SECRETARY OF LABOR,
Complainant,

v.

CENTRAL WISCONSIN STEEL BUILDING
ERECTORS, INC.,
Respondent.

OSHRC Docket No. 84-0119

_DECISION_

Before: BUCKLEY, Chairman; WALL, Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission
under 29 U.S.C. § 661(j), section 12(j) of the Occupational Safety and
Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act"). The Commission is
an adjudicatory agency, independent of the Department of Labor and the
Occupational Safety and Health Administration. It was established to
resolve disputes arising out of enforcement actions brought by the
Secretary of Labor under the Act and has no regulatory functions. _See_
section 10(c) of the Act, 29 U.S.C. § 659(c).

Employees of Central Wisconsin were installing insulation and metal
decking to form the roof of a single-story structural metal building.
The roof was sloped 1 to 12, so that its height varied from 16 to 21
feet. Administrative Law Judge Ramon M. Child found Central Wisconsin in
violation of 29 C.F.R. § 1926.28(a) because its employees were not
provided with and were not using safety belts and lifelines to protect
against the hazard of a fall. We reverse the judge's decision.

When originally promulgated, 29 C.F.R. § 1926.28(a) provided as follows:

§ 1926.28 _Personal protective equipment_.
*                          *                          *
(a) The employer is responsible for requiring the wearing of appropriate
personal protective equipment in all operations where there is an
exposure to hazardous conditions and where this part indicates the need
for using such equipment to reduce the hazards to the employees.
[Emphasis added.]

The standard was thereafter amended without notice and comment to change
the conjunctive "and" to the disjunctive "or" 37 Fed. Reg. 27510 (1972).
After Judge Child issued his decision, the Commission ruled that the
amendment was not properly promulgated and that the original wording of
the standard remained in effect. _L.E. Myers Co._, 86 OSAHRC _____, 12
BNA OSHC 1609, 1986 CCH OSHD ¶ 27,476 (No. 82-1137, 1986), _petition for
review filed_, No. 86-3215 (6th Cir. Mar. 14, 1986). Accordingly, to
prove a violation of section 1926.28(a), the Secretary must establish
both that employees were exposed to a hazard and that some other
provision of the Secretary's construction standards refers to a
particular type of personal protective equipment as a practical and
appropriate means of protection against that hazard. 12 BNA OSHC at
1612, 1614, 1986 CCH OSHD at pp. 35,602-03, 35,604-05.

Although other standards relating specifically to the hazard of falling
include safety belts as a form of fall protection, these standards do
not indicate a need for fall protection under the conditions existing at
Central Wisconsin's worksite. The fall protection standard set forth at
29 C.F.R. § 1926.105(a),[[1]] on which the Commission relied in _L.E.
Myers_, speaks of safety belts but applies only to fall distances
greater than 25 feet. The maximum fall distance here was only 21 feet.
Section 1926.500(g) mentions the use of safety belts on low-pitched
roofs, such as that at issue here,[[2]] but it applies only to "built-up
roofing work," which by definition specifically excludes the
construction of roof decks.[[3]] Central Wisconsin was building a roof
deck. The parties do not refer us to, nor does there appear to be, any
other standard that can be said to indicate a need for the use of
personal protective equipment in the circumstances presented here.[[4]]
Other construction standards provide for protection from falls of less
than the sixteen to twenty-one feet involved here but by guardrails,
catch platforms, nets or other protective devices which are not
_personal_ equipment (i.e., not "worn") as called for by section
1926.28(a). Accordingly, even if, as Judge Child found, Central
Wisconsin's employees were exposed to a falling hazard, the Secretary
failed to satisfy his burden of proof under _L.E. Myers_.[[5]]

Accordingly, item 1 of the Secretary's citation[[6]] alleging a
violation of 29 C.F.R. § 1926.28(a) is vacated.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: FEB 18 1987

------------------------------------------------------------------------

SECRETARY OF LABOR,
Complainant

v.

CENTRAL WISCONSIN STEEL BUILDING
ERECTORS, INC.,
Respondent.

