“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 9985 B & B INSULATION, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0April 18, 1977DECISIONBefore BARNAKO, Chairman; MORAN and CLEARY,Commissioners.BARNAKO, Chairman:??????????? Thiscase presents the question of whether Administrative Law Judge Henry F. Martin,Jr. erred in vacating a nonserious citation for violation of 29 C.F.R. ?1926.28(a).[1]For the reasons that follow, we affirm the citation.??????????? Thefacts are not disputed. Respondent, an insulation subcontractor, was insulatingsteam pipes at the Kirby Lumber Company plant in Silsbee, Texas. As a part ofthe job, on August 9, 1974, a foreman and two employees were insulating an8-inch pipe which was located approximately 23 feet above the ground. To reachthis pipe, the foreman and one of the employees were standing on a ?rack? ofpipes which was located approximately 2 feet below, and parallel to the lengthof, the 8-inch pipe. The ?rack? of pipes consisted of three pipes all lying ina horizontal plane. The outside two pipes, 16-inch and 14-inch insulated pipes,were separated by a 15-inch space through which ran the middle pipe, anuninsulated pipe of unspecified diameter. The foreman and employee straddledthe center pipe and stood with one foot on each of the outside pipes. As theinsulating progressed along the 8-inch pipe, they walked down the rack.??????????? Therack was 9 feet above the energized and uninsulated electrical power lines of atrolley which passed beneath the rack. The foreman used stainless steel wire tosecure insulation to the 8-inch pipe, and he trailed the coil of wire downbelow and behind him. The wire contacted the power lines. As a result ofelectrical shock, the foreman was killed and the employee with him on the racklost consciousness and fell to the ground. Neither the foreman nor the employeewore a safety belt tied-off to a lifeline or to the supporting structure abovethe 8-inch pipe.??????????? Safetybelts or scaffolds are used by employees in the insulating industry on somejobs which involve work above the ground. The practice in the industry is toleave the decision whether or not to use safety belts to the discretion of thesupervisor on the jobsite. Several witnesses for Respondent testified that theydid not think it was necessary to use safety belts when working from the piperack involved in this case. They thought that any falling hazard was minimal,and that, if safety belts were used, employees would be hindered in their workby the necessity to unhook and rehook the lanyards asthey progressed along the rack. They expressed concern that employees could betripped or pulled off their feet by the lanyard. They also testified that fallsfrom pipes by insulation workers occurred only infrequently.??????????? JudgeMartin vacated the citation. As a threshhold matterhe rejected Respondent?s argument that the standard was unenforceablyvague, citing our decision in Hoffman Construction Co., 15 OSAHRC 327,BNA 2 OSHC 1523, CCH OSHD para. 19,275 (1975). He reasoned, however, thatbecause the standard does not describe the conditions under which personalprotective equipment must be used, it leaves the decision of when to use suchequipment to the employer. He concluded that, because industry practice andcustom did not require the use of safety belts under the circumstances of thiscase, Respondent did not violate the standard.??????????? Onreview, Respondent continues to argue that the standard is unenforceablyvague. We held in Hoffman Construction Co., supra, and have consistently heldthereafter, that the standard is enforceable, and can be read to require theuse of tied-off safety belts. See Otis Elevator Corp., 75 OSAHRC 4\/A2,BNA 3 OSHC 1736, CCH OSHD para. 20,159 (1975); EichleayCorp., 15 OSAHRC 635, BNA 2 OSHC 1635, CCH OSHD para. 19,324 (1975). Recently,however, our decision in Hoffman was reversed on appeal. HoffmanConstruction Co. v. OSHRC, No. 75 1741 (9th Cir., Nov. 1, 1976).[2] The Court noted that thestandard only applied when ?this part (29 C.F.R. Part 1926) indicates the needfor using such equipment . . .? It determined that language in Part 1926requiring the use of tied-off safety belts did not exist, and therefore heldthat the standard could not be read to require such protection.??????????? Havingcarefully considered the court?s reasoning, we have respectfully concluded thatwe should follow our own precedent. See Grossman Steel & Aluminum Corp.,76 OSAHRC 54\/D9, BNA 4 OSHC 1185, CCH OSHD para. 20,691 (1976). In concludingthat ? 1926.28(a) only applies when another standard in Part 1926 requires theuse of protective equipment, the court essentially read the phrase ?indicatesthe need for using? to mean ?requires the use of.? If, however, anotherstandard requires the use of personal protective equipment, then that standardcould be cited, and there would be no reason to rely on ? 1926.28(a). Thecourt?s reading thus would result in ? 1926.28(a) being redundant to otherstandards. It is a familiar principle of statutory construction that such aresult should be avoided if possible. U. S. v. Menasche,348 U.S. 528 (1955); A. Sutherland, Statutory Construction, para. 46.06(4th ed. 1973). In this case, the redundancy can be avoided by reading thephrase ?indicates the need for using? to be a general reference to the othersections in Part 1926. This is the interpretation given that phrase by CommissionerVan Namee in the lead opinion in HoffmanConstruction Co., supra, and I believe that his analysis is sound.??????????? Furthermore,the 9th Circuit?s conclusion that Part 1926 contains no requirement thattied-off safety belts be used is contrary to the interpretation of 1926.105(a)[3] advanced in Brennan v.Southern Contractors Service, 492 F.2d 498 (5th Cir. 1974). The 5th Circuitinterpreted ? 1926.105(a) to require the use of at least one of the enumeratedmethods of fall protection, which includes safety belts. A majority of theCommission agrees with that interpretation. See Crawford Steel Const. Co.,No. 9622, BNA 4 OSHC 1891, CCH OSHD para. 21,338 (1976). If, however, we wereto accept the 9th Circuit?s views concerning ? 1926.28(a), we would necessarilyhave to reject the 5th Circuit?s interpretation of ? 1926.105(a).??????????? Werecognize that the breadth of language used in ? 