Docket No. 83-0132

SECRETARY OF LABOR,

Complainant,

BRATTON CORPORATION,

Respondent.

OSHRC Docket No. 83-0132

DECISION

BEFORE: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.

BY THE COMMISSION:

Administrative Law Judge Paul E. Dixon affirmed the citation issued to Bratton Corporation alleging a serious violation of 29 C.F.R. ї 1926.28(a)[[1/]] for failing to require its employees performing steel erection work to use safety belts and lanyards where they were exposed to fall hazards while welding bar joists. He assessed a penalty of $150. The key issue on review is whether the judge erred in concluding that section 1926.28(a), a general construction industry standard, was applicable and not preempted by the steel erection standard at 29 C.F.R. ї 1926.750(b)(2)(i).[[2/]] Additional issues are whether the judge erred in determining that Bratton had fair notice that section 1926.28(a) applied, and in concluding that Bratton had committed a violation of that standard.

Bratton Corporation is a steel erection contractor with its principal office in Kansas City, Missouri. As a result of an inspection of its worksite in Overland Park, Kansas, the Secretary issued a citation to Bratton alleging a serious violation of section 1926.28(a) in that "[e]mployees were welding bar joists to the roof section without the use of safety belts & lanyards or equivalent fall protection to prevent fall to ground approximately 33' below." The photographic exhibits introduced by the Secretary and admitted at the hearing show Bratton's employees working on perimeter beams at the outside edge of the building. At the hearing, Compliance Officer Robert Lathrop testified that the construction plans that he was shown during the inspection indicated that the employees he observed were exposed to a fall of about 33 feet to the outside of the structure and a fall of approximately 28 feet to the interior.

Harold Oberweather, Bratton's foreman, testified that shortly after the inspection he measured a distance of 28 feet, 7 inches from where one employee was sitting while welding a bar joist to the unfinished grade below. He also testified that, based on the construction plans, the employees were 32 feet above the ground when they worked at the southwest corner of the building.

The judge found that the height at which Bratton's employees were working "ranged from 28 to 33 feet."

I. Whether Section 1926.750(b)(2)(i) Preempts Section 1926.28(a)

Bratton contends that section 1926.28(a) does not apply in this case because it is preempted by the specific steel erection standard at section 1926.750(b) (2) (i). The test to determine which of two or more OSHA standards applies in a particular case is set forth in 29 C.F.R. ї 1910.5(c), which provides:

ї 1910.5 Applicability of standards.

* * *
(c)(1) If a particular standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any different general standard which might otherwise be applicable to the same condition, practice, means, method, operation, or process. . . .
(2) On the other hand, any standard shall apply according to its terms to any employment . . . in any industry, even though particular standards are also prescribed for the industry, as in Subpart B or Subpart R of this part, to the extent that none of such particular standards applies. . . .

The question presented is whether section 1926.750(b)(2)(i) is "specifically applicable" to the cited condition. Bratton contends that the standard is "specifically applicable" because its employees were performing steel erection work at locations that were less than 30 feet above the ground.[[3/]] We disagree with Bratton on this point. Bratton relies on the height at which employees were working as being determinative of the steel erection standard's applicability in this particular case. Its reliance is misplaced. Even if the height were determinative, the judge found that employees were working at heights that ranged up to 33 feet above the ground.

More determinative than the fall distance is the type of fall hazard addressed by section 1926.750(b)(2)(i). Several circuit courts have concluded that the standard addresses only falls to the interior, because the abatement required is temporary flooring, which does not protect against exterior falls. E.g., Brock v. Williams Enterprises of Georgia, Inc., 832 F.2d 567 (11th Cir. 1987); Brock v. L.R. Willson & Sons, 773 F.2d 1377 (D.C. Cir. 1985); Donovan v. Adams Steel Erection, Inc, 766 F.2d 804 (3d Cir. 1985); Donovan v. Daniel Marr & Son Co., 763 F.2d 477 (1st Cir. 1985). However, only exterior falls are at issue here. Even though the Secretary's post-hearing brief and the judge's decision both addressed (but did not distinguish between) exterior and interior fall hazards, the Secretary on review discusses only exterior falls. Applying section 1910.5(c), quoted above, in her brief on review, the Secretary states that she "determined that no standard in Subpart R was 'specifically applicable' to exterior falls from perimeter beams, and therefore [s]he issued a citation for exposing employees to that [hazard] under the general construction safety standard, ї 1926.28(a)." (emphasis added) . The Secretary also asserts on review that the temporary flooring requirement of section 1926.750 (b)(2) (i) "is not specifically applicable to the hazards at issue because, although temporary flooring may protect against interior falls, it obviously provides no protection against exterior falls from perimeter beams."[[4/]] (emphasis added).

Based on the Secretary's clear expression in her brief on review that in this case she is only addressing the exterior fall hazards, we conclude that the Secretary has abandoned any claim that the section 1926.28(a) citation concerns interior falls.[[5/]] Therefore, we vacate the citation insofar as it may allege a violation of section 1926.28(a) with regard to interior falls. See Williams Enterprises of Georgia, Inc., 12 BNA OSHC 2097, 2101, 1986-87 CCH OSHD І 27,692 p. 36,151 (No. 79-4618, 1986), rev'd on other grounds, 832 F.2d 567 (11th Cir. 1987) (Commission concluded Secretary "in effect abandons" section 1926.28(a) citation item, so item vacated).

Because section 1926.750(b)(2)(i) addresses only interior fall hazards, it is not specifically applicable to the exterior fall hazard at issue here and therefore does not preempt section 1926.28(a). Accordingly, we conclude that section 1926.28(a) applies to the exterior falls cited in this case.

