Docket No. 14519

SECRETARY OF LABOR,
Complainant,

v.

F.L. HEUGHES & COMPANY, INC.,
Respondent.

OSHRC Docket No. 14519

DECISION

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
BY THE COMMISSION:

Administrative Law Judge Seymour Fier affirmed two citations issued by the Secretary of Labor ("the Secretary") to F.L. Heughes & Co., Inc. ("Heughes"). The citations alleged that Heughes had committed serious violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. її 651-678 ("the Act"),by failing to comply with the construction safety standards at 29 C.F.R. ї 1926.750 (b)(1)(iii), which requires a safety railing around the periphery of temporary floors during structural steel assembly, and 29 C.F.R. ї 1926.28(a), which requires that appropriate personal protective equipment be worn when an employee is exposed to a hazardous condition. Heughes petitioned for review of Judge Fier's decision, and Commissioner Cleary granted the petition under Section 12(j) of the Act, 29 U.S.C. ї 661(i). We affirm the judge's disposition.

I. THE ALLEGED VIOLATION OF 29 C.F.R. ї 1926.750(b)(1)(iii)

Heughes was a subcontractor on a multi-employer construction site, responsible for the erection of structural steel and form deck flooring on a tiered office building in Rochester, New York. Citation 3 alleged that employees on the 17th floor were exposed to a fall of about 150 feet because the rope used near the edge of the floor did not provide protection equivalent to that required by section 1926.750(b)(1)(iii).[[1/]] Specifically, the citation alleged that the 3/4-inch manila rope strung around the periphery of the floor hung down to 31 inches above the floor and could be depressed 18 inches vertically and 12 inches laterally. Although the citation had alleged that ironworkers on the west side of the building were working near the edge, the complaint deleted the reference to the west side of the building, alleging that the railing was not installed approximately 42 inches high around the periphery of the floor.

Heughes had installed decking on the 17th floor and had installed a 3/4-inch manila rope railing around the perimeter. The rope was wound around the inside of columns spaced 20 feet apart. The rope was slack all around the perimeter and sagged to a height of about 31 inches between columns. An OSHA compliance officer testified that when he applied downward pressure on the rope but "without stressing it," the rope deflected to a height of 18 inches from the floor. When he applied outward pressure, it deflected to the edge of the building. The compliance officer estimated that the exteriors of the columns were between 12 and 20 inches from the edge of the floor and that the columns themselves were approximately 12 inches deep, putting the rope between 24 and 32 inches from the edge. Relying on the engineering drawings from which the building was constructed, Heughes' president testified that the interiors of the columns were 42 inches from the edge of the floor.

Judge Fier affirmed the citation and assessed a $600 penalty. He found that the 3/4-inch manila rope had approximately the same test strength as a 1/2-inch wire rope, but because of the lack of tautness, it did not maintain the necessary tension and therefore did not "meet the purposes for which it was intended." The judge rejected Heughes' arguments that the purpose of the rope was to warn employees that they were getting close to the edge and that a rope 31 inches high is just as effective for that purpose as one 42 inches high. He therefore found that the standard was not complied with. He found that four employees at the east side of the floor were exposed to the violative condition. Inasmuch as we find that Heughes' objections to the judge's decision lack merit, we affirm the decision.

Heughes takes exception to the judge's finding that the railing violated the standard. Section 1926.750(b)(1)(iii) requires that safety railings he "approximately 42 inches high...." As noted above, the manila rope sagged to a height of 31 inches and could be depressed to 18 inches above the floor. Heughes maintains that the rope should nevertheless he found to be "approximately 42 inches high" because "a height of 31 inches is arguably in the range contemplated by the OSHA standards which are not exact, but should be flexibly applied to the circumstances of each particular case." Heughes apparently is arguing that the word "approximately" should be construed in light of the purpose of the standard, which, it argues, is to warn employees that they are close to the edge, rather than to restrain them from falling off the edge. Heughes therefore asserts that it was in compliance because under the circumstances here the rope served this function as well as, or better than, a rope 42 inches high.

