CORNELL & COMPANY, INC.

OSHRC Docket No. 9353

Occupational Safety and Health Review Commission

February 4, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

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

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

This case is before the Commission pursuant to exceptions filed by respondent Cornell & Co., Inc. in its Petition for Discretionary Review which was granted by Commissioner Moran. Respondent asserts that Administrative Law Judge Henry K. Osterman erred in affirming a citation issued it alleging a serious violation of the Act for failing to comply with 29 CFR 1926.28(a) or in the alternative with 29 CFR 1926.105(a). In addition, respondent objects to the assessment of a $750 penalty.

We have reviewed the record in light of respondent's exceptions. For the following reasons, we affirm the Judge's decision.

At the time of the Secretary of Labor's inspection respondent was engaged in steel erection on a building under construction in Philadelphia, Pennsylvania. During the inspection a compliance officer observed two of respondent's "steel connector" employees on the eighth floor level. They were walking on exterior [*2] steel girders without the protection of safety belts or safety nets. If the employees had fallen toward the outside of the structure, a 200-foot fall would have resulted.

In the citation and complaint, the Secretary alleged noncompliance with the standard at 1926.28(a) in that respondent's steel connectors should have been protected by personal protective equipment such as safety belts and lanyards. The candard at 1926.28(a) reads as follows:

1926.28 Personal protective equipment.

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

In the event that the use of personal protective equipment proved to be "impractical," the Secretary alleged in the alternative that respondent had a duty to install safety nets under the terms of the standard at 1926.105(a). This standard reads as follows:

1926.105 Safety nets.

(a) Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where [*3] the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.

Respondent's alleged noncompliance was asserted to be a serious violation. A penalty of $750 was proposed.

Following a hearing, Judge Osterman issued his decision in this matter. He ruled that 1926.28(a) did not apply to the cited condition because uncontroverted evidence showed that safety belts and lifelines would inhibit the free movement of the steel connectors and thereby limit their ability to avoid moving girders. n1 Judge Osterman also ruled, however, that in view of the impracticality of personal protective equipment respondent was required under the terms of 1926.105(a) to protect its employees by erecting safety netting on the outside perimeter of the building.

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n1 A steel connector's job involves positioning girders so that they can be secured by the "bolters-up" who follow the steel connectors. Consequently, a steel connector's working conditions include the presence of moving girders.

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In its brief on review, respondent argues that it was not responsible for exposing its steel connectors to the hazard observed by the compliance officer. Respondent bases this argument upon assertions that safer routes were available to its steel connectors and that it neither directed nor ordered its employees to walk on the exterior girders. We find no merit in this argument.

Apart from bare assertions in respondent's brief, there is virtually no evidence of record to support the factual predicate upon which respondent bases its argument. On the contrary, as noted by Judge Osterman, the evidence shows that respondent was fully aware that it was common for its steel connectors to walk on exterior girders. Thus, even if we were to assume that respondent did not order its steel connectors to walk on the exterior girders and that safer routes were available, we would hold that respondent was responsible for exposing its employees to the cited hazard. The evidence shows that respondent was fully aware that its steel connectors routinely walked on exterior girders without appropriate fall protection.

Respondent also argues that it should not be held in violation of 1926.105(a) [*5] because it would be "unrealistic" under the circumstances of this case to require exterior netting around the building's perimeter. It is argued that compliance with 1926.105(a) would ". . . expose more workmen to greater danger by the very act of installing such exterior netting." n2 Moreover, respondent urges that this alleged greater hazard to safety net installers must, in effect, be balanced against the fact that its steel connectors are experienced and skilled in working at great heights without protection. We reject this argument.

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n2 Brief for respondent at 3.

