FRANCISCO TOWER SERVICE, INC.  

OSHRC Docket No. 8128

Occupational Safety and Health Review Commission

July 23, 1976

  [*1]  

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  

COUNSEL:

Francis V. LaRuffa, Regional Solicitor, USDOL

Richard D. Priest, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On March 17, 1975, Administrative Law Judge Joseph Chodes issued a decision affirming a citation for a willful violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §   651 et seq. In the amended citation, the Secretary, complainant, charged Francisco Tower Service, respondent, with permitting two of its employees to climb a fixed ladder attached to a 270-foot self-supported transmission tower without the protection of the safety devices required by the standard at 29 CFR §   1926.450(a)(5).   The Judge assessed a penalty of $1,200 for the willful violation.

Neither party petitioned for review of the Judge's decision.   Commissioner Moran on his own motion ordered review on the following issues:

(1) Was there sufficient evidence to justify the Judge's conclusion that respondent violated the Act as alleged?

(2) Can a violation be established under circumstances where respondent was conducting his operations in reliance upon a written statement by the complainant's [*2]   safety standards director?

(3) Can a violation be established for failing to observe safety requirements where complainant's expert witness testifies that the same would be impractical or impossible to install and would, in fact, violate a different safety standard? n1

(4) Is it proper to base a finding of a willful violation upon evidence that respondent was previously cited for violating a different provision of the Act and where no disposition of that charge has been made?

The Secretary has filed a brief on review urging affirmance of the Judge's decision.   Respondent has not filed a brief with the Commission.

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n1 We note that the Administrative Law Judge did not pass upon nor did he discuss this specific issue.

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The Commission has previously held that where (a) neither party has filed exceptions to the Judge's decision, (b) the decision is ordered for review by a Commissioner on his own motion, (c) the party not aggrieved by the decision files no brief or a brief urging affirmance of the Judge's decision, (d)   [*3]   the party aggrieved by the decision files no brief, and (e) there is an absence of any compelling public interest, the Commission will decline to pass on the directed issues or any other aspects of the Judge's decision.   Abbott-Sommer, Inc., No. 9507, BNA 3 OSHC 2032, CCH OSHD para. 20,428 (1976); Star Circle Wall Systems, Inc., No. 3271, BNA 4 OSHC 1011, CCH OSHD para. 20,502 (1976); John R. Davies & Son, No. 5486, BNA 4 OSHC 1173, CCH OSHD para. 20,634 (April 19, 1976).   The case before us falls into this category.   In addition, because of our disposition herein, the Judge's decision is an unreviewed decision, and as such is not precedent binding upon us.

Accordingly, it is ORDERED that the decision of Judge Chodes be affirmed.  

CONCURBY: BARNAKO

CONCUR:

BARNAKO, Chairman, concurring:

I concur and agree with the reasons assigned by Commissioner Cleary.   However, I do note that issue number 2 of the order for review raises an important question of law although I do not consider it to be one of "compelling public interest" in the posture of this case.

Briefly, the facts relating to the issue are these.   Respondent was a subcontractor performing installation work for the construction of [*4]   a television tower. The tower was self supported and 270 feet tall.   A fixed ladder was installed on the tower. It was not provided with a ladder cage, but it did have landing platforms at the 135 and 200 foot levels.   On March 11, 1974, two of Respondent's employees started ascending the ladder with the intent of performing construction work near the top. One employee fell to his death after he climbed about 85 feet.   Ladder safety devices were not used.

An inspection ensued, and Respondent was cited for an alleged willful violation of the Act for not having complied with 29 C.F.R. 1926.405(a)(5).   The standard provides that fixed ladders "shall be in accordance with the provisions of American National Standards Institute, A 14.3-1956, Safety Code for Fixed Ladders." Section 6.1 of the Code requires ladder cages, section 6.2 requires landing platforms at 20 foot intervals, and section 6.5 relates to the use of ladder safety devices.

