AUSTIN BUILDING COMPANY

OSHRC Docket No. 77-3878

Occupational Safety and Health Review Commission

September 30, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Steven R. McCown, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge John S. Patton is before the Commission 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").   At issue before the judge were two citations alleging one serious (citation 1) and five nonserious (citation 2) violations of the Act in that the Respondent, Austin Building Company, failed to comply with various occupational safety and health standards published at 29 C.F.R. Part 1926-Safety and Health Regulations for Construction.   Only two of those alleged violations are now before us on review. n1 Citation 1 alleged that the Respondent failed to comply with 29 C.F.R. §   1926.28(a) and 29 C.F.R. §   1926.105(a) in that "[e]mployee(s) were not protected against falls of more than 25 feet by the use of safety nets, ladders, scaffolds, catch platforms, temporary floors, safety lines, safety belts, or other appropriate personal protective equipment." The employees involved [*2]   were further described as welders working at the top level of a precipitator "without barrier guards or safety belts and lanyards." n2 Item 3 of citation 2 alleged that the Respondent failed to comply with 29 C.F.R. §   1926.350(a)(9) in that an "[a]cetylene cylinder ready for use" and an "[o]xygen cylinder lying on floor" were not secured in an upright position.

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n1 Any issue neither raised in a petition for review nor directed for review by an individual member upon his own motion, see Commission Rule of Procedure 92(c), 44 Fed. Reg. 70,106 at 70,111 (1979), to be codified in 29 C.F.R. §   2200.92 [formerly Rule 91a(c), 29 C.F.R. §   2200.91a(c)], is not before the Commission on review.

n2 In his decision, Judge Patton described the working conditions at issue as follows:

Respondent was a contractor building a precipitator which is a large metal structure upon which approximately 20 or 30 employees were working, said persons being employees of eight different contractors . . . .   Along the edge of the top surface of the precipitator was a three-foot wide aisleway used by all employees . . . .   Said aisle had an unguarded edge extending 25 or 30 feet of its length over which a person could fall a distance of nearly eighty feet . . . .   Two of respondent's employees were working on the aisleway welding near the unguarded edge . . . .

In its brief on review, the Respondent described the workplace as "the roof of a dust precipitator at a coal-fired electrical generating plant."

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Both of the citation items alleging these violations of the Act were vacated by Judge Patton.   The Secretary of Labor ("the Secretary") thereafter filed a petition for review of the judge's decision and order with respect to these two citation items.   In response to this petition, Chairman Cleary directed review on the following issues n3 raised in the petition:

(1) Whether the Administrative Law Judge erred in vacating the citation alleging that respondent failed to comply with 29 C.F.R. §   1926.28(a) on the ground that the Secretary failed to prove a "recognized hazard" necessitating the use of tied-off safety belts?

(2) Whether the Judge erred in vacating the citation alleging that respondent failed to comply with 29 C.F.R. §   1926.350(a)(9) on the grounds that the cited standard does not apply when compressed gas cylinders are "in use" and that the Secretary failed to prove that a hazard existed?

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n3 In ruling upon citation 1, the judge vacated both the allegation of noncompliance with §   1926.28(a) and the allegation of noncompliance with §   1926.105(a).   The Secretary in his petition took exception to both of these holdings.   However, the direction for review granted the Secretary's petition only with respect to §   1926.28(a) and the independent violation alleged in item 3 of citation 2, supra. Accordingly, the Secretary's exception to the judge's vacating of the §   1926.105(a) allegation is deemed denied, see Commission Rule of Procedure 91(d), 29 C.F.R. §   2200.91(d), and the issue is not before the Commission on review.

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I

In his decision, Judge Patton ruled upon a motion by the Respondent to dismiss citation 1 on the ground that section 1926.28(a) is unenforceably vague.   He concluded that he was bound to apply Commission precedent on this issue and continued as follows:

In the case of Frank Briscoe Co., Inc., 76 OSAHRC 129/A2, 4 BNA OSHC 1729, 1976-77 CCH OSHD P21,162 [No. 7792, 1976], the Review Commission held that the standard is not void but that it is inadequate for vagueness unless the evidence establishes that the hazard not protected against is a recognized hazard. The Review Commission made the test somewhat similar to the test in an alleged violation of section 5(a)(1) of the Act.   Therefore, it must be determined in this case whether the hazard alleged was a hazard either recognized within the industry or recognized as such by the respondent.

Applying this test to the instant case, the judge concluded that the Secretary had failed to sustain his burden of proving this element of his prima facie case. n4

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n4 Specifically, the judge found that the Respondent did not recognize that its failure to require the use of safety belts "was detrimental to the safety of the employees" because, although it recognized "that the employees were in some danger", it was "of the opinion that the danger would be enhanced by the use of safety belts." The judge concluded that the Secretary "also failed to prove that the condition alleged was recognized in the industry as unsafe" because there was "a complete absence of evidence as to industry customs and practices."

