Docket No. 84-0710

SECRETARY OF LABOR,
Complainant,

MIDWEST STEEL ERECTION, INC.,
Respondent.

OSHRC Docket No. 84-0710

ORDER

The Commission approves the parties' settlement agreement. The judge's decision becomes the final order of the Commission as to those citation items not resolved by the settlement agreement.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: APR 24, 1987

SECRETARY OF LABOR,
CompIainant,

v.

MIDWEST STEEL ERECTORS CO., INC.,
Respondent.

OSHRC Docket No. 84-0710

APPEARANCES:

Debra K. Goldstein, Esquire, and Cynthia D. Welch,
Esquire, Office of the Solicitor, U. S. Department of
Labor, Birmingham, Alabama, on behalf of complainant.

George A. Harper, Esquire, McCarty, Wilson, Rader and
Mash, P.C., Ennis, Texas, on behalf of respondent.

DECISION AND ORDER

SALYERS, Judge: During the period in question, the respondent, Midwest Steel Erectors Company, Inc., was engaged in the erection of structural steel at a multi-tiered building under construction for Alabama Power in Birmingham, Alabama. As a result of employee complaints, respondent's operations at the project were inspected on three separate occasions during a five-month period by four different compliance officers of the Occupational Safety and Health Administration. Each of these inspections culminated in the issuance of citations charging respondent with violations of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq.) and the assessment of penalties.

The first of these inspections was conducted during the early stages of construction by Compliance Officer Suzanne Nash in December 1983. At the time, Ms. Nash had been employed by the agency for more than nine years and had conducted in excess of 800 inspections (Tr. 10-11). During this inspection, Ms. Nash observed loose decking around an elevator shaft and an unguarded opening on the second floor of the building under construction which she deemed to be violative of 29 C.F.R. � 1926.752. These conditions, together with the need to protect employees from fall hazards, were discussed by Ms. Nash with respondent's jobsite superintendent, Lynn R. Davis, Jr., at the conclusion of the inspection (Tr. 20- 23). Mr. Davis agreed to take action to correct the conditions brought to his attention and was "very" cooperative (Tr. 29). However, a serious citation was issued and went uncontested by respondent (Ex. C-1).

Compliance Officer Terry Bailey, with eight years of agency experience, conducted a second inspection of respondent during the period March 22--27, 1984, and found certain floor openings on the fifth floor of the structure were not guarded by standard railings, toeboards or covers. He considered this condition to be in serious violation of 29 C.F.R. � 1926.500(b)(1) and proposed a citation to that effect which citation, apparently, went uncontested by respondent (Tr. 35-36). It is significant to note that Mr. Bailey's inspection extended over a five-day period during which time he considered a long list of possible fall hazards (Tr. 37-38). Despite this rather extensive inspection, he found only one condition which required attention and assessed respondent's program as "one of the safest" he had seen (Tr. 39).

The third inspection was conducted by Compliance Officer Loyd Black in the company of Compliance Officer William Powers during the period April 9--12, 1984. During this inspection, Compliance Officer Black observed, and in many instances photographed, conditions which he considered to be flagrant safety violations. As a result of this inspection, the Secretary of Labor issued a series of citations charging respondent with willful, repeat, serious and other violations of the Act and proposed aggregate penalties of $23,200. Respondent contested all charges and a hearing was conducted in Birmingham, Alabama. Both parties have submitted briefs in the case and the matter is now ready for decision.

The broad issues are:

(1) Did respondent violate the standards as alleged in the citations?
(2) If violations occurred, did the Secretary properly characterize the violations as serious, willful, repeat and other?
(3) Are the proposed penalties reasonable?
Before considering the substantive evidence relative to the charges leveled against respondent, it is necessary to deal with a collateral issue which permeates respondent's entire defense. Throughout the hearing, respondent alluded to improper and inappropriate conduct by Compliance Officer Black during the course of his inspection and what respondent perceived to be gross inconsistencies in his testimony. Respondent's brief reiterates the contention that Compliance Officer Black's "conduct before, during and after the inspection, clearly demonstrates that he was biased against Midwest" (Resp. brief p. 5). Respondent does not specify what relief should be afforded by the Review Commission given such circumstances except to urge that Black's testimony should be afforded "little, if any weight."

