EVERHART STEEL CONSTRUCTION COMPANY, INC.
OSHRC Docket No. 3217
Occupational Safety and Health Review Commission
April 9, 1975
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: CLEARY
OPINION:
CLEARY, COMMISSIONER: On December 18, 1973, Judge John S. Patton issued his decision in this case, affirming one citation for serious violation and one citation for non-serious violation.
On January 17, 1974, the Commission directed that the decision of the Judge be reviewed in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq., hereinafter referred to as "the Act").
Review before the full Commission was directed on the following two issues:
(1) Whether the Judge was correct in finding violations of 29 CFR 1926.500(d)(1) and 29 CFR 1926.401(a)(1).
(2) Whether the Judge properly assessed the penalties herein.
Having reviewed the entire record in this case, we affirm the disposition of Judge Patton.
Respondent was cited for four alleged violations, only two of which it contested. One citation alleged a serious violation of section 5(a)(2) of the Act for failing to comply with 29 CFR § 1926.500(d)(1). A non-serious violation of section 5(a)(2) of the Act for failing to comply with 29 CFR § 1926.401(a)(1) was also alleged. The Secretary proposed [*2] penalties of $550 and $55, respectively.
The record indicates that an employee of respondent was working on a flat roof 32 feet above ground. Without benefit of perimeter guarding or any other protective device, the employee was leaning over the side of the building in order to hand siding and other material to two other employees working on a scaffold. Based on these facts the Judge found respondent in serious violation of section 5(a)(2) of the Act for failing to comply with 29 CFR § 1926.500(d)(1), which provides:
Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing.
We agree with the Judge's finding that respondent committed a serious violation. In several other cases we have held that the term "open-sided floor" in the standard encompasses roofs. See, e.g. Diamond Roofing Co., Inc., No. 459 (October 24, 1973), petition for review docketed, No. 73-3704, 5th Cir., November 14; 1973; S.D. Mullins Co., Inc., No. 364 (October 24, 1973), petition for review docketed, No. 73-3705, 5th Cir., November 14, 1973.
In his decision, Judge Patton also vacated the alternative allegations [*3] of a failure to comply with 29 CFR § 1926.105(a) and 29 CFR § 1926.28(a), which arose from the same factual situation as the failure to comply with 29 CFR § 1926.500(d)(1). Although the Judge's finding of a serious violation based on 29 CFR § 1926.500(d)(1) makes it unnecessary for us to reach the merits of the vacating of the alleged violations based on the other standards, we note the following.
In W. B. Meredith, II, No. 810 (October 24, 1972), aff'd by the Commission, June 7, 1974, the Commission held that there is no violation of the perimeter guarding standard when the railings must be removed in order to perform work. No "impracticality" issue was tried in the present case. Moreover, we have held that when perimeter guarding is not possible, personal protective equipment such as safety belts and lanyards must be used. In these circumstances, a violation based on 29 CFR § 1926.28(a) exists. See Underhill Constr. Corp., No. 2232 (February 21, 1975).
Respondent was also issued a citation for non-serious violation for failing to comply with 29 CFR § 1926.401(a), by allegedly using ungrounded electrical equipment. The evidence supports Judge Patton's finding [*4] of a violation and we affirm.
The Commission has wide discretion in penalty assessment, Brennan v. O.S.H.R.C. & Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973), although it is bound to consider the four factors delineated in section 17(j) of the Act; gravity of the violation, size of the business, history of previous violations, and good faith. After due consideration of these factors, we do not disturb the penalties of $550 and $55, respectively, assessed by the Judge for the reasons that he has assigned.
Accordingly, it is ORDERED that the decision of the Judge as herein modified by affirmed.
DISSENTBY: MORAN
DISSENT:
MORAN, CHAIRMAN, dissenting: It is illogical, unjustifiable, and a denial of due process to apply the requirements of 29 C.F.R. § 1926.500(d)(1) to flat roofs, a position I have often stated. n1 I therefore dissent from this finding that respondent is in noncompliance with that standard.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 See Secretary v. S.D. Mullins Co., Inc., & Diamond Roofing Co., Inc., supra; Secretary v. Heyse Sheet Metal & Roofing Co., Inc., 4 OSAHRC 1395 (1973); Secretary v. Moser Heating & Roofing Co., 6 OSAHRC 77 (1974); Secretary v. Lance Roofing Co., Inc., 6 OSAHRC 95 (1974); and Secretary v. J.V. Probst & Co., Inc., 11 OSAHRC 373 (1974).
