UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR, |
|
Complainant, |
|
v. |
OSHRC DOCKET NO. 6415 |
ISSEKS BROTHERS, INC., |
|
Respondent. |
|
January 29, 1976
DECISION
BEFORE BARNAKO, Chairman; MORAN and
CLEARY, Commissioners.
CLEARY, Commissioner:
On September 17, 1974, Judge Charles
K. Chaplin rendered his decision affirming a citation for a serious violation
of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C.
§ 651 et seq. (hereinafter ‘the Act’). On October 10, 1974, Commissioner Moran
directed review of the Judge’s decision. Submissions were invited on the
following issues:
(1) Is the
occupational safety and health standard published at 29 CFR § 1926.28(a) an
enforceable regulation?
(2) If so, was
the same properly promulgated in accordance with law?
We have considered the entire
record, and for the reasons that follow we affirm the Judge’s order.[1]
Background of the Case
The hearing held in June 1974
concerned a citation issued during January 1974 charging the respondent with
serious violation of section 5(a)(2) of the Act for a failure to comply with 29
CFR § 1926.28(a). This standard provides that:
§ 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 (emphasis added).
The complaint alleged a failure to
insure that employees wore appropriate equipment where there was exposure to
the hazard of falling from fixed ladders. The employees were performing
maintenance on a rooftop water tank about eight floors above the street. As
part of their job tasks, the workers climbed up and down fixed metal ladders.
The ladder leading to the top of the water tank was inclined at a steep angle,
and the top of the tank was between 26 and 30 feet above the rooftop. No
personal protective equipment was worn by any of the workers to protect against
falls from these ladders although respondent’s own unenforced safety rule is
that safety belts are to be worn while climbing ladders. Respondent’s industry
has also published manuals indicating the need for such equipment. None of the
ladders was caged.
Testimony at the hearing was
limited to that of the compliance officer who conducted the original inspection
and the President of the respondent employer. Judge Chaplin after considering
the evidence and the employer’s post hearing brief, affirmed the citation and
proposed penalty of $500.
Vagueness of 29 CFR § 1926.28(a)
The respondent employer argues
that the standard at issue is so vague and indefinite as to violate
Constitutional due process protections against vagueness. The standard
allegedly fails to give fair notice to employers of what conduct is required.
The phrases ‘appropriate protective equipment’ and ‘when there is exposure to
hazardous conditions’ are considered too vague.
We disagree. As we have stated
before, if the employer is uncertain of what personal protective equipment is
‘appropriate’ he may look to the specifications in Subpart E of Part 1926,
entitled ‘Personal Protective and Lifesaving Equipment.’ With specific
reference to the hazard of falling, he may comply with the standard by
requiring the use of tied-off safety belts, lanyards and safety lines to
protect employees as required by 29 CFR § 1926.104(a). See generally, Hoffman
Constr. Co., 2 BNA OSHC 1523, CCH 1974–75 OSHD para. 19,275 (No. 664,
January 31, 1975). If personal protective equipment for the particular hazard
is not listed in Subpart E, and the employer requires guidance in devising or
finding appropriate equipment, he may consult publications such as ANSI
A14.3–1974 ‘Safety Requirements for Fixed Ladders’ § 6 at 24–25, or trade publications
on safety (such as the ones in this record).[2]
Also, the employer may consult with the Secretary pursuant to section 21(c) of
the Act which requires the Secretary to advise and consult with employers.
A condition that is ‘hazardous’ is
one having a direct and immediate adverse effect on safety or health (Lee
Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864, 869 (10th Cir.
1975)) which is not so remote as to be nearly negligible (General Electric
Co., 3 BNA OSHC 1031, 1044, CCH 1974–75 OSHD para. 19,567 at 23,369 (No.
2739, April 21, 1975). The term is not vague. In rejecting respondent’s theory
of the case, the Judge relied upon Ryder Truck Lines, Inc. v. Brennan,
497 F.2d 230 (5th Cir. 1974) and inquired whether respondent’s industry recognized
the requirement for a safety belt where no other form of protection from
falling, i.e., a cage, was available, and whether such hazards are recognized
by respondent’s industry. The Judge noted that the respondent’s president
conceded that the fall hazard involved is recognized in the industry and also
that respondent required generally the use of safety belts whenever his
employees were climbing ladders. Hence, the Judge concluded that there was no
problem of Constitutional notice. We agree.[3]
Validity of 29 CFR § 1926.28(a)’s
Adoption[4]
Section 1926.28(a) was initially
adopted in 1971 as an ‘established Federal standard.’[5]Late
in December 1971 the standard was numerically redesignated without any change
in its substance.[6]
About one year later the standard was changed.[7]
This change forms the basis for an argument that the amended standard was
invalidly adopted.
