Docket No. 84-0119

SECRETARY OF LABOR,
Complainant,

CENTRAL WISCONSIN STEEL BUILDING
ERECTORS, INC.,
Respondent.

OSHRC Docket No. 84-0119

DECISION

Before: BUCKLEY, Chairman; WALL, Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. ї 661(j), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. її 651-678 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration. It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. ї 659(c).

Employees of Central Wisconsin were installing insulation and metal decking to form the roof of a single-story structural metal building. The roof was sloped 1 to 12, so that its height varied from 16 to 21 feet. Administrative Law Judge Ramon M. Child found Central Wisconsin in violation of 29 C.F.R. ї 1926.28(a) because its employees were not provided with and were not using safety belts and lifelines to protect against the hazard of a fall. We reverse the judge's decision.

When originally promulgated, 29 C.F.R. ї 1926.28(a) provided as follows:

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 and where this part indicates the need for using such equipment to reduce the hazards to the employees. [Emphasis added.]

The standard was thereafter amended without notice and comment to change the conjunctive "and" to the disjunctive "or" 37 Fed. Reg. 27510 (1972). After Judge Child issued his decision, the Commission ruled that the amendment was not properly promulgated and that the original wording of the standard remained in effect. L.E. Myers Co., 86 OSAHRC _____, 12 BNA OSHC 1609, 1986 CCH OSHD І 27,476 (No. 82-1137, 1986), petition for review filed, No. 86-3215 (6th Cir. Mar. 14, 1986). Accordingly, to prove a violation of section 1926.28(a), the Secretary must establish both that employees were exposed to a hazard and that some other provision of the Secretary's construction standards refers to a particular type of personal protective equipment as a practical and appropriate means of protection against that hazard. 12 BNA OSHC at 1612, 1614, 1986 CCH OSHD at pp. 35,602-03, 35,604-05.

Although other standards relating specifically to the hazard of falling include safety belts as a form of fall protection, these standards do not indicate a need for fall protection under the conditions existing at Central Wisconsin's worksite. The fall protection standard set forth at 29 C.F.R. ї 1926.105(a),[[1]] on which the Commission relied in L.E. Myers, speaks of safety belts but applies only to fall distances greater than 25 feet. The maximum fall distance here was only 21 feet. Section 1926.500(g) mentions the use of safety belts on low-pitched roofs, such as that at issue here,[[2]] but it applies only to "built-up roofing work," which by definition specifically excludes the construction of roof decks.[[3]] Central Wisconsin was building a roof deck. The parties do not refer us to, nor does there appear to be, any other standard that can be said to indicate a need for the use of personal protective equipment in the circumstances presented here.[[4]] Other construction standards provide for protection from falls of less than the sixteen to twenty-one feet involved here but by guardrails, catch platforms, nets or other protective devices which are not personal equipment (i.e., not "worn") as called for by section 1926.28(a). Accordingly, even if, as Judge Child found, Central Wisconsin's employees were exposed to a falling hazard, the Secretary failed to satisfy his burden of proof under L.E. Myers.[[5]]

Accordingly, item 1 of the Secretary's citation[[6]] alleging a violation of 29 C.F.R. ї 1926.28(a) is vacated.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: FEB 18 1987

SECRETARY OF LABOR,
Complainant

CENTRAL WISCONSIN STEEL BUILDING
ERECTORS, INC.,
Respondent.

OSHRC DOCKET NO. 84-0119

APPEARANCES:

For the complainant:
Cyrus A. Alexander, Esq., Chicago, Illinois

For the respondent:
Thomas A. Schuesslar, Esq., Chicago, Illinois

DECISION AND ORDER

Child, R. M., Judge, OSHRC:

Statement of the Case

This matter is before the Occupational Safety and Health Review Commission (the Commission) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 23 U.S.C. ї 651 et seq., (the Act). Respondent filed a Notice of Contest to Citation No. 1, issued to respondent December 20, 1983, charging two items of serious violation of section 5(a)(2) of the Act and the penalties proposed thereon. Respondent also contested Citation No. 2 charging one item of repeated violation of section 5(a)(2) of the Act and the penalty proposed thereon.