This aspect of the case has been considered in reaching a decision. It is noted that compliance officers in the two previous inspections, with experience comparable to that of Compliance Officer Black, considered respondent to be "knowledgeable" in safety and to have a safety program which was working well, whereas Compliance Officer Black concluded to the contrary. It is also noted that Compliance Officer Black may have made certain statements during the course of his investigation indicating an overzealous attitude (Tr. 332-333, 337) which conceivably could overshadow his objectivity in conducting an appropriate inspection. However, an employer cannot expose employees to obvious hazards simply because the Secretary has failed to cite these hazards during the course of previous inspections. See Cedar Construction Co. v. OSHRC, 587 F.2d 1303 (D. C. Cir. 1978). Likewise, unseemly conduct by a compliance officer, while not to be condoned, does not override objective evidence of hazardous conditions (e.g., photographs) which is fully supported in the record.

Taking into consideration the circumstances just described, an effort has been made to analyze the evidence with due regard to the positions advanced by both parties. The very nature of steel erection is a dangerous undertaking recognized to be such by the Secretary and Review Commission (see Adams Steel Erection, Inc., __ OSAHRC __, 11 BNA OSHC 2077, 1984 CCH OSHD � 26,976 (No. 77-4238, 1984), rev'd F.2d___ (3d Cir., July 5, 1985, No. 80-3586). Not all hazards can be foreseen and rectified even by the most conscientious employer. In this case where the documentary evidence (photographs) clearly reveals a contravention of the standards, the violations will be affirmed. In those instances where the evidence requires the exercise of judgment in addition to the documentary evidence, consideration has been given to the evidence and the arguments advanced by both parties and resolution of the issue has been based on reason and recognition that the standards cannot be applied in a fashion which is unrealistic.

On the basis of the total record, certain conclusions have been reached. It is concluded that safety belts and lanyards were a primary safety device generally utilized by respondent whenever and wherever feasible. Respondent made these devices available to each of its employees and required their use with two notable exceptions. These exceptions support a finding that the policy was not always effectively enforced. It is also concluded, based on the record, that respondent employed certain progressive procedures to guard against fall hazards. These included the installation of periphery guardrails and the installation of permanent and temporary floors as soon as these devices were realistically possible (Tr. 561-562). It is further concluded that respondent failed to take the necessary intermediate steps to cover or otherwise guard large floor openings which constituted fall hazards to employees while working around these areas and that this practice continued despite the fact it was called to respondent's attention during prior inspections. Finally, it is concluded that respondent's overall attention to safety was basically adequate with the exceptions just noted. Respondent's conduct did not demonstrate sufficient indifference to or disregard of the Act's requirements to constitute willful violations.

SERIOUS CITATION NO. 1
This citation charges respondent with serious violations of standards relating to personal protective equipment, guardrails, ladders and floor openings. It consists of five items and their subparts.

A serious violation is defined as an act or failure to act which may cause serious injury or death to an employee.

Item 1, a through c
During the course of his inspection and while accompanied by Mr. Lynn Davis, respondent's project superintendent, Compliance Officer Black observed one of respondent's employees wearing a leather field-manufactured safety belt. Upon examination of the belt, Black determined it bore no ANSI approval tag and was of unsafe construction[[1/]] and design. He also determined from the employee that the belt had been subject to two "in-service loadings" when the employee felt while working on other jobs. He further concluded that respondent had no program to inspect belts to assure they were adequate to protect employees. The employee was instructed by Superintendent Davis to remove the belt and replace it with an approved belt furnished by the respondent. On the following day, this same employee was again observed wearing the same leather belt (Ex. C-7, C-10; Tr. 84-90). On the basis of this information, Black cited violations of 29 C.F.R. � 1910.132(b) and (c)[[2/]] and 29 C.F.R. � 1926.104(a).[[3/]]

Despite respondent's protestations that belts were regularly inspected for adequacy by foremen and that it was common for steelworkers to use their own leather belts, the foregoing incident is sufficient to sustain items 1a, 1b and 1c of the Secretary's allegations as serious violations. If respondent did, in fact, have a program to insure the adequacy of belts, this incident establishes it was ineffective in operation.