The change of section 1926.28(a)
was part of a revision of Part 1926 as a whole. Three purposes of the revision were
the following:
(1) to publish fully in one place the present occupational
safety and health standards contained therein in order to reflect many changes
made during the current year and thereby to improve their usefulness and
facilitate their enforcement;
(2) to correct a number of typographical and clerical errors
in the text of the standards; and
(3) to publish indexes with the standards, which are
intended to permit quicker access to pertinent standards.
37 Fed. Req. 27503 (1972). No notice or
opportunity for public comment was provided, since the Assistant Secretary
explicitly stated that no substantive changes were made in the standards.
The change made to section
1926.28(a) in the course of this revision was the substitution of the conjunction
‘or’ for the conjunction ‘and’ used in the initial standard. Both Hoffman
Constr. Co., supra, and Carpenter Rigging & Contracting Corp., supra,
considered at length the construction to be given to the use of ‘and’ in the
standard.
Detailed discussion of this issue
is unnecessary, for we feel that Eichleay Corp., supra, is dispositive.
The Commission in Eichleay took note of the change made in the standard
and the Secretary’s statement in the preamble of the revision that no
substantive changes were made. The Commission then concluded that the word ‘or’
should receive the same reading as the word ‘and’ used in the previous version
of the standard.
Since 29 CFR § 1926.28(a)
underwent no substantive change in this revision, the standard was validly
adopted. The only change was a minor one. 29 CFR § 1911.5. Furthermore, the
preamble to the Federal Register revision of § 1926.28(a) included a finding of
good cause to this effect, in that the document did not make ‘substantive
changes in the standards.’ 37 Fed. Reg. 27503 (1972).
Objections Raised in the Respondent’s
Brief on Review
In its brief on review, the
respondent raised two main objections to Judge Chaplin’s decision. Respondent
first argued that § 1926.28(a) is in effect an application of the ‘general duty’
clause, and that no recognized hazard existed under the facts of this case. The
simple answer is that the citation charged a violation of a specific standard
adopted under section 5(a)(2) of the Act. At no point in the case was an
attempt made to allege a violation under section 5(a)(1). The elements of a
section 5(a)(1) violation are thus not relevant to this case. Indeed, the
existence of a specifically applicable standard would preempt the application
of the general duty clause. 29 CFR § 1910.5(f); Brisk Waterproofing Co., Inc.,
1 BNA OSHC 1263, CCH 1973–74 OSHD para. 16,345 (No. 1046, July 27, 1973);
Godwin-Bevers Co., Inc., 2 BNA OSHC 1470, CCH 1974–75 OSHD para. 19,206 (No.
1373, January 7, 1975); Brennan v. Butler Lime & Cement Co., 520
F.2d 1011, 1017–1018 n.9 (7th Cir. 1975), citing National Realty &
Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257, 1261 (D.C. Cir. 1973).
Respondent’s argument that section
5(a)(1) elements are applicable apparently derives from language used in McLean
Trucking Co. v. O.S.H.R.C., 503 F.2d 8 (4th Cir. 1974). The Court there
drew a parallel between the breadth of the ‘general duty’ clause, and that of
the standard at issue. Both furthered the goals of the Act and both were
drafted with as much exactitude as possible. At no point, however, did the
Court hold the requirements for a section 5(a)(1) violation applicable to a
cited violation of a broad section 5(a)(2) standard.
On the merits of the allegation of
non-compliance, we affirm and adopt the Judge’s findings that respondent did
not require the use of appropriate personal protective equipment, (cf. Otis
Elevator Co., 3 BNA OSHC ——, CCH 1975–76 OSHD para. 20,159 (No. 1184,
November 19, 1975)) and that the hazard of falling from ladders existed. That
respondent’s employees had not yet suffered any injuries does not alone negate
the existence of a hazardous condition. Cf. Ryder Truck Lines, Inc., 497
F.2d 230 (5th Cir. 1974). We also agree with the Judge’s finding that the
violation was serious.
