UNIT BUILDERS, INCORPORATED

OSHRC Docket No. 76-140

Occupational Safety and Health Review Commission

December 15, 1977

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Before: CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

F. V. LaRuffa, Reg. Sol., USDOL

Philip W. Kolchin, Vice Pres., Unit Builders, Incorporated, for the employer

OPINION:

DECISION

BY THE COMMISSION: A decision of Review Commission Judge Foster Furcolo, dated July 20, 1976, is before the Commission for review pursuant to 29 U.S.C. 661(i). That decision affirmed a serious violation of 29 C.F.R. 1926.105(a) for the respondent's failure to provide safety nets to protect a number of its employees from fall hazards. The Judge assessed a $100 penalty for the violation.

The respondent, a steel erection subcontractor, was constructing a one-story warehouse at the time of the inspection in this case. As a result of the inspection, a citation was issued for a serious violation of 29 C.F.R. 1926.750(b)(1)(ii), a steel erection standard, for a failure to use safety nets. n1 The complaint reiterated the language of the citation. In its answer, the respondent averred that 29 C.F.R. 1926.105(a) n2 "governs the situation at this job" and that safety lines and belts "were in use at the site." At the outset of the hearing, the complainant [*2] moved to amend the citation and complaint to allege a violation of 29 C.F.R. 1926.105(a) for the lack of safety nets and a violation of 29 C.F.R. 1926.28(a) for the respondent's failure "to provide and enforce the wearing and use of appropriate personal protective equipment." The Judge granted the complainant's motion as to 1926.105(a) and denied it as to 1926.28(a). n3

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n1 The standard at 29 C.F.R. 1926.750(b)(1)(ii) provides that:

On buildings or structures not adaptable to temporary floors, and where scaffolds are not used, safety nets shall be installed and maintained wherever the potential fall distance exceeds two stories or 25 feet. The nets shall be hung with sufficient clearance to prevent contacts with the surface of the structures below.

n2 The standard at 29 C.F.R. 1926.105(a) provides that:

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.

n3 Inasmuch as the Secretary has not challenged the denial of the portion of the amendment relating to 1926.28(a), the matter is not before the Commission.

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On review, the respondent takes exception to the amendment on the basis that it was untimely and to the Judge's finding that the use of safety nets was appropriate. The latter exception is taken on the basis that the use of safety belts was practical in the circumstances at hand and that the Judge's holding might compel the use of safety nets in similar future situations. The respondent also raises issues relating to the effect of testimony of the compliance officer and the "expertise" of one of complainant's witnesses. For reasons that follow, the respondent's contentions are rejected, and the Judge's decision is affirmed.

The evidence indicates that the respondent's employees were working 35 feet above the ground. Safety nets were not in use at the worksite. Ten to twelve of the employees were wearing safety belts but none were tied off. Eight to ten employees were not wearing safety belts at all. The evidence shows that the use of safety belts was practical for men sitting and working on the steel beams. The compliance officer stated, however, that a number of employees walked across these [*4] beams without using any means of fall protection. Both the compliance officer and Mr. Peter Richardson, an expert witness appearing for the complainant, testified that the use of safety belts was impractical in this situation and opined that safety nets were the appropriate means of fall protection. The respondent's sole witness, its vice president, testified that he had been informed by a local union and trade association that safety belts were the appropriate means of fall protection. He also stated that the erection of nets was difficult and hazardous.

The assertion in the respondent's answer to the complaint that 1926.105(a) is the proper standard is correct. The steel erection standard originally cited, 29 C.F.R. 1926.750(b)(1)(ii), is clearly inapplicable in this case because the one-story building constructed by the respondent was not a tiered building. See Ray Evers Welding Co., 77 OSAHRC 181/F7, 5 BNA OSHC 1948, 1977-78 CCH OSHD para. 22,220 (No. 76-628, 1977).

At the hearing the respondent was allowed a recess to consider whether the amendment came as a surprise or was prejudicial. Thereafter, the respondent's vice president simply stated that he was [*5] ready to continue with the trial. Moreover, the amendment made a change only in the standard allegedly violated. The factual basis of the allegation, a failure to use safety nets, remained the same. The complainant's motion was made before any testimony was received and the respondent indicated that it had prepared to defend on the basis that the applicable standard was 1926.105(a). Under these circumstances, the Commission finds that the Judge's granting of the amendment was proper. See Usery v. Marquette Cement Manufacturing Co.,    F.2d   , No. 76-4083 (2d Cir. August 29, 1977); Schiavone Construction Co., 77 OSAHRC 78/A2, 5 BNA OSHC 1385, 1977-78 CCH OSHD para. 21,815 (No. 12767, 1977), appeal filed, No. 77-1087, (3d Cir., Judge 20, 1977); Southern Colorado Prestress Co., 76 OSAHRC 107/D8, 4 BNA OSHC 1638, 1976-77 CCH OSHD para. 21,034 (No. 3035, 1976).

The Commission also finds that the respondent violated 1926.105(a). This case is similar to, and controlled by, the decision in Brennan v. Southern Contractors Service, 492 F.2d 498 (5th Cir. 1974), which has been adopted by the Commission. See McKee-Wellman Power Gas, 77 OSAHRC 133/A2, [*6] 5 NBA OSHC 1592, 1977-78 CCH OSHD para. 21,972 (No. 12618, 1977). Here, as in Southern Contractors, none of the means of fall protection enumerated in the standard were being used by the respondent. Although the respondent argues that one method, safety belts, was practical under the circumstances, it is clear that safety belts were practical only for those employees sitting and working on the beams. n4 However, even though some of these employees were wearing safety belts, they were not tied off. Moreover, the evidence establishes that the use of safety belts was not practical while the employees were walking on the beams. To hold that the respondent complied with the standard merely because safety belts were practical in some situations, in spite of the fact that they were not used, would improperly condone inadequate protection for the respondent's employees.

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n4 Respondent also argues that the Judge's decision gives the compliance officer "the right of deciding what approved method of safety should be used." That argument lacks merit as that determination is ultimately made by the Commission in every contested case after considering the prevailing circumstances. Fleming Foods of Nebraska,    OSAHRC   ,    BNA OSHC   , 1977-78 CCH OSHD para.    , (No. 14484, 1977).

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The respondent's actions in soliciting the opinion of the local union and trade association on the practicality of using safety belts and in providing them at the worksite are commendable. However, the Judge afforded the respondent appropriate credit for those efforts by assessing a penalty of $100 instead of $750, as proposed by the complainant, because he was "greatly impressed by Respondent's efforts to have adequate safety procedures."

The respondent also asserts that the Judge erred in concluding that "the Respondent agreed on Richardson's qualifications as a steel safety expert." Although the Judge may have erred in stating that the respondent agreed to Richardson's expertise, it is clear that the respondent specifically declined an opportunity to dispute Richardson's qualifications as established on direct examination. Those qualifications establish that Richardson was an expert in steelwork safety. Therefore, the Judge's error, if any, was harmless.

Lastly, the respondent's contention that affirmance of the citation will compel the use of safety nets in all similar situations is erroneous. [*8] The doctrines of stare decisis and collateral estoppel do not apply in cases where the factual situations are different. Capitol-Atlanta Construction Co., 77 OSARHC 186/D10, 5 BNA OSHC 2008, 1977-78 CCH OSHD para. 22,259 (No. 13375, 1977). Neither doctrine precludes future use of tied-off safety belts when they provide adequate protection under the circumstances that prevail in similar situations.