d)(1) requires guarding of open-sided floors or platforms "6 feet or more above adjacent floor or ground level."

[*9]

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The facts presented indicate that a hazardous condition may have existed at respondent's worksite. The Commission should not, however, adopt a strained interpretation of a standard "simply because a hazard not included within its plain meaning may exist." Secretary v. Burtex Contractors, Inc., OSAHRC Docket No. 11553, December 28, 1976. As the Circuit Court noted in Diamond Roofing,

"If the regulation missed its mark, the fault lies in the wording of the regulation - a matter easily remedied under the flexible regulation promulgating structure, 29 U.S.C.A. 655(b) & (e); 29 C.F.R. Part 1911, with no need to press limits by judicial construction in an industrial area presenting infinite operational situations." 528 F.2d at 648-649.

As footnote 5 of the lead opinion indicates, Chairman Barnako concurs in reversing the Judge's order only for the reasons expressed in one paragraph. The rest of the decision is merely an expression of the opinion of its author. In the one relevant paragraph, the majority concludes that the 10-foot measurement in the cited standard must mean fall distance rather [*10] than the distance to the scaffold's supporting base because to interpret it otherwise would render the 10-foot maximum height requirement of 29 C.F.R. 1926.451(o)(1) meaningless. The fallacy in this logic, however, lies in misconstruing the cited standard. The 10-foot measurement in 29 C.F.R. 1926.451(o)(7) is the distance from the scaffold to the supporting base only when the supporting base is "the ground or floor." A horse scaffold could also be erected on a platform n9 or runway, n10 for example, and there would be no inconsistency between the two standards.

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n9 A "platform" is defined at 29 C.F.R. 1926.502(e) as "[a] working space for persons, elevated above the surrounding floor or ground, such as a balcony or platform for the operation of machinery or equipment."

n10 A "runway" is defined at 29 C.F.R. 1926.502(f) as "[a] passageway for persons, elevated above the surrounding floor or ground level, such as a footwalk along shafting or a walkway between buildings."

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Since the only agreement [*11] between the two Commission members making up the majority herein is based on the incorrect conclusion that the "two standards can only be reconciled by construing the ten-foot requirement of 1926.450(o)(7) as contemplating a consideration of the distance of the fall, regardless of the height of the scaffold above its supporting base," their holding is legally incorrect. The Judge's order should be affirmed.

Judge Weil's decision is attached hereto as Appendix A as this decision does not address all of the matters covered therein.

APPENDIX A

ON FINAL HEARING

William J. Kilberg, Solicitor of Labor, Francis V. LaRuffa, Regional Solicitor and Louis D. DeBernardo, for complainant

Frederick Cohen and Messrs. M. Carl Levine, for respondent

WEIL, J.:

This is a proceeding by the Secretary of Labor under the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678, for a final order affirming citations and proposed penalties pursuant to regulations promulgated by the Secretary under the Act, the regulations in question all pertaining to safety in the construction industry. See 29 C.F.R., Part 1926. The Commission has jurisdiction under 29 U.S.C. 659(c) because respondent [*12] is an employer engaged in a business affecting interstate commerce within the meaning of 652(3) and (5).

The Secretary issued to the respondent two citations. The first was under 29 C.F.R. 1926.451(o)(7). That citation was vacated by order dated September 9, 1974, on motion for partial summary judgment. The issues under Items 1 and 2 of the second citation were tried and are decided herewith. Item 1 alleged a violation under the rigging equipment standard, 29 C.F.R. 1926.251, and Item 2 under the general perimeter guarding standard, 29 C.F.R. 1926.500(d)(1). For reasons set forth below Item 1 is dismissed and Item 2 is affirmed.

