STEEL ERECTORS, INC.

OSHRC Docket No. 77-1118

Occupational Safety and Health Review Commission

February 27, 1981

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

George D. Palmer, Assoc. Reg. Sol., USDOL

Malberry Smith, Jr., for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Cecil L. Cutler, Jr. is before the Commission pursuant to section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). Judge Cutler found that Respondent, Steel Erectors, Inc., violated section 5(a)(2) of the Act, 29 U.S.C. 654(a)(2), by failing to comply with the standard at 29 C.F.R. 1926.450(a)(1) in that Respondent did not provide either ladders, permanent or termporary stairways, or suitable ramps or runways to give safe access to an elevated work station. The judge also found that Respondent failed to comply with the standard at 29 C.F.R. 1926.700(b)(2) in that employees worked above vertically protruding reinforcing steel that had not been protected to eliminate the hazard of impalement. Chairman Cleary granted Respondent's petition for review of the judge's decision.

We have reviewed the pertinent portions of the record and have considered the [*2] parties' arguments, which are substantially the same arguments they made before the judge. We conclude that the judge properly found that Respondent failed to comply with 29 C.F.R. 1926.450(a)(1) and 1926.750(b)(2) for the reasons he assigned. See Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD P22,737 (No. 14281, 1977).

Accordingly, the judge's decision is affirmed. SO ORDERED.

CONCURBY: BARNAKO (In Part)

DISSENTBY: BARNAKO (In Part)

DISSENT:

BARNAKO, Commissioner, Concurring in Part and Dissenting in Part:

I concur with the Commission majority that the judge properly found that the Respondent failed to comply with 29 C.F.R. 1926.750(b)(2). However, I dissent from the majority's opinion regarding 29 C.F.R. 1926.450(a)(1) n1 and would vacate the citation for an alleged violation of that standard.

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n1 29 C.F.R. 1926.450(a)(1) provides:

1926.450 Ladders.

(a) General requirements. (1) Except where either permanent or temporary stairways or suitable ramps or runways are provided, ladders described in this subpart shall be used to give safe access to all elevations.

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At the time of the alleged violation, the Respondent's employees were erecting the skeletion steel framework for a multi-level construction project. Two of the Respondent's ironworkers were transporting materials from a crane monorail, which was located on the third level, approximately forty feet above the ground. No ladders were provided to the monorail. However, the Respondent furnished an alternative means of access. A scaffolding stairway connected the second and third levels; and two planks, which were not equipped with guardrails, extended horizontally from the third level landing of the stairway to the work station on the monorail. n2

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n2 Rather than climbing the stairs and crossing the planks to reach the monorail work station, the two ironworkers attempted to scale a vertical column leading directly from the second level to the monorail. While attempting to climb the column, one of the ironworkers fell to his death.

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Since the Respondent had [*4] not supplied access ladders, the Secretary argued that the Respondent had violated 1926.450(a)(1). The Secretary also moved after the trial to amend the citation to allege in the alternative a violation of 1926.451(a)(4) n3 because guardrails were not provided for the "scaffolding platform" connecting the stairway with the monorail work station.

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n3 29 C.F.R. 1926.451(a)(4) provides in pertinent part:

(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, except needle beam scaffolds and floats . . . .

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At trial and on review, the Respondent contended that because it furnished the scaffold stairway in lieu of a ladder, it was within the exception set forth in the first clause of 1926.450(a)(1). The Respondent also argued that the standard alleged in the alternative, 1926.451(a)(4), was inapplicable because the planks were not a "scaffolding platform."

The judge concluded that the Respondent did [*5] not come within the exception to 1926.450(a)(1). The judge reasoned that both the stairway and the planking must be considered in determining whether Respondent had provided appropriate access in lieu of a ladder, and that the Respondent must show that the alternative access was safe. Since the planks were not guarded, the judge concluded that the Respondent had not provided substitute access as contemplated by the exception to 1926.450(a)(1). n4 Finally, the judge denied the amendment to 1926.451(a)(4) as "unnecessary."

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n4 To determine whether the planks were safe, the judge referred to 1926.451(a)(4). According to the judge, 1926.451(a)(4) requires that the planks be equipped with guardrails.

