Docket No. 89-2007

SECRETARY OF LABOR,

Complainant.

CARABETTA ENTERPRISES, INC.,

Respondent.

OSHRC Docket No. 89-2007

DECISION

Before: FOULKE, Chairman WISEMAN and MONTOYA, Commissioners.

BY THE COMMISSION:

In 1988, a compliance officer from the Occupational Safety and Health Administration ("OSHA"), of the United States Department of Labor, inspected a construction project in Malden, Massachusetts, and cited Carabetta Enterprises, Inc. ("Carabetta" or "the Company"), for willful noncompliance with 29 C.F.R. § 1926.7150(b)(2)(1), a steel erection standard pertaining to fall protection.[[1]] Carabetta contested the citation and argued that the cited standard is arbitrary and unenforceably vague that here was no violation of the standard, and that there was certainly no willful violation. On a stipulated record, the case came before a Commission administrative law judge, who upheld the standard's enforceability, found a willful violation, and affirmed the citation.[[2]] For the reasons that follow, we affirm the Commission judge's decision.

I. The Evidence

The stipulated record on which the judge decided the case consists of the citation, the notice of contest, the complaint and answer, as well as a statement of stipulations and two affidavits. One affidavit is by the compliance officer, and the other affidavit is by Ralph Carabetta, the Company's vice president.

The stipulated record reveals that three Carabetta employees were performing skeletal steel erection work it the seventh story level of a building designed for 8- to 10-foot stories. A floor existed three stories tile seventh story level, or approximately 28 to 30 feet below where the employees were working, but there was no floor two stories below the employees. According to Carabetta, this condition existed because of the particular method of skeletal steel erection, which progresses in "three story increments" or "modules." For the purpose of erecting three stories at a time. Carabetta was using 28- to 30-foot columns and was connecting the top ends with beams before any intermediate floors were installed. Thus, when the OSHA compliance officer observed the employees, there were no intermediate floors.

The 1988 inspection was not Carabetta's first. Twice in 1986 and once in 1987, the compliance officer had inspected another of Carabetta's steel erection projects, located in Revere, Massachusetts. After each prior inspection, Carabetta had received a citation for violation of the standard cited in this case, § 1926.750(b)(2)(i). OSHA classified the first citation as other-than-serious, but the next two were repeated. All three have become final orders. Also, after the 1988 inspection involved in this case, the compliance officer observed Carabetta "complying with the two floor regulation" at the Revere jobsite.

II. The Violation

A. The Parties' Arguments and the Commission Judge's Decision

Carabetta contends that § 1926.750(b)(2)(i) is arbitrary and unenforceably vague because it treats similar situations differently. For structures having two stories per 30 feet above an existing floor (i.e., structures having 15 foot stories), the standard deems the existing floor to be sufficient fall protection, but for structures having three stories per 30 feet above an existing floor (i.e., structures having 8- to 10-foot stories), the standard requires an additional floor, located two stories below the tier on which employees are working. Carabetta regards this difference as inexplicable and would have the standard interpreted to permit the 30-foot fall distance in both instances.[[3]]

In response, the Secretary explains that the standard's 30-foot fall distance is a maximum that serves a special and limited purpose, i.e., to allow certain steel erectors -- those who are erecting buildings having widely spaced stories, up to 15 feet apart -- to install only every other floor, not every floor, as fall protection for the employees. The standard does not, however, establish an unvarying 30-foot fall distance applicable to all other steel erectors, and the language of the standard makes this plain. The standard contains an alternative fall distance of "two stories . . . whichever is less," to ensure that all steel erectors install every other floor. Thus, an employer in Carabetta's position, erecting a building having floors only 8 to 10 feet apart, must install every other floor and thereby reduce the fall distance below the 30-foot maximum. The Secretary concludes that Carabetta is essentially asking the Commission to rewrite the standard according to Carabetta's own idea of a fair and reasonable fall protection requirement, rather than the Secretary's.