Among other defenses, Respondent argued, at trial, that it had not violated the standard because it relied on a letter issued by the Occupational Safety and Health Administration's Director of the Office of Standards.   The letter is dated December [*5]   1, 1972 and is addressed to the President of the American Gas Association.   In part, it states as follows:

Your petition for modification [of 29 CFR 1910.27, Fixed Ladders] is unnecessary as the standard does not apply to electrical transmission facility structures, transmission tower, and utility poles which include wire towers, micro-wave, and radio communication towers. This opinion is based on the understanding of the language of Section 1910.27.

However, in the absence of a specific applicable standard you must install, furnish and maintain in good condition and use such devices and safeguards as necessary to protect employees.

Judge Chodes apparently assumed that the letter is an official interpretative opinion of the cited standard as well as 29 C.F.R. 1910.27, and he apparently also assumed that Respondent was entitled to rely on the letter.   I say he assumed because in rejecting Respondent's argument he rejected the interpretation.   He rejected the interpretation on the basis that a court will give careful consideration to but is not bound by an administrator's interpretation of his regulations. Commissioner Moran directed review on whether a violation can be established [*6]   under circumstances where Respondent conducts his operations in reliance on a letter of the type involved here.

The question has this importance.   If the letter is an official interpretation, if it applies to the cited standard, and if Respondent is entitled to rely on it then this Respondent and all others in similar circumstances may be exempt from the standard's requirements.   I am not prepared to agree to this kind of result in the absence of argument by the parties.   The effect would be the same as granting or denying a variance under 29 U.S.C. 655(d).   Moreover, in view of the importance of the ultimate result I am not willing to make assumptions for a party who will benefit therefrom when the party does not provide reasons for making the assumptions.   In part cular I will not make the assumption that OSHA's Director of Standards intended to interpret the construction safety standard at 29 CFR 1926.450 when his letter is clearly restricted to 29 CFR 1910.27, a general industry standard.   Questions of this scope are best left for cases where the parties actively litigate the issues on review.   And in my view this is an important reason for using Abbott-Sommer, Inc., No.   [*7]   9507, BNA 3 OSHC 2032, CCH OSHD para. 20,428 (1976) and its progeny to decide cases that are in the posture this one is on review.  

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

My colleagues do not know the meaning of the word "review" despite the fact that they are members of a "review" commission.   In view of the "disposition" they have ordered in this case and more than one hundred other cases in recent months, it is clear that the time has come for a name change.   I think they have earned the right to call themselves the Occupational Safety and Health Dodge, Duck, Skip, Side-Step, and Cut-and-Run Commission.   The official seal of OSHDDSSSCRC could be a mammoth loophole and the motto could be "Don't Bother Us If You Can't Hire A Lawyer To File A Brief, Or If Two Of Us Don't Think There Is Any Compelling Public Interest In Your Case, And Don't Bother Asking What We Mean By 'Compelling Public Interest.'" The official bird would, of course, be the ostrich.

Black's Law Dictionary (4th ed., 1951) states that the meaning of the word "review" is as follows:

"REVIEW. To re-examine judicially.   A reconsideration; second view or examination; revision; consideration for purposes of correction.   [*8]   Used especially of the examination of a cause by an appellate court, and of a second investigation of a proposed public road by a jury of viewers."

What is the only reason for having three members which the taxpayers of this Nation compensate at a combined rate of better than $150,000.00 - and together with their staffs and other perquisites cost those same taxpayers nearly two million dollars each year?   The answer is to "review" decisions rendered by Administrative Law Judges.   If Barnako, Cleary or Moran get paid by the government for any other purpose - that purpose has never been revealed to me and I have served as a Member of this Commission every minute it has been in existence.   If either Mr. Barnako or Mr. Cleary know of any other duty which reposes in a Commission Member, I invite them to state the same together with the authority from which such duty is derived.   (They both will have plenty of time to revise their opinions in this case after reading this.)

It follows - as sure as night follows day - that since our only reason for existence is to "review" Judge's decisions, we aren't doing our job when we dodge, duck, skip, side-step, cut-and-run - and attempt to justify [*9]   the same by cloaking ourselves in "The Public Interest" (as opposed, of course, to "National Security").