The parties have executed and filed herein a Partial Settlement Agreement which consensually disposes of all items with the exception of item 1 of Citation No. 1. Said agreement complies with the applicable requirements of Rules 100(b) and 100(c) of the Commission's Rules of Procedure (29 C.F.R. ї2200.100(b) and ї2200.100(c)). No objections having been received from affected employees, the said agreement is approved and the terms thereof will be incorporated in the Order entered herewith. (Tr. 10)

The matter came on regularly for hearing at Madison, Wisconsin, June 11th and 12th, 1985. Notice of hearing was duly given affected employees. Except as employees may have been produced as witnesses, there was no appearance by or on their behalf. (Tr. 8)

The parties have submitted Post-Hearing Briefs in support of their respective positions. Complainant has submitted proposed Findings of Fact and Conclusions of Law. To the extent proposed findings, or conclusions are consistent with those entered herein they are accepted; to the extent they are not so consistent; they are rejected. Jurisdiction of the persons and of the subject matter has been admitted and is not at issue. (Respondent's Answer, paragraph 1.)

THE ISSUES:

The issues tried and to be determined are:

A. Was the respondent in violation of the standard at 29 C.F.R. 1926.28(a)[[1/]]?

B. If the respondent was in violation, was that violation serious within the contemplation of the Act?

C. What, if any, would be an appropriate penalty?

Statement of Facts

On December 7, 1983, Gerald J. Modeska, a compliance officer for the complainant (the C.O.) inspected respondent's worksite which was a single story metal building under construction. He observed employees laying down the roof which consisted of one layer of fiberglass insulation covered by metal panel. The metal panel was screwed to purlins which ran lengthwise to the building generally on five foot centers. The purlins in turn were supported by rafters which they crossed at right angles. (Tr. 36, 38, 39) Steel columns at 25 foot intervals along the sides of the building supported the steel rafters which crossed the 100 foot width of the building providing a roof pitch of one inch per foot with a center peak. (Tr. 71; Exhibit R- 11) The roof of the building was approximately 16 feet high at the eave and 21 feet high at the center peak. (Tr. 40) The building dimensions were 100' x 200'.

At the time of the inspection five employees were on the roof engaged in its installation. None were wearing personal protective equipment to prevent falling and there was no fall protection present such as safety nets, catch platforms or scaffolding. (Tr. 39, 41, 53, 144, 145, 166)

Metal panels three feet wide and up to 40 feet in length would he placed on the exposed purlins preparatory to being put in place. A three foot wide strip of insulation was rolled from the roof peak to the eave adjacent to the last laid roofing. After stapling the freshly rolled out insulation strip to the raw edge of the last laid strip protruding from the last laid panel, the workers would lean forward over the newly placed insulation, supporting themselves with one hand on the insulation covered purlin and pull a metal panel toward themselves until it covered the strip of insulation and overlapped the last laid panel. At that point the edge of the panel away from the roof opening would be fastened to the purlins by means of an electric drill equipped with a screw driving attachment utilizing self drilling screws. After the three foot strip of metal panels had been fastened the next strip of insulation would be rolled from the peak to the cave and the operation repeated. (Tr. 200, 202, 209, 210, Exhibits C-3a, C-3c, R-1, R-2, R-3, R-4)

Discussion

Issue A:

Was the respondent in violation of the standard at 29 C.F.R. 1926.28(a)?

To prove a violation of section 5(a)(2) of the Act the complainant must prove by a preponderance of the evidence an employer's noncompliance with an applicable standard and employee exposure to the hazard created by the violative condition. Otis Elevator Co., 78 OSAHRC 88/E5, 6 BNA OSHC 2048, 1978 CCH OSHD І23,135 (No. 16057, 1978). In addition to the foregoing, section 17(k) of the Act has been interpreted by the Commission as placing on the complainant the burden of proving that the employer knew, or in the exercise of reasonable diligence could have known of the presence of the violative condition. Prestressed Systems, Inc., 81 OSAHRC 43/D5, 9 BNA OSHC 1864, 1981 CCH OSHD І25,358 (No. 16147, 1981).

