Docket No. 87-1348

SECRETARY OF LABOR,

Complainant,

CENTURY STEEL ERECTORS, INC.,

Respondent.

OSHRC Docket No. 87-1348

ORDER

This case was remanded to the Commission by the United States Court of Appeals for the D.C. Circuit. Century Steel Erectors, Inc. v. Secretary of Labor, 888 F.2d 1399 (D.C. Cir. 1989), rev'g Century Steel Erectors, Inc., 13 BNA OSHC 1869, 1988 CCH OSHD ś 28,294 (No. 87-1348, 1988) (unreviewed decision of Administrative Law Judge). The court reversed a decision that had found Century Steel Erectors in violation of 29 C.F.R. 1926.105(a) [[1]] and remanded the case "for further consideration."

Century was cited for violating section 1926.105(a) because it did not require its employees cutting tack welds to use safety belts and tied-off lanyards even though they were exposed to a 40-foot fall. The judge affirmed a violation of section 1926.105(a). He found that, although the use safety nets would have been impractical, Century's employees could have been protected by securing their safety belt lanyards to a secure object or safety line. The judge held that Century's claim that it was the custom and practice in the industry not to tie off while cutting welds was no defense to a violation of section 1926.105(a).

The court accepted the judge's finding that the use of safety nets was impractical. Furthermore, the court held that the Secretary has the burden of establishing that the use of safety belts is practical. Once the Secretary has presented a prima facia case, the court held, the employer has the opportunity to present evidence that the use of safety belts is not practical, including evidence of the industry's custom and and practice of not using safety belts during the cited operation. The court held that judge should have considered the evidence introduced by Century on the custom and practice in the steel erection industry, and it remanded the case for a determination of the practicality of using safety belts during the cutting of tack welds.

Accordingly, we remand this case to the Administrative Law Judge for him to make the necessary findings consistent with the court's order and to issue an order disposing of the section 1926.105(a) citation.

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

DATED: May 24, 1990

SECRETARY OF LABOR,

Complainant,

CENTURY STEEL ERECTORS, INC.,

Respondent.

Docket No. 87-1348

APPEARANCES:

COVETTE ROONEY, Esquire
U. S. Department of Labor
Office of the Solicitor
Philadelphia, Pennsylvania

For the Complainant

RICHARD R. NELSON II, Esquire
Alder Cohen & Grigsby, P. C.
Pittsburgh, Pennsylvania

For the Respondent

DECISION AND ORDER

Sommer, Judge:

This is a proceeding under section 10 (c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651-78 ("the Act"), to review citations and a notification of proposed penalty issued by the Secretary of Labor ("Complainant") to Century Steel Erectors ("Respondent") on July 28, 1987. A hearing was held in Pittsburgh, Pennsylvania. Both parties were represented by counsel who filed post-hearing briefs. No jurisdictional issues are in dispute, Respondent having admitted the jurisdictional allegations of the complaint. There are two citation items in issue--items 1a and 2 of citation no. 2.

Citation no. 1 alleged that Respondent had committed serious violations of 29 C.F.R. § 1926.200(g) (1) (item 1), 29 C.F.R. § 1926.350(b)(1) (item 2), and 29 C.F.R. § 1926.450(a)(1) (item 3). At the hearing the parties agreed to settle these items by vacating item 1, affirming item 2 and assessing a penalty of $250, and amending item 3 to non-serious and assessing a penalty of $200.

Item 1a of citation no. 2 alleged a willful violation of section 5 (a) (1) of the Act or, in the alternative, 29 C.F.R. § 1926.28(a) for failure to protect employees from a fall hazard by the use of safety belts and lanyards or other means. The complaint amended this allegation to allege a violation of 29 C.F.R. § 1926.105(a) in lieu of section 5(a)(1) and 29 C.F.R. § 1926.28(a). Items 1b-1d alleged violations of 29 C.F.R. § 1926.20(b)(1)1 1926.20(b)(2), and 1926.21(b)(2). These allegations were dismissed with prejudice on Complainant's pretrial motion, leaving only the allegation of violation of 29 C.F.R. § 1926.105(a) in issue under citation no. 2, item 1. Another citation item (item 1 of citation 3), alleging a non-serious violation of 29 C.F.R. § 1926.51(c)(2), also was dismissed with prejudice prior to the hearing on Complainant's motion.