I never have - and never will - shirk my duty to review Judge's decisions regardless of who directed review thereof or what reason they specified - or failed to specify - for so doing.   Nor have I ever taken the position that the failure of a party to file a legal brief bars consideration of the merits of the issues in dispute.   My concept of the "public interest" resides in the language of the Act I was appointed to implement - nowhere else.   It calls upon me - and each Member of this Commission - to "review" (i.e. judicially re-examine) each Judge's decision which has been directed for review pursuant to 29 U.S.C. §   661(i).   I intend to continue doing so just as long as I remain a Member of this Commission.   I have also taken the trouble to point out the error of my colleagues' ways when they have ducked their duties in the past.  

The refusal by Messrs.   Barnako [*10]   and Cleary to address any of the issues specified in the direction for review which was filed in this case on March 27, 1975 is both improper and contrary to law.   Once again I repeat that the statutory authority conferred on Members of this Commission by 29 U.S.C. §   661(i) to direct review of Judge's decisions is not qualified by any requirement in the Act - or anywhere else - that the interested parties petition for review, or submit briefs on the issues directed for review, or that the specified issues involve a "compelling public interest." I have invited my colleagues to cite authority for their position.   They have responded - with Pavlovian monotony - by merely reiterating the empty rationale of their prior decisions.

Additionally, the Commission errs in affirming a willful violation of 29 C.F.R. §   1926.450(a)(5), a standard which incorporated by reference the American National Standards Institute (ANSI) standard A14.3-1956, Safety Code for Fixed Ladders. n2 Respondent, in its defense to the citation, relies on a letter from one of complainant's safety officials, the Director of the Office of Standards of the Occupational Safety and Health Administration, denying a petition [*11]   by the American Gas Association for modification of 29 C.F.R. §   1910.27 with the statement that this regulation "does not apply to electrical transmission facility structures, transmission tower[s], and utility poles which include wire towers, micro-wave and radio communication towers." The letter also states that where employees are working on such towers, employers should furnish "such devices and safeguards as necessary to protect the employees."

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  For the reasons discussed infra, this case is another illustration of why such a procedure is an unwise and unjust practice.

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Although section 1910.27 is substantively identical with the regulation at issue in this case since both incorporate the requirements [*12]   of the ANSI Safety Code for Fixed Ladders, the Judge adopted complainant's position that the letter was not controlling.   In his concurrence Chairman Barnako acknowledges that, if the letter represents an official interpretation applicable to the cited standard upon which respondent is entitled to rely, then this respondent and all others in similar circumstances may be exempt from the standard's requirements.   However, Chairman Barnako - with customary decisiveness - then refuses to decide the issue.

In my view, the letter denying the petition for modification constitutes an unequivocal administrative interpretation that the standard does not apply to various towers. Such an interpretation is binding upon complainant.

In Continental Oil Company v. Burns, 317 F. Supp. 194, 197 (D. Del. 1970) it was held that:

"An administrative interpretation . . . is a clarification or explanation of existing laws or regulations . . . .   [They] are statements as to what the administrative officer thinks the . . . . regulation means."

Other courts have similarly defined administrative interpretations. See, e.g., Gibson Wine Co. v. Snyder, 194 F.2d 329 (D.C. Cir. 1952).   [*13]   Moreover, administrative interpretations need not be formally issued and can be announced through press releases and reports.   1 K. Davis, Administrative Law Treatise, §   5.01 at 289 (1958).

The letter from the Director of Standards clearly qualifies as an administrative interpretation. In effect, it says that there is no need to pursue the statutory scheme of the Act to modify the standard on fixed ladders because it does not apply at all to various worksites, including the one at issue.   This interpretation should be given great weight as to what the standard requires.   See Investment Company Institute v. Camp, 401 U.S. 617, 626-627 (1971); Immigration and Naturalization Service v. Stanisic, 395 U.S. 62, 72 (1969), First Nat. Bank in St. Louis v. State of Missouri, 263 U.S. 640, 658 (1924); Greene v. Dietz, 143 F. Supp. 464 (S.D. N.Y. 1956).

