UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
|
SECRETARY
OF LABOR, |
|
|
Complainant, |
|
|
v. |
OSHRC
DOCKET NO. 15565 |
|
MORTON
BUILDINGS, INC., |
|
|
Respondent. |
|
September 7, 1979
DECISION
Before: CLEARY, Chairman; BARNAKO and COTTINE,
Commissioners.
COTTINE, Commissioner:
A decision
of Administrative Law Judge Sidney J. Goldstein is before the Commission under
§ 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et
seq. (‘the Act’). The judge ruled that the Respondent, Morton Buildings, Inc.
(‘Morton’), was in serious violation of the construction safety standard
published at 29 C.F.R. § 1926.28(a)[1] for failing to require its
employees to use safety belts and lines while installing purlins during pole
building construction.[2] The direction for review
issued by former Commissioner Moran failed to specify issues to be considered
by the Commission. However, Morton filed a brief on review in which it objected
to the judge’s decision.[3]
I
Morton
constructs pole buildings used primarily for animal enclosures and equipment
storage. The method of constructing these buildings is described by the
Respondent:
Morton shares the common building
characteristics of other pole-building manufacturers. Morton’s buildings are
laid out basically nine-foot on center . . . . Holes are dug into the ground
around the perimeter of the building. Then the poles which comprise the
supporting structure are placed in these holes. The framework made up of 2 x 6
lumber is then nailed all around the perimeter with provisions made for doorways.
After this has been accomplished the trusses[4] which are nine-foot on
center are applied, truss ties are added, purlins[5] installed, and the
covering of sheet metal is then attached. [Footnote omitted]
The
citation was issued following the investigation of a fatal fall from the roof
of a pole building by one of Morton’s employees who was engaged in installing
purlins. The deceased employee fell from a pole building that was approximately
30 feet wide, and 150 to 200 feet long. The roof, which was peaked, was
supported by a series of trusses connected by purlins that were 20 to 24 inches
apart. The distance from the bottom of a truss to the peak of the roof was 5
feet. The deceased employee fell 21 feet—the distance from the bottom of a
truss to the ground.
The
foreman of the work crew to which the deceased belonged and Morton’s supervisor
testified about the installation procedure for purlins. The purlins are made
available for installation in two ways. Either one employee on the ground hands
the purlins to another employee who is nailing them to the truss or an employee
leans the purlins against the truss, ascends the truss, and pulls the purlins
up to the truss for nailing. The employee working on the truss installs purlins
from the bottom to the top of a truss so that nailed purlins are beneath the
employee at all times. Morton considered it unsafe to work from top to bottom.
Under Morton’s procedure a crewman generally straddles a truss for support and
sits on the purlin he has just nailed. To ascend, he moves from purlin to
purlin on his knees.
It is
contrary to Morton’s rules for an employee to move onto the part of a purlin
unsupported by a truss because the purlins alone are not strong enough to
support a man’s weight. After nailing a complete section of purlins an employee
descends the roof on his hands and knees. Morton also introduced evidence that
its methods for installing purlins are in general use by other manufacturers of
pole buildings and that other pole building manufacturers do not require their
employees to use personal protective equipment.
The
compliance officer who conducted the investigation[6] testified that it is a
recognized hazard in the construction industry ‘to allow an employee to work
approximately 21 feet above the ground level on a truss’ without fall
protection such as a scaffold or a safety belt and lanyard.
II
Judge
Goldstein ruled that § 1926.28(a) is applicable to the facts of the case,
ruling that it was hazardous for employees such as purlin installers to work 21
feet above ground level with no protection. As a consequence, he held that
Morton was in violation of the standard because its safety practices did not
include providing and requiring the use of personal protective equipment.
Moreover, Judge Goldstein found that the record did not support the
Respondent’s contention that the deceased employee had been working in a manner
contrary to its safety practices. Furthermore, he ruled that ‘the Secretary
established the feasibility and likely utility’ of using safety belts and
lines, and rejected Morton’s contentions that using belts and lines would be
impossible and would be more hazardous than following Morton’s usual
procedures. Finally, the judge concluded that, even if the added costs of
compliance would put the Respondent at an economic disadvantage, it must
nevertheless comply with the standard. A proposed penalty of $600 was assessed.
III
On
review Morton contends that there is no fall hazard to purlin installers as
long as they follow its required procedures. The Respondent argues that the
structure formed by the purlins and trusses is similar to a job made ladder and
provides similar protection.[7] Morton further maintains
that the fatal fall occurred because the employee failed to follow Morton’s
procedure.[8] We conclude that it is
immaterial whether the deceased employee failed to follow Morton’s work rules
because the purlin installers were exposed to a hazardous condition within the
terms of the standard even when complying with Morton’s safety practices.
In S
& H Riggers & Erectors, Inc., 79 OSAHRC ——, 7 BNA OSHC 1260, 1979
CCH OSHD ¶23,480 (No. 15855, 1979), appeal filed, No. 79–2358 (5th Cir.
June 7, 1979), we ruled,
The crucial question in determining
whether a hazardous condition exists within the meaning of § 1926.28(a) is
whether a reasonable person familiar with the factual circumstances surrounding
the allegedly hazardous condition, including any facts unique to a particular
industry, would recognize a hazard warranting the use of personal protective
equipment . . .. Although industry custom and practice are useful points of
reference with respect to whether a reasonable person familiar with the
circumstances would recognize a hazard requiring the use of personal protective
equipment, they are not controlling . . ..
The failure of an industry to deal
adequately with abatable hazards does not excuse an employer’s failure to
exercise that degree of care which the law requires. Compliance may require
methods of employee protection of a higher standard than industry practice . .
..
