UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 9985
B & B INSULATION, INC.,
Respondent.

April 18, 1977

DECISION

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

BARNAKO, Chairman:

This case presents the question of whether Administrative Law Judge Henry F. Martin, Jr. erred in vacating a nonserious citation for violation of 29 C.F.R. § 1926.28(a).[1] For the reasons that follow, we affirm the citation.

The facts are not disputed. Respondent, an insulation subcontractor, was insulating steam pipes at the Kirby Lumber Company plant in Silsbee, Texas. As a part of the job, on August 9, 1974, a foreman and two employees were insulating an 8-inch pipe which was located approximately 23 feet above the ground. To reach this pipe, the foreman and one of the employees were standing on a ‘rack’ of pipes which was located approximately 2 feet below, and parallel to the length of, the 8-inch pipe. The ‘rack’ of pipes consisted of three pipes all lying in a horizontal plane. The outside two pipes, 16-inch and 14-inch insulated pipes, were separated by a 15-inch space through which ran the middle pipe, an uninsulated pipe of unspecified diameter. The foreman and employee straddled the center pipe and stood with one foot on each of the outside pipes. As the insulating progressed along the 8-inch pipe, they walked down the rack.

The rack was 9 feet above the energized and uninsulated electrical power lines of a trolley which passed beneath the rack. The foreman used stainless steel wire to secure insulation to the 8-inch pipe, and he trailed the coil of wire down below and behind him. The wire contacted the power lines. As a result of electrical shock, the foreman was killed and the employee with him on the rack lost consciousness and fell to the ground. Neither the foreman nor the employee wore a safety belt tied-off to a lifeline or to the supporting structure above the 8-inch pipe.

Safety belts or scaffolds are used by employees in the insulating industry on some jobs which involve work above the ground. The practice in the industry is to leave the decision whether or not to use safety belts to the discretion of the supervisor on the jobsite. Several witnesses for Respondent testified that they did not think it was necessary to use safety belts when working from the pipe rack involved in this case. They thought that any falling hazard was minimal, and that, if safety belts were used, employees would be hindered in their work by the necessity to unhook and rehook the lanyards as they progressed along the rack. They expressed concern that employees could be tripped or pulled off their feet by the lanyard. They also testified that falls from pipes by insulation workers occurred only infrequently.

Judge Martin vacated the citation. As a threshhold matter he rejected Respondent’s argument that the standard was unenforceably vague, citing our decision in Hoffman Construction Co., 15 OSAHRC 327, BNA 2 OSHC 1523, CCH OSHD para. 19,275 (1975). He reasoned, however, that because the standard does not describe the conditions under which personal protective equipment must be used, it leaves the decision of when to use such equipment to the employer. He concluded that, because industry practice and custom did not require the use of safety belts under the circumstances of this case, Respondent did not violate the standard.

On review, Respondent continues to argue that the standard is unenforceably vague. We held in Hoffman Construction Co., supra, and have consistently held thereafter, that the standard is enforceable, and can be read to require the use of tied-off safety belts. See Otis Elevator Corp., 75 OSAHRC 4/A2, BNA 3 OSHC 1736, CCH OSHD para. 20,159 (1975); Eichleay Corp., 15 OSAHRC 635, BNA 2 OSHC 1635, CCH OSHD para. 19,324 (1975). Recently, however, our decision in Hoffman was reversed on appeal. Hoffman Construction Co. v. OSHRC, No. 75 1741 (9th Cir., Nov. 1, 1976).[2] The Court noted that the standard only applied when ‘this part (29 C.F.R. Part 1926) indicates the need for using such equipment . . .’ It determined that language in Part 1926 requiring the use of tied-off safety belts did not exist, and therefore held that the standard could not be read to require such protection.

Having carefully considered the court’s reasoning, we have respectfully concluded that we should follow our own precedent. See Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, BNA 4 OSHC 1185, CCH OSHD para. 20,691 (1976). In concluding that § 1926.28(a) only applies when another standard in Part 1926 requires the use of protective equipment, the court essentially read the phrase ‘indicates the need for using’ to mean ‘requires the use of.’ If, however, another standard requires the use of personal protective equipment, then that standard could be cited, and there would be no reason to rely on § 1926.28(a). The court’s reading thus would result in § 1926.28(a) being redundant to other standards. It is a familiar principle of statutory construction that such a result should be avoided if possible. U. S. v. Menasche, 348 U.S. 528 (1955); A. Sutherland, Statutory Construction, para. 46.06 (4th ed. 1973). In this case, the redundancy can be avoided by reading the phrase ‘indicates the need for using’ to be a general reference to the other sections in Part 1926. This is the interpretation given that phrase by Commissioner Van Namee in the lead opinion in Hoffman Construction Co., supra, and I believe that his analysis is sound.

Furthermore, the 9th Circuit’s conclusion that Part 1926 contains no requirement that tied-off safety belts be used is contrary to the interpretation of 1926.105(a)[3] advanced in Brennan v. Southern Contractors Service, 492 F.2d 498 (5th Cir. 1974). The 5th Circuit interpreted § 1926.105(a) to require the use of at least one of the enumerated methods of fall protection, which includes safety belts. A majority of the Commission agrees with that interpretation. See Crawford Steel Const. Co., No. 9622, BNA 4 OSHC 1891, CCH OSHD para. 21,338 (1976). If, however, we were to accept the 9th Circuit’s views concerning § 1926.28(a), we would necessarily have to reject the 5th Circuit’s interpretation of § 1926.105(a).