The difference between criminal and remedial legislation is that the former's purpose is to punish those who violate the law while the latter's purpose is to remedy a problem.   This Act is remedial legislation enacted for the purpose of reducing occupational hazards. To achieve this worthwhile objective Congress [*14]   gave the Secretary of Labor widespread responsibility and authority.   This included rulemaking power so the Secretary could advise employers what rules they must follow to reduce these occupational hazards. In this case a rule was first promulgated and then subsequently explained when a particular group of employers was told that it does not apply to certain of their operations.   This respondent was engaged in the excluded operations and had a right to rely upon the interpretation.

Furthermore, the "necessary safety equipment" language of the administrative interpretation does not help complainant's case because it gives virtually no guidelines to the employer concerning what constitutes compliance. n3 See Cape and Vineyard Division of the New Bedford Gas and Edison Light Company v. OSAHRC, 512 F.2d 1148 (1st Cir. 1975). Although the complainant's evidence at trial was directed at the installation of a very specific type of safety equipment - the Dubl-Lock device produced by Atlas Safety Equipment Company - that device is not specifically mentioned in the regulations relied upon by complainant nor in the charges against respondent.   More importantly, however, it falls [*15]   under the provisions of section 6.5 of the ANSI standard pertaining to ladder safety devices which the Secretary's interpretation renders inapplicable under the circumstances of this case.

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n3 Respondent's employees were in fact wearing safety belts equipped with "pelican hooks" which had not yet been attached at the time of the Fatal fall.

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The purpose of regulations and interpretations which implement this remedial Act is to tell the employer what is necessary for the job safety and health of his employees.   See Diamond Roofing Co. v. OSAHRC, 528 F.2d 645 (5th Cir., 1976).   The employer who follows those instructions is doing what the law requires and what the authorities believe is necessary to achieve the Act's objectives.   When subordinate authorities disagree, the Secretary speaks with two voices.   This precludes accomplishment of the law's purposes and does not provide workers with the protection which would result from a single consistent position.   The resulting harm is compounded when the Secretary [*16]   initiates action to penalize those who are unable to read the minds of government officials.   That is what has happened in this case.   One of the Secretary's officials says one thing while another, in prosecuting this respondent for following the first official's word, takes the opposite position.   It is not only improper to find a violation under these circumstances but the affirmance of the Secretary's approach to this law on the facts before us lends unquestionable support to statements such as those made recently by two United States Senators.   During debate on the Department of Labor's appropriation for fiscal year 1977, Senator Domenici of New Mexico stated

". . .   I believe OSHA can be described as arbitrary and unworkable . . . the abuses grow daily as do the frustrations of the people . . . .   The regulations are voluminous and vague.   A businessman could not comply if he tried."

Earlier, on March 22, 1976, Senator Frank Moss of Utah told the Senate:

". . .   I know of no Federal agency with a worse public reputation for arrogance and unreasonableness."

The case before us is a classic example of the essence of the issued statements.   One OSHA official issues a public statement [*17]   that an OSHA standard does not apply to a businessman's operations.   The businessman relies upon that statement and, as a result thereof, another OSHA official prosecutes him for violating the OSHA regulations. Then two Members of this Commission - applying their Catch 22 rule to the case - affirm the violation because the businessman did not hire a lawyer to file a legal brief with them.

Finally, I am once again constrained to take issue with my colleagues' unsupported views regarding the precedential significance of unreviewed Judges' decisions.   I see no need to repeat here what I have said on this matter in numerous other decisions. n4 However, it is important to emphasize that every appellate court that has ever considered a decision of one of our Judges which became a final order of the Commission because it was not directed for review has treated such an opinion exactly the same as one issued by the Commission members.   Moreover, one cannot help but wonder why the majority would affirm a decision by which they do not intend to be bound in future cases (perhaps this is in keeping with the official seal of the re-named organization suggested above).

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Since Messrs.   Barnako and Cleary have not disagreed with any matters covered in Judge Chodes' decision, the same is attached hereto as Appendix A so that it may be afforded the precedential weight to which it is entitled, that is, the same weight as a decision by the Commission members.

