SECRETARY OF LABOR,
Complainant,

v.

SKYLINE CRANE SERVICE, INC.,
Respondent.

OSHRC Docket No. 80-1622

ORDER VACATING DIRECTION FOR REVIEW

Before:  BUCKLEY, Chairman; WALL, Commissioner.

BY THE COMMISSION:
On May 26, 1981, Administrative Law Judge Joseph L. Chalk vacated a citation alleging that Skyline Crane Service failed to provide adequate fall protection for its employees engaged in structural steel erection on a project in Fairfax, Virginia.

The central issue on review is whether, at the time of the inspection in 1980, Skyline had fair notice that it was obligated to provide perimeter nets under the general construction industry standard at 29 C.F.R. 1926.105.   Skyline contends that it lacked such notice because the construction standards specifically applicable to steel erection under Subpart R of Part 1926 do not require such protection, and because the Secretary generally was not issuing citations to steel erection employers for lack of perimeter nets.

The Fourth Circuit, where this case arose, has held that Subpart R does not preempt the general standard requiring personal protective equipment to guard against hazards which are not covered by that subpart.  Bristol Steel & Iron Works, Inc. v. OSHRC, 601 F.2d 717 (4th Cir. 1979).  Bristol did not, however, address whether the fall protection requirements in the steel erection standards preempt any obligation of steel erectors to provide perimeter nets under section 1926.105.  After the issuance of the citation here, there have been several decisions in other circuits that have elaborated upon the reasoning in Bristol and specifically concluded that steel erection standards do not preempt any requirement in section 1926.105 to use perimeter nets in circumstances similar to those here.[[1]]  The Secretary has also issued an instruction explicitly stating that during structural steel erection, perimeter fall protection, including perimeter nets, is required under section 1926.105.  The document directs OSHA field personnel to issue citations accordingly.  OSHA Instruction STD 3-3.1 (July 18, 1983), reprinted in 1 BNA OSH Rep. Ref. File 21: 9118 and in 1982-83 CCH Employ.  S. & H. Guide New Developments 12,855.

In view of these developments in the case law and in the Secretary's enforcement policy, the issue of whether a steel erection employer in the Fourth Circuit has fair notice of an obligation to provide perimeter nets for fall protection is in a completely different posture now than it was in 1980.  A decision on whether Skyline had notice of such a requirement when this case arose would not establish whether Skyline, or other steel erection employers, have notice of a need for perimeter nets under the current state of the law.  Since Skyline's construction project has been completed, abatement of the alleged fall hazards is not in controversy.   Under these circumstances, we conclude that review is no longer provident.  See Paschen/Morrison- Knudsen/Kenny, a Joint Venture, 86 OSAHRC , 12 BNA OSHC 1827, 1986 CCH OSHD 27,571 (No. 80-6448, 1986); P & Z Co., 82 OSAHRC 8/C8, 10 BNA OSHC 1427, 1982 CCH OSHD 25,937 (No. 76-431, 1982); A. C. & S., Inc., 76 OSAHRC 93/A2, 4 BNA OSHC 1529, 1976-77 CCH OSHD 20,955 (No. 2229, 1976).

Accordingly, the direction for review is vacated; the judge's decision is the final order of the Commission.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  April 16, 1987


SECRETARY OF LABOR,
Complainant,

v.

SKYLINE CRANE SERVICE, INC.,

Respondent.

OSHRC DOCKET NO. 80-1622
& 80-3694 (consolidated)

APPEARANCES

Arthur J. Amchan, Esq.
For Complainant

James Brent Clark, Jr., Esq.
David R. Clarke, Esq.
For Respondent

DECISION AND ORDER

Chalk, Judge:

These charges emanated from an inspection of Respondent's worksite in Fairfax, Virginia, conducted between January 22, 1980 and March 6, 1980, in Docket Number 80-1622, and between May 15, 1980 and May 21, 1980, in Docket Number 80-3694.

In Docket Number 80-1622, Complainant withdrew items 1 and 3 and Subitem 7(b) of Citation number 1 for serious violations at the beginning of the hearing.  He also withdrew item 1 of Citation number 3 for other than serious violations in the same docket. Accordingly, remaining in issue in this docket at the hearing were the remaining items of Citation number 1 for serious violations, Citation number 2 for willful violation, and the remaining items of Citation number 3 for other than serious violations, all alleging violations of 29 U.S.C. 654(a)(2) as follows:

Citation number 1 (Serious)
Item 2 - 29 CFR 1926.302(b)(7)[[1/]]

Hose(s) exceeding 1/2-inch inside diameter, supplying pneumatic power tools, did not have a safety device at the source of supply or branch line to reduce pressure in case of hose failure:

(a) Tower level phase #2 near K Column, line 3&4 - a Sullair Air Compressor, Serial #35794JGG, was supplying air through a 3/4 inch inside diameter hose to a torque wrench, on 1/24/80 to 2/19/80.

Item 4 - 29 CFR 1926.550(a)(16)[[2/]]

Modifications or additions which affected the capacity or safe operation of the equipment were made without the manufacturer's written approval:

(a) Fairfax Detention parking lot - P & H Mobile Truck Crane, Model #565ATC, Serial #22664, was operating with an extra counter weight installed on it, on 1/29/80.

Item 5 - 29 CFR 1926.550(b)(2)[[3/]]

Section 5-1.9.1(c)  American National Standards Institute, B30.5- 1968, Safety Code for Crawler, Locomotive and Truck Cranes as adopted by 29 CFR 1926.550(b)(2):   Automatic means were not provided to stop the boom drum motion when the maximum permissible boom angle is reached:

(a) Fairfax Detention parking lot - a 40 ton P & H Mobile Truck Crane, Model #565ATC, Serial #22664, was raising steel eye beams into place, on 1/29/80.

Item 6 - 29 CFR 1926.700(b)(2)[[4/]]

Employee(s) were permitted to work above vertically protruding reinforcing steel which had not been protected to eliminate the hazard of impalement:
(a) 5th floor, south end of the east side of the building - employees were setting steel directly over the unprotected steel rod ends that were protruding 18 inches above the concrete beam at 7 line between M&L, on 2/5/80.
(b) 6th floor, south end of the east side of the building - employees were setting steel directly over the unprotected steel rod ends that were protruding 18 inches above the concrete beam at 7 line between M&L, on 2/13/80.

Item 7(a) - 29 CFR 1926.750(b)(1)(ii)[[5/]]

On tiered buildings or structures not adaptable to temporary flooring and where scaffolds were not used, safety nets were not installed and maintained where the fall distance exceeded two stories or 25 feet:

(a) At the 5th floor, sequence #10 - employees were exposed to falling approximately 73 feet while welding on a beam over an area where there were no nets, on 2/12/80.

Citation Number 2 (Willful)

Item 1 - 29 CFR 1926.105(c)(1)[[6/]] and 105(a)[[7/]]

29 CFR 1926.105(c)(1) Nets did not extend 8 feet beyond the edge of the work surface where employees were exposed to falls and were not installed as close under the work surfaces as practical, but in no case more than 25 feet below such surfaces, at the following locations:

OR IN THE ALTERNATIVE

29 CFR 1926.105(a):  Employee(s) were not protected against falls over the edge of the work surface of more than 25 feet by the use of safety nets, ladders, scaffolds, catch platforms, temporary floors, safety lines, safety belts, or other appropriate personal protective equipment:

(a) 3rd floor, southeast corner of the building - employees were exposed to falling approximately 45 feet, on 1/29/80.
(b) Plaza #2, 4th Floor, Column M -employees exposed to falling approximately 63 feet 6 inches, on 2/5/80.
(c) Between 4th and 5th floors, southwest end of the building - employees were exposed to falling approximately 80 feet, on 2/13/80.
(d) 6th floor, Judges Tower - employees were exposed to falling approximately 80 to 90 feet, on 2/13/80.
(e) 6th floor, Judges Tower - employees were exposed to falling approximately 95 feet, on 2/19/80.
(f) Judges Tower, second level, north side - employees were exposed to falling approximately 35 feet to the ground, on 2/23/80.

Citation Number 3 (Nonserious)

Item 2a - 29 CFR 1926.550(b)(2)[[8/]]
Section 5-1.8.2.(b)  American National Standards Institute, B30.5-1968, Safety Code for Crawler, Locomotives, and Truck Cranes, as adopted by 29 CFR 1926.550(b)(2):   Where platforms were too narrow to use guardrails, hand holds were not provided at convenient points above the platform:

(a) Fairfax Detention parking lot - a P&H Mobile Truck Crane, Model #565ATC, Serial #22664, was operating with a 12 inch wide platform, while raising steel eye beams, on 1/29/80.

