____________________________________
                                    :
SECRETARY OF LABOR,                 :
                                    :
          Complainant,              :
                                    :
          v.                        :   Docket No. 96-0126
                                    :
SUPERIOR RIGGING & ERECTING CO.,    :
                                    :
         Respondent.                :
____________________________________:

*/DECISION/*

Before: ROGERS, Chairman; VISSCHER and WEISBERG, Commissioners.

BY THE COMMISSION:

This case arises out of a fatal accident on June 15, 1995, when a
foreman employed by Respondent, Superior Rigging & Erecting Company
("Superior"), fell down an elevator shaft while welding elevator sill
angles on the fifteenth floor of a 24-story office building Superior was
constructing in Montgomery, Alabama. The Secretary of Labor
("Secretary") issued a citation alleging that Superior had committed a
number of serious violations and one repeated violation of the
Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the
Act"). The judge affirmed two items of the citation alleging serious
violations. He rejected Superior's argument that the cited standards
were stayed because the work involved steel erection. He granted the
Secretary's motion during the hearing to amend the repeated citation,
and he affirmed the repeated citation as amended. For the reasons that
follow, we conclude that the judge properly ruled that the installation
of sill angles is not steel erection work within the coverage of the
stay. We thus affirm item 2 of the serious citation in the absence of
any argument by Superior regarding the merits of that item. We remand
item 3 for further proceedings as discussed below. While we conclude
that the judge properly found that the amendment the Secretary requested
to the citation for repeated violation was not prejudicial to Superior,
we remand that citation for reconsideration as set forth below.

*FACTS*

The elevator sill angles which Superior was installing are 4-by-4 metal
brackets. These are placed at the edge of an elevator shaft to fill the
space between the floor and the area which will eventually be occupied
by the elevator door. They serve as a guide for positioning the elevator
doors at the edge of the floor. It is undisputed that sill angles are
installed after the structural steel is in place and the concrete has
been poured for the floors and walls. Sill angles are either bolted or
welded to 6- by 6-inch metal plates which have been embedded in the
concrete. At the time in question here, the structural steel assembly of
the building had been largely completed, and the cement floors and
columns were in place.[1]

In most instances, sill angles could only be installed by employees
working from within the elevator shaft itself. Accordingly, Superior's
employees placed plywood on the steel beams that ran through the
elevator shaft to form a work platform inside the shaft. The general
contractor for the project had installed wire rope cables alongside the
elevator shafts at the edge of the floor. It instructed Superior that
its employees on the work platform inside the shaft were expected to tie
off to these cables and that it would be safe for them to do so.[2]
These same cables were also intended to provide a physical barrier to a
fall through an elevator shaft opening for any employees working or
passing by on the floor on the inboard side of the cable. The record
indicates that it is common in the industry for a wire rope to be used
in this fashion as both a guardrail and as a lifeline.

In addition to the horizontal cables, the elevator subcontractor had
installed vertical lifelines for use by its employees in installing the
elevators and associated components. The Secretary's compliance officer,
David Gilreath, observed one instance in which an employee of Superior
was tied off to this vertical lifeline. The lifeline was secured to a
beam on the floor above without any padding to protect the lifeline from
being cut or damaged by the edges of the beam.

*STAY OF SUBPART M*

The parties do not dispute that Superior's system of fall protection in
which its employees used safety belts to tie off is intended to be a
"personal fall arrest system" ("PFAS") within the meaning of the
standard cited here, 29 C.F.R. § 1926.502. On these facts, the Secretary
issued a citation alleging that Superior failed to comply with two
provisions of section 1926.502(d), which sets forth specifications for a
PFAS. Item 2 alleged that the vertical lifeline was not protected,
contrary to the requirements of section 1926.502(d)(11), and item 3
alleged that Superior had failed to comply with section 1926.502(d)(23)
because it allowed its employees to secure their PFAS to "cable
guardrails."[3] Superior contended before the judge and argues before us
on review that it had not failed to comply with section 1926.502 because
the Secretary had stayed the application of that standard to steel
erection work.

The circumstances of this stay may be briefly summarized. The standards
set forth at 29 C.F.R. §§ 1926.500-.503 comprise Subpart M of Part 1926.
This subpart, which is entitled "Fall Protection," is one of several
subparts which prescribes fall protection requirements for construction
worksites. As a result of circumstances not relevant to the issues
before us, the Secretary on January 26, 1995, decided to stay the
application of Subpart M as to steel erection work until August 6, 1995
in order to reopen the rulemaking record for comments regarding the
appropriate fall protection measures for employees engaged in
non-building steel erection. Thereafter, on August 2, 1995, the
Secretary formally amended Subpart M to conform to the stay, that is,
she amended Subpart M to provide specifically that it did not cover
steel erection activities. The Secretary further announced a definition
for the term "steel erection activities"; she stated that her
enforcement policy would conform to a memorandum OSHA had issued to its
field offices on July 10, 1995:

    The memorandum provides that the term "steel erection activities"
    means the movement and erection of skeleton steel members
    (structural steel) in or on buildings or non-building structures. It
    includes the initial connecting of steel, employees moving
    point-to-point, installing metal floor or roof decking, welding,
    bolting and similar activities.

    The memorandum further provides that steel erection does not include
    the erection of steel members such as lintels, stairs, railings,
    curtainwalls, windows, architectural metalwork, column covers,
    catwalks, and /similar non-skeletal/ items or the placement of
    reinforcing rods in concrete structures.

60 Fed. Reg. 39,254 (emphasis added).

Superior presented opinion testimony from a number of witnesses,
including its own president, managers for the general contractor, and a
safety consultant for its insurance company, to the effect that the
industry considers installation of sill angles to be steel erection work
because it involves the connection of metal components to the building.
However, none of these witnesses disputed that sill angles are not
structural steel supporting members for the building or disputed that
they are set in place after the concrete floors are poured. One of
Superior's witnesses, the construction manager for the general
contractor, conceded that the sill angles provide no structural support.
This witness further stated that sill angles are integral to the
building only because they are a necessary part of the elevator
assembly and that if a building is not equipped with elevators, sill
angles would not be required.

In concluding that Subpart M had not been stayed with regard to the work
activities involved in the installation of the sill angles, Judge Welsch
relied on the July 10, 1995 enforcement memorandum set forth in the
August 1995 rulemaking, quoted above. He found that sill angles are not
skeleton steel members which provide structural support for the building
and concluded that they are within the category of steel members which
are excluded from steel erection work under the terms of the memorandum.
Superior argues that the judge erred in disregarding its testimony of
persons knowledgeable about steel erection that installation of sill
angles is regarded as a type of steel erection work. We affirm the
judge's decision.

Neither the rulemaking associated with Subpart M nor Subpart R, which
applies to certain steel erection activities,[4] defines the term "steel
erection." Where the language of the standard itself is not explicit on
a matter in issue, we look to extrinsic evidence, starting with the
legislative history of the standard, to determine its meaning. /Nooter
Constr. Co./, 16 BNA OSHC 1572, 1574, 1993-95 CCH OSHD ¶ 30,345, pp.
41,837-38 (No. 91-237, 1994). As the Secretary correctly observes, the
preamble to a standard is the most authoritative evidence of the meaning
of the standard. /Tops Markets, Inc./, 17 BNA OSHC 1935, 1936 (No.
94-2527, 1997), /aff'd without published opinion/, 132 F.3d 1482 (D.C.
Cir. 1997); /American Sterilizer Co./, 15 BNA OSHC 1476, 1478, 1991-93
CCH OSHD ¶ 29,575, p. 40,016 (No. 86-1179, 1992). The Secretary's
statement adopting the enforcement memorandum is part of a preamble to a
final rule--in this instance, the preamble to the final rule amending
Subpart M to incorporate the terms of the stay. As such, it is an
authoritative expression of the Secretary's intent in enacting the stay.

The enforcement memorandum clearly provides that placement of
non-structural steel components does not constitute steel erection
activity for purposes of the stay.[5] Accordingly, the judge did not err
by failing to rely on Superior's opinion testimony regarding the
industry understanding of what constitutes steel erection work. /See
Cleveland Consol., Inc./, 13 BNA OSHC 1114, 1117, 1986-87 CCH OSHD ¶
27,829, pp. 36,428-29 (No. 84-696, 1987) (citing /Deering Milliken, Inc.
v. OSHRC/, 630 F.2d 1094, 1103-05 (5th Cir. 1980)) (industry custom and
practice is not relevant where the language of a standard, as defined by
its legislative history, is clear and unambiguous). Since it is
undisputed that sill angles are not structural components of the
building and since the record establishes that sill angles are installed
only after the structural steel assembly is completed and permanent
floors have been poured, the judge properly determined that installation
of sill angles is not structural steel work within the scope of the
Secretary's stay.

