Docket No. 78-4279

DANIEL INTERNATIONAL, INC.

OSHRC Docket No. 78-4279

Occupational Safety and Health Review Commission

April 21, 1982

[*1]

Before ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

T. A. Housh, Jr., Reg. Sol., USDOL

Carl B. Carruth, for the employer

OPINION:

DECISION

BY THE COMMISSION:

This case presents the question whether the Secretary of Labor properly charged Daniel International, Inc. with violating section 5(a)(1) of the Occupational Safety and Health Act of 1970. n1 The citation alleged that employees working below other employees who were connecting a girder "were not adequately protected from falling materials including girders and other structural members." The Secretary contends that Daniel should have used barricades isolating the area below the girder connection operation to prevent the employees from walking or working there. Daniel contends that there are steel erection standards in 29 C.F.R. § § 1926.751 and 752 which require employers performing girder connection work to take certain measures against falling girders, tools, and other materials. These standards do not require steel erection employers to prohibit employees from working below the girder connection operation. Accordingly, Daniel contends that citation to section 5(a)(1) to require barricading [*2] is improper.

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n1 Section 5(a)(1), 29 U.S.C. § 654(a)(1), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"), 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.

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We conclude that the Secretary's citation was inappropriate because particular steel erection standards address the problem of falling materials during girder connection work. Accordingly, we vacate the Secretary's citation. n2

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n2 Because we conclude that the § 5(a)(1) citation was inappropriate and must be vacated, wo do not reach the remaining issues on review concerning wheter the Secretary established a violation of § 5(a)(1).

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Daniel is engaged in the construction of various [*3] structures, among them nuclear power plants. In 1978, Daniel was in the process of building one such plant in Fulton, Missouri. On that date, two ironworkers were working inside the reactor building, a large, round structure. A crane located outside the building was placing 4-1/2 ton steel girders on pedestals along the inside edge of the reactor. The ironworkers were instructed to loosely bolt each beam in place before the crane line was disconnected. However, on August 4, two ironworkers failed to bolt one of the girders into place prior to disconnecting the crane line. As the line swung away, it caught the girder, knocking it loose from its pedestals and causing it to fall 120 feet to the floor below. As a result, two of Daniel's employees were injured.

Shortly thereafter, the Federal Nuclear Regulatory Agency notified the Occupational Safety and Health Administration ("OSHA") that an accident had occurred. An OSHA compliance officer thus conducted an inspection of Respondent's operations during the period August 7 through August 30, 1978. On August 30, a citation was issued, alleging a serious violation of section 5(a)(1) in that Daniel did not barricade the area below [*4] the girder connection work to prevent employees from entering the area.

Diniel argues that there are steel erection standards which address the hazard alleged in the citation, "falling materials including girders and other structural members." 29 C.F.R. § 1926.751 concerns "Structural Steel Assembly." Section 1926.751(a) requires:

During the final placing of solid web structural members, the load shall not be released from the hoisting line until the members are secured with not less than two bolts, or the equivalent at each connection and drawn up wrench tight.

Section 1926.752 concerns "Bolting, Riveting, Fittring-up and Plumbing-up." It contains standards prescribing procedures to protect employees working below structural steel assembly from certain tools, bolts, rivets, and othr materials. The pertinent provisions of this section state:

(a) General Requirements. (1) Containers shall be provided for storing or carring rivets, bolts, and drift pins, and secured against accidental displacement when aloft.

* * *

(b) Bolting. (1) When bolts or drift pins are being knocked out, means shall be provided to keep them from falling.

(2) Impact wrenches shall be provided [*5] with a locking device for retaining the socket.

* * *

(2) When rivet heads are knocked off, or backed out, means shall be provided to keep them from falling.

Daniel argues that it required its employes to comply with these standards and that the ironworkers' failure to bolt the girder before releasing the crane was unpreventable employee misconduct. Further, Daniel argues, the compliance officer was aware of the specific standards coverinjg falling materials during girder connection work but recommended the section 5(a)(1) citation because Daniel had not violated the specific standards. The compliance officer testified:

Well, basically the reason that the company was not cited for . . . [a violation of the specific standard on bolting-up of beams, section 1926.751(a)] is because all information and handout material relating to the safety program, and in discussing with employees in management, it was determined from the investigation that the company could not really be responsible for the action of the two iron workers, because they apparently had done everything they could to inform the iron workers that beams should have been bolted before the chokers were [*6] released. So, under that set of circumstances, we did not feel it would be fair to cite the company for that type of action.

