CHICAGO BRIDGE AND IRON COMPANY

OSHRC Docket No. 762

Occupational Safety and Health Review Commission

June 7, 1974

  [*1]  

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

  MORAN, CHAIRMAN: A decision of Review Commission Judge John J. Larkin is before this Commission for review pursuant to the provisions of 29 U.S.C. §   661(i).   That decision held that respondent had violated 29 U.S.C. §   654(a)(2) because of its failure to comply with the occupational safety and health standard published at 29 C.F.R. §   1926.28(a).   For reasons which follow, we reverse.

This case was initiated as the result of a fatal accident to an employee of respondent who fell some 116 feet to the ground while at work installing a water tank.   The Judge found that the fatality was substantially unrelated to the facts introduced in evidence.

The essence of the violation alleged in the citation was that respondent's failure to provide appropriate personal protective equipment had exposed one of its employees to the hazard of falling from a height of 116 feet.

The standard which appears in 29 C.F.R. §   1926.28(a) provides:

The employer is responsible for requiring the wearing of appropriate protective equipment in all operations where there is exposure to hazardous conditions and where this part indicates   [*2]   the need for using such equipment for reducing hazards to the employees.

The decision of the Judge, however, was founded upon another regulation, 29 C.F.R. §   1926.104(d)   which specifies that the maximum length of a lanyard (which is to be attached to an employee's safety belt by virtue of still another regulation) shall be six feet. The facts indicated that the respondent's procedure for attachment of lanyards was such as to permit a fall of 20 feet.

The Judge concluded that the respondent had committed a "technical violation" of 29 C.F.R. §   1926.28(a) inasmuch as its employees were not attaching their safety lanyards to a "substantial object" or safety line which would limit a fall to a maximum of six feet.

It is our opinion that he ruled incorrectly on this matter.   We find that complainant did not sustain its burden of proof. The evidence which he presented did not go to the essence of the citation and was insufficient to establish the charge that respondent allowed its employee to be exposed to the hazard of falling from a high elevation without being provided with appropriate personal protective equipment.   On the contrary, it was clearly brought out at the hearing [*3]   that respondent had complied with the safety equipment requirements in the Code of Federal Regulations and had an ongoing safety program which it emphasized to its employees through regular instructions.

The Judge's conclusion that respondent's lanyard-attachment procedures would permit a 20-foot fall was based upon subsidiary facts: First, his determination that the cable to which they were attached was not a "substantial object" as required in 29 C.F.R. §   1926.107(b):

Lanyard means a rope, suitable for supporting one person.   One end is fastened to a safety belt or harness and the other end is secured to a substantial object or safety line.

Second, he relied upon the language of 29 C.F.R. §    1926.104(d) which provides:

Safety belt lanyard shall be a minimum of 1/2-inch nylon, or equivalent, with a maximum length to provide for a fall of no greater than six feet. The rope shall have a nominal breaking strength of 5,400 pounds.   (emphasis supplied)

Neither of the foregoing, either alone or together, provides sufficient evidence to establish the charge made in the citation.   They merely constitute a situational supposition in the place of an evidentiary determination [*4]   of violation of the cited standard.

Consequently, the item of the citation alleging a violation of the Act for failure to comply with 29 C.F.R. §   1926.28(a) is dismissed.  

CONCURBY: VAN NAMEE

CONCUR:

  VAN NAMEE, COMMISSIONER, concurring: I concur in Chairman Moran's conclusion that the Complainant has failed to sustain his burden of proof that the Respondent violated 29 C.F.R. §   1926.28(a).   The cited standard requires the use of appropriate protective equipment where there is exposure to hazardous conditions and where the need for such equipment is indicated in other provisions of 29 C.F.R. part 1926.   Assuming there is a standard within this part that affirmatively requires the use of safety belts, the evidence of record clearly establishes that the Respondent complied therewith.