Moreover, where a standard lacks specificity as to what precise conduct must be followed or avoided by the employer a majority of the Commission has ruled in interpreting 29 C.F.R. 1926.28(a):

Nonetheless, the standard in this case is written in broad terms. Therefore, it is appropriate to place upon the Secretary the burden of establishing employee exposure to a hazardous condition requiring the use of personal protective equipment and identifying the appropriate form of personal protective equipment to eliminate the hazard. (footnote reference deleted) S & H Riggers and Erectors, Inc. OSHRC Docket No. 15855 (1979), 7 BNA OSHC 1260,1266.

The better reasoning as to allocating the burden of proof in a general standard such as ї1926.28(a) would appear to be that set forth by former Commissioner Barnako in his concurring opinion in S & H Riggers, supra, at pages 1270, 1271. However, we are here constrained to follow the burden established by the main opinion in S & H Riggers as set forth above.

Here the complainant proved: (1) that five employees of the respondent while installing the roof on a pre-engineered one story metal building were exposed to the hazard of falling from the open edges of that roof a distance of from 16 feet to 21 feet to the ground below, (2) that serious injury or death could result from such a fall, (3) that the respondent knew or in the exercise of reasonable diligence could have known of the presence of the hazard, (4) that safety belts and lanyards tied off to a lifeline would be the appropriate form of personal protective equipment to be worn by the exposed employees, and (5) that no fall protection whatsoever was provided by the respondent or required to be worn by the employees. Complainant thus made out a prima facie case of serious violation by the respondent of the standard at 29 C.F.R. 1926.28(a).
_________________________

The defendant raises several defenses as follows:

First-Defense:

"Section 29 CFR 1926.28(a) does not apply because respondent was engaged in steel erection. Regulation of steel erection is governed exclusively by 29 CFR 1926.750-752 (Subpart R - Steel Erection)."

Respondent produced Michael W. Glover, Vice-President and General Manager of Glover Metal Building Erectors, Ltd. Mr. Glover has had many years of experience in the construction of pre-engineered metal buildings. He testified that those engaged in metal building construction including single story buildings consider themselves under the Steel Erection standards at Subpart R of 29 CFR 1926 and that no fall protection is required where the fall distance is less than 25 feet. (Tr. 74, 75, 79) He testified that the practice in the industry is to require fall protection above 25 feet but not below and in the case of one story buildings more than 25 feet high many companies still don't provide fall protection. (Tr. 85, 86) In Mr. Glover's opinion, since no one in the metal building construction industry in Wisconsin uses fall protection below 25 feet, the respondent met the standard in the industry. (Tr. 104, 105)

William Whirry, respondent's job superintendent on the job site in question, has been with the respondent for four years and employed in the construction of pre-engineered metal buildings for 17 years. Eighty to ninety per cent of the metal buildings he has worked on in those 17 years have involved heights of less than 25 feet. He has never worn fall protection on these jobs nor has other fall protection been provided. He has never seen anyone use safety belts and lanyards while installing roofs on these buildings and he has never worked on a metal building which had more than one story. (Tr. 195, 198, 199, 202, 215)

William L. Hunter, owner, operator and manager of the respondent has 15 years of experience in the construction of pre-engineered metal buildings. In his opinion such construction including the installation of metal roofing is steel building erection. (Tr. 234, 235, 238) To support his claim that installing the roof on metal one story buildings was "steel erection" coming under subpart R of the standards found at 29 CFR 1926, Mr. Hunter relied on the standard at 29 CFR 1926.752(f) which provides:

"Metal decking of sufficient strength shall be laid tight and secured to prevent movement."