OSHRC DOCKET NO. 84-0119

APPEARANCES:

For the complainant:
Cyrus A. Alexander, Esq., Chicago, Illinois

For the respondent:
Thomas A. Schuesslar, Esq., Chicago, Illinois

_DECISION AND ORDER_

Child, R. M., Judge, OSHRC:

_Statement of the Case_

This matter is before the Occupational Safety and Health Review
Commission (the Commission) pursuant to section 10(c) of the
Occupational Safety and Health Act of 1970, 23 U.S.C. § 651 _et_ _seq_.,
(the Act). Respondent filed a Notice of Contest to Citation No. 1,
issued to respondent December 20, 1983, charging two items of serious
violation of section 5(a)(2) of the Act and the penalties proposed
thereon. Respondent also contested Citation No. 2 charging one item of
repeated violation of section 5(a)(2) of the Act and the penalty
proposed thereon.

The parties have executed and filed herein a Partial Settlement
Agreement which consensually disposes of all items with the exception of
item 1 of Citation No. 1. Said agreement complies with the applicable
requirements of Rules 100(b) and 100(c) of the Commission's Rules of
Procedure (29 C.F.R. §2200.100(b) and §2200.100(c)). No objections
having been received from affected employees, the said agreement is
approved and the terms thereof will be incorporated in the Order entered
herewith. (Tr. 10)

The matter came on regularly for hearing at Madison, Wisconsin, June
11th and 12th, 1985. Notice of hearing was duly given affected
employees. Except as employees may have been produced as witnesses,
there was no appearance by or on their behalf. (Tr. 8)

The parties have submitted Post-Hearing Briefs in support of their
respective positions. Complainant has submitted proposed Findings of
Fact and Conclusions of Law. To the extent proposed findings, or
conclusions are consistent with those entered herein they are accepted;
to the extent they are not so consistent; they are rejected.
Jurisdiction of the persons and of the subject matter has been admitted
and is not at issue. (Respondent's Answer, paragraph 1.)

_THE ISSUES_:

The issues tried and to be determined are:

A. Was the respondent in violation of the standard at 29 C.F.R.
1926.28(a)[[1/]]?

B. If the respondent was in violation, was that violation serious within
the contemplation of the Act?

C. What, if any, would be an appropriate penalty?

_Statement of Facts_

On December 7, 1983, Gerald J. Modeska, a compliance officer for the
complainant (the C.O.) inspected respondent's worksite which was a
single story metal building under construction. He observed employees
laying down the roof which consisted of one layer of fiberglass
insulation covered by metal panel. The metal panel was screwed to
purlins which ran lengthwise to the building generally on five foot
centers. The purlins in turn were supported by rafters which they
crossed at right angles. (Tr. 36, 38, 39) Steel columns at 25 foot
intervals along the sides of the building supported the steel rafters
which crossed the 100 foot width of the building providing a roof pitch
of one inch per foot with a center peak. (Tr. 71; Exhibit R- 11) The
roof of the building was approximately 16 feet high at the eave and 21
feet high at the center peak. (Tr. 40) The building dimensions were 100'
x 200'.

At the time of the inspection five employees were on the roof engaged in
its installation. None were wearing personal protective equipment to
prevent falling and there was no fall protection present such as safety
nets, catch platforms or scaffolding. (Tr. 39, 41, 53, 144, 145, 166)

Metal panels three feet wide and up to 40 feet in length would he placed
on the exposed purlins preparatory to being put in place. A three foot
wide strip of insulation was rolled from the roof peak to the eave
adjacent to the last laid roofing. After stapling the freshly rolled out
insulation strip to the raw edge of the last laid strip protruding from
the last laid panel, the workers would lean forward over the newly
placed insulation, supporting themselves with one hand on the insulation
covered purlin and pull a metal panel toward themselves until it covered
the strip of insulation and overlapped the last laid panel. At that
point the edge of the panel away from the roof opening would be fastened
to the purlins by means of an electric drill equipped with a screw
driving attachment utilizing self drilling screws. After the three foot
strip of metal panels had been fastened the next strip of insulation
would be rolled from the peak to the cave and the operation repeated.
(Tr. 200, 202, 209, 210, Exhibits C-3a, C-3c, R-1, R-2, R-3, R-4)

_Discussion_

_Issue A_:

Was the respondent in violation of the standard at 29 C.F.R. 1926.28(a)?