We recognize that the breadth of language used in § 1926.28(a) gives rise to a problem of lack of notice to employers of the conditions under which the use of personal protective equipment may be required. This problem, however, is largely alleviated by our decisions limiting the applicability of the standard to those situations in which industry customs or practice, or other extrinsic criteria, indicate that such equipment should be used. See Frank Briscoe Co., No. 7792, BNA 4 OSHC 1729, CCH OSHD para. 21,162 (1976), and cases cited therein. If we now decline to enforce § 1926.28(a), the likely result would be that Complainant would bring ‘safety belt’ cases under either § 1926.105(a) or under the general duty clause (29 U.S.C. § 654(a)(1)).[4] In neither case would employers be more on notice of the conditions under which safety belts are required than they now are under our interpretation of § 1926.28(a).[5]

Turning to the merits, we note that Judge Martin properly held that industry customs and practice are relevant in determining whether a violation existed. Frank Briscoe Co. supra. He erred, however, in relying on an industry practice which leaves the decision whether to use fall protection to the uncontrolled discretion of the foreman on the jobsite. The standard must be interpreted to impose the same requirements on all similarly situated employers. Thus, the inquiry must be whether a reasonably prudent employer in the industry would have recognized the need for fall protection under the particular set of circumstances shown to exist in this case. See Cape and Vineyard Division v. OSHRC, 512 F.2d 1148 (1st Cir. 1975); Brennan v. Smoke-Craft, Inc., 530 F.2d 843 (9th Cir. 1976).

The record shows that falls have occurred when employees have stood on pipes to install insulation, and that safety belts are sometimes used to protect against such falls.[6] While injuries resulting from such falls are usually slight, in this case a fall of 21 feet was possible and serious injury likely. We conclude that a reasonably prudent employer in Respondent’s industry would have recognized the need for fall protection under these circumstances.

The question remains whether Complainant sustained his burden of showing that the use of safety belts was the appropriate type of fall protection in this case. Frank Briscoe Co., supra. The record shows that safety belts are sometimes used for fall protection by employees installing insulation, and that, under the circumstances of this case, safety belts could have been tied off to the structure above the 8-inch pipe or to a lifeline. Respondent’s evidence shows that safety belts can be inconvenient since an employee must unhook and rehook the lanyard as he moves along the length of the pipe that he is insulating and since the employee’s movements will be limited by the length of his lanyard. Respondent did not, however, show any aspect of the operation which requires constant and quick movement, and therefore, it appears that it was feasible to use safety belts. Accordingly, we find that Respondent violated 1926.28(a) as alleged, and we will affirm the nonserious citation.

We turn now to the assessment of an appropriate penalty. Respondent has no history of prior violations, is medium-large in size, and has shown good faith, but the gravity of the violation is moderate to high because of the severity of the injury likely to result from a fall. We conclude that a penalty of $90 is appropriate.

Accordingly, the nonserious citation for violation of 29 C.F.R. § 1926.28(a) is affirmed and a penalty of $90 is assessed. It is so ORDERED.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATE: APR 13, 1977

CLEARY, Commissioner, CONCURRING:

Although I concur in the Chairman’s disposition, I disagree with his reasoning. Regrettably, my concurrence continues a three-way split in the interpretation of the standard at 29 CFR § 1926.28(a). In my opinion, however, the remedial objectives of the Act are not well served by the interpretations advanced by the Chairman, Commissioner Moran, or the Ninth Circuit.

In declining to follow the Ninth Circuit’s decision in Hoffman Constr. Co. v. O.S.H.R.C., 546 F.2d 281 (9th Cir. 1976),[7] my colleague has properly recognized this Commission’s role in establishing national uniformity in the application of the Act. Keystone Roofing Co., Inc. v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976); Monroe & Sons, Inc., 4 BNA OSHC 2016, 1976 77 CCH OSHD para. 21,470 (No. 6031, 1977).

The Hoffman court and Commissioner Moran are in basic agreement that § 1926.28(a) should be read to require the use of appropriate personal protective equipment only when another standard in Part 1926 requires the use of a specified from of personal protective equipment. In the context of a safety belt requirement, however, they disagree as to the proper reading of § 1926.28(a) in conjunction with Part 1926 standards. See Hoffman Constr. Co. v. O.S.H.R.C., supra; Otis Elevator Co., 3 BNA OSHC 1736, 1975 76 CCH OSHD para. 20,159 (No. 1184, 1975) (Moran, Commissioner, dissenting); Leon Marrano & Sons, Inc., 3 BNA OSHC 1117, 1974 75 CCH OSHD para. 19,549 (No. 3580, 1975) (Moran, Chairman, concurring). It is clear, however, that a majority of this Commission has consistently rejected the court’s and Commissioner Moran’s interpretation of the standard, albeit for somewhat different reasons. See, e.q., Carpenter Rigging & Contracting Corp., 2 BNA OSHC 1544, 1974 75 CCH OSHD para. 19,252 (No. 1399, 1975); Isseks Bros., Inc., 3 BNA OSHC 1964, 1975 76 CCH OSHD para. 20,361 (No. 6145, 1976); Sweetman Constr. Co., 3 BNA OSHC 2056, 1975 76 CCH OSHD para. 20,466 (No. 3750, 1976).