APPENDIX A

DECISION AND ORDER

Theodore T. Gotsch, for the Secretary of Labor

Richard D. Priest, for the Respondent

Chodes, Judge

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. §   651 et seq., hereinafter referred to as the Act), in which the respondent is contesting a citation issued by the complainant against the respondent under the authority vested in complainant by section 9(a) of the Act.   The citation which was   [*19]   issued on May 14, 1974, alleged that as a result of an inspection on March 12, 1974, of a place of employment located at Pinnacle Road, 500 feet south of the intersection with Beaver Road, Voorhesville, New York, the respondent is alleged to have violated section 5(a)(1) of the Act by failing to furnish to its employees a place of employment that was free from recognized hazards.

Specifically, the respondent was charged with permitting two of its employees to climb a vertical ladder to the 200 foot level and that the ladder was not provided with a ladder safety device or with safety belts or harness to prevent the employees from falling.

The violation was characterized as willful and, pursuant to the enforcement procedure set forth in section 10(a) of the Act, the respondent was mailed a Notification of Proposed Penalty in the amount of $1,800 by Chester C. Whiteside, Area Director of the Syracuse, New York area, Occupational Safety and Health Administration, U.S. Department of Labor.

After the respondent contested the enforcement action and a complaint and answer had been filed by the parties, the case came on for hearing at Albany, New York on September 9, 1974.   The case was   [*20]   adjourned, rescheduled and tried on November 4, 1974.

Complaint Amended

Complainant was granted permission to amend its pleadings (pages 20, 21 of transcript of hearing held on September 9, 1974).   Accordingly, paragraph V of the complaint was amended as follows:

On March 12, 1974 at respondent's place of employment, a radio and television transmission tower owned by stations WMHT-TV and WMHT-FM, located on Pinnacle Road, approximately 500 feet south of the intersections with Beaver Dam Road, Village of Voorheesville, Town of New Scotland, County of Albany, New York.   Respondent violated 29 CFR U.S.C. 654(a)(2) in that it failed to comply with the following occupational safety and health regulation promulgated pursuant to 29 U.S.C. 655:

29 CFR 1926.450(a)(5) in that respondent allowed two of its employees, John Haisman and Fred T. Salenski to climb a fixed ladder attached to a 270 foot self supported transmission tower to complete construction work on said tower while the fixed ladder did not comply with the rules, requirements and provisions of the American National Standards Institute, A 14.3 - 1956, safety code for fixed ladders; specifically with respect to failure to provide [*21]   said ladder with cage protection, landing platforms or ladder safety devices as required by sections 6.1, 6.2 and 6.5 of A.N.S.I. A-14.3 - 1956.

Summary of Evidence

In February 1973, Radio Corporation of America started the erection of a 271 foot TV tower (Exhibit C-4) pursuant to a contract with the Mohawk Hudson Council on Educational Television, Inc., operators of stations WMHT-TV and WMHT-FM.   RCA subcontracted the construction and installation of the tower to the Stainless Corporation which in turn subcontracted the installation work to the respondent, Francisco Tower, Inc. (T-46, 47, 50).   The antennae and other materials for the job came from Pine Forge, Pennsylvania (T-47, 48, 52).   The work of constructing the tower continued up to the date the alleged violation work plat on March 12, 1974 and employees of the respondent were on the job as needed to perform their work (T-57-60).

There was a fixed ladder, bolted with U-bolts, installed on the tower in 25 foot modules.   At the 135 foot elevation level there was a landing platform with railings and decking.   Another platform was at the 200 foot base of the antennae.   The ladder had no cage nor were there any other safety [*22]   devices (T-53, 54, 57, 195, 196).

In January 1974, John Haisman, a foreman of the respondent, told Robert F. Schlieman, engineering manager for the TV station, that he knew of instances of citations being issued where employees climbed towers without ladder safety devices.   Mr. Haisman showed Mr. Schlieman a Xerox copy of a sheet describing a ladder safety device (T-73, 74, Exhibit C-1).

