BORTON, INC.
OSHRC Docket No. 77-2115
Occupational Safety and Health Review Commission
March 31, 1982
[*1]
Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
COUNSEL:
Office of the Solicitor, USDOL
James E. White, Reg. Sol., USDOL
William B. Swearer, for the employer
OPINION:
DECISION
BY THE COMMISSION:
A decision of Administrative Law Judge David G. Oringer is before the Commission for review pursuant to section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). Judge Oringer vacated one item of a serious citation issued to Respondent Borton, Inc. ("Borton"), that alleged a failure to comply with the standard contained at 29 C.F.R. § 1926.451(a)(13). Section 1926.451 is entitled "scaffolding" and provides in subsection (a)(13) that "[a]n access ladder or equivalent safe access shall be provided." The Secretary of Labor ("the Secretary") petitioned for review of the judge's decision. Commissioner Cottine granted the Secretary's petition. Pursuant to the direction of Commissioner Cottine, review was to be limited to the following issue:
Whether the Respondent established an affirmative defense by showing that the employee's failure to use the provided access ladder constituted unpreventable employee misconduct.
I
Borton [*2] is a contractor involved in the construction of grain silos or tanks. During the construction of a silo at the Tensas Port Elevator in St. Joseph, Louisiana, one of Borton's employees, Calvin Williams, fell to his death. At the time, Borton's employees were in the process of removing forms near the top of the inside of the silo. In order to accomplish this task, one of the employees had been assigned to install a scaffold within the tank. The completed scaffold was located approximately seven feet from the top of the silo and approximately 123 feet above the floor of the structure. Employees gained access to the scaffold through a hatch at the top of the silo.
Prior to his fall, Williams was on top of the silo waiting for a co-worker to complete the scaffold. He was equipped with a safety belt and had tied off his safety lanyard at a point approximately seven feet from the access hatch. When his co-worker completed the scaffold and emerged from the silo, Williams proceeded to the hatch. Although Williams was not seen entering the silo, it is undisputed that he did not use a ladder to descend to the scaffold. It appears that he descended to the scaffold either by lowering [*3] himself with his safety lanyard or by supporting himself in the hatch opening and dropping to the scaffold. When Williams landed on the scaffold, one of the scaffold planks broke, and he fell through the scaffold to the floor of the silo, 123 feet below, suffering fatal injuries. n1
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n1 During the fall, Williams' safety lanyard, which was about 36 feet long, broke. Following an investigation, the Secretary cited Borton for a violation of the standard set forth at 29 C.F.R. § 1926.104(d). The standard requires, in pertinent part, that the maximum length of a safety belt lanyard shall permit a fall of no greater than 6 feet. Before Judge Oringer, Borton argued that Williams' use of an excessively long safety lanyard was in violation of Borton's work rule, which limited the length of a lanyard to 20 feet. The judge rejected this argument and found Borton in serious violation of § 1926.104(d). Borton did not petition for review of this aspect of the judge's decision, and review was not directed on this issue.
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John [*4] L. Benton, a deputy sheriff in the Tensas Parish sheriff's office, arrived at the accident scene about fifteen minutes after the accident occurred and conducted an investigation. He was told by Ray Powell, Williams' foreman, who had been on top of the silo when Williams entered the hatch, that Williams previously had been reprimanded several times for failing to use a ladder when entering silos. n2
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n2 Foreman Powell and two other persons who worked on the top of the silo on the day of the accident were subpoenaed by the Secretary but failed to appear at the hearing. At the time of the hearing, seven-and-a-half months after the accident, Powell was no longer employed by Borton and his whereabouts was unknown.
