ALBERICI-KOCH-LAUMAND, A JOINT VENTURE
OSHRC Docket No. 13026
Occupational Safety and Health Review Commission
September 27, 1977
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Before CLEARY, Chairman; and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor
Gregory F. Hoffman, for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Commissioner:
The issue in this matter is whether Administrative Law Judge Vernon Riehl erred in concluding that compliance with the requirements of 29 C.F.R. 1926.105(a) n1 in the circumstances would have been impossible or would have endangered the safety of Respondent's employees. For the reasons given below we conclude that the judge did not err and therefore we affirm his decision to vacate Complainant's amended citation n2 alleging that Respondent violated the Occupational Safety and Health Act of 1970 n3 by failing to comply with this standard.
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n1 This standard requires that "(s)afety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical."
n2 Complainant's citation originally alleged noncompliance with the personal protective equipment standard at 29 C.F.R. 1926.28(a) in that the employees were not using safety belts and lanyards. In his complaint he sought to amend the citation to allege noncompliance with section 1926.105(a) for failure to use any of the devices specified therein, and Respondent objected. Respondent also moved for dismissal of the citation and complaint on grounds related to the requested amendment and on other grounds. Judge Riehl allowed Complainant to amend and denied the motion to dismiss. In view of our disposition, the issue of amendment and the other issues raised in Respondent's motion are moot, and we need not consider them.
n3 29 U.S.C. 651 et seq.
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The pertinent facts are undisputed. Respondent was erecting structural steel at a construction site for a power plant. Several of its employees were on steel beams approximately 61 feet high maneuvering and bolting into place other beams as they were lifted by a crane. While these employees wore safety belts and lanyards they had not tied off their lanyards because it was necessary for them to retain mobility in order to avoid sudden and unpredictable movements of the beams, which were approximately 15 feet long and weighed as much as 500 pounds. Respondent's job superintendent with 37 years experience as an ironworker testified that in these particular circumstances the employees would have been exposed to a greater danger had they tied off their lanyards. Respondent required employees to tie off at all other times on the job where the danger of being struck by a moving beam did not exist.
Safety nets were also used on the jobsite when conditions permitted. However, at the time of the inspection which gave rise to these proceedings, the configuration of the erected steel as well as the presence [*3] of other structures allowed the crane to be positioned in only one location. This location was in such a relation to the work area that the crane could hoist the beams to the connecting employees only by lifting them through the area that nets would occupy.
On these facts Complainant alleged that Respondent was in noncompliance with section 1926.105(a) for failing to provide safety nets or require the use of ladders, scaffolds, catch platforms, temporary floors, safety lines or safety belts. Judge Riehl found that installation of nets below the employees would have entirely prevented the beams from being hoisted. He also found that the other enumerated devices with the exception of safety lines and belts could similarly be effective only if they were installed directly beneath the work area. Lastly, he found, based in part on the job superintendent's testimony, n4 that it would have been more hazardous for the employees to tie off than to remain unsecured and that compliance with the standard's safety belt requirement would have diminished rather than enhanced their safety. Accordingly, he vacated on his determination that compliance would have been either impossible or more [*4] hazardous than noncompliance.
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n4 Respondent had also offered a letter according to which the business agent of the union representing Respondent's employees stated that in the circumstances tying off would have created a greater hazard. The judge admitted this letter into evidence over Complainant's objection that its contents were hearsay, and he quoted the letter in his decision. On review, Complainant argues that the judge erred in basing a factual finding on hearsay. We need not consider the argument for it is plain that the judge relied as well on the testimony of Respondent's superintendent.
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On review, Complainant concedes that use of safety nets would have been impossible. However, Complainant argues that Respondent failed to establish that use of the other devices enumerated in the standard would also have been impossible. We reject the argument. As Judge Riehl found, temporary floors, catch platforms, or scaffolds in order to be effective would have to be positioned in the area through which the beams [*5] are being lifted. This finding of fact is in accord with the weight of the evidence. Accordingly, the judge properly concluded that compliance with the terms of the standard with the exception of safety belts and lines is not required as it was shown that to comply would have precluded performance of the work. Warnel Corporation, 76 OSAHRC 41/C5, 4 OSHC 1034, 1975-76 OSHD para. 20,576 (1976) and cases cited therein; Robert W. Setterlin & Sons Company, 76 OSAHRC 53/D8, 4 OSHC 1214, 1975-76 OSHD para. 20,682 (1976). n5
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n5 In my view, the defense that compliance with the terms of a standard would preclude performance of required work is a complete defense only if the employer uses such reasonable alternative means to protect its employees as are available. Taylor Building Associates, No. 3735, 5 OSHC 1083, 1977-78 OSHD para. 21,592 (R.C., March 3, 1977) (concurring opinion). Chairman Cleary would allow the defense only if the employer has applied to the Secretary for a variance to permit the use of alternative means of protection, unless the possible alternative methods of protection are within the ambit of the standard. Warnel Corp., 76 OSAHRC 41/C5, 4 OSHC 1034, 1975-76 OSHD para. 20,576 (1976) (concurring opinion). In this case all possible means of protection would either preclude performance of the work or result in a greater hazard to employees. Chairman Cleary would also add that there may be a work hazard of great magnitude and having little social utility for which a defense of impossibility should not be entertained. Cf. AFL-CIO v. Brennan, 530 F.2d 109 (3d Cir. 1975). But that is not the situation here. Under these circumstances, feasible alternative means of protection do not exist. We therefore both agree that in this case, the impossibility defense has been established with respect to the use of safety nets, temporary floors, scaffolds, catch platforms, and ladders.
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Complainant also does not dispute that in the circumstances it would have been more hazardous for the employees to have tied off their lanyards. Indeed, we have previously held in virtually indentical circumstances that employees engaged in connecting or disconnecting girders are not required to tie off as it was shown that to do so would be detrimental to their safety. American Bridge, Division of U.S. Steel Corporation, 12 OSAHRC 22, 2 OSHC 1222, 1974-75 OSHD para. 18,702 (1974); Industrial Steel Erectors, Inc., 6 OSAHRC 154, 1 OSHC 1497, 1973-74 OSHD para. 17,136 (1974). Complainant would have us distinguish this case, however, on the basis that Respondent's employees could and should have attached their safety belts directly to lifelines of such length to allow as much as 40 to 50 feet of mobility instead of using lanyards which limit the employee to six feet of free movement. n6
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N6 29 C.F.R. 1926.104(d) prescribes that a lanyard have "a maximum length to provide for a fall of no greater than 6 feet."
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There is no convincing evidence even to show that lines could have been installed in the manner Complainant suggests. n7 Nor is there any evidence to show how much mobility could be achieved or how much would have been sufficient to eliminate the danger to which Respondent testified. We therefore reject the argument. The record establishes that the use of safety belts is "impractical" under the standard. Moreover, a "greater hazard" defense under Industrial Steel Erectors, supra, has been proven.
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n7 Complainant cites us to the compliance officer's testimony: "(I)f perhaps cables were strung and made it easier for the employees to attach their lifelines to it. This would be one way they might make it a little bit more peaceful and easier for the men to comply with that particular requirement." (emphasis supplied). The opinion borders upon speculation, and is outweighed by the evidence concerning the hazards resulting from tying-off.
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Accordingly, it is ORDERED that the judge's decision be and the same is thereby affirmed.