We recognize that this conclusion does not comport with current Commission precedent, which holds that steel erection work is governed exclusively by Subpart R. However, we note that where that precedent has been appealed, the circuit courts have unanimously rejected it. See Williams Enterprises of Georgia, Inc., 12 BNA OSHC 2097, 1986-87 CCH OSHD І 27,692 (No. 79-4618, 1986), rev'd, 832 F.2d 567 (11th Cir. 1987); L.R. Willson & Sons, Inc., 11 BNA OSHC 2182, 1984-85 CCH OSHD І 26,978 (No. 80-5866, 1984), rev'd, 773 F.2d 1377 (D.C.Cir. 1985); Daniel Marr & Son Co., 11 BNA OSHC 2088, 1984-85 CCH OSHD І 26,980 (No. 82-612, 1984), rev'd, 763 F.2d 477 (1st Cir. 1985) Adams Steel Erection, Inc, 11 BNA OSHC 2073, 1984-85 CCH OSHD І 26,976 (No. 77-4238, 1984), rev'd, 766 F.2d 804 (3d Cir. 1985).[[6/]]

In the Commission decision in Adams Steel, which announced that steel erection work is governed exclusively by Subpart R, the Commission relied on Daniel International Corporation v. Donovan, 705 F.2d 382 (10th Cir. 1983), and Builders Steel Co. v. Marshall, 622 F.2d 367 (8th Cir. 1980). However, having reconsidered the preemption issue in light of the more recent appellate court decisions set forth above, we now conclude that the court decisions in Daniel International and Builders Steel are inapposite to this case. See Brock v. Williams Enterprises of Georgia, Inc., 832 F.2d at 571 n. 6; Brock v. L.R. Willson & Sons, Inc., 773 F.2d at 1382 n.5; Donovan v. Adams Steel Erection, Inc., 766 F.2d at 809; Donovan v. Daniel Marr & Son Co., 763 F.2d at 483. In Daniel, the issue was whether a power plant under construction was a tiered building within the meaning of section 1926.750. The court concluded that it was, thereby eliminating any need to discuss Daniel's argument that the general construction standards applied (the converse of Bratton's argument here). 705 F.2d at 386. In Builders, at issue were only interior fall hazards, while only exterior falls are at issue here. See Builders Steel Co. v. Marshall, 575 F.2d 663, 665 (8th Cir. 1978) (prior decision in case, noting potential fall to concrete floor).

We agree with the various appellate court decisions cited above that have drawn a distinction between interior and exterior fall hazards and hold that the steel erection standards in Subpart R do not preempt application of the general construction standards to steel erection work "where general standards provide meaningful protection to employees beyond the protection afforded by the steel erection standards . . . ." Williams Enterprises Inc., 11 BNA OSHC 1410, 1416, 1983-84 CCH OSHD І 26,542 p. 33,877 (No. 79-843, 1983), aff'd in pertinent part, 744 F.2d 170 (D.C. Cir. 1984). All Commission decisions to the contrary are overruled in that respect, and we find that section 1926.28(a) applies in this case.

II. Whether Bratton Had Fair Notice

An employer lacking fair notice of a standard cannot be found in violation of the Act for failure to comply with that standard. E.g., Diebold, Inc. v. Marshall, 585 F.2d 1327, 1335-1339 (6th Cir. 1978); Cardinal Industries, 14 BNA OSHC 1008, 1011, 1989 CCH OSHD І 28,510 (No. 82-427, 1989). Cf. Secretary v. East Penn Manufacturing Co., 894 F.2d 640 (3d Cir. 1990), rev'g in pertinent part 13 BNA OSHC 2224, 1989 CCH OSHD І 28,517 (No. 87-537, 1989) (employer's reliance on Commission decision that was being appealed to a circuit court was unreasonable under particular circumstances and should not have been used as basis for vacating citation for lack of fair notice).

Bratton contends that it was denied due process, in that it lacked fair notice that fall protection was necessary for the employees at issue, because the steel erection standard at section 1926.750(b)(2)(i) requires fall protection only at heights exceeding 30 feet. However, as noted above, Bratton's foreman Oberweather testified that, based on the construction plans, the employees were 32 feet above the ground at the southwest corner. Foreman Oberweather in that testimony eliminated the basis for Bratton's argument, because he admitted that the workers were, at some time, over 30 feet above the ground.

Moreover, Bratton had received notice of the applicability of section 1926.28(a) to its type of work (steel erection) through an OSHA citation that the Secretary had issued to it in 1980, alleging one serious violation of 29 C.F.R. її 1926.28(a) and 1926.105(a) [[7/]] Bratton did not contest that citation, which charged that two of its employees working on an I-beam on the roof of a building "were not protected against falls of more than 25 feet by the use of safety nets, ladders, scaffolds, catch platforms, temporary floors, safety lines, safety belts, or other appropriate personal protective equipment." (emphasis added).

As another basis for its lack of fair notice argument, Bratton notes the long-standing confusion among Commission members, judges, and compliance officers, as to whether the steel erection standards preempt a general construction standard. At the time of the inspection of the Bratton worksite, Commission precedent concerning this issue consisted of one decision in which the Commission's only two members disagreed, resulting in affirmance of the judge's decision below that section 1926.28(a) was applicable to steel erection work and was not preempted by Subpart R. Bristol Steel & Iron Works, Inc., 5 BNA OSHC 1940, 1977-78 CCH OSHD І 22,240 (No. 14537, 1977) , rev'd on other grounds, 601 F.2d 717 (4th Cir. 1979).

While Commission precedent may have been less than clear, by the time of the inspection at least two circuit courts had plainly held that section 1926.28(a) was not preempted by the steel erection standards where the steel erection standards provided no protection. See L.R. Willson & Sons, Inc. v. Donovan, 698 F.2d 507 (D.C. Cir. 1983) (issued less than a month before inspection of Bratton's worksite); L.R. Willson & Sons, Inc. v. Donovan, 685 F.2d 664 (D.C. Cir. 1982); Bristol Steel & Iron Works, Inc. v. Marshall, 601 F.2d 717 (4th Cir. 1979). Those decisions provided notice to employers that section 1926.28(a) could apply to steel erection work.

