UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
|
SECRETARY
OF LABOR, |
|
|
Complainant, |
|
|
v. |
OSHRC
DOCKET NO. 77–2553 |
|
POWER
PLANT DIVISION, BROWN & ROOT, INC., |
|
|
Respondent. |
|
July 27, 1982
DECISION
Before: ROWLAND, Chairman; CLEARY and COTTINE,
Commissioners.
BY THE COMMISSION:
A
decision of Review Commission Judge Dee C. Blythe is before the Commission for
review under section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and
Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’). The principal issue in
this case is whether the perimeter guarding standard for construction work at
29 C.F.R. § 1926.500(d)(1) is applicable to the working conditions in question.[1] In particular, we must
determine whether the judge correctly held that a flat surface inside a large
air duct that was being constructed was an ‘open-sided floor’ within the
meaning of the standard. We conclude that the Secretary of Labor (‘the Secretary’)
established that the cited standard is applicable here and we affirm the
administrative law judge’s finding of a violation.
I
At
the time of the Secretary’s inspection, Respondent, Power Plant Division, Brown
& Root, Inc., was engaged in the construction of a power plant in Thompson,
Texas. In the course of construction, Respondent installed a large
inverted-U-shaped air duct. The duct was fabricated on the ground in sections,
which were then raised into position by crane and welded together into a configuration
that created an elevated flat surface inside the crook of the inverted ‘U’,
approximately 6 to 8 feet below the flattened top of the duct. This elevated
flat surface, which was approximately 12 feet long and 12 feet wide, separated
two parallel vertical shafts, each with an opening that was also approximately
12 feet square. The other two sides of the flat surface were connected to the
bulkhead created by the interior of the air duct.
During
the assembly process, it had been necessary for employees to be inside the duct
on the elevated flat surface in order to guide the sections into position.
Accordingly, at the time of the inspection, the remains of some scaffolding,
apparently used by those employees, still were welded to the surface in question.
In addition, a doubled wire rope was strung parallel to and above one edge of
the surface. This edge was adjacent to the opening into one of the vertical
shafts and approximately 43 feet above the base of that shaft. The record
indicates that Respondent had installed the wire in anticipation of workers’
entering the duct as part of final clean-up activity which, at the time of the
inspection, was still to come. It is undisputed that this wire, which was 38–½
inches above the elevated flat surface, did not constitute a standard
guardrail.
Approximately
1–½ months after the duct was installed, Respondent’s supervisors located a
‘pin-hole’ in the duct’s metal plate as a result of a defective weld. The
‘pin-hole’ was in the bulkhead, some 3 feet from the edge of the flat surface
where the wire rope has been installed. After they had inspected the ‘pin-hole’
from the vantage point of the elevated surface inside the duct, the supervisors
assigned two welders to patch the weld. Although the record indicates that the
welding could have been done on the outside, one of the welders entered the
duct alone through an existing temporary access hole cut in the bulkhead,
apparently in order to see the light shining through the defective weld. But
for the temporary access hold cut in the bulkhead, there was no source of light
in the duct. The welder was later found dead at the bottom of the duct shaft
that was adjacent to the edge of the surface where the wire rope had been
strung.
On
review, Respondent charges that Judge Blythe erroneously determined that the
elevated flat surface at issue was a ‘floor’ within the meaning of the cited
standard. As in its post-hearing arguments, Respondent cites an unreviewed
judge’s decision regarding a standard pertaining to steel erection as sole
authority for its contention that there is a difference in the degree of
employee protection required for temporary flooring as opposed to that required
for permanent flooring and that section 1926.500(d)(1) applies only to the
latter.[2] Because the surface in
question was not a permanent floor, it continues, the judge erred in concluding
that the cited standard was applicable. Instead, the judge should have accepted
Respondent’s contentions that the conditions were governed by 29 C.F.R. §
1926.28(a)[3] and that it was not in
violation of that standard because the deceased employee’s failure to use
personal protective equipment was the result of his own unpreventable
misconduct. Respondent summarizes its position as follows: it evaluated the
hazard presented and selected a ‘mode of compliance’—safety belts and
lifelines. The Secretary, in hindsight, determined that another means of
compliance was better, while admitting that Respondent’s chosen means would
have eliminated the hazard. Accordingly, in Respondent’s view, the citation
should be vacated.
II
It is
well settled that the burden of proving that a particular standard applies to
the cited working conditions is on the Secretary. Howard Barthelmass Painting Company, Inc., 81 OSAHRC 84/E1, 9 BNA
OSHC 2160, 1981 CCH OSHD ¶ 25,637 (No. 78–5450, 1981). Here, the cited standard
is applicable to every open-sided floor or platform 6 feet above adjacent floor
or ground level. It is not disputed that this elevated flat surface was more
than 6 feet above adjacent floor or ground level; thus the sole remaining
question is whether it was a ‘floor’ or ‘platform’ within the meaning of the
standard.
In
his decision, Judge Blythe noted the absence of a definition of ‘floor’ in the
Secretary’s standards or in Commission decisions. Consequently, the judge
resorted to the dictionary. He noted that Webster’s
Third New International Dictionary contains numerous definitions of
‘floor,’ including: ‘the bottom or lower part of any room: the part of a room
upon which one stands’; ‘the lower inside surface of any hollow structure . .
.’; and ‘the surface or the platform of a structure on which to walk, work or
travel . . ..’ The judge determined that it would be unrealistic to apply a
restrictive definition of ‘floor’ to a structure such as the generating plant
here. Therefore, he opted for a broad definition compatible with the remedial
purpose of the Act. He concluded that, because work had been and remained to be
done from and on this surface, it was a working-walking surface and, thus, a
‘floor’ within the meaning of the cited standard, which required that standard
guarding be installed on its open sides.