We agree with Judge Fier's holding that the purpose of the standard is to restrain an employee from falling. Inasmuch as the standard refers to one-half inch diameter wire rope--a material of substantial strength--and speaks of it as a "railing," it was obviously intended to serve as a restraint rather than as a warning. Moreover, the 42-inch height requirement of the standard mirrors the requirement of section 1926.100(f)(1) that standard guardrails have a vertical height of "approximately 42 inches from the upper surface of the top rail to the floor. " Compare section 1926.500(g)(3)(warning lines to have high-visibility flags, to be no lower than 34 inches and no higher than 39 inches). We therefore hold that deviations from a 42-inch height must be judged in light of the standard's purpose of providing a physical barrier to prevent a fall.

Although the word "approximately" does allow for some deviation from the 42-inch height, the deviation cannot be so great as to defeat the purpose of the railing. Cf. Dick Corp., 79 OSAHRC 101/E8, 7 BNA OSHC 1951, 1979 CCH OSHD І 24,078 (No. 16193, 1979) (horizontal bar 4 to 5 feet high not equivalent to rail "approximately 42 inches high" as required by 29 C.F.R. ї 1926.451(d)(10)); Otis Elevator Co., 78 OSAHRC 88/E5, 6 BNA OSHC 2048, 1978 CCH OSHD І23,135 (No. 16057, 1978) (rope sagging within 8 inches to 2 feet of the floor does not provide fall protection even though it may serve as "guide" to warn employees). Judge Fier found that the rope did not meet that purpose. Again, we agree with the judge. The compliance officer testified without contradiction that a railing 31 inches high would not restrain an employee from falling. Furthermore, the testimony of the two compliance officers that the rope sagged around the entire periphery was substantiated by Heughes' assistant erection superintendent. We therefore adopt the judge's conclusion that the standard was not complied with.

Heughes also takes exception to the judge's finding that Heughes employees on the east side of the building were exposed to the violative condition. Heughes argues that the citation was limited to the west side of the building, that it was prejudiced at the hearing when evidence was introduced to show the exposure of Heughes employees on the east side because it was not prepared to try that issue, and that the evidence of such exposure was insufficient in any event. [[2/]] Heughes cites a number of Commission decisions for the proposition that one's own employees must have been exposed; [[3/]] it therefore argues that a photograph of a person working at the edge of the west side was insufficient because the person was not credibly identified as a Heughes employee. [[4/]] These arguments lack merit.

We first reject Heughes' claim that the judge erred in finding a violation on the east side when the citation alleged a violation on the west side. Although the citation had alleged that there was a violation on the west side, the complaint amended the citation by deleting reference to the west side and by alleging that there was not an adequate safety railing around the entire periphery. Since the issue was raised by the pleadings, Heughes had fair notice that the condition of the rope around the entire floor was in issue.

Heughes' argument that the evidence does not show that its employees were exposed to the cited hazard is without merit. The early Commission cases cited by Heughes required proof of access or exposure of one's own employees. However, this rule was later modified to reflect the problems encountered on a construction site where many employers may be operating at one time. The rule now followed is that the employer who creates or controls a violative condition does not avoid liability solely because the only employees exposed are those of another employer. H.B. Zachary Co., 80 OSAHRC 69/A2, 8 BNA OSHC 1669, 1671, 1980 CCH OSHD І 24,588, p. 30,163 (No. 76-2617, 1980); Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1188, 1975-76 CCH OSHD І 20,691, p. 24,791 (No. 13775, 1976); Anning Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1199, 1975-76 CCH OSHD І 20,690, p. 24,784 (Nos. 3694 & 4409, 1976). Moreover, it is not necessary for "an employee of the particular employer creating the perimeter hazard [to] be seen by an inspector teetering on the edge of the floor 150 feet or so up from the ground. No such interpretation of the standards would be reasonable. No such interpretation is consistent with, let alone called for by the Act." Brennan v. OSHRC (Underhill Construction Corp.), 513 F.2d 1032, 1039 (2d Cir. 1975). Access to the violative condition, not actual exposure, is the test. See Otis Elevator Co., 6 BNA OSHC at 2050, 1978 CCH OSHD at p. 27,952.