Items 1d and e allege violations of 29 C.F.R. � 1926.104(b) and (d)[[4/]] for permitting an employee to tie off below the point of operation while using a lanyard which would allow a fall of more than six feet. This allegation is backed on Black's observation of the employee depicted in exhibits C-4, C-9 and C-10. Black's testimony indicates he saw this employee tie off on a beam at knee level and then climb to a work area above the beam (Tr. 94, 350). Black's testimony was conflicting concerning the length of the lanyard. At one point, he indicated the lanyard was ten feet in length, then eight feet, and finally under cross-examination he was unable to state what length the lanyard would be after it was looped around the beam to tie off (Tr. 355). The evidence is insufficient to sustain the burden of proof with regard to items 1d and e. These items will be vacated.

Item 2
Items 2a and 2b relate to alleged violations of 29 C.F.R. � 1926.450(a)(9)[[5/]] and 29 C.F.R. � 1926.500(b)(2)[[6/]] with regard to temporary ladders in use on the sixth, seventh and eighth floors and unguarded floor openings around ladderways.

The evidence is uncontradicted that the side rails of ladders used by respondent's employees extended less than the 36 inches required by the standard and the ladderway openings were unguarded (Ex. C-11, C-12; Tr. 105-107, 264, 297, 495, 556). This is a clear violation, Scherr Construction Co., 82 OSAHRC 21/A2, 10 BNA OSHC 1541, 1982 CCH OSHD � 26,021 (No. 80-1383, 1982); Stephen Coates, 81 OSAHRC 87/F10, 10 BNA OSHC 1040, 1981 CCH OSHD � 25,679 (No. 80-3462, 1981); Austin Bridge Co., 81 OSAHRC 86/E7, 10 BNA OSHC 1013, 1981 CCH OSHD � 25,666 (No. 80-6003, 1981); and will be affirmed as a serious violation.

Item 3
This item relates to a wire rope guardrail on the sixth floor of the project which deflected approximately 14 inches when pressure was applied thereto by Compliance Officer Black (Ex. C-14; Tr. 115-117). This condition breached the standard found at 29 C.F.R. � 1926.500(f)(vi)(b) which requires "a strength to withstand . . . 200 pounds . . . pressure with a minimum of deflection." However, this appears to be an isolated occurrence with limited, if any, employee exposure (Tr. 537-538) and will be considered a de minimis violation.

Item 4

This item cites a violation of 29 C.F.R. � 1926.750(b)(1)(i)[[7/]] for failure to solidly plank or deck over floors on the seventh and ninth floors of the structure. This charge is supported by photographs (Ex. C-15, C- 16, C-17) which show small openings running parallel to beams. Respondent urges these openings were "access openings" as provided for in the standard which would afford respondent's employees space to bolt and weld the exposed beams before the decking was completed (Tr. 538-539). This explanation is both plausible and in harmony with the specific language of the standard excepting such openings. Accordingly, this item will be vacated.

Item 5
This item charges respondent with a failure to provide wire rope guarding around the periphery of temporary floors on the fifth, sixth and seventh level, as required by 29 C.F.R. � 1926.750(b)(1)(iii).[[8/]] The photographic evidence to support this charge is contained in exhibits C-20 through C-25, which reflect wire rope guarding attached to columns on the periphery, but open space between the floor edge and the periphery beams. This situation was explained in the testimony of respondent's superintendent (Tr. 543-546). Briefly summarized, the flooring had initially been completed to the periphery at the time the wire rope guarding was installed. Sections of this floor were then removed to permit the bolting and welding operations on the beams. Once this work was completed, the removed flooring was then replaced. Employees were exposed only during the time required to bolt and weld the beams. This explanation is feasible and this item will be vacated.

WILLFUL CITATION NO. 2
Citation number two charges violations of three separate standards, all of which are considered by the Secretary to be willful in nature. A willful violation is an act done by an employer which shows an intentional disregard of or plain indifference to the requirements of the Act. Georgia Electric Co. v. Marshall, 595 F.2d 309 (5th Cir. 1979).

Item 1a

This item charges violations of 29 C.F.R. � 1926.28(a)[[9/]] for failure to require the use of safety belts and lanyards when appropriate. While the record indicates respondent furnished safety belts and lanyards to his employees, it appears the decision to tie off was left largely to the discretion of each individual. As a usual practice, steelworkers tied off at each work site but did not tie off when travelling the steel from one work site to another. The acquiescence of the Secretary in this industry practice was conceded by Compliance Officer Black who admitted during his testimony that tying off when travelling was impractical (Tr. 548). It also appears to be common and accepted practice for steelworkers not to tie off when crossing over guardrails because this creates a tripping hazard. Witness testimony confirmed the point (Tr. 313, 517, 550). Accordingly, it is determined that industry practice and custom is to tie off while at the work site but not while travelling or crossing over guardrails. Subitems (a), (b) and (e) relate to charges that employees failed to tie off while travelling or while crossing over guardrails. Since these practices appear to be in accord with accepted industry practice, these items will be vacated.