They Secretary maintains, however, that the section 5(a)(1) citation is proper under the circumstances. The Secretary argues that, even if Daniel strictly enforced adherence to all applicable standards, there would still be falling materials, because of noncompliance and accidents and because the specific standards do not provide complete protection from all falling materials. The record shows that nuts, shim plates, wrenches, and personal objects such as hard hats could fall. The steel erection standards do not cover these possibilities. Accordingly, the Secretary argues that the only method for accomplishing optimum safety for the employees below girder connection work is to barricade the area.

Administrative Law Judge Paul E. Dixon, before whom the case was tried, concluded that the section 5(a)(1) citation was appropriate. He agreed with the Secretary that the hazard of falling objects was not completely remedied by compliance with the specific standards. Because, among other things, the judge found that barricading was a feasible way to totally [*7] eliminate the hazard, he affirmed the Secretary's citation. Former Commissioner Barnako directed review of the judge's decision.

III

Citation to section 5(a)(1) is inappropriate if the hazard is addressed by a standard. The hazard cited under section 5(a)(1) in this case is falling materials during girder connection work for steel erection. This hazard is addressed in the steel erection standards.

The steel erection standards seek to protect employees against fallig girders, small materials such as bolts and rivets, and sockets from impact wrenches. As this record shows, these are not the only materials that may fall. However, in these standards the Secretary has regulated the more obvious, more probable, or more serious manifestations of the hazard of objects falling during girder connection. Significantly, he did not seek to remedy the hazard by imposing restrictions on work below connection work. Rather than barricading, he required precautions against the particular materials falling. [*8] For example, to protect against probably the most serious falling material hazard likely to arise -- the girder falling -- the Secretary required the girder to be bolted in place before the crane hoist line is released. He did not restrict other work in the area. Similarly, he required containers to store and carry rivets, bolts, and other small materials. He also specified a locking device to retain impact wrench sockets.

We have said that standards "represent the considered judgment of the Secretary, after receiving input from safety experts and persons who will be affected by the standards, of the proper means to guard against particular hazards" and that they "promote the Act's objective by placing employers on notice of the steps they must take to provide safe and healthful workplaces to their employees." A. Prokosch & Sons Sheet Metal, Inc., 80 OSAHRC 96/A2, 8 BNA OSHC 2077, 2082, 1980 CCH OSHD P24,840 at pp. 30,629-30 (No. 76-406, 1980). In rulemaking dealing with the hazard of objects falling during steel erection, the Secretary afforded employers notice that they were required to take specific precautions. To permit the Secretary to require further precautions [*9] under section 5(a)(1) because his standards purportedly do not provide sufficient protection would circumvent the rulemaking process and is impermissible. See Mississippi Power & Light Co., 79 OSAHRC 109/D2, 7 BNA OSHC 2036, 1980 CCH OSHD P24,146 (No. 76-2044, 1979).

Accordingly, we vacate the section 5(a)(1) citation. SO ORDERED.

DISSENTBY: COTTINE

DISSENT:

COTTINE, Commissioner, dissenting:

The majority decision in this case represents a departure from established Commission precedent regarding the applicability of the Act's general duty clause to workplace practices or conditions addressed in whole or in part by specific standards.

In reaffirming its prior precedent on the issue, the Commission recently stated:

Citation under section 5(a)(1) is inappropriate when a specific standard applies to the facts. However, when no specific standard entirely protects against the hazard alleged, citation under 5(a)(1) is proper. Ted Wilkerson, Inc., 81 OSAHRC 70/D8, 9 BNA OSHC 2012, 1981 CCH OSHD P25,551 (No. 13390, 1981).