Late on March 11, 1974, Fred T. Saleski, and employee of the respondent, and Mr. Haisman went to the tower to drill two holes up on the top, change a U-bolt and conduit, tighten down a rubber grommet on top of an electric heater line and to put a torque on a winch on transmission lines to see if the stress was strong enough (T-188).   Mr. Haisman showed Mr. Saleski a letter (presumably part of Exhibit C-3) which outlined the work they were to do (T-189).   They did not start to work until after station sign off time at 11:00 p.m. because they were told that the antennae would be too hot to work with (T-190).   About midnight Mr. Saleski proceeded up the tower ladder with Mr. Haisman following in back of him.   Mr. Saleski carried some nuts and bolts, a drill and a couple of bits.   Mr. Haisman carried [*23]   a torque, wrench and a cord over his shoulder.   When Mr. Haisman reached about the 85 foot level Mr. Saleski heard a sound like his name, Fred, and looked down and saw Mr. Haisman falling to the ground.   He climbed down the ladder and saw Mr. Haisman badly hurt on the ground near the concrete shown on Exhibit C-6 (191-194).

There is testimony in the record that Mr. Haisman, as a foreman, was not required to climb tower ladders. In fact, he was ordered by Mr. Francisco, respondent's president, not to climb ladders. Also, Mr. Haisman had had an ulcer attack about two weeks prior to the accident.   He suffered from cramps and would "double right over".   He was not feeling well on the day of the accident.   However, he went up the tower to see that Mr. Saleski completed the work which had to be done (T-210, 211, 267).

By way of history, the record shows that the respondent was issued a citation for a violation of the general duty clause (section 5(a)(1) of the Act [29 U.S.C. 654(a)(1)]) after one of its employees was observed climbing up to the top of a fixed ladder. The government representative, David Bernard, told the officers of the respondent that the ladder should have been caged,   [*24]   have offsets at certain intervals, or a ladder safety device, none of which had been utilized.   The respondent replied that the ladder did not belong to the respondent and therefore it would be difficult for it to comply (T-220-225).   A similar response was made by the respondent following the issuance of the citation which is the subject of this proceeding (T-226, 227) and by Mr. Francisco, respondent's president, at the hearing.   Mr. Francisco did not consider it his responsibility to provide safety devices for the ladder as the tower was still under construction.   Since the ladder belonged to the owner of the tower, he felt the owner should supply the safety equipment (T-261-262).

With the view to establishing that ladder safety devices are available, the complainant, through Mr. Schlieman, produced at the hearing a Dubl-lock ladder safety device with Mr. Schlieman had purchased for installation but not yet installed on the tower involved in the instant case.   The device consisted of a cable which fastened on the climbing side of the ladder at the top at the 200 foot level.   The device was designed to arrest any fall backwards or downwards (T-119, 123).

Mr. Saleski (respondent's [*25]   employee) testified, on behalf of the complainant, that during the years he had worked on towers he installed ladder safety devices (similar to the one described by Mr. Schlieman) on a weather tower in Wading River, Long Island, a place in Long Island which he did not recall, and in Rome, New York.   This work was done while working as an employee of the respondent, Francisco Towers, Inc. (T-198-202).   Mr. Francisco testified that he had installed ladder safety devices on about a hundred towers (T-251).   Mr. Saleski observed that there was some difficulty in using the safety device because it requires the worker to be hooked on 6 inches away from the ladder, and it is necessary to straddle the ladder so that it took more out of the person climbing the ladder than would normally be the case (T-212, 213).

David Bernard, claimant's representative, recommended that the respondent be cited for a violation and proposed a penalty of $1,800.   The amount arrived at was obtained by starting with the maximum penalty of $1,000 allowed by law (section 17(c) of the Act, 29 U.S.C. 666(c)) and then allowing a credit of $100 (10%) for the relatively small size of the respondent (less than 20 employees),   [*26]   thereby reducing the penalty to $900.   No credit was given for good faith or history of previous violations.   The $900 penalty was multiplied by two due to the willfulness of the violation, resulting in a proposed penalty of $1,800 (T-227-229).