He then defined "decking" as any flat steel member bolted or fastened to the secondary structure of the building, thus including roof paneling and panels affixed to the sides of the building. In his opinion the act of placing and fastening roof and side panels to the purlins using an electric drill utilizing self drilling metal screws was the equivalent of "fitting", "bolting" or "riveting" as those terms appear in subpart R of the construction standards. (Tr. 240-245) Thus, Mr. Hunter testified that no one in the industry of constructing pre-engineered metal buildings uses safety belts and lanyards at heights under 25 feet. He knew of no one in the industry providing fall protection consisting of catch platforms, safety nets or scaffolding at heights under 25 feet. He stated that the standards at subpart R don't require it and there is no likelihood of injury working at heights below 25 feet, "so we don't use anything." (Tr. 266, 267)

However, the complainant produced as a witness Martin Ballweg, who is part owner of a company engaged in construction of pre-engineered single story metal buildings in the Wisconsin area and who had 17 years of experience in the industry. To eliminate the tall hazard to employees working on the roof of buildings under construction and at heights between 10 and 25 feet, his company utilizes safety nets stretched to provide fall protection to workers engaged in roof installation. Alternatively, his company has provided fall protection consisting of catch platforms, scaffolding and safety belts with lanyards tied off on different jobs. He judged that the additional labor cost resulting from utilizing safety nets on a 20,000 square foot roof would be approximately $800.00. (Tr. 123,125,129, 130,132,136,138)

Exhibit R-11, produced by the respondent to illustrate the components and nomenclature involved in a typical pre-engineered, one story, metal building fails to utilize the word decking. Rather, it refers to "roof panel," "side wall panels" and "end wall panel."

Gerald J. Modjeska, who holds an engineering degree, has been a compliance officer with OSHA for 12 years. (Tr. 31, 32, 35) He testified that roofing is not steel erection and would not be even if the roof were being installed on a multi-tiered steel building. Rather, said he, "Steel erection is the placing of structural members and bolting them up and plumbing them up and putting them in place." (Tr. 181, 185) He testified that in steel erection "bolting," "riveting" "plumbing" and "fitting" have to do with placing the vertical and horizontal members of the skeleton steel. Such terms do not apply to roof panels merely because they happen to screw them to purlins. (Tr. 188, 189)

A careful reading of sections 750, 751 and 752 (subpart R) of the construction standards found under 29 CFR 1926 compels one to the conclusion that the installation of metal roofing and siding on pre-engineered single story metal buildings is not "steel erection" as covered by subpart R of the construction standards. The parties agree that "multi-tiered" buildings referred to in subpart R are buildings of more than one story. (Tr. 105, 180, 311)

Tippins-Steel Erection Co., Inc. 11 OSHC 1428, cited by respondent involved workers engaged in positioning and welding steel bar joists and braces to form roof supports. The Commission agreed with respondent that the work in question was structural steel work involving joists, beams and columns as well as the basic steel erection tasks of welding and bolting up. Since the work involved steel erection, section 1926.28(a) was held not to apply.

McLean-Behm Steel Erectors, Inc. 608 F.2d 580, cited by respondent involved steel erection and a fall hazard in excess of 25 feet. Since 29 CFR 1926.750(b)(1)(ii) applied and was a specific standard it was held to be error to have charged a violation under the general construction standard at section 1926.28(a) and that the judge erred in amending the complaint to allege a violation of the specific standard after the close of the hearing. This was particularly so in the face of a refusal by the Secretary to so move and a protest by the employer that it had not and was not prepared to defend against the specific standard provisions. The case is distinguished from the case before us. Here it is claimed that the activity observed was not steel erection and that no specific standard applied.

Builders Steel Co. v. Marshall, 622 F.2d 367, cited by respondent is helpful here only in standing for the proposition that employees engaged in skeleton steel erection in single story buildings are covered by the specific steel erection standard at section 1926.750(b)(2)(i) and therefore the general construction standard at section 1926.105(a) did not apply. In the case now before us the activity involved was not the erection of skeletal steel structure, but rather the installation of an insulated roof.