*MERITS OF THE ALLEGED SERIOUS VIOLATIONS*

Other than its contention that application of the standard had been
stayed, Superior does not dispute the merits of item 2, alleging that
the vertical lifeline was not protected against damage. Accordingly, we
affirm item 2 of the serious citation. The Secretary proposed and the
judge assessed $7000, the maximum penalty, based on his finding that the
violation was of high gravity. Since the employer does not dispute this
penalty amount, we affirm the penalty imposed by the judge.

As previously indicated, the Secretary alleged in item 3 of the citation
for serious violation that Superior failed to comply with 29 C.F.R. §
1926.502(d)(23) because it attached a PFAS to a guardrail system.
Superior argued that "the horizontal cable served as an acceptable
anchorage -- or secure point of attachment" for a PFAS in addition to a
guardrail since it complied with other requirements for a PFAS in 29
C.F.R. § 1926.502(d). As a result, the parties adduced evidence relating
to the strength and adequacy of the anchorages and other components of
the PFAS under paragraphs (d)(15) and (d)(16) of section 1926.502.[6]
These paragraphs set forth requirements for the amount of weight and
force the various components of a PFAS must be able to withstand as well
as requirements for testing the strength of the PFAS and ensuring that a
qualified individual reviews the design and installation of the PFAS.
They provide as follows:

    *§ 1926.502 Fall protection systems criteria and practices*
    . . . .
    (d) /Personal fall arrest systems/
    . . . .
    (15) Anchorages used for attachment of personal fall arrest
    equipment shall be independent of any anchorage being used to
    support or suspend platforms and capable of supporting at least
    5,000 pounds (22.2 kN) per employee attached, or shall be designed,
    installed, and used as follows:

    (i) as part of a complete personal fall arrest system which
    maintains a safety factor of at least two; and

    (ii) under the supervision of a qualified person.

    (16) Personal fall arrest systems, when stopping a fall, shall:

    (i) limit maximum arresting force on an employee to 900 pounds (4
    kN) when used with a body belt;

    (ii) limit maximum arresting force on an employee to 1,800 pounds (8
    kN) when used with a body harness;

    (iii) be rigged such that an employee can neither free fall more
    than 6 feet (1.8 m), nor contact any lower level;

    (iv) bring an employee to a complete stop and limit maximum
    deceleration distance an employee travels to 3.5 feet (1.07 m); and,

    (v) have sufficient strength to withstand twice the potential impact
    energy of an employee free falling a distance of 6 feet (1.8 m), or
    the free fall distance permitted by the system, whichever is less.

    Note: If the personal fall arrest system meets the criteria and
    protocols contained in Appendix C to subpart M, and if the system is
    being used by an employee having a combined person and tool weight
    of less than 310 pounds (140 kg), the system will be considered to
    be in compliance with the provisions of paragraph (d)(16) of this
    section. If the system is used by an employee having a combined tool
    and body weight of 310 pounds (140 kg) or more, then the employer
    must appropriately modify the criteria and protocols of the Appendix
    to provide proper protection for such heavier weights, or the system
    will not be deemed to be in compliance with the requirements of
    paragraph (d)(16) of this section.

Although they impose a number of requirements, Judge Welsch focused only
on the provisions at 1926.502(d)(15)(i) and (ii) requiring that
anchorages used as part of a PFAS have a safety factor of at least two
and be designed, installed, and used "under the supervision of a
qualified person." The judge concluded that "the perimeter cable
guardrail system" to which Superior's employees were instructed to tie
off was not "designed and installed and used under the supervision of a
qualified person as part of a complete personal fall arrest system which
maintains a safety factor of at least two."

However, section 1926.502(d)(15) sets forth requirements for the design,
installation, and use of /anchorages/ to which the other components of
the PFAS are attached. It mandates that anchorages "shall be . . .
capable of supporting at least 5000 pounds . . . per employee attached,
or shall be designed, installed, and used as follows . . . ." (Emphasis
added). Under the plain language of the standard, maintenance of a
specified safety factor and design, installation, and use under the
supervision of a "qualified person" are requirements which must be met
/only if/ the anchorages used for attachment of the PFAS components are
incapable of supporting at least 5000 pounds per person. Judge Welsch
made no findings as to how much force the anchorages could withstand,
and therefore he did not determine whether Superior is even required to
comply with the safety factor and qualified person provisions.

Although the Commission is empowered to make factual findings /de novo/,
/Franklin R. Lacy/, 9 BNA OSHC 1253, 1254, 1981 CCH OSHD ¶ 25,171, p.
31,073 (No. 3701, 1981), we decline to do so in the circumstances of
this case. As we have said, the parties litigated a number of factual
issues relating to the various specifications and requirements set forth
in section 1926.502(d)(15) and (16) in addition to the "qualified
person" and safety factor requirements. The judge made no findings on
these other matters although they were raised and argued before him.[7]
The Commission's usual practice is to allow judges to make factual
findings in the first instance. /Anthony Crane Rental, Inc./, 17 BNA
OSHC 1597, 1995-97 CCH OSHD ¶ 31,015 (No. 91-556, 1996), and cases cited
therein. Not only would a full resolution of all the issues raised by
the parties in this case require that a large number of factual findings
be made, but at least some of the factual matters to be addressed
involve drawing inferences from somewhat ambiguous testimony and
determining the weight to be assigned certain testimony or other
evidence. /Compare Kulka Constr. Management Corp./, 15 BNA OSHC 1870,
1874, 1991-93 CCH OSHD ¶ 29,829, p. 40,687 (No. 88-1167, 1992)
(Commission on review makes a very limited number of findings on matters
not addressed by the judge based on obvious and unmistakable
photographic evidence and evidence which is uncontroverted) /with Wiley
Organics, Inc./, 17 BNA OSHC 1587, 1594, 1995-97 CCH OSHD ¶ 31,035, p.
43,277 (No. 91-3275, 1996), /aff'd without published opinion/, 124 F.3d
201 (6th Cir. 1997) (province of the judge to resolve factual issues and
weigh conflicting testimony). /See Seibel Modern Mfg. & Welding Corp./,
15 BNA OSHC 1218, 1228 & n.15, 1991-93 CCH OSHD ¶ 29,442, p. 39,685 &
n.15 (No. 88-821, 1991) (general discussion of policy considerations
inherent in structure under which the administrative law judge makes
initial factual findings subject to review by the Commission under the
preponderance of the evidence standard).

In addition to the fact-finding required for a full resolution of all of
the contentions of the parties regarding the requirements and
specifications for a PFAS as set forth in the provisions of section
1926.502(d), there is a potentially more fundamental issue which remains
to be resolved as to the appropriate means of fall protection for
Superior's employees in the circumstances here. That issue arises from
the alleged repeated violation, to which we now turn.

*ALLEGED REPEATED VIOLATION*

The citation for repeated violation alleges that Superior failed to
comply with section 1926.501(b)(1)[8] because the employees installing
sill angles from the platform in the elevator shaft were not protected
by one of the three alternative means of fall protection permitted by
the standard, either a guardrail, safety net, or PFAS. The violation was
alleged to be repeated based on a prior uncontested citation for
Superior's failure to have guardrails on a manually propelled mobile
scaffold at a construction project for the Atlanta, Georgia airport.
That prior citation alleged a violation of Subpart L of Part 1926, the
Secretary's standards for scaffolds, 29 C.F.R. § 1926.451(e)(10), which
required guardrails on all open sides and ends of manually propelled
mobile scaffolds. During the hearing in the case now before us, the
Secretary moved to amend to allege in the alternative a violation of
section 1926.451(a)(4), which required guardrails on scaffolds in
general.[9] The Secretary's position in support of the amendment was
that the platform from which employees were installing sill angles
inside the elevator shaft met the definition of a scaffold.

