WILLIAMS ENTERPRISES, INC.
OSHRC Docket No. 76-1801
Occupational Safety and Health Review Commission
September 29, 1978
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Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Kenneth Hellman, Coordinator for D.C. Litigation, Office of the Solicitor, USDOL
James Brent Clarde, Jr., for the employer
OPINION:
DECISION
BY THE COMMISSION:
The primary issue is whether Williams Enterprises, Inc. (Williams) could have complied with the safety standard at 29 C.F.R. 1926.750(b)(1)(ii) n1 by rigging safety nets for the protection of two of its ironworkers. Judge David H. Harris found that Williams failed to prove that it was impossible to rig nets and affirmed the citation alleging a violation of that standard. n2 He assessed a $750 penalty. We affirm.
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n1 The standard at 1926.750(b)(1)(ii) reads:
On buildings or structures not adaptable to temporary floors, and where scaffolds are not used, safety nets shall be installed and maintained whenever 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 structures below.
n2 The judge vacated another citation in which a violation of the standard at 29 C.F.R. 1926.100(b) was alleged. Since neither party takes exception to the judge's disposition of that citation, and there is no compelling public interest warranting Commission review of the judge's action, the citation is not before us on review. Abbott-Sommer Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976).
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During his inspection of Williams's jobsite at the Union Station Visitors Center in Washington, D.C., one of the Secretary of Labor's (Secretary) compliance officers (CO), Petrello, observed ironworkers Millsted and Livingston positioned on steel beams about 49 feet above concrete deckwork. They were connecting a length of temporary tubing. Employee Millsted was standing on a 5- or 6-inch "floor lug" n3 that protruded from a vertical column to which he was securing one end of the temporary tube. Livingston was connecting the other end of the temporary tube to a diagonal support beam on which he worked. The support beam ran diagonally from the vertical column upon which Millsted worked to a second vertical steel column close to Livingston. The distance between the vertical columns was about 26 to 29 feet. Millsted was about 49 feet in the air above the concrete; Livingston was slightly higher. Their foreman was watching them from below when the CO arrived in the area.
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n3 A floor lug is a small piece of metal attached to a column.
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The structure being erected by Millsted and Livingston was not adaptable to temporary floors because there were no horizontal members upon which to lay planks. The employees were not protected by safety belts, safety nets or scaffolds. Two scaffolds were present, however, near where Millsted and Livingston worked. One of them, the scaffold near the column from which Millsted was working, was used for access to Millsted's worksite and as a base for connecting some of the structural steel. However, the employees did not always work off that scaffold. According to Williams's superintendent, Pritchard, they only worked off it when "feasible" and worked off the beams as well.
Pritchard, an ironworker with 25 years of experience, testified that he had considered the use of a safety net to protect the employees but did not think a net could have been installed. A net would have required four anchorage points, and the two vertical columns closest to the vertical columns near Millsted and Livingston were 63 feet away. Four 20-foot by 40-foot nets, weighing a total of 2000 pounds and strung together by [*4] wire ropes, would be needed to cover the area between the four columns. Pritchard testified that although cranes on the jobsite could lift a net that size, the net would sag when in place. Any employee falling into such a huge net would hit a lower surface because scaffolds filled the entire area below the employees. Pritchard testified on direct examination that he did not know any other way of attaching nets. Even if a net could have been hung from the four vertical columns, Pritchard stated that the net could not have been extended 8 feet beyond all the edges on which Millsted and Livingston worked so as to comply with 29 C.F.R. 1926.105(c)(1). n4
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n4 The standard at 1926.105(c)(1) reads, in pertinent part:
Nets shall extend 8 feet beyond the edge of the work surface where employees are exposed and shall be installed as close under the work surface as practical but in no case more than 25 feet below such work surface. . . .
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Judge Harris inquired whether four scaffolds with a single net attached between them [*5] could have been set up beneath the employees and moved as the necessity arose for work to be done elsewhere. Pritchard answered affirmatively. Pritchard also testified, however, that a net could not be installed eight feet beyond one of the columns because that column was positioned on the outside wall line. On cross-examination, Pritchard stated that locked casters at the bottom of a scaffold would make a scaffold immovable but would not prevent a scaffold from overturning. He further testified, however, that guy wires could be used to anchor a scaffold.