In his lead opinion in the instant case and in other cases on this issue decided during his term, Chairman Barnako has adopted the interpretation of former Commissioner Van Namee in Hoffman Constr. Co., 2 BNA OSHC 1523, 1971 75 CCH OSHD para. 19,275 (No. 644, 1975), rev’d, 546 F.2d 281 (9th Cir. 1976). He reads the two clauses of § 1926.28(a) as conjunctive, requiring satisfaction of a two-step test before personal protective equipment is required. Specifically, he would require: (1) that employees be exposed to hazardous conditions and (2) that a general reference to another standard in Part 1926 indicates a need for using personal protective equipment to reduce the hazards. I would not.

The standard at 29 CFR § 1926.28(a) provides as follows:

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.

It has been my consistent view that the two clauses in the standard describe two separate situations where the use of personal protective equipment is required.[8] Carpenter Rigging & Contracting Corp., supra (lead opinion), Hoffman Constr. Co., supra (concurring opinion). The first clause makes an employer responsible for the wearing of appropriate personal protective equipment in any operation ‘where there is exposure to hazardous conditions,’[9] the second where Part 1926 specifically ‘indicates the need for using such equipment.’ The lead opinion interprets the phrase ‘indicates the need for using’ as a general reference to Part 1926 that must be read in conjunction with the first clause. In my opinion, such an interpretation is erroneous. To require personal protective equipment only when there is both a hazard and an indication in other standards that such equipment is required renders § 1926.28(a) redundant of those other standards. In order to avoid this redundancy, I read the entire standard as mandating the use of personal protective equipment in those hazardous situations not specifically dealt with elsewhere in Part 1926 as well as those addressed by specific standards in Part 1926.

In any event, if I were to adopt the Ninth Circuit’s more restrictive reading of § 1926.28(a), which requires reference to another standard requiring the use of safety belts, I would disagree with its conclusion that a search for a safety belt requirement proves ‘fruitless.’ In Brennan v. Southern Contractors Service, 492 F.2d 498 (5th Cir. 1974), the U.S. Court of Appeals for the Fifth Circuit interpreted 29 CFR § 1926.105(a) to require the use of any of the fall protection methods enumerated in the standard, one of which is safety belts. Thus, the portion of the Hoffman opinion in which the court failed to locate a standard requiring safety belts is inconsistent with the Fifth Circuit’s and the Commission’s reading of § 1926.105(a). Section 1926.28(a) is enforceable and applicable to the facts of this case.

The lead opinion may be read to limit the applicability of § 1926.28(a) ‘to those situations in which industry customs or practices indicate that such [personal protective] equipment should be used (cite omitted).’[10] I would not. As I stated in the lead opinion in Isseks Bros., Inc., 3 BNA OSHC 1964, 1975 76 CCH OSHD 20,361 (No. 6415, 1976):

[W]hether a hazardous condition exists can be determined by reference to industry’s recognition of a hazard, but this is not necessarily controlling.

3 BNA OSHC at 1965 n.3, 1975 76 CCH OSHD at p. 24,287 n.3 (cite omitted) (emphasis added). It does not serve the remedial purpose of the Act to limit the application of any standard by industry customs and practices that may fail to recognize and deal adequately with an obvious hazard, one of common notoriety. Excessive dependence upon existing industry customs and practices countenances the status quo and, therefore, detracts from the Act’s remedial objectives. See Society of Plastics Indus. Inc. v. O.S.H.A., 509 F.2d 1301, 1309 (2d Cir. 1975); Staff of Senate Comm. on Labor & Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety & Health Act of 1970 141 5 (Comm. Print 1971).

These suggestions would also make more simple the problems of proof in a case of this sort, and therefore tend to provide for a speedier hearing.

Here, respondent’s employees stood 23 feet above the ground and 9 feet above an energized and uninsulated electric power line with one foot on each of two pipes and wore no personal protective equipment. The risk to the employees is demonstrated by the fatal accident that occurred, and the appropriate method of abatement may be inferred. Resort to industry custom or practice or even to injury records is unnecessary.

In light of the above, it is important to note my disagreement with the Chairman’s discussion of complainant’s burden of proof in the context of a § 1926.28(a) violation. In footnote 5 of the lead opinion it is stated that the elements necessary to establish noncompliance with § 1926.28(a) are comparable to those required to prove a violation of 29 U.S.C. § 654(a)(1), the ‘general duty’ clause of the Act. I reject the drawing of this parallel as being both inconsistent with the text of the Act[11] and unnecessary under the facts of this case. In § 1926.28(a) cases complainant has the burden of proving the existence of a hazard and the appropriateness of a specific form of personal protective equipment. This does not mean, however, that complainant must affirmatively establish the feasibility and likely utility of the suggested form of protection. Rather, once a method is suggested, the employer may assert an impossibility of compliance defense. See Brennan v. O.S.H.R.C. & Underhill Constr. Corp., 513 F.2d 1032, 1035 (2d Cir. 1975); United States Steel Corp. v. O.S.H.R.C., 537 F.2d 780, 782 (3d Cir. 1976). In this case respondent has not proved that it would be impossible to use a safety belt system to protect its employees or that such a system would render the performance of the assigned job impossible. A violation has been established because complainant has shown that a hazard existed that could be alleviated by the use of a safety belt system.