The judge granted the motion over Superior's objection but afforded
Superior the opportunity to adduce additional evidence for the purpose
of curing any prejudice resulting from the amendment.[10] Superior
declined to request that the record be reopened. The judge concluded
that the area from which Superior's employees were performing work in
the elevator shafts was a scaffold covered by section 1926.451 rather
than a "walking/working surface" under section 1926.501. He affirmed the
citation item insofar as it alleged a violation of section 1926.451 and
found it repeated on the ground that both the violation in question here
and the prior citation item were substantially similar since both
involved falls from scaffolds.[11] Superior contends that the judge
erred in allowing the Secretary to amend to allege a charge under
section 1926.451(a)(4) and in finding the violation to be repeated in
nature.

*Propriety of the Amendment*

In the situation presented here, where an amendment is sought during the
course of the hearing, the issue is whether the amendment would be
prejudicial under the second part of Fed. R. Civ. P. 15(b), which provides:

    If evidence is objected to at the trial on the ground that it is not
    within the issues made by the pleadings, the court may allow the
    pleadings to be amended and shall do so freely when the presentation
    of the merits of the action will be subserved thereby and the
    objecting party fails to satisfy the court that the admission of
    such evidence would prejudice the party in maintaining the party's
    action or defense upon the merits. The court may grant a continuance
    to enable the objecting party to meet such evidence.

/Caterpillar, Inc./, 17 BNA OSHC 1584, 1586 n.4, 1995-97 CCH OSHD ¶
31,016, p. 43,234 n.4 (No. 93-2230, 1996); /Morrison-Knudson Co./Yonkers
Contracting Co., A Joint Venture/, 16 BNA OSHC 1105, 1112-13, 1993-95
CCH OSHD ¶ 30,048, pp. 41,269-70 (No. 88-572, 1993). Superior contends
that the amendment to add section 1926.451(a)(4) to the original
allegation of section 1926.501(b)(1) was prejudicial because it was
prepared to defend by showing that employees on the scaffold platform
tied off to the cable for fall protection whereas the amendment forced
it to litigate an independent and separate allegation that these
employees were not protected by guardrails. The Secretary, on the other
hand, argues that Superior was not prejudiced because the amendment to a
guardrail standard from one requiring either guardrails or personal
protective equipment does not add any new issues to the case. /See A.L.
Baumgartner Constr., Inc./, 16 BNA OSHC 1995, 1997, 1993-95 CCH OSHD ¶
30,554, p. 42,272 (No. 92-1022, 1994) and cases cited therein
(amendments generally permissible where they do not alter the essential
factual allegations of the citation but merely add an alternative legal
theory).

As the Secretary acknowledges in her brief before us, the Commission has
held that the Secretary cannot properly amend from a standard requiring
only guardrails to one requiring guardrails and other forms of fall
protection, because to do so would inject new issues into the case.
/E.g., Roanoke Iron & Bridge Works, Inc./, 5 BNA OSHC 1391, 1393, 1978
CCH OSHD ¶ 22,522, p. 27,174 (No. 10411, 1977), /aff'd without published
opnion/, 588 F.2d 1351 (4th Cir. 1978); /Roof Engg. Co./, 4 BNA OSHC
1942, 1976-77 CCH OSHD ¶ 21,416 (No. 6972, 1977). /See Spancrete
Northeast, Inc. v. OSHRC/, 905 F.2d 589 (2d Cir. 1990) (judge erred in
holding employer in violation for failure to require safety belts where
the citation alleged only a violation of a standard requiring
guardrails). However, the Secretary argues that an amendment from a
standard requiring that the employer select one of several permissible
means of fall protection to one requiring a single specific means of
fall protection is inherently non-prejudicial. We disagree.

The proposition the Secretary advances assumes that the employer /is not
using any means of fall protection/. In such a situation, a citation
alleging a violation of a standard which requires that the employer use
one of several alternative means of fall protection would put the
employer on notice that it must be prepared to litigate issues relating
to all the permissible means of fall protection. It logically follows
that the employer would not be prejudiced by an amendment to a more
restrictive standard which permits only one of those means of
protection. But where, as here, the employer has instituted one of the
means of fall protection permitted under the standard originally cited
and is prepared to defend on that basis, that same amendment would
interject new issues because it would require the employer to litigate a
means of fall protection different from the one it had been using and on
which its case was predicated. As the Commission stated in
/Morrison-Knudson Co./Yonkers Contracting Co./, 16 BNA OSHC at 1113,
1993-95 CCH OSHD at p. 41,270 "to determine whether a party has suffered
prejudice, it is proper to look at whether . . . it could have offered
any additional evidence if the case were retried" (quoting /Con-Agra
Flour Milling Co./, 15 BNA OSHC 1817, 1822, 1991-93 CCH OSHD ¶ 29,808,
p. 40,592 (No. 88- 2572, 1992)).

When Superior raised its objections at the hearing, it objected to the
amendment solely on the grounds that it was not prepared to try the
issue of whether the platform in the elevator shaft was subject to the
scaffold standards, which at the time in question defined a scaffold as
"any temporary elevated platform and its supporting structure used for
supporting workmen or materials, or both." Section 1926.452(b)(27).
Superior did not specifically object on the basis of the differences in
the substantive fall protection requirements of the two standards. At
the time in question, however, the only means of fall protection
permitted by the scaffold standard was guardrails, which as noted
differs from the means of fall protection permitted under section
1926.501 as set forth in the Secretary's citation. Nonetheless, while
this change in the substance of the allegation against Superior would be
prejudicial under Fed. R. Civ. P. 15, the judge offered Superior a
continuance to cure any prejudice. We therefore conclude that the judge
did not err in granting the Secretary's motion to amend after Superior
declined the opportunity for a continuance.

*Appropriate Fall Protection in the Circumstances Presented Here*

While we find no /procedural/ reason to deny an amendment of the charge
to allege that the platform was a scaffold requiring guardrails, the
Secretary's motion to amend does create an inconsistency with item 3 of
the serious citation, in which the parties have litigated issues
concerning the use of personal fall arrest equipment. If it is the
Secretary's position--as item 3 of the serious citation indicates--that
the employees on the scaffold platform would have adequate fall
protection if the PFAS had been rigged, secured, and tested in the
manner required by section 1926.502(d), then to require the installation
of guardrails as an additional means of fall protection would be
contrary to the terms of section 1926.501(b)(1), which clearly provides
that guardrails and a PFAS are alternative and equivalent means of fall
protection. As a general proposition, an employer cannot be required to
implement multiple methods of protecting employees from a single hazard
if those means are duplicative, and the additional abatement measures
would not further enhance employee safety. /See H.S. Holtze Construction
Co. v. Marshall/, 627 F.2d 149 (8th Cir. 1980). Conversely, if the
Secretary is of the view--as the amended allegation of repeated
violation suggests--that guardrails are required because the scaffold
standards are more specifically applicable to the platform from which
Superior's employees were working than the general fall protection
requirements set forth in Subpart M, then the means of protection set
forth in the specific scaffold standard take precedence over the
requirements of the general standard, and Superior cannot be cited for a
violation of the general standard. /McNally Constr. & Tunneling Co./, 16
BNA OSHC 1879, 1993-95 CCH OSHD ¶ 30,506 (No. 90-2337, 1994), /aff'd per
curiam/, 71 F.3d 208 (6th Cir. 1995); /Yazoo Mfg. Co./, 12 BNA OSHC
1112, 1118, 1984-85 CCH OSHD ¶ 27,141, p. 35,018 (No. 81-2141, 1984).[12]

Accordingly, we remand for reconsideration that portion of the judge's
decision finding that Superior committed a repeated violation by failing
to comply with section 1926.451(a)(4). We instruct the judge to
determine, based on further argument of the parties if necessary, which
standard is applicable in the circumstances here--the general fall
protection standards which would permit use of a PFAS, or the
then-existing standards for scaffolds, which require guardrails. In view
of this disposition, we do not at this time address the issue of whether
there exists a violation that is substantially similar to the prior
violation of section 1926.451. If the judge determines that a PFAS
satisfies Superior's obligation to provide protection against the fall
hazard to which its employees were exposed, then we direct that he set
aside his ruling granting the Secretary's motion to amend the citation
for repeated violation and that he decide the original pre-amendment
repeated allegation under section 1926.501(b)(1). In such event, the
judge is also to make the necessary further factual findings with
respect to the parties' allegations in item 3 of citation no. 1
regarding the adequacy of the design, installation, and testing of a
PFAS. If the judge determines that Superior's employees should have been
protected by guardrails, then we direct that item 3 of citation no. 1 be
vacated. The judge may in his discretion conduct further evidentiary
proceedings or request further briefs from the parties if he concludes
that such proceedings would be helpful on any of the matters covered by
this order.