Accordingly, it is ORDERED that
the decision of Judge Charles K. Chaplin be affirmed.
FOR THE COMMISSION:
William S. McLaughlin
Executive Secretary
DATED: JAN 29, 1976
BARNAKO, Chairman, Concurring:
I concur but do not join in my
colleague’s discussion of the vagueness and validity issues. The Commission’s
decisions in Hoffman Construction Co., supra, and Eichleay Corp.,
supra, are dispositive. In my opinion the administrative law judge’s
findings and conclusions were appropriate for the reasons assigned by him.
MORAN, Commissioner, Dissenting:
In a determined effort to pay
homage to the opinions of Humpty-Dumpty rather than the U.S. Court of Appeals,
the lead opinion continues to insist that the Commission can make words mean
different things.[8]
Undeterred by the failure to make the word ‘roof’ mean ‘floor,’ it is now
revealed that the word ‘or’ has the same meaning as the word ‘and.’ I quote
directly from the lead opinion:
‘. . . the word ‘or’ should receive the
same reading as the word ‘and’ . . ..’
For 200 years students of American
History believed that Patrick Henry was speaking in the alternative when, on
March 23, 1775, he said:
‘. . . give me liberty, or give me
death!’
But in this bicentennial year the
Commission’s guide to word-usage would have that famous declaration read—brace
yourself now—
‘. . . give me liberty, and give me
death!’
Our forefathers who launched a
revolution because they believed they had the ‘unalienable right’ to ‘life, liberty,
and the pursuit of happiness’[9]
might have reacted differently if one of my colleagues had been there to advise
them that proper word usage requires that this declaration of the rights they
cherished could also be interpreted to mean ‘life, liberty, or the pursuit of
happiness.’
Logic requires that one ask this
question: If there were no difference between the two words, why did the
Secretary of Labor go to the trouble of making the change as chronicled in
notes 5 through 7, supra, and the accompanying text? The three ‘reasons’ which
appeared in the Federal Register, and which are listed in the lead opinion,
give no clue whatsoever. Certainly replacing ‘or’ with ‘and’ has nothing to do
with publishing the standards fully in one place—correcting textual errors—or
publishing indexes.
Clearly the requirements of the
standard were altered by the change. Under the ‘established Federal standard‘
which was adopted pursuant to the limited authority contained in 29 U.S.C. §
655(a) an employer’s duty was to see that his employees wear protective
equipment where there existed both a hazardous exposure and where the regulation
so indicated. What my colleague refers to as a ‘slight change‘ mandated a
totally different duty for employers: protective equipment is required either
where there is hazardous exposure or where the regulation so indicates.
The lead opinion implicitly
concedes that the Secretary of Labor could not legally change this requirement
in the manner he employed—because the Act limits the summary adoption of
standards to ‘established Federal standards’ and ‘national consensus
standards.’ Once the word ‘or’ was substituted for the word ‘and’ it was no
longer an established Federal standard so the procedure which the Secretary
employed to ‘adopt’ the change—29 U.S.C. § 655(a)—was improper. Such a change
could only be made by following the public scrutiny provisions which appear in
29 U.S.C. § 655(b).
A recent decision of the Court of
Appeals for the Third Circuit, AFL-CIO v. Brennan, —— F.2d —— (3d Cir.,
No. 75–1105, decided December 31, 1975) considered the authority of the
Secretary of Labor to make changes in national consensus standards which, under
the Act, have the exact same status as established Federal standards. Said the
Court:
‘. . . if his [the Secretary of Labor’s] standard differs
substantially from an existing national consensus standard he must . . .
attempt to show . . . what reasons there are for the departure. If the reasons
for the departure are based in whole or part on factual matters susceptible of
evidentiary development, they must, as in any other case, be supported by
substantial evidence in the record as a whole.’
That, of course, was not even
attempted in this case. The resort of the Commission in this case to the mind
blowing nonsense of proclaiming that there is no difference between the two
words at issue is a clear admission that legal procedures were not observed in
making the change.
Because the Secretary had no
statutory authority to make the change in the wording of § 1926.28(a)
without observing the requirements of 29 U.S.C. § 655(b), the version of the
standard containing the word ‘or’ is invalid. I have also made this point in Secretary
v. Island Steel & Welding, Ltd., 17 OSAHRC 143, 144 (1975), and Secretary
v. Carpenter Rigging & Contracting Corporation, 15 OSAHRC 400, 409
(1975).
