NATIONAL INDUSTRIAL CONSTRUCTORS, INC.  

OSHRC Docket No. 76-5241

Occupational Safety and Health Review Commission

June 30, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Reg. Sol., USDOL

Henry C. Mahlman, Associate Reg. Sol., USDOL

Gregory B. Tobin, for the employer

J. Taylor Greer, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge John J. Morris is before the Commission for review pursuant to section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   Judge Morris vacated one item of a serious citation alleging that Respondent, National Industrial Constructors, Inc., violated section 5(a)(2) of the Act n2 in that four employees were exposed to a hazard of falling 60 feet from the edge of metal decking they were installing. The citation and complaint alleged that Respondent failed to comply with the standard at 29 C.F.R. §   1926.750(b)(1)(ii) n3 by not installing a safety net to protect the employees.   The amended complaint alleged in the alternative that Respondent failed to comply with 29 C.F.R. §   1926.105(a) n4 by not providing any means of fall protection, and 29 C.F.R. §   1926.28(a) n5 by not requiring the wearing of appropriate personal [*2]   protective equipment.

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n1 29 U.S.C. §   661(i).

n2 29 U.S.C. §   654(a)(2).

n3 This standard provides:

§   1926.750 Flooring requirements.

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(b) Temporary flooring -- skeleton steel construction in tiered buildings. (1)(i). . . .

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(ii) 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.

n4 This 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 This standard provides:

§   1926.28(a) Personal protective equipment.

(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.

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Judge Morris affirmed the second item of the same citation.   This item alleged that Respondent violated the Act in that four employees were exposed to a hazard of falling 60 feet through a wall opening approximately ten feet wide by twelve feet high.   The citation alleged that Respondent failed to comply with 29 C.F.R. §   1926.500(c)(1)(i) n6 in that it had not equipped the wall opening with a standard rail.

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n6 This standard provides:

§   1926.500 Guardrails, handrails, and covers.

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(c) Guarding of wall openings. (1) Wall openings, from which there is a drop of more than 4 feet, and the bottom of the opening is less than 3 feet above the working surface, shall be guarded as follows:

(i) When the height and placement of the opening in relation to the working surface is such that either a standard rail or intermediate rail will effectively reduce the danger of falling, one or both shall be provided[.]

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Personal Protective   [*4]    Equipment and Other Means of Fall Protection

Judge Morris concluded that Respondent was in compliance with section 1926.105(a). n7 He determined that an employer complies with this standard by using a temporary floor as a means of fall protection, and he agreed with Respondent that its employees were working on a temporary floor. Judge Morris further concluded that the Secretary failed to establish Respondent's noncompliance with section 1926.28(a).   He held that the Secretary must show the feasibility of the personal protective equipment Respondent's employees were allegedly reguired to use.   He noted that in this case the Secretary asserted that Respondent's employees were required to use tied-off safety belts but found that the Secretary had not established the feasibility of any means by which the safety belts could be tied off.

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n7 Before he considered the amended allegations discussed in this decision, Judge Morris concluded that the Secretary failed to establish noncompliance with §   1926.750(b)(1)(ii).   He held that this standard applies only to tiered buildings and that the Secretary failed to establish that the building in this case was a tiered building.   Although the Secretary petitioned for review of this aspect of the judge's decision, Chairman Cleary's direction for review granted only those parts of the Secretary's petition dealing with the judge's disposition of the allegations of noncompliance with §   1926.105(a) and §   1926.28(a).   Accordingly, the judge's disposition of the §   1926.750(b)(1)(ii) charge is not before us.

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Since the judge issued his decision and the parties filed their briefs in this case, the Commission has addressed definitively the proper interpretation of both standards at issue.   The Commission has held that an employer is not in compliance with section 1926.105(a) if its employees are exposed to a fall hazard when they work near the unguarded perimeter of a temporary floor. Diamond Roofing Co., 80 OSAHRC    , 8 BNA OSHC 1080, 1980 CCH OSHD P24,274 (No. 76-3653, Feb. 29, 1980); S & H Riggers and Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979), appeal filed, No. 79-2358 (5th Cir. June 7, 1979).   The Commission has also held that the feasibility of a particular form of personal protective equipment is not a part of the Secretary's burden of proof where he alleges noncompliance with section 1926.28(a).   S & H Riggers and Erectors, Inc., supra. Moreover, the Commission has, on a number of occasions, interpreted and applied section 1926.28(a) to factual situations similar to that in this case.   Forest Park Roofing Co., 80 OSAHRC    , 8   [*6]   BNA OSHC 1181, 1980 CCH OSHD P24,344 (No. 76-1844, March 31, 1980); Martin-Tomlinson Roofing Co., 80 OSAHRC    , 7 BNA OSHC 2122, 1980 CCH OSHD P24,167 (No. 76-2339, Jan. 18, 1980); Hurlock Roofing Co., 79 OSAHRC 93/A2, 7 BNA OSHC 1867, 1979 CCH OSHD P24,006 (No. 14907, 1979); Voegele Co., 79 OSAHRC 76/A2, 7 BNA OSHC 1713, 1979 CCH OSHD P23,860 (No. 76-2199, 1979), appeal filed, No. 79-2439 (3d Cir. Oct. 15, 1979); J. W. Conway, Inc., 79 OSAHRC 75/F1, 7 BNA OSHC 1718, 1979 CCH OSHD P23,869 (No. 15942, 1979); S & H Riggers and Erectors, Inc., supra. The judge's ruling concerning this item of the citation accordingly must be set aside and reconsidered under current Commission precedent.   The Commission will remand the case to an administrative law judge for this purpose. n8