Based on the factors discussed above, we conclude that Bratton had fair notice that section 1926.28(a) applied to the cited condition. Therefore, Bratton was not denied due process.

III. Whether Bratton Violated the Standard

To prove a violation of section 1926.28(a) the Secretary must establish that: (1) employees were exposed to a hazardous condition warranting the use of personal protective equipment; (2) some other section of Part 1926 indicates a need for the use of the particular protective equipment in the circumstances presented; and (3) the employer failed to require the use of the equipment. L.E. Myers Company, 12 BNA OSHC 1609, 1614, 1986-87 CCH OSHD І 27,476 at p. 35,604 (No. 82-1137, 1986), rev'd on other grounds, 818 F.2d 1270 (6th Cir. 1987) [[8/]] The Secretary also must prove that it was feasible for Bratton's employees to use safety belts and lanyards. See Granite City Terminals Corporation, 12 BNA OSHC 1741, 1746 & n. 11, 1986-87 CCH OSHD І 27,547 at pp. 35,774-75 & n.11 (No. 83-882-S, 1986). Here, the judge concluded that the use of safety belts was feasible, and Bratton does not challenge that conclusion on review.

To establish the first element the Secretary must prove that a reasonable person familiar with the circumstances surrounding the allegedly hazardous condition, including any facts unique to a particular industry, would recognize a hazard warranting the use of personal protective equipment. E.g., Williams Enterprises, Inc. 11 BNA OSHC 1410, 1416, 1983-84 CCH OSHD І 26,542 (No. 79-843, 1983), aff'd on other grounds, 744 F.2d 170 (D.C. Cir. 1984); Daniel Construction Co., 10 BNA OSHC 1549, 1550, 1982 CCH OSHD І 26,027 p. 32,671 (No. 16265, 1982); Bethlehem Steel Corporation, 10 BNA OSHC 1264, 1266, 1982 CCH OSHD І 25,839 p. 32,324 (No. 16067, 1981); S & H Riggers and Erectors, Inc., 7 BNA OSHC 1260, 1263, 1979 CCH OSHD І 23,480 p. 28,436 (No. 15855, 1979), rev'd, 659 F.2d 1273 (5th Cir. 1981).

Citing S & H Riggers and Erectors, Inc. , 659 F.2d 1273 (5th Cir. 1981), Bratton argues that section 1926.28(a) is vague as applied and that to cure this vagueness the Secretary must prove that industry custom or practice required the use of safety belts under the circumstances cited in this case. However, no federal circuit court other than the Fifth Circuit has found evidence of industry custom to be dispositive. Rather, the vast majority of the circuit courts have concluded that the same test applied by the Commission in the decisions cited above--what a reasonable person familiar with the circumstances surrounding the cited condition and with industry practice would have done--is sufficient to meet the requirements of due process. E.g., Spancrete Northeast, Inc. v. OSHRC, 905 F.2d 589, 593 (2d Cir. 1990); Voegele Company, Inc. v. OSHRC, 625 F.2d 1075, 1078 (3d Cir. 1980); Ray Evers Welding Company v. OSHRC, 625 F.2d 726, 731-32 (6th Cir. 1980); Bristol Steel & Iron Works, Inc. v. OSHRC, 601 F.2d 717, 722-23 (4th Cir. 1979).

Moreover, at least one circuit court has concluded that a fall distance considerably less than the one here presented an obvious fall hazard, which made it unnecessary for the Secretary to establish that the hazard was recognized by the industry. Austin Building Co. v. OSHRC, 647 F.2d 1063, 1067 (10th Cir. 1981) (welder approximately 19 feet above ground balancing with his feet on railings); see also Jensen Construction Company of Oklahoma, Inc. v. OSHRC, 597 F.2d 246, 249 (10th Cir. 1979) (standard not vague when applied to employees astride structural beams 17 to 23 feet above expressway).

The evidence is undisputed that, when observed by Compliance Officer Lathrop; the employees working on the perimeter beams were not tied off, and they were sitting bent over and wearing welding hoods while exposed to a fall of up to 33 feet to the outside. According to Compliance Officer John Wiseman, who gave opinion testimony based on his many years of experience in ironworking and construction safety, the sitting employees welding bar joists could have slipped and fallen as a result of pulling on a wrench or by having only limited vision through their welding masks. He also testified that he had seen "lots" of ironworkers tied off to steel beams while they were welding.

We conclude that, based on the evidence establishing the conditions at Bratton's worksite, the opinion testimony elicited by the Secretary, and the obviousness of the hazard, a reasonable person familiar with the cited conditions would have recognized a hazard warranting the use of safety belts. Therefore, we conclude that the Secretary demonstrated that Bratton's employees were exposed to a hazardous condition that warranted the use of safety belts.

With regard to the second element of proof, whether some other section of Part 1926 "indicates a need" for the use of the particular protective equipment, we note that the Commission has concluded that 29 C.F.R. ї 1926.105(a) "indicates a need" for safety belts where the worksite is more than 25 feet above the ground. See L.E. Myers Co., 12 BNA OSHC at 1614, 1986-87 CCH OSHD at p. 35,605. Bratton contends that the judge was incorrect in concluding that the fall distance "ranged from 28 to 33 feet" because foreman Oberweather's measurement of 28 feet, 7 inches was the most reliable evidence on that point. That argument ignores the fact that so long as the fall distance exceeds 25 feet, the exact measurement is irrelevant. As even the shortest outside fall distance in the record--foreman Oberweather's measurement of 28 feet, 7 inches--exceeded 25 feet, the second element of a section 1926.28(a) violation has been proven. Cf. Central Wisconsin Steel Building Erectors, 13 BNA OSHC 1119, 1986-87 CCH OSHD І 27,827 (No. 84-119, 1987) (maximum fall distance was only 21 feet, so Secretary was not proven violation of section 1926.28(a)).