The Secretary further asserts that Carabetta actually understood the standard as limiting the fall distance to two stories: "This case is not about respondent's inability to understand the standard's requirements. Rather, it is about respondent's decision, because it disagreed with those requirements. Simply to ignore them." There was a violation, the Secretary argues inasmuch as Carabetta did not install either temporary floors or safety nets, did not establish the infeasibility of these forms of fall protection, and did not establish the infeasibility of any alternative measure, such as safety belts.

The Commission judge, Administrative Law Judge Richard DeBennedetto, held that § 1926.750(b)(2)(i) is "plain" because it explicitly requires either a floor ("within two stories or 30 feet, whichever is less.") or a safety net (as prescribed by § 1926.750(b)(1)(ii), incorporated by reference in the cited standard). Because Carabetta "had a choice" to implement either form of abatement, but chose to omit both, the judge found a violation. He specifically rejected Carabetta's claim that the standard is unenforceably vague as applied to three-story modules employing 28- to 30-foot columns, inasmuch as the standard's intent to require a floor every two stories or 30 feet, "whichever is less," is unmistakably clear on the face of the standard.

B. Analysis

We note that nowhere in Carabetta's arguments or in Carabetta's affidavit is there any assertion that the Company actually misunderstood the standard's most basic requirements, i.e., for a temporary floor two stories below the tier on which employees are working or for a safety net in lieu of a temporary floor if the fall distance exceeds 25 feet. Moreover, the standard's language establishing these two requirements is sufficiently plain to be enforceable in the case of an employer whose evidence and arguments demonstrate awareness of these overall duties established by the standard. Carabetta's arguments only demonstrate disagreement with these duties. Inasmuch as the standard indisputably applied. its terms were not met (this employer had not installed either floors or safety nets), employees were exposed to fall hazards, and this employer actually knew of the hazardous conditions, the Secretary has established a violation. See. e.g.. Walker Towing Corp., 14 BNA OSHC 2072, 2074, 1991 CCH OSHD ś 29,239. p. 39,157 (No. 87-1359, 1991), citing Astra Pharmaceutical Prod., Inc., 9 BNA OSHC 2126, 2129, 1981 CCH OSHD ś 25,578. pp. 31,899-31,900 (No. 78-6247, 1981) (the Secretary's burden of proof).

Carabetta asserts that it was essentially infeasible to install a temporary floor two stories below the employees, and Carabetta's affidavit contains evidentiary statements in support of that position. Even if we were to find, however, that Carabetta could not have installed any intermediate floors until the tops of the columns were connected with beams, Carabetta has not established an affirmative defense of infeasibility. There is no evidence demonstrating the infeasibility of either a safety net, as required by the cited standard, or safety belts, as an alternative measure. See, e.g., Seibel Modern Mfg. & Welding Corp., 15 BNA OSHC 1218, 1226-28, 1991 CCH OSHD ś 29, 422, pp. 39, 682-85 (No. 88-821, 1991) (the employer's two burdens of proof as to infeasibility); Walker Towing Corp., 14 BNA OSHC at 2077-78, 1991 CCH OSHD at pp. 29,160-61 (economic infeasibility). Moreover, the compliance officer's affidavit states that, after the inspection in this case, he observed that Carabetta was complying with the standard at its Revere worksite. [[4]]