Item 2 of citation 2 alleged a willful violation of 29 C.F.R. § 1926.416(a)(1) in that Respondent permitted employees to work in close proximity to energized high-voltage lines without taking adequate precautions to protect employees from the hazard of severe electric shock. Complainant proposed a penalty of $10,000 for this alleged violation, and a penalty of $9000 was proposed for the willful violations alleged in item 1 of citation 2.

BACKGROUND

Respondent is a steel erection contractor with offices at 1125 Camp Hollow Road, West Mifflin, Pennsylvania. It was a subcontractor to Trumbull Corporation on a construction site at the junction of the Pennsylvania Turnpike and Route 28 in Harmarville, Pennsylvania. (T 11, 411, ex. R9). Trumbull was engaged in repairing the bridge which carried the Turnpike over Route 28 and adjoining railroad tracks. (T 423). Pursuant to its contract, Respondent had erected a scaffold to support a catch platform for protecting the highway, the ramp from the highway to the turnpike, and the railroad tracks from falling debris. (T 58, 376, 437). The catch platform was built in two separate sections, one over the roadway and the other over the railroad tracks. The section over the railroad tracks was built higher in order to clear some power lines that ran alongside the tracks. (T 443-44). At the time in question, the repair work had been completed, the catch platform had been removed, and Respondent was in the process of dismantling the scaffold.

Complainant's compliance officer inspected Respondent's worksite on June 17, 1987, in response to a fatal accident the previous day when an employee of Respondent fell approximately 40 feet from the top of the scaffold. Complainant alleges that Respondent's employees were not using fall protection and that they were working too close to energized power lines.

DISCUSSION

Alleged violation of 29 C.F.R. § 1926.105(a) [[1]] --item

1a of willful citation no. 2

The scaffold on which Respondent's employees were working consisted of several parallel sections of scaffolding. An H-beam, 14 inches wide, ran across the top of each section. These beams in turn supported crossbeams, referred to as bar joists, which extended between the scaffold sections, connecting one scaffold section to another. The catch platform, which had previously been removed, had consisted of metal decking laid across the bar joists. (T 16-17, 442, 5110 ex. G1, G2, R9). On the day the accident occurred, the bar joists were being detached from the scaffold structure. on the following day, when the inspection was conducted, removal of the bar joists was being completed, and some of Respondent's employees were preparing to remove the supporting H-beams. (T 521-26, 536-39). The deceased employee, William Spieler, was a member of a work crew that was using cutting torches to remove the tack welds holding the bar joists in place. Although the record does not show whether Spieler was wearing a safety belt at the time he fell, there is no dispute that Spieler was not tied off (T 63-64, 533).

When compliance officer William Draper arrived at the site, work was being performed on scaffold sections "D" and "E," the latter being the scaffold from which Spieler had fallen. Two employees were cutting welds away from bar joists on scaffold "D," while two others were sitting straddling an H-beam waiting to connect it to the sling of the crane that was to lower the beam to the ground. (T 28-31, 33, 39, 101-02, 521- 24; ex. G2(c)-(k)). Three of the four employees were wearing safety belts with lanyards that they could use to tie off; the fourth employee had a belt but no lanyard. Draper felt that safety nets could not have been hung and would not have been appropriate but told foreman Ronald Schagle that the employees should be tied off. [[2]] Schagle then instructed them to do so, except for the one employee who did not even have a lanyard. (T 39-41, 51). Although the record is not explicit, it appears that the employees who tied off did so by looping their lanyards around one of the beams (T 50; ex. G2(j)).

Schagle did not deny that he instructed the employees to tie off but testified that he did so to placate Draper and because the employees had stopped working when Draper appeared. Schagle felt that if employees were simply going to sit on the beams doing nothing they might as well tie off. He then changed his mind and directed the workers to come down since they were not working. (T 519).

Respondent's written safety rules require that "when working in high places or where there is a chance of falling, employees must use safety devices" and that "workers must be tied off when working in a stationary position such as grinding, welding, torch burning ..." (ex. R1). However, ironworkers are not required to use safety belts while removing tack welds and customarily do not tie off during such work because it is considered to be mobile work. A tack weld can be removed in 15 to 40 seconds; thus, employees move quickly from one. weld to another (T 173, 390-92, 485-86). The Harmarville job in particular required a high degree of mobility because the welds on each end of the joists were being removed simultaneously by two crews. (T 515, 526).