The
record clearly establishes that the surface at issue was a working-walking
surface. The evidence indicates that, weeks before the fatal accident,
Respondent had used the surface during the process of assembling the air duct
and had erected the line in the duct in anticipation of its employees’
performing clean-up activities, such as removing the remains of the scaffold erected
on the surface. Respondent’s supervisors entered the duct on the morning of the
accident to inspect the defective weld. They then directed the deceased to
patch the hole and he, too, tread upon the surface in order to perform that
assignment. We conclude, therefore, that Respondent’s employees used the
surface at issue in the performance of their work and were entitled to the fall
protection which the cited standard is intended to provide. Commissioner Cleary
agrees with the judge’s conclusion that the working surface was a floor.[4] Commissioner Cottine finds
that the surface was a platform under the definition in 29 C.F.R. § 1926.502(e)
and thus finds it unnecessary to determine whether it also was a floor.[5]
Respondent
also asserts in effect that the Secretary acted arbitrarily in concluding that
the working conditions were governed by the cited standard rather than 29
C.F.R. § 1926.28(a). However, the standard at section 1926.500(d)(1) is more
specific than that at section 1926.28(a), and therefore takes precedence. See Tri–State Roofing and Sheet Metal Co.,
77 OSAHRC 208/A2, 6 BNA OSHC 1152, 1 77–78 CCH OSHD ¶22,409 (No. 16121, 1977)
(lead opin.). Therefore, the citation properly alleged noncompliance with
section 1926.500(d)(1). Respondent further asserts that its mode of
compliance—safety belts and lifelines—would have eliminated the hazard, but for
the isolated incident of employee misconduct by the deceased, who failed to use
his safety belt. We also reject this contention. The Commission has held that
safety belts are not ‘equivalent protection’ to guardrails within the meaning
of section 1926.500(d)(1). Warnel Corp.,
76 OSAHRC 41/C5, 4 BNA OSHC 1034, 1975–76 CCH OSHD ¶20,576 (No. 4537, 1976).
Moreover, Respondent’s argument that its employee’s failure to tie off his
safety belt was unpreventable employee misconduct does not establish a defense
to a citation where, as here, the violation alleged is the lack of a standard
guardrail around an open-sided floor. See
Wander Iron Works, Inc., 80 OSAHRC 40/A2, 8 BNA OSHC 1354, 1980 CCH OSHD
¶24,457 (No. 76–3105, 1980).
Accordingly,
we affirm the citation and, in light of the penalty criteria specified in
section 17(j) of the Act, 29 U.S.C. § 666(i), and the parties’ stipulation, we
assess a penalty of $300.
SO ORDERED.
FOR THE COMMISSION:
Ray H. Darling, Jr.
Executive Secretary
DATED: JUL 27, 1982
ROWLAND, Chairman, Dissenting:
I
dissent from the majority’s conclusion that the standard cited in this case, 29
C.F.R. § 1926.500(d)(1), was shown to be applicable to the working
conditions in question. Since I would also find that Respondent did not know
nor reasonably could have known that the deceased employee would fail to use
the required safety belt, I would conclude that Respondent did not violate the
personal protective equipment standard at 29 C.F.R. § 1926.28(a). Accordingly,
I would vacate the citation.
At
the outset, I find it instructive that the majority in this case is divided on
the proper characterization of the surface at issue. Although both Commission
members rely on the use of the surface for the performance of work, each draws
a different conclusion from that fact. Commissioner Cottine finds the surface
to be a ‘platform’ because that term is expressly defined as ‘a working space for
persons.’ Commissioner Cleary expresses agreement with the judge’s conclusion
that the surface is a ‘floor’ within the dictionary definition of a floor as a
surface on which work is performed.[6] The fact that members of
this Commission, who must interpret the Secretary’s standards, disagree on the
proper terminology and definitions to be applied in determining Respondent’s
obligation is a strong indication that the language of the standard in question
is imprecise.
Indeed,
the Commission has previously recognized that a similar guardrail standard,
section 1910.23(c)(1),[7] must be interpreted in a
reasonable manner in order to afford an employer fair notice of its obligations
under the standard. In a case substantially similar to this, Globe Industries, Inc., 82 OSAHRC ___,
10 BNA OSHC 1596, 1982 CCH OSHD ¶26,048 (No. 77–4313, 1982), the Commission
considered whether under section 1910.23(c)(1) guardrails were required along
the open sides of the tops of two conveyor belts. In concluding that these
surfaces did not come within the definition of a platform as ‘a working space
for persons,’ the Commission relied on the fact that the conveyor tops were
used as a work surface only during a maintenance operation, when the normal
manufacturing process was not in operation. It therefore held that to consider
the conveyor belts ‘platforms’ would exceed the plain meaning of that term and
conflict with the common understanding of what constitutes a ‘platform.’ In so
holding, the Commission expressly adopted the reasoning of the court in General Electric Co. v. OSHRC, 583 F.2d
61, 64 (2d Cir. 1978):
We do not read this definition [of ‘platform’]
to apply to every flat surface . . . upon which employees may someday stand
while performing some task related to their employment and the operations of
their employer. An elevated flat surface does not automatically become a
‘working space’ and a ‘platform’ merely because employees occasionally set foot
on it while working.
Under
this precedent, applicability of these standards to surfaces on which employees
work depends upon a number of factors, including the nature of the surface in
question and the frequency and regularity with which employees go onto the
surface in the performance of their assigned duties. It is not sufficient to
find section 1926.500(d)(1) applicable, as the majority does in this case,
solely on the basis that Respondent’s employees used the surface in question in
the performance of their work without regard to the regularity or
predictability of such use.
The
record demonstrates that the surface in question, which formed an interior
portion of a large prefabricated section of ductwork, was neither designed nor
intended to function as a working surface for employees. Although employees
ultimately did perform some work from the interior surface once the ductwork
had been elevated by crane into a vertical position,[8] it is quite clear that
such work was only for completion of the ductwork installation. Upon
completion, the opening in the ductwork which permitted access to the interior
surface was to have been sealed. As Commissioner Cottine correctly observes in
note 5 of the majority opinion, the performance of work by Respondent’s
employees from within the duct was neither recurrent nor predictable.[9] It is undisputed that
during the one and one-half to two-month period which elapsed between
installation of the ductwork and detection of the hole by Respondent’s
supervisors, no employee had entered the ductwork for any purpose. Indeed, the
work operation which resulted in the employee’s death and eventually in the
citation at issue would not have been performed at all were it not for the
incidental discovery of an improper weld.
