CORNELL & COMPANY, INCORPORATED

OSHRC Docket No. 9054

Occupational Safety and Health Review Commission

September 22, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Marshall Harris, Regional Solicitor, USDOL

J. C. Sheppard, Vice President, Cornell & Company, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

The decision of Administrative Law Judge Ben D. Worcester dated February 19, 1975, is before the full Commission pursuant to an order issued under 29 U.S.C. 661(i) granting a petition for discretionary review filed by the Secretary of Labor. Judge Worcester had vacated a citation that had been amended by a pre-hearing motion alleging a violation of 29 CFR 1926.28(a) for a failure of Cornell's employees to wear safety belts in certain steel erection. Judge Worcester held that Cornell's right to a fair hearing had been impaired materially because the Secretary's motion amending the citation, although made before the hearing, was filed more than four months after the inspection. Alternatively, the Judge held that the Secretary had failed to establish a violation because it was impossible for Cornell to comply with the standard. The Secretary of Labor excepted to these holdings. The Secretary of Labor has filed a brief in support of its exceptions. Cornell has made [*2] a brief presentation urging in effect that the Judge's decision be affirmed.

I.

The Judge's vacation of the amended citation and complaint was in a ruling by the Judge on Cornell's motion to vacate the citation and dismiss the proceeding. Briefly, what happened is this. Cornell was engaged in bolting operations on a steel flare derrick under construction at an ARCO refinery worksite located on 26th Street, Philadelphia, Pennsylvania. The flare derrick consisted of three steel upright members connected by steel crossbracing and containing in the center a cylindrical flare stack. The structure resembled an oil well in appearance. A Department of Labor compliance officer inspected the worksite. In the course of the inspection he observed Cornell's employees bolting steel beams 100 feet above ground level. They did not have their safety belts and lifelines tied off, and there was no temporary floor or safety net to break any fall.

As a consequence, Cornell was first issued a citation for a "serious" violation of 29 CFR 1926.750(b)(2), but thereafter the citation was amended in the Secretary's complaint to allege an alternative "serious" violation of 29 CFR 1926.750(b)(1)(ii). [*3] However, still before the hearing, the Secretary moved to amend in order to allege a violation of 29 CFR 1926.28(a) and .104 for the aforementioned failure to use safety belts, and to withdraw the alleged violations of 1926.750(b)(2) and (b)(1)(ii). This motion was granted by the Judge at the hearing.

The Secretary's vacillation in citing the applicable safety standard was an important ground for Cornell's motion to vacate the citation and dismiss the proceeding. Judge Worcester was convinced by this argument. He held that Cornell's right to a fair hearing was materially impaired by the Secretary's failure to determine promptly what standard may have been violated. We hold that the Judge erred.

The amendment in question was offered more than a week before the hearing. Also, a continuance could have been granted in order to permit Cornell additional time to defend. Finally, Judge Worcester allowed Cornell thirty (30) days from the end of the hearing to determine whether it wished to adduce additional evidence, but Cornell by a letter dated November 20, 1974, declined to present such additional evidence. Under these circumstances, we find no prejudice to Cornell resulting [*4] from the amendment. The essential thread throughout the pleading was the alleged hazard of permitting employees to work on steel beams 100 feet above the ground without protection, and Cornell has had a fair opportunity to defend on the safety belt issue.

II.

As to the alleged violation itself, it is undisputed that Cornell's employees had safety belts, but did not use them while working at the 100-foot level of the derrick. A photograph (Exhibit C-1) showing three employees working atop the derrick reveals that the structure consisted of three vertical members, cross lattice members connected to the vertical members, and a flare stack located in the center. According to the compliance officer's testimony, the photograph shows vertical members extending approximately 20 feet above the horizontal members on which two employees were working.

On the matter of whether Cornell's employees could have used safety belts by means of tying off to a cable extended between the vertical members of the structure, the following testimony was elicited. Cornell's representative questioned the compliance officer, inquiring:

Q. Well, knowing, as we do now, that the new citation by the Department [*5] of Labor, is that Cornell & Company's men had not used safety belts properly, had not been tied off, in your experience where would have been the proper place for these connectors who were receiving these steel members all the way at the top of the structure to tie off?

A. From a cable that would extend from the vertical members above their heads.

On further cross-examination, the compliance officer stated that as the vertical members were placed on the completed sections, they "wouldn't be a good place to tie off to" if they were not secured. Cornell pursued its questioning as follows:

Q. Okay. So what we are saying is that as the bracing is put in the tower, eventually the segments of that tower get stronger, and at some point in time the men can tie off to the pieces with safety?