Respondent's foreman Beton also testified that it would be more hazardous to use a safety belt during mobile work because the lanyard could get snagged. (T 391). Superintendent Weber agreed that tying off would be more hazardous but did not explain why. (T 476).

The record also shows that Respondent has a well-established safety program. Its safety manual is printed in the form of a small booklet that is distributed to all employees. Regular safety meetings are held at jobsites, and a written record is made of such meetings. Respondent's rule that employees must tie off while stationary is frequently mentioned at these meetings. Foremen and superintendents have the responsibility for enforcing the safety rules, and foreman Schagle testified that he has reprimanded employees for not tying off where required. (T 424-26, 542). Jobs are planned in advance, including on-site visits by superintendent Weber to determine how the work may be performed safely. Respondent's safety director also makes field visits, a report of which is given to Weber and the on-site foreman. Exhibit R6 includes a report of the safety director's visit to the Harmarville worksite in March 1987, which notes that most employees were tied off and the failure of two employees to wear their belts was corrected immediately. Respondent's insurance carrier, Liberty Mutual, also conducts inspections which include discussions with foremen and employees. Reports of inspections by Liberty Mutual of the Harmarville site in September and October 1986 were admitted as exhibit R8. The first report recommends that "ironworkers working in a stationary position such as welding or burning" should be tied off. This recommendation refers to welding that requires a substantial amount of time in one location and does not include tack welding. The second report notes that "the practice of tying off ironworkers has been stressed at a number of safety talks held on the job." Additional safety material maintained by Respondent consists of safety memos that are distributed to employees to keep them abreast of company safety policy and a daily diary of each major job, in which safety notations are logged. (T 424-36, 480-81).

Respondent is charged with a violation of 29 C.F.R § 1926.105(a), which requires that safety nets be used where the other protective devices enumerated are "impractical." While the term "impractical " is ambiguous, Brennan v. Southern Contractor Service, 492 F.2d 498 (5th Cir. 1974), both the Commission and the courts have held that the standard is violated if none of the devices listed, including safety belts, are being used to protect employees from a fall of over 25 feet. Brock v. L.R. Willson & Sons, Inc., 773 F.2d 1377, 1383-84 (D.C. Cir. 1985) ("Willson II"); Southern Colorado Prestress Co. v. OSHRC, 586 F.2d 1342 (10th Cir. 1978); L.E. Myers Co., High Voltage systems Division, OSAHRC / 12 BNA OSHC 1609, 1614 & n.11, 1986-87 CCH OSHD ś 27,476, pp. 35,604-05 & n.11 (No. 82-1137, 1986), rev'd on other grounds, 818 F.2d 1270 (6th Cir. 1987), cert. denied, 108 S.Ct. 479 (1987); Morgan & Culpepper, Inc., 81 OSAHRC 26/A2, 9 BNA OSHC 1533, 1538, 1981 CCH OSHD 11 ś 25,293, p. 31,298 (No. 9850, 1981), aff'd, 676 F.2d 1065 (5th Cir. 1982).

On the other hand, if one of the protective devices listed in the standard is in fact being used at the worksite in question, the employer will be in violation only if the device it is using does not provide adequate fall protection. See L.E. Myers, supra, 818 F.2d at 1276 n.6 and cases cited therein. In L.R. Willson & Sons. Inc. v. Donovan, 685 F.2d 664 (D.C. Cir. 1982) ("Willson I"), the court concluded that the standard does not require that fall protection be used at all times. The court vacated a citation under 29 C.F.R. § 1926.105(a) because the Secretary failed to prove that safety belts were not used during a "substantial portion" of the workday.

In the instant case, Respondent contends that item la must be vacated because Complainant failed to prove that safety belts were not used for a substantial part of the day of the inspection. In fact, Respondent claims that compliance officer Draper testified that after the employees tied off at his insistence, they remained tied off during the rest of that day. (Trial brief at 15-16, reply brief at 4). I find to the contrary.