Item 2b - 29 CFR 1926.550(a)(13)(iii)[[9/]]

Platforms and walkways on crane(s) did
not have anti-skid surfaces:

(a) Fairfax Detention parking lot -a P&H Mobile Truck Crane, Model #565ATC, Serial #22664, had a 2 inch by 10 inch plain woodboard walkway installed on it, on 1/29/80.

In his post-hearing brief, however, Complainant now moves for leave to withdraw these two subitems based upon his judgment that the evidence is insufficient.  Complainant's motion is hereby granted.

Penalties of $720 each were proposed for the foregoing items of Citation number 1, except that a single penalty of $640 was proposed for Item 7a and b and 7b has been withdrawn.  A penalty of $6,400 was proposed for Citation number 2.

In Docket Number 80-3694, Respondent was charged with a serious violation of 29 U.S.C.654(a) (2) by not complying with 29 CFR 1926.100(a)[[10/]] in the following manner:

Employee(s) working where there was a possible danger of head injuries were not protected by protective helmets
(a) Second floor of the Steel Erection Area - Head protection was not provided for welders, on 5/15/80.

A penalty of $300 was proposed for this charge.

I

Docket Number 80-1622

A
Citation Number 1 (Serious)

Item 2
During the course of his inspection of the worksite between January 22, 1980 and February 29, 1980, the compliance officer, James R. Sullivan,[[11/]] frequently observed one of Respondent's employees, assisted by another, on various levels of the structure using a pneumatic torque wrench powered by about 125 pounds of compressed air supplied by an air compressor through a series of connected hoses three-quarters of an inch in diameter.   The other employee was standing about six or seven feet behind the operator either holding or dragging the hose, as the situation required.

Upon first observing this operation on January 24, 1980, and after noting that the compressor did not have a safety valve on the discharge end "where the hose and the compressor come together" that would automatically shut off the compressed air in the event of a break in a hose or hose connection, Sullivan informed Respondent's foreman of the condition (Tr.115).  The foreman promised to check into it; however, the employee continued to use the equipment on subsequent days and Sullivan never observed the installation of a safety valve at the connecting point.

In the event a hose came apart and there was no safety valve on the compressor, the pressure on the hose that would cause it to "whip around" with the possibility of striking one of the employees in the head, causing a concussion, or knocking him off a high level to the ground below, either of which could result in serious bodily injury   (Tr. 116).

Richard McSpadden, Respondent's president, accompanied by Respondent's counsel, observed the air compressor on the morning of January 16, 1981, before the hearing in the case reconvened that day.  According to him, the compressor was in the exact same condition it was in when observed by Sullivan, except for the addition of two new safety valves recently installed on the two discharge ends of the pipe to which two separate hoses could be attached.  In the process of installing these new valves, however, it was discovered that the compressor already had a safety valve installed by the manufacturer on the main discharge line behind where the line branched off into the two discharge ends to allow for the two connections (Exh. R-3).   This valve was on the compressor when it was purchased and was thus on there when observed by Sullivan.  As it was on the main discharge line behind the point where it branched into the two discharge ends, it would cut off the flow of compressed air in the event of a failure of either of the two separate hose lines that could be attached to the compressor simultaneously.  It therefore served the same purpose as would two separate safety valves attached to each of the two discharge ends.

McSpadden had this safety valve removed and brought it to the hearing.  Although it was not offered in evidence, it was examined by Complainant's representatives.  Complainant thereafter stipulated that it was in fact a safety valve, although Complainant declined to further stipulate that it was on the compressor when Sullivan saw the compressor during the inspection.

Item 4
During his inspection on January 29, 1980, Sullivan noted that an extra counterweight had been installed on top of the counterweight originally installed by the manufacturer on a mobile truck crane used by Respondent at the worksite and that Respondent had no written approval by the manufacturer to make this modification to the crane  (Exhs. C-47, C-48).  He described this addition as a "box ... and a bunch of reinforced steel . . . laid inside of it"  (Tr. 126).  The crane, used to lift columns and beams to the upper levels of the structure, had a 40 ton capacity but Sullivan did not know the weights of the material lifted by it nor did he know whether the lifts exceeded the crane's capacity.  He believed, however, that the added weight might have caused the crane to tip over in the event excessive weights were lifted.  If the crane were to tip over, he thought the crane operator or other employees on the structure or in the area could have sustained death or serious bodily injury.

Eric Traulsen, erection superintendent for a Connecticut based structural steel fabrication and erection firm, who had been engaged in steel erection since 1953 and had 20 years' experience with such cranes, although he had never operated one, testified that the only reason to add a weight would be "for added boom and working over the capacity of the crane"  (Tr. 387-388).   Such a modification, according to him, would "definitely" affect the safe operation of the crane (Tr. 389).  As an example, he said that the outriggers were designed for a 40 ton crane and that the added weight might cause one or more of them to collapse, with the result that the crane would topple over.  He did not visit the worksite or see the crane.

On cross-examination, Traulsen testified that if the crane was actually a 60 ton capacity crane, it would "definitely" affect his opinion (Tr. 394).

McSpadden admitted that Respondent had added the counterweight and had not obtained the approval of the manufacturer.  He said, however, that the weight was added to gain stability, conceding at the same time that it would increase the capacity of the crane.  He also said that the crane was larger than a 40 ton crane, although he did not specify its exact capacity, and had been designed for a 200 foot boom.  Respondent did not, however, use that size boom at the worksite; and McSpadden did not believe that Respondent even owned such a boom.   Respondent had also used a different 40 ton crane at the worksite at other times without incident and the crane involved in these charges was never used to lift anything heavier than was lifted by the smaller crane.

Item 5

Sullivan noted that the same crane involved in item 4 lacked an automatic boom stop, a device that automatically disengages the "motor drive clutch from the boom so that it will stop" when it reaches the maximum permissible boom angle during a lift (Tr. 129). Without such mechanism, the boom "could automatically go over backwards and fall down on the crane"  (Tr. 128).

In Sullivan's opinion, if such an accident occurred, any employee "on the ground in the way" could be killed or suffer serious bodily injury (Tr. 129).  Although Sullivan mentioned this deficiency to one of the "officers of the company," nothing was done about it and the crane remained in use  (Tr. 130).

At the time of the inspection, Sullivan was aware that the crane was an old one and "wouldn't disagree that it might very well have been manufactured about "59 or "60" (Tr. 371).

McSpadden conceded that the crane was not equipped with the device in question.  He explained that the crane was built no later than 1959, the year the manufacturer stopped making them, that the device was not included in "the original design of that crane," and that the manufacturer never subsequently designed one that could be installed on the crane  (Tr. 601-602).

Item 6
Subitem (a)

On February 5, 1980, Sullivan observed two of Respondent's connectors working on the fourth floor without fall protection, one of whom could have fallen some 62 to 63 feet below on vertically protruding reinforcing steel rods that were sticking up out of concrete (Exhs. C-15, C-17).[[12/]]  Sullivan was of the opinion that the rods could have pierced an employee's body if he fell on them from that height.  He said that the hazard subjecting an employee to death or serious injury could have been abated simply by bending the rods over.

When Sullivan pointed out the hazard to Respondent's foreman, William Zipfel, the latter expressed the opinion that it would make no difference whether or not an employee fell on the protruding rods if he fell from that height.  Zipfel then added that "he had no control over the [rods] anyway" (Tr. 133).

Subitem (b)
On February 13, 1980, Sullivan observed an employee of Respondent working without fall protection over the same steel rods involved in subitem (a) above, only this employee was at the sixth floor level at the time.  He stated that his opinion of possible injuries was the same as he expressed under subitem (a).

Compliance Officer John Wiseman,[[13/]] who was present at the worksite that date, also observed the alleged hazard and believed that anyone who fell from that height onto steel rods "had a good chance" of being killed (Tr. 466).

Item 7
Subitem (a)
On February 12, 1980, Sullivan, accompanied by Wiseman, observed a welder working on the fifth floor who was subjected to about a 70 foot fall within the structure because he was not wearing a safety belt tied off and there was no net installed under him to catch him if he fell.  Although Sullivan testified that it was "an odd shaped area that was too small at the time to cover with a net," he believed that it could have been netted by using a standard size net overlapped to take up the excess (Tr. 139).