A. Yes.

Q. While at other points in time they cannot tie off, and in the event that the piece should fall over, they would be pulled down with it; is that correct?

A. Yes, sir.

But during further examination by the Judge the compliance officer testified that the employees he observed erecting the structure could have tied-off to the vertical members. The testimony elicited by the Judge includes [*6] the following:

Q. In other words, there are certain functions that cannot be performed in situations such as depicted in Exhibit C-1, n1 that cannot be performed while tied off; is that right? Is that what you are saying?

A. No, Your Honor.

Q. Would you explain that again?

A. I feel as though they could be tied off to the vertical members above their heads while they are sitting there. If the cable was extended from the one vertical member to the other, they could tie off to that cable while they are performing the connecting work.

* * *

Q. Well, in the scene depicted in C-1, which you personally observed, is that one in which there were functions to be performed where the men could not have been tied off?

A. No, Your Honor.

Q. You say they could have been tied off properly to the vertical members shown in this photograph?

A. I think they could have been tied off to the vertical members in that photograph.

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n1 A description of the Exhibit appears on page 3 of this decision.

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Although the Judge vacated [*7] the citation for the reasons given above, he concluded that a safety belt violation was not proved because employees could not always tie off. We are convinced, however, that employees should have been tied off during the stages of the work when it was possible to do so, including the stage observed during the inspection. The vertical members of the flare stack extended above Cornell's employees, and a cable could have been extended between these members for tying off. Cornell has shown that these members would not always be braced sufficiently to allow for safely tying off, but it has not shown that this was the case during the inspection when employees were not protected by safety belts. The cited standard requires personal protective equipment where there is exposure to hazardous conditions is preventable. Here, the record establishes that employees were exposed to the hazard of falling and respondent is in violation of the standard.

After the hearing, Cornell argued that 29 CFR 1926.28(a) requires only the wearing of personal protective equipment, but not its use. Under this standard, however, employees must use safety belts or some type of personal fall protective [*8] equipment. See Okland Constr. Co., 3 BNA OSHC 2023, 1975-76 CCH OSHD para. 20,441 (No. 3395, 1976) and cases cited therein.

We conclude that a violation of 29 CFR 1926.28(a) and 1926.104 has been proved, as alleged in the amended citation and complaint. In assessing a penalty, we note that a high level of gravity existed in that three employees were exposed to a potential fall of 100 feet, that Cornell is a small company which was not shown to have committed any previous violation, and that Cornell exhibited good faith. The Secretary's proposed penalty of $700 is found to be appropriate and is assessed.

It is ORDERED that the citation, as amended, is affirmed and a $700 penalty is assessed.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

The disposition ordered in Judge Worcester's decision, which is attached hereto as Appendix A, is correct and should be affirmed. I fully agree with his conclusion that the complainant's motion to amend the citation was improper.

The respondent was originally cited for violating 29 U.S.C. 654(a)(2) because of noncompliance with the occupational safety standard codified at 29 C.F.R. 1926.750(b)(2). That standard required employers engaged [*9] in skeleton steel construction in tiered buildings to maintain a tight and substantial floor under certain conditions specified therein which are not pertinent to this decision. Subsequently, complainant attempted to amend the citation in his complaint to allege in the alternative that respondent had failed to comply with 29 C.F.R. 1926.750(b)(1)(ii) which requires employers engaged in skeleton steel construction in tiered buildings to install safety nets under specified conditions whenever the potential fall distance exceeds two stories or 25 feet. Thereafter, by a motion to amend that was filed more than four months after issuance of the citation, complainant properly conceded that neither of these charges were applicable because respondent was not engaged in the construction of a tiered building. That motion sought to amend the citation to allege that the respondent violated 29 C.F.R. 1926.28(a) and 1926.104 because its employees did not use safety belts and lifelines.

The majority's allowance of the amendment in this case is improper for two reasons. First, Rule 15(b) of the Federal Rules of Civil Procedure does not apply to the amendment of a job safety [*10] citation because it is a unique creature of statute to which strict requirements for particularity, pursuant to 29 U.S.C. 658(a), have been attached. Second, the amendment is insufficient to state a violation of the Act.