Compliance officer Petrello was a former ironworker and safety director for Potomac Iron Works. He had been a safety inspector for the District of Columbia and had conducted about 3,000 safety inspections for the Occupational Safety and Health Administration, about 225 of them on construction sites. Petrello testified about a method that he believed could have been used to rig nets for the protection of Millsted and Livingston. He testified that a single 500-pound, 20-foot by 40-foot net could have been attached to four scaffolds at least 40-feet high and of the same type and dimensions as the scaffolds at the jobsite. Cranes [*6] on the jobsite could have been used to attach the net to the scaffolds. The scaffolds would be mounted on casters with wheels locked at the bottom and could be moved to cover the area under which the employees worked. If there was a problem with the net extending 8 feet beyond the locations where the employees worked, Petrello said that outriggers braced back to the scaffold frames could be used to overcome the problem. Guy wires running from the scaffold frames to the concrete deck could be used to stabilize the scaffolds. The guy wires would have to be on at least two sides of each scaffold but would not have to be used on all four sides of each scaffold. Petrello testified that there was not any scaffolding in the area that would interfere with rigging a net between four scaffolds. He stated that none of the scaffolds would be on the ramp located to the right of the steel columns on which the employees worked or in the street located to the right of the ramp.
Judge Harris found that Williams had the burden of establishing that it was impossible to install and maintain safety nets for the protection of its employees. The judge found that the CO's suggestion of a 20-foot [*7] by 40-foot net strung between movable scaffolds was "plausible" and that such plausibility had not been refuted by Williams. He further found that Pritchard had conceded scaffolds could be anchored by guy wires and that cranes were available which could reach anywhere on the worksite. The judge concluded, therefore, that Williams had failed to carry its burden of proof.
In its petition for review and brief on review, Williams argues that the judge agreed it was impossible to hang safety nets between partially free-standing trusses each 49-feet high and placed 63-feet apart, that no safety net is large enough to span the distance between trusses, and that there was no other part of the structure from which to hang nets. Williams acknowledges, however, that the judge accepted the "plausibility" of the compliance officer's proposal but Williams takes issue with particular aspects of that proposal.
Williams argues that the cranes suggested for use were those of the general contractor and not its own. Williams points out that the CO did not specify how the guy wires in his proposal would be anchored to the concrete deck. It states that the CO did not explain how the scaffolds could [*8] be repositioned around the trusses as work progressed. It states that the CO did not know what the base dimensions of the scaffolds were and that to comply with the requirements of 29 C.F.R. 1926.451(e)(1) n5 the minimum area occupied by the base of a recommended 40-foot high scaffold would be 100 square feet (10 feet X 10 feet). Williams points out that the CO did not discuss how employees of different trades working in the vicinity would be affected by scaffolds with this large a base area. Williams also, without elaborating, "invites the attention of the Review Commission" to the requirements of the standards at 29 C.F.R. 1926.451(e), particularly 1926.451(e)(2), n6 1926.451(e)(3), n7 1926.451(e)(5), n8 1926.451(e)(6) n9 and 1926.451(e)(7)(i). n10
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n5 The standard at 1926.451(e)(1) reads:
When free-standing mobile scaffold towers are used, the height shall not exceed four times the minimum base dimension.
n6 The standard at 1926.451(e)(2) reads:
Casters shall be properly designed for strength and dimensions to support four times the maximum intended load. All casters shall be provided with a positive locking device to hold the scaffold in position.
n7 The standard at 1926.451(e)(3) reads:
Scaffolds should be properly braced by cross bracing and horizontal bracing conforming with paragraph (d)(3) of this section.
n8 The standard at 1926.451(e)(5) reads:
A ladder or stairway shall be provided for proper access and exit and shall be affixed or built into the scaffold and so located that when in use it will not have a tendency to tip the scaffold. A landing platform must be provided at intervals not to exceed 35 feet.
n9 The standard at 1926.451(e)(6) reads:
The force necessary to move the mobile scaffold shall be applied near or as close to the base as practicable and provision shall be made to stabilize the tower during movement from one location to another. Scaffolds shall only be moved on level floors, free of obstructions and openings.
n10 The standard at 1926.451(e)(7)(i) reads:
The employer shall not allow employees to ride on manually propelled scaffolds unless the following conditions exist:
(i) The floor or surface is within 3 degres of level, and free from pits, holes, or obstructions.