MORAN, Commissioner, Dissenting:

Judge Martin’s decision, which is attached hereto as Appendix A, is correct and should be affirmed for the reasons set forth therein. Furthermore, his vacation of the 29 C.F.R. § 1926.28(a) charge is correct for another reason.

Section 1926.28(a) is invalid in its present form because the Secretary of Labor failed to follow the rulemaking procedures required by 29 U.S.C. § 655(b) in promulgating the revised version thereof. Secretary v. Island Steel & Welding, Ltd., 17 OSAHRC 143 (1975) (dissenting opinion).[12] Since the modified version of § 1926.28(a) is invalid, the original version remains in effect. Secretary v. Island Steel & Welding, Ltd., supra. That standard provides as follows:

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.[13] (Emphasis added.)

In order to sustain his burden of proving noncompliance with the above-cited standard, complainant must establish (1) that there was employee exposure to a hazardous condition which warrants use of personal protective equipment, and (2) that there was a failure to use this equipment when such use was required elsewhere in Part 1926 of the regulations. This burden is consistent with that which was set forth by the Ninth Circuit in Hoffman Construction Co. v. OSAHRC, 546 F.2d 281 (9th Cir. 1976),[14] where the Court considered the original version of § 1926.28(a).[15]

As indicated in the dissenting opinion in the Island Steel case, 29 C.F.R. § 1926.105(a), the standard in Part 1926 which comes closest to requiring the use of a safety belt, can be read together with § 1926.28(a) to indicate the need for safety belts when employees were working at heights in excess of 25 feet. In the instant case the employees involved were working at a height of 21 feet. Since § 1926.105(a) would not, therefore, apply in these circumstances, and complainant has not pointed out any other applicable standard in Part 1926, there can be no violation of § 1926.28(a).

APPENDIX A

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 9985
B & B INSULATION, INC.,
Respondent.

May 7, 1975

*1 APPEARANCES:

Ms. Jane A. Matheson, Attorney USDOL, Solicitor’s Office 555 Griffin Square, Suite 707 Dallas, Texas 75202 Attorney for the complainant

Mr. P. Allan Port, Esquire 1110 Houston Citizens Bank Building Houston, Texas 77002 Attorney for the respondent

DECISION AND ORDER

MARTIN, Judge:

This is a proceeding brought pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 USC § 651 et seq.), hereinafter referred to as the Act, contesting two citations and a notification of proposed penalty issued by the complainant against respondent under the authority vested in complainant by section 9(a) of the Act.

The citation alleges that as a result of an inspection of a work place under the operation and control of respondent located on the premises of the Kirby Lumber Co. at Silsbee, Texas, respondent violated section 29 CFR 1926.400(c) and section 29 CFR 1926.28(a). The citation alleges that the inspection of respondent’s work place occurred on August 13th and 14th, 1974, and it appears that the same was issued on August 28, 1974. A notification of proposed penalty was issued by the area director, Mr. Thomas T. Curry, wherein total penalties of $690.00 were proposed.

The serious citation reads as follows:

Item	Standard or Regulation Number Allegedly Violated	Date on Which Alleged Violation Must be Corrected	Description of Alleged Violation
1	29 CFR 1926.400(c)	Immediately upon receipt of this citation.	Employees were permitted to work in close proximity to an electric power circuit, specifically electric trolley lines, which was not de-energized or guarded by effective insulation or other means.

The nonserious violation reads as follows:

Item	Standard or Regulation Number Allegedly Violated	Date on Which Alleged Violation Must be Corrected	Description of Alleged Violation
1	29 CFR 1926.28(a)	Immediately upon receipt of this citation.	The employer did not require the wearing of appropriate personal protective equipment in an operation where there was an exposure to a hazardous condition. Specifically, the employees were not provided with or required to use safety belts or lifelines.

Subsequent to the issuance of the citations and accompanying notification of proposed penalty, respondent filed a timely notice of contest. Thereafter complainant, through his regional solicitor, filed a formal complaint with the Review Commission and respondent, through its counsel, has filed a formal answer generally denying the allegations set forth in the complaint. The answer admits that the Review Commission has jurisdiction of this matter and also admits that respondent was engaged in a business affecting commerce within the meaning of the Act.

Pursuant to notice a formal hearing was conducted in this matter in Houston, Texas, on December 17, 1974, at which time complainant was represented by Ms. Jane A. Matheson of the Regional Solicitor’s office in Dallas, Texas, and respondent was represented by its attorney, Mr. P. Allen Port of the Houston, Texas, bar. Following the hearing briefs were submitted for the undersigned Judge’s consideration.

The issues to be resolved in this matter are whether respondent on the date of the inspection committed a serious violation of section 29 CFR 1926.400(c) and whether respondent committed a nonserious violation of section 29 CFR 1926.28(a).[16] Also, at issue herein is the question of the appropriateness of the proposed penalties.