Carabetta's arguments against the citation in this case reflect a fundamental disagreement with the standard's requirements as applied to the mode of steel erection being employed in this case, i.e., the "three story increments" or "modules." An employer who disagrees with a standard, on the basis that its particular requirements are arbitrary or inappropriate, has two options. The employer may apply for a variance. See Walker towing Corp., 14 BNA OSHC at 2079 n.11, 1991 CCH OSHD at p. 39,162 n.11 (discussion of the variance option); Stone Container Corp., 14 BNA OSHC 1757, 1760, 1987-90 CCH OSHD ś 29,064, p.38,817 (No. 88-130, 1990) (other than a judicially-created defense or a settlement agreement that excuses strict compliance, the only legal excuse for noncompliance is a variance). The employer may also seek to have the Secretary alter her standard through rule-making proceedings. See 29 U.S.C. § 665(b)(1) (The Secretary may ...modify...any occupational safety or health standard...[w]henever the Secretary, upon the basis of information submitted...by an interested person, [or] a representative of any organization of employers[.]...determines that a rule should be promulgated. . ."). Such alterations to OSHA's safety standards cannot, however, be obtained in adjudicatory proceedings before the Commission, which only concerns itself with the employer's alleged violation of an existing standard. In these proceedings, employers cannot question a standard's wisdom. See Austin Engg. Co., 12 BNA OSHC 1187, 1188, 1984-85 CCH OSHD ś 27,189, p. 35,099 (No. 81-168, 1985), citing Van Raalte Co. 4 BNA OSHC 1151, 1152, 1975-76 CCH OSHD ś 20,633, p. 24,698 (No. 5007,1976) (the Commission lacks power to question the wisdom of a standard). See also Secretary of Labor v. OSHRC (CF & I Steel Corp.), 941 F.2d 1051, 1059 n.10 (10th Cir. 1991) ("[a]n employer may not simply substitute its judgment for that of OSHA . . . despite its subjective belief that an agency interpretation is invalid"); Phoenix Roofing, Inc. v. Secretary of Labor. 874 F.2d 1027, 1031 (5th Cir. 1989) ("[i]t would also be improvident for us to ... send employers the message that they [can] ignore the obvious mandates of the safety regulations and independently determine what, if any, measures should be undertaken in a given situation").[[5]] Accordingly, the Commission has no basis on which to entertain Carabetta's claims that § 1926.750(b)(2)(1) is unfair.

Willfulness

The Commission judge upheld OSHA's willful classification on the basis of the three prior citations and Carabetta's continued noncompliance: "Carabetta knew or should have known that there was a substantial certainty of receiving another citation should it continue to erect a building's framework without providing the tall protection [that was] required." Carabetta argues that a willful classification is unjustified in view of the standard's inconsistencies and contends that evidence of prior violations is insufficient evidence of willfulness. The Secretary argues that from the three prior citations concerning this standard. Carabetta can be deemed to have had a strong awareness of it and that, in view of its plain requirements, Carabetta cannot "seriously" assert any "good-faith misunderstanding" of it. In the secretary's view, Carabetta simply made a "conscious decision not to comply" at all -- disregarding both floors and safety nets -- because of the convenience of ignoring the fall protection requirements. The Secretary classifies the violation as willful because an employer's decision to substitute its own opinion for a standard demonstrates willfulness.

Willfulness is established with evidence that an employer knowledgeable of a standard's requirement either violated it intentionally or showed plain indifference to employee safety. Brock vs. Morello Bros. Constr., 809 F.2d 161, 163-64 (1st Cir. 1987) ("Morello"); accord. E.L. Jones and Son, Inc., 14 BNA OSHC 2129, 2133, 1991 CCH OSHD ś 29,264, p. 39,232 (No.87-8, 1991) ("intentional disregard for the requirements of the Act or plain indifference to employee safety" establishes willfulness). An employer's mere familiarity with an applicable standard does not establish willfulness. See Wright and Lopez, Inc., 8 BNA OSHC 1261, 1265, 1980 CCH OSHD ś 24,419, p. 29,777 (No. 76-3743, 1980). Instead, willfulness is established by such familiarity combined with either an actual awareness, at the time of the act, that it was "unlawful," or a "state of mind ... such that, if he were informed of the [standard], he would not care." Morello, 809 F.2d at 164.