The violation was alleged to have occurred on June 16 (the day of the fatality) and June 17 (the day of the inspection). The work being performed consisted of the removal of bar joists on June 16 and the removal of bar joists and H-beams on June 17. It is undisputed that Respondent does not require its ironworkers to tie off during either of these operations and that they customarily do not tie off when doing such work. The evidence therefore supports a finding that Respondent's employees were not using safety belts on June 16.

on the following day, none of the ironworkers were tied off when compliance officer Draper first observed them, and they did not tie off until he insisted that they do so. The record shows that Draper arrived at the site at about 11 a.m., that the employees came down for their lunch break after they initially had tied off, and that he then saw them tied off for about 15 minutes when they went back to work after lunch. Draper then left the worksite. (T 12, 29, 102). Contrary to Respondent's argument, the evidence does not show that the employees remained tied off after Draper left. However, since I find that Respondent's employees did not use safety belts during their normal work operations before the inspector arrived, I do not need to speculate on what actions the employees may or may not have taken after Draper's departure. Since the evidence shows that Respondent's employees were exposed to a fall of more than 25 feet and that none of the devices listed in the standard were used, Complainant has established a prima facie case. Sierra Construction Corp., 78 OSAHRC 2/E6, 6 BNA OSHC 1278, 1978 CCH OSHD ś 22,506 (No. 136381, 1978).

Respondent also contends that it would not have been practical for its employees to tie off during the work operations at issue here. Respondent emphasizes the need for mobility, the interference that lanyards would cause, and the custom and practice of ironworkers not to tie off in the circumstances here. Under Dun-Par Engineered Form Co., OSAHRC / 12 BNA OSHC 1949, 1986-87 CCH OSHD ś 27,650 (No. 79-2553, 1986), rev'd on other grounds, 843 F.2d 1135 (8th Cir. 1988), Respondent can defend by showing that the use of tied-off safety belts would have been infeasible. However, I find that it failed to establish its defense.

With the exception of foreman Beton's remark that a lanyard could get snagged, Respondent's evidence does not explain why the need for mobility would preclude or render infeasible the use of safety belts. I find Beton's testimony unpersuasive. The record does not show that Beton had any knowledge of or experience with lanyards becoming snagged or that he had any other basis on which to conclude that snagging was a realistic possibility. In addition, foreman Schagle described the normal precautions that are taken to prevent a welding torch hose from interfering with the work: the hose is pulled or draped over a joist to reduce slack, the hose is not laid in the immediate work area, and attempts are made to avoid tangles that could cause a tripping hazard. (T 544-45). The record does not show any reason why similar care could not be taken with respect to a lanyard. Furthermore, Schagle testified that while tying off is not customary, employees are permitted to tie off if they so choose, and in fact he conceded that safety belts could have been used for a majority of the workday. (T 530-31). Finally, since 29 C.F.R. § 1926.105(a) is a specific standard, compliance with industry custom and practice is not a defense. See Willson II, supra, 173 F.2d at 1387.

However, I do not find the violation willful as alleged. To establish that a violation is willful, the Secretary must show that it was committed voluntarily with either an intentional disregard for the requirements of the Act or plain indifference to employee safety. E.g., Simplex Time Recorder Co., OSAHRC / 12 BNA OSHC 1591, 1984-85 CCH OSHD ś 27,456 (No. 82-12, 1985). The evidence fails to prove that Respondent exhibited disregard for the fall protection requirements of 29 C.F.R. § 1926.105(a) or was indifferent to employee safety.

Complainant contends that the violation is willful because Respondent allowed its employees to continue to work without using safety belts on the day after Spieler fell. However, simple carelessness or lack of diligence in eliminating a violative condition does not in itself establish willfulness. Asbestos Textile Co., OSAHRC 12 BNA OSHC 1062, 1984-85 CCH OSHD ś 27,101 (No. 79-3831, 1984). In a recent decision the First Circuit explained that willfulness requires an inquiry into the employer's state of mind:

[A]n act may be "willful" if the offender shows "indifference" to the rules; he need not be consciously aware that the conduct is forbidden at the time he performs it, but his state of mind must be such that, if he were informed of the rule, he would not care.