Heughes had installed the rope and maintained it. Inasmuch as it thereby created and controlled the violative condition, a violation would be established if it is shown that any employee on the site had access to that condition. The compliance officers testified that employees were working within two feet of the edge of the east side. Whether they were Heughes' employees or not, they had at least access, if not direct exposure, to the violative condition. A violation is therefore established. The same may be said with regard to the employee photographed working at the edge of the west side. The judge's disposition of this item is therefore affirmed. [[5/]]

II. THE ALLEGED VIOLATION OF 29 C.F.R. ї 1926.28(a)

Citation 2 alleged that a Heughes employee on the 18th floor standing on the structural steel beams using an oxy-acetylene torch to cut a metal deck plate was exposed to an exterior fall of 150 feet and an interior fall of 12 feet. It alleged that the employee was not wearing a safety belt to prevent him from falling and that this was a violation of 29 C.F.R. ї 1926.28(a).[[6/]]

The compliance officer observed a Heughes employee on the 18th level working at the edge of the building without fall protection. The employee was standing on the flanges of two horizontal structural steel beams at the point where they joined an upright steel beam. The exterior horizontal beam was 24 inches high and 9 inches wide. The other horizontal beam, which was perpendicular to the exterior beam, was 18 inches high and 12 1/2 inches wide. The tops of the two horizontal beams were the same height, approximately 12 feet above the decking on the 17th floor below, so that one of the flanges on which the employee was standing was six inches higher than the other.

The employee was using an oxy-acetylene torch to cut a piece out of a metal deck plate so that the plate would fit where it was to be laid. This was the first plate to be laid on the 18th floor, so there was no other decking for the employee to stand on to do the job. Because of the configuration of the I- shaped beams, the employee had slightly less than half the width of the beam on which to stand. He was therefore standing with one foot on the approximately 3 1/2 to 4-inch flange of the exterior beam and the other foot six inches higher on the 5 1/2 to 6-inch flange of the interior beam. The compliance officer testified that the employee could have fallen forward or backward. A backward fall or a forward fall over the interior beam would result in his failing to the deck on the 17th floor, approximately 10 feet below where he was standing. A forward fall over the exterior beam would cause him to fall 150 feet to the ground.

The compliance officer testified that the employee could be distracted, become dizzy, be hit by sparks from the burning metal, or otherwise lose his balance, and that the employee should have been protected from falling. He suggested that a safety belt could have been used with the lanyard tied around the vertical column nearby.

Heughes' witnesses testified that it was impossible for the employee to fall when he was working in this position because his legs were braced against the horizontal beams and his shoulder was braced against the vertical beam. One witness testified that the only way he could fall forward from that position would be for someone to pick him up and throw him off. Heughes also presented testimony that an interior fall would be more dangerous for the employee if he wore a tied-off safety belt because he could be jerked and wrench his back or could swing into the vertical column. The witnesses gave their opinion that it was safer for the ironworker to fall to the "energy-absorbing" corrugated metal decking below. Heughes presented testimony that the job being performed at the time the compliance officer observed the ironworker took only a minute or two and that it was done from this position only once on each floor, during the laying of the first deck plate. After that, the work is done from the plates already laid. It may therefore be weeks or even months before an ironworker must work from that position again.

There was no evidence as to how the ironworker got to this location, how he would leave, or how he got his torch and other equipment to his work station, although a representative of the union testifying on behalf of Heughes stated that the employees sometimes do walk on top of the beams.

Judge Fier affirmed the citation. He found that "While [Heughes] is of the opinion that the worker is more secure by bracing himself against the beams, the testimony shows otherwise." He found that a safety belt could have been used. The judge also stated that the employee must use both hands to carry his equipment out on the beams and that he could fall during that time.