To prove a violation of section 5(a)(2) of the Act the complainant must
prove by a preponderance of the evidence an employer's noncompliance
with an applicable standard and employee exposure to the hazard created
by the violative condition. _Otis Elevator Co._, 78 OSAHRC 88/E5, 6 BNA
OSHC 2048, 1978 CCH OSHD ¶23,135 (No. 16057, 1978). In addition to the
foregoing, section 17(k) of the Act has been interpreted by the
Commission as placing on the complainant the burden of proving that the
employer knew, or in the exercise of reasonable diligence could have
known of the presence of the violative condition. _Prestressed Systems,
Inc._, 81 OSAHRC 43/D5, 9 BNA OSHC 1864, 1981 CCH OSHD ¶25,358 (No.
16147, 1981).

Moreover, where a standard lacks specificity as to what precise conduct
must be followed or avoided by the employer a majority of the Commission
has ruled in interpreting 29 C.F.R. 1926.28(a):

Nonetheless, the standard in this case is written in broad terms.
Therefore, it is appropriate to place upon the Secretary the burden of
establishing employee exposure to a hazardous condition requiring the
use of personal protective equipment and identifying the appropriate
form of personal protective equipment to eliminate the hazard. (footnote
reference deleted) _S & H Riggers and Erectors, Inc_. OSHRC Docket No.
15855 (1979), 7 BNA OSHC 1260,1266.

The better reasoning as to allocating the burden of proof in a general
standard such as §1926.28(a) would appear to be that set forth by former
Commissioner Barnako in his concurring opinion in _S & H Riggers_,
_supra_, at pages 1270, 1271. However, we are here constrained to follow
the burden established by the main opinion in _S & H Riggers_ as set
forth above.

Here the complainant proved: (1) that five employees of the respondent
while installing the roof on a pre-engineered one story metal building
were exposed to the hazard of falling from the open edges of that roof a
distance of from 16 feet to 21 feet to the ground below, (2) that
serious injury or death could result from such a fall, (3) that the
respondent knew or in the exercise of reasonable diligence could have
known of the presence of the hazard, (4) that safety belts and lanyards
tied off to a lifeline would be the appropriate form of personal
protective equipment to be worn by the exposed employees, and (5) that
no fall protection whatsoever was provided by the respondent or required
to be worn by the employees. Complainant thus made out a _prima_ _facie_
case of serious violation by the respondent of the standard at 29 C.F.R.
1926.28(a).
_________________________

The defendant raises several defenses as follows:

_First-Defense_:

"Section 29 CFR 1926.28(a) does not apply because respondent was engaged
in steel erection. Regulation of steel erection is governed exclusively
by 29 CFR 1926.750-752 (Subpart R - Steel Erection)."

Respondent produced Michael W. Glover, Vice-President and General
Manager of Glover Metal Building Erectors, Ltd. Mr. Glover has had many
years of experience in the construction of pre-engineered metal
buildings. He testified that those engaged in metal building
construction including single story buildings consider themselves under
the Steel Erection standards at Subpart R of 29 CFR 1926 and that no
fall protection is required where the fall distance is less than 25
feet. (Tr. 74, 75, 79) He testified that the practice in the industry is
to require fall protection above 25 feet but not below and in the case
of one story buildings more than 25 feet high many companies still don't
provide fall protection. (Tr. 85, 86) In Mr. Glover's opinion, since no
one in the metal building construction industry in Wisconsin uses fall
protection below 25 feet, the respondent met the standard in the
industry. (Tr. 104, 105)

William Whirry, respondent's job superintendent on the job site in
question, has been with the respondent for four years and employed in
the construction of pre-engineered metal buildings for 17 years. Eighty
to ninety per cent of the metal buildings he has worked on in those 17
years have involved heights of less than 25 feet. He has never worn fall
protection on these jobs nor has other fall protection been provided. He
has never seen anyone use safety belts and lanyards while installing
roofs on these buildings and he has never worked on a metal building
which had more than one story. (Tr. 195, 198, 199, 202, 215)

William L. Hunter, owner, operator and manager of the respondent has 15
years of experience in the construction of pre-engineered metal
buildings. In his opinion such construction including the installation
of metal roofing is steel building erection. (Tr. 234, 235, 238) To
support his claim that installing the roof on metal one story buildings
was "steel erection" coming under subpart R of the standards found at 29
CFR 1926, Mr. Hunter relied on the standard at 29 CFR 1926.752(f) which
provides:

"Metal decking of sufficient strength shall be laid tight and secured to
prevent movement."