Peter Cooper Corp., 81 OSAHRC 101/A2, 10 BNA OSHC 1203, 1211, 1981 CCH OSHD P25,795, p. 32,238 (No. 76-596, 1981). In the lead opinion, my colleagues also rely on [*10] Ted Wilkerson, Inc., supra, for the proposition that "[c]itation to section 5(a)(1) is inappropriate if the hazard is addressed by a standard." However, they take the holding of that case out of the context that circumscribes its application. The relevant text is as follows:

Under the Act, a citation alleging a violation of section 5(a)(1) is inappropriate when a specific standard applies to the facts. Mississippi Power & Light Co., 79 OSAHRC 109/D2, 7 BNA OSHC 2036, 1980 CCH OSHD P24,146 (No. 76-2044, 1979); Claude Neon Federal Co., 77 OSAHRC 104/A2, 5 BNA OSHC 1546, 1977-78 CCH OSHD P21,887 (No. 13810, 1977). A citation under section 5(a)(1) will not be vacated, however, where the hazards presented are interrelated and not entirely covered by any single standard, Crescent Erection Co., 77 OSAHRC 145/B12, 5 BNA OSHC 1711, 1976-77 CCH OSHD P20,995 (No. 2159, 1977), or where a specific standard does not address the particular hazard for which the employer has been cited. Armstrong Cork Co., 8 BNA OSHC 1070, 1980 CCH OSHD P24,273 (No. 76-2777, 1980), aff'd, 636 F.2d 1207 [9 OSHC 1416] (3d Cir. 1980); U.S. Pipe & Foundry Co., 78 OSAHRC 8/D6, 6 BNA [*11] OSHC 1332, 1978 CCH OSHD P22,514 (No. 11739, 1978). . . . Accordingly, because no specific standard, including section 1926.28(a), entirely covers the hazard alleged, citation under section 5(a)(1) was proper.

9 BNA OSHC 2012, 2015, 1981 CCH OSHD P25,551 at p. 31,855. See also R.L. Sanders Roofing Co., 79 OSAHRC 61/D7, 7 BNA OSHC 1566, 1979 CCH OSHD P23,756 (No. 76-2690, 1979), enforcement denied, 620 F.2d 97 (5th Cir. 1980) (general duty clause properly cited for failure to guard perimeter of flat roof where specific standard applicable only to roofs with slopes of greater than 4 inches in 12); Ringland-Johnson, Inc. 76 OSAHRC 63/A2, 4 BNA OSHC 1343, 1976-77 CCH OSHD P20,801 (No. 3028, 1976), aff'd, 551 F.2d 1117 (8th Cir. 1977) (although the scaffolding standards require tight planking for manually propelled, outrigger, and two point suspension scaffolds, there is no specific requirement for tubular welded scaffolds and section 5(a)(1) applies).

Certainly, the Act places principal reliance on specific standards to fulfill the legislative purpose of protecting the safety and health of workers. However, Congress recognized that there could not be specific [*12] standards to cover all hazardous situations and included the general duty clause to prevent a serious deficiency in the protection afforded workers. n1 As Commissioner Cleary noted in Schriber Sheet Metal & Roofers, Inc., 77 OSAHRC 213/E14, 6 BNA OSHC 1219, 1220, 1977-78 CCH OSHD P22,423 at p. 27,041 (No. 15681, 1977), vacated, 597 F.2d 78 (6th Cir. 1979), "the clear Congressional purpose was that a general duty should arise under section 5(a)(1) in situations where no duty under a specific standard exists." Consequently, the Act's purpose is frustrated by a narrow construction of the applicability of the general duty clause in the absence of any specific duty. n2 See American Smelting & Refining Co. v. OSHRC, 501 F.2d 504 (8th Cir. 1974). My colleagues apparently are concerned that reliance on the Act's general duty clause where specific standards do not adequately protect against workplace hazards deprives employers of notice of the steps they must take to provide safe and healthful workplaces to their employees. However, the remedy for their concern lies not in constricting the reach of the general duty clause, but rather in "the reasonable limitation placed [*13] on the employer's general duty, that is, the duty of the employer to eliminate only those hazards which are 'foreseeable and preventable.'" Titanium Metals Corp. of America v. Usery, 579 F.2d 536 (9th Cir. 1978). See also Senate Comm. on Labor & Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, at 1217 (1971) (statement of Rep. Steiger). n3

