RAY EVERS WELDING CO., INC.  

OSHRC Docket No. 76-628

Occupational Safety and Health Review Commission

October 7, 1977

  [*1]  

Before: CLEARY, Chairman; and BARNAKO, Commissioner.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

William Kloepfer, Reg. Sol., USDOL

Daniel P. Dooley, for the employer

OPINION:

DECISION

BY THE COMMISSION: This case is before the Commission for review pursuant to 29 U.S.C. §   661(i).   The issues on review pertain to whether Review Commission Judge Frank B. Zinn properly held that the respondent had failed to comply with 29 C.F.R. §   1926.28(a), n1 a personal protective equipment standard.   The Judge concluded that the respondent violated that regulation by not requiring the use of safety belts, thereby exposing two employees to a serious fall hazard. Those employees were not using any personal protective devices as they worked on steel girders between 18 and 24 feet above the ground.

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n1 That standard provides:

"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."

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The respondent argues that the Judge's decision should be reversed because:

(1) Section 1926.28(a) is unenforceably vague.

(2) The employees' activities did not constitute a recognized hazard.

(3) The cited standard does not require tying off safety belts at heights of less than 25 feet.

(4) The steel erection standards, rather than the cited standard, apply to the cited condition.

(5) Under the circumstances, tying off of a safety belt was impossible and would create a greater hazard than not doing so.

The respondent cites Hoffman Construction Co. v. OSHRC, 546 F.2d 281 (9th Cir. 1976), in support of its vagueness argument.   The Commission has previously declined to follow Hoffman and adheres to that position.   B & B Insulation, Inc., 77 OSAHRC 49/A2, 5 BNA OSHC 1265, 1977-78 CCH OSHD para. 21,747 (No. 9985, 1977).

The respondent contends that various steel erection standards in 29 C.F.R. §   1926.750(b), rather than 29 C.F.R. §   1926.28(a), apply to its working conditions.   The standards contained in section 1926.750(b) pertain to the maintenance of temporary flooring during skeleton steel erection,   [*3]   but they are applicable only when the structure under construction is tiered. Since the building in this case was a single story warehouse and not tiered, the respondent's reliance upon those standards is inappropriate.   See McKee-Wellman Power Gas, 77 OSAHRC 133/A2, 5 BNA OSHC 1592, 1977-78 CCH OSHD para. 21,972 (No. 12618, 1977); Daniel Construction Company, 77 OSAHRC 21/A2, 5 BNA OSHC 1005, 1976-77 CCH OSHD para. 21,521 (Nos. 7734 & 7672, 1977).

The respondent also argues that it could not have used safety belts without violating the requirements of 29 C.F.R. §   1926.104(b) for securing lifelines "above the point of operation to an anchorage or structural member capable of supporting a minimum dead weight of 5,400 pounds." As Judge Zinn correctly observed, the case involves a failure to use safety belts, not lifelines, and safety belts could have been tied off to structural members of the building.   If the respondent were later cited for a failure to use lifelines, it could defend on the basis that it was unable to comply with the requirements of section 1926.104(b).   However, that defendant is not available in this case.   See Frank Briscoe Co., [*4]   76 OSHARC 125/D7, 4 BNA OSHC 1706, 1976-77 CCH OSHD para. 21,191 (No. 12136, 1976); Kelly Construction Services, Inc., 76 OSAHRC 89/F3, 4 BNA OSHC 1491, 1976-77 CCH OSHD para. 20,925 (No. 7102, 1976).

All of the respondent's remaining contentions have been litigated below.   Since the Judge's resolution of these matters is consistent with Commission precedent, the Commission adopts in portions of his decision pertinent to these contentions.

The Judge's decision is affirmed.