*CONCLUSION*

In conclusion, we affirm Judge Welsch's holding that the standards
prescribed in Subpart M were not stayed as to the work operations in
which Superior's employees were engaged. We conclude that the judge
properly affirmed item 2 of citation no. 1 alleging serious violations.
We remand for reconsideration citation no. 1, item 3 and repeated
citation no. 2.

 

/s/_____________________________
Thomasina V. Rogers
Chairman

/s/_____________________________
Gary L. Visscher
Commissioner

/s/_____________________________
Stuart E. Weisberg
Commissioner

Dated: April 5, 2000

2000 OSHRC No. 5

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

____________________________________
                                    :
Secretary of Labor,                 :
                                    :
          Complainant,              :
                                    :
          v.                        :   OSHRC Docket No. 96-0126
                                    :
Superior Rigging & Erecting Co.,    :
                                    :
         Respondent.                :
____________________________________:


Appearances:

Kathleen G. Henderson, Esquire          David E. Jones, Esquire
  U. S. Department of Labor               Ogletree, Deakins, Nash, Smoak & Stewart
  Office of the Solicitor                 Atlanta, Georgia
  Birmingham, Alabama                       For Respondent
    For Complainant

Before:  Administrative Law Judge Ken S. Welsch

*_DECISION AND ORDER_*

Superior Rigging and Erecting Co. contests two citations issued by the
Secretary on December 14, 1995. The Secretary issued the citations as a
result of Occupational Safety and Health Administration (OSHA)
compliance officer David Gilreath's investigation of an employee
fatality at a construction site where Superior was working on June 15, 1995.

Citation No. 1 alleges serious violations of the following construction
standards of the Occupational Safety and Health Act of 1970 (Act):

Item 1: 29 C.F.R. § 1926.20(b)(2), which requires frequent and regular
inspections of the job site by competent persons.

Item 2: 29 C.F.R. § 1926.502(d)(11), which requires lifelines to be
protected from cuts and abrasions.

Item 3: 29 C.F.R. § 1926.502(d)(23), which requires that personal fall
arrest systems not be attached to guardrails.

Item 4a: 29 C.F.R. § 1926.503(a)(2)(i), which requires employees to be
trained in the nature of fall hazards in the work area.

Item 4b: 29 C.F.R. § 1926.503(a)(2)(ii), which requires employees to be
trained in the maintenance of the fall protection system to be used.

Item 4c: 29 C.F.R. § 1926.503(a)(2)(iii), which requires employees to be
trained in the use and operation of personal fall arrest systems and
guardrail systems.

Item 4d: 29 C.F.R. § 1926.503(a)(2)(viii), which requires employees to
be trained in the standards contained in subpart M of the construction
standards.

Item 5: 29 C.F.R. § 1926.1060(a), which requires employees to be trained
in the hazards associated with the use of ladders in elevator shafts.

Citation No. 2, item 1, alleges a repeat violation of 29 C.F.R. §
1926.501(b)(1) (amended at the hearing from "§ 1926.502(b)(1)," as it
appeared in the citation (Tr. 272)), which requires employees on a
working/walking surface with an unprotected side more than 6 feet above
the lower level to be provided with some form of fall protection. During
the hearing, the Secretary moved to allege in the alternative a
violation of § 1926.451(a)(4), which requires guardrails to be installed
on all open sides of platforms more than 10 feet above the ground or
floor. The Secretary's motion was granted (Tr. 273).

_Background_

In early 1995, Superior began work as a subcontractor at the RSA Tower,
a 24-story building under construction at 201 Monroe Street in
Montgomery, Alabama (Tr. 372, 581-582). Superior was originally hired as
a subcontractor by Industrial Manufacturing Incorporated to perform
steel erection work on the upper floors of the RSA Tower. The general
contractor Huber, Hunt & Nichols (HHN) subsequently hired Superior to
install approximately 180 sill angles in the passenger and freight
elevator shafts under construction (Tr. 138-139, 331). Sill angles span
the opening of an elevator door and provide continuity between the
elevator floor and the story floor (Exh. C-18, Tr. 83, 553-554).

Superior began installing the sill angles in April 1995 (Tr. 553). On
June 15, 1995, Superior employee Lendon Whitlow fell 15 stories to his
death in the east passenger elevator shaft (Tr. 697). Whitlow fell as he
assisted Freddie Payne, another Superior employee, in moving some boards
from the sixteenth to the fifteenth floor (Tr. 1184-1188).

_Citation No. 1_

_Item 1: Alleged Serious Violation of § 1926.20(b)(2)_

The Secretary alleges that Superior committed a serious violation of §
1926.20(b)(2), which requires that employers initiate and maintain
programs that:

    shall provide for frequent and regular inspections of the job sites,
    materials, and equipment to be made by competent persons designated
    by the employers.

The citation alleges that Superior's employees "were exposed to fall
hazards, in that the employer did not do regular inspections of the job
site to insure fall protection was adequate to protect employees, that
fall protection was installed correctly and that the fall protection was
inspected before each use." The Secretary contends that no one,
competent person or not, conducted inspections of fall protection at the
site. Superior argues that Herschel Lynch, Superior's general foreman
and superintendent on the RSA Tower project, and Lendon Whitlow, a
foreman, were both competent persons and made frequent and regular
inspections of the fall protection at the site.

The Secretary has the burden of proving this violation.

    In order to establish a violation of an occupational safety or
    health standard, the Secretary has the burden of proving: (a) the
    applicability of the cited standard, (b) the employer's
    noncompliance with the standard's terms, (c) employee access to the
    vi olative conditions, and (d) the employer's actual or constructive
    knowledge of the violation (i.e., the employer either knew or, with
    the exercise of reasonable diligence could have known, of the
    violative conditions).

/Atlantic Battery Co./, 16 BNA OSHC 2131 (No. 90-1747, 1994).

Superior does not dispute the application of § 1926.20(b)(2) to the
cited conditions. If Superior violated the terms of the standards by
failing to inspect its fall protection, its employees had access to the
violative conditions and Superior knew of the existence of the violative
conditions. The only issue is whether Superior conducted the safety
inspections.

Section 1926.32(f) defines a competent person as:

    one who is capable of identifying existing and predictable hazards
    in the surroundings or working conditions which are unsanitary,
    hazardous, or dangerous to employees, and who has authorization to
    take prompt corrective measures to eliminate them.

Superior established that both Lynch and Whitlow were competent persons
within the meaning of the standard. Both Lynch and Whitlow were capable
of identifying existing and predictable hazard in their working
conditions which were hazardous or dangerous to employees.

Pamela D. Painter is a senior safety consultant with the Argonaut
Insurance Company (Tr. 468). Before attaining that position, she had
worked for J. A. Jones Construction Company for 13 years, first as a
field safety inspector and then as the southeastern safety coordinator
(Tr. 469). Painter has worked with Lynch on a number of projects since
the mid 1980s (Tr. 469, 479). Her contact with Lynch led her to conclude
that Lynch "is very experienced and very capable of" identifying unsafe
work practices (Tr. 480-481). Painter described one of the projects that
she and Lynch worked on, the Atlanta Apparel Mart, as "an enormously
challenging project that we were very successful with" (Tr. 482-483).
Painter observed that Lynch had the authority to take corrective action
regarding unsafe conditions (Tr. 483, 486-487). Superior sent Lynch to a
seminar on OSHA's fall protection standards (subpart M) and paid for the
training (Tr. 543). Benny Tumbleston, president of Superior, testified
that Lynch had the authority to correct unsafe conditions that he
identified at the site (Tr. 72-73).

Painter also worked with Lendon Whitlow on the Atlanta Apparel Mart
project, and she testified that Whitlow was capable of identifying
unsafe conditions: "[I]n the area of steel erection, Lendon was
particularly cautious about fall protection and was very good at
ensuring that his employees utilized fall protection" (Tr. 489). Gregory
Fussell, Superior's vice-president and safety director, testified that
Whitlow had the authority to rectify any unsafe conditions that he
observed while he worked as a foreman for Superior (Tr. 1529).