This case demonstrates the wisdom of Congress in enacting the requirement in 29 U.S.C. 658(a) that "[e]ach citation . . . shall describe with particularity the nature of the violation, including a reference to the . . . standard . . . alleged to have been violated." It was not until more than four months after the citation was issued that complainant decided that the nature of the alleged violation was the failure of respondent's employees to use personal protective equipment, rather than a failure to maintain a tight and secure floor or to install safety nets. As respondent so appropriately stated at the hearing:

"[W]e really don't believe that the law can be interpreted as encouraging or even permitting an alleged violation of a standard just for the purpose of holding the door open just so at some later date the Department can reexamine and restudy the [*11] case and say, 'That wasn't the proper citation; we will cite them on this different matter at this time,' and if that happens to be 150 days later, it's a long time." (Emphasis supplied.)

What respondent overlooked, however, is that there is within the membership of this Commission a majority with a consistent disposition to hold such doors open.

Furthermore, even with more than four months in which to deliberate, complainant did not state a proper charge in his motion to amend.

The original version of 29 U.S.C. 1926.28(a) provided that:

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

Prior to the inspection in this case, the standard was modified by substituting the word "or" for the word "and." For the reasons stated in my dissenting opinion in Secretary v. Island Steel & Welding, Ltd., 17 OSAHRC 143, 144 (1975), the modification was improperly promulgated and the original version remains in effect. Therefore, in order to establish [*12] a failure to comply with this standard, proof of two elements is necessary: (1) that there was exposure to a hazardous condition warranting the use of personal protective equipment, and (2) that there was a failure to use this equipment when its use was required elsewhere in Part 1926 of the regulation.

In this case, complainant attempts to satisfy the second requirement by citing 29 C.F.R. 1926.104. Although that section contains several rules regarding safety belts, lifelines, and lanyards, it does not require the wearing or use of that equipment at any time. Accordingly, there can be no violation of sections 1926.28(a) and 1926.104 either individually or collectively.

Appendix A

DECISION AND ORDER

Howard K. Agran, for the Secretary of Labor

J. C. Sheppard, Vice-President, pro se, for the Respondent

Ben D. Worcester, Judge, OSAHRC

This proceeding arises pursuant to a notice of contest filed by the Respondent, July 22, 1974, under the provisions of section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590 et seq., 29 U.S.C. 651 et seq.) hereinafter called the Act. On July 2, 1974, a Citation was issued alleging that the Respondent [*13] had violated 29 CFR 1926.750(b)(2), a standard promulgated by the Secretary pursuant to the authority vested in him under the provisions of 29 U.S.C. 655(a).

The Issues

The Citation alleged that Cornell violated this standard while erecting a steel stack (a flare derrick) to be used for burning excess gas produced at a Philadelphia oil refinery. The alleged violation was described in the following language:

"During the construction of a flare derrick, a tight and substantial floor was not maintained within 25 feet below and directly under a tier of steel beams, on which bolting was being done at approximately the 100-foot level."

The standard relied upon is, according to its title, applicable to temporary flooring in skeleton steel construction in tiered buildings. The paragraph alleged to have been violated states that:

"(2) Where erection is being done by means of a crane operating on the ground, a tight and substantial floor shall be maintained within two stories or 25 feet, whichever is less, below and directly under that portion of each tier of beams on which bolting, riveting, welding, or painting is being done."

On August 13, 1974, the Secretary filed a motion for [*14] a 10-day extension of time within which to file a complaint on the ground that:

". . . further investigation is being undertaken to determine whether there is sufficient evidence in support of the Citation to warrant further prosecution of this case."

When the Secretary finally filed his complaint (2 months after inspection) he moved to amend the Citation so as to allege, in the alternative, violation of 29 CFR 1926.750(b)(1)(ii), which is as follows:

"(ii) 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."

The Secretary based his motion for leave to amend on an allegation that, should it be found that the structure was not adaptable to a temporary floor, safety nets should have been provided. Issues were joined upon the filing of a general denial by Cornell on September 23, 1974.

On October 13, 1974, in a pretrial order, both parties were directed to submit a statement of the issues. On October 15, 1974, the [*15] Secretary responded by stating:

"The following issues are presented:

a) Whether amendment of the citation should be granted to permit the pleading of 29 CFR 1926.750(b)(1)(ii) in the alternative.

b) Whether respondent violated the cited standards.

c) Whether the violation, if proved, was serious.

d) Whether the penalty proposed was reasonable under the circumstances."