He then defined "decking" as any flat steel member bolted or fastened to
the secondary structure of the building, thus including roof paneling
and panels affixed to the sides of the building. In his opinion the act
of placing and fastening roof and side panels to the purlins using an
electric drill utilizing self drilling metal screws was the equivalent
of "fitting", "bolting" or "riveting" as those terms appear in subpart R
of the construction standards. (Tr. 240-245) Thus, Mr. Hunter testified
that no one in the industry of constructing pre-engineered metal
buildings uses safety belts and lanyards at heights under 25 feet. He
knew of no one in the industry providing fall protection consisting of
catch platforms, safety nets or scaffolding at heights under 25 feet. He
stated that the standards at subpart R don't require it and there is no
likelihood of injury working at heights below 25 feet, "so we don't use
anything." (Tr. 266, 267)

However, the complainant produced as a witness Martin Ballweg, who is
part owner of a company engaged in construction of pre-engineered single
story metal buildings in the Wisconsin area and who had 17 years of
experience in the industry. To eliminate the tall hazard to employees
working on the roof of buildings under construction and at heights
between 10 and 25 feet, his company utilizes safety nets stretched to
provide fall protection to workers engaged in roof installation.
Alternatively, his company has provided fall protection consisting of
catch platforms, scaffolding and safety belts with lanyards tied off on
different jobs. He judged that the additional labor cost resulting from
utilizing safety nets on a 20,000 square foot roof would be
approximately $800.00. (Tr. 123,125,129, 130,132,136,138)

Exhibit R-11, produced by the respondent to illustrate the components
and nomenclature involved in a typical pre-engineered, one story, metal
building fails to utilize the word decking. Rather, it refers to "roof
panel," "side wall panels" and "end wall panel."

Gerald J. Modjeska, who holds an engineering degree, has been a
compliance officer with OSHA for 12 years. (Tr. 31, 32, 35) He testified
that roofing is not steel erection and would not be even if the roof
were being installed on a multi-tiered steel building. Rather, said he,
"Steel erection is the placing of structural members and bolting them up
and plumbing them up and putting them in place." (Tr. 181, 185) He
testified that in steel erection "bolting," "riveting" "plumbing" and
"fitting" have to do with placing the vertical and horizontal members of
the skeleton steel. Such terms do not apply to roof panels merely
because they happen to screw them to purlins. (Tr. 188, 189)

A careful reading of sections 750, 751 and 752 (subpart R) of the
construction standards found under 29 CFR 1926 compels one to the
conclusion that the installation of metal roofing and siding on
pre-engineered single story metal buildings is not "steel erection" as
covered by subpart R of the construction standards. The parties agree
that "multi-tiered" buildings referred to in subpart R are buildings of
more than one story. (Tr. 105, 180, 311)

_Tippins-Steel Erection Co., Inc_. 11 OSHC 1428, cited by respondent
involved workers engaged in positioning and welding steel bar joists and
braces to form roof supports. The Commission agreed with respondent that
the work in question was structural steel work involving joists, beams
and columns as well as the basic steel erection tasks of welding and
bolting up. Since the work involved steel erection, section 1926.28(a)
was held not to apply.

_McLean-Behm Steel Erectors, Inc_. 608 F.2d 580, cited by respondent
involved steel erection and a fall hazard in excess of 25 feet. Since 29
CFR 1926.750(b)(1)(ii) applied and was a specific standard it was held
to be error to have charged a violation under the general construction
standard at section 1926.28(a) and that the judge erred in amending the
complaint to allege a violation of the specific standard after the close
of the hearing. This was particularly so in the face of a refusal by the
Secretary to so move and a protest by the employer that it had not and
was not prepared to defend against the specific standard provisions. The
case is distinguished from the case before us. Here it is claimed that
the activity observed was not steel erection and that no specific
standard applied.

_Builders Steel Co._ v. _Marshall_, 622 F.2d 367, cited by respondent is
helpful here only in standing for the proposition that employees engaged
in skeleton steel erection in single story buildings are covered by the
specific steel erection standard at section 1926.750(b)(2)(i) and
therefore the general construction standard at section 1926.105(a) did
not apply. In the case now before us the activity involved was not the
erection of skeletal steel structure, but rather the installation of an
insulated roof.