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Donald Billmeier, Borton's superintendent at the worksite, testified that the employees "were supposed to use a ladder" to gain access to the scaffold and that Williams' failure to do so was contrary to this rule. When asked how else employees could reach the scaffold, he replied: "We usually let them down. [*5] They can let theirselves down." He then denied that this was the method ordinarily used by employees. As to the method used to return from the scaffold to the silo roof, Billmeier explained: "[M]y procedure is to make them use a ladder, but sometimes they lift each other out." According to Billmeier, if employees fail to use a ladder, "[We] just raise hell with them and tell them either to use it . . . or hit the road." Billmeier was not aware that Williams had been reprimanded for violations of Borton's work rule requiring the use of ladders, nor was Billmeier present on the top of the silo on the day of the accident.
Borton's safety director, Joe Keating, inspected the work site on the day after Williams fell. According to Keating, he observed an aluminum ladder on top of an adjacent silo approximately 25 to 30 feet from the silo where Williams fell. Keating testified that Borton's instruction to employees working from completed scaffolds inside silos was to use a ladder when entering the silo. In addition, he testified that it was not possible to use ladders when constructing scaffolds because there was no stable place to locate the ladder. Employees who failed to follow [*6] instructions were reprimanded or discharged. Keating noted that, in view of the job superintendent's other duties, enforcement of safety rules was partially delegated to the foremen at the worksite. Keating was unaware that Williams had been reprimanded for past failures to use a ladder when entering a silo. Keating also stated that he required regular safety meetings, but did not specify who attended the meetings or whether the work rule concerning use of ladders was discussed at these meetings.
II
Judge Oringer found that Borton met the standard's requirement of providing a ladder at the silo. The judge further reasoned that, in addition to providing a ladder, an employer "should attempt to insure that the ladder is used by the employees for the purpose intended." In this regard, the judge found that Borton instructed employees to use ladders and disciplined noncomplying employees. The judge further found that Williams was an experienced employee and that, in view of his experience, Borton was not required to provide "one to one supervision" to ensure that he used the ladder which had been provided. Judge Oringer therefore vacated the part of the citation alleging a serious [*7] violation of section 1926.451(a)(13).
III
On review the Secretary argues that Borton's affirmative defense should be rejected and that the judge's decision should be reversed since Borton failed to ensure, through the application of effective disciplinary measures, that its employees used the provided ladder. The Secretary contends that, in view of Williams' history of noncompliance with Borton's work rules, more effective discipline and closer supervision were required to promote compliance.
Borton did not address the issue of its affirmative defense of unpreventable employee misconduct in its brief on review. Instead, Borton contends that the judge's decision should be affirmed since a ladder was provided at the worksite on the day of the accident. According to Borton, section 1926.451(a)(13) by its terms requires that a ladder be "provided" and does not require an employer to ensure use of ladders. Borton further submits that this matter is controlled by the Tenth Circuit's decision in Usery v. Kennecott Copper Corp., 577 F.2d 1113 (10th Cir. 1977), in which the court, interpreting an identically-worded general industry standard set forth at 29 C.F.R. § 1910.28(a)(12), [*8] held that an employer must provide, but need not ensure use of, ladders in order to comply with the standard.
IV
Following the issuance of the judge's decision, the Commission held in Ray Boyd Plaster & Tile, Inc., 78 OSAHRC 47/D8, 6 BNA OSHC 1648, 1978 CCH OSHD P22,794 (No. 76-814, 1978) ("Ray Boyd"), that the standard at section 1926.451(a)(13) requires that ladders must be used, not merely supplied. In that decision, Commissioner Cleary reasoned that a standard that requires an employer to provide a safety device implicity requires the device to be used. We adhere to the holding of Ray Boyd and adopt Commissioner Cleary's rationale. n3
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n3 In Ray Boyd former Commissioner Barnako also concluded that a use requirement was implicit in § 1926.451(a)(13), but for a different reason. In his view, the standard contained at § 1926.451(a)(13) must be read together with § 1926.450(a)(1), which states: "Except where either permanent or temporary stairways or suitable ramps or runways are provided, ladders described in this subpart shall be used to give safe access to all elevations." (emphasis added) He thus found a "use" requirement to be implicit in § 1926.451(a)(13). Commissioner Cottine agrees that § 1926.450(a)(1) constitutes an additional basis for his conclusion that § 1926.451(a)(13) requires use of an access ladder or equivalent safe access.