Concerning the third element of proof, whether the employer failed to require the use of the equipment, the evidence establishes that Bratton did not require its employees to use safety belts and lanyards when working at heights above 25 feet. Bratton's foreman Oberweather testified that, on the day of the inspection, Bratton's employees working more than 25 feet above the ground wore safety belts, but they were not tied off. Neither Oberweather nor Don Wilson, Bratton's field superintendent, indicated that this failure to tie off was contrary to any Bratton workrule. Oberweather and Wilson testified that they left it to the discretion of Bratton's employees to decide when to tie off their safety belts. In their opinion, it was necessary to tie off only in the presence of a hazard like a forceful wind or a nearby crane that could swing and hit workers.[[9/]]

Based on the evidence discussed above, we conclude that the Secretary has proven a violation of section 1926.28(a), and Bratton has failed to establish any defense to such violation.

IV. Seriousness and Penalty

It is obvious that an employee falling a distance of 25 feet or more could suffer serious bodily harm. Therefore, based on the record in this case, we find the violation to be serious under section 17(k) of the Act, 29 U.S.C. ї 666(k).

Giving consideration to the appropriateness of the penalty, in accordance with section 17(j), of the Act, 29 U.S.C. ї 666(j), we take particular note of Bratton's good faith efforts to immediately abate the hazardous condition in this case. We conclude that a penalty of $150 is appropriate and assess that amount.

V. Order

We hereby affirm the decision of the judge and conclude that Bratton committed a serious violation of section 1926.28(a), for which we assess a penalty of $150.

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

Dated: November 21, 1990

SECRETARY OF LABOR,

Complainant

BRATTON CORPORATION,

Respondent

OSHRC DOCKET 83-0132

APPEARING ON BEHALF OF COMPLAINANT:

MALINDA B. SCHOEB, ESQ., U.S. Department of Labor, Office of the Solicitor

APPEARING ON BEHALF OF RESPONDENT:
CHARLES A. RILEY, Vice President/General Superintendent, The Bratton Corporation, pro se,
Hearing held November 15, 1983, Judge Paul E. Dixon presiding.

STATEMENT OF THE CASE

This is an action arising under the provisions of section 10(c) of the Occupational Safety and Health Act of 1970, 84 stat., 1950, et seq. (29 USC 651 et seq.) (hereinafter referred to as the Act), wherein respondent was charged with serious violation of a standard promulgated under the Act, along with a proposed penalty of $150. Respondent duly filed its notice of contest, and after the complaint and answer the cause came on for hearing.

The respondent, by citation issued February 17, 1983, was charged with serious violation of the standard at 29 CFR 1926.28(a) and assessed a proposed penalty of $150.

The Citation

Citation 1 for Serious Violation
Item 1

"29 CFR 1926.28(a): Appropriate personal protective equipment was not worn by employee(s) in all operations where there was exposure to hazardous conditions:

(a) Employees were welding bar joists to the roof section without the use of safety belts and lanyards or equivalent fall protection to prevent fall to ground approximately 33' below."

The Standard

"ї1926.28 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."

THE EVIDENCE

On February 10, 1983, compliance officer Robert Lathrop observed persons atop a roof section, both walking and sitting and welding, who did not appear to be wearing fall protection.

Upon entering the worksite he spoke to the superintendent, who advised that the persons were employees of respondent Bratton and another contractor. Respondent's representative Oberweather was summoned and accompanied Lathrop on his inspection.

Lathrop observed respondent's employees welding bar joists on the west wall. Construction was at the beginning stage of skeletal steel erection. The building was to be a two-story office building. Employees were working the roof section.

Lathrop did not recall observing any flooring or platforms being in, noting that the inside area was gravel, the outside area snow and mud.
Lathrop obtained the names of two of the employees involved, Bob Miller and Joseph Welch.

The employees had come down during the opening conference.

By the time Lathrop spoke to the employees they had belts with lanyards on. Lathrop was advised by Oberweather that respondent had belts and lanyards in its trailers.

It was Lathrop's impression that the employees had donned belts and lanyards and started back up to the roof when he left the jobsite to inspect another contractor.

Before leaving the area Lathrop observed that the employees had tied off and were sitting.

In his discussions, he was advised that it took three to five minutes to complete it weld and then move to the next bar joist.

Lathrop took Complainant's Exhibit C-3, which he identified as a photograph representing Bratton employees, with one walking and one sitting.

Lathrop identified Complainant's Exhibit C-4 as being respondent's employees and Exhibit C-5 demonstrating respondent's employees welding bar joists.

Lathrop identified an employee as sitting on the west beam. Lathrop determined from the construction plans that if one of the employees would fall he would fall 28 feet to the inside and 33 feet to the outside of the structure.

In assessing the situation, Lathrop took into account the weather, in that in walking to and from the supply trailer the employees walked in mud, which in turn would be tracked to the beam making for a slippery condition.

He also noticed some snow on the ground, both muddy ground and melting snow, and it was Lathrop's opinion that the beams would present a slipping hazard from the employees tracking material to the beam.

Lathrop was of the opinion that a fall from the distances involved would be productive of internal injuries, fractures or death. It was Lathrop's impression that respondent had approximately 21 employees, with five working at the jobsite.

Lathrop noted that respondent had been cited in 1980 for violation of 29 CFR 1926.28(a).

In discussing the standard, Lathrop conceded that the standard does not have a height requirement, and that his regional offices use a 26-foot height based on the international manual.

At a later date, Lathrop went to the roof of the building after it was completed and measured from the second floor to verify the height involved.

Lathrop testified that he did not cite the respondent for its employees walking to their work position, but rather cited the respondent for its employees sitting and working bent over with welding hoods without protection for periods of three to five minutes.

It was Lathrop's testimony that if the employees had been tied off to the beam respondent would not have been cited, or if respondent had used catch platforms or worked off of elevator work platforms with cages, it would not have been cited.

