CLAUDE NEON FEDERAL COMPANY

OSHRC Docket No. 13810

Occupational Safety and Health Review Commission

June 1, 1977

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Before BARNAKO, Chairman and CLEARY, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Regional Solicitor, U.S. Department of Labor

H. P. Primm, President, Claude Neon Federal, for the employer

George Seaman, National Electrical Contractors Association, Inc., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On December 8, 1975, Judge Robert N. Burchmore issued a decision amending the citation and complaint from a serious violation of section 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §   651 et seq., to a "serious" violation of section 5(a)(2) for noncompliance with 29 CFR §   1926.28(a), n1 affirming the citation and assessing a penalty of $550 therefor.   For the reasons that follow, we affirm the Judge's decision.

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n1 §   1926.28 Personal protective equipment.

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

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Respondent timely petitioned for review.   On December 29, 1975, Commissioner Moran issued a general direction for review, but consistent with the Commission's policy statement concerning directions for review, of this kind, 41 Fed. Reg. 53015 (1976), the Commission will consider the issues raised by the respondent.   These are (1) whether the Judge properly amended the citation, and (2) whether there was a hazardous condition that required the use of personal protective equipment.

Respondent, Claude Neon Federal Company, is engaged in the construction and maintenance of signs.   On the day of inspection, an employee of respondent, Bob Dombeck, was repairing a neon sign by replacing a worn tube at the top. The sign was attached to a multi-floored building, and extended between the third and eighth floor levels.   In order to reach the sign, Dombeck climbed out of a third-floor window onto a three-foot wide ledge, and walked along two parallel sign supports that connected the sign to the building.   The supports were three inches wide, three feet long, and 24 inches apart.   To reach the top of the sign,   [*3]   he moved to successively higher sign supports by climbing a ladder specifically designed for use outside the building on this sign.   The ladder was hooked at the top to hang from the sign support at the level immediately above that at which Dombeck worked.   Dombeck used both hands to raise and position the ladder at each successive level while standing on the sign supports.   During replacement of the tube, Dombeck removed an old tube and installed a new one with one hand while maintaining stability by holding the sign with the other hand.   At no time did Dombeck use a safety belt or any other protective device to reduce the possibility of a fall.

Respondent maintains that the Judge improperly amended the citation and complaint from a violation of the "general duty clause" in section 5(a)(1) to a violation of the standard at 29 CFR §   1926.28(a).   Respondent is correct in contending that, where applicable, a standard must be cited instead of the "general duty clause" and that a citation under the "general duty clause" cannot stand in such circumstances.   Godwin-Bevers Co., Inc., BNA 2 OSHC 1470, CCH 1974-75 OSHD para. 19,206 (Nos. 1362 & 1373, 1975); Brisk Waterproofing Co., [*4]   BNA 1 OSHC 1263, CCH 1973-74 OSHD para. 16,345 (No. 1046, 1973).   Where the parties have tried an issue by consent, however, under Fed. R. Civ. P. 15(b) as incorporated by Commission Rule 2(b) the pleadings may be amended to conform to the evidence.   Advance Air Conditioning, Inc., BNA 1 OSHC 1626, CCH 1973-74 OSHD para. 17,585 (No. 1036, 1974); Brisk Waterproofing Co., supra.

Clearly, the safety belt issue was tried with respondent's consent.   The Secretary presented without objection evidence on the feasibility of safety belts to protect respondent's employees.   Indeed, respondent's president, who represented respondent at the hearing, testified about the feasibility of safety belts on direct examination. n2

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n2 At the hearing, respondent expressed the belief that 29 CFR §   1926.104 was the applicable standard, although noncompliance with the standard was denied by respondent.   An employer's duty to provide personal protective equipment, in this case, safety belts, is created by 29 CFR §   1926.28(a).   How it is worn or secured is addressed in 29 CFR §   1926.104 (a) Dic Underhill, A Joint Venture, BNA 4 OSHC 1772, CCH 1976-77 OSHD para. 21,151 (No. 8096, 1976).

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Respondent contends that there were no hazardous conditions on the job that would require the employees' wearing of safety belts in compliance with 29 CFR §   1926.28(a).   We disagree.   Respondent's employee, Mr. Dombeck, testified that sign repairing is a hazardous job.   Respondent's president, Mr. Primm, also agreed that sign repairing is dangerous.   Furthermore, Mr. Primm conceded that it would be safer to work on the sign with a safety belt than without one.   Here, an employee was working one hundred feet above ground without any safety protection.   Clearly, if the employee fell, he would be seriously injured.

The Commission is divided as to the proper test to be used in determining whether a violation of 29 CFR §   1926.28(a) has occurred.   B & B Insulation Co. (No. 9985, April 18, 1977).   Under the test delineated in my concurring opinion in B & B Insulation Co., the Secretary must prove only that there was a hazare in violation of the standard and an appropriate means of protection.   Under Chairman Barnako's opinion, as to abatement the Secretary must prove feasibility in a manner comparable [*6]   to proof under the "general duty clause." B & B Insulation Co., supra, n.5.   Also the need for the appropriate personal equipment must be indicated by another standard in Part 1926, such as 29 CFR §   1926.105(a). n3

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n3 §   1926.105 Safety Nets

(a) Safety nets shall be provided when work-places 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.

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In this case, the Secretary proved that the employer had actual knowledge of the hazardous condition. Indeed, respondent conceded that sign repair was hazardous and that at least while standing in one place, it would be safer if respondent required its employees to wear safety belts. Further, section 1926.105(a) shows a need to have protection from work at a height of 100 feet above the ground.   Therefore, regardless of which test is applied, the Secretary has proved a violation of 29 CFR §   1926.28(a).

In its brief on review,   [*7]   respondent has objected to the penalty assessed by the Judge.   We have considered the penalty in light of the statutory factors of section 17(j) of the Act and find the penalty appropriate.

Accordingly, it is ORDERED that the Judge's decision finding a serious violation of 29 CFR §   1926.28(a) and assessing a penalty of $550 therefor is affirmed.