[*9]
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The Occupational Safety and Health Act was enacted to "assure so far as possible every working man and woman in the nation safe and healthful working conditions." 29 U.S.C. § 651(b). In keeping with its broad remedial purpose, the terms of the Act and regulations promulgated under it are to be construed liberally. Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980); Bristol Steel & Iron Works, Inc. v. OSHRC, 601 F.2d 717 (4th Cir. 1979); Brennan v. OSHRC (Gerosa, Inc.), 491 F.2d 1340, (2d Cir. 1974). The objective of the standard contained at section 1926.451(a)(13) is to provide employees with safe access to scaffolding by means of a ladder or equivalent device. This objective cannot be achieved if an employer is required merely to provide a ladder that may or may not be used by employees to gain access to scaffolding. Final responsibility for occupational safety and health rests with the employer. To read this standard narrowly to require employers to provide a ladder or an equivalent device, but not to require that employers ensure use of such equipment, would improperly shift responsibility [*10] for occupational safety and health from the employer to the employee. See Hillsdale Lumber & Manufacturing, Inc., 77 OSAHRC 54/D2, 5 BNA OSHC 1281, 1977-78 CCH OSHD P21,766 (No. 5815, 1977) (Cleary, dissenting). Accordingly, under section 1926.451(a)(13), an employer must not only provide but also ensure the use of an "access ladder or equivalent safe access" when employees seek to gain access to scaffolding.
We do not agree with Borton's contention that the court of appeals' decision in Usery v. Kennecott Copper Corp., supra ("Kennecott"), controls this case. In Kennecott, the Tenth Circuit affirmed the decision of a divided Commission that the general industry standard contained at 29 C.F.R. § 1910.28(a)(12) did not impose a use requirement. Commissioner Cleary dissented in that case. There, as here, he reasoned that a standard that requires an employer to provide a safety device implicitly requires that the device be used. Kennecott Copper Corp., 76 OSAHRC 81/A2, 4 BNA OSHC 1400, 1976-77 CCH OSHD P20,860 (No. 5958, 1976) (Cleary, dissenting). As indicated above, we agree with this view. We no longer adhere to the Commission's decision in Kennecott [*11] and decline to follow the view of the Tenth Circuit in that case because those decisions failed to construe the word "provide" broadly and remedially in accordance with the purpose of the Act. n4 See Brennan v. OSHRC (Gerosa, Inc.), supra.
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n4 We also note that the general industry standards contained no counterpart to § 1926.450(a)(1), and Kennecott is therefore distinguishable from this case, which concerns construction industry standards.
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We agree with the judge's finding that Borton provided a ladder at the worksite in question. However, based on the uncontioverted evidence that Williams did not use a ladder to gain access to the scaffold, we find that a violation of the standard at § 1926.451(a)(13) was established. Additionally, we do not find that Williams' failure to use the ladder constituted unpreventable employee misconduct.
In order to defend successfully against a citation on the grounds that a violation of the Act arose from unpreventable employee misconduct, an employer must establish [*12] that the action of its employee was a departure from a uniformly and effectively communicated and enforced work rule. H.B. Zachry Co., 80 OSAHRC 9/D8, 7 BNA OSHC 2202, 1980 CCH OSHD P24,196 (No. 76-1393, 1980), aff'd, 638 F.2d 812 (5th Cir. 1981).
