L. C. ANDERSON & SONS, INC.
OSHRC Docket No. 9314
Occupational Safety and Health Review Commission
April 28, 1977
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Marshall H. Harris, Reg. Sol., USDOL
L. S. Wescott, for the employer
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Commissioner:
A decision of Administrative Law Judge Donald K. Duvall rendered on June 11, 1975, is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter "the Act"].
In his decision Judge Duvall affirmed a citation that alleged that respondent had committed a serious violation of section 5(a)(2) of the Act by failing to comply with the occupational safety and health standards at 29 CFR § 1926.28(a) n1 and 29 CFR § 1926.104(a). n2 For the reasons that follow, the Commission modifies the Judge's action.
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n1 The standard reads:
§ 1926.28 Personal protective equipment.
(a) The employer is responstble for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.
n2 The standard reads:
§ 1926.104 Safety belts, lifelines, and lanyards.
(a) Lifelines, safety belts and lanyards shall be used only for employee safeguarding. Any lifeline, safety belt, or lanyard actually subjected to in-service loading, as distinguished from static load testing, shall be immediatly removed from service and shall not be used again for employee safeguarding.
[*2]
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The citation alleged a single serious violation in that respondent, an employer engaged in general building construction, did not require the wearing of appropriate personal protective equipment by two of its employees who were observed tightening bolts while sitting on a horizontal I-beam about 20 feet above the ground. It is undisputed that the employees were not wearing safety belts, lifelines, or any other similar type of protective equipment while performing this task.
Respondent filed a petition for discretionary review by the Commission and an order granting its petition was issued. The petition challenged many of the Judge's factual findings and his conclusion that the Secretary established that respondent violated the Act by failing to comply with the cited standards on the day in question. In particular, respondent argues that: (1) the cited standards are unenforceably vague, (2) the use of safety belts would have been more hazardous than working without such equipment, (3) a "serious" violation was not properly found, and (4) the $500 penalty assessed is excessive.
After reviewing the [*3] record, we accept the Judge's assessment of the evidence and we conclude that his findings of fact are supported by a preponderance of the evidence.
We agree with the Judge's discussion and conclusions regarding respondent's noncompliance with § 1926.28(a). We reject respondent's contention that the standard is unenforceably vague. The standard is valid and enforceable, B & B Insulation, Inc. (No. 9985, April 1977) (lead and concurring opinions) and cases cited therein, and the evidence establishes a violation of the standard. Furthermore, the Judge correctly found that respondent has not established the defense that compliance with § 1926.28(a) would have diminished rather than enhanced the safety of the employees. Russ Kaller, Inc. T/A Surfa Shield, BNA 4 OSHC 1758, CCH 1976-77 OSHD para. 21,152 (No. 11171, 1976); Industrial Steel Erectors, Inc., BNA 1 OSHC 1497, CCH 1973-74 OSHD para. 17,136 (No. 703, 1974).
In regard to the alleged noncompliance with § 1926.104(a), however, we do not agree with the Judge's statement that this standard "requires that lifelines, safety belts, and lanyards shall be used." As was concluded by the majority in Underhill Constr. Corp., [*4] BNA 4 OSHC 1772, CCH 1976-77 OSHD para. 21,151 (No. 8096, 1976):
[§ 1926.104(a)] does not require the use of the protective equipment enumerated therein at any time. Complainant has not alleged, nor does the evidence establish, that respondent used this equipment for other than employee safeguarding or failed to comply with the second provision in the standard.
This statement is equally applicable to the instant case, and no violation of § 1926.104(a) has been proved.