Subitem (c) relates to an employee bolting up steel on the ninth floor who did not tie off because his lanyard was too short to reach
around the beam (Ex. C-31; Tr. 174). Respondent does not seriously dispute this charge but alleges the employee had tried to tie off by snapping the end of the lanyard to the flange of a beam (Tr. 551). This method did not provide fall protection but does indicate an effort by the employee to follow respondent's policy of tying off when working. The charge will be reduced from willful and affirmed as a serious violation.

The evidence with respect to subitem (d) is in dispute. Compliance Officer Black first asserted he observed Ray Brasher, a lead man, climb through the guardrails on the seventh floor and perform work on the horizontal steel without wearing a safety belt or lanyard (Tr. 181). After looking at exhibits C-33, C-34, and C-35, he recanted this testimony to the extent that Brasher was wearing a belt and lanyard (which the photographs clearly show) but insisted that Brasher was not tied off (Tr. 183-184). Brasher testified he "snapped into" the top perimeter cable as shown in exhibit C-35 and was adequately secured (Tr. 512-513). On balance, Brasher's testimony is more credible and this subitem will be vacated.

Item 1b
This portion of the willful citation relates to respondent's failure to install safety nets under the eighth and ninth floors of the bridge area during the erection period and charges a violation of 29 C.F.R. � 1926.750(b)(1)(ii).[[10/]] To establish a prima facie violation of this standard, the Secretary relied upon the testimony of Compliance Officer Black who testified the bridge area was not adaptable to temporary floors or the use of scaffolds and was positioned some 140 feet above ground level with no nets in use (Ex. C-41--C-48). However, as Compliance Officer Black's testimony developed, it became clear that the erection of the bridges had occurred during the period encompassed by Compliance Officer Bailey's inspection and that this work had been completed by the time of Black's inspection. This point is significant because, once the bridges were up and connected, employees could tie off to a stable structure and nets would no longer be necessary (Tr. 217). Black did not observe anyone working in the area of the alleged hazard during his inspection (Tr. 220-222). While Black attempted to indicate a method by which nets could have been used at the time of his inspection, he was in no position to offer similar testimony with respect to circumstances in existence at the time the bridges were installed. Respondent's superintendent, Mr. Davis, testified it was impossible to hang nets during the bridge erection (Tr. 553) and this testimony went unrefuted by a competent, witness.[[11/]] Accordingly, this item will be vacated.

Item 1c
This item alleges willful violations of 29 C.F.R. � 1926.750(b)(2)(i)[[12/]] for failure to maintain tightly planked floors within two stories (or 30 feet) below work areas. The instances cited in this item are the same as those recited in willful citation, subitems (a), (d) and (e) which related to personal fall protection on the southwest and northwest corners of the structure (Tr. 227). Each of these conditions involved locations on the exterior[[13/]] corners of the structure (Tr. 556) where there was "nothing to support" the decking (Ex. C-27; Tr. 557). These areas also had to remain open for access until the bolting and welding had occurred at which time a curb barrier was installed to protect employees from exterior falls (Tr. 557-558). During the interim period, employees were required to tie off. Under these circumstances, it does not appear possible to install temporary flooring as urged by the Secretary and this item will be vacated.

REPEATED CITATION NO. 3
This citation charges respondent with repeated violations of 29 C.F.R. � 1926.752(j)[[14/]] and 29 C.F.R. � 1926.750(b)(2)(i). To establish this type of violation, the Secretary must show respondent was previously cited for a violation substantially similar to that now charged and the prior citation had become final before the occurrence of the repeated violation.

Item 1a relates to unguarded or uncovered floor openings on the sixth, seventh, eighth and ninth floors which provided openings for elevator shafts, stairways and ductwork (Ex. C-49--C-52). The exhibits clearly show these large openings which were neither covered nor guarded. This same condition had been observed and cited by Compliance Officer Nash in December 1983 (Ex. C-1). The citation became a final order of the Review Commission when it went uncontested. Respondent argues that these were "access openings" of the type excluded in the standard and, in any event, "each opening was guarded as soon as it was physically possible to guard them" (Resp. brief p. 55). Unlike the openings found to be "access openings" in item four of the serious citation, these openings were large enough to accommodate elevators and stairways (Ex. C-49--C-52) and should have been either covered or guarded.

