BERGLUND-CHERNE GENERAL CONTRACTORS

OSHRC Docket No. 79-4347

Occupational Safety and Health Review Commission

April 30, 1982

[*1]

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

COUNSEL:

Office of the Solicitor, USDOL

Henry C. Mahlman, Associate Regional Solicitor, U.S. Department of Labor

H. R. Cherne, Berglund-Cherne Company, for the employer

OPINION:

DECISION

BY THE COMMISSION:

The issue presented by this case is whether Berglund-Cherne General Contractors ("Berglund-Cherne") committed a serious violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"), by failing to comply with the construction standard published at 29 C.F.R. 1926.700(b)(2). Section 1926.700(b)(2) provides: "Employees shall not be permitted to work above vertically protruding reinforcing steel unless it has been protected to eliminate the hazard of impalement." Following a hearing, Administrative Law Judge Quentin P. McColgin found Berglund-Cherne in violation of this standard and assessed a $360 penalty. Berglund-Cherne petitioned for review of the Judge's decision, and review was directed by former Commissioner Barnako on the following issues:

1. Whether the judge erred in finding Respondent in violation of 29 C.F.R. 1926.700(b)(2) for exposing employees to the hazard of impalement from unprotected [*2] vertically protruding reinforcing steel.

2. Whether the evidence supports the judge's finding that Respondent permitted its employees to work above vertically protruding reinforcing steel as the term "work above" is used in 29 C.F.R. 1926.700(b)(2).

For the reasons stated below, we reverse the judge.

I.

When inspected by compliance officers from the Occupational Safety and Health Administration ("OSHA"), Berglund-Cherne was involved in the construction of a multi-level condominium in Denver, Colorado. On the 12th level of the structure, a compliance officer observed reinforcing steel ("rebar") extending 18 to 24 inches up from the floor level. In the vicinity of the rebar, masonry blocks extended two inches above the floor, presenting a tripping hazard. At least eight employees were seen working on the same level "at the point of and . . . within a foot or two" of the protruding rebar. These employees were carrying construction materials and arranging masonry blocks. According to the compliance officer, an employee could trip over the protruding block and be impaled on the exposed rebar.

The compliance officer testified the hazard could be eliminated by banding the rebars [*3] or by covering their exposed ends. The compliance officer noted that a specially designed plastic cap could be fitted on the exposed end of the rebar to protect against the hazard of impalement. In the compliance officer's opinion, the plastic cap would not prevent Berglund-Cherne's masons from laying block over the rebar. If the block would not fit over the capped rebar, the cap could be removed and then replaced after setting the block in place.

Adolph Weih, Berglund-Cherne's job superintendent, did not dispute the existence of protruding rebar on level 12 or that Berglund-Cherne's employees were working on that level on the day of the inspection. Weih noted that the method of construction employed by Berglund-Cherne in building this structure differed significantly from the method normally employed in such construction. Under the normal method of construction, a superstructure is first erected and then construction is performance the various levels of this structure. Weih indicated that the condominium being constructed was built level by level. According to Weih, it was necessary to expose rebar at each level in order to tie that level together with the level below, thus [*4] ensuring structural integrity. Weih also testified that the workers employed by Berglund-Cherne were experienced in the type of construction being performed.

Weih further testified that, since the rebar was hardened steel, it could not be bent to eliminate the hazard of impalement. Weih indicated that he was not familiar with the use of protective caps to protect against impalement. He conceded that it would be possible to cover the exposed ends of the rebar but noted that, if such a practice were followed, it would be impossible to "carry on the job." According to Weih, if the exposed ends of rebar were covered in the manner suggested by OSHA's compliance officer, it would be necessary to assign a work crew to remove the protective devices prior to laying blocks over the rebar.

Howard Cherne, president and owner of Berglund-Cherne, testified with respect to his company's safety record. He noted that, during the 34 years that Berglund-Cherne had been engaged in general contracting, there had never been a serious employee injury or death. n1 In argument not included in his testimony, Cherne asserted that the rebar on each new level was in place for only two to three hours prior [*5] to being covered with masonry blocks, and that, unless an employee suffered a heart attack and fell on the protruding rebar, it would pose no danger to him.

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n1 The parties also stipulated that Berglund-Cherne had received numerous safety awards and letters of commendation for its concern for employee safety.

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II.