Zipfel, who was present at the time, told Sullivan that because the area was so small and hard to net, he "just left the man up there" (Tr. 138).  When Sullivan asked him why the employee was not tied off, Zipfel replied that the employee should have been tied off and that he would speak to him about it.

Both Zipfel and McSpadden informed Sullivan at times during the inspection that Respondent had difficulty enforcing Respondent's tie off rule.

Wiseman concurred with Sullivan's testimony relating to this charge and expressed his opinion that the area could have been easily netted.

B

Citation Number 2 (Willful)

Subitem 1(a)
On January 29, 1980, Sullivan observed two of Respondent's connectors standing on beams on the second floor level of the exterior edge of the structure, about 30 feet above the ground level, preparing to connect a column being raised at the time by a crane. Zipfel was on the ground directing the crane and the operation.  After the column was connected and the crane cable was removed, the connectors climbed to the third floor level, about 46-1/2 feet above the ground, where they similarly received and connected a beam between the two columns they had just erected (Exhs. C-1 through C-8).   According to Sullivan, these employees were working without any fall protection to the outside of the structure; they should either have been tied off or perimeter nets should have been installed on the "outside" of the structure (Tr. 50).[[14/]]   Sullivan was of the opinion that a fall from either height could have resulted in death or serious injury.

On cross-examination, Sullivan expressed the opinion that connectors should be tied off when they receive steel being lifted by a crane and that it was not hazardous to do so.

Wiseman, on the other hand, testified that he would not cite connectors for not tying off under these circumstances because it was dangerous to do so.  The danger, according to him, arises from the fact that the steel being lifted by the crane might get out of control and the connectors, if tied off, might not be able to avoid being struck by the steel.

Regarding the testimonial conflict between Sullivan and Wiseman on whether connectors should be tied off, McSpadden agreed with Wiseman that it was dangerous for connectors to tie off when receiving and connecting steel.  He also included bolters in his opinion because bolters are normally "right on the heels of the connectors" (Tr. 929).

McSpadden, also referring to Exhibit C-11, said that it was impossible to string nets, either interior or exterior, on these columns because they were the first ones erected from the ground up and the cross beams had not yet been installed.  If nets had been strung to these columns the beams would not have gone in and the structure could not have been plumbed.  He also said that it was impossible to string a cable on the columns to which safety belts could be tied off for the same reason.

Subitem 1(b)
On February 5, 1980, Sullivan observed two of Respondent's connectors connecting beams to columns at the edge of the structure at the fourth floor level, about 62 feet above the ground and in some instances above steel reinforcing rods, who were not protected from falls to the outside of the structure (Exhs. C-9 through C-18).[[15/]]  They were, however, protected by a net from falls within the structure.  Sullivan, Wiseman and McSpadden testified that everything they said concerning subitem 1(a) above was equally applicable to this subitem.

Subitem 1(c)
On February 13, 1980, Sullivan, accompanied by Wiseman, observed two of Respondent's connectors between the fourth and fifth floor levels of the structure and at its edge, about 73 feet above the ground, positioning a tube held by the crane preparatory to welding the tube in place (Exhs. C-19 through C-23).  Zipfel was directing the operation from the ground.  Although both of the employees were wearing safety belts, neither was tied off at the time, nor were they tied off when they previously climbed down to that point from the fifth floor level.  There was also no perimeter net on the outside of the building.  When one of them left, the other started to weld the tube in place.  At this time, the one welding had his lanyard laid over a beam but not connected "as far as we could see" (Tr. 347; Exh. C-21).  Sullivan claimed that the employee later admitted to him that he was not tied off.

Wiseman testified that there was nothing to protect the two connectors if they fell to the outside of the building.  Agreeing in all respects with what Sullivan said, he too said that the one connector just had his lanyard laying across the beam above him.

Zipfel testified that when Sullivan pointed out the connector who was welding and said that he was not tied off, he (Zipfel) told Sullivan he was tied off.  Moreover, when the connector came down and Sullivan asked him why he was not tied off, the connector said he was tied off.  Then

. . we got in a heated argument because [the employee] was disturbed because he knew he was tied off and Mr. Sullivan pretty well, pointedly pointed out that he wasn't.  (Tr. 936)
After examining Exhibit C-19, McSpadden agreed that the employee welding could have fallen to the outside of the building. However, he said that it would take several hours to install an exterior net and the employees installing it would be exposed to a fall.

Subitems 1(d) and (e)
Both subitems involve alleged employee exposure to falls in traversing a beam from the main structure to the judges tower at the sixth floor level on separate dates, February 13, 1980 and February 19, 1980.  Sullivan described the fall distance variously as "80 to 90 feet" and about 95 feet (Tr. 86).

Referring to subitem 1(c), Sullivan testified that on February 13, 1980, the other employee departed the area where the tube was being welded and proceeded to the judges tower above to obtain some more bolts (Exhs. C-24 through C-26).  This employee, according to Sullivan, was exposed to a fall outside the building to the ground below and at one point in time onto the vertical steel bars involved in subitem 1(b) because he was not tied off and there was no perimeter net into which he could fall.

Sullivan testified that on February 19, 1980, a bolter crossed the same beam to obtain bolts and was similarly exposed to a fall outside the structure (Exhs. C-27 through C-44).  However, on this occasion, Sullivan noted that because the interior net below the beam was improperly strung and had a gap in it, the employee was also exposed to a fall of about 64 feet to the ground level if he fell inside the building and through the gap.  Although he did not go up in the structure to look at this net, Sullivan "got underneath it as close as [he] could and looked up there" (Tr. 356).

Sullivan did not notice this net on the earlier date, February 13, 1980; hence, he could not say whether it was in place on that date or, if it was, whether it had the gap in it.

Wiseman accompanied Sullivan on February 13, 1981 but not on February 19, 1980.   Confirming everything that Wiseman said regarding subitem 1(d), he stated that the interior net with the gap in it was in place on that date, February 13, 1980, and that the employee could have fallen within the structure through the gap in the net four floors to the ground below.

McSpadden and Zipfel both disagreed that the interior net presented a hazard.  According to McSpadden, he walked the beam, observed the net, and noted that if an employee fell to the inside of the structure from the beam he would land almost in the center of the net (Tr. C-44).  Zipfel said that he installed the net, that it would protect any employee falling inward from the beam, and that the only gap in it was on the outside of the structure (Exh. C-44).  Moreover, according to Zipfel, the side of the beam to the outside was protected by a cable that was installed 42 inches high (Exh. C-44).

Subitem 1(f)
On February 23, 1980, Sullivan observed an employee climbing a column between the second and third floor levels to reach the judges tower who was not tied off while he was climbing the column nor was he protected by a perimeter net.  The employee could have fallen to the outside about 45 feet to the ground, although he was protected from a fall inward by an interior net.

Willful Characterization
Sullivan recommended that this citation be characterized as willful, based upon the following reasons:

A.  I think that anytime that an employee can be killed or can receive serious bodily injury, then I knowingly go to the contractor and the contractor notes that this employee is exposed and does nothing about it, then I consider it willful.
Q.  Then it is a-
A.  He has knowledge of it --I mean, I do all I can do to try to rectify it, or debate it and when they don't do it, then I go willful.

JUDGE CHALK:  You mean they don't do it right then and there when you tell them?    Is that what you mean when you say they don't do it.  They don't abate it?

THE WITNESS:  They don't abate it.

JUDGE CHALK:  When?  When you tell them?
THE WITNESS:  Not right there and then, they stop.  In other words, they stop the operation and get the employees out of there, then I think that abated.  And, I think that it's taken care of, that shows good faith when a man is trying to do something.   If they continue, and don't take care of it, then I figure it's a willful.   (Tr. 357)
II

Docket Number 80-3694

Citation Number 1 (Serious)
Wiseman conducted an inspection of the same worksite on May 15, 1980 and recommended the issuance of the single item citation based upon his observation of one of Respondent's welders and its foreman, neither of whom were wearing protective helmets, working "directly" under other employees who were carrying "hand tools and other material" (Tr. 486).  If the employees above them had dropped any of these tools or materials, such as wrenches or "nuts, bolts," Wiseman believed that the two employees could have sustained "serious physical harm" (Tr. 486, 487).

According to Wiseman, both of these employees were wearing welding masks that would not fit over the helmets they had with them but were not wearing.  However, these employees should have been provided with and required to use "special hard hats that are manufactured for the hoods to fit right on them" (Tr. 559).