On
these facts, a reasonable employer would not conclude that the interior surface
of a large metal structure which forms part of a building’s ventilation system
is a ‘working space’ requiring the provision of guardrails simply because
employees worked from that surface while installing the ductwork. This
conclusion is consistent with the design and configuration of the duct surface
as well as the fact that its use as a work surface is neither regular nor
predictable. Although the majority characterizes the surface as flat, its open
sides are curved, thus forming a gradual roll or drop-off. The cited standard
requires that the employer provide ‘a standard railing, or the equivalent,’
which is defined at section 1926.502(k) as a ‘vertical barrier erected along
exposed edges . . ..’ The standards, however, give no guidance by which an
employer can determine where the ‘edge’ exists on a sloped or curved surface.
The compliance officer himself testified that he had never seen similar
ductwork equipped with guardrails. Accordingly, in view of the infrequency and
irregularity of use, the evident unsuitability of the curved surface for the
installation of guardrails,[10] and the absence of
evidence to show that guardrails are customarily used by the industry in such
circumstances, Respondent cannot be said to have fair notice that the cited
standard is applicable to it in this case. See
Faultless Division, Bliss & Laughlin Industries, Inc. v. Secretary of Labor,
674 F.2d 1177, 1192–93 (7th Cir. 1982) (dissenting opinion), citing B&B Insulation, Inc. v. OSHRC, 583
F.2d 1364 (5th Cir. 1978); Burton, Inc.,
82 OSAHRC 17/E13, 10 BNA OSHC 1462, 1982 CCH OSHD ¶25,983 (No. 77–2115, 1982)
(dissenting opinion). Indeed, the language of the Commission decision in Globe
Industries, supra, is equally appropriate here: ‘In view of the totality of the
facts . . . acceptance of the Secretary’s position . . . would stretch that
term [‘platform’] beyond its plain meaning and lead to results that conflict
with the common understanding of what a ‘platform’ is.’ 10 BNA OSHC at 1598–99,
1982 CCH OSHD ¶26,048 to 32,719.[11]
The
same conclusion applies even if we consider the issue before us, as
Commissioner Cleary states, to be whether the surface in question constitutes a
‘floor.’ Under the Commission precedent I have discussed, the application of
the standard depends not on the incidental selection of terminology but on the
reality of the nature of the surface in question and the extent to which it is
used by the employer. Clearly, it no more reasonable to construe the interior
surface of Respondent’s ductwork as a ‘floor’ based on irregular or infrequent
use by employees than it is to consider the surface a ‘platform’ on the same
basis.[12] Cf. Arkansas Rice Growers Cooperative Association, 82 OSAHRC ___,
10 BNA OSHC 1616, 1620 n.6, 1982 CCH OSHD ¶26,049 at 32,724 n.6 (No. 77–3974,
1982) (cases holding that the roof of a building is not a ‘floor’ under section
1926.500(d)(1) necessarily imply that it is not a ‘platform’ as well).[13]
As
the judge properly observed, Respondent had a work rule requiring that
employees use safety belts when working at heights. The judge, concluding that
Respondent had tried by consent the issue of a violation of the general
protective equipment standard at 29 C.F.R. § 1926.28(a), held that
nevertheless Respondent’s safety program with respect to the use of safety
belts was inadequate. Because Respondent does not except to the judge’s ruling
regarding trial by consent, the issue of whether Respondent violated section
1926.28(a) is before us at this time. For the reason that follow, I do not
agree with the judge’s conclusions on this issue.
In a
case such as this, where an employee commits an act contrary to a workrule
established by the employer, the Secretary must establish that the employer
either knew or with reasonable diligence could have known of the violation. Capital Electric Line Builders of Kansas,
Inc. v. Marshall, No. 80–1711 (10th Cir. May 12, 1982); Marson Corp., 82 OSAHRC ___, 10 BNA OSHC
1660 (No. 78–3491, 1982) (dissenting opinion).[14] The Secretary presented
no evidence to show that Respondent had actual knowledge that the deceased
employee was not wearing a belt when the work commenced. On the other hand,
both of Respondent’s two supervisors who assigned the work stated that Respondent’s
employees including the deceased customarily wore belts when required.
The
record, furthermore, demonstrates that Respondent’s employees were informed
that violation of Respondent’s work rule was cause for termination, that
supervisors regularly inspected the job for compliance with safety rules, and
that employees have in fact been terminated for failure to follow safety
instructions including the failure to tie off where required. The deceased
employee was regarded as an experienced and competent worker, and he never had
had to be reprimanded for a safety belt infraction. Finally, Respondent
maintained a program of installing lifelines, to which employees could tie off,
both automatically as the work progressed and on request from any supervisor.
Therefore, even assuming, without deciding, that an employer is required to
enforce as well as communicate safety instructions to employees, Respondent
could not have foreseen that the deceased employee would violate its safety
rule, and it cannot be held in violation of 29 C.F.R. § 1926.28(a).[15]
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
|
SECRETARY
OF LABOR, |
|
|
Complainant, |
|
|
v. |
OSHRC
DOCKET NO. 77–2553 |
|
POWER
PLANT DIVISION, BROWN & ROOT, INC., |
|
|
Respondent. |
|
February 15, 1978
DECISION AND ORDER
Appearances:
James F. Gruben, Esq., of Dallas, Texas,
for the complainant.
William L. Bedman, Esq., of Houston,
Texas, for the respondent.
STATEMENT OF THE CASE
BLYTHE, Judge:
This
is a proceeding brought before the Occupational Safety and Health Review
Commission (‘the Commission’) pursuant to § 10 of the Occupational Safety and
Health Act of 1970, 29 U.S.C. § 651, et seq. (‘the Act’), contesting one
citation issued by the complainant, the Secretary of Labor (‘the Secretary’),
to the respondent, Power Plant Division, Brown & Root, Inc., under
authority vested in the Secretary by § 9(a) of the Act.