1926.28(a) gives rise to aproblem of lack of notice to employers of the conditions under which the use ofpersonal protective equipment may be required. This problem, however, islargely alleviated by our decisions limiting the applicability of the standardto those situations in which industry customs or practice, or other extrinsiccriteria, indicate that such equipment should be used. See Frank Briscoe Co.,No. 7792, BNA 4 OSHC 1729, CCH OSHD para. 21,162 (1976), and cases citedtherein. If we now decline to enforce ? 1926.28(a), the likely result would bethat Complainant would bring ?safety belt? cases under either ? 1926.105(a) orunder the general duty clause (29 U.S.C. ? 654(a)(1)).[4] In neither case wouldemployers be more on notice of the conditions under which safety belts arerequired than they now are under our interpretation of ? 1926.28(a).[5]??????????? Turningto the merits, we note that Judge Martin properly held that industry customsand practice are relevant in determining whether a violation existed. FrankBriscoe Co. supra. He erred, however, in relying on an industry practicewhich leaves the decision whether to use fall protection to the uncontrolleddiscretion of the foreman on the jobsite. The standard must be interpreted toimpose the same requirements on all similarly situated employers. Thus, theinquiry must be whether a reasonably prudent employer in the industry wouldhave recognized the need for fall protection under the particular set ofcircumstances shown to exist in this case. See Cape and Vineyard Division v.OSHRC, 512 F.2d 1148 (1st Cir. 1975); Brennan v. Smoke-Craft, Inc.,530 F.2d 843 (9th Cir. 1976).??????????? Therecord shows that falls have occurred when employees have stood on pipes toinstall insulation, and that safety belts are sometimes used to protect againstsuch falls.[6]While injuries resulting from such falls are usually slight, in this case afall of 21 feet was possible and serious injury likely. We conclude that areasonably prudent employer in Respondent?s industry would have recognized theneed for fall protection under these circumstances.??????????? Thequestion remains whether Complainant sustained his burden of showing that theuse of safety belts was the appropriate type of fall protection in this case. FrankBriscoe Co., supra. The record shows that safety belts are sometimes usedfor fall protection by employees installing insulation, and that, under thecircumstances of this case, safety belts could have been tied off to thestructure above the 8-inch pipe or to a lifeline. Respondent?s evidence showsthat safety belts can be inconvenient since an employee must unhook and rehook the lanyard as he moves along the length of the pipethat he is insulating and since the employee?s movements will be limited by thelength of his lanyard. Respondent did not, however, show any aspect of theoperation which requires constant and quick movement, and therefore, it appearsthat it was feasible to use safety belts. Accordingly, we find that Respondentviolated 1926.28(a) as alleged, and we will affirm the nonserious citation.??????????? Weturn now to the assessment of an appropriate penalty. Respondent has no historyof prior violations, is medium-large in size, and has shown good faith, but thegravity of the violation is moderate to high because of the severity of theinjury likely to result from a fall. We conclude that a penalty of $90 isappropriate.??????????? Accordingly,the nonserious citation for violation of 29 C.F.R. ? 1926.28(a) is affirmed anda penalty of $90 is assessed. It is so ORDERED.FOR THE COMMISSION:?William S. McLaughlinExecutive SecretaryDATE: APR 13, 1977?CLEARY, Commissioner, CONCURRING:??????????? AlthoughI concur in the Chairman?s disposition, I disagree with his reasoning.Regrettably, my concurrence continues a three-way split in the interpretationof the standard at 29 CFR ? 1926.28(a). In my opinion, however, the remedialobjectives of the Act are not well served by the interpretations advanced bythe Chairman, Commissioner Moran, or the Ninth Circuit.??????????? Indeclining to follow the Ninth Circuit?s decision in Hoffman Constr. Co. v.O.S.H.R.C., 546 F.2d 281 (9th Cir. 1976),[7] my colleague has properlyrecognized this Commission?s role in establishing national uniformity in theapplication of the Act. Keystone Roofing Co., Inc. v. O.S.H.R.C., 539F.2d 960, 964 (3d Cir. 1976); Monroe & Sons, Inc., 4 BNA OSHC 2016,1976 77 CCH OSHD para. 21,470 (No. 6031, 1977).??????????? The Hoffmancourt and Commissioner Moran are in basic agreement that ? 1926.28(a) should beread to require the use of appropriate personal protective equipment only whenanother standard in Part 1926 requires the use of a specified from of personalprotective equipment. In the context of a safety belt requirement, however,they disagree as to the proper reading of ?\u00a01926.28(a) in conjunction withPart 1926 standards. See Hoffman Constr. Co. v. O.S.H.R.C., supra; OtisElevator Co., 3 BNA OSHC 1736, 1975 76 CCH OSHD para.20,159 (No. 1184, 1975) (Moran, Commissioner, dissenting); Leon Marrano& Sons, Inc., 3 BNA OSHC 1117, 1974 75 CCH OSHD para.19,549 (No. 3580, 1975) (Moran, Chairman, concurring). It is clear, however,that a majority of this Commission has consistently rejected the court?s andCommissioner Moran?s interpretation of the standard, albeit for somewhatdifferent reasons. See, e.q., Carpenter Rigging& Contracting Corp., 2 BNA OSHC 1544, 1974 75 CCH OSHD para. 19,252 (No. 1399, 1975); IsseksBros., Inc., 3 BNA OSHC 1964, 1975 76 CCH OSHD para.20,361 (No. 6145, 1976); Sweetman Constr. Co., 3 BNA OSHC 2056, 1975 76CCH OSHD para. 20,466 (No. 3750, 1976).??????????? Inhis lead opinion in the instant case and in other cases on this issue decidedduring his term, Chairman Barnako has adopted the interpretation of formerCommissioner Van Namee in Hoffman Constr. Co.,2 BNA OSHC 1523, 1971 75 CCH OSHD para. 19,275 (No. 644, 1975), rev?d, 546 F.2d 281 (9th Cir. 1976). He reads the twoclauses of ? 1926.28(a) as conjunctive, requiring satisfaction of a two-steptest before personal protective equipment is required. Specifically, he wouldrequire: (1) that employees be exposed to hazardous conditions and (2) that ageneral reference to another standard in Part 1926 indicates a need for usingpersonal protective equipment to reduce the hazards. I would not.??????????? Thestandard at 29 CFR ? 1926.28(a) provides as follows:The employer is responsible for requiringthe wearing of appropriate personal protective equipment in all operationswhere there is an exposure to hazardous conditions or where this part indicatesthe need for using such equipment to reduce the hazards to the employees.???????????? Ithas been my consistent view that the two clauses in the standard describe twoseparate situations where the use of personal protective equipment is required.