Willfulness is negated by evidence that "the employer had a good faith opinion that the violative condition[] conformed to the requirements of the cited standard." Gdlang Corp., 14 BNA OSHC 1789, 1791, 1987-90 CCH OSHD ś 29,080, p. 38,870 (No. 85-319, 1990). The test of good faith in such cases is an objective one, i.e., whether the employer's belief concerning the factual matters in question had been reasonable under all of the circumstance. In other word's, the employer's belief must have been "nonfrivolous." See Secretary of Labor v. Union Oil of Cal. 869 F.2d 1039, 1047 (7th Cir. 1989), citing Morello. 809 F.2d at 165.

As we have discussed, the basis requirements of the cited standard were plain, and it is undisputed in this case that Carabetta actually understood the standard's plain meaning. i.e., to require a temporary floor below the employees or a safety net to protect against falling more than 25 feet. Also, from the three earlier citations, issued within the period of one year, Carabetta knew that OSHA was applying the standard according to its plain meaning. There is no direct evidence that, when Carabetta omitted to install the requisite fall protection. Carabetta did so with the "state of mind" of which Morello speaks. Ralph Carabetta's affidavit gives rise to an inference of such a state of mind, however. It explicitly states that "Respondent is undertaking a procedure that is the most reasonable approach in light of the system being used." In other words, realizing what the standard required, Carabetta decided instead to take a different "reasonable approach," more compatible with its steel erection methods. Although Carabetta had already been informed that its approach was "unlawful." Carabetta continued with it. Furthermore, since Carabetta's approach was different than that plainly required by the standard, Carabetta cannot have had a reasonable, good faith belief that it was conforming the standard. In particular, Carabetta did not provide alternative fall protection and has not established the infeasibility of every relevant alternative. In fact, the whole point of the Carabetta' challenge in this case appears to be that Carabetta was not conforming precisely because of a belief that the standard's requirement for temporary floors is unfair in the circumstances. We therefore classify the violation as willful.

Order

Accordingly, we affirm the Commission judge's decision affirming the willful citation and assessing a penalty of $5,000. The penalty is not in issue, the parties having stipulated that $5,000 is appropriate if the violation is classified as willful.

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Velma Montoya
Commissioner

DATED: December 18, 1991

SECRETARY OF LABOR,

Complainant

CARABETTA ENTERPRISES, INC.

Respondent.

OSHRC
DOCKET NO. 89-2007

DECISION AND ORDER

This case was presented on stipulated facts comprising the written statements of John DiRienzo, the compliance officer who inspected the worksite in question on July 22, 1988, and Ralph Carabetta, vice president of Carabetta Enterprises, Inc. (Carabetta). These statements establish that on July 22, 1988, Carabetta was in the process of erecting the steel frame of a building in Malden, Massachusetts, where three employees were observed installing vertical columns on the seventh story level without any fall protection; there was no planked or substantial floor at either the sixth or fifth story level, and the potential fall distance was approximately 28 to 30 feet.

Carabetta was cited for willful violation of the steel construction standard at 29 C.F.R. § 1926.750(b)(2)(i) which reads:

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, except when gathering and stacking temporary floor planks on a lower floor, in preparation for transferring such planks for use on an upper floor. Where such a floor is not practicable, paragraph (b) (1) (ii) of this section applies.

Carabetta was previously cited by OSHA for violating the same standard in April 1986, August 1986 and again in February 1987. The citations arose out of the same construction site in Revere, Massachusetts, and became final orders of the Commission. On the last two occasions, the citations were characterized as "repeated."

Carabetta's steel framework procedure entails "modules of approximately 30 feet", according to Ralph Carabetta:

4. In order to insure proper alignment and efficient use of the system, beams must then be placed around the perimeter to tie 4 such columns at about the 28 foot level and to allow for two intermediate stories of about 8 foot each between that level and the tightly planked or poured floor at the base of the column.

5. At that particular point in time, there are workers working for a brief period at a level 28 feet above the floor below. As quickly as is feasible, beams are then placed for the lowest intermediate (9 feet above the column base) floor and the necessary planking is placed at that level.