As
the result of an inspection conducted on July 15, 1977, of a workplace at W. A.
Parrish Generating Station, Thompsons, Texas, where respondent was constructing
a steam power plant, one citation was issued to respondent on August 4, 1977,
alleging that it violated § 5(a)(2) of the Act in that it failed to comply
with a safety standard promulgated by the Secretary, codified at 29 CFR
1926.500(d)(1). Respondent gave timely notice of contest August 8, 1977, and
thereafter a complaint and an answer were filed with the Commission.
A
hearing was convened at Houston, Texas, on November 15, 1977. No affected
employee or representative of affected employees participated in this
proceeding. Both of the parties have submitted post-hearing briefs.
Respondent
admitted the jurisdictional allegations of the complaint and stipulated (Tr. 5)
that, if it should be found in violation, the proposed penalty of $300 is
appropriate. The only issue remaining to be determined is whether respondent
was in violation of 29 CFR 1926.500(d)(1). This subsumes the issue of whether a
flat surface inside a large air duct was a floor or platform within the meaning
of the cited standard.[16]
OPINION
The
inspection which resulted in the citation here involved was triggered by a
fatal accident in which Billy Parrish, a welder employed by respondent, fell 43
feet inside a large air duct which, at that point, was in the shape of a
flattened, inverted U. Parrish apparently had gone inside the duct to inspect a
crack which he and another welder had been instructed to repair. The crack was
located on a bulkhead about 1 1/2 feet above a 12 x 12 flat steel surface and
about the same distance from the rounded-off edge of this surface.[17]
A
doubled wire rope[18] was strung between the
bulkheads (Tr. 64) about 38 1/2 inches above the edge of the flat surface (Tr.
19).
There
was no midrail at the time of the accident but by the time of the inspection,
the next day, the doubled-back portion of the top rail had been strung through
newly-installed pad eyes 17 1/2 inches off the deck (Tr. 46).
The
citation and complaint allege only that the open side was guarded by a ‘single
rail’. Paragraph (f)(1) of § 1926.500 requires that a standard railing, as used
in paragraph (d)(1), shall have a top rail approximately 42 inches above the
floor or platform and an intermediate rail halfway between the top rail and the
floor or platform. Paragraph (f)(1) also contains rather detailed
specifications which need not be repeated here except that the supports must be
no more than 8 feet apart and where, as here, wire rope is used the top rail
must be able to withstand a pressure of 200 pounds ‘with a minimum of
deflection.’ Here the supports were 12 feet apart and there is some evidence
(to be discussed later) that the top rail was not taut.
The
duct was fabricated in sections on the ground, then the sections were hoisted
into position and welded together. This welding was accomplished from the
outside, but it was necessary for employees to go inside the duct to guide the
sections into position (Tr. 105). This phase of the construction was completed
about 1 1/2 or 2 months before the accident (Tr. 73). Thereafter there were few
occasions for employees to enter that portion of the duct, though Foreman Minor
said work had been done there before (Tr. 92) and that he had been there
several times (Tr. 106) and had made many trips in and out of the duct (Tr.
103). Aside from the task in which Parrish was engaged when he was killed, all
that remained to be done on the 12 x 12 surface was ‘clean-out’, including
removal of steel scaffolding which was welded to it (Tr. 69, 81).
Access
to the 12 x 12 surface was gained through a 2 x 3 hole cut in the bulkhead (Tr.
68). This hole was temporary and was to be closed permanently after the
scaffolding was removed and the duct’s interior had been cleaned out (Tr. 52).
There was no artificial lighting in the duct, and the only light came through
the access hole (Tr. 78). Compliance Officer Donovan S. Donnelly testified that
the interior was so dark it took time for one’s eyes to accommodate to it (Tr.
29), but Foreman Godwin testified he could see the ‘lifeline’ about 3 feet to
the left when he stuck his head inside (Tr. 53, 63).[19]
After
Foreman Minor located the crack (actually a gap in the welding of a seam), he
and Foreman Godwin looked at it together from the inside of the duct and then
told Parrish and another welder, Dennis Kowalik, to weld it (Tr. 88). The
procedure to be used was left up to the welders (Tr. 66). They could have
welded it from the inside (Tr. 66), but it was more logical that they would do
it from the outside where the original welding was done (Tr. 75). Although the
crack could be seen from the outside, it was more visible from the inside since
the inside was dark and the outside was light (Tr. 78). Parrish may have
decided to inspect the crack from the inside to see whether it ran under some
flanges (Tr. 100). Kowalik did not go into the duct with him; nobody saw
Parrish fall to his death. When found at the bottom of the duct, his body had
on no safety belt (Tr. 79).
Respondent’s
contentions are: (1) That the surface from which Parrish fell was not a ‘floor
or platform’ so as to make applicable the guardrail provisions of 29 CFR
1926.500(d)(1); (2) that the applicable standard is 29 CFR 1926.28(a),[20] under which Parrish
should have been protected by a safety belt and lanyard tied off to a lifeline;
and (3) that Parrish’s failure to wear a safety belt was an isolated act of
employee misconduct.
The
applicability of § 1926.500(d)(1) depends upon whether the 12 x 12 surface from
which Parrish fell was an ‘opensided floor or platform’ within the meaning of
that standard.
‘Floor’ is not defined by the standards, but
‘platform’ is defined by § 1926.502(e) as
A working space for persons, elevated
above the surrounding floor or ground, such as a balcony or platform for the
operation of machinery.
From the foregoing summary of the facts, it might
appear that the 12 x 12 surface was a ‘working space for persons’ and therefore
a ‘platform.’ Certainly work had been and remained to be done therefrom.
However, the Commission has construed the definition of ‘platform’ as being
restricted to a structure that is erected for the purpose of performing work
therefrom. Otis Elevator Co., 77
OSAHRC 80/A2, 5 BNA OSHC 1429, 1977–78 CCH OSHD ¶21,821. Thus it seems clear
that the surface here involved was not a ‘platform,’ since it was not erected
for the purpose of performing work therefrom but was an integral part of the
power plant structure.