[8] Carpenter Rigging &Contracting Corp., supra (lead opinion), Hoffman Constr. Co., supra(concurring opinion). The first clause makes an employer responsible for thewearing of appropriate personal protective equipment in any operation ?wherethere is exposure to hazardous conditions,?[9] the second where Part 1926specifically ?indicates the need for using such equipment.? The lead opinioninterprets the phrase ?indicates the need for using? as a general reference toPart 1926 that must be read in conjunction with the first clause. In myopinion, such an interpretation is erroneous. To require personal protectiveequipment only when there is both a hazard and an indication in other standardsthat such equipment is required renders ? 1926.28(a) redundant of those otherstandards. In order to avoid this redundancy, I read the entire standard asmandating the use of personal protective equipment in those hazardoussituations not specifically dealt with elsewhere in Part 1926 as well as thoseaddressed by specific standards in Part 1926.??????????? Inany event, if I were to adopt the Ninth Circuit?s more restrictive reading of ?\u00a01926.28(a),which requires reference to another standard requiring the use of safety belts,I would disagree with its conclusion that a search for a safety beltrequirement proves ?fruitless.? In Brennan v. Southern Contractors Service,492 F.2d 498 (5th Cir. 1974), the U.S. Court of Appeals for the Fifth Circuitinterpreted 29 CFR ? 1926.105(a) to require the use of any of the fallprotection methods enumerated in the standard, one of which is safety belts.Thus, the portion of the Hoffman opinion in which the court failed to locate astandard requiring safety belts is inconsistent with the Fifth Circuit?s andthe Commission?s reading of ? 1926.105(a). Section 1926.28(a) is enforceableand applicable to the facts of this case.??????????? Thelead opinion may be read to limit the applicability of ? 1926.28(a) ?to thosesituations in which industry customs or practices indicate that such [personalprotective] equipment should be used (cite omitted).?[10] I would not. As I statedin the lead opinion in Isseks Bros., Inc., 3BNA OSHC 1964, 1975 76 CCH OSHD 20,361 (No. 6415, 1976):[W]hether ahazardous condition exists can be determined by reference to industry?srecognition of a hazard, but this is not necessarily controlling.?3 BNA OSHC at 1965 n.3, 1975 76 CCH OSHD at p. 24,287n.3 (cite omitted) (emphasis added). It does not serve the remedial purpose ofthe Act to limit the application of any standard by industry customs andpractices that may fail to recognize and deal adequately with an obvioushazard, one of common notoriety. Excessive dependence upon existing industrycustoms and practices countenances the status quo and, therefore, detracts fromthe Act?s remedial objectives. See Society of Plastics Indus. Inc. v.O.S.H.A., 509 F.2d 1301, 1309 (2d Cir. 1975); Staff of Senate Comm. onLabor & Public Welfare, 92d Cong., 1st Sess., Legislative History of theOccupational Safety & Health Act of 1970 141 5 (Comm. Print 1971).??????????? Thesesuggestions would also make more simple the problemsof proof in a case of this sort, and therefore tend to provide for a speedierhearing.??????????? Here,respondent?s employees stood 23 feet above the ground and 9 feet above anenergized and uninsulated electric power line with one foot on each of twopipes and wore no personal protective equipment. The risk to the employees isdemonstrated by the fatal accident that occurred, and the appropriate method ofabatement may be inferred. Resort to industry custom or practice or even toinjury records is unnecessary.??????????? Inlight of the above, it is important to note my disagreement with the Chairman?sdiscussion of complainant?s burden of proof in the context of a ? 1926.28(a)violation. In footnote 5 of the lead opinion it is stated that the elementsnecessary to establish noncompliance with ? 1926.28(a) are comparable to thoserequired to prove a violation of 29 U.S.C. ? 654(a)(1), the ?general duty?clause of the Act. I reject the drawing of this parallel as being both inconsistentwith the text of the Act[11] and unnecessary under thefacts of this case. In ?\u00a01926.28(a) cases complainant has the burden ofproving the existence of a hazard and the appropriateness of a specific form ofpersonal protective equipment. This does not mean, however, that complainantmust affirmatively establish the feasibility and likely utility of thesuggested form of protection. Rather, once a method is suggested, the employermay assert an impossibility of compliance defense. See Brennan v. O.S.H.R.C.& Underhill Constr. Corp., 513 F.2d 1032, 1035 (2d Cir. 1975); UnitedStates Steel Corp. v. O.S.H.R.C., 537 F.2d 780, 782 (3d Cir. 1976). In thiscase respondent has not proved that it would be impossible to use a safety beltsystem to protect its employees or that such a system would render theperformance of the assigned job impossible. A violation has been establishedbecause complainant has shown that a hazard existed that could be alleviated bythe use of a safety belt system.?MORAN, Commissioner, Dissenting:??????????? JudgeMartin?s decision, which is attached hereto as Appendix A, is correct andshould be affirmed for the reasons set forth therein. Furthermore, his vacationof the 29 C.F.R. ?\u00a01926.28(a) charge is correct for another reason.??????????? Section1926.28(a) is invalid in its present form because the Secretary of Labor failedto follow the rulemaking procedures required by 29 U.S.C. ? 655(b) in promulgatingthe revised version thereof. Secretary v. Island Steel & Welding, Ltd.,17 OSAHRC 143 (1975) (dissenting opinion).[12] Since the modifiedversion of ? 1926.28(a) is invalid, the original version remains in effect. Secretaryv. Island Steel & Welding, Ltd., supra. That standard provides asfollows:The employer is responsible for requiringthe wearing of appropriate personal protective equipment in all operationswhere there is an exposure to hazardous conditions and where this partindicates the need for using such equipment to reduce the hazards to theemployees.[13](Emphasis added.)