The mere construction of a single story metal building does not make all
work activity involved therein "steel erection" so as to fall within the
purview of subpart R of the construction standards. Here the employees
were not involved in erecting the skeletal steel framework nor were they
engaged in constructing a multi-tiered structure. The fact that the
roofing being installed consisted of metal panels being fastened by
metal screws to purlins laid over the structural steel previously
erected does not render that roofing activity "steel erection."
Respondent and others engaged in construction of metal buildings should
disabuse themselves of the belief that because they choose to define the
construction of metal buildings as erection of same they are excused
from providing their employees a safe place to work. Construction
accomplished with metal materials such as roof panels and siding panels
does not necessarily constitute steel erection and did not in the
situation with which we are here confronted.

Since respondent's employees were not engaged at the time in question in
steel erection and since no specific standard applies, the general
construction standard at section 1926.28(a) here applies.

_Second defense_:

"A reasonable person familiar with the facts, including the facts unique
to this particular industry, would not recognize a hazard warranting use
of personal protective equipment."

Respondent introduced Exhibit R-8 which is a sample of the backing on
the rolled fiberglass insulation. In doing so Mr. Hunter testified, "I
don't think I'd want to test it, but I think I could step on it without
falling." (Tr. 248) However, respondent's job foreman, Mr. Whirry, on
cross-examination testified that a person could fall through the
insulation and Mr. Glover, produced by respondent, testified that if a
person stepped on the rolled out insulation, he would fall through to
the ground. (Tr. 80, 213) Respondent further admitted that its employees
were exposed to fall hazard of from 16 to 21 feet. (Tr. 85, 338)

The compliance officer testified that if a fall of from 16 to 21 feet
were to occur, the likelihood was that serious injury or death could
result and that at minimum a fracture would result. (Tr. 47, 48, 49)

The respondent attempted to minimize the hazard since workers were
trained to recognize the danger and since they worked on their knees at
the opening and it is hard to fall off your knees. (Tr. 246, 247)
Nevertheless, the photos introduced in evidence show three employees on
their feet at the roof openings. Mr. Hunter testified it was even
necessary for him to "yell at" his foreman for some foolish thing
involving safety and said "we're only human - we do make errors." (Tr.
247; Exhibits C-3a, R-2, R-3)

As the Commission ruled in _S & H Riggers_, _supra_,

The crucial question in determining whether a hazardous condition exists
within the meaning of section 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. [Citations omitted] 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. _Id_. at 1263. (reversed 5th Circuit-1981, 659 F.2d 1273)

Here the compliance officer observed employees of the respondent exposed
to an obvious fall hazard. Respondent's refusal to recognize that
hazard, to minimize it as not likely to cause injury because the fall
distance was under 25 feet and to do nothing to eliminate the hazard in
similar construction under-takings at any time is unreasonable. (Tr.
267, 300)

_Third defense_:

"The hazard resulting from the use of safety belts with lanyards tied
off to a static line were greater than non-compliance."

Here non-compliance means no fall protection of any kind where employees
are exposed to falling not to exceed 25 feet. That death or serious
injury would likely result from such a fall has been established.
Respondent produced evidence that an employee wearing a safety belt
could forget the presence of the lanyard connecting his belt to a static
line away from the roof opening and trip on that lanyard. It is clear,
however, that a fall resulting from tripping on a lanyard or the static
line would more than likely result only in a fall to the roof surface.
Should an employee wearing a safety belt and lanyard trip on the lanyard
or on electrical cords that are present and fall into the roof opening,
his fall would be stopped by the safety belt and lanyard within six feet
of the roof. The possible tripping hazard is in no way as great as the
hazard presented by an unrestrained fall of from 16 to 21 feet to the
ground below. Furthermore, alternative means of protecting employees
from falling to the ground were available in the form of safety nets and
respondent made no effort to apply for a variance as permitted under
section 6(d) of the Act. (Tr. 156, 250, 327) See _M. J. Lee Construction
Co._, 79 OSAHRC 12/A2 (No. 15094, 1979) 7 BNA OSHC 1140, 1979 CCH OSHD
¶23,330. Respondent has failed to prove a greater hazard defense.

_Fourth Defense_:

"Compliance with Section 1926.28(a) was impossible."