There
remains the question of whether this surface was a ‘floor’ within the meaning
of § 1926.500(d)(1). It definitely was not in the sense that it was to be
a permanent floor in the finished structure; in fact, the temporary hatch
providing access to it was to be closed permanently during construction.
No
case quite in point has been cited by the parties. Respondent cites the
unreviewed decision of Judge Burchmore in San
Jose Crane & Rigging, Inc., 3 OSAHRC 760, 1971–73 CCH OSHD ¶15,791 (No.
1740, 1973), Secretary’s appeal dismissed
January 3, 1974 (No. 73–2662, 9th Cir.); Langer
Roofing & Sheet Metal, Inc., v. Secretary of Labor and OSHRC, 524 F. 2d
1337 (7th Cir., 1975); and Diamond
Roofing Co., Inc., v. OSHRC, 528 F. 2d 645 (5th Cir. 1976).
In
San Jose, as respondent points out, Judge Burchmore held that § 1926.500(d)(1)
applied only to ‘open sided, permanent floors.’ However, the problem in that
case was when a temporary floor installed under a steel erection standard, §
1926.700(b)(1)(iii)—which requires only a single wire rope safety
railing—became permanent enough to come under the more stringent requirements
of § 1926.500(d)(1), requiring top rail, intermediate rail and toeboards. The quoted
language from this decision is taken out of context and has no relevance here.
Langer and Diamond, though followed by the Commission majority in Central City Roofing, Inc., 76 OSAHRC
61/A2, 4 BNA OSHC 1286, 1976–77 CCH OSHD ¶20,761 (No. 8173, 1976), in holding
that a flat roof is not a ‘floor,’ as the latter term is used in § 1926.500(d)(1),
likewise are of little assistance, since their rationale was founded on the
existence of other standards dealing with safeguarding employees on roofs,
leading to the conclusion that flat roofs were not intended to be covered by
the guardrail standards. There is no such parallel here. It is a non sequitur
to say that since a flat roof is not a floor neither is a surface such as is
here involved.
In
the absence of a definition of ‘floor’ in the standards or in Commission
decisions, resort may be had to the dictionary. Webster’s Third New
International Dictionary contains numerous definitions of ‘floor,’ including:
1: the bottom or lower part of any
room: the part of a room upon which one stands
2a: the lower inside surface of any
hollow structure . . .
4: the surface or the platform of a
structure on which to walk, work or travel . . .
It
should be kept in mind that the structure here involved was not a conventional
building but a large generating plant. To apply a restrictive definition of
‘floor’ to such a structure would be unrealistic and defeat the remedial
purpose of the Act. The broader dictionary definition is more compatible with
this purpose. The surface involved was, at the time of the fatal accident and
of the inspection, a working-walking surface. Work remained to be done from and
on this surface. Respondent recognized the fall hazard by erecting a single
wire rope at the approximate height of a standard toprail (which it now insists
was a ‘lifeline’ for attaching safety belts and lanyards). I find that at the
pertinent times the surface involved was a ‘floor’ and that its open side
should have been guarded by a standard guardrail under § 1926.500(d)(1).
Respondent
does not contend that a standard guardrail was provided. There was no midrail,
the top rail was 5 1/2 inches lower than standard, and the supports were
further apart than required. The Compliance Officer, on the basis of a
photograph which showed a kink in the top rail on the day of the inspection,
opined that it was not taut (Tr. 46). He had not tested it to see whether it
met the requirement of § 1926.500(f)(1)(iv) that it
. . . be capable of withstanding a load of
at least 200 pounds applied in any direction at any point on the top rail, with
a minimum of deflection.
In
view of Foreman Godwin’s testimony (Tr. 74) that this rail was taut, it must be
concluded that the Secretary has not met his burden of proof on this point.
If I
should be held in error in holding that § 1926.500(d)(1) is applicable to the
facts of this case, it will be necessary to determine whether, as respondent
contends, § 1926.28(a) is applicable and, if so, whether it complied therewith.
Since the matter was raised by respondent and full litigated without objection,
amendment of the citation and complaint to conform to the evidence, to allege a
violation of 28(a), would be proper under Rule 15(b), F.R.C.P. Warnel Corporation, 76 OSAHRC 41/C5, 4
BNA OSHD 1034, 1975–76 CCH OSHD ¶20,576 (No. 4537, 1976).
In
contending that § 1926.28(a) is the applicable standard, respondent does not
rely on the provision of § 1926.500(d)(1) that the ‘equivalent’ of a standard
railing may be substituted therefor, and it is well established that safety
belts are not such an equivalent. Warnel
Corporation, supra. Instead, respondent maintains that safety belts were
superior to guardrails in the situation presented. This ignores the well-known
tendency of employees (here well illustrated) not to wear or use safety belts,
as well as the injuries that an employee using a tied-off safety belt might
sustain in a 6-foot fall to the end of his lanyard, as the compliance officer
testified (Tr. 34, 39). A standard guardrail, which does not depend on human
behavior or employee compliance for its effectiveness, offers fall protection
superior to that afforded by safety belts in the open-sided floor situation
here presented[21].
Incidentally, Welding Foreman Minor admitted that Parrish probably would not
have fallen if the open side had been guarded by a standard railing (Tr. 101).
Assuming
that § 1926.28(a) is applicable, there remains the question of whether
respondent complied with it. As stated, the deceased employee, Parrish, did not
have on a safety belt when his body was found. Respondent claims this was an
isolated act of employee misconduct in disobeying its work rule requiring the
use of safety belts by employees working at heights.
The
essential elements of the isolated incident defense are set forth in Weatherhead Co., 76 OSAHRC 61/E7, 4 BNA
OSHC 1226, 1976–77 CCH OSHD ¶20, 784 (No. 8862, 1976), where the Commission
majority said at p. 24,922 of CCH:
The existence of an ‘isolated incident,’
or perhaps more accurately an unpreventable occurrence, is an affirmative
defense wherein the employer bears the burden of proving that the actions
constituting non-compliance with the standard were: (a) unknown to the employer
and (b) contrary to both the employer’s instructions and a company work rule
which the employer had uniformly enforced. [Citations omitted]
‘Work rule’ was further defined in J. K. Butler Builders, Inc., 77 OSAHRC
26/A2, 5 BNA OSHC 1075, 1977–78 CCH OSHD ¶21,585 (No. 12354, 1977), as
. . . an employer directive that requires
or proscribes certain conduct, and that is communicated to employees in such a
manner that its mandatory nature is made explicit and its scope clearly
understood.