III
One of the more controversial issues litigated at the hearing arose as the result of one of the alternative charges in Citation number 2 of Docket number 80-1622 that Respondent failed to comply with 29 CFR 1926.105(c)(1) by not erecting nets that extended eight feet beyond the exterior of the structure, referred to by the various witnesses as perimeter nets. Complainant's witnesses Sullivan, Traulsen and Wiseman addressed comments to this subject.
As to each of the six subitems of that citation, Sullivan testified that Respondent had not but should have installed these perimeter nets around the outside of the structure as one of the alternative methods of eliminating the hazard attending the fall of an employee to the outside of the structure.
All of Traulsen's experience was acquired in Connecticut, the only state where he had worked in the trade. He testified that starting in 1978 when OSHA first started enforcing the use of such nets in Connecticut, his firm had used them in constructing some three or four multi-tiered buildings. He was also aware that other contractors in that state had used them and had seen them in use by larger firms in New York and New Jersey, even though these firms were "not asked to do it," because "it lowered the insurance costs" (Tr. 225). Traulsen said that his firm did not use these nets before 1978, however, because, in his words
Why should I obey something that is not there [sic]. (Tr. 300)

Traulsen then proceeded to outline the various methods by which these nets could be installed and, after examining the photographs of the structure in this case, expressed the opinion that their use thereon was feasible. He said that his firm tested these nets by throwing a keg of nails weighing about 200 pounds into the nets. He was unaware of any prescribed test and these nets were never "tested at 400 pounds at 25 feet" (Tr. 294).

Wiseman agreed with Traulsen's testimony concerning the feasibility of using nets on multi-tiered buildings under construction. After stating generally that in his vast experience he had inspected anywhere from 150 to 200 multi-tiered steel structures for the District of Columbia Government and 20 or less for OSHA, he stated that he had seen perimeter nets in use in this area only on the Dirksen Office Building in Washington, D.C., in 1979, following an inspection of that worksite begun in October 1978.[[16/]]   He also stated that in July 1980, apparently in the preparation of this case, he visited several localities in Connecticut to observe and photograph construction sites where these nets were in use (Exhs. C-5 through C-64).  According to him, this visit was essential because he could not find any steel erection projects in this area where such nets were being used:

They were not using the nets in this area ... (Tr. 531)

Aside from these personal observations of perimeter nets in use, Wiseman expressed a familiarity with them from "trade journals and other construction magazines and pictures that [he had] observed of other jobs" (Tr. 469).  When questioned further about the pictures, he stated that he had received them from "other locals," referring to labor unions (Tr. 469).

On cross-examination, Wiseman, after conceding that his area director had authorized Respondent to continue to use interior nets in lieu of temporary flooring, testified that he would have cited Respondent under 29 CFR 1926.105(c)(1) for not having installed perimeter nets even if Respondent had installed temporary flooring on every other floor of the structure.

Wiseman also stated that in October 1980, he attended a two-day meeting sponsored by the OSHA "National Office" relating to perimeter nets, as well as fall protection for "iron workers" in general (Tr. 532, 536).  Although most of those in attendance were OSHA employees, some members of the International Association of Iron Workers also attended.  He did not hear the instant case mentioned during this meeting.

Called as a witness for Complainant, McSpadden conceded that Respondent did not use perimeter nets.  On cross-examination by Respondent, however, he stated his continuing belief that perimeter nets were not required by the standard.

James Woods, called as a witness for Respondent, was the chief engineer of the Northern Virginia Steel Corporation.  He was a graduate architectural engineer, a part-time consultant to the construction industry, and had been associated with the construction industry since 1963 in various locations "from Pennsylvania to Florida" (Tr. 1014).  His experience since 1968 has been with multi-storied structural steel fabrication and erection from Washington, D.C. "all the way up through the New England Boston area" (Tr. 1025).  Although he had been involved in "literally hundreds of projects," not one involved the use of perimeter nets (Tr. 1025).  Moreover, he had never seen them used on any multi-tiered steel buildings under construction by other erectors.

After Woods examined the photographs taken by Wiseman of exterior nets on structures in Connecticut (Exhs. C-51 through C-64), he expressed the opinion that these nets were not safe.  First, he said that if a man fell into one of them, the net would probably "fold like an accordian and the person would probably fall out." (Tr. 1022) Then he said:

The picture marked Exhibit 52 shows a pipe of approximately the same diameter as listed in the Complainant's Exhibit 50 and it shows just under a tremendous deflection in the pipe, in this approximately 2 and a half inch diameter pipe, under the weight of the net by itself and it gives no lateral support.  It gives no support at the ends of the pipe whatsoever and I, certainly, would not be willing to risk my life falling into that net supported by that pipe.  (Tr. 1023)

Another witness for Respondent, Charles Green, a certified safety professional and presently a consultant to the construction industry, worked for the District of Columbia Government from 1957 until his retirement as Director of its Industrial Safety Division in 1979.  He had served in that division first as a construction inspector and then as a field supervisor of construction inspectors until he was appointed acting director of the division in 1963.  During a part of this period, his division actually administered the OSHA Act on behalf of the Federal Government.

Green was one of the past presidents of the local chapter of the American Society of Safety Engineers, a past president of the Metropolitan Washington Construction Safety Association, presently the chairman of the Research and Technical Development Committee of the American Society of Safety Engineers and presently the chairman of the Government Labor Agency and Standards Committee for the Labor Section of the National Safety Counsel, having just completed an eight year term as a member of the Board of Directors of that Council.

Green stated that although OSHA regulations require the testing of nets once they are in place, these regulations do not specify the particular test to be applied.  The ANSI standards on safety nets, however, do require a test that consists of dropping a 400 pound bag of sand into the nets from a height of 25 feet.

When questioned about the applicability of 29 CFR 1926.105(a) and 105(c)(1) to steel erection, Green replied that the question had been raised in the Technical Research and Development Committee of the American Society of Safety Engineers that he chaired, as the result of an inquiry about this particular case.  It was his opinion that there was "a big problem with the application and/or the interpretation of the Standards [on] nets visa vee [sic] the standards that would apply in steel erection" (Tr. 1062).   Continuing, he explained:

The ambiguity is that you have a requirement in a steel erection standard of OSHA which is the most logical section where a person doing steel erection work would first look for any protection that he would need in a multi-tiered building or any other steel erection job."  (Tr. 1063)

Stating that the steel erection standards were contained in subpart R, starting with 29 CFR 1926.750, he continued:

WITNESS:  In 750, which is the introduction to steel erection, as far as someone who might have standards in the field, that particular section, the first requirement and the primary requirement in that section on the multi-tiered building is for temporary flooring.

Then it just almost casually says that if a temporary floor is impractical, then you would use nets.  It makes no reference in there to the section they want you to refer to the nets.  They don't even make a reference in there to the specific ANSE Code, as far as nets. That same section spells out three different types of workers --I'm sorry, two different types of workers, that should be tied off under the circumstances of temporary floors.  It refers to men laying the temporary floors and it spells out the use of a catenary line for their protection and how they should extend the floor.

Then in the other section, it calls for tie off lines for men working from the float, in that same steel job.

Q  Explain what a "float" is?

A  A "float" is a working platform that is suspended either by cable or rope and hung under a beam on a structural steel job.

Q  Normally is a float to accommodate one man or more?

A  Usually it accommodates two men.  You don't see many of them in use.   Usually it was for rivet bucking and this sort of thing.

Q  Go ahead.

A  The [sic] because of the fact the use of 105, when it came to switching over to that requirement, the net, it should extend 8 feet beyond the perimeter of the building.

Q  So I'll understand.  You said 105 requires the next extend- 105(c) is it?

A  In 105, I'm taking the whole section because it can easily be taken section by section.  105 says that if it is impractical to use a temporary floor, a ladder, a safety belt, a catch, platform other [sic] other means of protection, then you use safety nets.

The safety nets takes the last line of precedence in the protection of people if you use those two-if you compare those two requirements.  The other thing we want to--it also requires that if you use the net, it must extend 8 feet beyond the building.  You can't have one without the other, but if we go back to 750, you put temporary flooring in and it does not extend outside the perimeter of the building-

JUDGE CHALK:  You mean the floors don't?
WITNESS:  The floors don't extend outside the perimeter of the building.  The ambiguity is that if you put a floor in that is directly under the steel that you are erecting and then you call for a net that must extend 8 feet out the perimeter of the building, here you have a floor made of two inch lumber for which a man--you permit a man to fall 25 feet, if he falls, by their own standards.  Yet, when you put in the nets, that serves in the same area, you're saying that that net has to be in there and then further extend 8 feet out beyond the edge of the building.