Lathrop did not, at the time of the inspection, inspect the roof level for mud or snow, but based his judgment of the hazard of tracking debris to the beams upon his observation of the employees walking to the supply shed with mud and rocks on their shoes; and the further observation of seeing no employee change shoes before going up to the iron.

Complainant called senior compliance officer John R. Wiseman, a card holding journeyman ironworker since 1950, with broad experience in construction safety who has been employed as an apprenticed and journeyman ironworker foreman, taught construction in the Army, worked as a safety inspector for the District of Columbia, taught safety courses at community colleges to construction people, and who was taught as an ironworker in the use of personal protective equipment like safety belts and Ianyards for fall protection.

Wiseman has lectured the International Association of Ironworkers, along with the International Association of Bridge, Structural and Ornamental Workers.

Based upon his broad experience, training and work activities, compliance officer Wiseman rendered actual and opinion testimony pertaining to fall protection.

It was his opinion that an employee bolting or welding at a station or stationary or sitting could pull on a wrench, slip and fall; or a simple body malfunction, such as a heart attack, could percipitate a fall, along with wearing a welding mask where the employee is blind to what is around him.

Wiseman described welding bar joists as a standard technique. Both sides of the joists are welded, unless the architect requires extra large weld across the front. The normal weld is 1 1/2 to 2 inches and takes around two minutes or longer to accomplish. Wiseman was advised by the respondent that both sides of the bar joists were welded.

He described bar joist welding as an employee at a given station welding as many bar joists as he can reach, which may be up to as many as four bar joists.

He further described the operation as the employee having to get to his work station, pulling a welding lead, and it was his opinion that if there were any fall distances involved the employee should be tied off. Wiseman measured the finished building elevation and determined a fall distance of 31 feet, 2 inches.

Wiseman was of the opinion that the employees sitting and welding bar joists were exposed to the hazard of falling to the ground, and of the further opinion that the employees should have been protected by being tied off while welding where the employee has to travel from point to point. If there is no flooring protection, the employee should be protected by stringing a static line, and if no line is strung the employee should tie off to the beam.

Wiseman has investigated falls from 28 to 33 feet, noting that one investigation of a 10-foot fall resulted in a fatality; the other falls injuries, broken arms, legs and necks. It was Wiseman's opinion that any distance from 10 feet or greater the employees should be tied off, and further that the use of a belt and lanyard would not prevent the work from being done.

Wiseman's description of the use of the belt and lanyard on welding bar joists would be to sit on the beam, reach to the bolt bag, obtain the lanyard, flip it around the beam, attach the lanyard to the belt so it would hold the employee from falling.

It was Wiseman's opinion that neither 29 CFR 1926.750 nor 1926.28 anticipate that an ironworker should be allowed to fall 30 feet.

Harold Oberweather, an ironworker since 1969 and respondent's work foreman at the jobsite, testified on behalf of respondent.

It was his testimony that all the employees were wearing safety belts and lanyards, in that it is the respondent's policy for the employees working the iron to wear belts.

He further testified that there is no mud or snow on the iron where the employees were working, in that the iron was cleaned before it went up.

Oberweather would not send a man up if there was ice or mud on the iron.

Oberweather has been inspected on other jobs where the work activities involved welding bar joists, and where the employees were not tied off 12 to 15 feet above ground, and has never been cited.

It was his testimony that it takes longer to tie off than to weld a bar joist.

It was Oberweather's observation that welding a bar joist takes less than 45 seconds. Oberweather measured where the employee was sitting on the day of the inspection from the iron to the ground and came up with the measurement of 28 feet, 7 inches.

The practice of looping the lanyard around the beam was criticized by Oberweather, in that the employee has to reach under to exchange the hook, or if he swings the lanyard beneath the beam the hook could hit the employee in the head. In Oberweather's opinion, such a practice is a greater hazard than tying off to the beam. Oberweather did the walkaround with the compliance officer, and was told by the compliance officer that he was being cited for the lanyard not being in use or attached to the beam.

Oberweather described the lanyard as being an integral part of the safety belt.

Oberweather had been on the beam that day. He observed that respondent had planks and gravel leading from the worksite to the supply shack.

Oberweather did not caution the men not to walk the beam with muddy feet. Oberweather could only imagine that the outside ground was muddy; however, he testified that respondent had 10 inches of gravel on the jobsite.

Oberweather computed the height of the beam to the ground for the compliance officer from the job plans. Without measuring, he came up with the height of 32 feet at the southwest corner and 6 feet less, or 26 feet, at the inside elevation.

The employees were working on an 18-inch deep beam.

In his training as an apprentice, Oberweather took safety courses. He testified that he was taught to take all safety measures and use then at his own discretion if he felt uncomfortable.

Oberweather would tie off if told to while he was either stationary or welding; however, he would not tie off welding bar joists even if 30 stories in the air.

Oberweather was in some disagreement with compliance officer Lathrop, in that he testified they had seven men working at the jobsite, with two on the iron welding joist, with the rest of the men laying deck. It was his recollection that the first floor was about 75 percent decked. Oberweather conceded that there were possible areas beneath the welding operations which were not decked. It was his opinion that the utilization of safety belts and lanyards would have doubled the welding time, but he further conceded that it would not have prevented the welding.

Don Wilson, respondent's field superintendent, with 22 years as an iron-worker, testified on behalf of respondent.

He has been in charge of jobs which were OSHA inspected, and where no citations were issued for men sitting welding bar joists to heights 30 feet above the ground.

As part of Wilson's job duties, he is responsible for field safety. He described respondent's safety efforts as scheduling safety meetings, giving out safety pamphlets along with Monday jobsite meetings. Wilson also screens all erection procedures, cranes, riggings and stairways.

Wilson has welded bar joists, and it was his estimation that it takes a minute and-a-half to two minutes to weld a bar joist. Further, that it would be more of a hazard to be tied off, as it is difficult to tie off on a 36-inch deep beam.