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n8 In S & H Riggers and Erectors, Inc., supra (concurring opinion), Commissioner Barnako set forth his interpretation of 29 C.F.R. §   1926.28(a).   That interpretation differs in some respects from that of the Commission majority.   Among other things, Commissioner Barnako would require the Secretary to prove the feasibility of using safety belts, as did the judge in this case.   Commissioner Barnako continues to adhere to the position set forth by him in S & H Riggers and Erectors. However, he has previously recognized that the orderly administration of the Act requires that the Commission's administrative law judges follow precedents established by the Commission. Gulf & Western Food Products Co., 77 OSAHRC 72/A2, 4 BNA OSHC 1436 at 1439, 1976-77 CCH OSHD P20,886 at 25,067 (Nos. 6804 & 6805, 1976).   For this reason, he joins with his colleagues in their remand order.

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Guardrails

It is undisputed that Respondent's employees were working adjacent to an unguarded wall opening and were thereby exposed to a hazardous condition that failed to comply with section 1926.500(c)(1)(i).   Judge Morris rejected Respondent's defenses to the alleged noncompliance with the standard.   He noted that Respondent argued that noncompliance was necessary to permit completion of the metal decking at the wall opening and that installation of the guardrail any earlier would subject the employees to an increased danger of falling. The judge found that the metal decking was installed sufficiently far beyond the wall opening to permit the employees to install a guardrail safely.   Respondent's petition for review of this aspect of the judge's decision was granted.

On review, Respondent continues to argue that it established a defense.   Specifically, Respondent argues that installation of a guardrail at the wall opening before the metal decking was tightly fitted together and tack welded would have subjected the employees to an increased hazard. Since the parties filed their briefs on review,   [*8]   the Commission has extensively discussed the defenses of impossibility and greater hazard that Respondent is essentially raising.   Masonry Contractors, Inc., 80 OSAHRC    , 8 BNA OSHC 1155, 1980 CCH OSHD P24,338 (No. 76-2092, Mar. 31, 1980) (impossibility of performance concerning compliance with 29 C.F.R. §   1926.500(d)(1)); Martin-Tomlinson Roofing Co., supra (impossibility and greater hazard concerning compliance with §   1926.28(a)); H.S. Holtze Construction Co., 79 OSAHRC    , 7 BNA OSHC 1753, 1979 CCH OSHD P23,925 (No. 16059, 1979), appeal filed, No. 79-1957 (8th Cir. Nov. 13, 1979) (impossibility and greater hazard concerning compliance with 29 C.F.R. §   1926.500(d)(1)).   On remand, the judge should also reconsider this item of the citation in accordance with the arguments of the parties and Commission precedent.

Accordingly, the case is remanded to the chief judge for reassignment to an administrative law judge, n9 who should issue a decision and order disposing of the serious citation alleging in the first item noncompliance with 29 C.F.R. § §   1926.28(a) and 1926.105(a), and in the second item noncompliance with 29 C.F.R. §   1926.500(c)(1)(i).   SO ORDERED.   [*9]  

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n9 Judge Morris has transferred to the Mine Safety and Health Review Commission since the issuance of his decision in this case.

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CONCURBY: COTTINE (In Part)

DISSENTBY: COTTINE (In Part)

DISSENT:

COTTINE, Commissioner, concurring in part and dissenting in part.

I concur only in that portion of the majority decision that remands the citation item alleging alternative violations of 29 C.F.R. §   1926.105(a) and 29 C.F.R. §   1926.28(a) for reconsideration in light of an intervening change of law.   However, with respect to the alleged violation of 29 C.F.R. §   1926.500(c)(1)(i), the judge made the requisite findings of fact, considered the arguments before him, and in reaching his conclusion applied rules of decision that are consistent with Commission precedent.   The cases cited by the majority do not represent intervening changes of law.   Rather, they represent applications of the same rules of decision already applied by the judge in this case.   Also, for the reasons stated in my opinion in J.L. Foti Construction Co., Inc., OSAHRC Docket No. 77-2848 [*10]   (June 30, 1980), there is no legal justification for remanding this item to the judge to reconsider his decision in lieu of the Commission performing its review function.   Accordingly, I dissent from the remand of the citation item alleging noncompliance with 29 C.F.R. §   1926.500(c)(1)(i).