The Respondent provided its employees with safety belts and gave specific instruction that the employees must be tied off when working at elevated locations.   Moreover, the employees did in fact use the belts. There is also uncontradicted testimony that the violation by an employee of any of Respondent's rules or regulations with respect to the use or proper safety equipment, including safety belts, will result [*5]   in the   dismissal of the employee involved.   Under the circumstances of this case, the Respondent has more than complied with any standard which imposes a duty upon an employer to provide and/or require the use of safety belts.

DISSENTBY: CLEARY

DISSENT:

  CLEARY, COMMISSIONER, dissenting: I respectfully dissent from the conclusion reached by my colleagues that the Secretary has failed to sustain his burden of proof in this case.

I would affirm the Judge in his reading of section 1926.28(a) with another provision in Part 1926, section 1926.104(d).   This is permissible under the express terms of section 1926.28(a). n1 In my view, the safety needs arising under section 1926.104(d) were tried by the parties, and the Secretary has proved a violation by a preponderance of the evidence.

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n1 This opinion is not intended to preclude a finding of a violation of the Act by failure to comply with 29 CFR §   1926.28(a) alone, and without reference to other provisions in Part 1926.   That question is pending before the Commission in other cases.   It need not be answered here in order to dispose of this case.

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The standard in effect proscribes falls greater than six feet. Falls of at least 20 feet were possible here because hooking the lanyard to the boom cable permitted falls of this length.   The lead opinion concedes this fact, but labels it "subsidiary." This is wrong.   This fact is the heart of the case.

[The Judge's decision referred to herein follows]

LARKIN, JUDGE, OSAHRC: This is a proceeding under Section 10(c) of the Occupational Safety and   Health Act of 1970, 29 USC 651 et seq. (referred to as the Act) to review a "Citation for Serious Violation" and "Notification of Proposed Penalty" in the amount of $500 issued by the Secretary of Labor (referred to as the Secretary) pursuant to Sections 9(a) and 10(a) of the Act.

The trial was held on June 28, 1972, in Birmingham, Alabama, as a result of a citation issued on March 17, 1972.

Respondent is a corporation doing business throughout the southeastern states with place of business in Birmingham.   Alabama, and is a business "affecting interstate commerce" (Tr. 4).   It is engaged in the fabrication and erection of steel plate structures including [*7]   water storage tanks (Tr. 4).   Respondent employed approximately six people on the worksite involved (Tr. 97).

On February 25, 1972, Respondent was installing a water tank at Abbeyville, South Carolina, when an employee fell from a height of approximately 116 feet. As a result of the fatality, the Secretary's Compliance Officer inspected the site on March 2, 1972 (Tr. 4).

Respondent furnished safety belts and lanyards (a rope for attachment from the belt to a support) of adequate load strength to its employees (Tr. 5).   In erecting the tower, Respondent used a boom with upper and lower supports each containing a 2 1/2 square foot folding platform (Tr. 53-55, Ex. 2-A).   The platforms (referred to as boom boxes) can be and are raised and lowered independently of each other (Tr. 62, Ex. 2-A).   Respondent's safety policy specified that an employee in moving up or down on the erection boom be tied off by his safety belt (Tr. 62).   This procedure provided that prior to moving on the boom, the employee attaches his lanyard to the shackle of the load block (Tr. 36, Ex. 2-A).   The load block is then   lowered to the upper platform while the employee descends the boom (Tr. 37, Ex.   [*8]   2-A).   The boom contains horizontal and vertical lace type pieces which are used by the employee as a ladder (Tr. 62, Exs. 1 and 2-A).   The employee attaches the load block to the upper boom box which is raised approximately 7-1/2 feet to a new position on the riser (Tr. 50-52, 62, Ex. 2-A).   While the upper boom box is being raised the employee remains on the platform with the lanyard attached to the bottom of the load block, or in the alternative, to the boom box (Tr. 57-59, Ex. 2-A).   If the employee should elect to attach the lanyard to the boom box rather than continue its attachment to the load block, he detaches the lanyard from the load block and attaches it to the upper boom box while he is on the platform, and before it is raised (Tr. 50-57, Ex. 2-A).   After the upper boom box is secured to the riser, the employee detaches the lanyard from the load block or boom box, and reattaches it to the cables between the upper and lower boom boxes (Tr. 59-64, Ex. 2-A).   The employee then descends to the platform on the lower boom box by climbing down the boom (Tr. 61, 62, Ex. 2-A).   The lower boom box is then raised to its new position on the riser of the elevated tank at a point approximately [*9]   7-1/2 feet below the upper boom box (Tr. 60-62, Ex. 2-A).   During the ascent of that boom box, the employee remains on the platform with the lanyard of the safety belt still attached to the cables between the two boom boxes (Tr. 57-61, Ex. 2-A).   After securing the lower boom box to its new position on the riser of the elevated tank and with his lanyard still attached to the cables, the employee then climbs up the boom to scaffolding on the inside of the riser, thereafter detaching the lanyard of his safety belt from the cable (Tr. 59, Ex. 2-A).   With the upper box raised from its original position and before the lower box is   raised, the two boxes are approximately 15 feet apart (Tr. 62).