7 BNA OSHC at 1263, 1979 CCH OSHD at p. 28,436. We
conclude that the reasonable person would find that the Respondent’s purlin
installers were exposed to an obvious fall hazard ‘warranting the use of
personal protective equipment.’ S & H Riggers & Erectors, Inc.,
supra; PPG Industries, Inc., 77 OSAHRC 196/E5, 6 BNA OSHC 1050, 1977–78
CCH OSHD ¶ 22,344 No. 15426, 1977), pet. denied, No. 77–2608 (3d Cir.
Sept. 11, 1978).
Morton’s
contention that the configuration of the trusses and purlins is similar to a
ladder is correct. However, the working surface of the pole building from which
the employee fell differed from a ladder in several significant respects.
First, portable ladders must be used at a steep incline and cannot be used ‘in
a horizontal position as platforms, runways, or scaffolds.’[9]The purlin and truss
structure was gradually inclined. It was in essence used as a platform or
scaffold. Moreover, even accepting Morton’s contention that the purlin and
truss structure constituted a job made ladder, the roof assembly failed to meet
minimum safety requirements for ladders. Construction requirements for job made
ladders are provided at 29 C.F.R. § 1926.450(b). However, job made ladders are
either portable or fixed in nature and the purlins and trusses failed to meet
the safety requirements of either type of ladder. See 29 C.F.R. §
1926.450(a)(5), American National Standards Institute, A14.3 1.1.2.1 and
1.1.2.2. (provides that the preferred pitch for fixed ladders is 75 to 90 degrees
with the horizontal and that fixed ladders are substandard if installed with a
pitch of 60 to 75 degrees). Moreover, the openings created by the intersection
of the trusses and purlins were 20 to 24 inches wide and approximately 9 feet
long—much larger than the openings formed by the rungs and sides of either a
portable or fixed ladder. See ANSI A14.1 (1975); ANSI A14.3 (1974). The
possibility of an employee falling through one of these openings is obvious.
Moreover,
the failure of pole building manufacturers to use fall protection does not
mandate a finding that there was no hazard under the standard. ‘[I]ndustry
cannot be permitted to set its own standards for protecting employees when
those standards fail to adequately protect employees exposed to safety and
health hazards recognized by the reasonable person familiar with the facts.’ S
& H Riggers, supra, 7 BNA OSHC at 1266, 1979 CCH OSHD at p. 28,439.[10]The Secretary established
that Morton’s employees were exposed to a hazardous condition within the meaning
of the standard.
IV
Morton
further objects to the judge’s affirmance of the citation, claiming that the
use of safety belts and lanyards was ‘unworkable, impractical and patently
unsafe.’ It contends that the Secretary did not prove the feasibility of using
belts and lines to prevent the type of accident that occurred. Morton also
argues that it is more hazardous for purlin installers to use belts and lines than
to follow its procedures.[11]
Both
parties submitted extensive evidence on the feasibility and safety of using
safety belts and lines for purlin installation.[12] The compliance officer
testified that a safety belt and lanyard would be the appropriate form of
personal protective equipment for an employee working on a truss. He indicated
that the employee would attach his belt to a truss, and ‘[a]ll he had to do is
wrap the lanyard around the frame of the truss. . . . If he had to move he
could move right along without even loosening up the knot, or he could just
unravel it and wrap it around again when he got to his next position.’ If the
employee desired to use a lifeline, he could attach it ‘[f]rom one end of the
truss to another end of the truss.’
The
supervisor of several of Morton’s work crews testified that the use of safety
belts and lanyards would create problems while installing purlines. As the
employee moves from purlin to purlin, the employee ‘would have to unhook the
rope to move it ahead of the [webbing[13] to move up again.’ He
also testified that when pulling up a purlin the lanyard would get in the way
and the purlins could get tangled in the lanyard. Upon further questioning by
the Secretary’s attorney, however, the witness admitted that this problem
probably could be avoided. He also stated that he was not certain when the
lanyard would get tangled. Furthermore, he objected to the use of lanyards
because an employee would be unprotected while securing his lanyard.
Morton’s
safety director testified that Morton had conducted a feasibility study for
using belts and lanyards. Specifically the Respondent had constructed a steel
bracket for attaching a crewman’s lanyard to a truss. The witness considered
the use of belts, lanyards, and brackets to be infeasible. He noted several
objections to their use: work was slowed because of the necessity of moving the
brackets, employees were required to lean far forward in an awkward position in
order to attach the brackets several purlins ahead, the crewmen were
‘unbalanced’ when carrying the heavy brackets, and workers became entangled in
excess rope when working close to the bracket. On cross-examination he stated
that it would be possible to dispense with the bracket and to form the lanyard
into a noose. However, he considered use of the bracket necessary, for there
was no way to insure that the noose would remain above the point of operation,
as required by 29 C.F.R. § 1926.104.[14]
On
redirect examination the compliance officer testified that an employee could
install purlins with no interference if he used a safety belt with a snaphook
and a 6 to 7-foot-long lanyard formed into a noose. The employee could push the
noose ahead of him to the other side of the purlin that he was about to nail.
He would only have to reach an arm’s length to do so. If the purlin was already
in place, the employee could unsnap the line and reattach it on the farther
side of the purlin. The noose could be secured so that it would not slide down
the truss. Moreover, there was little likelihood that the noose would slide
because of the low pitch of the roof. Following this procedure, the lanyard
would remain secured above the point of operation. The compliance officer
further testified that he has observed carpenters on steel erection structures
using a lanyard formed into a noose and that they had experienced no difficulties
pushing the nooses ahead of them.