Now if it's practical and acceptable to have temporary floors in there you can hit and do serious damage if you do hit, why is it not acceptable for somebody to reason that a net erected in the same place couldn't provide the same protection and, in my opinion, it could be better protected because you're not liable to hit and injure yourself in the same manner as you would if you had temporary floors in there so that's why I'm saying that the standards are just ambiguous to that point, if you mix those standards.

If you don't mix the standards, then one appears to be reasonable.  Now, one of the problems is that the history of that next standard has always been, prior to OSHA, applicable to bridges and large vaulted buildings where you cannot, it's impractical to get a temporary floor in because under these standards there is a span of which you cannot extend temporary floor planking, so there are some buildings where it would be impractical unless you built a whole lot of false work to put up temporary floors.

Q  Explain what false work is?
A  False work would be work that is put up to support some other work.
Q  Would false work remain in the structure?
A  It would not remain, not to the point of putting up a temporary floor.  (Tr. 1063 through 1066)

Green expressed his familiarity with the "ongoing program" sponsored by the International Association of Bridge, Structural, and Ornamental Iron Workers of instructing its apprentices in safety matters relating to steel erection.  According to him, that Association argues with his opinion that the standards on netting in 29 C.F.R. 1926.105 do not apply and never have been applied to steel erection by the industry, as indicated by the following from page 247 of that Association's Structural Manual for Ironworkers, Manual V, Volume 1:

INTRODUCTION TO STRUCTURAL STEEL ERECTION
Planking, decking or nets, covering a radius of at least 10 feet shall also be provided not more than two (2) floors or a maximum of 25 feet beneath all points on all buildings, bridges and other structures while workmen are working at such points, except that planking, decking or nets will not be required on buildings beyond the outside perimeter of the building.  (Exh. R-9)

Green testified that this particular netting question was never raised or enforced by OSHA in this area, that between 1957 and 1981 he never saw perimeter nets in use in the area, that there were no such nets on the Dirksen building any of the times he observed it, and that it was not the practice to use them in this area.  Moreover, he stated that although he had observed many "steel jobs" in "many different cities in the country," including New York City, he had never seen perimeter nets in use anywhere (Tr. 1078).

Cross-examined about the Dirksen building and the use of perimeter nets on it, Green said that he was "a little surprised" that anyone would install them "knowing what the ambiguity of those regulations was" (Tr. 1085).  He reiterated that he never saw such nets on it, notwithstanding the fact he "may have seen" the building "40 times" in traveling around the city (Tr. 1086).

In response to my questions, Green stated that OSHA now enforced perimeter nets in this area and in fact did not even require them on its own building, the Department of Labor Building, when it was under construction.

Respondent also called Gilbert L. Esparzza, the area director, as a witness who testified that he had been enforcing exterior nets since he became area director in December 1976 but that the first such enforcement was in October 1978, that perimeter nets would be required even if temporary floors are installed, and that perimeter nets have only been enforced in the Hartford, Connecticut area and by "some compliance officers in the Washington, D.C. area" (Tr. 993).

As Complainant's only objection to certain documents offered in evidence by Respondent rebating to the meeting convened in the OSHA national office in October 1980, referred to by Wiseman, was that they were not relevant to the charges, these documents were received in evidence (Exhs R-1, R-2, R-5, R-6, R-7, R-8).  Briefly, these documents, after expressing concern by OSHA officials over the "extraordinary hazards inherent in steel erection," reflect that the Deputy Assistant Secretary for Occupational Safety and Health directed the convening of the two-day meeting for the following basic reasons spelled out in Exhibit R-2:

1.  The "urgent need" for a clarification of OSHA policy concerning fall protection in structural steel erection,
2.  Employees working on the perimeter of a building are regularly exposed to falls of as much as several hundred feet,
3.  Subpart R of the construction standards contains specific regulations for multi-storied steel erection but is lacking in safety belt and perimeter protection for employees, although such protection is provided by OSHA's "general standards,"
4.  In litigation, employers have taken the position that they are only subject to the requirements of Subpart R, with the Courts seemingly going both ways,
5.  The "confusion in" judicial opinions "as to a steel erector's obligations is paralleled by a lack of consistency in OSHA enforcement of its regulations,"
6.  The "greatest divergence in enforcement...lies in the enforcement of 29 CFR 1926.105(c)91), which mandates the use of perimeter nets for employees exposed to a fall of greater than 25 feet."  A survey of "a number of OSHA area and regional offices" indicates that this requirement is now being enforced only by the Hartford, Connecticut Area Office and "recently by some compliance officers" in the Washington, D.C. Office, and
7.  A program Directive and/or Interpretive Rule should be promulgated not only to OSHA field personnel but also to industry and labor union representatives to "clarify" that in addition to Subpart R, the general fall protection standards in the construction series apply to steel erection.

IV
Docket Number 80-1622
A
Citation Number 1 (Serious)
Item 2
After comparing the testimony of Sullivan with that of McSpadden given some six days later, during which period of time the compressor was more closely examined and the safety valve installed by the manufacturer was discovered, it is obvious to me that the safety valve was on the compressor at the time of the inspection and that everyone overlooked it.   Accordingly, as Complainant has not carried his burden of proving this violation, item 2 will be vacated.

Item 4
As the standard requires the manufacturer's written approval for any modification of a crane that affects its capacity, without regard to whether it also affects it safe operation, and Respondent admitted that it made the modification without such written approval, this much of the violation charged in the citation is sustained by the record.   However, I find that the evidence is not sufficient to establish that the modification affected the safe operation of the crane and that it could have resulted in injury to an employee, ingredients of the charge that cannot be founded on speculation or conjecture (C.J. Tyrrell, as Trustee of the Estate of Roy E. Shoaff Drilling Co., Inc. v. Dobbs Investment Co., 337 F.2d 761 (10th Cir., 1964); Epoch Producing Corp. v. Killiam Shows, Inc., et al., 522 F.2d 737 (2nd Cir., 1975); Vlases v. Montgomery Ward & Co., 377 F.2d 846 (3rd Cir.,1967); Boomer v. New York Central R.R. Co., 409 F.2d 382 (7th Cir., 1969)).

Both Sullivan, who saw the crane, and Traulsen, who did not, expressed their respective views that the added counterweight could have affected the safe operation of the crane.  Sullivan, moreover, added to this opinion his further conclusion that the counterweight could have resulted in some sort of failure of the crane during its operation that in turn could have caused the death of or serious injury to an employee.

These opinions expressed by Sullivan and Traulsen clearly were based on hypothetical situations rather than facts, for Sullivan never ascertained what the added counterweight weighed.[[17/]]  In fact, as he said nothing other than that it consisted of a box containing "a bunch" of reinforced steel, one might reasonably infer that the added weight, when considered in relation to the counterweight installed by the manufacturer and the gross capacity of the crane itself, was so minimal as to have had no appreciable effect on the safe operation of the crane whatsoever.

Accordingly, as Complainant has failed to prove any relationship between the violation established by this record, that which Respondent admits, and the safety and health of Respondent's employees, I will reduce the charge to a de minimis violation.

Item 5

Respondent also conceded that the same crane was not equipped with an automatic means to stop the boom drum motion when the maximum permissible boom angle was reached, explaining that the crane was not equipped with such a device by the manufacturer when it was built in 1959 or earlier.  This charge, however, cannot be sustained.

According to the citation, the basis for the charge is Section 5-1.9.1, ANSI standard B30.5-1968, as adopted by 29 CFR 1926.550(b)(2), which said standard does indeed require such a device on some truck cranes but not all.

According to its own terms, this source standard became effective on December 16, 1968.  In Section IV thereof, under the general heading "Scope," it provides:

One year after the date on which this Code becomes effective, all new cranes shall conform to these rules.  Cranes manufactured prior to that date should be modified to conform to these rules, unless it can be shown that the crane cannot feasibly
or economically be altered and that the crane substantially complies with the requirements of the Code.
(Emphasis supplied)

Section V of the same standard also provides that a rule is mandatory if the word "shall" is used, but advisory only if the word "should" is used.

As the truck crane in this case was manufactured nine or more years prior to the effective date of ANSI standard B30.5-1968, it falls within the advisory provisions of the standard rather than the mandatory provisions thereof.