The wearing of two lanyards unduly restricts an employee's movement and creates greater hazard than the use of only one lanyard (Tr. 69-70).

The attachment of the lanyard to the boom cables was not an attachment to a "lifeline" or "substantial object" (Overall record).

The Secretary's procedures provide for adjustment of the proposed penalty due to good faith, size and safety history (Tr. 96).   Respondent was allowed the maximum credit for these items (Tr. 96).

OPINION

The alleged   [*10]   violation is described in the citation as:

Employee allowed to be exposed to hazard of falling from high elevation (approximately 116 feet) without being provided appropriate personal protective equipment.   The exposure occurred at the worksite described above.

The standard cited (29 CFR 1926.28(a)) provides:

The employer is responsible for requiring the wearing of appropriate protective equipment in all operations where there is an exposure to hazardous conditions and where this part indicates the need for using such equipment for reducing hazards to the employees.

The Secretary, who has the burden of proof, contends that the standard not only provides that adequate equipment must be furnished, but that an employer is responsible for proper procedure to make the equipment effective.   More specifically, the Secretary emphasizes there were momentary times an employee was not attached when unhooking and rehooking the lanyard and that attachment to the   boom cables was neither a "lifeline" or "substantial object" as there was a possibility of a fall of at least 20 feet. The Secretary refers to 29 CFR 1926.104(d) specifying that a lanyard shall be a maximum length to provide [*11]   a fall of no greater than six feet. The Secretary proposes two lanyards to provide protection for the rehooking procedure.

Respondent emphasizes that its employees were furnished adequate protective equipment as each had an approved safety belt and lanyard and specifically instructed in a procedure, which if followed, provided complete protection.   Respondent contends that the lanyard standard specifying six feet maximum fall refers to the length of the lanyard rather than limitation of fall.   In support of its argument that falls are not restricted to six feet, it cites the fact that no safety net is required unless the height is above 25 feet. Respondent argues that two lanyards would create greater hazard. It notes that its employees have a free hand to hold with during rehooking procedure.   Respondent emphasizes that the employee would not have fallen had he followed respondent's safety procedures.   Respondent further contends that the regulation is unenforceable as it does not set forth the circumstances under which safety belts must be used, and refers to other standards that are specific such as those requiring the wearing of helmets, ear protective devices, eye and face [*12]   protectors and life jackets.

The Secretary's argument that the employer must provide an effective procedure in addition to the equipment is well taken.   The equipment can only be effective through implementation and such requirement is implied from that portion of the standard stating that "The employer is responsible for requiring the wearing of appropriate protective equipment. . . ."

  Respondent argues that the standard is unenforceable due to its lack of explicitness and points to the other standards where the conditions are specified under which the equipment must be worn.   The problem with agreeing with Respondent's contention is that it would be impossible for the Secretary to write standards that could cover each and every circumstance.   Such would especially be true of construction projects involving such a wide variance of circumstances.   To specify that the Secretary must meet such requirement would make the standards so voluminous as to be unworkable and it must be concluded the employer has a responsibility to interpret the standard in the light of the requirements of its own operation.