Where the modified version of a
standard is invalid, it does not repeal the original standard. See 1A Sutherland
Statutory Construction § 23.24 (4th ed. C. Sands rev. 1972). Consequently,
the original version of 29 C.F.R. § 1926.28(a) [10]remains
in force and effect.
To establish a violation under the
original (and only valid) version of the standard, proof of two things is
required:
(1) exposure to a hazardous condition warranting the use of
personal protective equipment, and
(2) failure to use this equipment when its use is required
elsewhere in Part 1926 of the regulation.
Secretary v. Island Steel &
Welding, Ltd., supra. Therefore, to
establish a violation of the standard in this case, it must be shown that
another standard within Part 1926 required respondent’s employees to wear
safety belts.
The standard that comes closest to
requiring the use of safety belt is 29 C.F.R. § 1926.105(a) which
provides:
‘Safety nets shall be provided when workplaces 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.’
This standard has been interpreted
to require the use of safety nets or one of the other enumerated items when
work is performed at heights of more than 25 feet. Brennan v. Southern
Contractors Service, 492 F.2d 498 (5th Cir. 1974). There is nothing therein
to indicate that any of these devices must be used in conjunction with one
another.
In the instant case respondent’s
employees were performing emergency repairs upon a roof-top water tank. The men
used fixed ladders. Neither § 1926.105(a) nor any other standard within Part
1926 requires that safety belts be used as well. Accordingly, the citation
should be vacated.
Regrettably the trial below was
conducted while the Judge and all parties to the case were unaware of the
wording change in the regulation. Nevertheless, I believe the facts involved
were carefully set forth in Judge Chaplin’s decision so I incorporate the same
herein as Appendix A.
APPENDIX A
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR, |
|
Complainant, |
|
v. |
OSHRC DOCKET NO. 6415 |
ISSEKS BROTHERS, INC., |
|
Respondent. |
|
FINAL ORDER DATE: October 17, 1974
APPEARANCES:
Theodore Gotsch, Esq. For the complainant and
Joseph S. Kaming, Esq. For the respondent
Charles K. Chaplin, Judge
The above identified cause arose
at a workplace where respondent’s employees had been summoned to perform
maintenance on a rooftop water tank.
This is a proceeding pursuant to
Section 659 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et
seq., hereafter the Act) wherein the respondent contested both the violation
and the proposed penalty for an alleged serious violation.[11]
The violation as cited was alleged
noncompliance with the standard at 29 CFR 1926.28(a) and it was described in
the citation as:
‘Employees are exposed to the hazards of falling due to
failure to utilize personal protective equipment such as ladder safety devices
(for five ladders) safety belts and life lines or safety nets for work
performed on January 17, 1974.’
The applicable standard provides:
‘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 hazard to the employees.’
The complaint alleged that on or
about January 17, 1974, at a workplace located at 149 W. 45th Street, New York,
New York ‘. . . the respondent failed to insure that its employees wore the
appropriate personal protective equipment in an operation where there was
exposure to hazardous conditions in that there was no ladder safety devices for
a number of ladders utilized at the worksite.’
The parties stipulated that
respondent was engaged in interstate commerce, that respondent is small in
relative size with yearly gross revenue of approximately $700,000, that
respondent has no history of violations under this act, and daily has between
10 and 13 employees. Respondent then advised that it wished to withdraw its
contest to a nonserious violation respecting protective helmets. Respondent
stated it had provided helmets but the employees were not wearing them on the
date of inspection, that respondent has again instructed all employees to wear
helmets and will continue to abide by the regulations. Respondent’s motion to
withdraw was then granted.
At trial complainant moved to
amend the complaint to conform to the citation. This motion was denied on the
basis that dropping a portion of the citation was an abandonment of such
element and to resurrect it on the date of trial would prejudice respondent.
The Evidence
The complainant offered the
testimony of Mr. Theodore Corcoran, a Compliance Safety and Health Officer, who
had conducted an inspection on January 17, 1974 of a worksite where
respondent’s employees were making emergency repairs to a rooftop water tank.[12]
The tank was on the roof of a theater building at 149 West 45th Street (Tr.