In _M. J. Lee Construction Co._, _supra_, cited by respondent, the
Commission held that in order to establish the affirmative defense of
impossibility of performance, the employee must prove that: (1)
compliance with the requirements of the cited standard would preclude
performance of required work, and (2) alternative means of employee
protection are unavailable. Respondent failed to meet its burden of
proof as to either of the elements of this defense.

Safety nets were available and customarily used by one of the
respondent's competitors on buildings of less than 25 feet in height.
Several methods of installing a static line and tying it off damaging
the building's outer shell were identified in the course of the hearing.
Such methods included tying to the center beam at the peak of the roof
before the final ridge panel is installed, (Tr. 330) tying to a cement
block weight on the ground at either side of the building (Tr. 282) and
tying off to a winch on a truck on the ground at the side of the
building. (Tr. 283, 284)

Respondent failed to meet its burden of proving defense of impossibility
of performance.

_Fifth and Sixth Defenses_:

"The use of Safety Belts and lanyards tied off to a static line was
neither technologically nor economically feasible."

It is at this point that respondent's major protest against compliance
comes into focus. In _S & H Riggers_, _supra_, a majority of the
Commission required the Secretary in order to meet its burden of proving
a violation of section 1926.28(a) to merely identify the appropriate
form of personal protective equipment to eliminate the hazard. The
remaining member of the Commission reasoned that since the standard was
general in tone the Secretary should have the burden of proving the
feasibility of the identified abatement method.

Here the respondent denies the feasibility of the use of safety belts
and lanyards on the ground that there is no feasible method of tying
off. Respondent claims that by the time they commence installing the
roof, eave trim has been installed and the structural columns and beams
or rafters have been covered so that in order to reach them to anchor
the static line, it would be necessary to cut through the finished metal
surface which would be unacceptable to the purchaser or owner. (Tr. 96,
98, 103, 111, 203, 204, 253, 271, 276, 277, 320)

Complainant overcame this by establishing that (1) an anchor point for
the static line exists at the peak of the roof at all stages of the
roofing installation since the ridge panel is the last piece to go on.
If the insulation is pierced to secure the anchor, it could be repaired,
(Tr. 330, 331) (2) anchor points for the static line could consist of
concrete weights at the ground level at either side of the building, or
(3) a truck or other piece of equipment possibly equipped with a winch
could be used as an anchor point for the static line. (Tr. 283, 284)

Respondent further contended that to his knowledge no one in the
industry of constructing pre-engineered metal buildings uses safety
belts and lanyards, safety nets, catch platforms or scaffolding where
the fall hazard Is under 25 feet (Tr. 266, 267) Since each method is
attendant with increased cost, he would not be competitive if he
utilized any such safety measure. (Tr. 263, 265, 269) The evidence
showed that the use of catch platforms would add only about $1,000 to
the cost of installing a roof (Tr. 262) and that labor involved in
utilizing safety nets would be about $800.00. (Tr. 136, 138) The use of
such alternative forms of fall protection would eliminate the hazard and
satisfy the requirements of the Act. They are reasonable in cost and
should be born by the employer and ultimately the consumer. This
industry should not be permitted to close its eyes to the need for
providing for the safety of its employees where methods of affording
that safety exist. The claim that everyone else ignores the hazard is no
defense and complainant proved that at least one competitor does protect
its employees from falling from heights under 25 feet. (Tr. 125) It
appears that intelligent effort expended upon the use of safety belts
and lanyards could produce a workable method at a reasonable price.
Respondent has persisted in misinterpreting and misapplying the steel
erection standards at subpart R of section 1526. (Tr. 267, 288) Such
misapplication should not be countenanced. (Tr. 267)

Respondent failed to meet its burden of proving infeasibility, rather
the evidence preponderates in favor of a finding that personal tall
protection in the form of safety belts and lanyards and alternative fall
protection in the form of safety nets or catch platforms are both
technologically and economically feasible.

_Seventh Defense_:

"Respondent is here a victim of OSHA harassment and selective enforcement."