[*5]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The majority, in dictum, goes on to note that if 29 C.F.R. § 1926.500(d)(1) had been inapplicable to the respondent's worksite, finding a violation of 29 C.F.R. § 1926.28(a) would have been proper. It cites Underhill Construction Co. as precedent for that proposition.
§ 1926.28(a) cannot be properly interpreted as the Commission has interpreted it in prior cases, nor do I think it should be so applied. n2 But even assuming that § 1926.28(a) were an enforceable standard and were applicable to the conditions at the respondent's worksite, allowing an amendment would be improper in this case. Underhill is not precedent for the approval of such an amendment. In Underhill the citation alleged alternative violations of § 1926.500(d)(1) and § 1926.28(a). In this case the respondent was cited for noncompliance with § 1926.500(d)(1). Not until the respondent had filed its notice of contest and its answer to the complaint did the complainant submit a motion to allege alternative pleadings, including an alleged violation of § 1926.28(a).
- - - - - - - - - - - - - - - - - -Footnotes- [*6] - - - - - - - - - - - - - - - - -
n2 See Secretary v. Underhill Construction Co., supra; Secretary v. Chicago Bridge & Iron Co., 13 OSAHRC 356 (1974); Secretary v. Hoffman Construction Co., 15 OSAHRC 327 (1975); and Secretary v. Carpenter Rigging & Contracting Corp., 15 OSAHRC 400 (1975).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The majority is confusing a citation with a complaint and attempting to apply liberal rules of pleading counter to the Act's specific requirement that each citation "shall describe with particularity the nature of the violation, including a reference to the . . . standard . . . alleged to be violated." 29 U.S.C. § 658(a). The term "citation" is not defined in the Act. It need not be defined here except to note that it is not what lawyers know as a "pleading" -- such as is a declaration or complaint or an answer, replication or rejoinder. Even if one were to stretch the term "pleading" far beyond its usual sense one would have to agree that a citation under the Act is not directly comparable to other administrative or civil pleadings. n3 Unique herein is the provision set forth in 29 U.S.C. § [*7] 659(a), which requires employers to decide within 15 days of receipt of the notification of proposed penalties whether or not to contest the action. If no notice of contest is received, respondents, except for jurisdictional matters, n4 are precluded from any further hearing on the matter. n5
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 Congressman Scherle stated during floor debate that, "[t]his issuance of a citation is a new angle in safety legislation." See page 1223 of the Legislative History of the Act (P.L. 91-596) 92d Congress, 1st Sess.
n4 See, e.g., Secretary v. Phoenix, Inc., Legore Quarries Division, 1 OSAHRC 355 (1972).
n5 See Secretary v. Florida East Coast Properties, Inc., 6 OSAHRC 404 (1974); Brennan v. OSAHRC and Bill Echols Trucking Co., 487 F. 2d 230 (5th Cir. 1973); Brennan v. OSAHRC and Interstate Glass Co., 487 F. 2d 438 (8th Cir. 1973).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
To assure due process during this stage of the proceeding and to specify appropriate abatement procedures where citations were not contested, Congress required that the complainant [*8] inform employers of the fundamental aspects of the charge in the citation. The legislative intent of § 658(a) is more than a beginning procedural matter of pleading; it sets forth the information needed by employers in order to accomplish abatement where appropriate and to make the crucial and irrevocable decision of whether or not to contest.