Accordingly, the charge cannot be sustained (Secretary of Labor v. Anaconda Co., 596 F.2d 370 (9th Cir., 1979); Secretary v. U.S. Steel Corp., 76 OSAHRC 64/C8, Docket Nos. 10825 & 10849.

Item 6
Both subitems of item 6 allege that Respondent permitted employees on two different dates to work above vertically protruding reinforcing steel rods that had not been protected to eliminate the hazard of impalement.  As Complainant's evidence fully supports these violations and Zipfel admitted them, they will be affirmed.  Moreover, as these rods could have pierced the bodies of these employees if they fell respectively from the fourth floor level, or about 63 feet, or from the sixth floor level, an additional 32 feet higher, where they were working, it is clear that these employees could have sustained serious bodily harm if not death.

Item 6 will be affirmed as a serious violation as to both subparts.

Item 7(a)
Although Respondent had installed interior nets within the structure on every other floor in lieu of installing temporary flooring, Sullivan and Wiseman observed a welder welding on the fifth floor, 70 feet above the ground, that had no net below it and the welder was not tied off.

As the evidence demonstrates that the area could have been netted, and Zipfel's excuses that the area was hard to net and that Respondent experienced difficulty enforcing its tie off rule are not persuasive, the evidence supports the violation and it will be affirmed.  Moreover, as Sullivan had already stated on other charges that a fall from such a height could result in death or serious bodily harm, and such a conclusion is otherwise supported by this record, I will affirm the violation as a serious one.

B
Citation Number 2 (Willful)
The course charted by complainant in pressing perimeter net charges in this case is highly controversial and fraught with confusion and ambiguity almost beyond description.  It raises the applicability of the safety net requirements of 29 CFR 1926.105 to structural steel erections of tiered buildings.

The controversy stems from the fact that 29 CFR 1926.750, found in Subpart R that deals specifically with steel erections of tiered buildings, has its own safety net requirement that is identical in all important aspects to that found in 29 CFR 1926.105(a). However, because 29 CFR 1926.750 does not provide for net coverage in any situation beyond the perimeters of the structure being constructed, whereas 29 CFR 1926.105 does under certain circumstances (29 CFR 1926.105(c)(1)), Complainant maintains that the latter applies to the steel erection of tiered buildings.

This specific issue, to my knowledge, has not been addressed by the Commission, although the Commission has held that 29 CFR 1926.105(a) applies to steel erection (Secretary v. National Industrial Construction Inc., __OSAHRC__, Docket No. 76-5241, July 1, 1980).

After providing in 29 CFR 1926.105(a) for the installation of a net to protect employees from falls to the interior of the building, 29 CFR 1926.105(c)(1) further requires that this net extend eight feet beyond the perimeter of the structure when employees are working at the structure's edge.

That steel erectors and others knowledgeable in the art of steel erection of tiered structures look to Subpart R as the last word on the subject and believe that the use of perimeter nets is unknown in the industry not required, is overwhelmingly established on this record.  In fact, it appears to me that the vast majority of Complainant's compliance personnel countrywide, except for "some" in the District of Columbia and those in the Hartford area office in Connecticut, shared these same views, otherwise one would be forced to the unlikely conclusion that they were remiss in carrying out their inspection duties.  Although Complainant does not agree, he nevertheless was compelled to convene the October 1978 meeting in Washington, D.C., to determine a course of action designed to rectify what he considered to be a serious inspection and compliance problem.

In resolving this issue, my attention initially must be focused on the apparent conflicts and ambiguities attending a construction of these two sets of standards as a compatible and equally applicable to the industry, so well highlighted by Respondent's witnesses and especially Green.  Not only is this evidence persuasive but I additionally discern an ambiguity in the 105 standard itself wherein it speaks of nets vis-a-vis temporary floors.  Read as a whole, this standard appears to require perimeter net protection only in relation to use of interior nets, thus requiring no perimeter protection where temporary floors are installed, the same analogy Green drew between the two separate sets of standards.[[18/]]

Speaking generally of vague enactments, the United States Supreme Court remarked

It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.  Vague laws offend several important values.  First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.  Vague laws may trap the innocent by not providing fair warning.   Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them[[4]].  A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.[[5]]  Third, but related, where a vague statute "abut[s] upon sensitive areas of basic First Amendment freedoms," [[6]] it "operates to inhibit the exercise of [those] freedoms."[[7]]  Uncertain meanings inevitably lead citizens to "'steer far wider of the unlawful zone'...than if the boundaries of the forbidden areas were clearly marked."[[8]]  Grayned v. City of Rockford, 408 U.S. 104, 92S.Ct. 2294, at pages 2298 and 2299 (1972).
(Footnotes Omitted)

The same principle has been applied to OSHA standards that tend to confuse employers and require them to guess what they must do to stay within the law (Kent Nowlin Construction Co. v. Occupational Safety and Health Review Comm., et al., 593 F.2d 368 (10th Cir., 1979); Secretary of Labor v. Kennecott Copper Corp., 577 F.2d 1113 (10th Cir., 1977); Diamond Roofing Co., Inc. v. Occupational Safety and Health Rev. Comm., et al., 528 F.2d 645 (5th Cir., 1976)).[[19/]]  As the Tenth Circuit has said,

We think it significant that there is disagreement among the Secretary's compliance officers, the administrative law judge, and even among the commissioners of the Review Commission as to the interpretation, interrelationship and application of the regulations involved.  The Secretary, in citing the petitioner treated the cavity as a trench for the purpose of one citation and as an excavation for the purpose of the other.  The administrative law judge, remarking that while all trenches are also excavations all excavations are not trenches, held that the cavity in question was not a trench.  Commissioners Barnako, and Cleary ruled that the cavity clearly was a trench and in effect that it was also an excavation, so that the prescribed standards relating to excavations are equally applicable to trenches.  Commissioner Moran, agreeing with his colleagues that the cavity was a trench, disagreed with the conclusion that an employer should be held liable irrespective of the classification of the cavity.

We recognize that the interpretation by the Secretary of his own regulations is entitled to deference but we are not required to rubber stamp administrative decisions that frustrate the congressional policy underlying a statute.  Volkswagenwerk v. Federal Maritime Com'n., 390 U.S. 261.88 S.Ct. 929, 19 L.Ed.2d 1090 (1968); Marathon Oil Co. v. Kleppe, 556 F.2d 982 (10th Cir. 1977).   Although it was the expressed intent of Congress
...to assure so far as possible every working man and woman in the nation safe and healthful working conditions....[29 U.S.C. 651(b)] administrative regulations cannot be construed to mean what an agency intended but did not adequately express.  Diamond Roofing v. Occupational S. & H. Rev. Com'n., 528 F.2d 645 (5th Cir. 1976).

In Usery v. Kennecott Copper Corp., 577 F.2d 1113 (10th Cir. 1977), we held that an employer is not required to assume the burden of guessing what the Secretary intended the safety regulations to mean.  In that case we quote from the opinion of Chief Judge Brown in Diamond Roofing v. Occupational S. & H. Rev. Com'n., supra:

An employer, however, is entitled to fair notice in dealing with his government.  Like other statutes and regulations which allow monetary penalties against those who violate them, an occupational safety and health standard must give an employer fair warning of the conduct it prohibits or requires, and it must provide a reasonably clear standard of culpability to circumscribe the discretion of enforcing authorities and its agents.  528 F.2d at p. 649.

...The petitioner should not be penalized for deviation from a standard the interpretation of which, in relationship with kindred standards, cannot be agreed upon by those who are responsible for compelling compliance with it and with oversight of the procedures for its enforcement.  Kent Nowlin, supra, at pages 370, 371.

As this case is indistinguishable from Kent Nowlin,Complainant's interpretation of the two standards cannot be upheld.  I will not therefore affirm this perimeter net aspect of the charge.

In the alternative, Complainant alleges in effect that Respondent was in noncompliance with 29 CFR 1926.105(a) by not providing the other means of fall protection provided for therein.  Complainant's evidence, however, limits this aspect of the charge to Respondent's failure to require its employees, under the same facts alleged in the perimeter net charge, to wear tied off safety belts.

Subitems 1(a) and (b)
Subitems (a) and (b) of this charge involved connectors connecting either beams or columns as they were being lifted in place by the crane.  Sullivan testified that these connectors should have been tied off, as it was his opinion that it was not dangerous to do so. He stood alone in this opinion, however, for others, including Complainant's witness Wiseman, testified that it was more dangerous to tie off when receiving steel than not to tie off.