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Williams argues that it could not have erected a scaffold at the corner of the concrete deck adjacent to the street and, even if it could, the guy wires holding it up would be anchored in the street. Consequently, Williams asserts that only three scaffolds could have been used and that the CO did not demonstrate how a net could be rigged to only three scaffolds. Williams also indicates that the CO had never seen his proposal implemented, and that the CO was silent on whether the scaffolds could have supported loads according to the terms of 29 C.F.R. 1926.451(a)(7). n11
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n11 The standard at 1926.451(a)(7) reads:
Scaffolds and their components shall be capable of supporting without failure at least 4 times the maximum intended load.
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Williams argues that the judge's decision requires it to demonstrate by expert testimony that the CO's method for protecting its employees is impossible instead of requiring the Secretary to prove a workable [*10] method of hanging nets. If this is the rule, argues Williams, citing Crawford Steel Construction Co., 76 OSAHRC 143/A2, 4 BNA OSHC 1891, 1976-77 CCH OSHD P21,338 (No. 9622, 1976), the Secretary is free to suggest any fanciful scheme even though it is not feasible.
The Commission has stated that the Secretary need only prove non-compliance with a standard and some degree of employee exposure to establish a prima facie case. Once a prima facie case has been established, a respondent may affirmatively defend by showing that compliance with the cited standard was impossible. Hughes Brothers, Inc., 78 OSAHRC 65/A2, 6 BNA OSHC 1830, 1978 CCH OSHD P22,909 (No. 12523, 1978). Williams attempted to make out this defense by the testimony of Pritchard that it was impossible to use nets. The Secretary, however, put forth the testimony of compliance officer Petrello to rebut Pritchard's testimony of impossibility by proposing a method for protecting William's employees.
We find that Williams failed to establish its impossibility defense. It not only failed to rebut the CO's suggestion for hanging a net from four mobile scaffolds, but Pritchard's testimony, on which [*11] Williams relies, indicates that the essential elements of the CO's proposal could have been implemented. As the judge observed, Pritchard conceded that scaffolds could be anchored by guy wires and that cranes were available which could reach anywhere on the worksite. Pritchard also admitted that the cranes could be used to lift heavy nets, that a net could be attached to a scaffold, that there were scaffolds on the jobsite over forty feet high, and that scaffolds could be mounted on casters. Moreover, Williams did not show that it used alternative protective measures or that such measures were unavailable. Taylor Building Associates, Inc., 77 OSAHRC 27/A10, 5 BNA OSHC 1083, 1977-78 CCH OSHD P21,592 (No. 3735, 1977).
Although Williams argues that the cranes on the jobsite were those of the general contractor, its own witness, Pritchard, testified that Williams had cranes on the site. The cranes could have been used to implement the CO's suggestion. Although Williams claims that the Secretary failed to establish how to anchor the scaffolds with guy wires, Pritchard admitted that guy wires could be used to stabilize scaffolds and did not rebut the CO's testimony that the wires [*12] could be anchored to the concrete deck. Williams also argues that the CO did not know the minimum base dimension of the scaffolds and that the minimum base area of the scaffolds would have to be at least 100 square feet to meet the requirements of 1926.451(e)(1). n12 However, that standard is inapplicable here because it refers to free-standing scaffolds while the scaffolds referred to in the CO's proposal would be anchored by guy wires. We also note that, even if the scaffolds interfered with the work of other tradesmen, the need to reschedule their work only constitutes a claim of inconvenience, not one of impossibility. See Diebold, Inc., 76 OSAHRC 3/E5, 3 BNA OSHC 1897, 1975-76 CCH OSHD P20,333 (No. 6767, 1976), appeal filed, No. 76-1278 (6th Cir., March 8, 1976).
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N12 For the language of 1926.451(e)(1), see note 5.