Of course, there may be instances in which unsafe conduct is so egregious, so life-threatening, that the agency might apply an "objective" standard of willfulness, assuming its existence from the offender's knowledge of conditions even without direct evidence of its subjective attitude toward the law. But, this is not such a case, For experienced workers on a flat roof (surrounded by a low parapet) to come within a foot or two of the edge under the eye of a monitor may be unsafe, but it is not so obviously unsafe that the agency is required by law to assume a "willful" state of mind on the part of the employer.

Brock v. Morello Brothers Construction, Inc., 809 F.2d 161 (1st Cir. 1987) (emphasis in original).

The only evidence relating to Respondent's state of mind is the testimony of foreman Schagle that ironworkers would not consider walking along and sitting on 14-inch wide beams to be hazardous. Based on conversations with Spieler's co-workers, Schagle also determined that Spieler fell because he had simply "blacked out." (T 522, 525, 534). This evidence fails to show that Respondent's state of mind was such as to indicate conscious disregard or indifference to employee safety. Nor can I conclude that experienced ironworkers working off of beams 14 inches wide presents such an egregious hazard that a willful state of mind should be presumed in the absence of any other evidence.

In addition, Respondent has a comprehensive general safety program, including a specific safety belt rule that it implements and enforce in certain work operations. Precautions Respondent took prior to the inspection at an earlier stage of the scaffold construction further demonstrate that it was not unmindful of the need for fall protection. When the scaffold and catch platform was first erected, Respondent installed a cable and placed pieces of metal decking along the perimeter of the catch platform as fall protection. It also put a handrail along a walkway that connected the two sections of the catch platform. (T 441-43, 474-75). After the perimeter protection was removed when Respondent began disassembling the scaffold, it made safety belts and lanyards available to its employees for their use if they so desired. (T 475, 530-31). Belts were in fact used when employees began dismantling larger sections of the scaffold after the bar joists and H-beams had been taken down. (T 543). The fact that Respondent furnished but did not require full use of safety belts is not sufficient to show a willful violation; a good faith effort to comply with a standard or eliminate a hazard negates willfulness even if the employer's efforts are not entirely effective or complete. Mobil Oil Corp., 83 OSAHRC 47/B6, 11 BNA OSHC 1700, 1983-84 CCH OSHD ś 26,699 (No. 79-4802, 1983).

The record evidence is sufficient, however, to show that the violation of 29 C.F.R. 1926.105(a) is serious under section 17(k) of the Act. Foreman Schagle knew that the deceased and other employees were not tied off (T 33), and there clearly was a substantial probability of death or serious injury. Consistent with the criteria set forth in section 17(j), and all the circumstances herein, a penalty of $1000 is assessed.

Alleged violation of 29 C.F.R. § 1926.416(a)(1) [[3]] -- item

2 of willful citation no. 2

Scaffold section "E," one of the sections that had supported the catch platform over the railroad tracks, was adjacent and parallel to some power lines that ran alongside the tracks. (T 16-17; ex. R9). The bar joists between scaffold sections "D" and "E" which were being removed at the time of the inspection were perpendicular to, and crossed over, the power lines. (Ex. C1 (a), R9).

The lines were supported on poles with two crossarms. The lower crossarm carried three phases (conductors) of 12kv (12,000 volts) each; there were three 25kv lines on the upper crossarm. On the day of the accident only the top lines were energized. None of Respondent's employees, including the deceased, ever actually came into contact with the energized lines, which were not insulated. (T 159, 267).[[4]] Complainant's theory is that the employees were working too close to the lines.

The power lines were operated by West Penn Power Company ("West Penn"). Toward the end of January 1986, when West Penn's line foreman reported that Respondent was building some scaffolding in the area, Campbell, West Penn's senior engineering technician, went to the worksite to check clearances. He decided to move the 25kv conductors as far from the scaffold as possible and to deenergize sections of two of the 12kv lines. One 25kv conductor was relocated from the scaffold side of the crossarm to the other side of the pole, thus freeing space to move the outermost conductor closer to the pole. Two 12kv lines were deenergized between the poles closest to the work area; the remaining 12kv line was left energized to supply power for Respondent's equipment at the site. (T 303-13).