He described the beams at respondent's jobsites as 18-inch beams, with the men sitting on a 7-inch flange with their feet on the bottom flange. It was his opinion that it would be difficult to reach down 18 inches or forward or to the side to get a hold on a line.

Wilson testified that the respondent averages 20 to 25 field employees, with eight field crews from two men to 20 men on a particular job.

Wilson was of the opinion that at the jobsite the bar joists could not have been welded in one day. A crew usually aligns the bar joists before the welders arrive to weld. If the bar joists are out of line, the welder can nudge the bar joist with either a spud wrench or with his knees at the work station.

Wilson testified that it was common practice for respondent's employees to wear structural belts with lanyards. The employee usually buys his own belt with respondent providing additional belts on the job.

It was Wilson's position that the decision as to tying off should be left to the employees' discretion; as for example, where there is involved a swinging scaffold, but not welding bar joists while sitting wearing welding hoods.

DISCUSSION

The issue involved in this case is whether or not respondent should be found in violation of 29 CFR 1926.28(a) for having its employees involved in welding bar joists at heights of 28 feet, 7 inches, to 33 feet without requiring the use of appropriate personal protective equipment; namely, safety belt and lanyard.

The principal factual and evidentiary input was supplied by respondent's foreman Oberweather and that of complainant's expert witness Wiseman; both men with long experience in the steel erection process.

There was no substantial dispute that two of respondent's employees were walking to their job positions, positioning and sitting and welding bar joists at heights ranging from 28 feet to 30 feet. There is some evidentiary dispute as to whether or not the employees actually were wearing safety belts, but giving the benefit of doubt to respondent that the employees were so equipped they were not tied off in the performance of their duties.

The surrounding circumstances of the operation consisted of the observation of compliance officer Lathrop that the employees were walking through mud and rock, ascending a ladder and then on to the beam to their work position, which was not clearly refuted by the respondent except for the testimony of its foreman that the beams were washed on the ground before placement and his testimony that he had been upon the beam during the process of erection; but no direct testimony as to his observation of the condition of the beam.

The testimony of compliance officer Wiseman was that in order to perform the work it was necessary for the employees to drag a welding lead to the work position, and while straddling the beam employ the use of a welding hood, noting the opinion of compliance officer Lathrop that the hood obliterated surrounding events from the employee's view, along with the further circumstance of the employee having to nudge a joist into position with his knees should it be off mark and reaching to weld as many bar joists as possible from his one position before moving to his next work position. Further, the testimony of Wiseman that an employee, in utilizing his wrench in lining up a joist could slip and fall.

The suggested abatement methods were that of tying off to the beam by reaching or swinging the lanyard around the beam, which was some 18 inches deep, or attaching a static line for attachment of the lanyard by the employee as he performs his job operations.

There was little at issue in the testimony concerning the results of a fall precipitating serious bodily injury or death by either party.

While much dichotomy is made between the expert witnesses as to the period of time it took to constitute a weld from 45 seconds to two to three to five minutes, it is felt that actually this issue is irrelevant.

It is readily apparent that respondent's employees were exposed to a hazardous condition which could result in serious bodily harm or death should they fall.

Further, respondent had by concession at trial and by prior citation, full knowledge of the requirements of the standard.

In measuring the credibility of the witnesses, account is taken of the testimony of respondent's foreman Oberweather, who in his apprentice training as a steelworker took a variety of safety courses, and whose principal justification for not tying off was that it "takes longer" to tie off than not in welding a bar joist, and that looping a lanyard around a beam could result in the hook hitting the employee in the head, although as an experienced ironworker he had never had this problem, and that despite his concern for the safety of his men at the job in question, he, Oberweather, would not tie off even if welding bar joists "30 stories in the air". This testimony, in contrast of that of witness Wiseman, who in his entire career has been concerned with steel safety, is found to be less credible, and the testimony of witness Wiseman is given the greater weight in the evaluation of the various factual and opinion assessments made by the witnesses.

It is felt that the core of the matter was succinctly stated by compliance officer Wiseman in his testimony under cross-examination, wherein he stated that neither standard 29 CFR 1926.750 nor 1926.28(a) anticipated that an ironworker should be allowed to fall 30 feet.

It is specifically found that the employees were exposed to hazardous conditions and were not provided or required to wear appropriate personal protective equipment, and that the need for using such equipment was known to respondent.

Respondent makes various legal arguments which also fail. Respondent argues that the standard is vague, in that it does not give a specific height requirement for the utilization of personal protective equipment.

The Review Commission has held that the language of the standard gives a respondent reasonable notice that the use of personal protective equipment was required whenever employees are exposed to a hazard. Secretary v. Carpenter Rigging & Contracting Corp., Docket 1399, 75 OSHRC 32/D13, 15 OSAHRC 400, 2 BNA OSHC 1544, CCH OSHD І16,429, 19,252 (21 feet above ground level); and holdings following the amendment of the standard, Jensen Construction of Oklahoma, Inc. v. OSHRC, Docket 12940, 77 OSHRC 118/B14, 77 OSHRC 180/B1, 5 BNA OSHC 1781, 1906, CCH OSHD І 20,569, 22,215, 597 F.2d 246 (10th Cir., 1979) (17 to 23 feet above a traveled expressway).

Respondent's job operations took place in Overland Park, Kansas, the site being within the jurisdiction of the U.S. 10th Circuit Court of Appeals, which is therefore the controlling circuit for this Kansas employer. Hillhouse v. Harris, Docket 82-2148,____ OSHRC____, slip opinion, 8th Cir., August 31, 1983, and cases cited therein.

Respondent's allegation of vagueness argues critically of assessments made by compliance officer Lathrop that a 26-foot fall would be productive of bodily injury and therefore hazardous, and compliance officer Wiseman's assessment of a 10-foot fall being productive of bodily injury and therefore a hazard. However, it does not address his job foreman's assessment that he would not tie off at the 30-story level while welding bar joists.