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Williams also states that the CO did not establish the structural integrity of the scaffolds with attached nets and essentially argues that it could not safety build scaffolds as high as [*13] those suggested for use by the CO. The CO, however, testified that scaffolds of the same type and dimensions as those used at the jobsite could have been used to implement his proposal. The fact that Williams built and used 55-foot high scaffolds on the jobsite belies Williams's claim that it could not build scaffolds like those recommended by the CO. Further, once the CO testified that his proposal could have been implemented, it was incumbent upon Williams to rebut that evidence. If Williams believed the proposed scaffolds would have interfered with the work performed by other trades, it should have introduced evidence supporting its belief. If Williams believed the scaffolds lacked the structural integrity to hold the attached net, it should have introduced evidence supporting its belief. It did not do so on either of these particulars.
Williams contends that the CO did not testify how the scaffolds could be repositioned as the work progressed. Both the CO and Printchard testified that scaffolds could be mounted on casters. Williams did not introduce any evidence establishing that the scaffolds used in the CO's proposal could not be repositioned while work progressed. [*14] Also, Williams did not introduce any evidence establishing that the CO's safety net proposal would contravene either 1926.451(a)(7), cited above, by being unable to support its intended loads or contravene the numerous safety requirements of 1926.451(e). Even if Williams had done so, the Commission has held that an employer's inability to comply with one standard will not excuse noncompliance with another; the emoloyer must provide such protection as is reasonable. See Kelly Construction Services, Inc., 76 OSAHRC 89/F3, 4 BNA OSHC 1491, 1976-77 CCH OSHD P20,925 (No. 7102, 1976).
Although Pritchard testified that Williams could not have erected a scaffold at the corner of the concrete deck adjacent to the street, the CO testified that none of the scaffolds in his proposal would be located on the ramp or in the street. The judge impliedly credited the CO's testimony over Pritchard's, and we have no reason to reject the judge's evaluation. See C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1977-78 CCH OSHD P22,481 (No. 14249, 1978). Although Williams stresses that the CO had never seen his proposed arrangement in use, that only affects the weight of the CO's [*15] testimony. There was no testimony rebutting the CO's proposal, and the judge gave the CO's testimony substantial weight; Williams has not given us reason to diminish the value of the CO's testimony.
Accordingly, we affirm the citation alleging a violation of 1926.750(b)(1)(ii). After a consideration of the required penalty factors, we assess a $750 penalty. Williams is the largest steel erector in the Washington, D.C. area. It employed an average of about 160 people during 1976 and had over $6,000,000 in total sales. Williams's good faith is questionable here since it states that it cannot protect employees working for it as steel connectors and has apparently made no effort to do so. Also, the gravity of the violation is high; the employees worked on steel beams about 49 feet above concrete while completely unprotected.
The Secretary has also argued in this case that should the Commission vacate the 1926.750(b)(1)(ii) allegation, the facts establish a violation of the standard at 29 C.F.R. 1926.28(a). n13 He move for an amendment of the citation to include a 1926.28(a) allegation on the basis of National Realty & Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973). [*16] n14 The Secretary contends that the amendment is based on the same operative facts as the original citation, and that Williams would not be prejudiced by the amendment but would actually be assisted by it because the Secretary is proposing alternative measures to protect employees from the fall hazard. The Secretary also argues that the 1926.28(a) allegation was tried by consent and the citation should be amended pursuant to Fed. R. Civ. P. 15(b).
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n13 The standard at 1926.28(a) 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.
n14 The Secretary's motion to alternatively allege a 1926.28(a) violation was first made at the beginning of the hearing before Judge Harris. Williams objected on the basis that the Secretary had had ample opportunity to amend earlier, that the amendment would add issues on which Williams had not prepared, and that its witnesses would be inconvenienced if the case was continued. The judge denied the motion but allowed the Secretary to make an offer of proof that it was feasible for the employees to wear tied-off safety belts.
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Because we affirm the alleged 1926.750(b)(1)(ii) violation, n15 we do not reach the question of whether the amendment to alternatively allege 1926.28(a) violation should be granted.
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n15 Unlike our dissenting colleague, we would not at this point raise the objection that the evidence does not sufficiently establish whether the building was "tiered", and invite further briefs. This objection was not argued before the Judge, was not mentioned in respondent's petition for discretionary review or brief, and was not raised in the direction for review. Inasmuch as there is no compelling public interest in raising it sua sponte, we do not find it necessary to delay disposition of the case. Cf. Abbott-Sommer, Inc., supra note 2.