Superior also established that Lynch made frequent and regular
inspections at the RSA Tower job site. Lynch testified that he made
visual inspections when Superior employees were performing sill angle
installation work in the elevator shafts (Tr. 690). Whitlow, who did
most of the hands-on supervising of the installation of the sill angles,
died at the work site. The record does not establish whether he
conducted frequent or regular inspectors of the work site.

The Secretary attempts to establish that Superior violated §
1926.20(b)(2) primarily by pointing out other alleged violations. The
Secretary's position is that, had Superior's competent persons conducted
frequent and regular inspections, the other alleged violations would not
have existed.

Such an argument is insufficient to sustain a violation of §
1926.20(b)(2). Some positive evidence is required to show that no
inspections were made. The mere existence of safety violations does not
establish a § 1926.20(b)(2) violation. The compliance officer, David
Gilreath, was asked at the hearing, "[D]id you find one shred of
evidence that anybody, any management person from the respondent, even
conducted one inspection while the employees were working inside the
elevator shaft?" Gilreath responded, "No, I did not" (Tr. 1310). This
exchange does not tell us how assiduously Gilreath looked for evidence
that inspections were conducted. Gilreath did not testify as to whether
he asked anyone he interviewed about the frequency and regularity of
inspections.

The Secretary has failed to establish that Superior violated §
1926.20(b)(2). Item 1 is vacated.

_Item 2: Alleged Serious Violation of § 1926.502(d)(11)_

The Secretary alleges a serious violation of § 1926.502(d)(11), which
provides:

    Lifelines shall be protected against being cut or abraded.

Superior contends that § 1926.502(d)(11) (as well as the subpart M
standards cited in items 3, 4a, 4b, 4c, 4d and item 1 of Citation No. 2)
is inapplicable to the cited conditions. On January 26, 1995, the
Secretary stayed the application of subpart M to steel erection
activities from February 6, 1995, through August 6, 1995 (Exh. R-2),
Federal Register, Vol. 60, p. 5132). On August 2, 1995, the Secretary
announced that he was extending the stay (Exh. R-3, Federal Register
Vol. 60, p. 39254).

Superior began installing sill angles in April 1995 (Tr. 553). Superior
contends that its installation of sill angles constitutes steel
erection, thus the subpart M standards did not apply to it at the time
of the accident.

The August 6, 1995, Federal Register announcement states that, until
subpart M is revised, OSHA's "enforcement policy on fall protection
during steel erection is the policy outlined in Deputy Assistant
Secretary Stanley's July 10, 1995, memorandum to the Office of Field
Programs, 'Fall Protection in Steel Erection'" (Exh. R-3). That
memorandum provides that the term "steel erection activities" means
(Exh. R-3):

    the movement and erection of skeleton steel members (structural
    steel) in or on buildings or non-building structures. It includes
    the initial connecting of steel, employees moving point-to-point,
    installing metal floor or decking, welding, bolting and similar
    activities.

    . . . [s]teel erection does not include the erection of steel
    members such as lintels, stairs, railings, curtain walls, windows,
    architectural metal work, column covers, catwalks, and similar
    non-skeletal items or the placement of reinforcing rods in concrete
    structures.

The January 26, 1995, Federal Register announcement states that subpart
M "will become effective for all construction activity other than steel
erection on February 6, 1995" (Exh. R-2). The issue is whether the
installation of sill angles is classified as a steel erection activity.
The record establishes that sill angle installation is not a steel
erection activity, and thus is covered by subpart M at the time of the
accident.

Sill angles are lengths of steel angle installed at a right angle to
steel separator beams along the inside edge of elevator shafts (Tr. 83,
553). The outside doors of the elevators -- those visible to a person
standing in an elevator lobby -- rest on, and slide open and close
along, door stops that are installed upon sill angles (Tr. 553). As
such, sill angles are not skeleton steel members. Sill angles do not
provide structural support for the building. Sill angles are more akin
to the steel members, like architectural metalwork and column covers,
which are not classified as steel erection. The standards contained in
Subpart M apply to Superior's installation of sill angles.

The Secretary alleges that Superior employee Brian Stokes, on either
June or July 21, 1995, was exposed to a fall because his lanyard was
attached to a vertical lifeline that was at risk for being cut or
abraded (Tr. 1238-1239). On either June or July 21, 1995, compliance
officer Gilreath took a picture of a rope double-wrapped around an
I-beam. There was no padding to protect the rope from cuts or abrasions
(Exh. C-20; #1; Tr. 1238). Gilreath called Lynch to the floor where the
rope was attached. Lynch told Gilreath that he and another Superior
employee had installed the lifeline (Tr. 1240). Gilreath had previously
encountered Superior welder Brian Stokes one floor below, tied off to
the lifeline (Exh. C-26; Tr. 1232).

Superior argues that it did not install the lifeline, that Brian Stokes
was not a Superior employee at the time the photograph was taken, and
that Gilreath "staged" the photograph to make it appear that a violation
existed where one did not. All of these arguments are without merit.

At the hearing, Lynch claimed that Superior did not use vertical
lifelines on the RSA project. Gilreath's testimony that Lynch admitted
to him that he had installed the rope depicted in Exhibit C-20 is deemed
more credible. Superior contends that a visual examination of the
location of the rope in relation to the elevator shaft in Exhibit C-20
compared to the location of the rope in Exhibit C-26 established that
the photographs do not show the same rope. This contention is
speculative and inconclusive.

Superior also contends that Stokes was not in its employ on July 21,
1995, which Superior claims is the date that Gilreath took Exhibit C-26.
This ignores the following exchange from the hearing (Tr. 1239):

    Gilreath:    To the best of my recollection, it was July 21st.

    Q.:    Could it have been June 21st.

    Gilreath:    It's a possibility it could be.

Superior's time records establish that Brian Stokes was on its payroll
the week of June 21, 1995 (Exh. R-29).

Finally, Superior argues that somehow Gilreath staged the photograph of
Stokes. How this could have been accomplished without Stokes's knowledge
is not explained. Stokes admitted that Exhibit C-26 was a photograph of
him (Tr. 1119, 1122). Since he is looking directly into the camera and
is aware that he is being photographed, the possibility of staging is
farfetched. Stokes denied any staging.

The Secretary has established that Superior violated § 1926.502(d)(11)
by failing to protect its lifeline from cuts and abrasions. The hazard
created by failing to install padding is that the rope could have become
abraded at the eight points where the rope made contact with the edges
of the I-beam (Tr. 1240-1241). If the rope failed, any employee tied off
to it was exposed to a fall down the elevator shaft. The violation was
serious.

_Item 3: Alleged Serious Violation of § 1926.502(d)(23)_

The Secretary alleges a serious violation of § 1926.502(d)(23), which
provides:

    Personal fall arrest systems shall not be attached to guardrail
    systems, nor shall they be attached to hoists except as specified in
    other subparts of this part.

The citation alleges, "Employees were allowed to attach personal fall
arrest equipment to cable guardrails." It is undisputed that Superior's
employees tied off their lanyards to the cable guardrails located at the
elevator shafts when they were installing the sill angles.

Section 1926.502(d)(23) contains an exception to its prohibition against
tying off to guardrails: "except as specified in other subparts of this
part." Section 1926.502(d)(15) sets forth the characteristics of
acceptable fall arrest anchorages:

    Anchorages used for attachment of personal fall arrest equipment
    shall be independent of any anchorage being used to support or
    suspend platforms and capable of supporting at least 5,000 pounds
    (22.2kN) per employee attached, or shall be designed, installed, and
    used as follows:

    (1) as part of a complete personal fall arrest system which
    maintains a safety factor of at least two; and

(ii) under the supervision of a qualified person.

Section 1926.500(b) defines "anchorage" as "a secure point of attachment
for lifelines, lanyards or deceleration devices." In the note to §
1926.502(d)(16) which lists performance criteria for fall arrest
systems, the standard specifies that if a fall arrest system meets the
criteria set forth at Appendix C to subpart M, and the employee using
the system has a combined body and tool weight of less than 310 pounds,
then the fall arrest system will be considered to be in compliance with
§ 1926.502(d)(16). Appendix C at § II (h)(ii) recognizes:

    that there will be [at times] a need to devise an anchor point from
    existing structures. Examples of what might be appropriate anchor
    points are . . . guardrails or railings if they have been designed
    for use as an anchor point . . . . A qualified person shall be used
    to evaluate the suitable [sic] of these "make shift" anchorages with
    a focus on proper strength.