The mere construction of a single story metal building does not make all work activity involved therein "steel erection" so as to fall within the purview of subpart R of the construction standards. Here the employees were not involved in erecting the skeletal steel framework nor were they engaged in constructing a multi-tiered structure. The fact that the roofing being installed consisted of metal panels being fastened by metal screws to purlins laid over the structural steel previously erected does not render that roofing activity "steel erection." Respondent and others engaged in construction of metal buildings should disabuse themselves of the belief that because they choose to define the construction of metal buildings as erection of same they are excused from providing their employees a safe place to work. Construction accomplished with metal materials such as roof panels and siding panels does not necessarily constitute steel erection and did not in the situation with which we are here confronted.

Since respondent's employees were not engaged at the time in question in steel erection and since no specific standard applies, the general construction standard at section 1926.28(a) here applies.

Second defense:

"A reasonable person familiar with the facts, including the facts unique to this particular industry, would not recognize a hazard warranting use of personal protective equipment."

Respondent introduced Exhibit R-8 which is a sample of the backing on the rolled fiberglass insulation. In doing so Mr. Hunter testified, "I don't think I'd want to test it, but I think I could step on it without falling." (Tr. 248) However, respondent's job foreman, Mr. Whirry, on cross-examination testified that a person could fall through the insulation and Mr. Glover, produced by respondent, testified that if a person stepped on the rolled out insulation, he would fall through to the ground. (Tr. 80, 213) Respondent further admitted that its employees were exposed to fall hazard of from 16 to 21 feet. (Tr. 85, 338)

The compliance officer testified that if a fall of from 16 to 21 feet were to occur, the likelihood was that serious injury or death could result and that at minimum a fracture would result. (Tr. 47, 48, 49)

The respondent attempted to minimize the hazard since workers were trained to recognize the danger and since they worked on their knees at the opening and it is hard to fall off your knees. (Tr. 246, 247) Nevertheless, the photos introduced in evidence show three employees on their feet at the roof openings. Mr. Hunter testified it was even necessary for him to "yell at" his foreman for some foolish thing involving safety and said "we're only human - we do make errors." (Tr. 247; Exhibits C-3a, R-2, R-3)

As the Commission ruled in S & H Riggers, supra,

The crucial question in determining whether a hazardous condition exists within the meaning of section 1926.28(a) is whether 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. [Citations omitted] Although industry custom and practice are useful points of reference with respect to whether a reasonable person familiar with the circumstances would recognize a hazard requiring the use of personal protective equipment, they are not controlling. Id. at 1263. (reversed 5th Circuit-1981, 659 F.2d 1273)

Here the compliance officer observed employees of the respondent exposed to an obvious fall hazard. Respondent's refusal to recognize that hazard, to minimize it as not likely to cause injury because the fall distance was under 25 feet and to do nothing to eliminate the hazard in similar construction under-takings at any time is unreasonable. (Tr. 267, 300)

Third defense:

"The hazard resulting from the use of safety belts with lanyards tied off to a static line were greater than non-compliance."

Here non-compliance means no fall protection of any kind where employees are exposed to falling not to exceed 25 feet. That death or serious injury would likely result from such a fall has been established. Respondent produced evidence that an employee wearing a safety belt could forget the presence of the lanyard connecting his belt to a static line away from the roof opening and trip on that lanyard. It is clear, however, that a fall resulting from tripping on a lanyard or the static line would more than likely result only in a fall to the roof surface. Should an employee wearing a safety belt and lanyard trip on the lanyard or on electrical cords that are present and fall into the roof opening, his fall would be stopped by the safety belt and lanyard within six feet of the roof. The possible tripping hazard is in no way as great as the hazard presented by an unrestrained fall of from 16 to 21 feet to the ground below. Furthermore, alternative means of protecting employees from falling to the ground were available in the form of safety nets and respondent made no effort to apply for a variance as permitted under section 6(d) of the Act. (Tr. 156, 250, 327) See M. J. Lee Construction Co., 79 OSAHRC 12/A2 (No. 15094, 1979) 7 BNA OSHC 1140, 1979 CCH OSHD І23,330. Respondent has failed to prove a greater hazard defense.

Fourth Defense:

"Compliance with Section 1926.28(a) was impossible."