I

The Overhead Material Hoist

On February 26 and 27, 1974, a 34-story building was under construction at 375 Pearl Street, New York City, to house switching equipment of New York Telephone Company. The steel framework of the building was being erected by Bethlehem Steel Corporation. (36,145) Respondent, the masonry subcontractor, had about 300 men on the job under the supervision of John Valentine. (180) To aid in bringing up to the working floor forms, supplies, etc., respondent had rigged an overhead hoist, which had the following [*13] components. There was a "cathead" fabricated out of two sheet beams with four- or six-inch webs. It lay across two permanent floor beams with about six inches of overlap on each end. From the approximate center of the cathead hung a pulley block with a sheave, over which there was rove a steel cable a half or 5/8 of an inch in diameter. The standing end of the cable was attached to an engine-driven drum on the ground floor and on the running end there was a hook. To counterbalance the weight of the cable on the drum side of the sheave a ball-shaped weight was attached to the hook. When the hook was less than halfway to the ground, it was necessary to attach the second ball to make the hook, when unloaded, run down by gravity. The weight of the cathead was about 400 pounds; the block and the sheave weighed about 30 pounds; the hook and the two balls weighed about 300 pounds; and the cable had a maximum weight on the sheave of about 100 pounds. The hoist had a capacity of at least 1,000 pounds, which it sometimes raised from the ground floor to the thirteenth floor, a distance of about 225 feet due to the rather high ceilings of the building. However much of the work of the [*14] hoist was bringing up loads of about 300 pounds from one of the completed floors, such as the tenth, to one of the working floors, just a few stories above. No guyline was used to steady the load. Instead a safety man watched the load and could signal the engineer at the drum to stop the hoist if the load swayed or twisted, which condition could occur. On February 26th, the first day of the inspection, the compliance officer, Peter Richardson, peering up from the thirteenth or fourteenth story, saw the cathead resting on two beams on the sixteenth story. He thought that it was attached only at one end; but the photograph which he took, complainant's Exhibit 1, indicates rather deep shadows in the area where the cathead rested on the permanent beams. He told Valentine that the cathead should be secured at both ends, either by U-boats or by strong wire lashing. Valentine agreed to see that this was done, and on that very day U-boats were made up and put in place at each end. Valentine said that he agreed to this in deference to Richardson's opinion, although he felt the hoist would have been safe without any fastenings. Furthermore after that portion of the inspection which [*15] took place of the 26th, Valentine climbed up to the fifteenth floor and taking a closer look, found that the end not secured by wire was in fact lashed to the permanent beam by 5/8-inch rope. Cirona, respondent's carpenter foreman, concurred with Valentine's opinion that the cathead would have been safe without any lashing because of its weight and that, secured as it was at both ends, it was entirely safe. Neither Richardson nor Valentine nor Cirona ever saw a cathead fall. Richardson had investigated one case, in Albany, in which, a cathead fell but he had been unable to determine whether or not it had been secured to the members which were supposed to support it. Richardson was a trained OSHA compliance officer who had made many inspections of buildings under construction; and his experience as the safety officer for a large structural steel construction firm gave him additional expertise in the field of steel construction; but his contact with this type of overhead hoist was peripheral since such devices are not in general use in erecting steel in building construction. As safety officer for the steel construction firm he had examined several of these overhead hoists which [*16] had been installed by other subcontractors; and where he felt that the hoist presented a risk he had caused the hoist to be changed in the manner of its installation or operation. He had done this where he apprehended that the hoist might cuase injury to the steel workers or liability to his employer. Valentine and Cirona had supervised the installation and operation of many of these hoists and had never known a failure. The former practice had been to rely exclusively on gravity and adhesion where, as here, the cathead was a steel beam; but recently catheads were being secured to the supporting beams; and this, Cirona conceded, resulting in increased safety. (6-7; 17-32; 73-111; 115; 123; 130-140; 142-4; 177-89; 203-19)

Complainant puts this record forward as meeting his burden of proof and as entitling him to a finding that at the time the inspertion commenced respondent had been in violation of the cited standard, which provides as follows:

"1926.251 -- Rigging Equipment for Material Handling"

"(a) General

"(1) Rigging equipment for material handling shall be inspected prior to use on each shaft and as necessary to ensure that it is safe. Defective rigging shall be [*17] removed from service."

Despite the circumstance that the proof indicated that the hoist was inspected only when it was moved from one position to another, complainant declined an invitation to amend his complaint. (220)

Whether a conscientious, prudent employer reading the standard would be warned thereby that it required him to take special precautions with respect to the manner in which the hoist was installed was at first vigorously denied by respondent's counsel (80-82; 129) and seemed to me to be open to question. (96) Complainant maintains the affirmative of that proposition. In support of his position, it may be noted that the secondary meaning of "rigging" is given in Webster's New World Dictionary, ed. 1972, p. 1225, as "equipment, gear." But bolstering respondent's position is the overhead hoist standard which provides that in the case of a hoist produced by a "manufacturer," the device "shall meet all the applicable requirements for . . . installation . . . as prescribed by the manufacturer." 29 C.F.R. 1926.554(a)(6). Neither side produced any evidence as to whether this hoist had been made by "a manufacturer" and if so, what his installation specifications provide; [*18] but the fact remains that in another standard the Secretary covered installation requirements expressly. From this it is not unreasonable to infer that where the Secretary wished to provide safety requirements as to the installation of hoists he found words to do so; and that where, as in Paragraph 251 such words were not included, no provision as to installation was intended. On the opposing arguments I ruled that the cited standard was not so far beside the point that it was inapplicable on its face; and that I would wait to see what the evidence showed as to whether 1926.251 had in fact conveyed to respondent's operating personnel a sense that they were required to provide safe installation. (82-3; 129-30) Instead of offering evidence on that point, respondent, as shown above, litigated the issue as to whether or not the installation was, in fact, safe. Perhaps by so doing respondent waived the issue as to whether the standard cited validly apprised respondent of a duty to install the hoist safely. At any rate, at a later stage in the trial respondent repeatedly used the word "rigging" to describe the manner of securing the cathead, exactly as the Secretary claimed that [*19] he used the word in 1926.251. Thus on direct examination Cirona was questioned and testified as follows:

"Q. Did you have anything to do with the rigging of that hoist?"

