Contractors Welding of Western New York, Inc. (Commission decision, September 13, 1993)

Read the official release (oshrc.gov)

Plain-English summary

Contractors Welding was cited after OSHA inspected repair work on a metal drawbridge in Buffalo, New York. The disputed items concerned life jackets for employees working over or near water and ring buoys equipped with sufficient line for emergency rescue. In 1991, the Commission vacated the life-jacket item but affirmed the serious ring-buoy violation and assessed a $480 penalty. The Second Circuit later issued a mandate remanding the case. In this 1993 order, the Commission responded to the court's mandate by vacating its 1991 decision.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.106(a) and 1926.106(c)
• Outcome: The Commission vacated its September 6, 1991 decision after the Second Circuit remanded the case.
• Key point: The bundled 1991 merits ruling no longer states the Commission's operative disposition because the 1993 order vacated it.

Full text (OSHRC public release)

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVI EW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floo r
Washington, DC 20036-3419

FAX:
COM (202) 6064050
Fl-S (202) 606-5050
.

SECRETARY           OF LABOR,                          ..

Complainant,

v. OSHRC Docket No. 88-1847
..

CONTRACTORS WIZLDING OF WESTERN
i
NEW YORK, INC.,
..
..
.
Respondent.
..
.

On July 16, 1993, the United States Court of Appeals for the Second Circuit issued its mandate remanding this case to the Commission. Pursuant to the court’s order, the .
Commission vacates its decision in this case issued on September 6, 1991.

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Dated: September 13, 1993
Commissioner
 NOTICE OF ORDER

The attached Order by the Occupational Safety and Health Revit3~ Cornmi~wu~ was issued and served on the following on September 13, 1993.

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, USDOL
200 Constitution Ave., N.W. Room S4004
Washington, D.C. 20210

Patricia Rodenhausen, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
201 Varick St., Room 707
New York, NY 10014

Wayne R. Gradl, Esquire
Jaeckle, Fleischmann & Mugel
Norstar Building
Twelve Fountain Plaza
Buffalo, New York 14202-2292

Richard DeBenedetto
Administrative Law Judge
Occupational
. Safety and Health
Review Commission
Room 420
McCormack Post Office and Courthouse
Boston, MA 02109-4501

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretarv J
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 1825 K STREETN.W.
4TH FLOOR
WASHINGTON D.C. 20006-I 246

FAX.
COM (202) rj3c- 49.08
Frs 634-4008

.
.
SECRETARY OF LABOR,
..
..
Complainant,
..
.. .
.
V. .
Docket No. 884847

CONTRACTORS WELDING OF WESTERN
;
NEW YORK, INC.,
..
.
.
Respondent.
..
l

The attached decision and order by the Occupational Safety and Health Review Commission was issued on SeDtember 6.1991. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISHES TO OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE OF THIS DECISION. See Section 11 of . the Occupational Safety and Health Act of 1970, 29 U.S.C. Q 660.

FOR THE COMMISSION
.

September 6, 1991
Date
Executive Secretary lhcket No. 88-1847

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Patricia Rodenhausen, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
201 Varick St., Room 707
New York, NY 10014

Wayne R. Gradl, Esquire
Jaeckle, Fleischmann & Mugel
Norstar Building
Twelve Fountain Plaza
Buffalo, New York 142022292

Richard DeBenedetto
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 420
McCormack Post Office and Courthouse
Boston, MA 02109-4501
 c

UNITED STATES Of AMERICA
I
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
,I
1825 K STREET N.W.
4TH FLOOR
WASHINGTON D.C. 20006-l 246

a
FAX.
l
COM (202) 634-4008
R-S 634-4008

SECRETARY OF LABOR,

Complainant,

OSHRC Docket No 0 88-1847 l
0

CONTRACTORS WELDING OF WESTERN
0
l

NEW YORK, INC.,
l
0

0
0

Respondent.
l
l

DECISION

Before: FOULKE, Chairman; WISEMAN, Commissionery

BY THE COMMISSION:

Contractors Welding of Western New York, Inc., was performing
repairs on the Ferry Street Bridge, a metal drawbridge in Buffalo,

New York, when a compliance
. officer (VOv*) of the Occupational

Safety and Health Administration
(**OSHA") inspected the worksite.