36), about eight floors above the street. The roof was in three levels with
vertical fixed metal ladders from the lower to intermediate level and to the
top level (Tr. 37). There was a fixed metal ladder at a 75 degree angle,[13]
in excess of 30 feet (35 rungs), from the rooftop to the top of the tank (Tr.
38). On arriving at the worksite Mr. Corcoran observed four workmen of
respondent (Tr. 41), one on the lower roof level, one on the upper roof level,
and two at the tank level, with one of these on top of the tank (Tr. 40).
During the inspection the men changed locations and went up and down the
ladders (Tr. 61) and he observed no personal protective equipment being used.
He described such protective equipment as a safety belt with ladder climbing
attachments (Tr. 43). He discussed with the employees the need for measures to
prevent falls from the ladders and observed that in the ‘normal’ use of fixed
ladders, falls frequently result without intervening cause (Tr. 47). During the
time he was at the worksite he did not see any safety belts and when he left
the men were tying off with a manila rope (Tr. 50). He determined the hazards
to which these employees were exposed were serious because of the possibility
of falling from over 30 feet and sustaining serious physical harm or death. In
computing the penalty respondent was allowed the maximum consideration for
size, good faith and prior history so that the initial penalty was reduced 50%
(Tr. 60).
On cross examination Mr. Corcoran
stated that these ladders should have had wells or cages or, in the
alternative, personal protective equipment in conjunction with climbing grabs
or a track could have been used. He described a track as sections of pole
bolted to the ladder and to which the worker could attach his safety belt on a
sliding device.[14]
He described the hand grabs as attachments to the belt which are fitted over
the rungs or sides of the ladder and released and reattached as the wearer
climbs (Tr. 81). If a temporary ladder, as distinguished from a fixed ladder,
was properly placed no such device would be required while using the ladder. He
felt the roof ladders to be more hazardous than the tank ladder. The experience
of the workmen was not a factor in determining the form of device required (Tr.
94). He also related that the hazard to which the workman on top of the water
tank was exposed was his principal concern and although this was no longer in
issue the penalty remained unchanged.
He
further stated that at the lower roof level ladder there was a rope alongside
the ladder, used for hoisting materials, and that a workman could possibly grab
this rope. A rope was also beside the tower ladder (Tr. 190).
On redirect testimony Mr. Corcoran
testified that he specifically asked the workmen if they had safety belts with
them and was informed they were back in the shop (Tr. 192). His instructions
from his office were that a rope is not an acceptable ladder safety device (Tr.
206).
Respondent’s president, Mr.
Marshall Hochhauser, testified that he was actively involved in respondent’s
business, has taken safety and engineering courses in construction and is
Chairman of the Safety Committee of the National Wood Tank Institute. His
involvement with respondent included selling and office, shop and erection
procedures. The safety committee of which he was chairman, set up policies
which the members tried ‘. . . to live up to and to conform with the OSHA
regulations and also where we disagree, to send in what we feel the
requirements should be.’ (Tr. 132). Respondent offered as an exhibit a report
of the National Wood Tank Institute Safety Committee.[15]
This exhibit contained a safety manual, Basic Safety Rules for Field Erection
and Construction by Caldwell Tanks, Inc. setting forth at page 5 that ‘In
places where no other form of protection from falling is available, a safety
belt and tail line must be used.’ Mr. Hochhauser also stated (Tr. 141) that his
employees were required to wear safety belts when climbing ladders. This
requirement was enforced by supervisors, foreman or leaders (Tr. 143). The only
reason he could advance for his employees not wearing safety belts on the day
of inspection was because the work being performed was an emergency repair and
the employees were expediting it (Tr. 147). He described the safety device he
utilized as
‘. . . they clip right on to the ladder they go up . . .
(Tr. 166)
Q. They clip from rung to rung as they go up?
A. Yes.’
Further he stated the material hoist
rope was a safety device (Tr. 170).
Findings of Fact
1. Respondent had employees working on
a building roof for the purpose of repairing a wooden water tank rising
approximately 26 feet to its top.
2. The roof top was in three levels
with access to each higher level by way of fixed metal ladders.
3. The water tower was reached by way
of a fixed metal ladder.
4. The roof ladders were vertical and
the tank ladder was inclined at an indeterminate angle.