Judge McColgin affirmed a serious violation of the standard contained at section 1926.700(b)(2) based on his finding that Berglund-Cherne's employees were working above unprotected rebar. He also found that the use of plastic protective caps was "a simple and feasible means of complying with the standard." Finding that it would be possible for Berglund-Cherne's employees to lay blocks over the rebar while the protective caps were in place, the judge rejected Berglund-Cherne's affirmative defense of impossibility of performance.

III.

In its petition for review, Berglund-Cherne argued that it did not violate section 1926.700(b)(2) because its employees were not working above protruding rebar. In support [*6] of this argument, the employer asserted that its masons, who were assigned to place blocks over the exposed rebar, worked beside or horizontal to the rebar and, thus, were not exposed to the hazard of impalement. n2

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n2 Berglund-Cherne did not file a brief on review but in a letter argued that the citation should be vacated because Berglund-Cherne has an excellent safety record.

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In his brief on review, the Secretary notes that the existence of protruding rebar was undisputed. In view of this fact, the Secretary argues that the judge's decision should be affirmed since the existence of a hazard is presumed when the terms of a standard are not met. The Secretary contends that, although Berglund-Cherne's employees worked on the same level as the exposed rebar, they were nevertheless exposed to the hazard of impalement because an employee's torso was at a higher level than the exposed rebar. In the Secretary's view, the tripping hazard posed by the protruding masonry blocks increased the potential of impalement. The [*7] Secretary concedes that in Gelco Builders Inc., 77 OSAHRC 203/B14, 6 BNA OSHC 1104, 1977-78 CCH OSHD P22,353 (No. 14505, 1977), and several other cases in which the Commission has affirmed violations of the cited standard, employees worked on levels that were higher than the rebar. Nevertheless, the Secretary submits that there is no language in any of these cases which precludes the application of the standard to employees working on the same level as the rebar, provided that the rebar is situated such that an impalement hazard exists. According to the Secretary, such a reading of section 1926.700(b)(2) would be consistent with the standard's purpose of protecting employees against impalement and likewise would further the Act's objective of providing a safe and healthful working environment.

IV.

This case presents a novel issue requiring interpretation of the term "work above" as this term is used in section 1926.700(b)(2). In prior Commission decisions involving violations cited under this standard, employees typically were working on a level of a construction site higher than the level on which the protruding rebar was located. In those cases the employees were exposed [*8] to potential falls onto the protruding rebar. n3 In this case, employees worked on the same level as the rebar. Although Judge McColgin affirmed a serious violation of the cited standard, he did not discuss or interpret the term "work above." In our view, the employees on level 12 were not working above the rebar in question within the meaning of section 1926.700(b)(2).

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n3 See, e.g., Early-Massman, 79 OSAHRC 55/B5, 7 BNA OSHC 1534, 1979 CCH OSHD P23,732 (15721, 1979) (employee working approximately 10 feet above protruding rebar); Dick Corp., 77 OSAHRC 196/B3, 6 BNA OSHC 1025, 1977-78 CCH OSHD P22,342 (14456, 1977) (employee working 15 feet above protruding rebar); Granite-Groves, A Joint Venture, 76 OSAHRC 28/B12, 5 BNA OSHC 1100, 1977-78 CCH OSHD P21,594 (10677, 1977) (employee working approximately 50 feet above protruding rebar).

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A regulation should be construed to give effect to the natural and plain meaning of its words. Although the Secretary correctly asserts that the Act and standards [*9] adopted under it should be interpreted to provide employees with a safe and healthful working environment, we cannot adopt a strained interpretation of a standard that does violence to the clear and unambiguous terms of the standard. See Bethlehem Steel Corp. v. OSHRC, 573 F.2d 157 (3d Cir. 1978); Beaird Poulan, A Division of Emerson Electric Co., 79 OSAHRC 21/D11, 7 BNA OSHC 1225, 1979 CCH OSHD P23,493 (No. 12600, 1979). In our view, the standard in issue protects employees from the hazard of impalement in circumstances where employees work at a location that is above the level of the protruding rebar. Here, due to the unusual conctruction method employed by Berglund-Cherne, employees on level 12 worked on the same level as and next to the rebar. Based upon these facts, we hold that the employees did not "work above" that rebar within the meaning of section 1926.700(b)(2).

Accordingly, the judge's finding of a violation of 29 C.F.R. 1926.700(b)(2) and imposition of a penalty for the violation are reversed.

SO ORDERED.