It is contended that because of the framework procedure used by Carabetta, the planked-floor requirement was "not practicable" within the meaning of the 750(b)(2)(i) standard; that "it is quite unclear how paragraph (b)(1)(ii) of this section applies, as stated in the regulations." The language of 750 (b)(2)(i) is unambiguous and its intent is plain. [[1]] It requires a planked and substantial floor "within two stories or 30 feet, whichever is less" below a tier of beams on which work is done, and "[w]here such a floor is not practicable" safety nets are to be used in accordance with "paragaph (b)(1)(ii)."[[2]] Carabetta had a choice: either plank the floor or install a safety net at the indicated levels. Carabetta did neither.

Carabetta also argues that the standard is "arbitrary" because its framework procedure would be permissible "where only one intermediate floor was planned (in other words 14- or 15-foot stories) but is a violation where two intermediate floors (8- to 10-foot stories) were planned." It is claimed that "the distinction is arbitrary and inappropriate in that the danger is as great or greater for workers at the 28-30 foot level on the two-story module than it is for workers at the 28-foot level on a three-story module." Written statement of Ralph Carabetta.

As originally promulgated, 29 C.F.R. § 1926.750(b)(2)(i) required a substantial floor to be maintained two stories or 25 feet, whichever was less, below each tier of beams "on which bolting, riveting, welding, or painting is being done." 39 Fed. Reg. 2015 (1974). The standard was amended in 1974 by lowering the distance at which a floor must be maintained from 25 to 30 feet below a beam, and by expanding application of the standard from beams "on which bolting, riveting, welding, or painting" is done to beams on which "any work" is done. 39 Fed. Reg. 24360 (1974).

The statement of reasons for the amendments offered by OSHA, published July 2, 1974, 39 Fed. Reg. 24360 - 24361, consisted in part of the finding that the 30-foot requirement would bring the "standard in line with current designs in steel construction which involve the use of a greater depth of structural beam members." It was also indicated that the amendments were made in response to comments from participants in the rulemaking proceeding that the original standard unnecessarily excluded from protection some operations or work activities. There is no suggestion in the standard's rulemaking process that would lead one to conclude its requirements are arbitrary. Indeed, the "two stories or 30 feet" requirement --- Carabetta's main concern -- is in conformity with section 6.2 of ANSI A10.13 - 1972:

There shall be a tight and substantial floor within two floors or 30 feet, which ever is less, below and directly under the portion of each tier of beams on which bolting, riveting, or welding is being done, except when gathering and stacking temporary floor planks on a lower floor, in preparation for transferring such planks for use on upper working floor....

The preamble to ANSI A10.13 - 1972 states: "An American National Standard implies a consensus of those substantially concerned with its scope and provisions." I should think this alone would effectively undercut any notion that the requirements of 750(b)(2)(i) are arbitrary.

A violation is willful if it was "an act done voluntarily with either an intentional disregard of, or plain indifference to the Act's requirements." Ensign-Bickford co. v. Occupational Safety & Health, 717 F.2d 1419 (D.C. Cir. 1983) (and cases cited therein) cert. denied 466 U.S. 937, 104 S.Ct. 1909, 80 L.E.2d 458 (1984) ; A. Schonbek & Co. v. Donovan, 646 F.2d 799 (2d Cir. 1980); S. Zara & Sons Contracting Co., 10 BNA OSHC 1334, 1982 CCH OSHD ś 25,892 (No. 78-2125, 1982). A violation is not willful "if the employer believed in good faith that the violative condition conformed to the requirement of the cited standard." C.N. Flagg & Co. 2 BNA OSHC 1539, 1974-75 CCH OSHD ś 19,251 (No. 1409, 1975). The test of good faith is an objective one: whether the employer's belief was reasonable under the circumstances. Western Waterproofing Co. v. Marshall, 576 F.2d. 139 (8th Cir. 1978).