The Respondent, Cornell, summarized the issues in its reply to the order by saying:

"a. It is alleged that while constructing a flare derrick at the Arco Refinery, Phila., Pa., we failed to maintain a tight and substantial floor within 25 feet below bolting operations, a violation of Regulation 29 CFR 1926.750(b).

b. It is the contention of Cornell & Company, Inc. that Regulation 29 CFR 1926.750(b) refers specifically to 'skeleton steel construction in tiered buildings' and does not apply to irregular, light weight flare derricks in which the use of planking would in itself constitute a hazard.

c. Cornell & Company, Inc., further contends that it furnishes safety belts and lanyards for all of its workmen engaged in climbing or working at height, and exerts considerable and continuous effort to see that they [*16] are used.

d. Cornell & Company finally contends that the O.S.H.A. Inspector who visited the job site agreed that if the workmen were 'tied-off', planking would not be necessary."

Notwithstanding the fact that Cornell had, in the foregoing response to the pretrial order on September 30, 1974, pointed out that section 1926.750(b) applies only to tiered buildings, the Secretary waited until a week before the hearing set for November 13, 1974, to concede that Cornell was right. Then he moved to amend the Citation to a charge of serious violation of 29 CFR 1926.28(a) and 29 CFR 1926.104. It was alleged at this late date, 4 months after inspection, that Cornell's employees should have been utilizing safety belts and lifelines.

The Respondent, Cornell, then filed a motion to vacate the Citation and dismiss the proceeding. In support of this motion Cornell said:

"1 - During an inspection of the Arco Refinery on June 27, 1974 the Compliance Officer of the Occupational Safety and Health Administration issued a Citation for alleged violation of 29 CFR 1926.750(b)(2) for failure to have a temporary floor under the steel connectors on a tiered building.

2 - On August 12, 1974 the Complainant [*17] moved for a 10-day extension of time in which to file the complaint.

3 - On August 26, 1974 the complaint was received containing an admission that the allegation of a temporary flooring violation was in error, and moving that an amended Citation be permitted to allege violation of 29 CFR 1926.750(b)(2)(ii) charging that 'should it be found that the structure was not adaptable to a temporary floor -- safety nets should have been installed and maintained.'

4 - On November 4, 1974 the Complainant requested another extension of time because of a scheduling conflict on the part of Attorney Agran.

The Complainant also at this time moved to amend the Citation and Complaint to make a new charge, alleging violation of 29 CFR 1926.28(a) and 29 CFR 1926.104, and withdrawing previous Citation violation allegations.

In view of the foregoing sequence of events we believe an inordinate amount of time has elapsed from June 27, 1974 when the inspection took place, to November 4, 1974 when in effect, the Citation is just now being issued. We feel that the factors of repeated changing of Citation allegations, the great amount of time that has elapsed since the alleged violation took place, and [*18] the present request by the Complainant for an additional time extension are working a severe hardship on Cornell & Company, a hardship that was certainly not intended by the Occupational Safety and Health Act. We feel the Act intends that the Secretary of Labor issue a Citation for the correct violation within a reasonable period of time following such alleged violation, and in this instance this has not been done."

Cornell renewed this motion at trial, both before any evidence was received and after both parties had rested. The pretrial motion was denied.

Findings and Conclusions

The evidence of record shows that the Secretary vacillated from July to November. After citing Cornell for not having a platform erected, he next decided that there should have been safety nets and, finally, that neither were appropriate. At trial both the Secretary and Cornell's representative had difficulty understanding which subparagraph of 29 CFR 1926.104 was in issue. The Secretary first took the position that subparagraph (a) was appropriate. The Respondent countered with the assertion that paragraph (b) was more appropriate. The Secretary evaded answering this assertion by expanding [*19] the charge to include all of the subparagraphs of 29 CFR 1926.104.

When the moving party more than 4 months after inspection is still unable to reach a conclusion as to what prohibited conduct was observed, it is clear that the Respondent's ability to prepare a defense has been impaired. Under the facts in the case it is clear that Cornell's right to a fair hearing was materially impaired by the Secretary's failure to promptly determine what standard may have been violated. This requires vacation of the Citation.

Even if it were assumed that Cornell's ability to defend had not been impaired, the Secretary failed to prove that there was a violation. The Compliance Officer admitted that there are times when men performing the tasks the employees he observed were engaged in cannot tie off. n1

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n1 "Q. You are not saying then that it is impossible to perform the work; it is just that the ironworkers you have talked to are reluctant to change their habits; is that it?

A. Not exactly your Honor, no. In some instances it's impossible to tie an ironworker off, no matter what he feels."

[*20]

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Order

It is hereby ordered that the motion of the Respondent to dismiss be granted and that the Citation and the penalty be vacated.

BEN D. WORCESTER, Judge, OSAHRC