When the CO arrived, two welders employed by Contractors Welding
'
were standing on an abutment working on the understructure of the
drawbridge, Based on the facts that the water was 15 to 20 feet
deep and the employees, who were wearing work boots and heavy
clothing, were standing within two feet of the edge of the
abutment, the CO believed that, if a welder had fallen in, he could .
*
-1 Commissioner Montoya did not participate in the deliberations on this case or in the issuance of this decision.
 2

have drowned. Subsequently, OSHA issued a citation alleging that

Contractors Welding had committed serious violations of a number
of

OSHA safety standards, including the standards at 29 C.F.R.

5 1926.106(a) and 5 1926.106(c).

The company contested the citation, and a hearing was held

before an administrative law judge of the Review Commission. The judge found that Contractors Welding had violated the two above-

cited standards. His decision on those two items of the citation

has been directed for review pursuant to section 12(j) of the

Occupational Safety & Health Act of 1970 ("the Act"), 29 U.S.C.

§ 661(j). Based on our review of the record as a whole, we affirm

the judge's disposition of the item alleging a violation of 29

C.F.R. Q 1926.106(c), and we reverse his finding of a violation of

section 1926.106(a) and vacate that item.

I l

Section 1926.106(a) provides that: VgEmployees working over or

near water, where the danger of drowning exists, shall be Drovided

with U.S. Coast Guard-approved life jacket[s] or buoyant work

vests,~V (emphasis added), The Secretary does not dispute that

Contractors Welding had life vests available at the worksite.

However, the welders were not wearing them at the time of the

inspection, because, according to their testimony, they believed

that the vests could trap small particles of molten metal, causing

burns on their bodies.
In addition, they believed that the vests
 3

themselves could catch fire, which could cause serious burnsJ

The question before us is whether the company's failure to rewire

the welders to wear life vests constituted a violation of the

standard.
This is not a case of first impression.
The first time the

Commission confronted this issue, it held 2-1, over a strong

dissent, that there was a violation because the employees were not

wearing the vests. G.A. & F.C. Wagman, 2 BNA OSHC 1297, 1974-75

CCH OSHD 9 18,882 (No. 1284, 1974).
The majority concluded that

section 1926.106(a) must be readtogetherwith section 1926.106(b),

which provides that, "Prior to and after each use, the buoyant work

vests or life preservers shall be inspected for defects which would

alter their strength or buoyancy.
Defective units shall not be

used/ The majority reasoned:

[W]e note that if part (a) of the standard were interpreted to require only the provision of life jackets, the effect of part (b)% requirement that life jackets be inspected before and after each use, would become insignificant. Furthermore, part (a) is qualified in its application to situations "where the danger of drowning exists.*' To give sense to the qualification, a use requirement is necessarily implicit in the standard.

2 BNA OSHC at 1298, 1974-75 CCH OSHD at pp. 22,702.03.

    Three   years   later,   a two-member       Commission      issued Harbert

Construction CorD.I 5 BNA OSHC 2076, 1977-78 CCH OSHD q 22,316 (No.

11 There was conflicting testimony as to whether the two welders were tied off with safety belts and lanyards. The administrative law judge credited the testimony of the CO that he did not see the employees wearing belts. On review, Contractors Welding has challenged the judge's finding. In view of our disposition of this item, however, we need not address that question. 13578, 1977). A new comdsSiOner, who had not participated in

Wagman, expressed the opinion that the holding in Wag-man was

incorrect. However, because there were only two commissioners and

they disagreed in their views concerning Harbert, there could be no

majority opinion. The decision in Harbert reflects that the new

commissioner therefore voted to find a violation solely on the

basis that Waaman was controlling Commission precedent.

More recently, in considering a different OSHA standard, the

Commission again held that the word *provideI contained an implicit

requirement that the safety equipment be used. Borton. Inc., 10 BNA

OSHC 1462, 1982 CCH OSHD 1 25,983 (No. 77-2115, 1982). That decision was appealed, and the court of appeals reversed the

Commission's decision. Borton, Inc. v. OSHRC, 734 F.2d 508 (10th

Cir. 1984). The court cited its earlier decision in Userv v.

Kennecott CoDl=,erCOD., 577 F.2d 1113 (10th Cir. 1977), stating,
In Kennecott we rejected the argument that [the cited standard] requires employers to ensure that its employees use access ladders.
We held that the plain meaning of the phrase "shall be provided' is that an employer must furnish or make available an access ladder and that the regulation could not be read as directing employers to require use of an access ladder. ... In Kennecott we declared . that the term Vprovide@Vis not ambiguous. 577 F.2d at 1119. Thus, there is no need to look beyond the face of [the standard] to discover the meaning of **provide."