On
the basis of its witnesses’ testimony, Morton submits that the use of safety
belts and lanyards is infeasible. In S & H Riggers & Erectors, Inc.,
supra, we ruled that to establish a prima facie violation of § 1926.28(a) the
Secretary must establish employee exposure to a hazardous condition requiring
the use of personal protective equipment and must identify the appropriate form
of personal protective equipment to abate the hazard. It is not the burden of
the Secretary to prove the feasibility of his suggested means of abatement. We
further ruled that an employer may affirmatively defend by proving that it is
impossible to use the suggested means of abatement,[15] or by proving a ‘greater
hazard’ defense. See Russ Kaller, Inc., T/A Surfa Shield, supra.
In
this case the Secretary’s prima facie case has been established and Morton has
failed to sustain an affirmative defense. There is no support for a conclusion
that the use of belts and lines was impossible. In fact, the record clearly
establishes that the use of safety belts and lanyards formed into nooses would
provide feasible protection against the fall hazard. We also reject Morton’s
contention that the use of lanyards formed into nooses is infeasible because
they might not remain above the point of operation, as required by § 1926.104.
The requirement of § 1926.104 that the lines be secured above the point of
operation applies only to lifelines, not lanyards.[16] Moreover, the compliance
officer testified that if his suggestions were followed the lanyards would
remain above the point of operation.
In
addition, the Respondent has not sustained a ‘greater hazard’ defense under Russ
Kaller, Inc., T/A Surfa Shield, 76 OSAHRC 130/F10, 4 BNA OSHC 1758, 1976–77
CCH OSHD ¶ 21,152 (No. 11171, 1976). See note 11, supra. It did not prove that
the hazards of complying were greater than the hazards of not complying—the
primary element of the defense. Morton’s factual assertions are based primarily
on the difficulties it encountered with the bracket. However, with the use of a
noose the employee could move the lanyard ahead of him, thereby eliminating any
need for extensive stretching. In addition, the testimony of the Respondent’s
witnesses does not show that interference with the webbing would be
considerable. Moreover, the compliance officer’s testimony indicates that the
danger of entanglement would be insubstantial. Even if there were some hazard
of entanglement that could result in a fall, an employee protected by a tied
off safety belt would not fall to the ground below. The Respondent’s last
factual assertion regarding the need to fasten and unfasten the lanyard is also
based on its experiment with the brackets. However, frequent unhooking would
not be necessary with the noose. Finally, even if some fastening and
unfastening were required thereby resulting in momentary gaps in the fall
protection and an extended working time on the beam, this fall hazard is not
greater than continuous exposure to a 21 to 26 foot fall. Cf. Jake Heaton
Erecting Co., Inc., 78 OSAHRC 33/B6, 6 BNA OSHC 1536, 1978 CCH OSHD ¶ 22,701
(No. 15892, 1978); C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295,
1977–78 CCH OSHD ¶ 22,481 (No. 14249, 1978); Carpenter Rigging &
Contracting Corp., 75 OSAHRC 32/D13, 2 BNA OSHC 1544, 1974–75 CCH OSHD ¶ 19,252
(No. 1399, 1975).[17]
We
also reject Morton’s argument that the third element of Russ Kaller
(involving the inappropriateness of a variance application) does not apply. The
Respondent’s procedures for purlin installation are a standard construction
technique accepted by pole building manufacturers. In S & H Riggers
& Erectors, Inc., supra, we noted that when a standard construction
technique is involved in a case, ‘it is likely that a variance would have
widespread application for the employer and would provide more relief than it
might for more transitory construction activities.’ 7 BNA OSHC at 1267 n. 24,
1979 CCH OSHD at p. 28,440 n. 24.
V
Accordingly,
we find Morton’s objections to the judge’s decision to be unmeritorious. The
judge’s decision affirming the citation and assessing the proposed $600 penalty
is affirmed.
IT IS SO ORDERED.
FOR THE COMMISSION:
Ray H. Darling, Jr.
Executive Secretary
DATED: SEP 7, 1979
BARNAKO, Commissioner, dissenting:
I
would vacate the citation because I do not agree that a reasonable person
familiar with the industry would have perceived that Morton’s employees who
were installing purlins were exposed to a fall hazard.
Morton
is engaged in the construction of pole buildings, which are low, rectangular,
metal-roofed structures that are primarily used for animal enclosures and
equipment storage in rural areas. They are a distinct type of building and
utilize a different framework and construction method than those found in other
buildings, such as houses or high-rise office buildings. The distinctiveness of
pole buildings is underscored by the fact that certain companies, such as
Morton, construct only pole buildings and these companies have their own trade
association, the National Frame Builders’ Association (NFBA).
Like
most pole buildings, the building Morton was erecting in Crete, Illinois, when
it was inspected by an OSHA compliance officer, had triangular trusses spaced
nine feet apart, the upper members of which ran from the edge of the roof to
the peak. The upper portion of each truss was joined to the next truss by a set
of two-by-fours, called purlins, running at right angles to the trusses and
placed at intervals of 20 inches to two feet. To install the purlins, a Morton
employee started from the outside edge of a truss, nailed the end of the first
purlin to the truss and, straddling the truss, moved forward to nail each
successive purlin. As he proceeded, he not only braced himself on the truss but
also used the secured purlins for support. Once he reached the peak of the
roof, he backed down the side he had just completed; he did not go over the
peak and work down the other side because on the other side he would not have
had secured purlins under him.
In an
amended complaint, the Secretary charged that Morton violated 29 C.F.R. § 1926.28(a)
because an employee who was installing purlins was not using a safety belt and
lifeline equipped with a lanyard. The cited standard requires the use of
personal protective equipment only in ‘operations where there is an exposure to
hazardous conditions or where . . . [Part 1926] indicates the need for using
such equipment.’
