Docket No. 78-2923

VICON CORPORATION

OSHRC Docket No. 78-2923

Occupational Safety and Health Review Commission

October 30, 1981

[*1]

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, USDOL

I. John Rossi, for the employer

OPINION:

DECISION

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). A decision of Administrative Law Judge Vernon Riehl is before the Commission for review under section 12(j) of the Act, 29 U.S.C. § 661(i). In his decision, Judge Riehl concluded that Respondent, Vicon Corporation, committed serious violations of the Act in that it failed to comply with the standards at 29 C.F.R. § § 1926.28(a) n1 and 1926.105(a) n2 by not providing adequate fall protection for specified employees. In response to the petition for discretionary review filed by Respondent, Commissioner Cottine directed review on all of the issues raised in the petition, expressly including the following (footnote added):

(1) Whether the judge erred in finding the Respondent in noncompliance with both 29 CFR § 1926.28(a) and 29 CFR § 1926.105(a).

(2) Whether 29 CFR § 1926.700(b)(1) n3 is more specifically applicable to the allegedly violative condition.

(3) Whether the Respondent [*2] was in compliance with the requirements of 29 CFR § 1926.700(b)(1).

In addition to directing review on the issues raised in the petition, Commissioner Cottine also directed review on the following issues (footnote added):

(4) Whether the judge erred in amending the citation and complaint to allege violations of both 29 CFR § 1926.28(a) and 29 CFR § 1926.105(a).

(5) If 29 CFR § 1926.700(b)(1) is applicable, whether the pleadings should be amended under Fed. R. Civ. P. 15(b) n4 to allege a violation of that standard.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The standard provides:

Subpart C - General Safety and Health Provisions

* * *

§ 1926.28 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.

n2 The standard reads:

Subpart E - Personal Protective and Life Saving Equipment

* * *

§ 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.

n3 The standard provides:

Subpart Q - Concrete, Concrete Forms, and Shoring

§ 1926.700 General provisions.

* * *

(b) Reinforcing steel. (1) Employees working more than 6 feet above any adjacent working surfaces, placing and tying reinforcing steel in walls, piers, columns, etc., shall be provided with a safety belt, or equivalent device, in accordance with Subpart E of this part.

n4 Rule 15(b) of the Federal Rules of Civil Procedure reads, in pertinent part:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.

[*3]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

For the reasons stated in this decision, we determine that section 1926.700(b)(1) is the standard that is more specifically applicable to the circumstances constituting the alleged violation, and we conclude that it is appropriate to amend the citation and complaint to allege only noncompliance with section 1926.700(b)(1). We further conclude that Respondent committed a serious violation of the Act in failing to comply with section 1926.700(b)(1). We thus modify the judge's decision accordingly.

On April 20, 1978, the date of the alleged violation, Respondent was a subcontractor at the Cannon Dam Project in Center, Missouri. During the afternoon, a crew of seven employees of Respondent, including their foreman, Jerry Mikel, were installing steel rebars in the power house location at bulkhead area K18F. Vertical rebars previously had been set in poured concrete, and the crew was engaged in tying horizontal rebars onto these vertical rebars. This task involved lifting the steel bars, landed by a crane at the employees' feet, into position and tying the bars with wire.

While installing the [*4] lower rebars, the crew stood on a scaffold that was approximately 24 inches wide and equipped with a 42-inch high guardrail. However, approximately ninety percent of the work was performed from a narrow plank, 12 to 18 inches wide, that was located above the scaffold. While the plank on which the crew members stood was 5-1/2 to 6-1/2 feet above the scaffold platform and 2 to 3 feet above the top of the scaffold's guardrail, the crew was working 45 to 50 feet above the bulkhead area floor. n5

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 We reject Respondent's argument on review that Judge Riehl erred in finding that the scaffold platform was 5-1/2 to 6-1/2 feet below the plank. In his decision, the judge relied on the testimony of Respondent's foreman, which he expressly credited, and the photographic exhibits in the case as the bases for his determination that this was the distance between the scaffold platform and the plank. Under these circumstances, we defer to the judge. See C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1977-78 CCH OSHD P22,481 (No. 14249, 1978).

- - - - - - - - - - - - - - - - -End Footnotes- - - [*5] - - - - - - - - - - - - - -

Frank Schuman, the compliance officer for the Occupational Safety and Health Administration ("OSHA") who inspected Respondent's worksite, testified as to the probable results of a fall from the plank at issue. According to Schuman, an employee who fell from the plank either straight backwards or sideways with any force would go over the scaffold's railing to the floor of the bulkhead area; only if an employee jumped straight down from the plank or fell sideways without much force would the employee land on the scaffold platform.