734 F.2d at 510. Following the court% decision in Barton, the

Commission reconsidered whether lprovidelVmeans %se' in Pratt &

Whitney Aircraft Group, 12 BNA OSHC 1770, 1986-87 CCH OSHD q 27,564

(NO. 80-5830, 1986), aff'd, 805 F.2d 391 (2d Cir. 1986) I and

adopted the Tenth Circuit's reasoning in Borton.
 5

In Pratt 6r Whitney, the Commission noted that it had

previously considered a number of cases in which the Secretary had

argued that providemeans '*require the use of," and that it had

read that term to mean %upplyV* unless related standards contained

an explicit use requirement. The Commission compared the standard

under which Pratt & Whitney had been cited with other standards in

the same section and found that, when the drafters of the standards

had wanted to impose a requirement for the employer to do more than

merely furnish protective equipment, they had used terms which

clearly indicated that intent.
In addition, in Pratt brWhitney,

the Commission examined the definitions of the term providein

dictionaries. In its decision, the Commission held that the word

provideis not ambiguous and that it is commonly understood to

mean furnishor makeavailable. The Commission concluded that

there was no reason to believe that the term had been used in any

sense other than its dictionary meaning.

The Commission% decision in Pratt 61Whitnev was appealed to

the Court of Appeals for the Second Circuit and was affirmed in an

unpublished decision. We now reaffirm our determination in Pratt

& Whitney that the word provideis not ambiguous and that it

means make available.

The Secretary of Labor asserts that **[iIt is well-established

that courts owe deference to an agency's interpretation of its own

regulations," citing Udall v. Tallman, 380 U.S. 1 (1965). That

case states that the Supreme Court shows great deference to an

agency's interpretation when it confronts a problem of statutory

construction. 380 U.S. at 16. It is not appropriate to resort to 6

principles of statutory construction, however, when a statute or

standard is not ambiguousoz' Since the word 1Vprovide11is not

ambiguous, the rules governing statutory construction and deference

to an agency's interpretation do not apply here and it is not

necessary to go beyond the face of 29 C.F.R. 5 1926.106(a) to

determine its meaning. The majority in Waaman therefore erred in

construing section 1926.106(a) together with section 1926.106(b),

and we now overrule that decision.

Even if section 1926.106 (a) were ambiguous, the Secretary's

interpretation would be entitled to deference only if it were a

reasonable one. Martin v. OSHFK (CF&I Steel Corn.), 111 s.ct.

1171, 1180 (1991). Here, the Secretary's interpretation of the

word provide stretches the word far beyond its comntonly-

understood meaning. The interpretation thus runs counter to the

principle that the Commission should not strain the plain and

natural meaning of the words of a standard to alleviate a hazard.

General Electric Co. v. OSHRC, 583 F. 2d 61, 67 (2d. Cir. 1978).

Therefore, we conclude that the Secretary's interpretation simply

is not a reasonable interpretation of the standard. Accordingly,

that interpretation is not entitled to deference. Indeed, the -

courts of appeals that have considered the argument that provide

z/ When the terms of a statute are unambiguous, inquiry goes no further. Howe v. Smith, 452 U.S. 473, 483 (1981); Caminetti v. United States, 242 U.S. 470, 485 (1917) (where the language is plain and admits of no more than one meaning, the duty of interpretation does not arise and rules which are to aid doubtful meanings need no discussion); McCord v. Bailey, 636 F.2d 606, 6140 15 (D.C. Cir. 1980); cf. TVA v. Hill, 437 U.S. 153, 184 n.29 (1978) (when statute is unziguous on its face, we do not look to legislative history for its meaning) (citing Ex Darte Collett, 337 U.S. 55, 61 (1949)). ' 7

includes a requirement to use in Kennecott, Borton, and Pratt &

Whitney all rejected it.

The Secretary further argues that the language of a standard

is not to be construed in a way that leads to implausible results.

We believe that to hold that the word provide means "require the

use of** would be an implausible result. Since every court of

appeals that has considered the question has held that provide

does not mean require the use of, and we know of no dictionary,

including legal dictionaries, that gives--or even suggests--that

meaning, it would be improper for us to expand the standard beyond

its plain meaning.