There is no substantial dispute as to the facts in this matter. The inspection, which was conducted on August 13th and 14th of 1974, was the result of an accident which occurred on August 9, 1974, while three employees of respondent were engaged in the process of insulating steam pipes at their work place at the Kirby Lumber Co. plant, pursuant to a subcontract which respondent had with Casey Enterprises. At the time of the accident respondent’s employees were insulating an 8‘ steam pipe which was located approximately 2 feet above and parallel to three other pipes which formed a type of platform from which two employees were working. The so-called working platform or area where the two employees were standing was made up of one 16‘ pipe and one 14‘ pipe approximately 15‘ apart. In between these two pipes was a smaller uninsulated pipe running approximately parallel and on the same plane. Approximately 9 feet beneath the working platform were three electric power lines mounted on poles which ran perpendicular to the pipes where the men were working. The electric lines, which were not insulated, supplied power to a trolley car or moving platform used by Kirby Lumber Co. to move lumber. The trolley moved in a track installed along a concrete ditch which intercepted the work area. At the time of the accident respondent’s foreman, Mr. Alex Leleux, was applying sleeves of insulating material to the 8‘ pipe and was securing the sleeves of insulation to the pipe by means of a stainless steel wire from a coil which trailed below and behind him as he moved along with his insulating job. A second employee, Mr. Dan Mooney, was also standing on the parallel pipes and assisting Mr. LeLeux in insulating the pipe. A third employee, Mr. Herbert Gore, was standing on the ground where he was attaching a piece of rope to the sections of insulation so that the same might be lifted up to Mr. Mooney who would then hand the insulating material to Mr. Leleux.

While this process was taking place the trailing coil of stainless steel wire held by Mr. LeLeux contacted the energized trolley line beneath the work area, causing Mr. Leleux to be electrocuted. About the same time the helper, Mr. Mooney, came in contract with Mr. Leleux and the electrical shock knocked him out, causing him to fall backward over the pipes. He lost consciousness and fell off the pipe rack to the ground.

Regarding the alleged serious violation (29 CFR 1926.400(c)) it is respondent’s contention that it should not be found to be in violation because of the oversight or erroneous decision of an employee. In essence, counsel for respondent states that its office personnel were never warned of the location of the trolley wires and that respondent could not have expected its district engineer to have been alerted to any unusual hazard in the work place by the general contractor. In the absence of any actual knowledge of the wires, respondent states that it was entitled to rely on its job foreman to detect and cope with any hazards encountered on the job.

The standard in question prohibits any employer from allowing an employee to work in close proximity to any electric power circuit unless the employee is protected by (1) the de-energizing of the circuit and grounding it, or (2) by guarding it by effective insulation or other means. Neither of these two protective measures were taken. Since Mr. Leleux was electrocuted and Mr. Mooney was critically injured, it must be concluded that they were working in close proximity to the energized power circuit.

The evidence reflects that Mr. Gore, who was working on the ground and handing insulating materials up to Mr. LeLeux and Mr. Mooney, was aware of the trolley being operated near their place of work on the date in question and it was his opinion that Mr. Leleux, the foreman, also knew that the trolley was being operated. (Tr. 107) The trolley lines were clearly visible as indicated by the witnesses and as shown in the exhibits. The foreman had been on the Kirby Lumber Co. job site for approximately six weeks prior to the unfortunate accident. Also, since the trolley lines were only nine feet below the pipes where respondent’s workers were standing, an electrical hazard could reasonably have been anticipated.[17] It is a common practice in the insulation business for a worker to allow a wire to trail loosely behind him while tying insulation to pipes. It is here concluded that respondent, through its foreman, should have realized that there was a hazard on the work site where the trolley wires were only 9 feet away from the workers. It behooved the foreman to make certain that the lines were de-energized or to see that a protective covering was placed over the ‘hot’ wires in the event a different method of attaching the insulation could not be utilized.

Since respondent’s foreman actually knew of the conditions existing at the place where he and his co-workers were performing the task of insulating the pipes, it is no defense to claim that its ‘office personnel’ had never been warned of the location of the power circuit. Neither can it be concluded that this unfortunate accident was the result of an isolated or unpredictable event. Since electrocution is a real possibility when working around ‘hot’ wires, it must be concluded that there was a substantial probability of death or serious bodily harm and that a serious violation existed within the purview of section 17(k) of the Act.

In the case of Cox Brothers, Inc., Docket 2763, CCH Para 16,733, issued October 10, 1973, a foreman was electrocuted when he came in contact with power lines some 9 feet away, which lines had not been de-energized nor had they been covered with insulating material. There, the Administrative Law Judge rejected the employer’s argument that the prime contractor, or company for whom the building was being built, was responsible for handling the power line matter and ruled that the responsibility for employee safety could not be delegated. It was held that the victim, the foreman, was the company’s representative on the job site and that his violation of the regulations constituted a violation of the part of the employer. Here, since respondent’s employees, including the foreman, knew of the existence of the trolley lines prior to the date of the accident and since the aforementioned wires were clearly visible, it must be concluded that respondent could, with reasonable diligence, have ascertained that there was a danger to its employees.[18]

Complainant has proposed a $600 penalty for the serious violation of section 29 CFR 1926.400(c). Subsection 17(b) of the Act authorizes a maximum penalty of $1,000 for serious violations. Subsection 17(j) of the Act grants the Review Commission authority to assess civil penalties and specifies the following criteria in connection with penalties.

‘The Commission shall have authority to assess all civil penalties . . . giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer and the history of previous violations.’

The complainant has developed certain guide lines in his compliance manual for the computation of proposed penalties, whereby certain percentage reductions are allowed for the factors of good faith, size, history, gravity, and prompt abatement. As the Review Commission pointed out in the case of Nacirema Operating Co., 1 OSAHRC 33 (1972), it is not always possible to fix penalties according to any precise mathematical formula and the factors previously mentioned cannot always be accorded equal weight. While history of previous violations and company size are factors which might be determined on a precise basis, considerable leeway must be allowed when considering the factors of gravity and good faith, since these items are affected largely by subjective judgment on the part of enforcement officials. After carefully considering all of the foregoing factors, it is the undersigned Judge’s opinion that a penalty of $250 is appropriate under all of the facts and circumstances herein.