Superior argues that it fits within the exception specified in §
1926.502(d)(23) because the perimeter cable installed around the
elevator shaft at the RSA Tower met the criteria set forth in other
subparts of § 1926.502. The Secretary argues that the perimeter
guardrail system was not "designed, installed, and used . . . under the
supervision of a qualified person."

Lynch testified that he allowed Superior employees to tie off to the
perimeter cable because he was told by representatives of HHN that it
met OSHA regulations. The representatives of HHN specifically named by
Lynch were Monte Thurmond, Doug Underwood, and Doc Foster. Lynch stated
he did not attempt to confirm whether the guardrail met OSHA standards
because, "It's not my obligation to do the test" (Tr. 611). Monte
Thurmond was the construction manager for HHN (Tr. 376). John Douglas
"Doug" Underwood, field superintendent for HHN, confirmed that he had
told Lynch that it was safe to tie off to the cable system (Tr. 1454).
Superior has the burden of proving that the guardrail met the criteria.

    A party seeking the benefit of an exception to a legal requirement
    has the burden of proof to show that it qualifies for that
    exception. /Armstrong Steel Erect., Inc./, 17 BNA OSHC 1385, 1389,
    1995 CCH OSHD ¶ 30,909, p. 43,031 (No. 92-262, 1995), /Article II
    Gun Shop/, 16 BNA OSHC 2035, 1994 CCH OSHC ¶ 30,563, p. 42,302 (No.
    91-2146, 1994) (Consolidated).

/C. J. Hughes Construction, Inc./, 17 BNA OSHC 1753, 1756 (No. 93-3177,
1996).

The issue is whether the perimeter cable was designed, installed and
used under the supervision of a qualified person. If HHN installed the
perimeter cable and did it correctly, then there was no violation of §
1926.502(d)(23). Underwood testified that Mannus "Doc" Foster, HHN's
carpenter foreman, had primary responsibility for installation of the
anchors and all of the components that were part of the safety cable
system (Tr. 1432).

Foster supervised the installation of the lug bolts and the eye bolts
and the cable (Tr. 1477). Superior adduced no evidence that Foster was a
qualified person within the meaning of § 1926.502(d)(15). Prior to
working for HHN, Foster worked for Brassfield and Gorrie as a form
carpenter (Tr. 1471-1472). Before that, Foster owned a tree service and
he did construction work for Ray Sumlin Contractors (Tr. 1473).

Furthermore, Foster did not design the cable guardrail "as part of a
complete personal fall arrest system which maintains a safety factor of
at least two." Foster testified that, "The system wasn't my system. It
was the project manager's system. They worked that all out ahead of time
with Huber, Hunt's safety people" (Tr. 1480). Underwood purchased the
various components of the cable system, but he did not oversee its
design or installation (Tr. 1420). Foster stated that he believed that
cable system met the strength criteria set out in the standard "[j]ust
from reports from Hilti and the cable and the companies of the strengths
of the components" (Tr. 1480). Although HHN conducted tests for concrete
strength, no test was done prior to the June 15, 1995, accident to
determine whether the cable system as installed met the criteria set out
in § 1926.502(d)(15).

Superior has failed to establish that the perimeter cable guardrail
system that it instructed its employees to tie off to was designed,
installed, and used under the supervision of a qualified person as part
of a complete personal fall arrest system which maintains a safety
factor of at least two. Superior failed to carry its burden of proof
that it fit within the exception contained in § 1926.502(d)(23). Since
it is undisputed that Superior's employees tied off to the guardrail
system, the Secretary has established a serious violation of §
1926.502(d)(23).

_Items 4a through 4d: Alleged Serious Violations of §§
1926.503(a)(2)(i),(ii), (iii), and (viii)_

The Secretary alleges that Superior committed serious violations of four
sections of the § 1926.503 training standard. The cited sections provide:

    The employer shall assure that each employee has been trained, as
    necessary, by a competent person qualified in the following areas:

    (Item 4a) (i) The nature of fall hazards in the work area;

    (Item 4b) (ii) The correct procedures for erecting, maintaining ,
    disassembling, and inspecting the fall protection systems to be used;

    (Item 4c) (iii) The use and operation of guardrail systems, personal
    fall arrest systems, safety net systems, warning line systems,
    safety monitoring systems, controlled access zones, and other
    protection to be used;
    . . .
    (Item 4d) (viii) The standards contained in this subpart.

The Secretary may not assume a lack of training solely because another
standard has been violated. The record establishes that Superior
provided general safety training to its employees.

Lynch conducted weekly mandatory toolbox safety meetings with Superior's
employees at the RSA Tower (Tr. 808-809). Fall protection was discussed
at every safety meeting (Exh. R-20). Employees attending the meetings
signed off on a copy of the meeting's minutes (Tr. 1038-1039). Superior
provided a copy of its safety handbook to each employee at the time he
was hired (Exh. E-1).

_Item 4a:_

The citation alleges that Superior violated § 1926.503(a)(2)(i) because
its "[e]mployees were allowed to work at elevated levels in the elevator
shaft(s) without an appropriate fall protection system in place and were
allowed to use cable guardrails as attachment points for lanyards."

The safety handbook contains the following instructions relating to fall
protection:

    7. When there is a possibility of falling, safety belts must be worn
    when guardrails or nets are not approved.

(Exh. R.1, p.6).

    7. Use your safety belt when working in elevator locations over six
    feet above ground or platform.

(Exh. R-1, p. 13).

    18. When working on a suspended scaffold you must at all times be
    wearing a safety belt attached to a lifeline which is independent of
    the scaffold suspension.

(Exh. R-1, p. 17).

While it is true that Superior violated § 1926.503(d)(23) by allowing
its employees to tie off to the guardrail system, this does not
establish that Superior failed to train its employees in the nature of
fall hazards. The record establishes that Superior did provide training
regarding fall hazards (Exhs. R-1, R-20). Item 4a is vacated.

_Item 4b:_

The citation alleges that Superior's "[e]mployees were not trained in
the procedures necessary to maintain fall protection systems."

Section 1926.503(a)(2) provides that each employee be trained "as
necessary" by a competent person. Brian Stokes testified that he never
received any training regarding the guardrails (Tr. 1122). However,
Stokes's assignment did not entail "erecting, maintaining, disassembly ,
and inspecting" the cable guardrail system. He was assigned to weld sill
angles (Tr. 1118). Had Stokes been assigned to erect or disassemble the
guardrail system, then his training in the correct procedures for doing
so would be necessary. Given Stokes's assignment, it was not necessary
for him to be trained in the maintenance of the guardrail system. Item
4b is vacated.

_Item 4c:_

The citation alleges that Superior's "[e]mployees were not trained in
the proper use and operation of personal fall arrest systems and
guardrail systems."

Item 4c essentially rehashes the allegations made in items 4a and 4b.
The record establishes that Superior did instruct its employees in the
use and operation of guardrail systems and personal fall arrest systems,
as necessary. Item 4c is vacated.

_Item 4d:_

The citation alleges that Superior's "[e]mployees were not trained in
1926 Subpart M, 'Safety Standard for Fall Protection in the Construction
Industry.'"

The record establishes that Superior trained its employees in the
standards of Subpart M "as necessary" to their work. The standard does
not require that the employees memorize every individual section of
every standard contained in Subpart M, only that employees be trained in
those standards relevant to their work. Item 4d is vacated.

_Item 5: Alleged Serious Violation of § 1926.1060(a)_

The Secretary alleges a serious violation of § 1926.1060(a), which provides:

    The employer shall provide a training program for each employee
    using ladders and stairways, as necessary. The program shall enable
    each employee to recognize hazards related to ladders and stairways,
    and shall train each employee in the procedures to be followed to
    minimize these hazards.

In the citation, the Secretary charged Superior with the failure to
train employees in the hazards associated with using ladders in elevator
shafts.

Ladder safety was the topic of the toolbox safety meeting on Monday,
June 12, 1995. Lynch conducted the meeting and it was attended by
Whitlow, Freddie Payne, Stokes, and Brian Bullard (Exh. R-20). The
meeting addressed the inspection of ladders and the angle at which to
set up ladders, among other things.