In M. J. Lee Construction Co., supra, cited by respondent, the Commission held that in order to establish the affirmative defense of impossibility of performance, the employee must prove that: (1) compliance with the requirements of the cited standard would preclude performance of required work, and (2) alternative means of employee protection are unavailable. Respondent failed to meet its burden of proof as to either of the elements of this defense.

Safety nets were available and customarily used by one of the respondent's competitors on buildings of less than 25 feet in height. Several methods of installing a static line and tying it off damaging the building's outer shell were identified in the course of the hearing. Such methods included tying to the center beam at the peak of the roof before the final ridge panel is installed, (Tr. 330) tying to a cement block weight on the ground at either side of the building (Tr. 282) and tying off to a winch on a truck on the ground at the side of the building. (Tr. 283, 284)

Respondent failed to meet its burden of proving defense of impossibility of performance.

Fifth and Sixth Defenses:

"The use of Safety Belts and lanyards tied off to a static line was neither technologically nor economically feasible."

It is at this point that respondent's major protest against compliance comes into focus. In S & H Riggers, supra, a majority of the Commission required the Secretary in order to meet its burden of proving a violation of section 1926.28(a) to merely identify the appropriate form of personal protective equipment to eliminate the hazard. The remaining member of the Commission reasoned that since the standard was general in tone the Secretary should have the burden of proving the feasibility of the identified abatement method.

Here the respondent denies the feasibility of the use of safety belts and lanyards on the ground that there is no feasible method of tying off. Respondent claims that by the time they commence installing the roof, eave trim has been installed and the structural columns and beams or rafters have been covered so that in order to reach them to anchor the static line, it would be necessary to cut through the finished metal surface which would be unacceptable to the purchaser or owner. (Tr. 96, 98, 103, 111, 203, 204, 253, 271, 276, 277, 320)

Complainant overcame this by establishing that (1) an anchor point for the static line exists at the peak of the roof at all stages of the roofing installation since the ridge panel is the last piece to go on. If the insulation is pierced to secure the anchor, it could be repaired, (Tr. 330, 331) (2) anchor points for the static line could consist of concrete weights at the ground level at either side of the building, or (3) a truck or other piece of equipment possibly equipped with a winch could be used as an anchor point for the static line. (Tr. 283, 284)

Respondent further contended that to his knowledge no one in the industry of constructing pre-engineered metal buildings uses safety belts and lanyards, safety nets, catch platforms or scaffolding where the fall hazard Is under 25 feet (Tr. 266, 267) Since each method is attendant with increased cost, he would not be competitive if he utilized any such safety measure. (Tr. 263, 265, 269) The evidence showed that the use of catch platforms would add only about $1,000 to the cost of installing a roof (Tr. 262) and that labor involved in utilizing safety nets would be about $800.00. (Tr. 136, 138) The use of such alternative forms of fall protection would eliminate the hazard and satisfy the requirements of the Act. They are reasonable in cost and should be born by the employer and ultimately the consumer. This industry should not be permitted to close its eyes to the need for providing for the safety of its employees where methods of affording that safety exist. The claim that everyone else ignores the hazard is no defense and complainant proved that at least one competitor does protect its employees from falling from heights under 25 feet. (Tr. 125) It appears that intelligent effort expended upon the use of safety belts and lanyards could produce a workable method at a reasonable price. Respondent has persisted in misinterpreting and misapplying the steel erection standards at subpart R of section 1526. (Tr. 267, 288) Such misapplication should not be countenanced. (Tr. 267)

Respondent failed to meet its burden of proving infeasibility, rather the evidence preponderates in favor of a finding that personal tall protection in the form of safety belts and lanyards and alternative fall protection in the form of safety nets or catch platforms are both technologically and economically feasible.

Seventh Defense:

"Respondent is here a victim of OSHA harassment and selective enforcement."