In this case, the citation gave the respondent no notice at all of what it would be charged with. It was cited for failure to install perimeter guardings, but had to defend against an allegation of failure to require its employees to wear unspecified personal protective equipment. The respondent was prejudiced at the time it considered the wisdom of filing a notice of contest because it was not informed of what the true charges against it would be; it was prejudiced at the time of the amendment because it was forced to prepare an entirely different defense. n6 The relevance of the foregoing becomes clear when one considers what complainant would have considered to be an appropriate abatement of the alleged hazard in the event respondent had chosen not to contest.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - [*9] - - - - - - - - - -
n6 An amendment to a charge of failure to comply with 29 C.F.R. § 1926.105(a) would also have required radical changes in the defense.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
I dissent from casually allowing an employer to be so prejudiced n7 from such a casual attitude to due process rights, and from a procedure which permits such a haphazard approach to the abatement of potential hazards.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n7 See Secretary v. Otis Elevator Co., 12 OSAHRC 127 (1974).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[The Judge's decision referred to herein follows]
PATTON, JUDGE: This case is before the undersigned Administrative Law Judge on the complaint of the Secretary of Labor, United States Department of Labor, hereinafter referred to as complainant, versus Everhart Steel Construction Company, Inc., hereinafter referred to as respondent, alleging that respondent has violated section 5(a)(1) and (2) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590; 29 U.S.C. 651, et seq. ), hereinafter [*10] referred to as the Act. Hearing was held before the undersigned on September 11, 1973, at Chattanooga, Tennessee. Mr. John P. Garner appeared as counsel for the respondent. There was no motion to intervene.
It was alleged in the complaint that respondent, on May 2, 1973, violated Occupational Safety and Health Standard 29 CFR 1926.500(d)(1), in that one of its employees was permitted to work on a roof edge 32 feet above ground level supplying sheet metal siding to employees on a swinging scaffold below the roof and was not protected by a standard guardrail or the equivalent as specified in standard 29 CFR 1926.500(f)(1). It was further alleged that respondent violated standard 29 CFR 1926.45(i)(11) in that a two-point suspension scaffold in use 32 feet above ground level was not equipped with a mid-rail and toeboard on the front side sway from the building and open ends of the scaffold. It was alleged that respondent violated standard 29 CFR 1926.353(e)(2) in that an employee working as a welder's helper was not protected by suitable eye protection equipment. It was alleged that respondent violated standard 29 CFR 1926.401(a)(1) in that noncurrent carrying metal parts [*11] of portable and/or plug-connected equipment such as electric drills were not grounded while in use.
The alleged violations of standards 29 CFR 1926.45(i)(ii) and 29 CFR 1926.353(e)(2) were never contested and were not before this Judge. Allegations of said violations were, therefore, stricken from the complaint.
The complainant subsequently filed a motion to amend the complaint in the following respects:
That the complaint be amended to allege that respondent failed to furnish to each of its employees, employment and a place of employment which were free from recognized hazards which were causing or likely to cause death or serious physical harm to its employees, in that an employee working on the edge of a roof 32 feet above ground level who was not protected by standard guardrails or the equivalent was exposed to the hazardous condition of falling 32 feet from said roof to ground level and was not protected by personal protective equipment, to wit, a safety belt, lanyard and life line or safety nets in violation of section 5(a)(1) of the Act. Section 5(a)(2) of the Act and the standards at 29 CFR 1926.28(a) and (b), 29 CFR 1926.104 and 29 CFR 1926.105(a) and (b) and 29 CFR [*12] 1926.500(d)(1) were also alleged by said proposed amendment to be violated. Said motion also prayed that paragraph IV of the complaint be stricken. Paragraph IV of the complaint alleged violations of standard 29 CFR 1926.500(d)(1) and 29 CFR 1926.500(f)(1).
This Judge entered an order ruling upon said motion to amend, ruling as follows:
The complainant's application to strike Paragraph IV of the complaint was granted, the motion of the complainant to amend the complaint so as to incorporate therein a new paragraph IV as set forth in the motion to amend the complaint and alleging the violations of section 5(a)(1) of the Act and the above-cited standards set forth in said motion to amend was granted except insofar as the complainant sought to allege violations of section 5(a)(1) and standard 29 CFR 1926.28(a) and (b). The complainant's motion to amend paragraph IV of the complaint so as to allege violations of section 5(a)(1) of the Act and standard 29 CFR 1926.28(a) and (b) was denied.
The respondent thereupon filed a motion for re-hearing and reconsideration of the rulings of the Judge as to said motion to reconsider and extensive oral arguments were made at the hearing [*13] of the case. After due consideration of briefs and oral arguments, this Judge concluded that his original decision on said motion to amend was in some respects in error and amended his prior ruling as follows:
The denial of the motion to amend so as to allege section 5(a)(1) of the Act was reversed and this Judge ruled that the amendment was allowed as to allegations of violation of section 5(a)(1). The motion to amend so as to allege a serious violation of standard 29 CFR 1926.28(a) and (b) was granted. The previous ruling was amended so as to deny the motion to amend and allege violation of standard 29 CFR 1926.104. The order permitting amendment to allege violation of standard 29 CFR 1926.105(a) and (b) remained in effect.