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We conclude that the judge erred in vacating the citation at issue on the ground that the Secretary failed to prove employee exposure to a "recognized hazard." Since the judge issued his decision in the case now before us, the Commission has overruled the case he cited, Frank Briscoe Co., supra, to the extent it incorporated the "feasibility and likely utility" element of a section 5(a)(1) charge into the Secretary's burden of proving noncompliance with section 1926.28(a). n5 S & H Riggers and Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1266, 1979 CCH OSHD P23,480 at p. 28,439 (No. 15855, 1979), appeal filed, No. 79-2358 (5th Cir. June 7, 1979) ("S & H Riggers"). In so ruling, the Commission stated that "[w]e consider the extension of the §   5(a)(1) analysis to cases arising under a specific duty standard to be inappropriate." 7 BNA OSHC at 1265, 1979 CCH OSHD at p. 28,438. For the reasons stated in S & H Riggers, we consider Judge Patton's extension of the "recognized hazard" element of a section 5(a)(1) charge to his analysis of the alleged violation now under review to [*6]   be equally inappropriate.   The Secretary's prima facie showing of noncompliance with section 1926.28(a) is made by "establishing employee exposure to a hazardous condition requiring the use of personal protective equipment and identifying the appropriate form of personal protective equipment to eliminate the hazard." 7 BNA OSHC at 1266, 1979 CCH OSHD at p. 28,439. Moreover, "[t]he crucial question in determining whether a hazardous condition exists within the meaning of §   1926.28(a) is whether a reasonable person familiar with the factual circumstances surrounding the allegedly hazardous condition, including any facts unique to a particular industry, would recognize a hazard warranting the use of personal protective equipment." 7 BNA OSHC at 1263, 1979 CCH OSHD at p. 28,436.

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n5 We note that Judge Patton's analysis and disposition of the section 1926.28(a) charge were based on a misinterpretation of the Commission's decision in Frank Briscoe Co. In that case, the Commission did analogize 29 C.F.R. §   1926.28(a) to section 5(a)(1) of the Act and did hold that the Secretary had a similar burden of proof in establishing either charge.   However, the common element of the two allegations was not establishment of a recognized hazard, as stated by Judge Patton, but rather establishment of the feasibility and likely utility of the suggested means of abatement.   Frank Briscoe Co., supra, 4 BNA OSHC at 1731, 1976-77 CCH OSHD at pp. 25,457-58.

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Judge Patton's decision with respect to the section 1926.28(a) allegation is therefore inconsistent with Commission precedent established in S & H Riggers. See also, Forest Park Roofing Co., 80 OSAHRC    , 8 BNA OSHC 1181, 1980 CCH OSHD P24,344 (No. 76-1844, 1980); Martin-Tomlinson Roofing Co., 80 OSAHRC    , 7 BNA OSHC 2122, 1980 CCH OSHD P24,167 (No. 76-2339, 1980); Morton Buildings, Inc., 79 OSAHRC    , 7 BNA OSHC 1702, 1979 CCH OSHD P23,861 (No. 15565, 1979).   Thus, the judge's ruling must be set aside and the case remanded for reconsideration under current Commission precedent.

II

Judge Patton also vacated the citation item alleging a nonserious violation of the Act due to failure to comply with 29 C.F.R. §   1926.350(a)(9). n6 The Respondent presented two defenses to this charge.   First, it contended that section 1926.350(a)(9) applies only to cylinders that are being transported, moved or stored and that the Secretary accordingly failed to meet his burden of proof because he introduced no evidence that the Respondent was either transporting, moving or storing the cylinders.   [*8]   Judge Patton concluded that the Respondent's interpretation of the standard was correct.   Moreover, he found that the cylinders in question "were hooked up and in operation at the time of the inspection." Thus, he held, "[u]nder these circumstances, the defense of the respondent is sound."

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n6 The following provisions of section 1926.350, including the cited subsection, are pertinent to our discussion, infra:

§   1926.350 Gas welding and cutting.

(a) Transporting, moving, and storing compressed gas cylinders.

(1) Valve protection caps shall be in place and secured.

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(9) Compressed gas cylinders shall be secured in an upright position at all times except, if necessary, for short periods of time while cylinders are actually being hoisted or carried.

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The Respondent's second defense before the judge was that the citation item should be vacated because the Secretary failed to prove that any of its employees were exposed to the alleged hazard. Judge Patton entered a finding that "Respondent's employees [*9]   were within the area and had a hazard existed would have been exposed to the hazard." However, he further found that "[t]he evidence does not establish whether the cylinders were empty or full and therefore does not establish whether a hazard existed." Although his decision is not free from ambiguity, Judge Patton apparently relied upon this second finding as an alternative ground for vacating the citation item.