Respondent's evidence of "harassment and selective enforcement" was to
the effect it has been inspected by OSHA about three different times
while it knows of competitors who haven't seen an OSHA inspector in five
years. Mr. Hunter knows of no one else being told to provide fall
protection below 25 feet and he stated that everyone lives by the 25
foot standard. He feels sometimes he is singled out, but can't prove it.
(Tr. 287, 288, 298) Respondent cites no cases in support of his claim of
harassment and selective enforcement and the evidence introduced does
not rise to the level necessary to support such a claim. See
_International Harvester Company_ v. _Occupational Safety and Health
Review Commission_, 628 F. 2d 982, 985, 986, and cases there cited. See
also _Secretary_ v. _Mato, Inc._, OSHRC Docket No. 84-1077 which dispels
respondent's claim that it is the only entity in the industry to be
charged with failure to provide fall protection.


Each of the respondent's defenses have been here considered and found to
be without merit. Complainant made out a _prima_ _facie_ case and in
addition thereto a preponderance of the evidence supports a finding that
the appropriate form of personal protective equipment identified by the
complainant, to wit: safety belts and lanyards tied off to a static
line, is feasible.

Since serious injury or death could result from a fall of from 16 feet
to 21 feet, the violation was serious. Complainant gave due
consideration to factors set forth in the Act in arriving at the
proposed penalty of $300.00 which is appropriate. (Tr. 49-51)

Now, having observed the demeanor of the witnesses and having weighed
the credibility thereof, there are here entered the following:

_Findings of Fact_

1. At all times material hereto Central Wisconsin Steel Building
Erectors, Inc. was a corporation with a place of business at at Route 1,
Dalton, Wisconsin, and a worksite at the Glendale Commercial Building on
Advance Road, Madison, Wisconsin.

2. At times pertinent hereto respondent was engaged in a business
affecting interstate commerce and was engaged in handling goods which
had been moved in interstate commerce.

3. At times material hereto respondent employed five persons in its
business at said worksite and was an employer within the meaning of the Act.

4. Five of respondent's employees were exposed to the hazard of falling
distances of from 16 feet to 21 feet at the time of the inspection
herein and at all times when engaged in similar roof installing activities.

5. Serious injury, broken bones or death were the likely harm that could
result from the fall hazard to which respondent's employees were exposed.

6. Respondent had full knowledge of the fall hazard to which its
employees were exposed while engaged in roof installation on
pre-engineered single story metal buildings.

7. Safety belts and lanyards tied off to a static line were the
appropriate form of personal protective equipment to eliminate the hazard.

8. Safety belts and lanyards tied off to a static line were
technologically feasible.

9. Safety belts and lanyards tied off to a static line were economically
feasible.

10. No personal protective equipment was worn by its employees or
provided by respondent to eliminate the hazard of falling.

11. No fall protection of any kind was provided by the respondent to
protect its employees from falling while engaged in roof installation.

12. Respondent's employees in installing roofing were exposed to the
hazard of falling from the edge of the roof to the ground below and this
hazard was apparent to respondent and to anyone engaged in the industry
of constructing pre-engineered single story metal buildings.
Respondent's claim that the hazard was not recognized is not reasonable.

13. The hazard of possible tripping on the lanyard connecting a worker's
safety belt to a static line was not greater than the hazard of falling
from the roof to the ground where no fall protection was provided or worn.

14. Alternative means of protecting employees from falling from the roof
to the ground were available in the form of safety nets on catch
platforms and were economically feasible.

15. Employees would not be precluded from performing the installation of
roofing by the wearing of safety belts and lanyards tied off to a static
line.

16. The evidence does not disclose that respondent was the victim of
OSHA harassment or selective enforcement.

17. An appropriate penalty is the sum of $300.00.

_Conclusions of Law_

1. Respondent is an employer engaged in a business affecting commerce
within the meaning of the Act.

2. Jurisdiction of the subject matter of this proceeding is conferred
upon the Commission by section 10(c) of the Act and the Commission has
jurisdiction of the parties hereto.

3. In accordance with the agreement of the parties items 2a and 2d of
Serious Citations No. 1, issued to respondent December 20, 1983, should
be affirmed and a combined penalty of $50.00 should be assessed.

4. In accordance with the agreement of the parties item 1 of Repeated
Citation No. 2, issued to respondent December 20, 1983, should be
affirmed and a penalty of $25.00 should be assessed.

5. The steel erection standards at subpart R of 29 CFR 1926.750 thru 752
do not apply to the work activity in which respondent was engaged at the
time of the inspection.