Additionally,
the work rule must be the equivalent of the standard the respondent is accused
of violating. Kansas Power & Light
Co., 77 OSAHRC 39/A2, 5 BNA OSHC 1202, 1977–78 CCH OSHD ¶21,696 (No. 11015,
1977). Rod T. Seals, respondent’s safety supervisor[22], testified that each new
employee was told to wear safety belts and to tie off ‘any time he is off the
ground on a structure,’ or face a penalty of immediate termination (Tr. 113,
114). There is no direct evidence that this work rule was communicated to
Parrish, but Welding Foreman Godwin testified that it was ‘customary’ to wear
safety belts on the job and he never saw Parrish without one (Tr. 79). Welding
Foreman Minor testified that Parrish was good about wearing his safety belt but
couldn’t say whether Parrish had one on when he directed him and another welder
to weld the crack in the duct (Tr. 88, 90). Minor said welders usually wore
their safety belts under their loose-fitting shirts with the shirttails out to
avoid providing a pocket that might catch sparks or molten metal (Tr. 89).
Minor also testified that it was ‘left up to you to use your own discretion’
when to tie off one’s safety belt (Tr. 107).
Seals
testified that 39 employees had been terminated for infractions of safety rules
in a one-year period (Tr. 114) but did not say whether any of these
terminations involved non-use of safety belts.
It is
apparent from the foregoing summary of the evidence that the requirements of Weatherhead, J. K. Butler and Kansas Power & Light have not been
met. The claimed work rule was to some extent discretionary in its application,
and it was not the equivalent of § 1926.28(a). The two welding foremen, in the
exercise of reasonable diligence, should have known that Parrish did not have
on his safety belt when they sent him aloft to weld the duct. Respondent has
not sustained its burden of proving this affirmative defense.
FINDINGS OF FACT
On
the basis of the stipulations and the credible evidence of record, the
following findings of fact are made:
1.
The respondent, Power Plant Divison, Brown & Root, Inc., is an employer
engaged in a business affecting commerce who has employees.
2. On
July 14, 1977, respondent was engaged in the construction of a large power
plant, known as W. A. Parrish Generating Station, at Thompsons, Texas. A large
air duct, which at the point here involved was in the shape of an inverted U,
had an interior horizontal metal surface, measuring approximately 12 x 12 with
rounded edges on two sides, on the bottom of the inside top of the inverted U.
A temporary hatch measuring about 2 x 3 had been cut in the side of the duct to
provide access. A doubled wire tope, fastened to pad eyes 12 feet apart at a
height of about 38 1/2 inches, was on the left side as one entered the duct
through the temporary hatch. There was no midrail or toeboard, but no toeboard
was necessary since no employees were working below. The next level was 43 feet
below the 12 x 12 surface where the duct made a 90 degree bend. The duct’s
interior was not artificially lighted, and the only illumination was dim light
coming from the open hatch.
3.
The duct had been fabricated in sections on the ground, and the sections had
been hoisted into position and welded together. During this process it was
necessary for employees to work on and from the 12 x 12 surface to align the
sections for welding. At the time of the inspection, the only work remaining to
be done on the 12 x 12 surface was clean-up work, including removal of steel
scaffolding welded thereto.
4. On
July 14, 1977, Welding Foreman Minor, inspecting the interior of the duct for
leaks, found a gap in a welded seam and showed it to his superior, Welding
Foreman Godwin. Minor instructed two welders, Parrish and Kowalik, to repair
same. The gap in the weld was in the side of the duct about 15 inches above the
12 x 12 surface and about the same distance from the rounded edge. About 38 1/2
inches above this edge was a doubled wire rope strung between pad eyes welded
to the bulkheads, which were 12 feet apart.
5.
The welding procedures were left to the discretion of Parrish and Kowalik. It
was logical that the welding be done from the outside, since the original seam
was welded in that manner. However, it was also logical, and not contrary to
instructions, for Parrish to enter the duct to inspect the gap from the inside
preparatory to the welding. Parrish entered the duct alone through the
temporary hatch opening onto the 12 x 12 surface. He was not wearing a safety
belt. He fell from the rounded edge above which the wire rope was strung and
was fatally injured.
6.
The 12 x 12 surface in the duct, while not destined to become a permanent floor
in the power plant structure, was on July 14, 1977, a floor on and from which
respondent’s employees were required to perform various tasks, including
inspection, clean-out, and removal of scaffolding welded thereto.
7.
Said floor had an open side which was not protected by a standard guardrail,
since there was no midrail, the single rail was 5 1/2 inches lower than standard,
and the supports were more than 8 feet apart. At least 3 of respondent’s
employees were exposed to or had access to this hazard.
CONCLUSIONS OF LAW
On
the basis of the foregoing findings of fact, as amplified in the opinion, it is
concluded that:
1.
The Commission has jurisdiction of the parties and of the subject matter of
this proceeding.
2. On
July 14, 1977, respondent was in serious violation of § 5(a)(2) of the Act and
29 CFR 1926.500(d)(1).
ORDER
On
the basis of the foregoing findings of fact and conclusions of law, it is
ORDERED that:
1.
Item 1 of citation 1 for serious violation of 29 CFR 1926.500(d)(1) be and it
hereby is affirmed and that a penalty of $300 be and it hereby is assessed.
2.
This proceeding be and it hereby is terminated.
DEE C. BLYTHE
Administrative Law Judge
Date: February 15, 1978
[1] 29 C.F.R. §
1926.500(d)(1) provides:
§
1926.500 Guardrails, handrails, and covers.
(d)
Guarding of open-sided floors, platforms and runways.