Respondent's evidence of "harassment and selective enforcement" was to the effect it has been inspected by OSHA about three different times while it knows of competitors who haven't seen an OSHA inspector in five years. Mr. Hunter knows of no one else being told to provide fall protection below 25 feet and he stated that everyone lives by the 25 foot standard. He feels sometimes he is singled out, but can't prove it. (Tr. 287, 288, 298) Respondent cites no cases in support of his claim of harassment and selective enforcement and the evidence introduced does not rise to the level necessary to support such a claim. See International Harvester Company v. Occupational Safety and Health Review Commission, 628 F. 2d 982, 985, 986, and cases there cited. See also Secretary v. Mato, Inc., OSHRC Docket No. 84-1077 which dispels respondent's claim that it is the only entity in the industry to be charged with failure to provide fall protection.

Each of the respondent's defenses have been here considered and found to be without merit. Complainant made out a prima facie case and in addition thereto a preponderance of the evidence supports a finding that the appropriate form of personal protective equipment identified by the complainant, to wit: safety belts and lanyards tied off to a static line, is feasible.

Since serious injury or death could result from a fall of from 16 feet to 21 feet, the violation was serious. Complainant gave due consideration to factors set forth in the Act in arriving at the proposed penalty of $300.00 which is appropriate. (Tr. 49-51)

Now, having observed the demeanor of the witnesses and having weighed the credibility thereof, there are here entered the following:

Findings of Fact

1. At all times material hereto Central Wisconsin Steel Building Erectors, Inc. was a corporation with a place of business at at Route 1, Dalton, Wisconsin, and a worksite at the Glendale Commercial Building on Advance Road, Madison, Wisconsin.

2. At times pertinent hereto respondent was engaged in a business affecting interstate commerce and was engaged in handling goods which had been moved in interstate commerce.

3. At times material hereto respondent employed five persons in its business at said worksite and was an employer within the meaning of the Act.

4. Five of respondent's employees were exposed to the hazard of falling distances of from 16 feet to 21 feet at the time of the inspection herein and at all times when engaged in similar roof installing activities.

5. Serious injury, broken bones or death were the likely harm that could result from the fall hazard to which respondent's employees were exposed.

6. Respondent had full knowledge of the fall hazard to which its employees were exposed while engaged in roof installation on pre-engineered single story metal buildings.

7. Safety belts and lanyards tied off to a static line were the appropriate form of personal protective equipment to eliminate the hazard.

8. Safety belts and lanyards tied off to a static line were technologically feasible.

9. Safety belts and lanyards tied off to a static line were economically feasible.

10. No personal protective equipment was worn by its employees or provided by respondent to eliminate the hazard of falling.

11. No fall protection of any kind was provided by the respondent to protect its employees from falling while engaged in roof installation.

12. Respondent's employees in installing roofing were exposed to the hazard of falling from the edge of the roof to the ground below and this hazard was apparent to respondent and to anyone engaged in the industry of constructing pre-engineered single story metal buildings. Respondent's claim that the hazard was not recognized is not reasonable.

13. The hazard of possible tripping on the lanyard connecting a worker's safety belt to a static line was not greater than the hazard of falling from the roof to the ground where no fall protection was provided or worn.

14. Alternative means of protecting employees from falling from the roof to the ground were available in the form of safety nets on catch platforms and were economically feasible.

15. Employees would not be precluded from performing the installation of roofing by the wearing of safety belts and lanyards tied off to a static line.

16. The evidence does not disclose that respondent was the victim of OSHA harassment or selective enforcement.

17. An appropriate penalty is the sum of $300.00.

Conclusions of Law

1. Respondent is an employer engaged in a business affecting commerce within the meaning of the Act.

2. Jurisdiction of the subject matter of this proceeding is conferred upon the Commission by section 10(c) of the Act and the Commission has jurisdiction of the parties hereto.

3. In accordance with the agreement of the parties items 2a and 2d of Serious Citations No. 1, issued to respondent December 20, 1983, should be affirmed and a combined penalty of $50.00 should be assessed.

4. In accordance with the agreement of the parties item 1 of Repeated Citation No. 2, issued to respondent December 20, 1983, should be affirmed and a penalty of $25.00 should be assessed.

5. The steel erection standards at subpart R of 29 CFR 1926.750 thru 752 do not apply to the work activity in which respondent was engaged at the time of the inspection.