On review, Heughes makes three arguments: [[7/]] 1) the employee did not need a safety belt because he was not exposed to a fall; 2) it was not required to provide safety belts because there was no structural steel member or anchorage above the work station to which the line could be secured; [[8/]] 3) it was proved that the use of safety belts was more hazardous than an interior fall of 10 feet to the corrugated metal deck on the 17th floor.[[9/]] In support of its argument that the employee was not exposed to a fall, Heughes argues that the judge misinterpreted Heughes' argument that the employee was not exposed to a fall hazard and erroneously considered it to be an argument that belts were not needed because the duration of his exposure was brief. Heughes also argues that the judge misinterpreted and misused its evidence that belts were not desirable under the circumstance cited here to find that Heughes safety program was lax because Heughes did not required belts under these conditions.[[10/]]

Heughes' arguments lack merit. The employee in question was working with his feet on narrow surfaces, with one foot higher than the other and his legs spread apart. From the employee's position on the beam, we conclude that he could have fallen outward. We also note that Judge Fier credited the testimony of the compliance officer on this point rather than that of Heughes' witnesses. Inasmuch as the employee was exposed to the hazard of an exterior fall of 150 feet, Heughes' argument that the use of belts posed a greater danger than a 10-foot interior fall is not persuasive.

We are also unpersuaded by Heughes' assertion that it was not required to comply with section 1926.28(a) because there was no anchorage or structural steel member above the employee to which he could secure his lifeline. An employer's inability to comply with the requirements of section 1926.104 does not eliminate his obligation to provide protection under section 1926.28(a). J.W. Conway, Inc., 79 OSAHRC 75/F3, 7 BNA OSHC 1718, 1979 CCH OSHD І 23,867 (No. 15942, 1979); Valley Roofing Corp., 78 OSAHRC 27/C14, 6 BNA OSHC 1513, 1973 CCH OSHD І 22,633 (No. 15800, 1978); F.H. Sparks of Maryland, Inc., 78 OSAHRC 13/C13, 6 BNA OSHC 1356, 1978 CCH OSHD І 22,543 (No. 15472 1978). Furthermore, Heughes does not claim that the employee could not have tied off at or below his level, and the compliance officer testified that the employee could have put his lanyard around the column. "Even where an employer cannot fully comply with all standards, it must still provide such protection as is possible." Marion Power Shovel Co., 80 OSAHRC 110/A2, 8 BNA OSHC 2244, 2248, 1980 CCH OSHD І 24,915, p. 30,731 (No. 76-4114, 1980).

Judge Fier assessed a penalty of $600 for each of these violations. On review, neither party has asserted that these penalties are inappropriate.

Accordingly, the decision of the administrative law judge, and citations 2 and 3, are affirmed.

SO ORDERED.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: APR 27 1983

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FOOTNOTES:

[[1/]]Section 1926.750(b)(1)(iii) provides:

ї 1926.750 Flooring requirements.

(b) Temporary flooring--skeleton steel construction in tiered buildings. (1)

(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 multi-floored structures during structural steel assembly.

[[2/]] The compliance officers testified that they saw Heughes employees on the east side of the building within two feet of the edge. Heughes' foreman testified that, during the inspection, steel was being hoisted to the 17th floor by a crane, and the compliance officers stated that the Heughes employees were guiding it onto the floor and attempting to reduce its swing. One of the employees, identified by a compliance officer as the shop steward and a Heughes employee, was said to be leaning over the edge signaling the crane operator. Heughes' witnesses testified that its employees who were on the 17th floor at the time of the inspection were assigned to lay decking in the core of the building and that the steel was being landed near the center, where it would be used.

[[3/]] Frank C. Gibson, 78 OSAHRC 32/E7. 6 BNA OSHC 1557, 1978 CCH 0SHD І 22,686 (No. 13925,1978); Wilmorite, Inc., 75 OSAHRC 51/FI2, 3 BNA OSHC 1112, 1974-75 CCH OSHD І 19,547 (No. 4679, 1975); Hawkins Construction Co., 74 OSAHRC 31/C1, 1 BNA OSHC 1761, 1973-74 CCH OSHD І 17,851 (No. 949, 1974). Heughes also cites three unreviewed decisions by Commission administrative law judges. Capa Iron Works, 75 OSAHRC 72/D11, 3 BNA OSHC 1439, 1974-75 CCH OSHD І 19,750 (No. 10659, 1975); South Central Plumbing & Heating Co., 75 0SAHRC 33/E2, 2 BNA OSHC 3286, 1974-75 CCH OSHD І. 19,207 (No. 6303 et al., 1975); Mel Edwards Co., 74 OSAHRC 87/B14, 2 BNA OSHC 3232, 1974-75 CCH OSHD І 18, 900 (No. 4141 et al. , 1974). We note, however, that unreviewed judge's decisions are not precedent binding on the Commission. Leone Constr. Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD І 20,387 (No.. 4090, 1976), appeal withdrawn, No. 76-4070 (2d Cir. May 17, 1976).