The Secretary also argues that, if the standard is not read so

that it implicitly requires the life vests to be worn, the standard

is ineffective in achieving the remedial purposes of the Act.
We

share the Secretary's concern that such a holding may afford

employees less protection than would be the case if we adopted the

Secretary's position, because employees who are given the option of

whether to use life vests or other types of safety equipment may

elect not to and may therefore be exposed to drowning and other

hazards. However, **Ifa violation of a regulation subjects p.rivate

parties to criminal or civil sanctions, a regulation cannot be

construed to mean what an agency intended but did not adequately

express,** Diamond Roofina Co. v. OSHRC, 528 F. 2d 645, 649 (5th

Cir. 1973).

Although we recognize that the Secretary has formulated her

interpretation of section 1926.106(a) for the laudable purpose of 8

protecting employees, a standard must clearly state what an

employer is required to do in order to comply.

The purpose of OSHA standards is to improve 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 to alleviate an unlikely and uncontemplated hazard. The responsibility to promulgate clear and unambiguous standards is upon the Secretary. The test is not what he might possibly have intended, but what he said. If the language is faulty, the Secretary has the means and the obligation to amend.

General Electric Co. v. OSHRC, 583 F.2d at 67 (quoting Bethlehem

Steel Corx,. v. OSHRC, 573 F.2d 157, 161 (3d Cir. 1978)). If the Secretary wishes for standards using the word providealso to

require the use of the equipment provided, the proper course would

therefore be for her to amend those standards to make that require-

ment explicit. We urge the Secretary to determine which of the

standards requiring an employer to provide protective equipment

should also require that the equipment be used and then to fulfill

her obligation to amend those standards to specify that requirement.

Contractors Welding was also cited for a violation of 29

C.F.R. 5 1926.106(c), which provides:

(c) Ring buoys with at least 90 feet of line shall be provided and readily available for emergency rescue operations. Distance between ring buoys shall not exceed 200 feet.
 9

   The CO testified         that, during   his    inspection,        Contractors

Welding's foreman had told him that there was not a ring buoy at

the worksite. At the hearing, the company presented testimony that

there were two: one, belonging to the city, was located in the

pilot house of the bridge: another, owned by Contractors Welding

was located on a barge moored about 40 feet from where the welders

were working.

The record clearly shows that the ring buoy on the barge had

only about 50 feet of line, not the 90 feet required by the standard. It therefore did not comply with the standard's require-

ment that there be at least 90 feet of line. 1

There is a photograph in evidence that shows the city's ring

buoy in the pilot house. From that exhibit, it appears that the city's ring buoy did not have 90 feet of line attached to it,

either.2

Contractors Welding points out that the ring buoy in the pilot

house was part of the standard equipment on the bridge and argues,

**[p]resumably, a ring buoy permanently maintained as safety equip-

ment at a government bridge over a navigable waterway satisfies

pertinent federal requirements.! We cannot agree with that presumption. The federal requirements* cited here are safety

standards governing the construction industry. They do not apply

21 In fact, it appears that the cord in the photograph is not
**
line** at all, but an electrical cord.
.
 10

to state and local government employees. See 29 U.S.C.

5 652(5)-(6). while the ring buoy may comply with whatever

standards would apply to the operation of a drawbridge over

navigable waters, we are unwilling to presume that the city, which

operated the bridge, complied with OSHA standards that do not apply

to its activities.

Even if we view all the evidence in the light most favorable

to the company, we cannot say that either ring buoy had 90 feet of

line attached. We therefore find that the Secretary hasproved by

a preponderance of the evidence that Contractors Welding was not in

compliance with 29 C.F.R. 5 1926.106(c),

Section 17(k) of the Act provides that a violation is serious

if, as a result of that violation, there is a substantial

probability that death or serious physical harm could occur.
Here,

the record establishes
that an employee who fell into the water

could drown, so the failure to have a ring buoy with adequate line

could result in death.
The violation was therefore serious.

   Section     17(j)     of    the    Act        provides   that       we       shall    assess

appropriate penalties for violations, giving due consideration to

the size of the employer, the gravity of the violation, the good

faith of the employer, and the employer's history of previous

violations. 29 U.S.C. Q 666(j). The record shows that Contractors

Welding had 45 or 46 employees and that the company had.received

several citations in the past.
The Secretary proposed a penalty of

$480 for this item.
Having considered the evidence in the record
 11

on the factors set forth in the statute, we find that penalty to be

appropriate.