Regarding the nonserious charge, section 29 CFR 1926.28(a), the evidence reflects that respondent did not require its employees to wear safety belts on the date of August 9, 1974. Two of respondent’s employees were working approximately 21 feet above the ground without wearing safety belts or lifelines while they were insulating the aforementioned steam pipe. The compliance officer testified that the probable result of a fall from the pipe rack would be a serious or fatal injury and as the evidence has indicated herein, Mr. Mooney did fall from the pipe rack after he received an electrical shock when he came into contact with Mr. Leleux.

It is respondent’s contention that lifelines and safety belts are not appropriate for the type of operations which its employees were engaged in on the date of the accident. Respondent stated that because of the great variety of work areas on various jobs it was the uniform practice in the industry to delegate to the job foreman the decision as to whether safety belts and life lines should be used at any given time. It was further contended that the pipe rack could be considered as a relatively safe work platform and that the industry in general has experienced virtually no falls from pipe racks of the type being used at the Kirby work site. In addition, it was stated that safety lines fixed to a static object would tend to increase rather than decrease the hazard of accidental falls. Generally speaking, it is respondent’s opinion that safety belts or lifelines would not have been ‘appropriate personal protective equipment’ under the circumstances as they existed on the work site in question.

Respondent has also contended that section 29 CFR 1926.28(a) is not sufficiently specific to apprise respondent as to what is required in the nature of protective equipment. Respondent points out that the standard fails to indicate what is meant by the term ‘hazardous conditions’ and fails to prescribe the type of personal protective equipment which might be ‘appropriate’ to fit any given situation.

With respect to respondent’s attack on the standard it must be admitted that the language of this standard is very broad and does not prescribe specific requirements for the use of certain items of protective equipment.

In view of the Review Commission’s recent ruling in the Hoffman Construction Co. case, Docket 644, decided January 31, 1975, respondent’s contention that the standard is unenforceably vague must be rejected. There, the same personal protective equipment standard was upheld. The Commission stated:

Standards employing broad terms are not per se defective so long as their scope may be defined by other regulations, industry customs and practices, or other extrinsic means.

The Commission also cited the case of Modern Automotive Services, Inc., 6 OSAHRC 738 (1974), wherein a similar standard, 29 CFR 1910.132(a) was found to be enforceable. It was further pointed out that industry customs may be used to determine the precise requirement of general protective equipment standards.[19]

As previously indicated the standard in question, 29 CFR 1926.28(a) does not put an employer on notice as to the necessity of any specific protective equipment. Apparently it is left to the judgment of the employer to determine when it is appropriate to wear certain personal protective equipment. One of respondent’s employees, Mr. Gore, testified that the use of a safety belt would hamper the effectiveness of his work. However, he stated that a safety belt would be used whenever the foreman deemed it necessary. He personally did not feel that a safety belt or lifeline was required while working off of a pipe rack. He was of the opinion that a pipe rack formed a stable work platform.

Testimony form respondent’s witnesses, who have had many years of experience in the insulation business, was to the effect that falls are very infrequent, that a pipe rack is a safe working area, that a pipe rack does not present a significant hazard, and that it is not an industry custom or practice to wear safety belts and lifelines under the type of conditions present here. It was also pointed out that under certain conditions the wearing of a safety belt could increase the hazard of working on a pipe rack because of the necessity to move about or walk along the pipe rack as required in applying insulation.

The compliance officer testified there was a hazard of falling off the pipe rack with the probability of serious injury, which hazard could be prevented by the wearing of protective equipment such as safety belts. He was not aware of any statistical data regarding the frequency of this type of injury and had no personal knowledge of any falls from the pipe rack other than the one which occurred here where Mr. Mooney’s fall was precipitated by the electrocution of Mr. Leleux.

After carefully weighing all of the evidence, it is concluded that a violation of section 29 CFR 1926.28(a) has not been established. It has not been shown that the wearing of safety belts and lifelines would be considered as ‘appropriate’ personal protective equipment in this case. It is not a practice or custom in the insulation business to wear safety belts while working off of pipe racks of this type. The fact that a fall might have been prevented had Mr. Mooney worn a safety belt and lifeline does not establish the fact that the industry would have recognized the need for such equipment under these circumstances. The approximate cause of Mr. Mooney’s fall was, of course, the electrical shock. There is no evidence in the record to show that a reasonably prudent person, fully knowledgeable of the insulation installation business would have known that safety belts and lifelines would be necessary or that the same would be required as ‘appropriate’ personal protective equipment within the meaning and intent of section 29 CFR 1926.28(a).

In the Ryder case (supra), where the citation for personal protective equipment (safety shoes) was affirmed, there was a history of toe injuries. Here, there was no evidence as to the frequency or severity of falls at respondent’s work places as a result of the failure to wear personal protective equipment. The fact that there is no evidence of prior history or of accidents or falls while working on insulation projects would tend to indicate that there is no significant hazard. Accordingly, the citation and notification of proposed penalty will be vacated.