In S
& H Riggers and Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979
CCH OSHD ¶ 23,480 (No. 15855, 1979), appeal docketed, No. 79–2358 (5th
Cir. June 7, 1979), the Commission held that ‘the crucial question in
determining whether a hazardous condition exists within the meaning of §
1926.28(a) is whether a reasonable person familiar with the factual
circumstances surrounding the allegedly hazardous condition, including any
facts unique to a particular industry, would recognize a hazard warranting the
use of personal protective equipment.’ The Commission also stated that
industry custom and practice are important
reference points in determining whether a reasonable person familiar with the
facts unique to a particular industry would recognize a hazard necessitating
the use of personal protective equipment.
7 BNA OSHC at 1264, 1979 CCH OSHD at 28,436. However,
it held that industry custom and practice are not controlling on this point.
In my
concurring opinion in S & H Riggers and Erectors, Inc., I did not
take issue with these statements.[18] I also found that a
reasonable person familiar with the industry would have recognized a hazard
requiring the use of protective equipment with respect to the cited conditions.
In that case four employees engaged in building construction were working near
the open edge of a building’s fourth floor 40 feet above the ground and were
not wearing tied-off safety belts. I based my conclusion concerning recognition
of the hazard on the fact that it was so obvious that employees could fall over
the edge that it could not be denied that a reasonable person familiar with the
industry would have perceived a hazard as such. This was despite testimony by
the employer that employees performing the tasks that were being done by the
workers on the fourth floor never used safety belts.
I am
confronted with a different situation in the present case. Here the fall hazard
is not so clear. Employees installing purlins on Morton’s pole building and
working at a height of about 21 feet constantly straddled a truss and had
beneath them a substantial framework, consisting of a truss and secured
purlins.[19]
Therefore unlike the employees in S & H Riggers and Erectors, Inc.,
who were completely unprotected against a fall hazard, the employees here
received some protection against falls from the network of supports formed by the
trusses and purlins on which they worked. In such circumstances, I would not
conclude that a falling hazard is obvious.
Because
the fall hazard is not obvious, it is not readily apparent whether a reasonable
person familiar with the industry would recognize the hazard. In order to make
this determination, it is appropriate to look to the standard of care in the
industry and hence place heavy reliance on industry custom and practice.[20]
On
this point, Morton’s witnesses were far more persuasive than the Secretary’s.
Three of Morton’s witnesses presented knowledgeable and uncontradicted
testimony that no pole building construction firm recognized a danger
warranting its employees to use safety belts or other fall protection equipment
when installing purlins.
Freeman
D. Burkholder, who was a past president and director of the National Frame
Builders’ Association and headed a pole building company, testified that he had
been involved in the pole building industry for 14 years and had observed 250
to 300 pole buildings under construction. He stated that over that period he
had not known of any employer in the pole building industry using any equipment
such as scaffolds, safety nets, life lines or lanyards for employees installing
purlins. He added that as an active member of the NFBA, he would have known if
an employer was using such equipment during purlin installation.
Joseph
H. Shaw, who was Morton’s general superintendent, testified that there was no
pole builder in the country who required employees installing purlins to use
safety belts, nets, lanyards, or other safety equipment. Thomas Statlen, who
supervised several crews of Morton employees, also testified that he knew of no
pole building construction firm which had employees use safety belts, lanyards,
safety nets, or other fall protection equipment while installing purlins.
The
only testimony that working on a truss presented a recognized fall hazard came
from OSHA’s compliance officer, Charles T. Schultz, who estimated that he had
inspected, at most, four pole buildings in his career. He could recall the
particulars of only one prior inspection of a pole building and he could not
remember seeing the installation of purlins on that occasion. His conclusion
that working on a truss presented a recognized fall hazard was based on his
experience in the construction industry in general, not his experience with the
construction of pole buildings. He stated that on a building under construction
he had observed iron workers wearing safety belts while welding beams on steel
trusses although he did not indicate whether purlins were present on the
building at that time. Thus, neither on the basis of the pole building industry
nor on the basis of the construction industry in general was the compliance
officer able to cite any instances of employees wearing safety belts while
installing purlins.
Accordingly,
the Secretary introduced no evidence of customary procedures in the pole
building industry. Morton, on the other hand, introduced evidence to show that
employers in the industry would have performed the work in the same manner as
it had done. Therefore, since the evidence does not demonstrate that the hazard
was obvious or that Morton’s conduct fell below industry practice, I would find
that a reasonable person familiar with the industry would not recognize a
hazard presented by Morton’s installation of purlins which warrant the use of
personal protective equipment. Thus, I would vacate the citation.
where
the hazard is not obvious. Indeed in those situations, it is only by looking to
the practice in the industry that it can be determined what a ‘reasonable
person familiar with the industry’ would view as a hazard.
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
|
SECRETARY
OF LABOR, |
|
|
Complainant, |
|
|
v. |
OSHRC
DOCKET NO. 15565 |
|
MORTON
BUILDINGS, INC., |
|
|
Respondent. |
|
December 1, 1976
DECISION
This
action under Section 10(c) of the Occupational Safety and Health Act of 1970 is
brought by the Secretary of Labor against the Morton Buildings Corporation
(sometimes hereinafter referred to as the Respondent) to enforce a Citation
issued to it by the Occupational Safety and Health Administration.