On April 20, some of the seven crew members wore safety belts while engaged in the rebar work, but others, including foreman Mikel, did not. However, none of the crew members were tied off. Moreover, Respondent's employees had performed this type of work on several days prior to April 20 and they had not worn tied-off safety belts on those occasions either. At the hearing, crew foreman Mikel and crew member Harlan Romig both testified that Tommy Wright, Respondent's general foreman, had observed Mikel's crew working without safety belts several times a day, but Wright had never stated that the employees should wear tied-off [*6] safety belts.

Late in the afternoon on April 20, Robert Estes, Respondent's employee, joined Mikel's crew to assist in tying the horizontal rebars. While standing on the narrow plank above the scaffold and preparing to make a tie, Estes fell backwards. He was not wearing a safety belt, and the scaffold did not break his fall. Instead, the back of Estes' heels hit the top of the scaffold's guardrail as he fell 45 to 50 feet to the floor below. Estes subsequently died as a result of his injuries caused by the fall.

As a result of Schuman's investigation of this fatality, the Secretary of Labor ("the Secretary") issued Respondent a citation alleging a serious violation of the Act for failure to comply with section 1926.28(a) in that Respondent's employees were exposed to a hazard due to their failure to use personal protective equipment while standing on a plank and installing rebar approximately 50 feet above the bulkhead area floor. During the hearing, the Secretary moved to amend the citation and complaint to conform to the evidence, in accordance with Fed. R. Civ. P. 15(b), to allege, alternatively, noncompliance with section 1926.105(a) in the event of a determination [*7] that the use of safety belts would have been impossible. Judge Riehl granted the motion to amend and the hearing continued.

After the Secretary had presented his case, Respondent moved to amend its answer to include the affirmative defense that it was in compliance with what it considered to be the more specifically applicable standard -- section 1926.700(b)(1) -- and that, pursuant to 29 C.F.R. § 1910.5(c)(1), n6 it therefore could not be cited under another, more general standard. After the judge permitted this amendment, Respondent moved to dismiss the citation on the ground that the evidence established that it had provided a catch platform, which, under section 1926.105(a), can be used by an employer in lieu of safety belts or nets or any other fall protection device. The judge denied the motion, and Respondent proceeded to present its case.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n6 Section 1910.5(c)(1) reads, in pertinent part, as follows:

If a particular standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any different general standard which might otherwise be applicable to the same condition, practice, means, method, operation, or process.

[*8]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In his post-hearing brief, the Secretary moved to amend the citation and complaint pursuant to Fed. R. Civ. P. 15(b) to allege, in the alternative, noncompliance with section 1926.700(b)(1).

In his decision, Judge Riehl concluded that Respondent had not complied with section 1926.28(a) because Respondent's employees were working in hazardous conditions 45 or 50 feet above the ground and they either were not wearing safety belts or had not tied off safety belts that were worn. He determined that the crew members could have used "the ironworkers' belt to tie off either in front of them or behind them with a lifeline or they could have used a belt with a lanyard and given proper training there would be no fall hazard." He also found that Respondent could have protected its employees by using a safety net or by attaching stanchions or vertical supports up from the guardrail on the scaffold platform, with netting or wire mesh strung between the supports. Stating that Respondent had shown at most only that safety belts were inconvenient or impractical, conditions that do not constitute defenses to a [*9] citation, Judge Riehl rejected Respondent's affirmative defenses of "impracticability" and impossibility of compliance. The judge also rejected Respondent's affirmative defense that the use of safety belts would have posed a greater hazard to employees.

Judge Riehl further concluded that Respondent failed to comply with section 1926.105(a) in that it did not provide any means of fall protection even though it could have used a safety net to protect the employees. The judge rejected Respondent's contention that the scaffold platform located below the workers was a "catch platform" on the ground that the scaffold platform was not on the same horizontal plane as the narrow plank on which the employees were standing but rather was 5-1/2 to 6-1/2 feet beneath the plank. The judge also rejected Respondent's contention that the cited conditions are governed by section 1926.700(b)(1) because, in his view, "a violation of 1926.105(a) would be a violation of 1926.700(b)(1)."

Judge Riehl concluded that Respondent's noncompliance with sections 1926.28(a) and 1926.105(a) constituted serious violations of the Act. The judge assessed a penalty of $450 for what he deemed to be two violations. [*10] On review, the parties essentially reassert the positions they took before the judge.

III

The key issue on review is which OSHA standard more specifically applies to the allegedly violative condition in this case. Respondent reasserts on review the affirmative defense that it complied with what it considered to be the only applicable standard -- section 1926.700(b)(1) -- and, therefore, under section 1910.5(c)(1), note 6 supra, it could not be held in violation of either of the more general safety standards -- section 1926.28(a) or section 1926.105(a). The Secretary states on review that either section 1926.700(b)(1) or sections 1926.28(a) and 1926.105(a) would apply to the facts of this case. He implicitly argues that the citation can be sustained regardless of which standard or standards are specified.