In addition, Superior's safety handbook, which is provided to each
employee, contains 18 rules relating to the safe use of ladders and
scaffolding (Exh. R-1, pp. 15-17). Payne, a Superior employee assigned
to install sill angles, testified that he received training from
Superior in ladder safety (Tr. 1074-1076).

The Secretary has failed to establish that Superior did not train its
employees in the safe use of ladders. Item 5 is vacated.

_Citation No. 2_

_Item 1: Alleged Repeat Violation of § 1926.501(b)(1)_

The Secretary alleges a repeat violation of § 1926.501(b)(1), which
provides:

    Each employee on a walking/working surface (horizontal and vertical
    surface) with an unprotected side or edge which is 6 feet (1.8m) or
    more above a lower level shall be protected from falling by the use
    of guardrail systems, safety net systems, or personal fall arrest
    systems.

In the alternative, the Secretary alleges a violation of §
1926.451(a)(4), which provides:

    Guardrails and toeboards shall be installed on all open sides and
    ends of platforms more than 10 feet above the ground or floor,
    except needle beam scaffolds and floats (see paragraphs (p) and (w)
    of this section). Scaffolds 4 feet to 10 feet in heights, having a
    minimum horizontal dimension in either direction of less than 45
    inches shall have standard guardrails installed on all open sides
    and ends of the platforms.

The citation alleges that "[o]n June 15, 1995, employees were exposed to
fall hazards in the east elevator shaft on the 15th and 16th floors when
installing sill angles."

The Secretary initially cited Superior for a repeat violation of §
1926.502(b)(1), then amended the item at the hearing to allege a
violation of § 1926.501(b)(1), citing a clerical error (Tr. 272). At the
same time, the Secretary moved to amend the item to allege in the
alternative a violation of § 1926.451(a)(4) (Tr. 261-273). The
Secretary's motion was granted over Superior's objection (Tr. 273).

In its posthearing brief, Superior moves for a reconsideration of the
ruling to allow the amendment in the alternative, and urges the
undersigned to deny the Secretary's motion to amend. Superior's motion
for reconsideration is denied. Superior's claims of prejudice are
without merit. The undersigned left the record open to take additional
witnesses at the conclusion of the hearing if Superior deemed it
necessary to its case (Tr. 273). Superior did not avail itself of this
opportunity. Also, the hearing lasted six days, extending over a
two-week period, which was sufficient time for Superior to prepare
rebuttal evidence.

_Walking/Working Surface or Scaffold?_

The determination of which of the alternative standards is applicable to
the cited condition depends upon whether the surface at issue is
considered a "walking/working surface" or a "scaffold." If it is a
walking/working surface, then § 1926.501(b)(1) applies. If it is a
scaffold, § 1926.451(a)(4) applies.

During the installation of the sill angles, some of Superior's employees
discovered that they could not position themselves from the floor and
comfortably reach under the sill to weld the bottom part of the sill
angle to the embed. Because of this difficulty, Superior installed a
plywood platform inside the elevator shaft, and set up a ladder from
which the employees could more comfortably weld (Tr. 721-722). The
platform was constructed by laying two 4x4s across two I-beams in the
elevator shaft, and then setting a 4x8 foot sheet of plywood across the
top of the 4x4s. A ladder would then be positioned using the plywood
sheet as a base (Exh. C-22; Tr. 938).

Section 1926.452(b)(27) defines "scaffold" as:

    Any temporary elevated platform and its supporting structure used
    for supporting workmen or materials, or both.

Section 1926.500(b) defines "walking/working surface" as:

    [A]ny surface, whether horizontal or vertical on which an employee
    walks or works, including, but not limited to, floors, roofs, ramps,
    bridges, runways, formwork and concrete reinforcing steel but not
    including ladders, vehicles, or trailers, on which employees must be
    located in order to perform their job duties.

All of the surfaces listed in § 1926.500(b) as "walking/working
surfaces" have in common the fact that they are pre-existing surfaces
used because they are convenient to the location where the work is to be
done. That is not the case here. Superior constructed the surface
specifically to enable its employees to reach their work.

The sheet of plywood does, however, meet the definition of §
1926.452(b)(27). The Commission has held that, "whether a surface
constitutes a scaffold is a question of fact to be answered by comparing
the definition of a scaffold to the characteristics of the surface in
question." /Armstrong Steel Erectors, Inc./, 17 BNA OSHC 1385, 1389 (No.
92-262, 1995). The sheet of plywood was temporary (it was moved from
floor to floor as the sill angles were installed), it was elevated (it
was used in the elevator shaft, whose floor was in the basement of the
RSA Tower), and it was a platform used for supporting workmen while they
welded the sill angles. Therefore, the sheet of plywood was a scaffold
and § 1926.451(a)(4) applies to the cited condition.

_§ 1926.451(a)(4)_

Section 1926.451(a)(4) requires that scaffolds more than 10 feet above
the ground or floor have guardrails erected on all open sides and ends.
It is undisputed that the sheet of plywood that Superior used as its
platform was elevated more than 10 feet above the basement floor, and
that it was not guarded on any side, three of which were open. The
Secretary has established a violation of § 1926.451(a)(4).

_Was the Violation Repeated?_

On September 23, 1993, Superior received a citation alleging in item 5 a
serious violation of § 1926.451(e)(10) for failing to install guardrails
on all open sides and ends on a manually propelled mobile scaffold.
Section 1926.451(e)(10) provides in pertinent part:

    (e) /Manually propelled mobile scaffolds./
    . . .
    (10) Guardrails made of lumber, not less than 2x4 inches (or other
    material providing equivalent protection), approximately 42 inches
    high, with a midrail, of 1x6 inch lumber (or other material
    providing equivalent protection), and toeboards, shall be installed
    at all open sides and ends on all scaffolds more than 10 feet above
    the ground or floor.

Superior did not contest the citation and it because a final order of
the Commission (Exh. C-2).

A violation is properly characterized as repeated if at the time of the
alleged violation there was a Commission final order against the same
employer for a substantially similar violation. /See Potlatch Corp./, 7
BNA OSHC 1061, 1063 (No. 16183, 1979). Because the present cited
standard and the previously cited standard are different, the Secretary
has the burden of proving that they are substantially similar. The
principal factor to be considered in establishing substantial similarity
between the present and prior violations is the similarity of the
hazards. /See Stone Container Corp./, 14 BNA OSHC 1757, 1762 (No.
88-310, 1990).

Superior argues that the hazards in each case are different because the
1993 citation against Superior involved a 15-foot fall to the floor,
while in the instant case, the employee was tied off so that he would
fall only 6 feet - the length of his lanyard. Superior is incorrect in
its analysis of the issue. The hazard in each case is falling off a
scaffold. "That the possible fall distances may have varied somewhat is
not significant." /Id./ The Secretary has established that Superior
committed a repeated violation of § 1926.451(a)(4).

_Penalty Determination_

Under § 17(j) of the Act, in determining the appropriate penalty the
Commission is required to find and give "due consideration"' to (1) the
size of the employer's business, (2) the gravity of the violation, (3)
the good faith of the employer, and (4) the history of previous
violations. The gravity of the violation is the principal factor to be
considered.

Superior employed more than 100 employees (Tr. 1305). No evidence of bad
faith was adduced. Superior had a history of previous violations.

Item 2 of Citation No. 1 is a serious violation of § 1926.502(d)(11) for
failure to protect vertical lifelines against cuts and abrasions. Its
gravity is high. Superior employee Brian Stokes was welding at the edge
of the elevator shaft on the floor below where the vertical lifeline was
attached. A penalty of $7,000.00 is assessed.

Item 2 of Citation No. 1 is a serious violation of § 1926.502(d)(23) for
allowing employees to tie off to the guardrail. The gravity is high.
Employees were exposed to falling down the elevator shaft. A penalty of
$7,000.00 is assessed.

Item 1 of Citation No. 2 is a repeat violation of § 1926.451(a)(4) for
failure to erect guardrails on all open sides and ends of a scaffold.
The gravity is high. Employees were exposed to falling down the elevator
shafts. A penalty of $70,000.00 is assessed.

_FINDINGS OF FACT AND CONCLUSIONS OF LAW_

The foregoing decision constitutes the findings of fact and conclusions
of law in accordance with Federal Rule of Civil Procedure 52(a).