6. The standard at 29 CFR 1926.28(a) under which respondent was cited
herein applies to the work activity in which respondent was engaged at
the time of the inspection.

7. Item 1 of the aforesaid Serious Citation No. 1 should be affirmed and
a penalty of $300.00 should be assessed.

_Order_

1. Item 1 of Serious Citation No. 1, issued to respondent December 20,
1983, is AFFIRMED and a penalty of $300.00 is ASSESSED.

2. Items 2a and 2b of said Serious Citation No. 1 are AFFIRMED and a
combined penalty of $50.00 is ASSESSED.

3. Item 1 of Repeated Citation No. 2, issued to respondent December 20,
1983, is AFFIRMED and a penalty of $25.00 is ASSESSED.

R. M. Child
Judge, OSHRC

Dated: October 21, 1985


FOOTNOTES:

[[1]] This standard provides as follows:

§ 1926.105 _Safety nets_.

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

 

[[2]] This standard states as follows:

§ 1926.500 _Guardrails, handrails, and covers_.

(g) _Guarding low-pitched roof perimeters during the performance of
built-up roofing work_--
   
    (5) _Roof edge materials handling areas and materials storage_.

        (iv) When safety belts systems are used, they shall not be
attached to the hoist.
        (v) When safety belts systems are used they shall be rigged to
allow the movement of employees only as far as the roof edge.

A "low-pitched roof" is one having a slope no greater than 4 to 12.
Section 1926.502(p)(3). The roof in this case was sloped 1 to 12.

 

[[3]] "Built-up roofing work" is defined as follows:

§ 1926.502 _Definitions applicable to this subpart_.

(p) For the purposes of paragraph (g) of § 1926.500, the following
definitions shall apply:

(1) "Built-up roofing"--a weatherproofing cover, _applied over roof
decks_. . . .
(2) "Built-up roofing work"--the hoisting, storage, application, and
removal of built-up roofing materials and equipment, including related
insulation, sheet metal, and vapor barrier work, _but not including the
construction of the roof deck_. [Emphasis added.]

 

[[4]] The standards in Subpart R of Part 1926, 29 C.F.R. §§
1926.750-.752, which apply specifically to steel erection, have no
safety belt provisions pertaining to the falling hazard alleged in this
case.

 

Central Wisconsin contends that the standards in Subpart R are the
exclusive fall protection standards for the type of work its employees
were performing and that therefore section 1926.28(a) is preempted.
Judge Child rejected this contention, holding that Central Wisconsin was
not engaged in steel erection work within the meaning of Subpart R.
Review was directed on the preemption issue. However, whether Judge
Child correctly held that Central Wisconsin was not engaged in steel
erection work, whether Subpart R does not apply to nontiered,
single-story buildings, and whether Subpart R preempts 1926.28(a), need
not be reached in this case in view of our decision to vacate the
section 1926.28(a) charge on its merits.

 

[[5]] At the close of the hearing the Secretary moved to amend the
pleadings under Fed. R. Civ. P. 15(b), which permits pleadings to be
amended when the parties try unpleaded issues by consent. The Secretary
sought to allege in the alternative a violation of the Act's "general
duty clause," section 5(a)(1), 29 U.S.C. § 654(a)(1). This provision of
the Act requires an employer to take precautions against "recognized
hazards that are causing or are likely to cause death or serious
physical harm to his employees." Central Wisconsin objected to the
Secretary's motion, asserting that it would have tried the case
differently had section 5(a)(1) originally been alleged. Judge Child did
not rule on the motion because he found Central Wisconsin in violation
of 29 C.F.R. § 1926.28(a). The Secretary has not filed a brief or review
and does not otherwise suggest the motion should now be granted. We
conclude that the Secretary has abandoned the alternative section
5(a)(1) allegation he sought to make before the judge.

 

[[6]] The citation also alleged other violations which we do not review.

 

 

[[1/]] The Citation and the Standard read:

_The Citation_

29 CFR 1926.28(a): Appropriate personal protective equipment was not
worn by employee(s) in all operations where there was exposure to
hazardous conditions:

Employees installing insulation and metal decking on the roof of the
building were exposed to the hazards of falling approximately 17 to 21
feet in that fall protection such as life lines and safety belts,
scaffolds, catch platforms, or other equivalent protection was not provided.

_The Standard_

29 CFR 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.