FINDINGS AND CONCLUSIONS

The entire record herein supports the following findings and conclusions:

1. That respondent, B & B Insulation, Inc., at all times material hereto, was an employer engaged in a business affecting commerce within the meaning of section 3 (5) of the Act, and the Review Commission has jurisdiction of the parties and subject matter herein.

2. That on August 9, 1974, and subsequent thereto, respondent utilized three employees who were engaged in insulating an 8‘ steam pipe on the premises of the Kirby Lumber Co. at Silsbee, Texas, while standing on a pipe rack composed of three pipes which ran below and parallel to the 8‘ pipe which was being insulated.

3. On the aforementioned date two of respondent’s employees, LeLeux and Mooney, were working approximately 21 feet above the surface and while standing on the pipes, which served as working area or platform, said employees were within approximately nine feet of an electric trolley power circuit which crossed at right angles to the aforementioned pipes.

4. While two of the employees were engaged in applying insulation to the 8 “ steam pipe, Mr. Leleux permitted a piece of steel wire, trailing along behind him, to come in contact with the energized power circuit, causing him to be electrocuted. It was stipulated between the parties and the evidence reflects that the trolley lines in question were carrying high voltage current and that electrocution by the power circuit would result in a substantial probability that death or serious physical harm would occur.

5. That on the aforementioned date respondent’s employees were not wearing lifelines or safety belts while they were installing insulation at the Kirby work site.

6. That respondent violated the provisions of section 29 CFR 1926.400(c) on the aforementioned date since it could have foreseen that its employees might be exposed to a hazard likely to result in death or serious physical injury at the aforementioned work site.

7. That it is concluded that a serious violation within the meaning of section 17(k) of the Act has been established and that a reasonable and appropriate penalty would be $250.00.

8. That it has not been established that respondent violated the provisions of section 29 CFR 1926.28(a) since it has not been shown that the use of safety belts and lifelines in the insulation of pipes would fall within the category of ‘appropriate’ personal protective equipment as referred to in said standard.

ORDER

Based upon the foregoing findings and conclusions and upon the entire record, it is ORDERED that:

1. The citation for serious violation be and the same is hereby affirmed and the penalty therefor is assessed in the sum of $250.

2. The citation for nonserious violation and accompanying notification of proposed penalty be and the same are hereby vacated.

3. This proceeding be and the same is hereby terminated.

HENRY F. MARTIN, JR.

JUDGE

DATED: May 7, 1975

---

[1] The standard provides:

(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

[2] The version of the standard at issue in Hoffman contained the word ‘and’ in place of the ‘or’ in the version quoted in footnote 1, supra. The difference results from an amendment of the standard described as nonsubstantive. 37 F.R. 27510 (Dec. 16, 1972). We have stated that the two versions should therefore be read to have the same meaning. Eichleay Corp., supra.

[3] This standard provides:

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

[4] 29 U.S.C. § 654(a)(1) provides:

Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

[5] A violation of 29 U.S.C. § 654(a)(1) cannot be found when a specific standard is applicable. Godwin-Bevers Co., 14 OSAHRC 723, BNA 2 OSHC 1470, CCH OSHD para. 19,215 (1975). By its terms, § 1926.105(a) applies only where there is a potential fall distance of more than 25 feet. Even for lesser fall distances, however, the requirement of 29 U.S.C. § 654(a)(1) that a violation be ‘likely to cause death or serious physical harm’ might be satisfied.

Two courts have commented on the imprecision of the language used in § 1926.105(a). Brennan v. OSHRC (Ron M. Fiegen, Inc.), 513 F.2d 713 (8th Cir. 1975); Brennan v. OSHRC (Pearl Steel Erection Co.), 488 F.2d (5th Cir. 1973). Additionally, 29 U.S.C. § 654(a)(1) is itself drafted in broad terms, comparable to § 1926.28(a). We have, in fact, held that a violation of § 1926.28(a) requires elements of proof comparable to 29 U.S.C. § 654(a)(1). Frank Briscoe, Inc., supra.

[6] Respondent argues that the ‘rack’ of pipes is a safe platform such that fall protection equipment is unnecessary. The argument must be rejected. The word ‘platform’ is defined as meaning

‘A working space for persons, elevated above the surrounding floor or ground, such as a balcony or platform for the operation of machinery and equipment.’ 29 C.F.R. 1926.502(e).

Clearly, spaced apart pipes of cylindrical shape do not constitute a platform within the meaning of the definition. But even if they are a ‘platform’ they certainly are not ‘safe’ on the facts of this case since they were not provided with guardrails as is required by 29 C.F.R. 1926.500(d)(1).

[7] In Hoffman, the Ninth Circuit expressly declined to rule on the validity of the ‘or’ version of 29 CFR § 1926.28(a) which is at issue in this case. I will, however, assume that the court’s opinion is applicable to the version of the standard presented here. See Eicnleay Corp., 2 BNA OSHC 1635, 1974 75 CCH OSHD para. 19,324 n.1 (No. 2610, 1975) (the word ‘or’ in the amended standard should receive the same reading as the word ‘and’ as used in the initial version.)

[8] I have applied a disjunctive reading of the standard both before and after § 1926.28(a) was amended to include the word ‘or’ in the place of ‘and.’ Eichleay Corp., supra.