Although Borton adopted a work rule intended to prevent the violation in question, the rule apparently was not in writing and it is unclear if the rule was effectively communicated to employees. Moreover, Williams violated this rule several times and Borton took no action beyond oral reprimands to compel compliance. Additionally, although Billmeier and Keating testified that employees who violated work rules were reprimanded or discharged, there was no evidence of these measures being taken in any specific instance other than the reprimands given to Williams. As the Commission stated in B.G. Maintenance Management, Inc., 76 OSAHRC 60/A2, 4 BNA OSHC 1282, 1284, 1976-77 CCH OSHD P20,744 at p. 24,881 (No. 4713, 1976), an employer must make "a diligent effort to discourage, by discipline if necessary, violations of safety rules by employees." Moreover, Billmeier testified that employees sometimes did not use a ladder to move [*13] from the scaffold to the silo roof. Additionally, his testimony concerning whether employees used ladders to reach scaffolds in silos was equivocal. Thus, it appears that employees did not uniformly use ladders when rules required them to do so. We therefore agree with the Secretary that Borton's work rule requiring use of ladders was not effectively enforced. Daniel International Corp., Brown & Williamson Project, 81 OSAHRC 57/A2, 9 BNA OSHC 1980, 1981 CCH OSHD P25,492 (No. 15690, 1981) pet. for review docketed, No. 81-7602 (5th Cir. July 21, 1981).
We also disagree with the judge's conclusion that Borton was not required to closely supervise Williams because he was an experienced employee. We find no evidence that Williams was experienced. In any event, the fact that an employee is experienced does not relieve an employer from responsibility for affirmatively enforcing its safety rules. Cornell & Co., 77 OSAHRC 164/F5, 5 BNA OSHC 1736, 1977-78 CCH OSHD P22,095 (No. 8721, 1977); Taylor Building Associates, 77 OSAHRC 27/A10, 5 BNA OSHC 1083, 1977-78 CCH OSHD 21,592 (No. 3735, 1977). The level of supervision that an employer must provide must be determined [*14] by the facts in each case. Lebanon Lumber Co., 73 OSAHRC 10/A2, 1 BNA OSHC 1165, 1971-73 CCH OSHD P15,530 (No. 184, 1973). On the day of his fall, Williams violated Borton's workrules not only by entering the silo without using a ladder but also by wearing an excessively long safety lanyard. n5 Moreover, according to superintendent Billmeier, employees sometimes failed to use a ladder when moving from the scaffold to the silo roof. This lax supervision of safety matters buttresses our conclusion that Borton's workrules were not effectively enforced.
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n5 Although not before us on review, Borton's violation of § 1926.104(d) is relevant to the effectiveness of Borton's safety program. See Jensen Constr. Co., 79 OSAHRC 49/D3, 7 BNA OSHC 1477, 1479 n. 5, 1979 CCH OSHC P23,664 at p. 28,695 n. 5 (No. 76-1538, 1979).
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In view of Borton's failure to show that it adequately enforced its safety rules through effective discipline and supervision, we conclude that Borton has failed to establish its affirmative defense [*15] of unpreventable employee misconduct and that a violation of section 1926.451(a)(13) must be affirmed.
We further conclude that the Secretary properly characterized the violation in question as serious within the meaning of section 17(k) of the Act. n6 A fall of approximately 123 feet obviously could and, in this case, did result in an employee's death. Before his fall, Williams had been reprimanded several times for failing to observe Borton's work rule requiring employees to use a ladder when entering a silo. Borton's superintendent also acknowledged that employees sometimes failed to use ladders when emerging from interior scaffolds to gain access to the silo roof. In view of these facts, we find that Borton knew or, with the exercise of reasonable diligence, could have known of its employee's practice of noncompliance with this workrule. Niagara Mohawk Power Corp., 79 OSAHRC 36/A2, 7 BNA OSHC 1447, 1979 CCH OSHD P23,670 (No. 76-2414, 1979). Accordingly, we conclude that Borton's violation of section 1926.451(a)(15) was serious.
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n6 Section 17(k), 29 U.S.C. § 666(j), provides:
For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.