As Commission precedent supports the opinions of those contrary to that of Sullivan, Subitems 1(a) and (b) will be vacated (Secretary v. American Bridge, Div. of U.S. Steel Corp., 74 OSAHRC 71/B10, Docket No. 2249; Secretary v. Industrial Steel Erectors, Inc., 74 OSAHRC 2/E5, Docket No. 703).
Subitem 1(c)
In part, my disposition of subitems 1(a) and (b) is applicable to one aspect of the evidence relating to subitem 1(c), as Sullivan rested a part of this charge on the fact that the two connectors involved were not tied off when receiving what was described as a tube being lifted in place by the crane preparatory to its being welded in place on the exterior of the structure.  These observations were made from the ground, about 73 feet below where the connectors were working and about 30 feet away from the structure.

The other aspect of the evidence relating to this subitem rested on the opinion of Sullivan and Wiseman that one of these connectors was not tied off while welding the tube in place but instead, merely had his lanyard laid across a beam above him.

This evidence, however, was disputed, as Zipfel, who was present at the time, stated that the connector was tied off, that the connector himself later told him that he had been tied off, and that a "heated argument" ensued between the connector and Sullivan because the connector "was disturbed" by Sullivan's accusation that he was not tied off.

Having considered this conflict in the evidence in light of the photographs (Exhs. C-19 through C-23) which are somewhat inconclusive because of the distance from which they were taken, the same place where Sullivan and Wiseman observed the employee, I am not persuaded that Complainant carried his burden of proving that the connector was not tied off at the time in question (Zurich Insurance Co., v. Oglesby, 217 Fed. Supp. 180 (D.C.W.D. Va., 1963); Sanders, et al. v. Roy, et al., 242 So.2d 587 (C.A. La., 1970); B. Stern Co., Ltd. v. Perry, 246 So.2d 246 (C.A. La., 1971); Howard v. Coyle, et al., ll So. 697 (S.C.La., 1927)).

Finally, I am not persuaded to affirm this subitem on the basis of Wiseman's oblique remark, not otherwise explained, that the two connectors were not tied off when they climbed down between the two floor levels to get in position to receive the tube.  As it was not explained exactly how these connectors got there or where they came from, and the photographs tend to indicate that the beam framing was far from complete, there is no proof that it was possible for them to tie off in reaching the position where they received the tube.  Moreover, Wiseman's remark does not rule out the possibility that these connectors climbed down within the structure where they were protected by an interior net.

Subitem 1(c) will be vacated.

Subitems1(d) and (e)

Both subitems involved different employees on separate dates traversing a beam 90 to 95 feet above the ground that was connected at one end to the main trustee and at the other end to what was called the judges tower.   Sullivan observed the employees crossing the beam on both dates, whereas Wiseman was there only on the first occasion.

Both Sullivan and Wiseman said that these employees were not tied off and they were not otherwise protected from falls toward the outside of the structure.  Additionally, Wiseman said that because of a gap at a certain point in the interior net below the beam, a fall inward at that point would result in no net protection.

Sullivan did not notice this gap in the interior net on the first occasion but did so on the second and said that he observed it by walking inside the structure and looking up.  Neither Sullivan nor Wiseman went up inside the structure to get a closer look at the situation.

Both Zipfel and McSpadden disagreed about the gap in the interior net.  Zipfel said that he had installed the net, that it would protect any employee falling inward from any point on the beam, and that the only gap in the net was on the outside of the structure.

McSpadden agreed with Zipfel, stating that he went up in the structure and walked the beam.  According to him, any employee who fell inward from the beam would land in the net.

Additionally, Zipfel testified that the outward side of the beam was protected by a perimeter cable installed 42 inches high.

Once again, the evidence presented by the parties was in direct conflict.  After considering the inconclusive nature of the photographs, together with the fact that neither Sullivan nor Wiseman went up into the structure for a closer look,

I conclude that Complainant has not carried his burden of proving these two subitems (Zurich Insurance Co. v. Oglesby, supra; Sanders, et al. v. Roy, et al., supra; B. Stern Co., Ltd. v. Perry, supra; Howard v. Coyle, et al., supra).  Accordingly, subitems 1(d) and (e) will be vacated.

Subitem (f)
The main thrust of Sullivan's testimony concerning the hazard presented by this employee climbing a column to reach the judges tower appears to be the absence of a perimeter net.   However, Sullivan also made the oblique statement without further explanation that the employee was not tied off.

As Complainant has furnished no insight as to how a person climbing a column during the erection phase of a tiered building could tie off, leaving me to speculate that tying off under these circumstances was possible, Complainant has not proved this aspect of the charge (C.J. Tyrrell, as Trustee of the Estate of Roy E. Shoaff Drilling Co., Inc. v. Dobbs Investment Co., supra; Epoch Producing Corp. v. Killiam Shows, Inc., et al., supra; Vlases v. Montgomery Ward & Co., supra).   Accordingly, subitem 1(f) will be vacated.

V

Docket Number 80-3694
The unrebutted testimony of Wiseman establishes that the two employees who were not wearing protective helmets were working under other employees at a higher level who were handling tools and other material and that it said tools or other materials were dropped, either of the two employees could have sustained serious injury if struck on the head.   Accordingly, this citation will be affirmed.

In proposing penalties for all items of Citation number 1 for serious violations in Docket Number 80-1622, Sullivan credited Respondent with a 10 percent reduction each for good faith and size, awarding Respondent no credit for prior history, although no evidence of prior history was introduced.  He also considered the gravity of each violation and arrived at the conclusion that each violation could have resulted in death or serious injury.  On this basis, he proposed penalties of $720 each for items 4 and 6 and a penalty of $640 for the two subitems of item 7, one of which withdrew at the beginning of the hearing.

As I am reducing item 4 of this citation to a de minimis violation, no penalty is authorized.  Having considered the record in light of my statutory responsibility to assess penalties, I find that a penalty of $500 is appropriate for item 6 and that a penalty of $300 is appropriate for item 7(a)

In proposing a penalty for Citation number 1 for serious violation in Docket Number 80-3694, Wiseman credited Respondent with a 30 percent reduction for good faith and a 10 percent reduction for size, also awarding Respondent no credit for prior history. Regarding prior history, however, Wiseman expressed the opinion that an employer had a prior history as soon as a citation had been issued against that employer.  Thus, as there was no evidence of prior history introduced, Wiseman apparently construed the pending contested citations in Docket number 80-1622 as constituting the prior history which he relied upon in awarding Respondent no credit therefor.  He arrived at a proposed penalty of $300 for this charge.

Applying the same considerations as in Docket number 80-1622, in addition to considering Wiseman's misconception of what constitutes prior history, I find that a penalty of $100 is appropriate for this violation.

VII

Findings of Fact

Docket 80-1622

A

Citation Number 1 (Serious)
1.  At the time and place alleged in item 2, the compressor was equipped with an appropriate safety valve that was overlooked by both Sullivan and Respondent's personnel.
2.  At the time and place alleged in item 4, Respondent had added a counterweight to the crane without the written approval of the manufacturer of the crane.
3.  Regarding the crane in "2" above, there was no evidence of the weight of that added or that the addition affected the safe operation of the crane or presented a hazard that could have resulted in death or any bodily harm to an employee.
4.  At the time and place alleged in item 5, the crane was not equipped with an automatic means to stop the boom drum motion when the maximum permissible boom angle was reached.
5.  Regarding the crane in "4" above, the crane was constructed in 1959 or earlier.
6.  At the times and places alleged in subitems 6(a) and (b), Respondent's employees were working at the heights alleged above vertically protruding reinforcing steel rods that had not been protected to eliminate the hazard of impalement.
7.  Regarding "6" above, an employee who fell on these rods could have sustained death or serious bodily harm.
8.  At the time and place alleged in subitem 7(a), an employee was working within the structure 70 feet above the ground who was not tied off nor was he protected by an interior net below him.
9.  Regarding "8" above, if the employee fell, he could have sustained death or serious bodily harm.