"A. I was the one who put it in originally." (204) And again:

"Q. Did you supervise the rigging of the cathead?"

"A. Yes I did." (205)

Hence to respondent at least, the standard cited gave warning of the duty which the Secretary sought prescribe. Accordingly, respondent's attack on the standard as vague and indefinite is overruled; and the issue litigated must be decided.

Complainant failed to supply necessary element of his prima facie case. Assuming that only one end of the cathead was secured, as Richardson believed and as complainant contends, was a dangerous condition created? Varying amounts of gravity held the cathead to the supporting beams and a certain out of adhesion obtained between the cathead and the supporting beams. Assume loads of varying weight. Assume varying lengths of the hoisting cable. Assume varying rates of speed of the hoist. Assume that the load was being lifted. Assume that it was being lowered. Assume that the load was compact. Assume that it was noncompact. [*20] Assume that it was symmetrical. Assume that it was asymmetrical. Would the horizontal and torsional forces transmitted through the cable and through the sheave overcome the gravity and the adhesion holding the cathead to the beams? These are questions in physics, to which an engineer might have been qualified to answer. (98) But no such evidence was forthcoming; instead only guesses, pro and con, from laymen. As indicated above complainant failed to prove his case regarding the hoist.

II

Perimeter Guarding

When Compliance Officer Richardson inspected respondent's workplace on the twelfth and thirteenth stories he found stretched around the perimeter a single strand of wire about 42 inches above the floor. The general standard for perimeter guarding, 1926.500(d)(1), requires a top rail 42 inches above the floor, a midrail, and a toeboard. Measuring what Richardson found against the requirements of Paragraph 500(d)(1), complainant treated the wire as sufficient compliance with the top rail requirements; he made no attempt to enforce the toeboard requirement; but he deemed that the absence of a midrail constituted a violation. (114-15). Respondent defended on the [*21] ground that the facts brought the case within the exception created by 1926.750(b)(1)(iii), which provides that in the case of a steel-frame building, a temporary-planked or temporary steel-decked floor may, "during structural steel assembly," be enclosed solely by a single wire, such as Richardson saw. Complainant's citation and complaint referred only to the general provision, paragraph 500(d)(1); and paragraph 750(b)(1)(iii) was brought into the case by respondent in its pretrial disclosure. Hence complainant made out its prima facie case by proving in the words of paragraph 500(d)(1) that respondent's workplace on the twelfth and thirteenth stories included open-sided floors more than six feet above the adjacent ground level which lacked a midrail and, since this is a Second Circuit case, that the area where the hazard existed was respondent's workplace; that respondent created or knowingly suffered a hazard to exist; and that the hazard was accessible to employees of respondent or to other employees engaged in the construction of 375 Pearl Street. Brennan v. OSAHRC and Underhill Construction Corporation,    F.2d    (CA 2, 1975; slip opinions, 1974 Term, p. 2201); [*22] CF. Brennan v. Gilles & Cotting, Inc., 504 F.2d 1225 (CA 4, 1974). (32-49) The burden then moved to respondent to go forward and prove, if it could, facts which would bring the case within the exception on which it relied, namely that spelled out in paragraph 750(b)(1)(iii). (146-7) Since it failed to meet that burden, Item 2 of Citation No. 2 is affirmed.

Richardson, a compliance officer with special expertise in steel construction, was able to identify what was going on at 375 Pearl Street at the time of his inspection. Bethlehem was erecting steel on the seventeenth, sixteenth and fifteenth floors, while on the thirteenth and twelfth stories the Bethlehem bolting-up gang had removed their temporary wooden planking and in place thereof respondent's men were setting up forms into which they were pouring the permanent concrete floor slabs. The Bethlehem men wore red hard hats bearing the name of the corporation (148), while respondent's men wore white hard hats. (175) On the days of the inspection, Valentine, respondent's general superintendent, saw no Bethlehem men working on the thirteenth and twelfth floors; and respondent had no part in erecting the steel framework [*23] of the building. Clearly, on the 26th and 27th of February, when respondent was working large gangs on the thirteenth and twelfth floors, these floors were not shown to have been "temporary-planked or temporary steel-decked floors during structural steel assembly (emphasis added)." (7-34; 39-43; 48-70; 160-62; 165-7; 169-173; 175; 191-8)

As above indicated, Item 2 of Citation No. 2 is affirmed; as is the proposed penalty, which the evidence shows to be appropriate.

ROBERT P. WEIL, Judge, OSAHRC

Dated: July 28, 1975, Boston, Massachusetts