6. The standard at 29 CFR 1926.28(a) under which respondent was cited herein applies to the work activity in which respondent was engaged at the time of the inspection.

7. Item 1 of the aforesaid Serious Citation No. 1 should be affirmed and a penalty of $300.00 should be assessed.

Order

1. Item 1 of Serious Citation No. 1, issued to respondent December 20, 1983, is AFFIRMED and a penalty of $300.00 is ASSESSED.

2. Items 2a and 2b of said Serious Citation No. 1 are AFFIRMED and a combined penalty of $50.00 is ASSESSED.

3. Item 1 of Repeated Citation No. 2, issued to respondent December 20, 1983, is AFFIRMED and a penalty of $25.00 is ASSESSED.

R. M. Child
Judge, OSHRC

Dated: October 21, 1985

FOOTNOTES:

[[1]] This standard provides as follows:

ї 1926.105 Safety nets.

(a) Safety nets shall be provided when workplaces are more 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.

[[2]] This standard states as follows:

ї 1926.500 Guardrails, handrails, and covers.

(g) Guarding low-pitched roof perimeters during the performance of built-up roofing work--

    (5) Roof edge materials handling areas and materials storage.

        (iv) When safety belts systems are used, they shall not be attached to the hoist.
        (v) When safety belts systems are used they shall be rigged to allow the movement of employees only as far as the roof edge.

A "low-pitched roof" is one having a slope no greater than 4 to 12. Section 1926.502(p)(3). The roof in this case was sloped 1 to 12.

[[3]] "Built-up roofing work" is defined as follows:

ї 1926.502 Definitions applicable to this subpart.

(p) For the purposes of paragraph (g) of ї 1926.500, the following definitions shall apply:

(1) "Built-up roofing"--a weatherproofing cover, applied over roof decks. . . .
(2) "Built-up roofing work"--the hoisting, storage, application, and removal of built-up roofing materials and equipment, including related insulation, sheet metal, and vapor barrier work, but not including the construction of the roof deck. [Emphasis added.]

[[4]] The standards in Subpart R of Part 1926, 29 C.F.R. її 1926.750-.752, which apply specifically to steel erection, have no safety belt provisions pertaining to the falling hazard alleged in this case.

Central Wisconsin contends that the standards in Subpart R are the exclusive fall protection standards for the type of work its employees were performing and that therefore section 1926.28(a) is preempted. Judge Child rejected this contention, holding that Central Wisconsin was not engaged in steel erection work within the meaning of Subpart R. Review was directed on the preemption issue. However, whether Judge Child correctly held that Central Wisconsin was not engaged in steel erection work, whether Subpart R does not apply to nontiered, single-story buildings, and whether Subpart R preempts 1926.28(a), need not be reached in this case in view of our decision to vacate the section 1926.28(a) charge on its merits.

[[5]] At the close of the hearing the Secretary moved to amend the pleadings under Fed. R. Civ. P. 15(b), which permits pleadings to be amended when the parties try unpleaded issues by consent. The Secretary sought to allege in the alternative a violation of the Act's "general duty clause," section 5(a)(1), 29 U.S.C. ї 654(a)(1). This provision of the Act requires an employer to take precautions against "recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." Central Wisconsin objected to the Secretary's motion, asserting that it would have tried the case differently had section 5(a)(1) originally been alleged. Judge Child did not rule on the motion because he found Central Wisconsin in violation of 29 C.F.R. ї 1926.28(a). The Secretary has not filed a brief or review and does not otherwise suggest the motion should now be granted. We conclude that the Secretary has abandoned the alternative section 5(a)(1) allegation he sought to make before the judge.

[[6]] The citation also alleged other violations which we do not review.

[[1/]] The Citation and the Standard read:

The Citation

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:

Employees installing insulation and metal decking on the roof of the building were exposed to the hazards of falling approximately 17 to 21 feet in that fall protection such as life lines and safety belts, scaffolds, catch platforms, or other equivalent protection was not provided.

The Standard

29 CFR 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.