The
Citation alleged that:
The employer failed to furnish his
employees working in the south end of the building under construction,
employment and a place of employment which was free from recognized hazards
that were causing or were likely to cause death or serious physical harm to his
employees in that an employee was working approximately 21 feet above the
ground level installing purloins from truss to truss, working east to west
without a working platform or safety belts & lanyard.
in violation of Section 5(a)(1) of the Act which
provides that:
Each employer shall furnish to each of his
employees employment and a place of employment which are free from recognized
hazards that are causing or are likely to cause death or serious physical harm
to his employees;
In an
amended Complaint, the Secretary also charged that the Respondent:
Failed to require the wearing of personal
protective equipment in an operation where there is exposure to a hazardous
condition in that respondent failed to require the use of a safety belt and a
lifeline equipped with a lanyard to an employee working approximately 21 feet
above the ground level, installing purlins from truss to truss, working east to
west.
in violation of the standard found at 29 CFR
1926.28(a) which reads as follows:
PERSONAL PROTECTIVE EQUIPMENT. 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 employee.
The
Respondent’s Notice of Contest to the Citation and Answer to the Complaint
denied any violations of the Act or regulations. Pursuant to the pleadings,
hearings were held in Joliet and Peoria, Illinois.
The
salient facts establish that the Respondent is engaged in the manufacture and
erection of pole type buildings used primarily for animal enclosures and
equipment storage in an agricultural setting. In this specialized field, holes
are dug in the ground around the building perimeter, poles are placed therein,
and the framework nailed around the building. When this construction phase is
completed, trusses, truss ties, and purlins, which consist of 2 x 4 lengths of
lumber, are installed, and a steel sheet covering is attached.
On
September 9, 1975, two employees of the Respondent, Messrs. Benson and Bass,
were working on the truss structure of a building under construction in the
Crete, Illinois vicinity. They were installing purlins on the roof which
slanted from 20 to 25 feet high. In this work they supported themselves by
sitting on the upward slanting truss, one and five-eighths (1–5/8) inches wide,
with their feet resting on the bottom part of the truss at the lowest part or
their legs straddling the truss in a scissors-like hole on its upper parts.
Their instructions were to work upwards from the bottom of the truss until they
reached the top. They were then to return to the ground, proceed to the
opposite end of the building, and ascend to the truss section where they
repeated the process. They were instructed always to work upwards, never from
the top down.
Mr.
Benson was a newer employee, but (redacted)
was
considered to be experienced, competent, and careful. He had never been
reprimanded for failure to obey company safety rules. At approximately 1:15
p.m. on September 9, 1975, Mr. Benson shouted to other employees that . Mr.
Hiller, who was the supervisor on the job and (redacted)
who
was working in another area of the building, immediately left his position and
came to the accident scene where he saw (redacted).
A
Compliance Officer for the Administration visited the scene a few days after
the accident and ascertained that the Respondent did not furnish its employees
safety belts, lanyards, scaffolding, ladders, or any other type of personal
safety equipment when they worked on heights up to 25 feet. This Officer in his
work experience had investigated many construction sites (although very few in
the specialized pole type construction area) and he had observed that employees
working at various heights were protected by ladders, scaffolds, or safety
belts secured by lanyards. In his opinion there was a recognized hazard in the
construction industry for an employee to work 21 feet above ground without
protection, and Respondent’s employees could have utilized safety belts with
lanyards, scaffolding or ladders when nailing purlins.
Other
testimony in the record is to the effect that the pole type building
construction industry is a highly competitive business, and even small additional
expenses may mean the difference between obtaining or losing a contract. One
official of the Respondent estimated it would cost between three and four
hundred dollars to equip crews with lanyards. In addition, the time for the
installation of purlins (1/12 of total construction time) would be increased
about thirty percent. While some Company officials were of the opinion that no
safety measures were feasible and knew of no other firm in the field which
utilized the suggestions of the Compliance Officer, at least one supervisor
could not state whether or not the purlin installation work could be performed
with the use of safety equipment.
The
Company Safety Director tested a purlin installation work crew on a job with
and without safety equipment. From this trial run, he concluded that safety
items slowed the process and was more of a problem then the safety it provided.
He added that in general employees were opposed to the use of safety equipment,
but it could be utilized.
Documentary
evidence in the record includes a Foreman’s Accident Report, disclosing that
the deceased employee was nailing purlins when one broke approximately two
inches from the end and causing him to fall twenty-one feet to concrete floor.
The unsafe condition or act which caused the accident is listed as a bad and
defective purlin.
Another
accident report for workmen’s compensation insurance purposes was prepared by a
secretary of the Respondent on the date of the accident. It was there stated
that the employee was nailing purlins at the time of the accident when one of
them he was leaning on broke, causing him to fall.
An
OSHA Preliminary Fatality/Catastrophe Event Report records that Mike Morrison,
Comptroller, Morton Buildings, Inc., described the event as ‘walking on
truss—truss broke employee fell.’
In
summary, we have a situation where employees of the Respondent were permitted
to work at heights of approximately 21 feet with no protection from a possible
fall. In such a situation the Secretary contends that this work arrangement was
in violation of Section 5(a)(1) of the Act, the so-called general duty clause,
and the regulation (1926.28(a)) adopted under Section 5(a)(2) of the Act
relating to personal protective equipment.
On
the other hand, the Respondent maintains that there was no violation of the Act
or regulations; that the Secretary is in error in seeking to apply the personal
protective standard to the installation of purlins in the pole building
industry; and that the deceased employee worked in an unsafe manner. The
Respondent further asserts that, inasmuch as no other company in the industry
uses scaffolds, safety nets, lanyards, or life lines, the suggested safety
equipment would place it at a competitive disadvantage. It adds that there was
no previous accident in purlin work.