The citation alleged, and the Judge found, that the violation was "serious" within the meaning of the Act. n3 We agree. There is a substantial probability that death or serious physical injury could result from a 20 foot fall, the hazard to which respondent's employees were exposed. That respondent knew or with the exercise of reasonable diligence could have known of the presence of the violation is evident from testimony by respondent's president that safety belts had not been provided because he did not believe that it was necessary to use them. n4 The feasibility of using safety belts and lifelines was amply demonstrated by the compliance officer, who testified as to various methods of securing these devices [*5] to the structural members on or around which the employees were working. n5
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n3 Section 17(k) of the Act provides:
For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.
n4 Furthermore, one of the employees observed on the beam without appropriate personal protective equipment was respondent's foreman. His knowledge of the violative condition can be imputed to respondent, thus satisfying the knowledge requirement of section 17(k). Ocean Electric Corp., BNA & OSHC 1705, CCH. 1975-76 OSHD para. 20,167 (No. 5811, 1975).
n5 On the question of the assignment of the burden of proving the feasibility of using safety belts in § 1926.28(a) cases see B & B Insulation, Inc., supra (lead and concurring opinions).
[*6]
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A penalty of $500 was assessed by the Judge after giving consideration to the factors specified in section 17(j) of the Act. We agree with this assessment.
Accordingly, that portion of the Judge's decision finding respondent in noncompliance with 29 CFR § 1926.104(a) is reversed. The Judge's decision is affirmed and adopted in all other respects. We find respondent in serious violation of the Act for failure to comply with the standard at 29 CFR § 1926.28(a) and a penalty of $500 is hereby assessed.
It is so ORDERED.
DISSENTBY: MORAN
DISSENT:
MORAN, Commissioner, Dissenting:
I agree with my colleagues' vacation of that portion of the charge which refers to 29 C.F.R. § 1926.104(a). They err, however, in affirming a violation predicated upon noncompliance with 29 C.F.R. § 1926.28(a).
In its present form, § 1926.28(a) is invalid because the Secretary of Labor failed to follow the rulemaking procedures required by 29 U.S.C. § 655(b) in promulgating the revised version thereof. Secretary v. Island Steel & Welding, Ltd., 17 OSAHRC 143 (1975) (dissenting opinion). n6 Inasmuch as the modified version of § 1926.28(a) [*7] is invalid, the original version remains in effect. Secretary v. Island Steel & Welding, supra. That standard provides as follows:
"The employer is responsible for requiring the wearing of 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." n7 (Emphasis added.)
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n6 Also see my dissenting opinions in Secretary v. Cornell and Co., OSAHRC Docket No. 9054, September 22, 1976; Secretary v. Kelly Construction Services, Inc., OSAHRC Docket No. 7102, July 26, 1976; Secretary v. Sweetman Construction Co., OSAHRC Docket No. 3750, March 2, 1976.
n7 The requirements of that standard have been substantially altered in the present version in which the word "or" has been substituted for the word "and." See Secretary v. Isseks Brothers, Inc., OSAHRC Docket No. 6415, January 29, 1976 (dissenting opinion).
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In order to sustain his burden of proving noncompliance [*8] with the above-cited standard, complainant must establish (1) that there was employee exposure to a hazardous condition which warrants the use of personal protective equipment, and (2) that there was a failure to use equipment when such use was required elsewhere in Part 1926 of the regulations. This burden is consistent with that which was set forth by the Ninth Circuit in Hoffman Construction Company v. OSAHRC, 546 F.2d 581 (9th Cir. 1976), where the original version of § 1926.28(a) was considered by the Court. n8
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n8 In that case, the Court stated:
"Liability under 29 C.F.R. § 1926[.28(a)] as then written required proof of three elements: (1) that the employer did not require the wearing of protective equipment; (2) that there was exposure to hazardous conditions; and (3) that Part 1926 of the regulations indicated a need for protective equipment." 546 F.2d at 283.
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As I indicated in dissent in the Island Steel case, 29 C.F.R. § 1926.105(a) can be read together with § 1926.28(a) to indicate the need [*9] for safety belts when employees are working at heights in excess of 25 feet. In the instant case, however, the employees involved were working at a height of 22 feet. Since § 1926.105(a) would not, therefore, apply and complainant has not pointed out any other applicable standard in Part 1926, there can be no violation of § 1926.28(a). Consequently, the citation should be vacated.