The record of violating the same standard on three previous occasions during the period from April 1986 to February 1987 amply supports the "willful" characterization. Carabetta knew or should have known that there was a substantial certainty of receiving another citation should it continue to erect a building's framework without providing the fall protection required by 750(b)(2)(i).

FINDINGS OF FACT

1. In July 1988, Carabetta was erecting a steel frame building without providing a substantial floor within two stories or 30 feet, or any other fall protection.

2. Carabetta's employees were exposed to a hazard of falling some 28 to 30 feet because of the absence of fall protection, a condition which could have resulted in serious injury or death.

3. Carabetta's repeated violations of the same fall-protection standard clearly demonstrates plain indifference to OSHA's regulation.

CONCLUSION OF LAW

Carabetta willfully violated the OSH Act by failing to comply with the steel erection standard 29 C.F.R. § 1926.750(b)(2)(i).

ORDER

It is ordered that the September 14, 1988, citation is affirmed, and the stipulated penalty of $5,000 is assessed.

RICHARD DeBENEDETTO
Judge, OSHRC

Dated: April 17, 1990
Boston, Massachusetts

FOOTNOTES:

[[1]] The cited steel erection standard 29 C.F.R § 1926.750(b)(2)(i), states:

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, except when gathering and stacking temporary floor planks on a lower floor. . . . Where such a floor is not practicable, paragraph (b)(l)(n) of this section applies

The referenced standard, 29 C.F.R. § 1926 (1)(ii), states:

On buildings or structures not adaptable to temporary floors, and where scaffolds are not used safety nets shall be installed and maintained whenever the potential fall distance exceeds two stories or 25 feet. The nets shall be hung with sufficient clearance to prevent contacts with the surface of structures below

[[2]] Two other citations, serious and repeat were settled and are no longer involved in the case.

[[3]] Carabetta also contends that the cited standard and the standard to which it refers, see supra note 1, employ unenforceably vague terms to inform employers of the circumstances in which safety nets may be substituted for temporary floors. We need not address these contentions, however, because this employer did not use either form of fall protection and the employees were working more than 25 feet above the highest floor, a fall distance that violates either standard. Carabetta asserts that the employees were not working at such a great fall distance, but Carabetta's own affidavit states: "[T]o insure proper alignment and efficient use of the system [of modules], beams must then be placed around the perimeter [of the columns] to tie in 4 such columns at about the 28 foot level. . . (Emphasis added)

[[4]] Inasmuch as Carabetta has agreed to present this case on a record consisting entirely of stipulated facts, and has permitted this particular statement by the compliance officer to become part of the stipulation of fact without any further explanation regarding its significance or limitation regarding its relevance, we consider the statement admissible and material to the issue of whether Carabetta established an affirmative defense of infeasibility.

[[5]] In Phoenix Roofing, the court went on to find a de minimis violation because the employer's measures were substantially as protective as the standard's. Carabetta had not taken any protective measures, however, that would comply with applicable requirements of the cited standard, the requirement for temporary floors to protect against falling more than two stories and the requirement for safety nets to protect against falling more than 25 feet

[[1]] As the Secretary points out in her memorandum at 2, the District of Columbia Circuit Court had no problem with noting that the 750 (b)(2)(i) standard is "clear in its requirements." Donovan v. Williams Enterprises, Inc., 744 F.2d 170, 177 (D.C. Cir. 1984); L.R. Wilson & Sons, Inc. v. Donovan, 685 F.2d 664, 677 (D.C. Cir. 1982).

[[2]] Paragraph (b)(1)(ii), 29 C.F.R. § 1926.750(b)(1)(ii), reads:

On buildings or structures not adaptable to temporary floors, and where scaffolds are not used, safety nets shall be installed and maintained whenever the potential fall distance exceeds two stories or 25 feet. The nets shall be hung with sufficient clearance to prevent contacts with the surface of structures below.