The Secretary contends that both of the alternative grounds stated by the judge as the basis for his disposition of the citation at issue are erroneous as a matter of law.   The Respondent disagrees and supports the judge's resolution of both issues.   We conclude that the Secretary's exceptions are meritorious and that the judge's conclusions must be reversed.

The Respondent's argument that the cited standard applies only to cylinders that are being transported, moved or stored is based on the section heading, "Transporting, moving, and storing compressed gas cylinders." See note 6 supra. However, the Commission has previously rejected the contention that the scope of the standard at issue in this case, 29 C.F.R. §   1926.350(a)(9), is limited by this heading. Constructora   [*10]    Maza, Inc., 77 OSAHRC 213/B9, 6 BNA OSHC 1208, 1211, 1977-78 CCH OSHD P22,421 at pp. 27,037-38 (No. 12434, 1977).   In that case the Commission stated that the plain language of the standard requires that cylinders be secured "at all times" other than when they are being hoisted or carried for short periods of time.

We adhere to the holding of Constructora Maza, Inc., supra. It is a basic principle of statutory construction that headings and titles, although useful tools of reference, cannot be used to limit or alter the plain meaning of the text contained in statutes and regulations.   Brotherhood of Railroad Trainmen v. Baltimore & Ohio Railroad, 331 U.S. 519, 529 (1947); Wray Electric Contracting, Inc., 78 OSAHRC 78/A2, 6 BNA OSHC 1981, 1978 CCH OSHD P23,031 (No. 76-119, 1978), aff'd, No. 78-3597 (6th Cir. Sept. 15, 1980).   Section 1926.350(a)(9) applies by its terms to all compressed gas cylinders except those that "are actually being hoisted or carried." n7 Based on Judge Patton's finding that the cylinders were in use and thus not being moved at the time of the inspection, we conclude that the judge erred in ruling that the standard was inapplicable.

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n7 A contrary result is not dictated by Stearns-Roger, Inc., 79 OSAHRC    , 7 BNA OSHC 1919, 1979 CCH OSHD P24,008 (No. 76-2326, 1979), which held that section 1926.350(a)(1) only applies to cylinders that are being transported, moved, or stored. Section 1926.350(a)(1) states that "[v]alve protection caps shall be in place and secured." The standard does not specify the scope of its application.   Accordingly, in that case the Commission employed the subsection heading for guidance as to the application of the standard.

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The judge further erred in vacating the citation on the ground that the Secretary did not establish whether the cylinders were full or empty.   There is, under the standard, a rebuttable presumption that compressed gas cylinders contain at least enough residual gas to present a hazard to employees in the area.   Williams Enterprises, Inc., 79 OSAHRC 4/B5, 7 BNA OSHC 1015, 1018-1019, 1979 CCH OSHD P23,279 at p. 28,156 (No. 14748, 1979).   See Williams Enterprises of Georgia, Inc., 79 OSAHRC [*12]      , 7 BNA OSHC 1900, 1903, 1979 CCH OSHD P24,003 at pp. 29,137-38 (No. 13875, 1979).   Here the Respondent has not rebutted the presumption that the cylinders were hazardous. Indeed, as stated by Judge Patton, "[i]t would be assumed that if it was in use, which appeared to be the case, there was some acetylene in the cylinder." Based on the judge's finding that employees of the Respondent were in the vicinity of the cylinders and our own finding that the Respondent did not rebut the presumption that the cylinders were hazardous, we reject the Respondent's contention that the Secretary failed to prove employee exposure to the cited hazard and reverse the judge's holding that the Secretary failed to sustain his burden of proof.

Having rejected the Respondent's two defenses to the alleged violation, we conclude that the citation item should be affirmed.   The record establishes and the judge found that the Respondent maintained gas cylinders which were not secured in an upright position.   Inasmuch as we have concluded that the cited standard applies to the cited conditions and that employees of the Respondent were exposed to the hazard, we further conclude that the Secretary has sustained [*13]   his allegation that the Respondent violated the Act by failing to comply with section 1926.350(a)(9).

The Secretary proposed that no penalty be assessed for the violation at issue.   Considering the record in light of the criteria for penalty assessment set forth in section 17(j) of the Act, 29 U.S.C. §   666(i), we adopt that proposal.