The real controversy of the parties pertains to whether Respondent's safety [*13]   procedures and equipment were adequate.   The Respondent recognizes that for a brief period the employee is not attached while reattaching the lanyard. Respondent's defense is that the employee's other hand is free to hold, that the employee is standing on a solid structure at the time, and that two lanyards unduly restrict the employee and create a greater hazard than the use of only one lanyard. Respondent's evidence shows that two lanyards would be over restrictive and the employees are furnished and do wear a lanyard and safety belt. It must be recognized, especially in construction work, that it is impossible to eliminate all hazards at all times.   Human error can only be minimized, never completely eliminated, if any work is to be accomplished.   In addition, an employee has a responsibility to use proper care for his own safety.   Where the employee's sole function at the time is to momentarily relocate his lanyard while standing on a firm base with his other hand free to protect from fall,   it is concluded that such circumstances do not warrant the use of two lanyards.

Respondent points to the fact that no safety net is required for heights of under 25 feet, and   [*14]   that the lanyard standard is not intended to imply that a fall in excess of six feet is not permissible.   Certainly, it must be concluded that there is an inconsistency in the height restriction between the two standards.   Although agreeing with Respondent that the section has reference to the specifications for lanyards, including length, the standard must still be interpreted to mean that the lanyard length is intended to limit a fall to six feet. The weakness in Respondent's position lies in the fact that the boom cables would permit a maximum fall of at least 20 feet, and the cables cannot be interpreted as either a "lifeline" or "substantial object." It is this standard in conjunction with 29 CFR 1926.28(a) that Respondent technically violated.

This conclusion leaves for consideration a determination of whether the violation was of a serious nature as the Secretary contends and the amount of penalty, if any.   This case is another example of a citation being issued due to a fatality, but the fatality substantially unrelated to the facts of record.   See National Realty and Construction Co., Inc.,   The descriptive language of the violation in the citation [*15]   only emphasizes such fact.   In addition, the Secretary cited a general provision standard, but relies upon specific standards not cited in either the citation or complaint to support his case.   Such practice leaves much to be desired in terms of fairness and proper notification to an employer to abate the condition or to the employer's counsel to prepare a defense.   Be that as it may, it is concluded that the record fails to show that there was "substantial probability that death or serious physical harm   could. . ." result from the condition of attaching the lanyard to the boom cables. The boom contained iron lacework and was used by the employee as a ladder.   The employee climbs down the boom approximately fifteen feet maximum to unfasten the boom boxes and rides the platform back to its new height. The maximum fall would be a suspended fall not in excess of 20 feet. Both hands of the employee are free to hold or to brake the fall in the event of slip.   Such circumstances do not indicate a "substantial probability" of death or serious physical harm. Considering the type of exposure, the fact the lanyard if attached to the cables, the degree of possibility of fall, it [*16]   must be concluded that the Secretary has not shown that there was "substantial probability that death or serious physical harm could. . ." result from attaching the lanyard to the boom cables.

The appropriate penalty, if any, must be considered in the light of the size of the business, gravity of the violation, good faith and history of previous violations.   The reasoning applicable to whether a serious violation existed applies equally as well to the gravity of the violation.   It is concluded that the gravity of the violation is low.   Respondent's good faith is reflected in that it had established safety procedures and furnished appropriate equipment.   The record shows that the Secretary allowed the maximum for good faith, size and history of previous violations.   When the overall record is considered in the light of the specific charge set forth in the citation and complaint, it is concluded that no penalty should be assessed.   The foregoing is dispositive of Respondent's motion for a directed verdict.   Respondent's motion is denied.

  DECISION

Respondent committed a violation not of a serious nature by its failure to conform with the requirements of 29 CFR Section 1926.28(a)   [*17]   in that lanyards were not attached to a lifeline or substantial object, but when the gravity of the violation, Respondent's size, good faith and history of previous violations are considered, no penalty shall be assessed.

IT IS ORDERED THAT:

Respondent was in violation of Section 29 CFR 1926.28(a) for failure to have employees' lanyards attached to a safety line or substantial object, but no penalty shall be assessed against the Respondent.