_ORDER_

Based upon the foregoing decision, it is hereby ORDERED:

_Serious Citation No. 1_

    1. Item 1 violation of § 1926.20(b)(2), is vacated and no penalty is
    assessed.

    2. Item 2 violation of § 1926. 502(d)(11), is affirmed and a penalty
    of $7,000.00 is assessed.

    3. Item 3 violation of § 1926.502(d)(23, is affirmed and a penalty
    of $7,000.00 is assessed.

    4. Items 4a-4d, violations of §§ 1926.503(a)(2)(i),
    1926.503(a)(2)(ii), 1926.503(a)(2)(iii), and 1926.503(a)(2)(viii),
    are vacated and no penalty is assessed.

    5. Item 5 violation of § 1926.1060(a) is vacated and no penalty is
    assessed.

_Repeat Citation No. 2_

    1. Item 1, in the alternative violation of § 1926.451(a)(4), is
    affirmed and a penalty of $70,000.00 is assessed.

 

__________________________
KEN S. WELSCH
Judge

Date: February 16, 1998

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

[1] In May 1995, the month before the accident, Superior was still
engaged in connecting steel beams at the roof level. It is not entirely
clear when that work was completed, and indeed the record does not
directly show that there was no structural steel erection work remaining
at the time of the violations. The record is clear, however, that in the
elevator shaft areas where the violations in question were alleged to
have occurred, floors and walls were largely complete and no structural
steel assembly was taking place.

[2] The parties concede that the deceased employee, Lendon Whitlow, was
required to tie off to the cable and was not wearing a safety belt at
the time he fell.

[3] The cited standard provides as follows:

    *§ Section 502 Fall protection systems criteria and practices*
    . . . .
    (d) Personal fall arrest systems. Personal fall arrest systems and
    their use shall comply with the provisions set forth below.
    . . . .
    (11) Lifelines shall be protected against being cut or abraded.
    . . . .
    (23) Personal fall arrest systems shall not be attached to guardrail
    systems, nor shall they be attached to hoists except as specified in
    other subparts of this part.

Section 1926.500(b) defines a PFAS as "a system used to arrest an
employee in a fall from a working level." A "guardrail system" in turn
is defined as "a barrier erected to prevent employees from falling to
lower levels."

[4] Subpart R governs the erection of steel-framed buildings and
contains a number of safety requirements, of which fall protection is
only one portion. /See/ 60 Fed. Reg. 5132 (1995).

[5] Superior contends that the enforcement directive is inconclusive on
the issue of the scope of the stay because sill angles are not expressly
included in the list of activities considered to be non-structural steel
work. Superior concedes, however, that the directive is not intended to
be an exhaustive enumeration of every work operation but rather sets
forth illustrations or examples of the kinds of activities that are or
are not covered by the term "steel erection."

[6] According to the definition of a PFAS in section 1926.500(b), a PFAS
"consists of an anchorage, connectors, a body belt or body harness and
may include a lanyard, deceleration device, lifeline, or suitable
combinations of these." One of the components of the PFAS, the
anchorage, is defined at section 1926.500(b) as "a secure point of
attachment for lifelines, lanyards or deceleration devices." Lifelines
and lanyards are defined as follows:

    /Lanyard/ means a flexible line of rope, wire rope, or strap which
    generally has a connector at each end for connecting the body belt
    or body harness to a deceleration device, lifeline, or anchorage.
    . . . .
    /Lifeline/ means a component consisting of a flexible line for
    connection to an anchorage at one end to hang vertically (vertical
    lifeline), or for connection to anchorages at both ends to stretch
    horizontally (horizontal lifeline) and which serves as a means of
    connecting other components of a personal fall arrest system to the
    anchorage.

[7] The judge asserted that it was the Secretary's contention that the
"perimeter guardrail system" was not implemented under the supervision
of a qualified person. Although the judge also concluded that Superior
had not complied with the safety factor requirement of section
1926.502(d)(15)(i), his decision suggests that the /only/ issue the
Secretary raised before him was whether Superior had satisfied the
qualified person criterion of section 1926.502(d)(15)(ii). In fact, in
her trial brief the Secretary argued all elements of both paragraphs
1926.502(d)(15) and (16) before the judge.

[8] The standard imposes a general requirement that employees be
protected against the hazard of a fall from working surfaces as follows:

    *§ 1926.501 Duty to have fall protection.*
    . . . .
    (b)(1) /Unprotected sides and edges./ Each employee on a
    walking/working surface (horizontal and vertical surface) with an
    unprotected side or edge which is 6 feet (1.8 m) or more above a
    lower level shall be protected from falling by the use of guardrail
    systems, safety net systems, or personal fall arrest systems.

[9] At the time this case arose, the scaffold standards provided as follows:

    *§ 1926.451 Scaffolding.*
    (a) /General requirements./
    . . . .
    (4) Guardrails and toeboards shall be installed on all open sides
    and ends of platforms more than 10 feet above the ground or floor .
    . . .Scaffolds 4 feet to 10 feet in height, having a minimum
    horizontal dimension in either direction of less than 45 inches,
    shall have standard guardrails installed on all open sides and ends
    of the platform.
    . . . .
    (e) /Manually propelled mobile scaffolds./
    . . . .
    (10) Guardrails made of lumber, not less than 2x4 inches (or other
    material providing equivalent protection, approximately 42 inches
    high, with a midrail . . . and toeboards, shall be installed at all
    open sides and ends on all scaffolds more than 10 feet above the
    ground or floor.

On August 30, 1996, the Secretary substantially revised the scaffold
standards set forth in Subpart L, including the fall protection
requirements for scaffolds contained in section 1926.451. 61 Fed. Reg.
46,026, 46,104. Although this amendment postdates the violations alleged
in this case, it is nevertheless relevant for the reasons discussed /infra/.

[10] The Commission has consistently held that the judge may in his
discretion allow prejudice to be cured by granting a reasonable
continuance. /Bland Constr. Co./, 15 BNA OSHC 1031, 1041, 1991-93 CCH
OSHD ¶ 29,325, p. 39,401 (No. 87-992, 1991), and cases cited therein.

[11] In order for a repeated violation to exist, the evidence must show
that at the time the violation is alleged to have existed there was a
Commission final order against the employer for a "substantially
similar" violation. /Potlatch Corp./, 7 BNA OSHC 1061, 1063, 1979 CCH
OSHD ¶ 23,294, p. 28,171 (No. 16183, 1979). Under the rule set forth in
/Potlatch/, a prima facie showing of substantial similarity is presumed
to exist where the present and prior violations are of the same
standard, and the burden then shifts to the employer to rebut that
showing. Where the present and prior violations are of different
standards, the Secretary must present evidence to establish substantial
similarity.

[12] We also note that on August 30, 1996, subsequent to the accident
and inspection at issue here, the Secretary promulgated a final rule
revising the scaffold standard to which she seeks to amend here. 61 Fed.
Reg. 46,026 (1996). This revision is based on rulemaking which the
Secretary conducted simultaneously with her revision of the general fall
protection standards in Subpart M. In the preamble to her proposed
revisions of the scaffold standards, the Secretary expressed her general
objective to harmonize the fall protection requirements among the
various subparts:

    The proposed revisions are intended to correct problems related to
    the existing standards. More specifically, the existing standards
    regulate, in detail, the specific methods to be used to reduce
    employee exposure to the hazards of slipping or falling while
    working on scaffolds. The proposed revisions would continue to
    address employee exposure, but would do so using performance
    criteria, where possible, rather than specifications standards. This
    approach is another step in OSHA's plan to review its safety
    standards and to revise them as necessary to provide safer working
    conditions without imposing unnecessarily burdensome requirements.

51 Fed. Reg. 42,680 (1986). To this end, the Secretary proposed to
eliminate the general scaffold protection provision requiring
guardrails, section 1926.451(a)(4), the paragraph to which she seeks to
amend in this case, in favor of a requirement allowing the employer a
choice between a guardrail and a PFAS. As the Secretary stated,
"[w]hereas the existing rules are specific requirements to have
guardrails only or safety belts only, the proposal would require that
all employees on platforms more than 10 feet above lower levels be
protected by a choice of . . . guardrails or body belt/harness systems,
with certain exceptions discussed below." /Id./ In adopting the final
rule amending Subpart L, the Secretary reiterated her intention "to
allow employers as much flexibility in compliance as is consistent with
employee protection." 61 Fed. Reg. at 46,026.

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

OSHRC Home <http://www.oshrc.gov/index.html>