III

Accordingly, the decision and order of Judge Patton with respect to citation 1 is vacated and with respect to item 3 of citation 2 is reversed.   Item 3 of citation 2 is affirmed.   The case is remanded to Judge Patton for reconsideration of the Secretary's allegation that the Respondent failed to comply with 29 C.F.R. §   1926.28(a).   The judge should reconsider that allegation in light of Commission precedent and the record, including the arguments of the parties on review. n8 SO ORDERED.

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n8 In its brief on review, the Respondent noted that, "[b]ecause the Administrative Law Judge held that the Secretary failed to establish violations as alleged, the Respondent's affirmative defenses were not considered." Accordingly, if the judge concludes on remand that the Secretary established his prima facie case, the judge should then consider and rule upon the Respondent's affirmative defenses.

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CONCURBY: BARNAKO (In Part)

DISSENTBY: BARNAKO (In Part)

DISSENT:

BARNAKO, Commission, concurring in part and dissenting in part:

My colleagues find Austin Building Company in violation of 29 C.F.R. §   1926.350(a)(9), and they set aside and remand the judge's decision that Austin did not violate 29 C.F.R. §   1926.28(a).   I dissent from the finding of a violation of §   1926.350(a)(9) and concur in the disposition of the alleged violation of §   1926.28(a).

Austin was cited for violation of 29 C.F.R. §   1926.350(a)(9) because two compressed gas cylinders allegedly were not secured in an upright position.   The cited standard states:

§   1926.350 Gas welding and cutting.

(a) Transporting, moving, and storing compressed gas cylinders

(9) Compressed gas cylinders shall be secured in an upright position at all times except, if necessary, for short periods of time while cylinders are actually being hoisted or carried.

The judge vacated this citation because there was no evidence that the cylinders in question were being transported, moved, or stored. My colleagues reject this holding and find, contrary to the express language of the standard,   [*15]   that its application is not limited to the transporting, moving, or storing of compressed gas cylinders. The judge's ruling is correct, and I would affirm it.

In Wray Electric Contracting, Inc., 78 OSAHRC 78/A2, 6 BNA OSHC 1981, 1978 CCH OSHD P23,031 (No. 76-119, 1978) (dissenting opinion), Comm. dec. aff'd, No. 78-3597 (6th Cir. Sept. 15, 1980), I stated that employers are entitled to rely on topic headings under which standards appear and are not required to guess which ones apply and which do not.   To hold otherwise would render topic headings of standards meaningless.

I adhere to my view as expressed in Wray Electric and find that the scope of 29 C.F.R. §   1926.350(a)(9) is limited by the topic heading at §   1926.350(a).   This approach is consistent with the Commission's decision in Stearns-Roger, Inc., 79 OSAHRC 94/A2, modified, 79 OSAHRC 104/G8, 7 BNA OSHC 1919, 1979 CCH OSHD P24,008 (No. 2326, 1979).   There the alleged violation concerned another subsection of the same standard, 29 C.F.R. §   1926.350(a)(1).   That subsection states:

§   1926.350 Gas welding and cutting.

(a) Transporting, moving, and storing compressed gas cylinders

(1) Valve   [*16]   protection caps shall be in place and secured.

The Commission held that the application of the subsection was limited by the topic heading and applied only to the transporting, moving, and storage of compressed gas cylinders. It vacated the citation because the cylinders in question were not being transported, moved, or stored.

The majority distinguishes Stearns-Roger because the text of the cited standard in that case, §   1926.350(a)(1), does not specify the scope of its application, which my colleagues conclude is done in the text of the cited standard here.   Such a distinction, however, is without merit and does not override the limitation the topic heading places on application of a standard.

The Secretary does not contend that the cylinders in question here were being transported, moved, or stored, and the judge found no evidence to this effect.   Therefore, I would uphold the judge's decision vacating this item of the citation.

Austin was cited for violation of 29 C.F.R. §   1926.28(a) because it allegedly failed to require employees working at the top edge of an eighty-foot high precipatator to use safety belts. n1 My colleagues remand this alleged violation to the judge [*17]   for reconsideration in light of the Commission's decision in S & H Riggers & Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979), appeal docketed, No. 79-2358 (5th Cir. June 7, 1979), which was issued subsequent to the judge's decision in this case.   In my concurring opinion in S & H Riggers, I set forth a separate test for determining whether an employer is in violation of 29 C.F.R. §   1926.28(a), which differs in some respects from the test applied by my colleagues. The test applied by the judge is incorrect since it is inconsistent with the test I set forth in S & H Riggers and therefore must be vacated. I concur with my colleagues in remanding the judge's decision on this issue.   See, e.g., National Industrial Constructors, Inc., OSAHRC, 8 BNA OSHC 1675, 1676 n.8, 1979 CCH OSHD P24,589, at 30,168 n.8 (No. 76-5241, 1980).

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n1 29 C.F.R. §   1926.28(a) states:

§   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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