The respondent also filed a motion to dismiss and for summary judgment requesting that the allegations as to section 29 CFR 1926.500(d)(1) be dismissed on the ground that the complainant has not from a legal standpoint stated violation of that section. It was alleged that said section applies to a platform and that the area from which the employee was working at the case at bar was a roof and that it has been held that a roof and a platform are not one [*14] and the same. This motion to dismiss was granted on the ground that the standard referred to a platform and not a roof and that the allegation of the citation and complaint described the area as a roof and therefore, as a matter of law, the standard had no applicability to this case. The allegations of violation of standard 29 CFR 1926.500(d)(1) were, therefore, dismissed and stricken from the complaint.
Both parties have submitted briefs in this cause and in said briefs reargue their positions with reference to all of said requested amendments. This Judge has carefully reconsidered his ruling with reference to said motion to dismiss and for summary judgment and has carefully considered the arguments and authorities cited in the briefs. The ruling of the Judge as to said motions will appear below in this decision.
ISSUES IN THE CASE
The issues for determination are as follows:
Did the Judge properly hold that the allegations of violation of standard 29 CFR 1926.500(d)(1) should be dismissed on the ground that said standard refers only to a platform and the allegations of the citation and complaint make reference not to a platform but to a roof? Did the respondent [*15] violate section 29 CFR 1926.105 by permitting its employees to work at an elevation in excess of 25 feet without a safety net? Is there any standard which applies to the allegation that the respondent had an employee working on a roof at an elevation of 32 feet without safety belts, nets, guardrails, etc.? Can the complainant allege a violation of section 5(a)(1), the so-called general duty section of the Act, and at the same time, allege violation of specific standards? If there is no standard which applies to said allegations of the complaint, can section 5(a)(1) be properly alleged? Did the respondent violate standard 29 CFR 1926.401(a)(1) by permitting a non-current carrying metal parts of portable and/or plug connected equipment such as electric drill to be used when not properly grounded?
EVIDENCE IN THE CASE
The respondent, in his answer, admitted that respondent is a corporation maintaining its principal office in Chattanooga, Tennessee, engaged in the business of steel erection contractor in the State of Tennessee and in other states. It was admitted that many items of equipment, material and supplies used by respondent have been produced outside the State of Tennessee [*16] and that respondent is and at all times material to this cause has been an employer engaged in a business affecting commerce who has employees as defined by section 3(5) of the Act and is subject to the requirements of the Act and the regulations issued or promulgated thereunder.
Mr. Larry K. Weaver, Jr., compliance officer for the complainant testified on behalf of the complainant. Mr. Weaver testified that he had served as a safety non-commissioned officer in the Army for a company sized unit was as safety officer for battalion and regimental sized units. He stated he had served as safety director for an Army brigade in Ft. Benning, Georgia, and as assistant director of safety at the United States Army Ammunition Plant in Chattanooga. He later was associate to the director on the staff of the Commanding General of the ammunition procurement and supply administration, inspecting periodically 25 Army ammunition plants throughout the United States. He stated that he had conducted approximately 300 safety and health inspections since becoming a compliance officer with the complainant. He testified that he had been involved in construction safety since his employment [*17] by the military in 1950. Mr. Weaver testified that he inspected the construction site of the respondent on May 2, 1973. He stated that respondent was constructing a building for American Can Company, erecting the steel and putting siding on the upper part of the building. The building was 32 feet high, 100-150 feet long and perhaps 100 feet wide with steel frame and concrete being erected. The sides were made of steel siding. A Mr. Keith, a foreman, was supervising the erection of the siding and top parts of the building. Two men were on swinging scaffold attaching the siding to the building; one man on top of the building was handing down siding to be placed on the side of the building and also was handing down any other equipment that might be needed. The man to whom the siding was being handed was attaching the siding to the building. The roof was guarded by handrails at the point at which the employee was working, the man would lean over the side of the roof when he would hand down the siding and he was not wearing a safety belt while doing so. The roof was 32 feet high and there were no safety nets. There was no device of any kind to protect the employees. He stated [*18] that if a man fell from the roof, unless he fell straight down, he would miss the scaffold. One employee on the scaffold had a safety belt on, the other did not. He ask foreman Keith why the man did not have a safety belt on and he said he did not think he was supposed to, but that he would see that one was provided.