III.

For the reasons stated above, we reverse the decision of the

administrative law judge and vacate item 1 of the citation alleging

a serious violation of 29 C.F.R. 5 1926.106(a), and the penalty

proposed for that item. We affirm the judge's disposition of item

3 of the citation finding that Contractors Welding committed a

serious violation of 29 C.F.R. 5 1926.106(c). We assess a penalty

of $480 for that item.

Edwin G.yFoulke, Jr.
Chairman

Dated: September 6, 1991
Commissioner
 UNITED STATES Of AMERICA

OCCUPATIONAL SAFtElY AND HEALTH REVIEW COMMISSION 1825 K STREET, NW.
4TH FLOOR
WASHINGTON, DC. 2ooo6-1246
February 28, 1990

IN REFERENCE TO SECRETARY OF LABOR v,
OSHRC
Contractors Weldinq of Wny, Inc l
DOCKET NO. 88-1847

NOTICE IS GIVENTO THOSE LISTED BELOW:
NOTICEOF DOCKETING
Daniel 3. Mick, Esq.
Counsel for Regional Trial Litigation
Notice is given that the above case was
Office of the Solicitor, USDOL
docketed with the Commission on
200 Constitution Ave., N.W., Room $4004 February 2$. 1990 The decision
Washington, D.C. 202lD
of the Judge will be&e a final order
of the Commission on unless a Comnission of the decision on or before that date.
Patricia M. Rodenhausen, Regional
Solicitor
Petitions for discretionary review should be
U. S. Department of Labor
received on or before
Office of the Solicitor
in order to permit su
201 Varick Street, Room 707
review. See Commission Rule 91, 29 C.F.R.
New York, New York 10014
sec. 2200.91."

All pleadings or other documents that may be filed shall be addressed as follows:
Wayne R. Grad1 9 Esquire
.
Executive Secretary
Jaeckle, Fleischamann & Mugel
Occupational Safety and Health
Northstar Building
Review Commission
Twelve Fountain Plaza
1825 K St., N.W., Room 401
Buffalo, N. Y. 14202
Washington, D.C. 20006

Ray H. Darling, Jr.
Richard DeBenedetto, Judge
Executive Secretary
Occupational Safety & Health
Review Commission
*A copy of any petition for discretionary review
John W. McCormack Post Office
must be served on the Counsel for Regional
and Courthouse Room 420
Trial Litigation, Office of the Solicitor,
Boston, MA 02109
USDOL, 200 Constitution Ave., N.W., Room S4004,
Washington, D.C. 20210. If a Direction for Review is filed the Counsel-for Regional Trial Litigation will represent the Department of Labor.
 UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

• • • • a - - - -

SECRETARY OF LABOR,
0
0

Complainant
0
0
0
0 OSHRC Docket No. 88-1847 .
V.

CONTRACTORS WELDING OF WNY, INC.@
:
Respondent
0
0

Appearances:

Alan L. Kammerman, Esq., for Complainant Wayne R. Gradl, Esq., for Respondent

DECISION AND ORDER

Contractors Welding of WNY, Inc.
(Contractors), is charged

with serious1 violations of four construction safety standards

which read as follows:

29 C.F.R. 5 1926.106 -- WORKING OVER OR NEAR WATER

(a) Employees working over or near water, where the danger of drowning exists, shall be provided with U.S. Coast Guard-approved life jacket or buoyant work vests.

(c) Ring buoys with at least 90 feet of line shall be provided and readily available for emergency rescue operations. Distance between ring buoys shall not exceed 200 feet.

1 A serious violation is deemed to exist *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 violationog 29 U.S.C. Q, 666(k). I
 2

(d) At least one lifesaving skiff shall be immediately available at locations where employees are working over or adjacent to water.

29 C.F.R. Q 1926.500:

(d) Guarding of open-sided floors, platforms, and runways

(1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard
railing, or the
equivalent, as specified in paragraph (f) w of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder . . . .

    Contractors      is a New York construction company                 specializing

in steel erection and welding.
The I-item citation arises out of
! an inspection conducted by an OSHA compliance officer on July 13,

1988, at the Ferry Street Bridge in Buffalo, New York, where

Contractors was engaged in repairing the steel bridge.