Item 1b of this citation charges respondent with failure to install tightly planked and substantial floors over elevator shafts, ductwork and stairway openings on the eighth and ninth floors of the tower in contravention of 29 C.F.R. � 1926.750(b)(2)(i). Respondent had previously become aware this general requirement as a result of the inspection conducted in December 1983. This item is supported in the record (Ex. C-49-- C-56; Tr. 241-242), and will be affirmed.

OTHER CITATION NO. 4
This citation charges respondent with two nonserious violations of standards. No penalties are proposed.

Item one relates to a Wassel air receiver tank located on the sixth floor at column J which did not have a gauge or safety valve as required by 29 C.F.R. � 1910.169(b)(3)(i). [[15/]] This tank is depicted in exhibit C-57 which shows no gauge or valve. Such a condition is a clear violation of the standard.

Item two relates to the exposure of employee's to vertically protruding reinforcing steel bars located on the north and south sides of the tower building. This condition is depicted in exhibit C-58 which shows the protruding bars to be unprotected to prevent the hazard of impalement as required by 29 C.F.R. � 1926.700(b)(2).[[16/]] This item will be affirmed.

PENALTIES

The Secretary proposes aggregate penalties in this case of $23,200, which amount, in view of the findings made, is excessive. As previously observed, respondent did not operate in such a fashion to reflect an indifference to or disregard of the Act's requirements. It is noted that respondent fostered regular safety meetings wherein fall hazards were discussed with employees together with respondent's policies and practices to abate these hazards. Respondent undertook reasonable steps to install periphery guarding and flooring as the work progressed and generally followed a pattern of compliance with the steel erection standards (Subpart R).

Serious citation number one consists of five items with a proposed penalty of $3,200. Item one of this citation was affirmed in part and vacated in part. Item two was affirmed in its entirety. Item three was reduced from serious to de minimis. Items four and five were vacated. A penalty of $1,000 is considered appropriate for this citation.

Willful Citation number two consists of three items with various subitems and proposes a $10,000 penalty. Only one subitem of this citation [1(c)] has been affirmed with a reduction in characterization from willful to serious. A penalty of $1,000 is considered appropriate for this violation.

Repeat citation number three consists of two items with a proposed penalty of $10,000. It is in this area that respondent has demonstrated culpable failure to meet its obligations and a $5,000 penalty will be assessed.

FINDINGS OF FACT

1. Midwest Steel Erectors Company, Inc., is a corporation engaged in the construction engaged in the construction industry. During the period in question, this respondent was engaged in the erection of structural steel for a multitiered building in Birmingham, Alabama. Respondent has employees who receive or otherwise work on goods that have been shipped in commerce.

2. During a five-month period commencing in December 1983, respondent was inspected on three separate occasions by compliance officers of the Occupational Safety and Health Administration. The inspection conducted in December 1983 disclosed serious violations of 29 C.F.R. � 1926.752 relating to respondent's failure to cover or guard large openings in elevated floors. The citation issued as a result of this inspection was uncontested and became a final order of the Commission through the process of law.

3. A second inspection of respondent was conducted in March 1984. This inspection disclosed unguarded floor openings.

4. The third inspection was conducted by Compliance Officer Black, during the period April 9 through April 12, 1984, and resulted in the issuance of citations charging respondent with willful, repeated, serious and other violations of the Act and proposing penalties of $23,200. These citations were contested by respondent and form the basis for the findings to follow.

5. During the course of the inspection, Compliance Officer Black observed one of respondent's employees wearing a leather field-manufactured safety belt which bore no ANSI approval tag. This belt was of unsafe design and had been subjected to "in-service loadings" while used on other jobs. Respondent did not have an effective program to assure that safety belts used by employees were adequate or that belts subjected to "in-service loading" were removed from service.

6. Temporary ladders in use on the sixth, seventh and eighth floors had side rails which extended less than 36 inches above the openings. The openings around the ladderways were unprotected by guardrails or toeboards.

7. A wire rope guardrail in use on the sixth floor of the project was not drawn taut and deflected approximately 14 inches when pressure was applied thereto by Compliance Officer Black. However, this condition was located in an area of limited employee access.