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n1 S.Rep. No. 1282, 91st Cong., 2d Sess. 9, (1970), reprinted in, Senate Comm. on Labor and Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, at 149 (1971) ("Legis. Hist.").

n2 Congress enacted the general duty clause as part of the Occupational Safety and Health Act in order to preserve the "General and common duty [of employers] to bring no adverse effects to the life and health of their employees throughout the course of their employment." H.R. Rep. No. 1291, 91st Cong., 2d Sess. 21 (1970), reprinted in, Legis. Hist., at 851. Both the Senate and the House of Representatives made specific reference to the following testimony by Governor Howard Pyle, President of the National Safety Council:

If national policy finally declares that all employees are entitled to safe and healthful working conditions, then all employers would be obligated to provide a safe and healthful workplace rather than only complying with a set of promulgated standards. The absence of such a "general obligation" provision would mean the absence of authority to cope with a hazardous condition which is obvious and admitted by all concerned for which no standard has been promulgated.

S.Rep. No. 1292, 91st Cong., 2d Sess., at 10, reprinted in, Legis. Hist., at 150; H.R.Rep. No. 1291, 91st Cong., 2d Sess., at 21, reprinted in, Legis. Hist., at 851. My colleagues' action in this case essentially nullifies the intended effect of the general duty clause by permitting specific standards to be used as a means of limiting an employer's general duty to its employees.

n3 In commenting on S. 2193, the occupational safety and health bill reported out by the Senate Committee on Labor and Public Welfare, Senator Williams stated:

As many are aware, certain features of this legislation have been the source of considerable controversy in public discussion and in committee deliberations. I am happy to say that a number of these issues have been resolved in a manner which seemed acceptable to the viewpoint of all Senators on the committee.

I should like to repeat that: Many of the tough and controversial issues were resolved. Many received a unanimous consensus -- a unanimous statement of resolution.

One which I think particularly appropriate to mention, in view of the concern it has occasioned within the business community, is the so-called "general duty" clause contained in section 5 of our bill. Under this clause, employers, in addition to complying with promulgated standards, would be under a general obligation to provide safe and healthful working conditions. This clause, which was strongly recommended by the National Safety Council and is similar to those found in a great many State statutes, was included in the bill to provide a means for requiring correction of hazardous situations which happened not to be covered by a specific standard. However, because of concern that this provision might impose too vague and sweeping a duty on employers, the Committee bill was clarified so that the duty is limited to maintaining the workplace free from "recognized" hazards.

Legis. Hist., at 415-6.

[*14]

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The record in this case establishes, and my colleagues acknowledge, that the referenced steel erection standards do not address all materials that could fall during the steel erection process being performed at this worksite. The judge's finding that the hazard of being struck by falling objects was not completely remedied by compliance with the specific steel erection standards is supported by the preponderance of the evidence. n4 The preponderant evidence also supports the judge's finding, based on the testimony of the Respondent's safety supervisor and the Respondent's own written safety rules, that the Respondent had actual knowledge of the hazard of overhead falling objects during steel erection. Similarly, the judge's conclusion based on the credible evidence of record that barricading the area directly beneath the steel erection operation was a feasible means of abating the recognized hazard to which the Respondent's employees were exposed is supported by the preponderance of the evidence.

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n4 The exposure of employees to the hazard of being struck by falling objects was increased in this case because the carpenter's gangbox where tools and equipment were obtained by employees was placed directly under the location where steel erection was being performed.

[*15]

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III

Commission precedent as well as the legislative intent underlying the general duty clause compel the conclusion that citation to section 5(a)(1) of the Act is appropriate under the facts of this case. See Peter Cooper Corp., 10 BNA OSHC at 1211, 1981 CCH OSHD P25,795 at p. 32,238; Ted Wilkerson, Inc., 9 BNA OSHC at 2015, 1981 CCH OSHD P25,551 at p. 31,855. Therefore, the decision of the Administrative Law Judge should be affirmed. Accordingly, I dissent.