[*16]
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V
The Secretary proposed a $350 penalty for Borton's violation of the cited standard. We now turn to section 17(j) of the Act to determine an appropriate penalty. n7 In view of the resulting fatality of Borton's employee, the gravity of the violation is high. Borton exhibited some good faith by conducting safety meetings and establishing work rules, and there is no evidence that Borton has been cited for prior violations of the Act. In balance, we conclude that the proposed penalty of $350 is appropriate.
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n7 Section 17(j), 29 U.S.C. § 666(i), provides:
The Commission shall have authority to assess all civil penalties provided in this section, 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.
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Accordingly, we reverse the judge's decision and affirm [*17] a serious violation of the Act for Borton's violation of the standard contained at section 1926.451(a)(13). A $350 penalty is assessed.
SO ORDERED.
DISSENTBY: ROWLAND
DISSENT:
ROWLAND, Chairman, dissenting:
I dissent from the majority's conclusion that Borton failed to comply with 29 C.F.R. § 1926.451(a)(13) because its employees did not use a ladder for access to the scaffold. In my view, the standard by its plain terms imposes only the obligation that the employer provide a ladder or other means of access to a scaffold. I would not follow Ray Boyd Plaster & Tile, Inc., 78 OSAHRC 47/D8, 6 BNA OSHC 1648, 1978 CCH OSHD P22,794 (No 76-814, 1978), in which the Commission held to the contrary, for I find that case wrongly decided. Since there is no dispute that Borton in fact provided an access ladder to the scaffold in question, it is in compliance with the requirements of section 1926.451(a)(13).
In this case the majority adopts the view previously expressed individually by Commissioner Cleary in Ray Boyd, supra, that the term "provided" as it appears in section 1926.451(a)(13) implicitly requires that ladders be used as well. Commissioner Cottine also interprets this standard to impose [*18] a use requirement for the reason stated by former Commissioner Barnako. That is, Commissioner Cottine additionally concludes that section 1926.451(a)(13) must be read together with section 1926.450(a)(1), which requires that ladders "be used" to give safe access to "elevations." n8 I disagree with both the majority's interpretation of the term "provided" and Commissioner Cottine's view that sections 1926.451(a)(13) and 1926.450(a)(1) are to be read together.
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n8 I note, however, that it is not entirely clear from the majorit opinion whether former Commissioner Barnako's view is adopted only by Commissioner Cottine. Although only Commissioner Cottine expressly agrees with former Commissioner Barnako's view that sections 1926.451(a)(13) and 1926.450(a)(1) are to be read together, both Commissioner Cleary and Commissioner Cottine would distinguish Usery v. Kennecott Copper Corp., 577 F.2d 1113 (10th Cir. 1977), on the basis that no equivalent to section 1926.450(a)(1) existed in the standards at issue in that case. To this extent, therefore, it appears that the majority considers the requirements of section 1926.450(a)(1) to be relevant in the disposition of this case.
[*19]
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Regardless of whether, as the majority asserts, standards are to be construed liberally to effectuate the purposes of the Act, it is equally true that the purposes of the Act are not served unless employers have fair notice of their obligations under the standards. Therefore, a standard cannot be construed to mean what the promulgating agency may have intended but did not adequately express. n9 Bethlehem Steel Corp. v. OSHRC, 573 F.2d 157 (3rd Cir. 1978); Usery v. Kennecott Copper Corp., 577 F.2d 1113 (10th Cir. 1977); Diamond Roofing Co. v. OSHRC, 528 F.2d 645 (5th Cir. 1976). See the discussion in Bethlehem Steel, supra:
The purpose of OSHA standards is to improve the safety conditions in the working place, by telling employers just what they are required to do in order to prevent or minimize danger to employees. In an adjudicatory proceeding, the Commission should not strain the plain and natural meaning of words in a standard . . . . The responsibility to promulgate clear and unambiguous standards is upon the Secretary.