Discussion

The respondent did not concede that it was engaged in a business affecting commerce, but the proof which showed that the respondent was engaged in installation work in several states and materials for the job in the instant case came from Pennsylvania, is sufficient to establish this jurisdictional element.

There is in evidence a letter dated December 1, 1972 from George E. Scannell, Director of Standards, Occupational Safety and Health Administration, Department of Labor, which was written to the American Gas Association in reference to a petition for modification of 29 C.F.R. §   1910.27 of the general standards relating to fixed ladders. The letter states that, based on the language of section 1910.27, the standard does not apply to electrical transmission facility structures, transmission towers, and utility poles which include wire towers, microwave and radio communication towers. The letter further stated that ". . .   [*27]   in the absence of a specific applicable standard you must install, furnish and maintain in good condition, and use such devices and safeguards as necessary to protect the employees.   If such protection is always provided and used, the employer will meet the requirements of the Occupational Safety and Health Act."

It is the position of the respondent that it had the right to rely on the opinion expressed in the letter and as a consequence it was not obligated to comply with the safety standards provided in section 1910.27.   The standards set forth at 1910.27 are essentially the same standards the respondent is charged with violating, that is, sections 6.1, 6.2 and 6.5 of the Safety Code for Fixed Ladders of the American National Standards Institute Incorporated in 29 C.F.R. 1926.450(a)(5).

The respondent's position is untenable.   The letter does not disclose the basis for the opinion expressed other than "the understanding of the language of section 1910.27." Moreover, the letter specifically requires the use of "such devices and safeguards as necessary to protect the employees." Considering the broad objectives of the Occupational Safety and Health Act "to assure so far as possible [*28]   every working man and woman in the Nation safe and healthful working conditions" the exemption of employers engaged in constructing TV towers will not further the legislative objective.   While the views of officials whose duties include the interpretation of the law and regulations are entitled to careful consideration, they are not controlling.   In Wilderness Society v. Morton, 479 F.2d 842, 865 (D.C. Cir.) Cert. denied 411 US 917 (1973), Judge Wright, in discussing the weight to be given to administrative interpretations of statutes stated that there is a "duty to ignore that construction should it be determined that it is in conflict with the plain intent of the legislature".   Further, the court stated "[a]dministrative interpretations are not absolute rules of law which must necessarily be followed in every instance, but are only helpful guides to aid courts in their tasks of statutory construction".

The evidence is uncontradicted that the fixed ladder on the television transmission tower did not conform to the provisions of the American National Standards Institute, A 14.3 - 1956, Safety Code for fixed ladders as required by the standard set forth at 29 C.F.R. §   1926.450(a)(5).   [*29]   There was no cage for the ladder as required by section 6.1 of the above Safety Code, landing platforms were not provided for each 20 feet of height as required by section 6.2, and ladder safety devices were not utilized as provided in section 6.5.   Since two of the respondent's employees were exposed to the hazards contemplated by the Safety Code, a violation of the standard is established.

Respondent maintained that since the fixed ladder was the property of the owner of the tower and the owner's contract with RCA, the general contractor, provided that RCA would comply with all safety standards (T-75), the respondent was absolved of liability.   However, it is well settled, as stated by Commissioner Van Namee in Secretary v. R.H. Bishop Company, 8 OSAHRC 930 (1974), that "[i]t is no defense that others have created the violative condition, were responsible for its existence, or had control of the site where such condition exists."

The point was made by the respondent that the installation of ladder safety devices would be impractical in that such devices would interfere with the ability of employees to perform their duties. That some impediment to free movement when ascending [*30]   and descending the ladder can be expected, the evidence fails to show that a safety device would materially interfere with normal activity.   Moreover, ladder safety devices have been installed by the respondent on numerous jobs which gives rise to a permissible inference that their use is practicable.