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The plain terms of the exception to 1926.450(a)(1) state that access ladders are not required if "stairways or suitable ramps or runways are provided" (emphasis added). The disjunctive "or" usually indicates separate alternatives. George Hyman Construction Co., 582 F.2d 834, 840 n.10 (4th Cir. 1978). [*6] Cf. S & H Riggers & Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979) (concurring opinion) (disjunctive indicates separate alternatives unless such a construction is contrary to history of the standard or would render a provision superfluous), appeal filed, No. 79-2358 (5th Cir. June 7, 1979). An employer therefore complies with 1926.450(a)(1) if he provides either a stairway, or a ramp, or a runway in lieu of a ladder. Here, the Respondent furnished a scaffolding stairway. There was no evidence that the stairway was unsafe. Accordingly, I would hold that the Respondent came within the exception to 1926.450(a)(1) and would vacate the citation for violation of the cited standard. n5

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n5 Because the standard only requires that the Respondent "provide" a stairway, ramp or runway, it is not relevant that the Respondent's employees did not actually use the stairway. See Kennecott Copper Corp., 76 OSAHRC 81/A2, 4 BNA OSHC 1400, 1976-77 CCH OSHD P20,860 (No. 5958, 1976) aff'd 577 F.2d 1113 (10th Cir. 1977).

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Presumably, the judge focused his inquiry on the planks because he assumed that the planks constituted a "ramp" or a "runway" in lieu of a ladder. Although the standard refers to "ramps" and "runways" as substitutes for a ladder, those terms are not defined. n6 Accordingly, the words "ramp" and "runway" must be given a reasonable, common sense interpretation. See generally Dick Corp., 77 OSAHRC 196/B3, 6 BNA OSHC 1025, 1977-78 CCH OSHD P22,342 (No. 14456, 1977). The reasonable meaning of an undefined term may be determined by reference to terms associated with it. See General Electric Co. v. OSAHRC, 583 F.2d 61 (2d. Cir. 1978). Since the standard specifies that ladders are to provide "access to . . . elevations," it is reasonable to conclude that a "ramp" or a "runway," when furnished in lieu of a ladder, must also provide a vertically inclined mode of ascent between elevations. The planks were not vertically inclined and did not connect different levels of the structure; rather, the planks ran horizontally and connected different points on the same elevation. Therefore, contrary to the judge's [*8] conclusion, the condition of the planks is not a factor to be considered in determining whether the Respondent violated 1926.450(a)(1).

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n6 29 C.F.R. 1926.452 contains the definitions pertaining to 29 C.F.R. 1926.450(a)(1). Neither "ramp" nor "runway" are defined in 29 C.F.R. 1926.452.

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Nor does 1926.451(a)(4), the standard alleged in the alternative, apply to this case. By the plain language of 1926.451(a)(4), the standard pertains to scaffolding platforms. The evidence indicates that the planks were not part of the scaffolding stairway but were merely adjacent to the scaffolding. Moreover, both parties conceded that the planks were used as a passageway to gain access from the stairway to the monorail work station. Therefore, the planks were a "runway," as that term is defined in 1926.502(f), n7 rather than a scaffolding platform. n8 Accordingly, the judge did not err in denying the amendment to 1926.451(a)(4); but he erred in relying on this standard for his holding regarding the 1926.450(a)(1) [*9] violation. See note 4, supra.

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n7 29 C.F.R. 1926.502(f) provides:

1926.502 Definitions applicable to this subpart.

(f) "Runway" - A passageway for persons, elevated above the surrounding floor or ground level, such as a footwalk along shafting or a walkway between buildings.

n8 The Secretary should have alleged a violation of 29 C.F.R. 1926.500(d)(2) for failure of the planks to be equipped with guardrails. That standard requires that "[r]unways shall be guarded by a standard railing, or the equivalent, . . . on all open sides, 4 feet or more above floor or ground level." However, the parties did not try an alleged violation of 1926.500(d)(2) by express or implied consent. The Secretary never alleged a violation of the appropriate standard. Moreover, as I stated in McLean-Behm Steel Erectors, Inc., 78 OSAHRC 93/A9, 6 BNA OSHC 2081, 1978 CCH OSHD P23,139 (No. 15582, 1978) (dissenting opinion), majority opinion rev'd, 608 F.2d 580 (5th Cir. 1979), a Respondent cannot impliedly consent to the trial of an issue where it is not clear that the opposing party is actually attempting to raise another charge. This case was tried on the theory that 1926.450(a)(1) was the applicable standard. Therefore, I would not amend the citation and complaint to allege a violation of 1926.500(d)(2). See D. Fortunato, 79 OSAHRC 69/B12, 7 BNA OSHC 1643, 1979 CCH OSHD P23,781 (No. 76-3103, 1979) (concurring in part and dissenting in part).

[*10]

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In conclusion, I would reverse the judge's order and vacate the citation for violation of 1926.450(a)(1).