573 F.2d at 161.
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n9 Furthermore, none of the authorities cited by the majority in support of the proposition that the Act and the standards are to be liberally construed apply that rule of construction to interpret a standard in a manner contrary to its plain meaning. Indeed, neither Whirlpool Corp. v. Marshall, 455 U.S. 1 (1980), nor Bristol Steel & Iron Works, Inc. v. OSHRC, 601 F.2d 717 (4th Cir. 1979), are even relevant to the issue of interpretation presented in this case. In the former case, the Supreme Court was asked to consider whether a regulation permitting employees to refuse to work under certain conditions was within the Secretary's authority under the Act. In the latter case, the question was whether a general standard requiring that employees be protected from hazards was applicable to employers engaged in steel erection in view of the specific safety standards promulgated by the Secretary for the industry. Only the court in Brennan v. OSHRC (Gerosa, Inc.), 494 F.2d 1340 (2d Cir. 1974) considered the meaning of a particular term as used in a standard. The issue before the court was the proper interpretation of a standard requiring that the employer "designate" an inspector for cranes and derricks. Although the court noted as a general principle that regulations must be construed so as to effectuate congressional objectives, it relied in part on a conclusion that the ordinary meaning of the term "designate" was consistent with the interpretation the Secretary sought to apply.
[*21]
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As the court properly noted in Kennecott Copper, supra, the word "provide" is not ambiguous. Rather, the term has a plain meaning; it is commonly understood to mean "furnish," "supply," or "make available." The term is not normally understood to refer to "use" as a separate and distinct obligation, nor does its dictionary definition state any such connotation. n10 Therefore, while a reasonable employer would recognize an obligation under section 1926.451(a)(13) to make a ladder or other means of access available for use by employees, he would not interpret the standard to impose any further requirement.
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n10 Webster's Third New International Dictionary (1971) lists the following definitions for "provide": To take precautionary measures, make provision; to supply what is needed for sustenance or support; to fit out or fit up, equip; to supply for use. "Supply" and "furnish" are listed as synonyms.
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Similarly, an employer cannot [*22] reasonably be expected to refer to other standards to apply to "provide" a meaning contrary to that term as commonly understood. n11 Admittedly, standards written in broad terms which would otherwise be vague may be limited in scope by reference to other relevant standards. Modern Automotive Service, 74 OSAHRC 9/A11, 1, BNA OSHC 1544, 1973-74 CCH OSHD P17,369 (No. 1541, 1974). See H.E. Wiese, Inc., No. 78-204 (March 31, 1982) (dissenting opinion). However, there is no authority for the proposition that standards written in specific terms which are clear on their face must be interpreted in this manner. n12 Rather, the use of obviously different terminology within the Secretary's standards is evidence of an intentional differentiation. See Lankford v. LEAA, 620 F.2d 35 (4th Cir. 1980); United States v. Wong Kim Bo, 472 F.2d 720 (5th Cir. 1972). Indeed, the plain distinction between "provided" and "used" is supported by other standards which are expressly directed to the matter of employee use of equipment furnished by the employer. These standards demonstrate that when the Secretary intends to require that employees use such equipment, he consistently [*23] employs language which explicitly states that intention.
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n11 Commissioner Barnako's opinion to the contrary in Ray Boyd,$ supra, also relied in part on Turnbull Millwork Co., 77 OSAHRC 205/C8, 6 BNA OSHC 1148, 1977-78 CCH OSHD P22,388 (No. 15047, 1977). That case, however, is inapposite since it involved the question whether under a woodworking machine standard the use of combs or jigs was required by the language "[clombs (featherboards) or suitable jigs shall be provided . . . for use when a standard guard cannot be used. . . ." The Commission held that a use requirement was imposed since the standard intended by its plain wording that there be no gap in employee protection when standard guards cannot be used. The question in this case, however, is whether a standard which does not at all mention use may have a use requirement read in from a totally different standard.
n12 In H.E. Wiese, Inc., No. 78-204 (March 31, 1982) I stated my view that in determining the meaning of the phrase "equivalent safe access" as used in section 1926.451(a)(13) it is appropriate to look to the specifications for ladders set forth in section 1926.450. That conclusion, however, was based on the premise that otherwise the term "equivalent safe access" could be vague. As explained supra, it is not necessary to refer to other standards in order to define "provided" since the meaning of that term is clear on its face.