Mr. Weaver testified that the failure to use any of said precautions for a man working on a roof was a recognized hazard in the industry. He testified that he had observed in construction by Retenbauch Engineering Company at Kingsport, Tennessee, of the General Hospital, a fence was around the roof equivalent to a guardrail. The construction was being performed at approximately a 60 foot elevation. Construction of Hamilton High School in Memphis, Tennessee, with a roof 30 to 33 feet above the round, had a guardrail around the roof during construction. The Mississippi Valley Steel Company built a Methodist Church with employees working on a roof at a 50 to 80 foot elevation and the employees were supplied with safety belts. The complainant also attempted to cite other instances where persons were working at a high elevation and either guardrails, nets [*19] or safety belts were supplied. This Judge held that such evidence was irrelevant except in those instances in which the employees were working on a roof. The complainant thereupon made an offer of proof citing in the offer of proof several instances in which employees had worked at a high elevation, not a roof, and had at least some of the above-mentioned safety equipment.
In the case at bar, according to Mr. Weaver, the roof was completely surfaced. Mr. Weaver, while in the Army, observed people in roofs and steel structures while serving as safety officer and safety precautions were taken.
The roof in the case at bar was completely flat.
Mr. Weaver testified that the respondent had a drill plugged into a line that was not grounded. The drill was lying in the floor on the inside of the building. It was powered by electricity and connected to the power source by a cord and plug. He stated he inspected the box it was plugged into, that the box went into the wall receptacle. The switch box was capable of having cords plugged in it. Receptacle had formerly been installed in a wall but it had been disconnected and was no longer in the wall. There was no third wire in the receptacle. [*20] Such a wire would have taken the current to the ground in case there was a short. Mr. Weaver testified that he had taken a 45 week course in electronics when he was in the Army that he did this as preparation to be a radar technician; that he served as a radar technician for two years. He continually dealt with electricity during that time. He stated that he worked on the electrical unit himself in his job. He stated that if there was a short in the tool at the respondent's business, that the electricity could go through the operator to the ground rather than through the ground wire which should have been provided. This could cause electrical shock to the operator which could be fatal or cause serious bodily injury. He stated that appliances get overloaded and draw too much current and short out. He stated that usage could also fray wires. He stated this was not a wet location but the drill was near machinery. The drill was on concrete. If the drill is close to machinery it provides a path for current to travel to the ground. The drill was located 25 feet from the receptacle and connected with a cord which was about a 50-foot extension. He did not know whether [*21] machines were within 25 feet. There was no grounding for any circuits in use. There was one circuit in use but there were four branch extensions from it and no grounding on any of them. The four were connected to saws, drills and various carpenter tools. He did not know whether all of them were respondent's tools or not because there were electricians, steel workers, brick layers, carpenters and other craftsmen working in the same location. He stated the drill belonged to the respondent. He testified a person would have to have some knowledge of electricity to know whether a receptacle was properly grounded. The drill was turned on and off by a switch in the handle which was operated manually. It was possible for a person to be shocked without ever turning the drill on or off. He stated that a testing plug exists which can be plugged into a receptacle and the light comes on and tells when it is grounded. This was not what he used but he stated that the employer could have used such a plug as a simple way to determine whether there was proper grounding. A drill was available to use but was not being used at the time he was there. The box was put there by the electrical [*22] contractor and does not belong to respondent. The ground wire and the drill would operate to protect an operator against shock only if the circuit was complete but the circuit was not complete. There had to be another ground from the receptacle.
EVALUATION OF THE EVIDENCE
Subsequent to the hearing in this cause, and the ruling of this Judge made at the hearing, the Occupational Safety and Health Review Commission issued its decision in the matter of Secretary of Labor v. S.D. Mullins Company, Inc., Secretary of Labor v. Diamond Roofing Company, Inc., In said cases, the Review Commission held that the word "platform" and the word "floor" were broad enough to cover a roof upon which people were walking and working and that a violation of standard 29 CFR 1926.500(d)(1) was, therefore established in said cases. It appears quite clear that said decision is determinative of the issues in this case with reference to the alleged violation of standard 29 CFR 1926.500(d)(1) and this Judge, therefore, on November 5, 1973, entered an order reversing his ruling that the allegations of violation of standard 239 CFR 1926.500(d)(1) [*23] be stricken and granting the parties ten days within which to request a reopening of the hearing for the purpose of taking additional evidence in the light of said prior ruling. No such motion has been filed.