5. Respondent had four workmen at the
worksite and at least three of them traversed the roof ladders and two of them
the tank ladder.
6. None of the ladders was caged and
none of the men wore any personal protective devices.
7. Injury from falling from one of
these ladders would have resulted in serious physical harm or death.
Discussion
Much trial time was devoted to a
device that could be attached to a ladder to make working with a safety belt
easier. Just as in sports a player must keep his eye on the ball, so too in the
law lawyers must keep their eye on the point in litigation. Here the issue is
whether respondent’s employees were wearing any personal protective device that
would assist them in the event of a fall. This issue arose because the
building’s owner had not provided any type of ladder safety device so safety
was left solely to the person climbing the ladder. A climber in these
circumstances can achieve ladder safety only by wearing a safety belt that will
catch him if he falls. Thus ladder safety devices are not part of the issue.
Official notice is taken of the fact that people fall off of ladders for a
variety of reasons including slipping, vertigo, and physical reasons. Thus a
rope, as testified to as a safety device, is not a safety device when just
hanging alongside the ladder since an unconscious person or one falling away
from the rope could not avail himself of it.
The proposed penalty covered not
only the failure to wear personal protective gear but also the use of other
devices to protect the workmen on top of the tank. However in deleting the
latter item from the issues no penalty adjustment was made.
Respondent has cited various
decisions by Commission Judges to the effect that the standard at 1926.28(a) is
vague and unenforceable.[16]
In general these decisions stand for the proposition that § 28(a) is vague when
standing alone. A substantially similar standard at 1910.132(a) requiring ‘. .
. protective equipment . . . shall be provided, used . . . wherever it is
necessary by reason of hazards . . . encountered in a manner capable of causing
injury . . .’ was recently reviewed[17]
and the court held that
‘The regulation appears to have been drafted with as much
exactitude as possible in light of the myriad conceivable situations which
could arise and which would be capable of causing injury. Moreover, we think
inherent in that standard is an external and objective test, namely, whether or
not a reasonable person would recognize a hazard of foot injuries to dockmen,
in a somewhat confined space, from falling freight and the rapid movement of
heavy mechanical and motorized equipment, which would warrant protective
footwear. So long as the mandate affords a reasonable warning of the proscribed
conduct in light of common understanding and practices, it will pass
constitutional muster.’
There is little to distinguish the
standards at 1910.132(a) and 1926.28(a) insofar as their general applicability
is concerned. Using the test enunciated in Ryder, supra, it is clear
that respondent’s industry recognized the requirement for a safety belt where
no other form of protection from falling, i.e., a cage, was available. Further
respondent’s president required such belts whenever his employees were climbing
ladders. A hanging rope alongside the ladder does not begin to approximate ‘. .
. personal protective equipment . . .’ Whether respondent’s employees have had
no ladder falls is not determinative of the hazard which respondent’s president
concedes is recognized in the industry.
Conclusions of Law
1. The Occupational Safety and Health
Review Commission has jurisdiction over the respondent and the matter in issue.
2. Respondent was in noncompliance with
the standard at 1926.28(a) and thus in violation of 29 USC 654.
3. Such violation was a serious
violation within the meaning of 29 USC 666.
Order
The citation for a serious
violation of the standard at 1926.28(a) and the proposed penalty of $500 are
affirmed.
It is so ORDERED.
CHARLES K. CHAPLIN
Judge, OSHRC
Dated: September 17, 1974
Washington, D.C.
[1] For my own part, I would add that in my opinion the Commission lacks authority to decide the Constitutional question of vagueness inherent in the first issue, and to review the validity of rulemaking actions of the Secretary of Labor. My views on these matters are expressed fully in Carpenter Rigging & Contracting Corp., 2 BNA OSHC 1544, 1546–47, CCH 1974–75 OSHD para. 19,252 at 23,030 (No. 1399, February 4, 1975) (lead opinion), Divesco Roofing & Insulation Co., 1 BNA OSHC 1279, CCH 1973–74 OSHD para. 16,443 (No. 345, August 13, 1973) (concurring opinion), United States Steel Corp., 2 BNA OSHC 1343, 1345, CCH 1974–74 OSHD para. 19,047 at 22,773 (Nos. 2975 & 4349, November 14, 1975) (concurring opinion), and Santa Fe Trail Transport. Co., 1 BNA OSHC 1457, 1460, CCH 1973–74 OSHD para. 17,029 at 21,707 (No. 331, December 18, 1973) (dissenting opinion), rev’d 505 F.2d 869 (10th Cir. 1974).