As
previously noted, the standard in question provides 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,
especially if there is a need for using such equipment to reduce the hazards to
the employee. There can be no quarrel with the proposition that an employee is
placed in a hazardous work setting if he is working on a roof of a building
with nothing to protect him from a fall of 21 feet or more as in the instant
case. While the Respondent urges that the Secretary is in error in applying the
personal protective equipment regulation to the installation of purlins or to
the erection of pole buildings, there is no exception in either the statute or
standards for this phase of the construction industry.
I
therefore conclude that the Respondent was in violation of the regulation found
at 29 CFR 1910.28(a) when it allowed construction crew members to work on pole
building roofs twenty or more feet above the ground without personal protective
equipment of any kind, and that the pole building industry is not exempt from
this requirement.
Another
argument advanced by the Respondent for the vacation of the Citation is that
the deceased worker was nailing purlins in an unsafe manner, but the record
does not support this position. To recapitulate, the evidence disclosed that
Mr. Bass was a four year employee with an excellent safety record, was
considered safety conscious, and had no demerits to his employment journal on
this score. With no eyewitness to the mishap at the hearing, there is only
speculation on the part of the Respondent that Mr. Bass worked unsafely. This
conclusion is buttressed by the documentary evidence in this case revealing
that the employee was nailing purlins when one of them broke, causing him to
fall 21 feet to a concrete floor. Not a single written accident report suggests
that the deceased was nailing in contravention of company safety practices.
If
the record discloses any discrepancy between speculation on this point at the
hearing and the prior written and oral statements transmitted to the
Administration by Respondent’s employees, I am placing more reliance upon the
latter because the Foreman’s Accident Report stating the mishap was due to a
broken purlin was prepared immediately following the incident when he had an
opportunity to verify the facts with eyewitnesses; because immediately after
the mishap, a secretary for the Respondent reported that a faulty piece of
lumber was to blame for the accident; because a company report to the
Administration mentioned that the employee feel off a truss when it broke;
because the deceased employee had an unblemished safety record; because the
deceased employee’s supervisor considered him to be safety conscious; and
because the events took place prior to the time any litigation on this issue
arose.
In
this connection the critical issue is not whether the employee violated safety
instructions, but whether the Respondent complied with the regulation requiring
personal protective equipment. Inasmuch as the Respondent did not supply and
require the use of personal protective equipment where there was an employee
exposure to hazardous conditions, the standard was violated and the Citation
was in order.
Nor
can the fact that there was no previous accident due to the lack of safety
equipment assist the Respondent in this regard. As stated many times by the
Review Commission and the Courts, the purpose of the Act and the regulations
adopted thereunder is to avoid the first accident.
With
respect to the safety equipment itself, the Compliance Officer suggested that
lanyards and life lines were feasible and could be utilized in the installation
of purlins. The Respondent disparaged this proposal and complained that the
Officer had little experience with pole type construction. Although true that
the Compliance Officer had limited contact with pole type buildings, he had
extensive exposure to similar situations where employees worked on roofs and
other elevations. It is, of course, not necessary that an Officer have a wide
background in a particular industry in order to recommend a Citation. It is
sufficient to sustain a Citation where a standard promulgated under the Act
requires protection if a hazard is present; where the employer has failed to
provide safety measures; and where it is possible to work with the suggested
equipment. Furthermore, the Respondent actually conducted a trial run with the
use of the recommended safety measures, an experiment which disclosed that it
was possible to nail purlins while wearing lanyards, life lines, or safety
belts.
While
sympathetic to the Respondent’s plea that the added costs of personal
protective equipment would place it at a financial disadvantage, the reply to
this objection was stated by the Court in Industrial Union Department
AFL-CIO et al v. Hodgson, Secretary of Labor, U. S. (App. D. C. 1973) 499
F.2d 467:
There can be no question that OSHA
represents a decision to require safeguards for the health of employees even if
such measures substantially increase production costs. * * *
. . . Standards may be economically
feasible even though, from the standpoint of employers, they are financially
burdensome and affect profit margins adversely * * *
A
case similar to the one at bar is United States Steel Corporation v. OSAHRC
and Secretary of Labor, (3d Cir. 1976) 537 F.2d 780. There a corporation
iron worker lost his balance while connecting a girder on the 109th floor of
the Sears Tower in Chicago and fell to his death. The Occupational Safety and
Health Administration issued a Citation for Serious Violation of the Act in
that the corporation was in violation of a regulation which provided that
safety nets shall be provided when workplaces are more than 25 feet above
ground and where the use of other safety devices was impractical. The consensus
of witnesses was that temporary floors, scaffolds, ladders, and catch platforms
were not feasible on the job site. Opinion concerning the feasibility of safety
lines and belts was more diverse, but these devices also were not employed.
United
States Steel asserted two defenses to the application of safety net
requirements. First, it alleged that it was impossible to erect safety nets and
still continue to construct the building. Second, it argued that erecting
safety nets would have created hazards to the men erecting the nets, and that
on balance more employees would be exposed to more danger than if the nets were
not erected.
The
Administrative Law Judge held that, although it would have been awkward to work
with safety nets, it was possible to do so. Upon appeal the Company attacked
this conclusion, pointing out that the Compliance Officer was unworthy of
credence as against the Steel Company’s better-qualified witnesses. In
affirming the decision of the Law Judge the Court noted:
Our conclusion in this regard obviates any
necessity to consider the question whether the ALJ might properly have
precluded the greater hazard defense as a matter of law because of USS’s
failure to resort to the available statutory variance procedure, 29 U.S.C. §
655(d). This question, vigorously pressed at oral argument, is raised at best
obliquely by the briefs, coming into focus only in USS’s Reply Brief. We express
no opinion on the matter.
Although
the United States Steel case involved safety nets and a fall of over 25
feet and the case under consideration concerns personal protective equipment
and a fall of 21 feet, the principle involved is basically identical. Thus, on
the authority of the United States Steel case, the Citation should be
affirmed.