[9] Read thusly, application of the first clause of § 1926.28(a) is not unlike application of 29 CFR § 1910.132(a) in McLean Trucking Co. v. O.S.H.R.C., 503 F.2d 8 (4th Cir. 1974) and Ryder Truck Line, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974). The standard at 29 CFR § 1910.132(a) concerns the use of personal protective equipment in general industry.

[10] It is not entirely clear what standard the lead opinion follows as to the relevancy of industry customs and practices. As noted above, it is stated at one point that the scope of § 1926.28(a) is limited to situations where industry customs and practices indicate the need for personal protective equipment, which makes the customs and practices determinative. Later in the opinion, however, industry customs and practices are found to be merely ‘relevant’ in determining whether a violation exists. To the extent that industry customs and practices are regarded to be more than relevant, I disagree with the lead opinion.

[11] Isseks Bros., Inc., supra.

[12] Also see my dissenting opinions in Secretary v. Cornell & Co., OSAHRC Docket No. 9054, September 22, 1976; Secretary v. Kelly Construction Services, Inc., OSAHRC Docket No. 7102, July 26, 1976; Secretary v. Sweetman Construction Co., OSAHRC Docket No. 3750, March 2, 1976.

[13] The only difference in the two versions is that the word ‘or’ was substituted for the word ‘and’ in the revised version.

[14] The Court stated the following:

Liability under 29 C.F.R. § 1926[.28(a)] as then written required proof of three elements: (1) that the employer did not require the wearing of protective equipment; (2) that there was exposure to hazardous conditions; and (3) that Part 1926 of the regulations indicated a need for protective equipment. 546 F.2d at 283.

[15] Since the Court expressly limited its holding in Hoffman to the original version of the cited standard, the majority’s criticism of that decision in a case in which they are finding respondent liable for noncompliance with a modified version of the same standard is totally inappropriate. See 546 F.2d at 283, footnote 5, where the Court states the following:

The regulation was redrawn December 16, 1972 after this case arose. The word ‘or’ was substituted for ‘and.’ We express no opinion upon the current version.

My colleagues have previously reached the ridiculous conclusion that the revised version did not make a substantive change in the original version because ‘and’ therein meant ‘or.’ Secretary v. Sweetman Construction Co., OSAHRC Docket No. 3750, March 2, 1976 (concurring opinion); Secretary v. Eichleay Corp., 15 OSAHRC 635 (1975). Apparently, my colleagues are now concerned that a reviewing court might say that ‘or’ in the revised version means ‘and.’ It is inconceivable that any court could reach that absurd conclusion. See Secretary v. Carpenter Rigging and Contracting Corp., 15 OSAHRC 400 (1975) (dissenting opinion).

[16] Section 1926.28(a)—Personal Protective Equipment.

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.

Section 1926.400(c) Protection of employees

(1) No employer shall permit an employee to work in such proximity to any part of an electric power circuit that he may contact the same in the course of his work unless the employee is protected against electric shock by deenergizing the circuit and grounding it or by guarding it by effective insulation or other means. In work areas where the exact location of underground electric power lines is unknown, workmen using jack-hammers, bars, or other hand tools which may contact a line shall be provided with insulated protective gloves.

(a) Before work is begun the employer shall ascertain by inquiry or direct observation, or by instruments, whether any part of an electric power circuit, exposed or concealed, is so located that the performance of the work may bring any person, tool, or machine into physical or electrical contact therewith. The employer shall post and maintain proper warning signs where such a circuit exists. He shall advise his employees of the location of such lines, the hazards involved and the protective measures to be taken.

[17] Relative to the existence of hazards, Mr. Gore testified in part as follows:

Q Did you have any discussion among yourselves, Mr. Gore, during the progress of the work about the existence of these power lines?

A Yes, we did. There was never a formal meeting that we had since there was only three of us, but quite often something was mentioned about safety.

There was a gentleman working with the pipefitters up there and he and Mr. Leleux were associates on working different jobs at different places together over the years and he had mentioned to us that there was some hot wires over there when we got to that one part, and that was the only warning that any of us probably had on the whole thing.

Q This man mentioned this in advance of your arrival there?

A Yes. This was three or four days before we got onto that part. This was in the same week, but it was a few days before.

Q Did you have any question that morning about whether the lines were there and whether they were hot? Was there any discussion?

A Well, the part that we mentioned that morning, just above where they were on this part working, which a person could have reached easily by his hand there was a conveyor belt that, if my memory is correct, carried shavings and other particles from the planers or cutters, or whatever, and it’s a moving thing, and it was mentioned that there was a lot of hazards in that area and to be careful, but myself being on the ground I paid little attention to it, due to the fact that I knew I wasn’t going to be up there.

Q This was Alex mentioning that there was hazards overhead?

A Right.’ (Tr. pages 84 and 85).

[18] Also, attention is invited to the recent case of Floyd Pike, Inc., DOCKET NO. 3069, issued January 30, 1975, where a foreman was electrocuted by coming in contact with high voltage power lines. The Review Commission, among other things, stated:

Respondent’s foreman was the representative of the employer at the work site and his violative acts must be imputed to respondent. Similarly, the ‘knowledge’ element for a serious violation under the criteria of section 17(k) is satisfied by imputing to respondent the foreman’s knowledge of the existence of the hazard.

[19] Also, see Ryder Truck Lines, Inc., 497 F 2nd 230 (5th Cir., 1974) and the recent case of Cape and Vineyard Division of the New Bedford Gas and Edison Light Co., decided March 3, 1975 (1st Cir).