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DISSENTBY: BARNAKO
DISSENT:
BARNAKO, Commissioner, dissenting:
I agree with my colleagues that Williams has not shown it would have been literally impossible to erect a safety net. But it would have been extraordinarily [*18] difficult, and may have been impracteical and economically infeasible. n1 Indeed, the record strongly suggests that safety belts rather than a safety net would have been a much more practical method of protecting Williams's employees. I therefore think it is necessary to scrutinize closely whether Williams was properly cited under a safety net standard before entering an order requiring Williams to erect nets under circumstances similar to those in this case. n2 Because the issue of the applicability of the standard has not been raised or argued by the parties, however, I would invite briefs on this question before making a determination as to whether the cited standard does or does not apply. n3 I therefore dissent from the order affirming the judge's decision.
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n1 Although the Commission has not recognized a defense of infeasibility, several courts of appeals have indicated that such a defense should be available. A.E. Burgess Leather Co. v. OSHRC, No. 77-1146 (1st Cir., June 15, 1978); United Parcel Service of Ohio, Inc. v. OSHRC, 570 F.2d 806 (8th Cir. 1978); Atlantic & Gulf Stevedores, Inc. v. OSHRC 534 F.2d 541 (3rd Cir. 1976).
n2 I note the Secretary's suggestion that, by seeking to amend to charge in the alternative a violation of 29 C.F.R. 1926.28(a), he is giving Williams the opportunity to use safety belts rather than a safety net. The Commission has held, however, that if 29 C.F.R. 1926.750(b)(1)(ii) is applicable under particular circumstances, an employer cannot comply by using safety belts, but must instead use one of the means of protection listed in that standard. Holman Erection Co., 77 OSAHRC 196/A2, 5 BNA OSHC 2079, 1977-78 CCH OSHD para. 22,318 (No. 13529, 1977). Thus, it is necessary to determine which standard is applicable, for that controls the type of protection Williams must provide.
n3 The Commission has previously issued such briefing orders when an issue not argued by the parties must be addressed in order to arrive at a proper disposition of a case.
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The Commission has held that the standards at 29 C.F.R. 1926.750 apply only to the erection of "tiered buildings." n4 Such buildings are those which, when completed, will have permanent floors and in which, during construction, the use of temporary floors will for the most part be practicable. n5 Loft-type buildings and one-story buildings are not tiered buildings. n6 In those types of buildings, the general fall protection standards at 1926.28(a) and 1926.105(a), rather than the specific standards at 1926.750(a), apply. n7
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n4 Daniel Construction Co., 77 OSAHRC 21/A2, 5 BNA OSHC 1005, 1976-77 CCH OSHD para. 21,521 (No. 7734, 1977).
n5 McKee-Wellman Power Gas, 77 OSAHRC 133/A2, 5 BNA OSHC 1592, 1977-78 CCH OSHD para. 21,972 (No. 12618, 1977).
n6 Daniel Construction Co., supra; Ray Evers Welding Co., 77 OSAHRC 181/F7, 5 BNA OSHC 1948, 1977-78 CCH OSHD, para. 22,220 (No. 76-628, 1977); but see also Builders Steel Co. v. Marshall, No. 77-1589 (8th Cir., May 17, 1978).
n7 Ray Evers Welding Co., supra; Havens Steel Co., 78 OSAHRC 33/E6, 6 BNA OSHC 1564, 1978 CCH OSHD para. 22,689 (No. 13463, 1978), pet. for review filed, No. 78-1511 (D.C. Cir., June 8, 1978).
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Thus, in determining whether a particular building under construction is "tiered," both the ultimate configuration of the building and the construction techniques being employed are relevant. My examination of the record reveals very little evidence on these points. As noted above, however, the parties have not addressed this issue, and I would invite them to file briefs before deciding whether the Secretary has met his burden of proving that 1926.750(b)(1)(ii) is applicable to Williams's worksite. n8
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n8 The Secretary has the burden of proving that a standard he alleges an employer has violated applies to the facts giving rise to the citation. Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD para. 20,690 (No. 3694, 1976).
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