(1)
Every open-sided floor or platform 6 feet or more above adjacent floor or
ground level shall be guarded by a standard railing, or the equivalent, as
specified in paragraph (f)(1)(i) of this section, on all open sides, except
where there is entrance to a ramp, stairway, or fixed ladder. The railing shall
be provided with a standard toeboard wherever, beneath the open sides, persons
can pass, or there is moving machinery, or there is equipment with which
falling materials could create a hazard.
[2] In San Jose Crane & Rigging, Inc., 73
OSAHRC 26/D1, 1 BNA OSHC 3069, 1971–73 CCH OSHD ¶15,791 (No. 1740, 1973), appeal dismissed, No. 73–2662 (9th Cir.
1974), the judge noted that there was no provision in the regulations relating
to steel erection work specifying the time or stage of construction when a
standard railing, pursuant to 29 C.F.R. § 1926.500(d)(1), is required rather
than a single wire rope railing, pursuant to 29 C.F.R. § 1926.750(b)(1)(iii).
He also noted that § 1926.750(b)(1)(iii), a more specific standard with respect
to temporary-planked floors than the broad provision in § 1926.500(d)(1),
specifically approves a single wire rope ‘around the periphery of all
temporary-planked floors’ such as that in the case before him. Therefore, he
concluded that § 1926.500(d)(1) only applies to open-sided, permanent floors.
In the case before us, the evidence clearly indicates that the surface in
question was a permanent, and not a temporary, surface within the meaning of San Jose Crane. Moreover, there is no
contention that Respondent was engaged in steel erection here. Accordingly, the
cases are distinguishable.
[3] 29 C.F.R. §
1926.28(a) 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 hazards to the employees.
[4] Commissioner
Cleary does not agree with the dissenting opinion that his position in this
case is inconsistent with the positions he took in Globe Industries, Inc., 82 OSAHRC ——, 10 BNA OSHC 1596, 1982 CCH
OSHD ¶26, 048 (No. 77–4313, 1982), and in Arkansas
Rice Growers Cooperative Association, 82 OSAHRC ——, 10 BNA OSHC 1616, 1982
CCH OSHD ¶26,049 (No. 77–3974, 1982) (dissenting opinion). In his opinion, he
had followed a consistent policy of broadly construing the Secretary’s
standards on falling hazards so as to effectuate their clear remedial purpose,
so long as the application of the standards would not deprive employers of
their right to adequate notice of the proscribed conduct. The ultimate question
in each case is whether, in light of these two factors, the Secretary’s
enforcement action is reasonable. See Globe
Industries, Inc., supra.
In the case now before the
Commission, the public interest in applying the standard is strong, while any
problems of adequate notice are minimal. This was equally true in Arkansas Rice
Growers. Accordingly, in both cases Commissioner Cleary concluded that the
citation should be affirmed. In both cases, the Secretary’s enforcement action
effectuated the intent of the cited standard and the purposes of the Act. Here
employees were exposed to a 43-foot fall from a surface that can only be
described as hazardous. In Arkansas Rice Growers, employees were exposed to the
hazard of falling 83 feet 9 inches through an opening in a surface that was
used by employees as a walking and working surface. Moreover, in neither case
did the application of the standard create a significant notice problem. Here a
construction standard is being applied to an employer engaged in construction
work. In this context, Commissioner Cleary sees no notice problem in
characterizing a surface as a floor because it was in fact used and it was
intended to be used as a floor during the construction process. In Arkansas Rice Growers, a general
industry standard was applied to an employer engaged in a production operation.
It was therefore appropriate to look to the function the surface was designed
and intended to serve on a permanent basis. Because the record established that
the surface was designed and intended to be used for two purposes on a
permanent basis, and one of those uses was as a floor, Commissioner Cleary saw
no notice problem in classifying the surface as a floor.
On the other hand Commissioner
Cleary joined in vacating the citation in Globe
Industries. It is distinguishable from Arkansas
Rice Growers and the case on review. In Globe
Industries, the Secretary’s enforcement action contributed little to the
objective of improving employee safety. The surface was a broad, flat surface
only 5 feet 3 inches off the ground. A safe means of access was provided, and
the single employee who went onto the surface for brief periods of time performed
his functions from the center of the surface. Application of the standard would
have created significant notice problems because it would have stretched the
terms of the standard beyond their plain meaning and the common understanding
of their meaning. The employer could not have anticipated that the surface,
which was used and intended to be used only as a conveyor, would be classified
as a ‘platform’ because incidental maintenance work was performed on it on an
infrequent basis to enable its continuing operation as a conveyor.
[5] In Globe Industries, Inc., 82 OSAHRC ——, 10
BNA OSHC 1596, 1599, 1982 CCH OSHD ¶26,048, p. 32,719 (No. 77–4313, 1982)
(dissenting opinion), Commissioner Cottine noted the long-standing Commission
precedent defining a ‘platform’ to generally include surfaces on which
employees actually work that are raised above the surrounding floor or ground.
The definition of ‘platform’ applicable to this citation is ‘a working space
for persons, elevated above the surrounding floor or ground, such as a balcony
or platform for the operation of machinery and equipment.’ 29 C.F.R. §
1926.502(e). The same definition applies under the general industry standard at
29 C.F.R. § 1910.21(a)(4), which was involved in Globe Industries, Inc., supra.
Here, the open-sided working
surface was raised above the surrounding ground approximately 43 feet. In
addition to its use as a working surface by the deceased employee, a welding
foreman testified that it had been used by Brown & Root’s employees previously
and had a partial guard in the form of a wire rope strung along one side. The
general welding foreman testified that he used the surface to determine what
welding needed to be performed and that the welding could have been performed
from this surface. Thus, the surface was actually used on several occasions as
a working surface by Brown & Root’s employees with its foremen’s knowledge.
Though this was a construction site and the employees were not on the surface
on a regular and predictable basis, in Commissioner Cottine’s view the surface
meets the definition of a platform under the construction standard at §
1926.502(e).