It was specifically found that the testimony of both the compliance officers was entirely credible, in that compliance officer Lathrop explained his assessment as being based on the enforcement policy of his office establishing an enforcement height of over 26 feet, and compliance officer Wiseman's rationale based upon his many many years in steel safety and investigations of fatalities occurring at the 10-foot level.

As stated, the 10th circuit has followed the precedent and has held in cases involving fall protection for ironworkers that section 1926.28(a) is not impermissibly vague and requires fall protection when a reasonable person familiar with the circumstances would recognize a hazard requiring protective equipment. Austin Building Co. v. OSHRC & Secretary, Docket 78-11, 79 OSHRC 3/D3, CCH OSHD І 23,289, 647 F.2d 1063 (10th Cir., 1981); Jensen Construction Co. of Oklahoma, Inc. v. OSHRC, supra.

Respondent also argues strenuously that section 1926.28(a) is preempted by the skeletal steel standards contained in 29 CFR 1926.750(b)(2)(i), citing Builders Steel Co. v. Secretary & OSHRC, Docket 77-1589, __OSHRC_, CCH OSHD І 22,739, 24,487, concerning the applicability of 29 CFR 1926.105 v. 1926.750(b)(2)(i).

This argument has been previously considered and rejected.

It has been specifically found that 29 CFR 1926.28(a) complimented the subpart (r)'s specific standards dealing with steel erection. Bristol Steel & Iron Works, Inc. v. OSHRC and Secretary, Docket 14537, 77 OSHRC 181/D6, 79 OSHRC 105/A2, 80 OSHRC 108/F7, 5 BNA OSHC 1940, CCH OSHD І 20,437, 22,240, 24,097, 601 F.2d 717 (4th Cir., 1979)

It is specifically found that the complainant has met the "reasonable person test" laid down by the Commission in S & H Riggers & Erectors, Inc. v. OSHRC & Secretary, Docket 15855, 79 OSHRC 23/A2, 7 BNA 1260, CCH OSHD І 21,261, 23,480, reversed 659 F.2d 1273 (5th Cir., 1981). The Commission held that in order to establish a 1926.28(a) violation, the complainant must prove among other things that:

"...a reasonable person familiar with the factual circumstances surrounding the allegedly hazardous condition, including any facts unique to a particular industry would recognize a hazard warranting the use of personal protective equipment."

In reversing the Commission in S & H Riggers & Erectors, Inc. v. OSHRC & Secretary, supra., the 5th Circuit said:

"...in order to sustain a citation under this regulation, the Secretary bears the burden of proving either that the employer failed to provide personal protective equipment to its employees under circumstances in which it is the general practice in the industry to do so or that the employer had clear actual knowledge that personal protective equipment was necessary under the circumstances." [659 F.2d 1285]

The Commission, in S & H Riggers & Erectors, Inc. v. OSHRC Secretary, supra., did not limit its rationale strictly to industrial custom and practice, but to the contrary stated that industry, custom and practice is not controlling because of the failure of industry to deal adequately with abatable hazards would not excuse the employer's failure to exercise that degree of care which the law requires. Secretary v. Daniel Construction Co., Docket 16265, 82 OSHRC 23/A2, 10 BNA OSHC 1549, CCH OSHD І 21,327, 26,027.

Respondent also suggests a greater hazard defense, in that the testimony of its supervisory employees was to the effect that the wrapping of a lanyard around a beam would involve greater hazard in reaching over or being struck by the clip at the end of the lanyard, while at the same time the same witness gave testimony essentially to the fact that that was the method used by them in tying off to a beam. No great weight is given to this testimony. To the contrary, a simple abatement procedure was suggested by the compliance officers; namely, tying off to the beam or the erection of a static line for attachment of the lanyards.

The greater hazard defense is narrowly construed and the burden of proof lies with the employer. Greyhound Lines-West & Greyhound Lines, Inc v. Secretary & OSHRC, Docket 3120, 76 OSHRC 59/B2, 4 BNA OSHC 1266, 6 BNA OSHC 1336, CCH OSHD І 18,109, 20,736, 22,814, 575 F.2d 759, 762 (9th Cir., 1978). The Review Commission has placed a three-fold burden on employers seeking to invoke this affirmative defense; namely, the employer must demonstrate, 1) that the hazards of compliance are greater than the hazard of noncompliance; 2) that alternative means of protecting employees are unavailable; and, 3) the unavailability or any inappropriateness in obtaining a variance. Noblecraft Industries, Inc., et al v. Secretary, OSHRC, 614 F.2d 199 (9th Cir., 1980) The respondent proffered no evidence of any attempt to seek a variance.

In light of the evidence, it is specifically found that respondent has failed to establish a greater hazard defense.

The complainant, having established feasibility in specific measures to abate the fall hazard, and having established respondent's failure to comply with the stated regulation, and respondent's knowledge of the requirements of the regulation, has sustained his burden of proof in establishing a violation of 29 CFR 1926.28(a), and further that it was a serious violation in that serious bodily harm or death would be sustained by an employee in the event of a fall.

FINDINGS OF FACT

Based upon the foregoing and the preponderance of the credible evidence, the following findings of fact are made:

1. Respondent, Bratton Corporation, Inc., is a corporation with its principal office and place of business at 2815 E. 85th Street, Kansas City, Missouri, and at the time of the issuance of the citation maintained a workplace at 7900 College, Overland Park, Kansas, where it was performing structural steel erection.

2. Respondent employs at least 22 employees in its various activities, including at least eight at its worksite, with two of the employees performing work activities atop the second floor level.

3. Respondent utilizes goods, equipment and materials shipped from outside the State of Kansas and is engaged in a business affecting commerce, and is an employer within the meaning of the Act.