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While the Commission has recognized the availability of a "greater hazard" defense, it has also stressed the narrowness of the defense. Russ Kaller, Inc., t/a Surfa Shield, 4 BNA OSHC 1758, CCH 1976-77 OSHD para. 21,152 (No. 11171, October 7, 1976) and cases cited therein. In the Russ Kaller decision we stated that:

The Commission has not read section 5(a)(2) so literally as to require a form of compliance that will diminish rather than [*6] enhance the safety of employees. Industrial Steel Erectors, Inc., 6 OSAHRC 154, 156, BNA 1 OSHC 1497, CCH 1973-74 OSHD para. 17,136 (No. 703, 1974); Lee Way Motor Freight, Inc., BNA 3 OSHC 1843, CCH 1975-76 OSHD para. 20,250 (No. 7674, 1975). See also U.S. Steel Corp. v. O.S.H.R.C., No. 75-2095 (3d Cir., April 30, 1976). The scope of the defense recognized in those cases is, however, narrow. It is not enough that compliance with the literal terms of the standards would create new hazards. Lee Way Motor Freight, Inc., supra. The record must show that the hazards of compliance are greater than the hazards of noncompliance (id.; Carpenter Rigging & Contracting Corp., 15 OSAHRC 400, 407, BNA 2 OSHC 1544, 1548, CCH 1974-75 OSHD para. 19,252 (No. 1399, 1975)); that alternative means of protecting employees are unavailable (G.A. Hormel & Co., 12 OSAHRC 623, BNA 2 OSHC 1282, CCH 1974-75 OSHD para. 18,685 (No. 1410, 1974) (order on petition for consideration); Cimpl Packing Co., 14 OSAHRC 153 n.2, BNA 2 OSHC 1436, 1437 n.2, CCH 1974-55 OSHD para. 19,127 (No. 1987, 1974)), and that a variance application under section 6(d) of the Act would be inappropriate [*7] (G.A. Hormel & Co., 11 OSAHRC 725, BNA 2 OSHC 1190, CCH 1974-75 OSHD para. 18,685 (No. 1410, 1974)).

We will, therefore, apply the above criteria to the defense suggested in respondent's brief.

There is no evidence tending to show that the process of erecting safety netting would necessarily expose employees to hazards. Thus, on this record it cannot be said that compliance with 1926.105(a) would pose any hazards to respondent's employees, much less hazards that would be greater than those posed by noncompliance. In addition, there is no proof that would suggest either the unavailability of alternative protection measures or the inappropriateness of a variance application. We, therefore, reject respondent's defense.

The foregoing discussion has placed no reliance upon respondent's assertions that its steel connectors were experienced in working without protection at great heights. Reference to the compliance methods set out in 1926.105(a) indicates an attempt to protect employees in ways that do not depend predominantly upon human behavior. Experience in working under hazardous conditions cannot be considered a substitute for physical protection measures set out in [*8] a standard. See Akron Brick & Block Co., 3 BNA OSHC 1876, CCH 1975-76 OSHD para. 20,302 (No. 4859, January 14, 1976); Huber, Hunt & Nichols, Inc., and Blount Bros., Corp., 4 BNA OSHC 1406, CCH 1976-77 OSHD para. 20,837 (No. 6007, June 7, 1976); Slyter Chair, Inc., 4 BNA OSHC 1110, CCH 1976-77 OSHD para. 20,589 (No. 1263, April 8, 1976).

Based on the above and the Judge's findings we hold that by not erecting safety nets respondent failed to comply with 1926.105(a). Moreover, as found by Judge Osterman, this noncompliance constituted a "serious" violation of the Act. n3

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n3 29 U.S.C. 666(k).

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Respondent takes exception to the Judge's assessment of the $750 penalty proposed by the Secretary. Without setting forth any specifics, respondent urges that the facts of the case do not warrant any penalty at all much less one of the amount assessed. We disagree. The evidence of record supports the Judge's assessment of a $750 penalty.

Respondent has been previously cited for failing to protect its employees [*9] from the hazards of falling from steel beams. Respondent did not contest a citation issued on June 15, 1973 alleging a failure to comply with 1926.28(a). In addition, despite the experience of respondent's steel connectors, we find the gravity of this violation to be relatively high. At least one employee was exposed to the consequences of a 200 foot fall onto ". . . a mass of debris and rebars sticking up in the vertical position." n4 Balancing the above against respondent's medium size, n5 we consider the assessment of a $750 penalty to be appropriate.