Finally,
a very recent pronouncement of the Review Commission in the case of Russ
Kaller, Inc. T/A Surfa-Shield, CCH OSHD 21152, October 7, 1976, summarizes
its position regarding the defense that compliance would create greater hazards
than noncompliance with regulations. Before such a defense may be recognized:
* * * The record must show that the
hazards of compliance are greater than the hazards of noncompliance * * *; that
alternative means of protecting employees are unavailable * * *; and that a
variance application under Section 6(d) of the Act would be inappropriate. * *
*
In
summary, therefore, with respect to the merits of the case, I find:
1.
That the Respondent permitted employees to work at heights twenty feet and over
without personal protective equipment;
2.
That the Respondent has not established that the hazards of compliance are
greater than the hazards of noncompliance;
3.
That the Respondent has not established that the deceased employee failed to
obey Company safety rules when installing purlins on a building construction
site in Crete, Illinois, on September 9, 1975; and
4.
That the Secretary established the feasibility and likely utility of the
particular personal protective equipment the Respondent could have used to
comply with Regulation 29 CFR 1926.28(a).
In
view of the conclusions reached with respect to the specific regulation
1926.28(a), it is not necessary to address the question of a violation of
Section 5(a)(1) of the Act.
The
question of penalty received some attention during the hearing. The Compliance
Officer went into considerable detail concerning the penalty recommendation. I
believe them to be reasonable and in keeping with the statutory criteria for
penalty assessment. Accordingly, the proposed penalty of $600 should not be
disturbed.
It is
therefore concluded that the Occupational Safety and Health Review Commission
has jurisdiction over the parties and subject matter; that the Respondent is an
employer as defined in Section 3 of the Occupational Safety and Health Act of
1970; and that the Respondent was in violation of the regulation promulgated
thereunder found at 29 CFR 1926.28(a).
Based
upon the foregoing findings of fact and conclusions of law, it is hereby
ordered that the Citation dated October 6, 1975, and the proposed penalty
therefor, be affirmed.
Sidney J. Goldstein,
Judge, OSHRC
Dated: December 1, 1976
[1] § 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.
[2] The citation and
complaint alleged that Morton was in violation of 29 U.S.C. § 654(a)(1), the
‘general duty clause’ of the Act. The citation specifically charged that Morton
was in serious violation ‘in that an employee was working approximately 21 feet
above the ground level installing [purlins] from truss to truss, working east
to west without a working platform or safety belts and lanyards.’ An amended
complaint, issued prior to hearing, alternatively alleged that Morton failed to
comply with § 1926.28(a). Morton contends that it was error for the judge to
allow the amendment. It asserts that it was not informed until the hearing that
the Secretary’s primary theory of liability would be that it was in violation
of § 1926.28(a) by failing to require the use of belts and lines. It argues
that defending the charge was burdensome.
All pleadings alleged that Morton
failed to use belts and lines. The record also indicates that Morton was not
prejudiced in the preparation and presentation of its case and that it was able
to defend itself vigorously against the charges. There was no change in the
cause of action because the amended charge arose out of the same conduct as the
original charge. We conclude that the judge’s ruling was consistent with our
application of Fed. Rule Civ. Proc. 15(a) to Commission proceedings. See P.A.F.
Equipment Co., Inc., 79 OSAHRC ——, 7 BNA OSHC 1209, 1979 CCH OSHD ¶ 23,421
(No. 14315, 1979), appeal filed, No. 79–1398 (10th Cir. May 7, 1979); Southern
Prestress Co., 76 OSAHRC 107/D8, 4 BNA OSHC 1638, 1976–77 CCH OSHD ¶ 21,
034 (No. 3035, 1976); California Stevedore and Ballast Co., 75 OSAHRC
47/C4 3 BNA OSHC 1080, 1974–75 CCH OSHD ¶19,527 (No. 1483, 1975).
[3] Morton also
contends that it was denied its rights under various provisions of the United
States Constitution. The Commission is not statutorily authorized to initially
decide issues regarding the constitutionality of its enabling legislation. See Buckeye
Industries, Inc., 75 OSAHRC 21/B3, 3 BNA OSHC 1837, 1975–76 CCH OSHD ¶
20,239 (No. 8454, 1975), aff’d 587 F.2d 231 (5th Cir. 1979), and cases
cited in that opinion. However, two of Morton’s contentions—that it was denied
protections guaranteed by the sixth amendment and, alternatively, that it was
denied its right to a jury trial under the seventh amendment—must be rejected
on the basis of the decision of the United States Supreme Court in Atlas
Roofing Co., Inc. v. OSHRC, 430 U.S. 442 (1977). In that case the Court
specifically held that no right to a jury trial under the seventh amendment
attaches in adjudicatory proceedings under the Act, 430 U.S. at 450, and
rejected the application of the sixth amendment jury trial requirement to these
proceedings. 430 U.S. at 460 n. 15, citing with approval, Muniz v. Hoffman,
422 U.S. 454 (1975).
[4] A truss is a
triangular support structure. Those used by Morton were constructed of wood.
[5] Purlins lie
perpendicular to the trusses and provide support for the roof. Morton used 2 x
4 lumber as purlins.
[6] Morton attacks
the competency of the compliance officer on the basis that he did not have
intimate knowledge of the pole building industry. However, the compliance
officer’s testimony is credible based on his knowledge regarding the use of
fall protection in the construction industry generally.
[7] Morton excepts to
a statement in the judge’s decision that employees were working with ‘nothing’
to protect them. We view the judge’s statement as a determination that the
employees were not protected by any personal protective equipment as required
by § 1926.28(a). This statement is not contrary to a determination that a
purlin and truss structure provides some protection.