\u00a0??????????? Inorder to sustain his burden of proving noncompliance with the above-citedstandard, complainant must establish (1) that there was employee exposure to ahazardous condition which warrants use of personal protective equipment, and(2) that there was a failure to use this equipment when such use was requiredelsewhere in Part 1926 of the regulations. This burden is consistent with thatwhich was set forth by the Ninth Circuit in Hoffman Construction Co. v.OSAHRC, 546 F.2d 281 (9th Cir. 1976),[14] where the Court consideredthe original version of ?\u00a01926.28(a).[15]??????????? Asindicated in the dissenting opinion in the Island Steel case, 29 C.F.R.? 1926.105(a), the standard in Part 1926 which comes closest to requiring theuse of a safety belt, can be read together with ? 1926.28(a) to indicate theneed for safety belts when employees were working at heights in excess of 25feet. In the instant case the employees involved were working at a height of 21feet. Since ? 1926.105(a) would not, therefore, apply in these circumstances,and complainant has not pointed out any other applicable standard in Part 1926,there can be no violation of ? 1926.28(a).?APPENDIXA\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 9985 B & B INSULATION, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0May7, 1975*1 APPEARANCES:Ms. Jane A. Matheson, Attorney USDOL,Solicitor?s Office 555 Griffin Square, Suite 707 Dallas, Texas 75202 Attorneyfor the complainant\u00a0Mr. P. Allan Port, Esquire 1110 HoustonCitizens Bank Building Houston, Texas 77002 Attorney for the respondent?DECISION AND ORDERMARTIN, Judge:??????????? Thisis a proceeding brought pursuant to section 10 of the Occupational Safety andHealth Act of 1970 (29 USC ? 651 et seq.), hereinafter referred to as the Act,contesting two citations and a notification of proposed penalty issued by thecomplainant against respondent under the authority vested in complainant bysection 9(a) of the Act.??????????? Thecitation alleges that as a result of an inspection of a work place under theoperation and control of respondent located on the premises of the Kirby LumberCo. at Silsbee, Texas, respondent violated section 29 CFR 1926.400(c) andsection 29 CFR 1926.28(a). The citation alleges that the inspection ofrespondent?s work place occurred on August 13th and 14th, 1974, and it appearsthat the same was issued on August 28, 1974. A notification of proposed penaltywas issued by the area director, Mr. Thomas T. Curry, wherein total penaltiesof $690.00 were proposed.??????????? Theserious citation reads as follows: Item \u00a0 Standard or Regulation Number Allegedly Violated \u00a0 Date on Which Alleged Violation Must be Corrected \u00a0 Description of Alleged Violation \u00a0 1 29 CFR 1926.400(c) Immediately upon receipt of this citation. \u00a0 Employees were permitted to work in close proximity to an electric power circuit, specifically electric trolley lines, which was not de-energized or guarded by effective insulation or other means. ? \u00a0 \u00a0Thenonserious violation reads as follows:\u00a0 Item \u00a0 Standard or Regulation Number Allegedly Violated \u00a0 Date on Which Alleged Violation Must be Corrected \u00a0 Description of Alleged Violation \u00a0 1 29 CFR 1926.28(a) Immediately upon receipt of this citation. \u00a0 The employer did not require the wearing of appropriate personal protective equipment in an operation where there was an exposure to a hazardous condition. Specifically, the employees were not provided with or required to use safety belts or lifelines. \u00a0 \u00a0??????????? Subsequentto the issuance of the citations and accompanying notification of proposedpenalty, respondent filed a timely notice of contest. Thereafter complainant,through his regional solicitor, filed a formal complaint with the ReviewCommission and respondent, through its counsel, has filed a formal answergenerally denying the allegations set forth in the complaint. The answer admitsthat the Review Commission has jurisdiction of this matter and also admits thatrespondent was engaged in a business affecting commerce within the meaning ofthe Act.??????????? Pursuantto notice a formal hearing was conducted in this matter in Houston, Texas, onDecember 17, 1974, at which time complainant was represented by Ms. Jane A. Mathesonof the Regional Solicitor?s office in Dallas, Texas, and respondent wasrepresented by its attorney, Mr. P. Allen Port of the Houston, Texas, bar.Following the hearing briefs were submitted for the undersigned Judge?sconsideration.??????????? Theissues to be resolved in this matter are whether respondent on the date of theinspection committed a serious violation of section 29 CFR 1926.400(c) andwhether respondent committed a nonserious violation of section 29 CFR1926.28(a).[16]Also, at issue herein is the question of the appropriateness of the proposedpenalties.??????????? Thereis no substantial dispute as to the facts in this matter. The inspection, whichwas conducted on August 13th and 14th of 1974, was the result of an accidentwhich occurred on August 9, 1974, while three employees of respondent wereengaged in the process of insulating steam pipes at their work place at theKirby Lumber Co. plant, pursuant to a subcontract which respondent had withCasey Enterprises. At the time of the accident respondent?s employees wereinsulating an 8? steam pipe which was located approximately 2 feet above andparallel to three other pipes which formed a type of platform from which twoemployees were working. The so-called working platform or area where the twoemployees were standing was made up of one 16? pipeand one 14? pipe approximately 15? apart. In between these two pipes was asmaller uninsulated pipe running approximately parallel and on the same plane.Approximately 9 feet beneath the working platform were three electric powerlines mounted on poles which ran perpendicular to the pipes where the men wereworking. The electric lines, which were not insulated, supplied power to atrolley car or moving platform used by Kirby Lumber Co. to move lumber. Thetrolley moved in a track installed along a concrete ditch which intercepted thework area. At the time of the accident respondent?s foreman, Mr. Alex Leleux, was applying sleeves of insulating material to the8? pipe and was securing the sleeves of insulation to the pipe by means of astainless steel wire from a coil which trailed below and behind him as he movedalong with his insulating job. A second employee, Mr. Dan Mooney, was alsostanding on the parallel pipes and assisting Mr. LeLeuxin insulating the pipe. A third employee, Mr. Herbert Gore, was standing on