[2]
This
interpretation is consistent with the purposes of the Act. Society of the
Plastics Industry, Inc. v. O.S.H.A., 509 F.2d 1301, 1309 (2d Cir.), cert.
denied 95 S.Ct. 1998 (1975).
[3]
It
should be noted, however, from the application of the terms of the standard in
the text of this decision that the standard does not actually require the use
of a ‘reasonable man’ test in determining the course of conduct required of an
employer. Hoffman Constr. Co., supra, Carpenter Rigging &
Contracting Corp., supra at note 1, and Eichleay Corp., 2 BNA OSHC
1639, CCH 1973–74 OSHD para. 16, 811 (No. 2610, October 16, 1973)
(Administrative Law Judge), aff’d by the Commission, 2 BNA OSHC 1635, CCH
1974–75 OSHD para. 19,324 (February 20, 1975) should be read accordingly. Of
course, whether a hazardous condition exists can be determined by reference to
industry’s recognition of a hazard, but this is not necessarily controlling. Cf.
United States Steel Corp., Am. Bridge Div., CCH 1973–74 OSHD para. 17,243,
(No. 3010, January 31, 1974) (Administrative Law Judge), aff’d by an equally
divided Commission, 19 OSAHRC 512, 3 BNA OSHC 1434, CCH 1975–76 OSHD para.
19,883 (July 29, 1975). Other probative evidence, such as records of personal
injury may be used as well. See Texports Stevedore Co., Inc. v. Secretary of
Labor, 484 F.2d 465, 467 (5th Cir. 1973) which relies upon the
circumstances of a particular incident without reference to industry practices.
[4]
This
issue was raised sua sponte in the direction for review, and it is doubtful
whether it is properly before us. Cf. Puterbatgh Enterprises, Inc., 2
BNA OSHC 1030, CCH 1973–74 OSHD para. 18,158 (No. 1097, July 1, 1974)
(vagueness raised in direction for review untimely).
[5]
36
Fed. Reg. 10469 (1971).
[6]
36
Fed. Reg. 25232 (1971).
[7] 36 Fed. Reg. 27503 (1972).
[8]
See
Langer Roofing and Sheet Metal Inc. v. Secretary of Labor, —— F.2d ——
(7th Cir., Nos. 74–1645 and 75–1203, decided November 20, 1975) where the Court
overturned the Secretary of Labor’s effort to sustain a Commission decision
holding that a roof is a floor, and stated:
‘Unlike Humpty-Dumpty, the Secretary may not give a word whatever meaning he chooses, and while we would defer to any reasonable interpretation on his part, we are convinced that the interpretation he advances here is unreasonable.’ (Footnote omitted.)
[9] Declaration of Independence, July 4, 1776.
[10] 36 Fed. Reg. 7347 (1971) as adopted by 29 C.F.R. § 1910.12, 36 Fed. Reg. 10469 (1971). The standard, originally designated as 29 C.F.R. § 1518.28(a), was redesignated as 29 C.F.R. § 1926.28(a) on December 30, 1971. 36 Fed. Reg. 25232 (1971).
[11] During a pretrial conference the parties had settled the issue raised in the notice of contest respecting a nonserious violation of 29 CFR 1926.100(a).
[12] The tank was of wooden stave construction (Tr. 184), about
10 feet in height sitting on a supporting structure 16 to 18 feet in height
(Tr. 155).
[13]
On
cross examination Mr. Corcoran stated the ladder angle of incline was an
approximation and he did not answer when queried specifically if the angle
could have been less (Tr. 88).
[14]Exhibit C–1.
[15] Exhibit R–1.
[16] Edward M. Ream, Inc., OSHRC Docket No. 1504, CCH ¶15,569; American
Bridge, OSHRC Docket No. 2249, CCH ¶16,284; Everhart Steel Construction
Company, Inc., OSHRC Docket No. 3217, CCH ¶17,062, and United Engineers
and Constructors, Inc., OSHRC Docket No. 2414, CCH ¶17,161.
[17] Ryder Truck Lines, Inc. v. Brennan, (5th Cir.), No. 73–3341, July 18, 1974.