At the commencement of his inspection, the compliance

officer conferred with Contractors* project foreman, Joseph

Calleri. During their conversation, the compliance officer

observed two employees positioned on a concrete bridge abutment

about 3 or 4 feet below the compliance officer. Although his

view was partially obstructed, he was able to see both of the

employees Vgfrom the shoulders to the waisF (Tr. 50, 78). They

were working on the understructure of the bridge while standing

within 2 feet of the open side of the abutment, some 8 feet above 3

the water's edge (Tr. 17, 21-22, 25). The water was some 15 to

20 feet deep, and, according to the compliance officer's

testimony, there was no fall protection being used (Tr. 22, 39,

42-44).

The compliance officer also testified that the two employees

who were working on the understructure of the bridge were not

wearing a life jacket
(Tr. 21, 24); that he did not see any ring

buoy- or lifesaving skiff available at the site; and that when he

questioned ContractorsV. project foreman concerning the ring buoy,

the foreman stated that he did not have one at the site (Tr. 31).

   The      testimony           of     Contractors*        witness,          Charles       Lewis,

directly contradicts that of the compliance officer regarding

safety belts.
Lewis, an iron worker who "work[s) out of a union

hiring hall" (Tr. 85) I was employed by Contractors at the site in

question. He was one of the two men observed by the compliance

officer working on the abutment near the water's edge. Lewis

testified that both he and his co-worker were using safety belts

attached to lifelines secured to the overhead structure of the

bridge (Tr. 86, 90-91).

   Lewis        testified        at     one    point      as    to    why    the    compliance

officer did not observe them wearing safety belts when they

approached the compliance officer after briefly leaving their

work station as the bridge was raised for the passage of ships

(Tr. 91-92):

Q0 Okay. Now, Mr. Newton testified there came a time where you and the gentleman you were working with -- Well, 'before we go to that, do you know the name of the gentleman you 4
were working with?
A0 Tommy, Tommy Gombos.

Q l Okay.
A0 I don't know how you spell it.

Q0 And was he wearing a safety belt?

A l We both were. I insisted on it.
It's just common sense.

Q0 And he was tied off to the bridge as well?

A0 Uh-huh.

Q0 Was he also working welding that day?

Aa Yes l Well, burning, welding, air arking Csicl I chipping, whatever was required of the time, but we're both welders.

Q0 Thank you. Now, Mr. Newton testified there came a time where you and Mr. Gombos came up top because the bridge was being raised.

A0 Yeah.

Q0 Okay.

A0 Up and down all day.

Q l And what did you do with
respect to the
safety belt and the line?

A0 I don't know, I hang mine on the bridge. I had a clip like there. I take it off, hang it on there to go up with the bridge. Tommy had a pail, he'd thrown his in the pail.
You're not gonna wear the thing any more than you have to, especially when you're climbing up and down.

Q0 And you had tools and things --
A0 I got all my stuff in it, yeah.

Q l What about Mr. Gombos?
 A0 Same thing. In fact, he was even carrying
spud wrenches, too.

Q0 All right. So, it's a practice for welders then to wear safety belts that have --

A0 Absolutely.

         Q0       -0    a compartment for your tools?              Okay.

A0 Can't work without it.

    The compliance          officer conceded that because               of the limited

height of the bridge at the point of the abutment, guarding the

open side of the abutment with a standard railing, as required by

the cited 500(d)(l) standard, would have been infeasible (Tr. 42-

43) 0 The compliance officer also acknowledged that if the

employees had been secured by safety belts then neither life

jackets nor ring buoys would have been required (Tr. 44).

    Contractors         contends     that    under     the   106(a)      standard     the

employer% duty is limited to providinglife jackets and does

not call for the employer to require that the device be used.

This argument flies in the teeth of a long line of Commission

cases which hold that a standard that requires an employer to

provide a safety device implicitly requires that the device be

used. Barton. IY?c., 10 BNA OSHC 1462, 1465, 1982 CCH OSHD 1

25,983 (No. 77-2115, 1982), and cases cited therein.

It is also argued that wearing a life jacket while welding

poses a fire hazard to the welder. Michael Fitzpatrick, a

representative of the Iron Workers Union, was called by

Contractors and testified on direct examination that there were

cases where welders using life jackets while welding suffered 6

severe burns (Tr. 7). However, on cross-examination the witness

could recall only one instance '*in the early 70%" when a

welder's life jacket "caught on fire**; and he had no knowledge as to whether life jackets have since been made of nonflammable or

flame-resistant material
(Tr. 11).