[8] Morton submitted
extensive evidence which it contends establishes that the employee did not
follow instructions. It excepts to the judge’s ruling that the record as a
whole does not support Morton’s contention.
[9] 29 C.F.R. §
1926.450(a)(7).
[10] In General
Dynamics Corp. v. OSHRC, No. 78–1348 (1st Cir. May 23, 1979), the U.S.
Court of Appeals for the First Circuit endorsed this view expressed by the
Commission in S & H Riggers. It agreed that the Commission had properly
interpreted the court’s earlier decision in Cape & Vineyard Div. of New
Bedford Ga; v. OSHRC, 512 F.2d 1148 (1st Cir. 1975), and added that, in the
context of a § 5(a)(1) violation ‘. . . we cannot accept a standard for the
precautions which should be taken against such a hazard which is any less than
the maximum feasible.’
[11] The judge relied
on the Commission decision in Russ Kaller, Inc., T/A Surfa Shield, 76
OSAHRC 130/F10, 4 BNA OSHC 1758, 1976–77 CCH OSHD ¶21,152 (No. 11171, 1976), in
rejecting Morton’s contention that use of safety belts and lines would be more
hazardous. The decision in Russ Kaller held that, in order to prove a
‘greater hazard’ defense, the record must show that the hazards of compliance
are greater than the hazards of noncompliance, that alternative means of
protecting employees are unavailable, and that a variance application under
section 6(d) of the Act would be inappropriate. On review Morton essentially
argues that it proved the first two elements of the affirmative defense and
also argues that the variance requirement of Russ Kaller does not apply
because the Secretary did not prove that there was any hazard to employees when
they follow the Respondent’s procedures.
[12] The parties also
submitted evidence regarding the feasibility of scaffolds, ladders, and safety
nets. Morton makes several contentions regarding that evidence. Inasmuch as
Morton failed to provide any means of fall protection to the purlin installers,
the judge properly found Morton in violation of § 1926.28(a) for failing to
require the use of belts and lines. Therefore, it is not necessary to make any
determination with respect to Morton’s contentions regarding other suggested
means of abatement.
[13] Although the
record testimony does not completely define the term ‘webbing’, the exhibits
indicate that webbing is the cross-bracing that supports the triangular truss.
[14] Section 1926.104
sets forth specific requirements for safety belts, lifelines, and lanyards.
Section 1926.104(b) provides, ‘Lifelines shall be secured above the point of
operation to an anchorage or structural member capable of supporting a minimum
dead weight of 5,400 pounds.’
[15] We reiterated a
long-standing holding that an employer’s proof that a suggested means of
abatement is impractical or inconvenient is insufficient to sustain an
‘impossibility’ defense:
Furthermore,
in order to sustain its affirmative defense, an employer must not only
establish that compliance with the requirements of the cited standard was
functionally impossible, it must demonstrate that alternative means of employee
protection were unavailable. S &
H Riggers & Erectors, Inc., supra, 7 BNA OSHC at 1266, 1979 CCH OSHD at
p. 28,439.
[16] Impossibility of
compliance with § 1926.104 is not a defense to a citation for noncompliance
with § 1926.28(a). Frank Briscoe Co., 76 OSAHRC 125/D7, 4 BNA OSHC 1706,
1976–77 CCH OSHD ¶ 21,191 (No. 12136, 1976).
[17] Morton’s related
argument that use of belts and lanyards would not prevent this type of accident
is based on its assertions that the deceased did not follow its work rules and
that an experienced employee who cannot be made to follow Morton’s work rule
would also fail to use belts and lanyards. We find no support for Morton’s
assertion that it would not be able to enforce the use of belts and lanyards.
[18] I did, however,
note that I would formulate the reasonable person test in terms of ‘a
reasonable person familiar with the industry,’ which I considered to be the
same test as that of the majority.
[19] Since the purlins
were two feet or less apart and the worker continually straddled a truss, there
were always fairly substantial supports beneath him (as readily shown by
Morton’s photographic exhibits).
[20] Several courts of appeals have applied some form of the reasonable person test to the general industry or construction industry personal protective equipment standards (29 C.F.R. §§ 1910.132(a) and 1926.28(a), respectively) or to the Act’s general duty clause, 29 U.S.C. § 654(a)(1). Two circuits appear to have held that whether a hazard is recognized by reasonable persons familiar with the industry is determined by industry custom and practice. Cotter & Co. v. OSAHRC, 7 BNA OSHC 1510 (5th Cir. July 10, 1979); Power Plant Div., Brown & Root, Inc., 590 F.2d 1363, 1365 (5th Cir. 1979); B & B Insulation, Inc. v. OSAHRC, 583 F.2d 1364, 1370–71 (5th Cir. 1978); American Airlines, Inc. v. Secretary of Labor, 578 F.2d 38 (2d Cir. 1978). The other courts which have considered the question have held that, if not entirely determinative, industry custom and practice in most instances will establish the standard of conduct. Bristol Steel & Iron Works, Inc. v. OSAHRC, 7 BNA OSHC 1462 (4th Cir. June 25, 1979); General Dynamics Corp., Quincy Shipbuilding Div. v. OSAHRC, 599 F.2d 453 (1st Cir. 1979); Cape & Vineyard Div. of New Bedford Gas v. OSAHRC, 512 F.2d 1148 (1st Cir. 1975); Brennan v. Smoke-Craft, Inc., 530 F.2d 843, 845 (9th Cir. 1976). While I do not agree that an industry should fail to protect against hazards which are obvious, I would not disregard industry custom