B

Citation Number 2 (Willful)

1.  As to all subitems, the evidence establishes that Respondent, the steel industry and most of Complainant's compliance personnel countrywide were unaware that the perimeter net requirement of 29 CFR 1926.105(c)(1) applied to the steel erection of tiered structures.
2.  At the times and places alleged in subitems 1(a) and (b), connectors receiving and connecting beams and columns lifted by the crane were not wearing tied off safety belts.
3.  Regarding "2" above, the evidence establishes that it was a greater hazard to wear tied off safety belts than not to be tied off.
4.  At the time and place alleged in subitem 1(c), two connectors were not wearing tied off safety belts when receiving a tube lifted by a crane and the same factual findings in "3" above, is applicable thereto.
5.  Regarding "4" above, there was no evidence to establish that it was possible for these two connectors to wear tied off safety belts when climbing down between two floor levels to reach the point where they were to receive the tube lifted by the crane, nor was there evidence to establish that they did not climb down within the structure where they were protected by an interior net.
6.  Regarding "4" above, there was no evidence to establish that the connector did not have his safety belt tied off while welding the tube in place.
7.  At the times and places alleged in subitems 1(d) and (e), there was no evidence to establish that employees walking across a beam from the main structure to the judges tower were not fully protected by a net from falls inward from the beam.
8.  Regarding "7" above, the evidence establishes that these same employees were protected from falls outward while walking the beam by a perimeter cable installed 42 inches high.
9.  At the time and place alleged in subitem 1(f), there was no evidence to establish that it was possible for the employee to wear a tied off safety belt while climbing a column.

Docket Number 80-3694

Citation Number 1 (Serious)

At the time and place alleged in the citation, two of Respondent's employees were not wearing protective hats while working under employees above them who were carrying tools and other materials that if dropped, could have inflicted serious bodily harm on the two employees below.

Conclusions of Law
The Commission has jurisdiction over the proceedings in both dockets.

Docket Number 80-1622
A
Citation Number 1 (Serious)
1.  Respondent did not violate 29 U.S.C.654(a)(2) by not complying with 29 CFR 1926.302(b)(7) and 29 CFR 1926.550(b)(2).
2.  Respondent violated 29 U.S.C.654(a)(2) by not complying with 29 CFR 1926.550(a)(16) but said violation was de minimis.
3.  Respondent violated 29 U.S.C.654(a)(2) by not complying with 29 CFR 1926.700(b)(2) and said violation was serious.
4.  Respondent violated 29 U.S.C.654(a)(2) by not complying with 29 CFR 1926.750(b)(1)(ii), is alleged in subitem 7(a), and said violation was serious.

B

Citation Number 2 (Willful)
1.  Respondent was not given fair notice that the perimeter net requirement of 29 CFR 1926.105(c)(1) applied to the steel erection of tiered structures, if it did in fact apply.
2.  Respondent did not violate 29 U.S.C.654(a)(2) by not complying with 29 CFR 1926.105(c)(1) or 29 CFR 1926.105(a).

Docket Number 80-3694
Citation Number 1 (Serious)

Respondent violated 29 U.S.C. 654(a)(2) by not complying with 29 CFR 1926.100(a) and said violation was serious.

VIII

Docket Number 80-1622
Complainant's motions to withdraw items 1 and 3 and subitem 7(b) of Citation number 1 for serious violations are granted and said items and subitem are vacated.  Complainant's motion to withdraw Citation number 3 for other than serious violations is granted and said citation is vacated.  Item 4 of Citation number 1 for serious violations, modified to allege a de minimis violation, is affirmed, whereas items 2 and 5 thereof are vacated.  Item 6 and subitem 7(a) of Citation number 1 for serious violations are affirmed and penalties of $500 and $300 respectively are assessed therefor.  Citation number 2 for willful violation is vacated.

Docket Number 80-3694

Citation number 1 for serious violation is affirmed and penalty of $100 is assessed therefor.

So ORDERED.

JOSEPH L. CHALK
Judge, OSHRC
Dated:  May 26, 1981
Hyattsville, Maryland

FOOTNOTES:

[[1]] See, e.g., Brock v. L.R. Willson & Sons, Inc., 773 F.2d 1377 (D.C. Cir. 1985); Donovan v. Adams Steel Erection, Inc., 766 F.2d 804 (3d Cir. 1985); Donovan v. Daniel Marr & Son Co., 763 F.2d 477 (1st Cir. 1985).

[[1/]] The standard provides:

All hoses exceeding 1/2-inch inside diameter shall have a safety device at the source of supply or branch line to reduce pressure in case of hose failure.

[[2/]] This standard provides:

No modifications or additions which affect the capacity or safe operation of the equipment shall be made by the employer without the manufacturer's written approval.  If such modifications or changes are made, the capacity, operation, and maintenance instruction plates, tags, or decals, shall be changed accordingly.  In no case shall the original safety factor of the equipment be reduced.

[[3/]] This standard provides:

All crawler, truck, or locomotive cranes in use shall meet the applicable requirements for design, inspection, construction, testing, maintenance and operation as prescribed in the ANSI B30.5-1968 Safety Code for Crawler, Locomotive and Truck Cranes.

[[4/]] This standard provides:

Employees shall not be permitted to work above vertically protruding reinforcing steel unless it has been protected to eliminate the hazard of impalement.

[[5/]] This standard provides:

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.

[[6/]] This standard provides:

Nets shall extend 8 feet beyond the edge of the work surface where employees are exposed and shall be installed as close under the work surface as practical but in no case more than 25 feet below such work surface.  Nets shall be hung with sufficient clearance to prevent user's contact with the surfaces or structures below.  Such clearances shall be determined by impact load testing.

[[7/]] This standard provides:

Safety nets shall be provided when work-places 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.

[[8/]] This standard provides:

All crawler, truck, or locomotive cranes in use shall meet the applicable requirements for design, inspections, construction, testing, maintenance and operation as prescribed in the ANSI B30.5-1968, Safety Code for Crawler, Locomotive and Truck Cranes.

[[9/]] This standard provides:

Platforms and walkways shall have anti-skid surfaces.

[[10/]] This standard provides:

Employees working in areas where there is a possible danger of head injury from impact, or from falling or flying objects, or from electrical shock and burns, shall be protected by protective helmets.

[[11/]] Sullivan started work as a compliance officer in August 1975.  Prior to that time, he worked in the "construction trade" as a steamfitter and pipefitter, starting 1942.  In addition to the training courses he attended during his apprenticeship which included safety training relating to his field, he attended a compliance officers training course for one month when he joined OSHA that was designed to acquaint the students with
. . . the paperwork, recognition of hazards, all types that you could run into in the construction phase, construction job site in general industry.  That's it basically and then I also had an electrical course.  I also took a course on cranes basically.   It set you up so you were qualified to inspect cranes and I took a course in tunneling in West Virginia and fire protection.  (Tr. 45)

[[12/]] This is the same factual situation involved in the allegations contained in subitem 1(b) of Citation number 2 for willful violation.

[[13/]] Wiseman became a compliance officer in 1975.  From 1964 to 1975, he worked as a safety inspector in the District of Columbia's industrial safety division.  Prior to 1964, he served his apprenticeship as an iron worker and became a journeyman in that trade in 1952, thereafter serving in the Army where he received training as a combat engineer.  After serving as an instructor in the Army for about one year, teaching "construction and basic construction techniques," he returned to civilian employment working variously as a journeyman and a foreman, until he went to work for the District of Columbia safety division (Tr. 453).  In the construction area, he had "done all phases of iron work," including connecting, bolting, plumbing columns and welding, and had supervised others performing those duties (Tr. 454).

[[14/]] Sullivan said there was an interior net to catch them if they fell inside the structure and Exhibits C-5, C-6 and C-8 confirm that fact.

[[15/]] These same facts form the basis for the charge alleged in subitem 6(a) of Citation number 1 for serious violations and thus tend to duplicate that charge.

[[16/]] The parties agreed that Wiseman was referring to two different contractors at the Dirksen worksite who were cited and who ultimately entered into settlement agreements, vis:  Secretary v. Elizabeth Iron Works,___OSAHRC___ , Docket No. 79-1382, September 14, 1979, and Secretary v. Baltimore Contractors, Inc., ___OSAHRC__, Docket No. 79-512/79-2013, November 6, 1979.

[[17/]] He also never ascertained the weights of the various material lifted by the crane or whether any lifts exceeded the crane's rated capacity.

[[18/]] As it is now settled law that 29 CFR 1926.105 imposes requirements for all fall protection devices mentioned therein (see Secretary v. Sierra Construction Corp., 72 OSAHRC 2/E6, Docket No. 13638), contrary to my prior belief that it imposed only a requirement for safety nets, I must conclude that it imposes a requirement for temporary floors, although I am aware of no Commission decision in point.

[[19/]] In yet another case, the Eighth Circuit, in Builders Steel Co. v. Secretary of Labor, et al., 622 F.2d 367 (1980), dealing with the same two standards involved herein, found them inconsistent and ambiguous.