8. On the seventh and ninth floors of the structure, small openings existed in the floor or deck which openings ran parallel to beams. These were "access openings" which afforded employees space to bolt and weld the beams, before the decking was completed.

9. On the fifth, sixth and seventh floors, open spaces existed between the floor edge and periphery guarding. The flooring had initially been completed to the periphery at which time the wire rope guard was installed. Sections of this floor had been removed to permit bolting and welding operations on the beams and this flooring was replaced upon completion of the operations.

10. Respondent had available and furnished safety belts and lanyards to employees. As a usual practice, steelworkers used the belts and lanyards and tied off at the work site but did not tie off when travelling the steel from one work site to another. Likewise, steelworkers did not tie off when crossing over guardrails since this practice created a tripping hazard. The foregoing is in accord with industry practice and custom and is conceded by the Secretary.

11. During the course of the inspection, Compliance Officer Black observed one employee bolting up steel on the ninth floor who was not adequately tied off to prevent falls.

12. The Secretary did not establish that the use of safety nets was possible during the period bridges were being erected on the eighth and ninth floors of the structure.

13. It was not possible to install tightly planked floors on the southwest and northwest exterior corners of the structure since there was nothing to support such floors in these areas.

14. Respondent failed to guard or cover large floor openings to be used for elevator shafts, stairways and ductwork on the sixth, seventh, eighth and ninth floors.

15. A Wassel air receiver tank located on the sixth floor at column J was not provided with a gauge or safety relief valve.

16. Vertically protruding reinforcing steel bars located on the north and south sides of the tower building were not protected to prevent the hazard of impalement.

CONCLUSIONS OF LAW

1. Respondent is an employer engaged in an industry affecting commerce and the Review Commission has jurisdiction of the parties and subject matter in this case.

2. The respondent has seriously violated the following standards:

29 C.F.R. � 1910.132(b)
29 C.F.R. � 1910.132(c)
29 C.F.R. � 1926.104(a)
29 C.F.R. � 1926.450(a)(9)
29 C.F.R. � 1926.500(b)(2)

3. The respondent has not violated the following standards:

29 C.F.R. � 1926.104(b)
29 C.F.R. � 1926.104(d)
29 C.F.R. � 1926.750(b)(1)(i)
29 C.F.R. � 1926.750(b)(1)(iii)

4. The alleged serious violation of 29 C.F.R. � 1926.500(f)(vi)(b) is modified to reduce the characterization from serious to de minimis.

5. The evidence does not reflect that respondent willfully violated 29 C.F.R. � 1926.28(a), 29 C.F.R. � 1926.750(b)(1)(ii) and 29 C.F.R. � 1926.750(b)(2)(i). However, it is concluded that respondent seriously violated 29 C.F.R. � 1926.28(a) on one occasion.

6. Respondent has repeatedly violated 29 C.F.R. � 1926.752(j) and 29 C.F.R. � 1926.750(b)(2)(i).

7. Respondent has committed other than serious violations of 29 C.F.R. � 1910.169(b)(3)(i) and 29 C.F.R. � 1926.700(b)(2).

ORDER

It is hereby ORDERED:

1. Serious Citation No. 1, Items 1a, 1b and 1c, are affirmed.
2. Serious Citation No. 1, Items 1d and 1e, are vacated.
3. Serious Citation No. 1, Item 2, is affirmed.
4. Serious Citation No. 1, Item 3, is reduced from serious and affirmed as a de minimis violation.
5. Serious Citation No. 1, Items 4 and 5, are vacated.
6. Willful Citation No. 2 is vacated except with respect to Item 1a, Subpart c, which is affirmed as a serious violation.
7. Repeat Citation No. 3 is affirmed in its entirety.
8. Other than Serious Citation No. 4 is affirmed in its entirety

It is further ORDERED:

A total penalty of $7,000 is assessed.

Dated this 19th day of August 1985.

EDWIN G. SALYERS,
Judge

FOOTNOTES:

[[1/]] ANSI standard A10.14-1975 excepts leather as a material for belt construction (Ex. C-6).

[[2/]] Sections 1910.132(b) and (c) of 29 C.F.R. state:

(b) Employee-owned equipment. Where employees provide their own protective equipment, the employer shall be responsible to assure its adequacy, including proper maintenance, and sanitation of such equipment.