[*24]
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For example, section 1926.28(a), which is entitled "personal protective equipment," specifically states that the employer must require employees to use such 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." Other standards which do not expressly impose a duty on the employer to require certain conduct by employees nevertheless use language indicating that the standards are directed to employee conduct. Section 1926.451(i)(8) uses the term "permitted" with reference to the number of employees who may work on a suspension scaffold at any one time. This standard also addresses the employer's duty in terms of a specific level of employee safety which must be achieved: "[e]ach employee shall be protected by an approved safety life belt attached to a lifeline." Clearly, the Secretary has deliberately differentiated those situations in which employers need only provide equipment [*25] from those situations in which an additional duty with respect to the actions of employees is imposed on the employer.
On the other hand, it is equally plain that the standards imposing an additional obligation on the employer beyond merely the provision of safety equipment are written in general terms which do not precisely delineate the scope of the employer's duty. The Act, however, does not make an employer the insurer of his employees' safety. Kennecott Copper, supra, 577 F.2d at 1118 (citing cases). As the Second Circuit has observed in discussing the breadth of a general industry standard, section 1910.133(a)(1), which states that eye and face protection "shall be required" and that employees "shall use" such equipment, "[i]f employers are to be held to an obligation requiring something more than instructing employees to use protective equipment but something less than guaranteeing use, the promulgation of a standard fleshing out the employer's obligation would provide useful guidance to employers, the Commission, and reviewing courts." General Electric Co. v. OSHRC, 540 F.2d 67, 69 (2d Cir. 1976).
I share the concern of the Second Circuit that the extent of [*26] the efforts employers must make to insure that employees use safety equipment be clearly expressed. Therefore, while I am not unmindful of the serious safety hazard existing on the facts of this case, I cannot conclude that Borton did not satisfy its duty to its employees absent evidence to show that Borton failed to take the appropriate steps to protect its employees from the hazard. Although I believe that Borton complied with the strict terms of section 1926.451(a)(13) by merely furnishing a ladder for its employees to use, I note that Borton also instituted a work rule requiring that employees use the ladder and attempted to enforce this rule by reprimanding or discharging employees. Even if the term "provided" in section 1926.451(a)(13) may properly be interpreted, as the majority concludes, to refer to employee use of a ladder as well as to its availability, the standard would not give notice that Borton needed to make any further efforts to insure that its employees used the ladder which it provided. Therefore, I cannot join in the majority's conclusion that Borton failed to enforce its work rule "effectively" since the evidence presented regarding the adequacy of Borton's [*27] safety program shows only that Borton has not been able to prevent every instance of employee noncompliance with the work rule. n10 Neither the Act nor the standard as interpreted by the majority can properly be said to impose such a stringent obligation on the employer.
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n10 For the same reason, I do not agree with the majority that Borton's violation of section 1926.104(d) also demonstrates the lack of effectiveness of its safety program. It is not clear whether the majority is referring to the deceased employee's violation of Borton's rule requiring that the lanyard be no more than 20 feet in length or to the requirement of section 1926.104(d) regarding the maximum length of a lanyard. Insofar as Borton's enforcement of its lanyard rule is concerned, there is no evidence that the deceased or any other employee had ever previously used a lanyard in excess of 20 feet in length. With regard to the requirements of section 1926.104(d), employees could secure their lanyards at any number of locations on the structure, which had a diameter of 26 feet. Other than the circumstances surrounding the fatality in question, there is no evidence that any employee including Williams had ever tied off his lanyard at such a point as to expose himself to a fall of more than six feet.
[*28]
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Since I would find Borton's conduct reasonable in the circumstances regardless of how section 1926.451(a)(13) is interpreted, I would vacate the citation alleging a violation of that standard.