There is general agreement regarding the distances between the power lines and the scaffold. For this decision, I will rely on the testimony of West Penn's personnel, who took actual measurements of these distances. The 12kv lines were approximately 27 feet above the ground and 5 feet, 4 inches below the 25kv lines. The top crossarm which supported the 25kv lines was 11.8 feet below the level of the bar joists. Laterally, the pole was 5.8 feet from the scaffold and the closest 25kv insulator was 5.6 feet to the side of the scaffold. The 12kv line that remained energized was on the opposite side of the pole, 10 feet horizontally from the scaffold and 17 feet below the level of the joists. (248-55, 327-28, 356-57; ex. G3).[[5]]

Since the top of the scaffold where the employees were working was above and to one side of the power line, the closest distance between the nearest 25kv conductor and the employees on the scaffold beams would be a diagonal line extending down from the top of the scaffold and over to the conductor. While the record does not indicate the length of this imaginary line, I take official notice that it would be approximately 13 feet by mathematical computation.

On or about February 11, Respondent was ready to put the first bar joists in place. Since this work required use of a crane, foreman Beton asked West Penn to deenergize the 25kv lines. West Penn cut the lines off the next morning, February 12. On that day, while measuring for the bar joists, Beton accidentally dropped his metal measuring tape onto the one energized 12kv line. This incident did not cause any injuries. (T 268-80, 402-03, 407-08; ex. G6). Shoemaker, West Penn's claim representative, estimated that Beton would have been no closer than 20 feet to the energized line when taking his measurements. (T 295, 297). Although this line supplied power to the worksite, it was deenergized at the time of the accident for reasons which the record does not indicate. (T 106-08).

Respondent's safety rule specifies minimum clearance distances from unprotected or uncovered power lines. Ironworkers may not come within 8 feet of 8.7-15kv lines and must keep 10 feet away from 15-35kv lines. This safety rule has been agreed on with the employees' union, and it appears in Respondent's union contract as well as Respondent's safety manual. (T 151-52; ex. R1, R3).

The cited standard, 29 C.F.R. § 1926.416(a)(1), does not specify any minimum clearance distance from unguarded or uninsulated energized circuits. Rather, it limits the "proximity" of an employee to such circuits. While the term "proximity" is not vague, the standard does require proof "by objective means [that] employees are within reach of, and therefore may contact, an energized power circuit while they work." Cleveland Consolidated, Inc., OSAHRC/, 13 BNA OSHC 1114, 1117, 1986-87 CCH OSHD ś 27,829, p. 36,428 (No. 84-696, 1987).[[6]]

It is clear from the record evidence that Respondent's employees were in excess of 10 feet from the power lines during the course of their work on top of the scaffolding. The scaffolding itself separated them from the conductors, and their work duties did not require that they work or go below the top of the scaffolding. Nor were they using any tools with long handles or other components capable of extending into the lines. The evidence fails to show any "objective facts" from which one could reasonably conclude that the employees were within reach of the power lines in the performance of their work duties.

Nevertheless Complainant contends that there are some circumstances indicating that employees could have come into contact with the power lines. The Secretary refers to the incident when Beton dropped his tape into the lines as well as to the accident itself when Spieler hit some of the lines as he fell. However, Beton's dropping of his tape was clearly not part of his assigned work duties but an accident which, so far as the record indicates, was totally unanticipated. The Act does not require an employer to prevent all accidents or to be an insurer of his employees' safety. E.g, Usery v. Kennecott Copper Corp., 577 F.2d 1113 (10th Cir. 1977). Similarly, Spieler's fall was the result of the lack of fall protection at the worksite; the fact that he happened to strike power lines as he fell does not show that he was working too close to them during his assigned duties. [[7]]

Complainant also asserts that employees came overly close to the lines when they crossed the bar joists from scaffold section "E" to section "D" and when they left their work area by climbing down scaffold "E." Inspector Draper testified that he observed one employee "shimmying" across a bar joist between sections "D" and "E," thus crossing over the power lines. (T 30). Since the 25kv lines were more than 11 feet below the bar joists, I find that an employee crossing over the lines on a bar joist would not be "within reach of" the lines under the rule of Cleveland Consolidated, supra.