theground where he was attaching a piece of rope to the sections of insulation sothat the same might be lifted up to Mr. Mooney who would then hand theinsulating material to Mr. Leleux.??????????? Whilethis process was taking place the trailing coil of stainless steel wire held byMr. LeLeux contacted the energized trolley linebeneath the work area, causing Mr. Leleux to beelectrocuted. About the same time the helper, Mr. Mooney, came in contract withMr. Leleux and the electrical shock knocked him out,causing him to fall backward over the pipes. He lost consciousness and fell offthe pipe rack to the ground.??????????? Regardingthe alleged serious violation (29 CFR 1926.400(c)) it is respondent?scontention that it should not be found to be in violation because of theoversight or erroneous decision of an employee. In essence, counsel forrespondent states that its office personnel were never warned of the locationof the trolley wires and that respondent could not have expected its districtengineer to have been alerted to any unusual hazard in the work place by thegeneral contractor. In the absence of any actual knowledge of the wires,respondent states that it was entitled to rely on its job foreman to detect andcope with any hazards encountered on the job.??????????? Thestandard in question prohibits any employer from allowing an employee to workin close proximity to any electric power circuit unless the employee isprotected by (1) the de-energizing of the circuit and grounding it, or (2) byguarding it by effective insulation or other means. Neither of these twoprotective measures were taken. Since Mr. Leleux waselectrocuted and Mr. Mooney was critically injured, it must be concluded thatthey were working in close proximity to the energized power circuit.??????????? Theevidence reflects that Mr. Gore, who was working on the ground and handinginsulating materials up to Mr. LeLeux and Mr. Mooney,was aware of the trolley being operated near their place of work on the date inquestion and it was his opinion that Mr. Leleux, theforeman, also knew that the trolley was being operated. (Tr. 107) The trolleylines were clearly visible as indicated by the witnesses and as shown in theexhibits. The foreman had been on the Kirby Lumber Co. job site forapproximately six weeks prior to the unfortunate accident. Also, since thetrolley lines were only nine feet below the pipes where respondent?s workerswere standing, an electrical hazard could reasonably have been anticipated.[17] It is a common practicein the insulation business for a worker to allow a wire to trail loosely behindhim while tying insulation to pipes. It is here concluded that respondent,through its foreman, should have realized that there was a hazard on the worksite where the trolley wires were only 9 feet away from the workers. Itbehooved the foreman to make certain that the lines were de-energized or to seethat a protective covering was placed over the ?hot? wires in the event adifferent method of attaching the insulation could not be utilized.??????????? Sincerespondent?s foreman actually knew of the conditions existing at the placewhere he and his co-workers were performing the task of insulating the pipes,it is no defense to claim that its ?office personnel? had never been warned ofthe location of the power circuit. Neither can it be concluded that thisunfortunate accident was the result of an isolated or unpredictable event.Since electrocution is a real possibility when working around ?hot? wires, itmust be concluded that there was a substantial probability of death or seriousbodily harm and that a serious violation existed within the purview of section17(k) of the Act.??????????? Inthe case of Cox Brothers, Inc., Docket 2763, CCH Para 16,733, issuedOctober 10, 1973, a foreman was electrocuted when he came in contact with powerlines some 9 feet away, which lines had not been de-energized nor had they beencovered with insulating material. There, the Administrative Law Judge rejectedthe employer?s argument that the prime contractor, or company for whom thebuilding was being built, was responsible for handling the power line matterand ruled that the responsibility for employee safety could not be delegated.It was held that the victim, the foreman, was the company?s representative onthe job site and that his violation of the regulations constituted a violationof the part of the employer. Here, since respondent?s employees, including theforeman, knew of the existence of the trolley lines prior to the date of theaccident and since the aforementioned wires were clearly visible, it must beconcluded that respondent could, with reasonable diligence, have ascertainedthat there was a danger to its employees.[18]??????????? Complainanthas proposed a $600 penalty for the serious violation of section 29 CFR1926.400(c). Subsection 17(b) of the Act authorizes a maximum penalty of $1,000for serious violations. Subsection 17(j) of the Act grants the ReviewCommission authority to assess civil penalties and specifies the followingcriteria in connection with penalties.?The Commission shall have authority toassess all civil penalties . . . giving due consideration to theappropriateness of the penalty with respect to the size of the business of theemployer being charged, the gravity of the violation, the good faith of theemployer and the history of previous violations.????????????? Thecomplainant has developed certain guide lines in his compliance manual for thecomputation of proposed penalties, whereby certain percentage reductions areallowed for the factors of good faith, size, history, gravity, and promptabatement. As the Review Commission pointed out in the case of NaciremaOperating Co., 1 OSAHRC 33 (1972), it is not always possible to fixpenalties according to any precise mathematical formula and the factorspreviously mentioned cannot always be accorded equal weight. While history ofprevious violations and company size are factors which might be determined on aprecise basis, considerable leeway must be allowed when considering the factorsof gravity and good faith, since these items are affected largely by subjectivejudgment on the part of enforcement officials. After carefully considering allof the foregoing factors, it is the undersigned Judge?s opinion that a penaltyof $250 is appropriate under all of the facts and circumstances herein.??????????? Regardingthe nonserious charge, section 29 CFR 1926.28(a), the evidence reflects thatrespondent did not