We agree with Respondent's contention that the cited conditions are governed by 29 C.F.R. § 1926.700(b)(1). The record establishes that Respondent's employees were engaged in concrete construction, an activity covered by 29 C.F.R. Part 1926, Subpart Q, which includes section 1926.700(b)(1). Moreover, it is undisputed that the employees were "placing and tying reinforcing [*11] steel" within the meaning of section 1926.700(b)(1). We conclude, for the reasons stated in part V of this decision, that the employees were "working more than 6 feet above any adjacent working surfaces" within the meaning of that standard. Accordingly, we further conclude that section 1926.700(b)(1) is more specifically applicable to the cited working conditions. Therefore, pursuant to 29 C.F.R. § 1910.5(c)(1), section 1926.700(b)(1) "prevail[s] over any different general standard which might otherwise be applicable," including the general personal protective equipment standard at 29 C.F.R. § 1926.28(a) and the general fall protection standard at 29 C.F.R. § 1926.105(a). n7

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n7 We do not agree with the judge's conclusion to the effect that it is unimportant whether the citation alleges noncompliance with § 1926.700(b)(1) or § 1926.105(a) because "a violation of 1926.105(a) would be a violation of 1926.700(b)(1)." The judge correctly notes that § 1926.700(b)(1) refers the reader to Subpart E of 29 C.F.R. Part 1926 and that § 1926.105(a) is a relevant standard in Subpart E. However, § 1926.105(a) is not incorporated by reference into § 1926.700(b)(1).

[*12]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Having determined that section 1926.700(b)(1) is the more specifically applicable standard, we now must decide whether amendment of the citation and complaint to allege noncompliance with that standard would be appropriate in this case. Respondent contends on review that amendment at this time to allege noncompliance with section 1926.700(b)(1) would exceed the six-month statute of limitations for issuing citations under section 9(c) of the Act, 29 U.S.C. § 658(c). Respondent asserts that the Commission would act unfairly if it amended because the Secretary chose not to cite Respondent for noncompliance with section 1926.700(b)(1) and declined to move to amend to allege noncompliance with section 1926.700(b)(1) prior to his brief on review. n8

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n8 As indicated previously, the record establishes, contrary to Respondent's assertion, that the Secretary first moved to amend to allege noncompliance with § 1926.700(b)(1) in his post-hearing brief.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - [*13] - - - - - -

The Commission has held that section 9(c) of the Act proscribes the issuance, not the amendment, of a citation more than six months after the occurrence of an alleged violation. CMH Co., 80 OSAHRC 115/D6, 9 BNA OSHC 1048, 1980 CCH OSHD P24,967 (No. 78-5954, 1980). An amendment to a claim arising out of conduct described in the original pleadings relates back to the date of those pleadings. Fed. R. Civ. P. 15(c); Structural Painting Corp., 79 OSAHRC 70/A12, 7 BNA OSHC 1682, 1979 CCH OSHD P23,817 (No. 15450, 1979). Therefore, amendment to the citation in the instant case would not exceed the statutory time limitation.

At the hearing in the instant case, neither party objected to the introduction of evidence on the unpleaded issue of noncompliance with section 1926.700(b)(1). Indeed, Respondent's own counsel questioned witnesses as to whether Respondent's operation consisted of concrete construction and, later in the hearing, was the first to introduce the issue of compliance with section 1926.700(b)(1) in the form of its affirmative defense in its amended answer. In addition, Respondent sought to establish a factual foundation for its contention that under [*14] section 1926.700(b)(1) no fall protection was required by attempting to prove that the scaffold was less than 6 feet below the plank at issue. See Mineral Industries & Heavy Construction Group, Brown & Root, Inc. v. OSHRC, 639 F.2d 1289 (5th Cir. 1981) (by raising defense relevant to unpleaded issue, employer impliedly consented to trial of that issue).