It is undisputed that the type of protective railing required by standard 29 CFR 1926.500(d)(1) was not provided in the case at bar upon the roof on which employees were working. Therefore, in light of the decision in Mullins, supra, it is found by this decision that the respondent did violate standard 29 CFR 1926.500(d)(1) as charged.
In said order of November 5, 1973, this Judge also reversed his ruling permitting the amendment of the complaint so as to allege violation of section 5(a)(1) of the Act. The prior ruling permitting said section to be alleged was predicated on the fact that this Judge was of the opinion that there was no standard specifically governing the situation insofar as lack of protection around said roof is concerned and that, therefore, the so-called general duty section of the Act could be alleged. In the light of the fact that the Review Commission's decision in the Mullins case required a reversal of the previous ruling of this [*24] Judge dismissing allegations of violation of standard 29 CFR 1926.500(4)(1) a specific standard does exist governing the alleged perilous condition of said roof and, therefore, under the ruling of the Review Commission in the case of Sun Shipbuilding and Drydock Company, Said order of November 5, 1973, therefore held that the allegation of violation of section 5(a)(1) of the Act must be stricken. In the light of the ruling of this Judge on November 5, 1973, the allegations of violation of section 5(a)(1) of the Act are no longer before this Judge.
The facts in this case are not in dispute. The compliance officer of the complainant was the only witness who testified and, therefore, the issues in this case involve the interpretation to be drawn from said facts and the questions of law that are raised by the parties to the case. It is alleged that the respondent by having persons work at an elevation of 32 feet on the roof of the construction project without safety nets, scaffolds, catch platforms, temporary floors, safety belts, etc., was in violation of standard [*25] 29 CFR 1926.105(a). It will be noted that said standard reads as follows:
Safety nets shall be provided where work places 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 are impractical.
It will be noted that said section does not state that safety nets or ladders, scaffolds, catch platforms, safety belts, etc., will be worn, but requires only one thing to be done and that is safety nets to be used and such safety nets shall be used only in those instances where ladders, scaffolds, catch platforms, etc., are impractical. The Review Commission has expressly held to this effect in the case of Verne-Woodrow Company, Not only is it not controverted by the complainant that safety belts, etc. were practical but it is the insistence of the complainant that same should have been used. Said devices being practical, one of the requirements for the use of safety nets does not arise in this case and said standard is in no way applicable to the facts of this case. There was simply no requirement that the respondent [*26] erect a safety net and since there was no requirement, there is no issue in the case as to whether said standard has been violated.
It is the contention of the respondent that standard 29 CFR 1926.28(a) and (b) is too vague and indefinite to be enforced. This section 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 and where this part indicates the need for using such equipment to reduce the hazards to the employees.
(b) Regulations governing the use, selection and maintenance of personal protective and life saving equipment are described under subsection (e) of this part.
In the opinion of this Judge, before an employer may be found to be in violation of a Federal statute or Federal regulation or standard, the statute, regulation or standard must inform said employer of just what he is supposed to do. There is no guide furnished by standard 29 CFR 1926.28 that would in any way assist an employer in knowing what actions of the employer would conform to said standard. Said standard states that an employer is responsible for requiring [*27] the wearing of "appropriate personal protective equipment." What constitutes appropriate personal protective equipment is in no way described and there could be as many views of what constitutes such equipment as there are people making the interpretation. Said standard is also indefinite in that it provides that this undescribed personal protective equipment must be used where "there is an exposure to hazardous conditions." What constitutes the type of hazardous condition contemplated by the standard is in no way suggested by the standard. The contention is made by the complainant that subparagraph (b) of said standard, stating that "regulations governing the use, selection and maintenance of personal protective and life saving equipment are described under subsection (e)" incorporates by reference 29 CFR 1926.104. Standard 29 CFR 1926.104 does not in any way suggest when the life lines, safety belts, etc., therein described must be worn but merely sets forth the quality and type which must be met if such life lines, safety belts, etc. are utilized in any situation. So far as standard 29 CFR 1926.104 is concerned, it could apply to an entirely different set of circumstances [*28] from the case at bar. There is no allegation in the complaint of use of defective life lines, safety belts or lanyards and, therefore, this Judge has previously held that said standard has no reference to this case and refused to authorize the complainant to, by amendment, include said standard in the complaint. There are standards which deal with the question of life lines, safety belts and lanyards, but they are in no way specified either directly or indirectly by standard 29 CFR 1926.28(a) or (b). This Judge is of the opinion that said standard cannot be enforced because it is so indefinite that it does not even give the respondent a hint as to what he is required to do.