There is a conflict in the testimony as to whether employees used scaffold "E" as a means of egress from the work area. As previously indicated, the closest 25kv line was approximately five feet to the side of scaffold "E." According to Draper, the employee who did not have a lanyard came down off the scaffolding by climbing down through scaffold "E." Draper took a photograph of the employee inside the framework of scaffold "E." (T 51, 140-41; ex. G2(1)). Schagle insisted that the employee Draper photographed was a "ground man" whose duties included tagging bundles of joists coming off the structure, controlling tag lines, landing material, and preparing material for loading onto trucks. Schagle was not sure why the employee was in the scaffold but speculated that he may have jumped up into the scaffold to free a guide cable that had gotten hung up as it was dropped. Schagle said that this employee was on the scaffold about 5 or 6 feet of f the ground when the photograph was taken. (T 516-20, 543, 545-46). Draper estimated that the employee was about 8 feet above the ground when photographed. (T 135).

I find Schagle's testimony on this issue to be more credible. Schagle identified by name the employee shown in exhibit G2(1) and positively stated that the individual was a groundman (T 517). In addition, the record shows that scaffold sections other than section "E" were routinely used for access to the work area (T 76-77, 93-94, 196, 200, 470-71). However, even if I were to find that scaffold section "E" was used as a means of egress from the top of the scaffolding, I would not find a violation of 29 C.F.R. § 1926.416(a)(1) on that basis alone. The closest energized conductor was approximately five and one-half feet from the side of the scaffold. If an employee climbed down through the scaffold framework, his movements presumably would be controlled and confined within the structural members of the scaffold. He would not be sufficiently close to a power line over five feet away to come into contact with that line as he passed it on his way down.

FINDINGS OF FACT

All findings of fact relevant and necessary to a determination of the contested issues have been found specially and appear above in the decision. See Fed. R. Civ. P. 52. Any proposed findings of fact or conclusions of law that are inconsistent with this decision are deemed denied.

CONCLUSIONS OF LAW

1. Century Steel Erectors, Inc. at all times material to this proceeding was subject to the requirements of the Act and the jurisdiction of the Commission.

2. The record establishes by a preponderance of the evidence that Century committed a serious but not willful violation of 29 C.F.R. § 1926.105(a).

3. A penalty of $1000 is appropriate for this violation.

4. The preponderance of the evidence does not establish that Century was in violation of 29 C.F.R. § 1926.416(a)(1).

ORDER

Based upon the findings of fact, conclusions of law, and the entire record, it is ORDERED

1. Item 2 of citation no. 1 is affirmed item 3 of citation no. 1 is amended to a nonserious violation and as amended is affirmed, and item 1a of citation no. 2 as amended in the complaint is affirmed as a serious violation. A total penalty of $1450 is assessed.

2. Item 1 of citation no. 1; items 1b, 1c, 1d, and 2 of citation no. 2; and item 1 of citation no. 3 are vacated.

IRVING SOMMER
Judge, OSHRC

DATED: JUL 18, 1988
Washington, D.C.

ELIZABETH DOLE, SECRETARY OF LABOR

U. S. DEPARTMENT OF LABOR

Complainant

CENTURY STEEL ERECTORS, INC.,

and its successors,

Respondent

Docket No. 87-1348

APPEARANCES:

COVETTE ROONEY, ESQUIRE
U. S. Department of Labor
3535 Market Street
Philadelphia, PA 19104

For the Complainant

RICHARD R. NELSON, II, ESQUIRE
Alder, Cohen & Grigsby
600 Grant Street, 5th Floor
Pittsburgh, PA 15219

For the Respondent

DECISION AND ORDER

SOMMER, JUDGE:

This case is before the undersigned on remand from the Commission. In its remand order, the Commission directed that necessary findings be made consistent with the order of the United States Court of Appeals for the D. C. Circuit. Century Steel Erectors, Inc. v. Secretary of Labor, 888 F.2d 1399 (D. C. Cir. 1989), rev'g Century Steel Erectors, Inc. 13 BNA OSHC 1869, 1988 CCH OSHD ś 28,294 (No. 87-1348, 1988).

The standard at issue in this case, 29 C.F.R. 1926.105(a) provides:

Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surface where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.