We conclude that an amendment in no way would prejudice Respondent in the presentation of its primary defense, i.e., that it provided a "catch platform," or its affirmative defenses of impossibility, impracticality, and greater hazard. Each of these defenses is equally relevant to the pleaded and the unpleaded charges. We conclude that no additional evidence could have been presented by Respondent if the case had been tried below on the unpleaded theory, i.e., noncompliance with section 1926.700(b)(1), noting particularly that Respondent amended its answer to specifically allege compliance with section 1926.700(b)(1) prior to the presentation of its case. We therefore conclude that an alleged violation of section 1926.700(b)(1) has been tried by the implied consent of the parties and accordingly amend the citation [*15] and complaint under Fed. R. Civ. P. 15(b) to allege noncompliance with section 1926.700(b)(1) in lieu of section 1926.28(a) or section 1926.105(a) n9 See Bill C. Carroll Co., 79 OSAHRC 87/C13, 7 BNA OSHC 1806, 1979 CCH OSHD P23,940 (No. 76-2748, 1979).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n9 In light of our disposition, we need not reach issues (1) and (4) as stated in the direction for review and reiterated at the beginning of this decision.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

We now consider whether Respondent failed to comply with section 1926.700(b)(1). We conclude that Respondent had a duty to comply with section 1926.700(b)(1) even if the scaffold platform was less than 6 feet below the plank because employees on the plank worked at a height more than 6 feet above another "adjacent working surface" within the meaning of the standard -- the concrete floor onto which one employee fell. The clear meaning of the standard is that employees must be protected from a fall hazard, either by "a safety belt, or equivalent device" or by a working surface no more than 6 feet below [*16] them. In the instant case, the 24-inch wide scaffold platform did not prevent Estes from falling 45 to 50 feet to the bulkhead area floor. It also did not provide adequate protection to the other members of Mikel's crew. Therefore, Respondent was required to protect the employees with safety belts or equivalent devices.

Respondent's argument that it complied with the standard by providing a catch platform even though the platform did not provide adequate protection against the fall hazard is not persuasive. The Commission has rejected the interpretation of section 1926.105(a) set forth in Brennan v. OSHRC (Ron M. Fiegen, Inc.), 513 F.2d 713 (8th Cir. 1975), and advocated by Respondent in this case, and has held that compliance with section 1926.105(a) cannot be accomplished merely by an employer's use of one of the devices listed in that section without regard to whether such use affords adequate fall protection to its employees. National Industrial Constructors, Inc., 81 OSAHRC 46/C2, 9 BNA OSHC 1871, 1981 CCH OSHD P25,404 (Nos. 76-891 & 76-1535, 1981). This holding also applies in interpreting the term "equivalent device" in section 1926.700(b)(1). Therefore, because [*17] the scaffold here did not provide adequate fall protection, it cannot be considered an "equivalent device." Because the record establishes that no other fall protection devices were in use, we conclude that Respondent failed to comply with section 1926.700(b)(1). We affirm the judge's rejection of Respondent's affirmative defenses. n10

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n10 To prove the affirmative defense of impossibility, an employer must show that (1) compliance with the requirements of the cited standard would have been functionally impossible or would have precluded performance of required work, and (2) alternative means of employee protection were unavailable. Frank Swidzinski Co., 81 OSAHRC 4/E14, 9 BNA OSHC 1230, 1981 CCH OSHD P25,129 (No. 76-4627, 1981). If an alternative method of protecting employees was available, the employer must establish that it was being used. See Morgan & Culpepper, Inc., 81 OSAHRC 26/A2, 9 BNA OSHC 1533, 1981 CCH OSHD P25,293 (No. 9850, 1981), appeal docketed, No. 81-4203 (5th Cir. May 29, 1981).

We reject Respondent's affirmative defense that use of fall protection devices was impossible based on the judge's factual findings and the legal principles set forth above. We affirm Judge Riehl's rejection of Respondent's impracticality and greater hazard defenses for the reasons stated in his decision.

[*18]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

We conclude that the violation was serious. As evidenced by the fatality, there was a substantial probability that death or serious physical harm could result from the violation. Having considered the criteria in section 17(j) of the Act, 29 U.S.C. § 661(i), we assess a penalty of $450.

Accordingly, we set aside the judge's decision and grant the Secretary's motion to amend the citation and complaint to allege a serious violation of the Act for failure to comply with section 1926.700(b)(1) in lieu of section 1926.28(a) or section 1926.105(a). We affirm the citation as amended and assess a penalty of $450.

IT IS SO ORDERED.

CONCURBY: ROWLAND

CONCUR:

ROWLAND, Chairman, concurring:

I concur with the disposition of this case by my colleagues with the one exception of their analysis of the amendment of the citation and complaint to allege noncompliance of § 1926.700(b)(1).

I agree that amendment is proper because I believe that the parties squarely recognized that the unpleaded issue was being tried. As my colleagues noted, Respondent's own counsel elicited testimony on the applicability of § 1926.700(b)(1) to [*19] the cited conditions. Respondent even moved to amend its answer to include the applicability of § 1926.700(b)(1) as an affirmative defense. Since the applicability of § 1926.700(b)(1) was acknowledged and tried by the Respondent, I find the amendment proper for these reasons alone.