(c) Design. All personal protective equipment shall be of safe design and construction for the work to be performed.

[[3/]] Section 1926.104(a) of 29 C.F.R. provides:

(a) Lifelines, safety belts, and lanyards shall be used only for employee safeguarding. Any lifeline, safety belt, or lanyard actually subjected to in-service loading, as distinguished from static load testing, shall be immediately removed from service and shall not be used again for employee safeguarding.

[[4/]] Sections 1926.104(b) and (d) of 29 C.F.R. provide:

(b) Lifelines shall be secured above the point of operation to an anchorage or structural member capable of supporting a minimum dead weight of 5,400 pounds.

(d) Safety belt lanyard shall be a minimum of 1/2-inch nylon, or equivalent, with a maximum length to provide for a fall of no greater than 6 feet. The rope shall have a nominal breaking strength of 5,400 pounds.

[[5/]] Section 1926.450(a)(9) of 29 C.F.R. provides:

(9) The side rails shall extend not less than 36 inches above the landing. When this is not practical, grab rails, which provide a secure grip for an employee moving to or from the point of access, shall be installed.

[[6/]] Section 1926.500(b)(2) of 29 C.F.R. states:

(2) Ladderway floor openings or platforms shall be guarded by standard railings with standard toe boards on all exposed sides, except at entrance to opening with the passage through the railing either provided with a swinging gate or so offset that a person cannot walk directly into the opening.

[[7/]] Section 1926.750(b)(1)(i) of 29 C.F.R. provides as follows:

(b) Temporary flooring--skeleton steel construction in tiered buildings. (1)(i) The derrick or erection floor shall be solidly planked or decked over its entire surface except for access openings. Planking or decking of equivalent strength, shall be of proper thickness to carry the working load. Planking shall be not less than 2 inches thick full size undressed, and shall be laid tight and secured to prevent movement.

[[8/]] Section 1926.750(b)(1)(iii) of 29 C.F.R. states as follows:

(iii) Floor periphery--safety railing. A safety railing of 1/2-inch wire rope or equal shall be installed, approximately 42 inches high, around the periphery of all temporary-planked or temporary metal-decked floors of tier buildings and other multifloored structures during structural steel assembly.

[[9/]] Section 1926.28(a) of 29 C.F.R. reads as follows:

(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

[[10/]] Section 1926.750(b)(1)(ii) of 29 C.F.R. states:

(ii) On buildings or structures not adaptable to temporary floors, and where scaffolds are not used, safety nets shall be installed and maintained whenever the potential fall distance exceeds two stories or 25 feet. The nets shall be hung with sufficient clearance to prevent contacts with the surface of structures below.

[[11/]] Compliance Officer Bailey was at the site during the erection period and at one point Secretary's counsel indicated an intention to recall Bailey to clarify the Secretary's position, but this was not done (Tr. 217).

[[12/]] Section 1926.750(b)(2)(i) of 29 C.F.R. states:

(2)(i) Where skeleton steel erection is being done, a tightly planked and substantial floor shall be maintained within two stories or 30 feet, whichever is less, below and directly under that portion of each tier of beams on which any work is being performed, except when gathering and stacking temporary floor planks on a lower floor, in preparation for transferring such planks for use on an upper floor. Where such a floor is not practicable, paragraph (b)(1)(ii) of this section applies.

[[13/]] Respondent cites Adams Steel Erection, Inc., supra, in support of the proposition that subpart R of the regulation relates only to interior falls. This case was recently overturned by the third circuit. Donovan v. Adams Steel Erection Inc., opinion filed July 5, 1985.

[[14/]] Section 1926.752(j) of 29 C.F.R. provides:

(j) All unused openings in floors, temporary or permanent, shall be completely planked over or guarded in accordance with Subpart M of this part.

[[15/]] Section 1910.169(b)(3)(i) of 29 C.F.R. reads as follows:

(3) Gages and valves. (1) Every air receiver shall be equipped with an indicating pressure gage (so located as to be readily visible) and with one or more spring-loaded safety valves. The total relieving capacity of such safety valves shall be such as to prevent pressure in the receiver from exceeding the maximum allowable working pressure of the receiver by more than 10 percent.

[[16/]] Section 1926.700(b)(2) of 29 C.F.R. provides:

(2) Employees shall not be permitted to work above vertically protruding reinforced steel unless it has been protected to eliminate the hazard of impalement.