[[4/]] The compliance officer testified that both Heughes' foreman and the shop steward told him that the individual shown was a Heughes employee. A second compliance officer trainee corroborated this testimony. Heughes presented witnesses, however, who identified the worker in the photograph as the employee of another contractor on the site.

[[5/]] Heughes has also argued that the standard is unenforceably vague because it does not define the term "temporary." However, Heughes has never stated in this case that it did not know the standard applied. Indeed, Heughes' president testified that he considered the metal decking to be temporary flooring, and Heughes' foreman testified that he strung the rope. Accordingly, we reject the argument.

[[6/]] That standard provides:

ї 1926.28 Personal protective equipment.

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

[[7/]] Heughes has not argued here that the steel erection standards at 29 C.F.R. її 1926.750-752 are the exclusive standards governing steel erection. Because the issue was not raised before the judge, in the petition for review, or directed for review, and there are no extraordinary circumstances that would warrant our confronting that question here, we need not do so. See Rules 92(c) and 92(d) of the Commission's Rules of Procedure, 29 C.F.R. її 2200.92(c) & (d). Furthermore, the Commission has held that general construction industry standards apply even during steel erection unless they are specifically preempted by a more specifically applicable steel erection standard. See Williams Enterprises, Inc., OSHRC No. 79-0843 (Apr. 27, 1983); Havens Steel Co., 78 OSAHRC 33/E6, 6 BNA 0SHC 1564, 1978 CCH OSHD І 22,689 (No. 13463, 1978), aff'd, 607 F.2d 493 (D.C. Cir. 1979); see also Bristol Steel & Iron Works,_ Inc., 601 F.2d 717 (4th Cir. 1979). In addition, the United States Court of Appeals for the District of Columbia Circuit has recently held that section 1926.28(a) applies to hazards encountered during structural steel erection unless it is preempted by a more specific standard directed at the particular hazard in question. See L.R. Willson & Sons, Inc. v. Donovan, 685 F.2d 664 (D.C. Cir. 1982) (applies at least to exterior falls); see also L.R. Willson & Sons, Inc.,v. Donovan. No. 81-2101 (D.C. Cir. Jan. 18, 1983). Because we base our decision on the employee's exposure to a 150- feet exterior fall, we need not determine whether section 1926.28(a) also applies to employees exposed to interior falls during structural steel erection.

[[8/]]Heughes relies on the standard at 29 C.F.R. ї 1926.104(b), which provides:

ї 1926.104 Safety belts, lifelines, and lanyards.

(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.

[[9/]] Heughes also argues that it would be inappropriate for its employees to wear safety belts while laying temporary flooring in the interior of the structure. Heughes was not cited for violating the standard under such circumstances, however, and the Secretary does not argue that a violation should be found on this basis. The Secretary argues that the testimony of Heughes' witnesses concerning the problems caused by safety belts during this type of operation was not relevant to the issue here. We agree. Whether safety belts must be worn by employees laying temporary decking is not presented in this case.

[[10/]] Heughes also argues that the use of a safety net was impractical. The Secretary sought to amend the citation to allege that, if safety belts were impractical, Heughes violated 29 C.F.R. ї 1926.105(a) by not providing a safety net to protect the employee on the beam. Having found a safety belt violation, the judge made no findings regarding safety net, and the Secretary does not pursue the safety net allegation on review. Accordingly, we do not address the question whether Heughes was required to provide a safety net.