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n4 Judge's decision at 2 (transcript reference omitted).

n5 In 1973, respondent had gross revenues in excess of five million dollars and maintained an average workforce of 200 employees.

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Accordingly, the Judge's decision insofar as it is consistent with the above is affirmed. n6

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n6 The dissenting opinion suggests that it is error to affirm a violation of the standard at 29 CFR 1926.105(a) under the facts of this case. It is asserted that the standard at 29 CFR 1926.750(b)(1)(i) applies to the cited hazard to the exclusion of 29 CFR 1926.105(a).

We note that respondent has not asserted such an argument before the Judge or this Commission. Consequently, we deem it inappropriate to resolve the issue raised for the first time in Commissioner Moran's dissent.

[*10]

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So ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

It is error to hold respondent in noncompliance with 29 C.F.R. 1926.105(a) because that standard was never intended to apply to the condition for which respondent was cited. On the contrary, the factual circumstances of this case are governed by 29 C.F.R. 1926.750(b)(1)(i), with which respondent fully complied. n7

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n7 My colleague's reason for not addressing this matter as asserted in footnote 6 is not well taken. The Commission is empowered to review the entire record of any case that has been directed for review by a Commission member. Accu-namics, Inc., v. OSAHRC, 515 F.2d 828, 834 (5th Cir. 1975).

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The safety standards codified under Subpart R of Part 1926 (29 C.F.R. 1926.750 et seq.) apply to steel erection work, the activity in which this respondent was engaged. Secretary v. Ashton Co., Inc., OSAHRC Docket No. 5111, January 26, 1976. Section 1926.750(b)(1)(ii) [*11] provides, in pertinent part, as follows:

"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 distances exceeds two stories or 25 feet."

Any employer engaged in steel erection would turn to this subpart and come to the following two conclusions: first, an employer is required, if possible, to maintain temporary flooring; second, if the structure is not adaptable to temporary flooring, a safety net must then be installed where the potential fall distance exceeds two stories or 25 feet. n8 In this case, the structure was adaptable to temporary flooring and, accordingly respondent constructed such flooring 25 feet below where its employees were working.

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n8 The conclusion that temporary flooring and safety nets are not both required is supported by the following remarks of the Secretary of Labor accompanying the promulgation of a revision in 29 C.F.R. 1926.750(b)(2)(i) which requires the installation of temporary floors at specified distances below workers if practicable:

"[A] floor permits some work to be done by employees standing on the floor. Thus, it is expected that the hazards of falling the whole potential distance are fewer when floors are provided than when safety nets are provided." 39 Fed. Reg. 24360 (1974) (emphasis added).

The revision also states that 29 C.F.R. 1926.750(b)(1) is applicable if a temporary floor "is not practicable."

[*12]

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Notwithstanding the express wording of 1926.750(b)(1)(ii), which requires the installation of a safety net only when temporary flooring cannot be constructed, my colleagues conclude that 1926.105(a), required respondent to install a safety net in addition to the flooring. Such a reading of the standards is not only patently unfair and misleading to an employer, but it is also contrary to 29 C.F.R. 1910.5(c), which provides, in pertinent part, as follows:

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

The condition here at issue is the presence of employees on steel beams during steel erection work. The safety standard at 29 C.F.R. 1926.750(b)(1) is fully applicable to that condition, and it requires either the installation of a safety net or the construction of temporary flooring. Since respondent provided temporary flooring, it complied with the applicable standard [*13] and cannot then be held in noncompliance with a more general standard, which, by virtue of 29 C.F.R. 1910.5(c), was never intended to apply to the conditions here at issue.

Finally, I am constrained to mention that it is improper for my colleagues to require employers to prove more than that compliance with a cited standard will diminish employee safety in order to establish a "greater hazard" defense. Secretary v. Cimpl Packing Company, 14 OSAHRC 153 (1974) (dissenting opinion); Secretary v. George A. Hormel and Company, 11 OSAHRC 725 (1974) (dissenting opinion).