Was the violation willful as charged in the citation?   The respondent was previously cited for a similar violation, albeit the citation was for violation of the general duty clause which requires, generally, that each employer furnish a place of employment that is free from recognized hazards. Consequently, respondent was aware that failure to provide its employees with ladder safety devices was a violation of the Act and permitting its employees to work on fixed ladders without safety devices was, in the language of the Court in F. X. Messina Construction Corp. v. Occupational Safety and Health Review Commission, 505 F.2d 701 (1974), "a conscious, intentional, deliberate, voluntary decision, which, regardless of venial motive, properly is described as willful."

There remains the question of the appropriate penalty.   Section 17(a) of the Act (29 U.S.C. 666(a)) provides that an employer [*31]   who willfully violates any promulgated standard may be assessed a penalty of not more than $10,000.   In assessing penalties, the criteria to be considered is set forth in section 17(j) (29 U.S.C. 666(i)) of the Act as follows:

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.

The fatality which brought about the issuance of the citation is an indication of the gravity of the violation.   There is evidence that Mr. Haisman was not supposed to climb the ladder because he was ill and, being a foreman, his duties did not require him to do so.   However, he was the foreman on the job and his actions are attributable to the respondent.   Moreover, another employee, Mr. Saleski, was also exposed to the same hazard as Mr. Haisman.   The respondent's good faith, in the face of a willful violation must be considered a negative factor.   Evidence of a previous violation also militates against giving favorable consideration [*32]   to the history factor.   The size of the respondent's business is relatively small, with under 20 employees.   While the violation is determined to have been willful, it was not flagrant or done in a manner which would indicate a malicious disregard of the standard.   This distinction was made in the case of Secretary v. Intercounty Construction Corp., 5 OSAHRC 782 (1973) in support of a reduction of the penalty proposed by the complainant.   Respondent's argument that it was the responsibility of the general contractor to provide safety protection and the difficulty in providing safety devices to meet the requirements of each job is understandable, even though it is not a legal excuse for respondent's failure to protect its employees.   All factors considered, an appropriate penalty is determined to be $1,200.

Findings of Fact

On the basis of the citation, Notice of Proposed Penalty, Notice of Contest, pleadings, the testimony and exhibits adduced at the hearing, and the representation of the parties, it is concluded that on the record as a whole, a preponderance of the evidence supports the following findings of fact:

1.   Respondent is engaged in the business of manufacturing,   [*33]   maintaining, servicing and repairing television, radio and microwave transmission towers. Respondent conducts its business in several states and utilizes materials which originate across state lines.

2.   On March 12, 1974, at the workplace involved herein, two of the respondent's employees were exposed to the hazard of falling from a fixed ladder 200 feet in height which was not provided with cage protection, landing platforms at 20 feet intervals or other ladder safety devices in violation of the standards set forth at sections 6.1, 6.2 and 6.5 of American National Standards Institute, A 14.3 - 1956, Safety Code for Fixed Ladders, which were incorporated by reference in the standard set forth at 29 C.F.R. §   1926.450(a)(5).

3.   The facts recited in paragraph 2 above were the result of the respondent's conscious, intentional, deliberate and voluntary decision.

4.   Giving due consideration to the size of respondent's business, the gravity of the violation, the good faith of the respondent and the history of previous violations, the appropriate penalty for violations of the standard referred to in paragraph 2 above is $1,200.

Conclusions of Law

1.   The respondent at all times [*34]   material hereto was engaged in business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970.

2.   The respondent at all times material hereto was subject to the requirements of the Occupational Safety and Health Act and the standards promulgated thereunder, and the Commission has jurisdiction of the parties and of the subject matter herein.

3.   The respondent willfully violated the Occupational Safety and Health standard set forth at sections 6.1, 6.2 and 6.5 of American National Standards Institute, A 14.3 - 1956, Safety Code for Fixed Ladders, which were incorporated by reference in the standard set forth at 29 C.F.R. 1926.450(a)(5) and is assessed a penalty of $1.200.

Order

Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is

ORDERED that the citation issued on May 14, 1974, as amended, is affirmed, the penalty proposed by the complainant is modified, and a penalty of $1,200 is assessed.

JOSEPH CHODES, Judge, OSAHRC

Dated: March 17, 1975

Hyattsville, Maryland