    Contractors        also        introduced          evidence       regarding       an

t8experiment88
performed by Contractors' vice president, Michael
Gast, which consisted of applying a B1Cbutane lighter to a

U.S. Coast Guard-approved life jacket (Tr. 110-112, 119, Exhs.

R-4, R-5). Gast described the experiment as follows (Tr. 112):

A0 I held it up like so and took a lighter and went like that and it immediately caught on fire and the flame grew and we had problems extinguishing it by stepping on it, what have you 0 We actually had to submerge it in water to put it out,i!

This evidence is unpersuasive for two reasons: Test results

have little or no probative value unless the opposing party had

the opportunity to participate in the test. Fortunato v. Ford

Motor Co,, 464 F.2d 962, 966 (2d Cir. 1972), The Secretary was

not given such an opportunity, and no independent verification

was offered. Additionally, Contractors asks us to assume that a- flame from a butane lighter would have the same effect as sparks or molten globules of welding metal. The evidence does not

permit such an assumption.
Even if the test results were -acceptedas strong evidence in

2 This testimony was contradicted by the compliance officer who testified that Coast Guard-approved life jackets are %oncombustible which causes the jackets to me1t**but not burn
(Tr. 62).
.
 7

Contractors' favor, in order to establish the greater hazard

defense, it must be demonstrated that (1) the hazards of

compliance are greater than the hazards of noncompliance, (2)

alternative means of protecting employees are unavailable, and

(3) a variance is unavailable or inappropriate. Modern DroD

Forae Co. v. Secretarv of Labor, 683 F.2d 1105, 1116 (7th Cir.

1982) l

    Contractors             argues      that   its employees             were    protected        from

falling into the water by using safety belts which obviated the

need for using life jackets. The only witness presented by

Contractors who was present at the jobsite when the compliance

officer conducted his inspection was Charles Lewis whose

testimony, as previously noted, is directly at odds with the

compliance officer's version of the events regarding the use of

safety belts. One obvious point which apparently everybody

recognizes is that the use of safety belts would have rendered

the use of a guardrail as well as life jackets and ring buoys

unnecessary (Tr. 42-44).
This being the case, one is immediately

struck by the glaring incongruity in Lewis's testimony. On the

one hand he claimed that both he and his co-worker were using

safety belts at the time in question, yet, although he

participated
in the closing conference3 with Contractors* foreman

and the compliance officer, Lewis was quite certain that the two

3 A Qlosing conferenceV8takes place at the conclusion of an OSHA inspection at which time the compliance officer confers with the employer or his representative and informally advises him of any apparent violations disclosed by the inspection. 29 C.F.R. 5 1903.7(e). a main topics of discussion were life jackets and a wardrai.1, and
he had no recollection of a discussion regarding safety belts
(Tr. 59-60, 101-102, 105-106).
.
Lewis's testimony was not without other points of
incredibility. Focusing on a part of his previously quoted testimony, it is to be noted that when he was asked on direct
examination to explain what he did with the safety belt and lifeline when he and his co-worker had to temporarily leave their
work station while the bridge was raised, he seemed uncertain at
first:

A0 I don't know, I hang mine on the bridge. I had a clip like there. I take it off, hang it on there to go up with the bridge. Tommy had a pail, he'd throw his in the pail.
You're not gonna wear the thing any more than you have to, especially when you*re climbing up and down.

Q0 And you had tools axid things --

A0 1 got all my stuff in it, yeah.

Q0 What about Mr. Gombos?

A0 Same thing, in fact,
he was even carrying
spud

• wrenches, too.

    Lewis's        statement is not free from improbability.                  Given the
  

  relatively substantial size and weight of safety belts, serious
  doubt is raised that an ordinary **pail" would have the capacity to hold a safety belt and the tools of a welder. Moreover, it is

  incredible that employees would risk losing their equipment by
  hanging them on a bridge that was about to be raised over a 150
  or 20-foot-deep span of water. The compliance officer had ample
  opportunity to observe the two employees **fromthe shoulders to 9

the waist**while they were engaged in repairing the bridge. His

testimony as to the absence of a life belt is credible.