require its employees to wear safety belts on the date ofAugust 9, 1974. Two of respondent?s employees were working approximately 21feet above the ground without wearing safety belts or lifelines while they wereinsulating the aforementioned steam pipe. The compliance officer testified thatthe probable result of a fall from the pipe rack would be a serious or fatalinjury and as the evidence has indicated herein, Mr. Mooney did fall from thepipe rack after he received an electrical shock when he came into contact withMr. Leleux.??????????? It isrespondent?s contention that lifelines and safety belts are not appropriate forthe type of operations which its employees were engaged in on the date of theaccident. Respondent stated that because of the great variety of work areas onvarious jobs it was the uniform practice in the industry to delegate to the jobforeman the decision as to whether safety belts and life lines should be usedat any given time. It was further contended that the pipe rack could beconsidered as a relatively safe work platform and that the industry in generalhas experienced virtually no falls from pipe racks of the type being used atthe Kirby work site. In addition, it was stated that safety lines fixed to astatic object would tend to increase rather than decrease the hazard ofaccidental falls. Generally speaking, it is respondent?s opinion that safetybelts or lifelines would not have been ?appropriate personal protectiveequipment? under the circumstances as they existed on the work site inquestion.??????????? Respondenthas also contended that section 29 CFR 1926.28(a) is not sufficiently specificto apprise respondent as to what is required in the nature of protectiveequipment. Respondent points out that the standard fails to indicate what ismeant by the term ?hazardous conditions? and fails to prescribe the type ofpersonal protective equipment which might be ?appropriate? to fit any givensituation.??????????? Withrespect to respondent?s attack on the standard it must be admitted that thelanguage of this standard is very broad and does not prescribe specificrequirements for the use of certain items of protective equipment.??????????? Inview of the Review Commission?s recent ruling in the Hoffman Construction Co.case, Docket 644, decided January 31, 1975, respondent?s contention that thestandard is unenforceably vague must be rejected.There, the same personal protective equipment standard was upheld. TheCommission stated:Standards employing broad terms are notper se defective so long as their scope may be defined by other regulations,industry customs and practices, or other extrinsic means.???????????? TheCommission also cited the case of Modern Automotive Services, Inc., 6OSAHRC 738 (1974), wherein a similar standard, 29 CFR 1910.132(a) was found tobe enforceable. It was further pointed out that industry customs may be used todetermine the precise requirement of general protective equipment standards.[19]??????????? Aspreviously indicated the standard in question, 29 CFR 1926.28(a) does not putan employer on notice as to the necessity of any specific protective equipment.Apparently it is left to the judgment of the employer to determine when it isappropriate to wear certain personal protective equipment. One of respondent?semployees, Mr. Gore, testified that the use of a safety belt would hamper theeffectiveness of his work. However, he stated that a safety belt would be usedwhenever the foreman deemed it necessary. He personally did not feel that asafety belt or lifeline was required while working off of a pipe rack. He wasof the opinion that a pipe rack formed a stable work platform.??????????? Testimonyform respondent?s witnesses, who have had many years of experience in theinsulation business, was to the effect that falls are very infrequent, that apipe rack is a safe working area, that a pipe rack does not present asignificant hazard, and that it is not an industry custom or practice to wearsafety belts and lifelines under the type of conditions present here. It wasalso pointed out that under certain conditions the wearing of a safety beltcould increase the hazard of working on a pipe rack because of the necessity tomove about or walk along the pipe rack as required in applying insulation.??????????? Thecompliance officer testified there was a hazard of falling off the pipe rackwith the probability of serious injury, which hazard could be prevented by thewearing of protective equipment such as safety belts. He was not aware of anystatistical data regarding the frequency of this type of injury and had nopersonal knowledge of any falls from the pipe rack other than the one whichoccurred here where Mr. Mooney?s fall was precipitated by the electrocution ofMr. Leleux.??????????? Aftercarefully weighing all of the evidence, it is concluded that a violation ofsection 29 CFR 1926.28(a) has not been established. It has not been shown thatthe wearing of safety belts and lifelines would be considered as ?appropriate?personal protective equipment in this case. It is not a practice or custom inthe insulation business to wear safety belts while working off of pipe racks ofthis type. The fact that a fall might have been prevented had Mr. Mooney worn asafety belt and lifeline does not establish the fact that the industry wouldhave recognized the need for such equipment under these circumstances. Theapproximate cause of Mr. Mooney?s fall was, of course, the electrical shock.There is no evidence in the record to show that a reasonably prudent person,fully knowledgeable of the insulation installation business would have knownthat safety belts and lifelines would be necessary or that the same would berequired as ?appropriate? personal protective equipment within the meaning andintent of section 29 CFR 1926.28(a).??????????? Inthe Ryder case (supra), where the citation for personalprotective equipment (safety shoes) was affirmed, there was a history of toeinjuries. Here, there was no evidence as to the frequency or severity of fallsat respondent?s work places as a result of the failure to wear personalprotective equipment. The fact that there is no evidence of prior history or ofaccidents or falls while working on insulation projects would tend to indicatethat there is no significant hazard. Accordingly, the citation and notificationof proposed penalty will be vacated.FINDINGS AND CONCLUSIONS??????????? Theentire record herein supports the following findings and conclusions:??????????? 