Section 29 CFR 1926.401 alleges as follows:
Grounding and bonding (a) Portable and/or cord plug connected equipment. (1) The noncurrent-carrying metal parts of portable and/or plug-connected equipment shall be grounded.
Evidence establishes that the respondent maintained a drill which was attached to a receptacle. The drill had a three-prong plug and had a ground wire. However, the receptacle was not properly grounded. It is the position of the respondent that standard 29 CFR 1926.401 relates only to [*29] the drill and not to the receptacle and that therefore a violation has not been shown. In the opinion of this Judge, such a construction is too narrow an interpretation of a standard. The requirement that plug-connected equipment be grounded includes, in the opinion of this Judge, the proper and safe grounding of all electricity finding its outlet in the drill. If the receptacle was improperly grounded and the person was subject to dangerous shock as a result, the plug-connected equipment was not properly grounded at its base. To have proper grounding at one point but not to have proper grounding at the point of connection of the equipment is to fail to properly ground the equipment in violation of the standard. Under these facts, it would appear that a violation of the Act has occurred.
This Judge is of the opinion that the proposed penalties as to the sections found violated are proper. A fall from a 32-foot elevation would in all probability result in either very serious injury or death. There is a real possibility that employees working from a roof handing equipment over the roof to people on a scaffold could fall. The proposed penalty of $550 for failure to [*30] properly barricade the roof would appear to be proper. Similarly, a penalty of $55 for improper ground of electrical equipment is not excessive.
FINDINGS OF FACT
1. Respondent is a corporation having its principal office and place of business at Chattanooga, Tennessee, engaged in construction activities, both in and outside the State of Tennessee. Many items of equipment, materials and supplies used by respondent have been produced outside the State of Tennessee.
2. Respondent was on or about May 2, 1973, engaged in construction at 2880 Amnicola Highway, Chattanooga, Tennessee.
3. On or about May 2, 1973, respondent's employees engaged in work on the roof of said construction project 32 feet above ground level.
4. No guardrails or their equivalent were provided around said roof and no toeboard was provided.
5. On or about May 2, 1973, respondent's employees operated an electric drill which was connected to a receptacle which receptacle was improperly grounded. The electric drill was grounded.
CONCLUSIONS OF LAW
1. Respondent, at all times relevant to this cause was engaged in activities affecting interstate commerce and falls within the jurisdiction of the Occupational [*31] Safety and Health Act and the Occupational Safety and Health Review Commission.
2. On or about May 2, 1973, respondent by failing to have toeboards and guardrails around roofs of the project at 2880 Amnicola Highway, Chattanooga, Tennessee, violated section 5(a)(2) of the Act and standard 29 CFR 1926.500(d)(1).
3. On or about May 2, 1973, respondent by having an improperly grounded receptacle to which a drill was connected was on or about October 2, 1973, in violation of section 5(a)(2) of the Act and standard 29 CFR 1926.401(a)(1).
4. The respondent did not violate standard 29 CFR 1926.105(a) and (b).
5. Standard 29 CFR 1926.28(a) and (b) is too vague to be enforced.
ORDER
Is is therefore ORDERED that:
Respondent on or about May 28, 1973, violated section 5(a)(2) of the Act and standard 29 CFR 1926.500(d)(1). A penalty in the amount $550 is assessed for said violation. The abatement date set forth in the citation is affirmed.
On or about May 2, 1973, respondent violated section 5(a)(2) of the Act and standard 29 CFR 1926.401(a)(1). A penalty in the amount of $55 is assessed for said violation. The abatement date as set forth in the citation is affirmed. [*32]
The allegations of violation of standard 29 CFR 1926.105(a) and (b) are dismissed.
The allegations of violation of standard 29 CFR 1926.28(a) and (b) are dismissed.