Since the Secretary does not allege the violation herein was the failure to use safety nets (the Compliance Officer testified they were infeasible and inappropriate), but that alternative measures (tieing on with safety belts and lanyards) could have been used, the burden is on the Secretary to prove that "its use is practical", and "must consider, and overcome, the employer's evidence that such devices are 'impractical' including its evidence of industry custom and practice." Century Steel, 888 F.2d at 1406

Century's employees were engaged in burning off tack welds, collecting the bar joists, and lowering them to the ground. These activities were part of the dismantling of the structural steel supports of the catch platform previously used.

The Court of Appeals concluded that the testimony of Compliance Officer Draper established that the "use of safety belts was 'practical' within the meaning of .105(a)". 888 F.2d at 1403.

Century contended that the use of safety belts during the work period at issue was impractical and contrary to industry practical and custom in the area concerned herein, i.e. the western part of Pennsylvania. To support this contention testimony was elicited from the employees of Century who were ironworkers with a combined total of over 70 years experience in the field. Each of them testified they had done tack wielding during their career, and that such work required the welder to be constantly moving, and therefore the use of safety belts was a hazard. They further testified that the steel erection industry custom and practice in the western district of Pennsylvania where the work was being done by Century was not to use safety belts under the facts and circumstances herein. They testified in a straightforward, frank and convincing manner, and their testimony was not discredited, nor rebutted by the Secretary. Under the facts of this case, the Respondent has proven that the use of safety belts was impractical. The citation alleging a violation of 29 C.F.R. 1926.105(a) is not supported by a preponderance of the evidence in the record and is vacated. [[1]]

FINDINGS OF FACT

All findings of fact relevant and necessary to a determination of the contested issue has been specially found and appear above in the decision. See Fed. R. Civ. P. 52. Any proposed findings of fact and conclusions of law that are inconsistent with this decision are denied.

CONCLUSIONS OF LAW

1. Century Steel Erectors, Inc. at all times material to this proceeding was subject to the requirements of the Act and the jurisdiction of the Commission.

2. The preponderance of the evidence does not establish that Century was in violation of 29 C.F.R. 1926.105(a).

ORDER

Based upon the findings of fact, conclusions of law, and the entire record, it is ORDERED:

Citation No. 2, item 1(a) as amended, alleging a willful violation of 29 C.F.R. 1926.105(a) is vacated.

IRVING SOMMER
Judge, OSHRC

DATED: NOV 20, 1990
Washington, D.C.

FOOTNOTES:

[[1]] 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 surface where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.

[[1]] The standard provides:

§ 1926.105 Safety nets.

(a) 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.

[[2]] The complaint alleges that employees were not protected from a fall "through the use of safety belts or harnesses with lanyards or other suitable protective means" (emphasis added). At the hearing the Secretary's counsel stated that the citation was not based on the absence of nets and that the Secretary did not intend to show that nets could have been used.

[[3]]The standard provides:

§ 1926,416 General requirements.

(a) Protection of employees --(1) No employer shall permit an employee to work in such proximity to any part of an electric power circuit that the employee could contact the electric power circuit in the course of work, unless the employee is protected against electric shock by deenergizing the circuit and grounding it or by guarding it effectively by insulation or other means.

[[4]] The deceased hit one of the deenergized 12kv lines as he fell, and he was not electrocuted.

[[5]] Because the scaffold was not precisely parallel to the power lines, but somewhat angled in relation to them, the distance between the scaffold and the power lines would vary. Campbell, for example, testified that the distance to the nearest conductor at one point was 9.7 feet. (T 331-34, ex. G3). For purposes of this decision I will use the shortest distances shown on the record.

[[6]] CIeveland Consolidated involved 29 C.F.R. § 1926.400(c)(1), the predecessor to § 1926.416(a)(1). When the Secretary revised the electrical standards in Subpart K of Part 1926, § 1926.400(c)(1) was redesignated as § 1926.416(a)(1). 51 Fed. Reg. 25308 (1986).

[[7]] Inspector Draper's own testimony puts the proper gloss on Spieler's fall in relation to the alleged violation of 29 C.F.R. § 1926.416(a)(1):

Q. [Spieler] was at least ten feet from the power lines, wasn't he?

A. Not on the way down, he wasn't; but when he was working on the beam, he was. (T155-56, emphasis added).

[[1]] The cases relied upon by the Secretary do not address the issue at hand and are distinguishable from the interpretation of Section 1926.105(a) by the D.C. Circuit Court of Appeals, to which deference is given.