1.That respondent, B & B Insulation, Inc., at all times material hereto, wasan employer engaged in a business affecting commerce within the meaning ofsection 3 (5) of the Act, and the Review Commission has jurisdiction of theparties and subject matter herein.??????????? 2.That on August 9, 1974, and subsequent thereto, respondent utilized threeemployees who were engaged in insulating an 8? steam pipe on the premises ofthe Kirby Lumber Co. at Silsbee, Texas, while standing on a pipe rack composedof three pipes which ran below and parallel to the 8? pipe which was beinginsulated.??????????? 3. Onthe aforementioned date two of respondent?s employees, LeLeuxand Mooney, were working approximately 21 feet above the surface and whilestanding on the pipes, which served as working area or platform, said employeeswere within approximately nine feet of an electric trolley power circuit whichcrossed at right angles to the aforementioned pipes.??????????? 4.While two of the employees were engaged in applying insulation to the 8 ? steampipe, Mr. Leleux permitted a piece of steel wire,trailing along behind him, to come in contact with the energized power circuit,causing him to be electrocuted. It was stipulated between the parties and theevidence reflects that the trolley lines in question were carrying high voltagecurrent and that electrocution by the power circuit would result in asubstantial probability that death or serious physical harm would occur.??????????? 5.That on the aforementioned date respondent?s employeeswere not wearing lifelines or safety belts while they were installinginsulation at the Kirby work site.??????????? 6.That respondent violated the provisions of section 29 CFR 1926.400(c) on theaforementioned date since it could have foreseen that its employees might beexposed to a hazard likely to result in death or serious physical injury at theaforementioned work site.??????????? 7.That it is concluded that a serious violation within the meaning of section17(k) of the Act has been established and that a reasonable and appropriatepenalty would be $250.00.??????????? 8.That it has not been established that respondent violated the provisions ofsection 29 CFR 1926.28(a) since it has not been shown that the use of safetybelts and lifelines in the insulation of pipes would fall within the categoryof ?appropriate? personal protective equipment as referred to in said standard.ORDER??????????? Basedupon the foregoing findings and conclusions and upon the entire record, it isORDERED that:??????????? 1.The citation for serious violation be and the same is hereby affirmed and the penaltytherefor is assessed in the sum of $250.??????????? 2.The citation for nonserious violation and accompanying notification of proposedpenalty be and the same are hereby vacated.??????????? 3.This proceeding be and the same is hereby terminated.?HENRY F. MARTIN, JR.JUDGEDATED: May 7, 1975[1] The standardprovides:(a) The employer is responsible forrequiring the wearing of appropriate personal protective equipment in alloperations where there is an exposure to hazardous conditions or where thispart indicates the need for using such equipment to reduce the hazards to theemployees.[2] The version of the standard atissue in Hoffman contained the word ?and? in place of the ?or? in theversion quoted in footnote 1, supra. The difference results from anamendment of the standard described as nonsubstantive.37 F.R. 27510 (Dec. 16, 1972). We have stated that the two versions shouldtherefore be read to have the same meaning. EichleayCorp., supra.\u00a0[3] This standardprovides:Safety nets shall be provided whenworkplaces are more than 25 feet above the ground or water surface, or othersurfaces where the use of ladders, scaffolds, catch platforms, temporaryfloors, safety lines, or safety belts is impractical.[4] 29 U.S.C. ? 654(a)(1)provides:Each employer shall furnish to each of hisemployees employment and a place of employment which are free from recognizedhazards that are causing or are likely to cause death or serious physical harmto his employees.\u00a0[5] A violation of 29U.S.C. ? 654(a)(1) cannot be found when a specific standard is applicable. Godwin-Bevers Co., 14 OSAHRC 723, BNA 2 OSHC 1470, CCH OSHDpara. 19,215 (1975). By its terms, ? 1926.105(a) applies only where there is apotential fall distance of more than 25 feet. Even for lesser fall distances,however, the requirement of 29 U.S.C. ? 654(a)(1) that a violation be ?likelyto cause death or serious physical harm? might be satisfied.\u00a0Twocourts have commented on the imprecision of the language used in ? 1926.105(a).Brennan v. OSHRC (Ron M. Fiegen, Inc.), 513F.2d 713 (8th Cir. 1975); Brennan v. OSHRC (Pearl Steel Erection Co.),488 F.2d (5th Cir. 1973). Additionally, 29 U.S.C. ? 654(a)(1) is itself draftedin broad terms, comparable to ? 1926.28(a). We have, in fact, held that aviolation of ? 1926.28(a) requires elements of proof comparable to 29 U.S.C. ?654(a)(1). Frank Briscoe, Inc., supra.[6] Respondent arguesthat the ?rack? of pipes is a safe platform such that fall protection equipmentis unnecessary. The argument must be rejected. The word ?platform? is definedas meaning?Aworking space for persons, elevated above the surrounding floor or ground, suchas a balcony or platform for the operation of machinery and equipment.? 29C.F.R. 1926.502(e).\u00a0Clearly,spaced apart pipes of cylindrical shape do not constitute a platform within themeaning of the definition. But even if they are a ?platform? they certainly arenot ?safe? on the facts of this case since they were not provided with guardrailsas is required by 29 C.F.R. 1926.500(d)(1).[7] In Hoffman,the Ninth Circuit expressly declined to rule on the validity of the ?or?version of 29 CFR ? 1926.28(a) which is at issue in this case. I will, however,assume that the court?s opinion is applicable to the version of the standardpresented here. See Eicnleay Corp., 2BNA OSHC 1635, 1974 75 CCH OSHD para. 19,324 n.1 (No.2610, 1975) (the word ?or? in the amended standard should receive the samereading as the word ?and? as used in the initial version.)[8] I have applied adisjunctive reading of the standard both before and after ? 1926.28(a) wasamended to include the word ?or? in the place of ?and.? EichleayCorp., supra.\u00a0[9] Read thusly,application of the first clause of ? 1926.28(a) is not unlike application of 29CFR ?\u00a01910.132(a) in McLean Trucking Co. v. O.S.H.R.C., 503 F.2d 8(4th Cir. 1974) and Ryder Truck Line, Inc. v. Brennan, 497 F.2d 230 (5thCir. 