Commissioner Cottine also notes
that Judge Blythe incorrectly concluded that the Commission has limited the
definition of ‘platform’ to structures erected for the purpose of performing
work. The judge relied on the lead opinion in Otis Elevator Co., 77 OSAHRC 80/A2, 5 BNA OSHC 1429, 1977–78 CCH
OSHD ¶21, 821 (No. 13140, 1977). However, that opinion reflected the views of
only one Commissioner. The controlling Commission precedent is discussed in Globe Industries, Inc., supra.
[6] See note 12 infra.
[7] 29 C.F.R. §
1910.23(c)(1), which applies to employers in general industry, is virtually
identical to the standard at issue in this case, which imposes guarding
requirements for employers engaged in construction work. See note 5 of the lead
opinion.
[8] The ductwork was
originally assembled on the ground in a horizontal configuration. At that time,
the surface now claimed to be a working surface was vertical, so that in
relation to Respondent’s employees it formed a side or wall of the duct.
[9] The surface was
to be used primarily for inspection and final clean-up. Although some tack
welding had also been performed from the surface, the record does not indicate
that this welding was conducted either frequently or regularly.
[10] The Secretary’s
standard which expressly provides for fall protection for employees on sloped
surfaces, section 1926.451(u)(3), requires that employees use safety belts
attached to a lifeline if they are not otherwise protected by a parapet or
catch platform. This requirement is predicated on the Secretary’s conclusion
that a sloping surface itself presents a fall hazard. Hamilton Roofing Co., 78 OSAHRC 57/C1, 6 BNA OSHC 1771, 1978 CCH
OSHD ¶22,856 (No. 14968, 1978). As discussed infra, Respondent required its employees to use tied-off safety
belts in the circumstances presented here.
[11] Because the facts
indicate that the duct surface was not erected and designed for use by
employees while operating machinery or equipment, I would also conclude that it
cannot be considered a ‘platform’ for the reasons stated by former Commissioner
Moran in Allis–Chalmers Corp., 76
OSAHRC 50/F8, 4 BNA OSHC 1227, 1975–76 CCH OSHD ¶20,666 (No. 5210, 1976). See Globe Indus., supra, 10 BNA OSHC at
1599 n.7, 1982 CCH OSHD ¶26,048 at 32,719 n.7; General Electric Co., 81 OSAHRC 97/D6, 10 BNA OSHC 1144, 1981 CCH OSHD
¶25, 736 (No. 76–2879, 1981).
[12] I do not mean to
suggest that the terms ‘platform’ and ‘floor’ are synonymous. However, in the
circumstances of this case it is unnecessary to consider whether these terms
are intended to refer to different components of a building or structure, or
whether they may be differentiated in any other way. In this regard, I note
that the definitions on which the judge relied, which are quoted in the lead
opinion, offer no guidance for distinguishing a ‘floor’ from a platform as the
latter term appears in the Secretary’s standards. Indeed, one of three
definitions of ‘floor’ quoted by the judge itself uses the term ‘platform.’
[13] In his dissenting
opinion in Arkansas Rice Growers, supra,
Commissioner Cleary concluded that the roof in question was a ‘floor’ under the
standard because it was used by employees for the performance of work on a
regular, recurring, and frequent basis. In this case, however, he concludes
that a floor existed because some work was performed on the duct surface
without regard to the infrequency and irregularity of that work.
[14] Although the
judge concluded that Respondent’s foremen with the exercise of reasonable
diligence should have known that the deceased employee was not wearing a safety
belt at the time in question, his decision otherwise refers to the ‘affirmative
defense’ of ‘employee misconduct.’ As explained in my dissenting opinion in Marson, supra, this ‘affirmative
defense’ impermissibly avoids placing the burden on the Secretary to establish
what is in reality an essential element of his case. Therefore, while arguably
consistent with Commission precedent, the judge’s characterization of the issue
before him under section 1926.28(a) is in my view erroneous.
[15] In finding
Respondent’s safety program inadequate, the judge reasoned that Respondent’s
safety rule was not sufficiently specific, and he further found that in any
event whether to comply with the rule was left to the discretion of individual
employees. As Respondent correctly points out in its brief before us, its
safety rule is at least as specific as section 1926.28(a), which is a general
protective equipment standard. The judge’s additional finding is premised on an
evident misreading of the testimony of Respondent’s foreman, who stated that
whether to discipline employees for infractions of safety rules is left to the
discretion of the foreman. The foreman, however, also stated that his superiors
would ‘make it hard on me’ if he consistently failed to terminate employees for
violation of safety rules. In any event, even assuming the judge had correctly
read the testimony, the fact that compliance with a safety rule is left to the
judgment of an experienced employee is not necessarily indicative of a poor
safety program. See Capital Electric,
supra, slip op. at 8.
[16] 29 CFR
1926.500(d)(1):
Every
opensided floor or platform 6 feet or more above adjacent floor or ground level
shall be guarded by a standard railing, or the equivalent, as specified in
paragraph (f)(i) of this section, on all open sides, except where there is
entrance to a ramp, stairway, or fixed ladder . . .
[17] The evidence is
somewhat conflicting regarding the latter distance. Gary Godwin, respondent’s
chief structural steel welding foreman, said it was about 3 feet (Tr. 63), while
Cecil B. Minor, Jr., a foreman under him who actually found the crack, said it
was 12 to 15 inches (Tr. 101). This distance is not critical, but I find
Minor’s estimate the more convincing since it is borne out by a photograph,
Exhibit C–2, and since he seemed more familiar with the site than Godwin.
[18] Respondent refers
to this wire rope as a ‘lifeline’ and contends it was there for the purpose of
permitting employees to attach their safety belts and lanyards.
[19] Respondent was
not alleged to have violated the illumination standard, 29 CFR 1926.56(a).
[20] 29 CFR 1926.28(a)
provides:
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 were this part indicates the need for using such equipment to
reduce the hazards to the employees.
[21] Cf., B. C. Crocker dba Crocker Cedar
Products, 76 OSAHRC 132/B6, 4 BNA OSHC 1775, 1976–77 CCH OSHD ¶21,179 (No.
4387, 1976).
[22] He was one of 3 field inspectors on the job at the time of the inspection but had never inspected the duct here involved.