4. Respondent was inspected by a compliance officer for OSHA on February 10, 1983, at which time the compliance officer observed and photographed two employees atop a beam of a two-story office building under construction performing work activities without an attached safety belt.

5. The height of the beam upon which the employees were working ranged from 28 to 33 feet, and while partial decking had been established there were areas over which the employees worked which were not decked.

6. The employees were engaged in work activities consisting of the alignment and welding of both sides of bar joists attached to the beam.

7. At ground level, the interior of the structure was covered with a gravel bed, and to the exterior of the structure was snow and mud and gravel. The employees were at each position welding bar joists from three to five minutes.

8. In the performance of their duties in welding bar joists, it was necessary for the employee to pull a welding cable to position himself and at times to nudge the bar joist into position, lower a welding hood about his face and perform two or more welds, depending on the number of bar joists within his reach.

9. It was necessary for the employee to sit on an 18-inch beam, and if necessary to adjust a bar joist would do so with a spud wrench or a nudging of his knee, and then make a 1 1/2-inch weld on both sides to the beam.

10. At the time of the observation by the compliance officer, the employee was not tied off while performing his work activities.

11. The employees could have protected themselves from falling by tying off to the beam upon which they were performing their duties in welding the bar joist, and at one point in time during the course of the inspection did in fact tie off.

12. The employees did not use fall protection while they walked the beam from one point to another, when they could have been protected at all times by the installation of static lines to which they could have attached their lanyard.

13. A fall hazard existed on the date of the inspection.

14. The employees welding bar joist on the steel beams of the roof section under construction without the use of fall protection were exposed to such hazard, in that had they fallen they would have fallen from a height of 28 to 32 feet, which would have resulted in serious physical injury or death.

15. The respondent, through its representative, foreman Harold Oberweather, had knowledge of the respondent's employees not being tied off while welding bar joists and not having the use of any fall protection.

16. The respondent had knowledge of the requirements of the standard, having been cited previously in 1980 for failing to utilize fall protection.

17. The gravity of the violations, the good faith, the size and previous history of inspections by OSHA, were considered in arriving at the proposed penalty of $150.

18. The penalty is appropriate for the nature of the violation.

CONCLUSIONS OF LAW

1. Respondent is and at all times material hereto was an employer within the meaning of section 3 of the Occupational Safety and Health Act of 1970.

2. Jurisdiction of this action is conferred upon the Occupational Safety and Health Review Commission by section 10(c) of the Act.

3. Respondent violated section 5(a)(2) of the Act by failing to comply with the occupational safety and health standard promulgated under the Act as alleged in the amended complaint, in that respondent failed to require the use of personal protective equipment as required by 29 CFR 1926.28(a).

4. The use of safety belts and lanyards by respondent's employees while welding bar joist would not present a greater hazard to respondent's employees.

5. Compliance with 29 CFR 1926.28(a) through the use of safety belts and lanyards while welding bar joist was possible.

6. There is substantial probability that death or serious physical harm would occur as a result of respondent's violation of 29 CFR 1926.28(a).

7. Respondent had knowledge of the existence of said conditions giving rise to the issuance of the citation.

8. The proposed penalty of $150 for this violation is appropriate within the meaning of section 17(j) of the Act.

DECISION AND ORDER

Based on the above findings of fact and conclusions of law, it is hereby ordered that the citation for serious violation of 29 CFR 1926.28(a) and the proposed penalty in the amount of $150 are affirmed.

Paul E. Dixon,
Judge, OSHRC

DATE:March 7, 1984

FOOTNOTES:

[[1/]] The standard provides:
Subpart C--General Safety and Health Provisions
* * *
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.

[[2/]] That subsection reads in part:
Subpart R--Steel Erection
ї 1926.750 Flooring requirements.
* * *
(b) Temporary flooring--skeleton steel construction in tiered buildings.
* * *
(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 . . . Where such a floor is not practicable, paragraph (b)(1)(ii) [requiring safety nets where structure not adaptable to temporary floors and scaffolds not used] of this section applies.

[[3/]] Bratton takes issue with the judge's finding that the fall distance was 28 to 33 feet. However, Bratton's foreman Oberweather testified that when he looked at the plans with the compliance officer to determine the fall distance, he concluded that the employees were working at a height of 32 feet above the ground at the outside of the southwest corner of the building. Oberweather stated that the plans showed the finished grade, but he did not discuss what, if any, difference there was between the finished grade and the grade at the time of the inspection.

[[4/]] The Secretary also explained that no other standard in Subpart R addresses exterior fall hazards from perimeter beams.

[[5/]] Because the issue is not before us, we express no view on the question of whether section 1926.28(a) may apply where employees are exposed to interior falls during steel erection work.

[[6/]] Those circuit court decisions are in accord with earlier circuit court decisions that rejected arguments that Subpart R preempts section 1926.28(a). See L.R. Willson & Sons. Inc. v. OSHRC, 698 F.2d 507 (D.C. Cir. 1983)(appeal of unreviewed judge's decision); Bristol Steel & Iron Works, Inc, v. OSHRC, 601 F.2d 717 (4th Cir. 1979)(appeal of one-one split Commission decision).

[[7/]] Section 1926.105(a) provides:
Safety 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.

[[8/]] In its brief on review, filed prior to the Commission's decision in L.E. Myers Company, Bratton argues that to prove a violation of section 1926.28(a), the Secretary must show that some other section of Part 1926 indicates a need for the use of the specific protective equipment. As noted above, such a showing is required in the second element of proof set forth in the Commission's decision in L.E. Myers Company.

[[9/]] Bratton takes exception to the judge's attribution of certain testimony to foreman Oberweather that was actually the testimony of field superintendent Wilson. The judge's misstatement in this matter does not affect our decision in this case. First of all, the testimony is not essential to the case. Secondly, the judge, in his decision, correctly attributed other testimony to Oberweather that he used to evaluate the foreman's credibility.