1974). The standard at 29 CFR ?\u00a01910.132(a) concerns the use ofpersonal protective equipment in general industry.[10] It is notentirely clear what standard the lead opinion follows as to the relevancy ofindustry customs and practices. As noted above, it is stated at one point thatthe scope of ? 1926.28(a) is limited to situations where industry customs andpractices indicate the need for personal protective equipment, which makes thecustoms and practices determinative. Later in the opinion, however, industrycustoms and practices are found to be merely ?relevant? in determining whethera violation exists. To the extent that industry customs and practices areregarded to be more than relevant, I disagree with the lead opinion.[11] Isseks Bros., Inc., supra.[12] Also see my dissenting opinions in Secretaryv. Cornell & Co., OSAHRC Docket No. 9054, September 22, 1976; Secretaryv. Kelly Construction Services, Inc., OSAHRC Docket No. 7102, July 26,1976; Secretary v. Sweetman Construction Co., OSAHRC Docket No. 3750,March 2, 1976.\u00a0[13] The only difference in the twoversions is that the word ?or? was substituted for the word ?and? in therevised version.\u00a0[14] The Court stated the following:Liability under 29 C.F.R. ? 1926[.28(a)]as then written required proof of three elements: (1) that the employer did notrequire the wearing of protective equipment; (2) that there was exposure tohazardous conditions; and (3) that Part 1926 of the regulations indicated aneed for protective equipment. 546 F.2d at 283.\u00a0[15] Since the Court expressly limitedits holding in Hoffman to the original version of the cited standard,the majority?s criticism of that decision in a case in which they are findingrespondent liable for noncompliance with a modified version of the samestandard is totally inappropriate. See 546 F.2d at 283, footnote 5, where theCourt states the following:The regulation was redrawn December 16,1972 after this case arose. The word ?or? was substituted for ?and.? We expressno opinion upon the current version.Mycolleagues have previously reached the ridiculous conclusion that the revisedversion did not make a substantive change in the original version because ?and?therein meant ?or.? Secretary v. Sweetman Construction Co., OSAHRCDocket No. 3750, March 2, 1976 (concurring opinion); Secretary v. Eichleay Corp., 15 OSAHRC 635 (1975). Apparently, mycolleagues are now concerned that a reviewing court might say that ?or? in therevised version means ?and.? It is inconceivable that any court could reachthat absurd conclusion. See Secretary v. Carpenter Rigging and ContractingCorp., 15 OSAHRC 400 (1975) (dissenting opinion).[16] Section1926.28(a)?Personal Protective Equipment. The employer is responsible for requiringthe wearing of appropriate personal protective equipment in all operationswhere there is an exposure to hazardous conditions or where this part indicatesthe need for using such equipment to reduce the hazards to the employees.\u00a0Section1926.400(c) Protection of employees(1) No employer shall permit an employeeto work in such proximity to any part of an electric power circuit that he maycontact the same in the course of his work unless the employee is protectedagainst electric shock by deenergizing the circuit and grounding it or byguarding it by effective insulation or other means. In work areas where theexact location of underground electric power lines is unknown, workmen usingjack-hammers, bars, or other hand tools which may contact a line shall beprovided with insulated protective gloves.(a) Before work is begun the employershall ascertain by inquiry or direct observation, or by instruments, whetherany part of an electric power circuit, exposed or concealed, is so located thatthe performance of the work may bring any person, tool, or machine intophysical or electrical contact therewith. The employer shall post and maintainproper warning signs where such a circuit exists. He shall advise his employeesof the location of such lines, the hazards involved and the protective measuresto be taken.[17] Relative to theexistence of hazards, Mr. Gore testified in part as follows:Q Did you have any discussion amongyourselves, Mr. Gore, during the progress of the work about the existence ofthese power lines?\u00a0A Yes, we did. There was never a formalmeeting that we had since there was only three of us, but quite often somethingwas mentioned about safety.There was a gentleman working with thepipefitters up there and he and Mr. Leleux wereassociates on working different jobs at different places together over theyears and he had mentioned to us that there was some hot wires over there whenwe got to that one part, and that was the only warning that any of us probablyhad on the whole thing.\u00a0Q This man mentioned this in advance ofyour arrival there?\u00a0A Yes. This was three or four days beforewe got onto that part. This was in the same week, but it was a few days before.\u00a0Q Did you have any question that morningabout whether the lines were there and whether they were hot? Was there anydiscussion?\u00a0A Well, the part that we mentioned thatmorning, just above where they were on this part working, which a person couldhave reached easily by his hand there was a conveyor belt that, if my memory iscorrect, carried shavings and other particles from the planers or cutters, orwhatever, and it?s a moving thing, and it was mentioned that there was a lot ofhazards in that area and to be careful, but myself being on the ground I paidlittle attention to it, due to the fact that I knew I wasn?t going to be upthere.\u00a0Q This was Alex mentioning that there washazards overhead?\u00a0A Right.? (Tr. pages 84 and 85).[18] Also, attentionis invited to the recent case of Floyd Pike, Inc., DOCKET NO. 3069,issued January 30, 1975, where a foreman was electrocuted by coming in contactwith high voltage power lines. The Review Commission, among other things,stated: Respondent?s foreman was therepresentative of the employer at the work site and his violative acts must beimputed to respondent. Similarly, the ?knowledge? element for a seriousviolation under the criteria of section 17(k) is satisfied by imputing torespondent the foreman?s knowledge of the existence of the hazard.[19] Also, see RyderTruck Lines, Inc., 497 F 2nd 230 (5th Cir., 1974) and the recent case of Capeand Vineyard Division of the New Bedford Gas and Edison Light Co., decidedMarch 3, 1975 (1st Cir).”