With respect to the 106(c) standard requiring ring buoys, the compliance officer testified that he did not observe any ring

buoys at the site, and that when he questioned Contractors1 foreman as to whether a ring buoy was available at the site, the

compliance officer was informed that there was none (Tr. 31).
Contractors argues that the evidence establishes there were two

ring buoys at the site; one was located in the pilot house some 150 feet away from where the employees were working, and the other was located on the barge that was moored 40 feet away, as

supported by the testimony of Charles Lewis and Michael Gast, the

latter having visited the jobsite daily as Contractors' field

manager (Tr. 93-94, 108-110). The compliance officer

acknowledgedthat he did not inspect either the pilot house or

the barge (Tr. 67). The issue here is whether Contractors has

presented sufficient evidence to overcome the admission made to

the compliance officer by Contractors* foreman.

Contractors introduced a photograph
(Exh. R-1) depicting the

ring buoy located in the pilot house. When Gast was cross- examined as to the length of the line shown in the.photograph he

answered that he was not sure how long the line is (Tr. 114).

Although the photograph shows the line hanging in several loops, the amount of the line is such that it may reasonably be inferred it falls far short of the 90 feet required by the standard.
When

Gast was questioned as to the line located on the barge, he said 10

it was approximately 50 feet (Tr. 116).
Even if this testimony
were to be credited, it hardly demonstrates full compliance. But the record raises serious doubts about the truthfulness of the statements themselves.
Contractors' answer to the complaint specifically refers to only one ring buoy, located in the pilot house:

Defense to Part VI of the Complaint
A co-owned life ring was available from start of project through completion. It was attached to a wall in the main pilot house located in the center of the bridge of which it is less than 90' in any direction to end of water and work areas. See attached employee's statement.

Not only is there no mention of a second ring buoy located on the

barge, it is significant to note that the pilot house ring is described as co-owned. When Gast, Contractors* vice president,

was cross-examined regarding the pilot house ring, the following

colloquy occurred (Tr. 115-116):

Q0 Well, do you know how many feet of line the company had attached to this ring buoy?

A0 That's not our ring buoy. That's the city owned ring buoy. I can tell you how much rope is on our buoy.

Q l Where was your buoy?

A0 On the barge about 40 feet away from the work area.

One would think it natural under the circumstance for
Contractors to have called its job foreman to appear as a witness in its behalf since he apparently was the person who was in charge at the time of the OSHA inspection and had discussions with the compliance officer regarding the various items in 11

dispute. The fact that Contractors did not produce the foreman

gives rise to the presumption that his testimony, if produced,

would be unfavorable.4 U.S. v. Mahone, 537 F.2d 922 (7th Cir,

1976). with respect to the 106(d) standard calling for a lifesaving

skiff, Contractors contends that the barge shown in the

photograph marked as Exh. C-l, which was used as a work platform by both Contractors and a painting subcontractor (Tr. 68, 94), satisfied the requirements of the standard. There is no ground

in logic or law for accepting this view. In its answer,
Contractors described the boat as a 120foot barge **hooked to

cables under the' [bridge] structure.885 The testimony establishes

that it was a flat-bottomed barge; the photographic evidence

demonstrates that it was apparently wider than its 12-foot

length. When Gast was cross-examined as to the barge’s mobility

should an emergency situation arise, the following exchange took

place (Tr. 117):

Q0 So that the way that the barge moved was via pulling on a line?

A0 You could do it either way. You could pull . yourself along the bridge, the cables, use a line, numerous ways.

Q0 Well, I'm not sure if I understand what you mean by the term **use a line," Can you explain how that moves the barge by using a line?

4 A written statement by Lewis's co-worker, Thomas Gombos, which is attached to Contractors answer is excluded as hearsay.
5 Michael Gast, Contractors vice president, testified that the barge was secured to the bridge by rope (Tr. 110).
 12

A l Sure. You could throw it to somebody somewhere else , you could secure it somewhere else and pull it or you could let if float to that position.

Q 0 Okay. Then if I understand the situation, the barge didn't have like anything like a motor --
A0
No, it was not motored.

Q0
-- or some other way of maneuvering it other
than with the lines that youWe been explaining, right?

        A0            Or  you    could             pull     yourself        along     the

structure.

A "skiff*@ is defined as a small light sailing ship, a light

rowboat, or a small fast powerboat. Webster's Third New

International Dictionarv, 1971 edition. Given the intended use under the standard, a flat-bottomed barge propelled by a person
or persons pulling on a rope manifestly does not qualify as a

skiff.
All four items of the citation relate to safeguarding

against the danger of drowning.
As previously noted, the use of
life jackets and ring buoys would have been redundant if the

employees had been secured by safety belts (Tr. 44). Inasmuch as.

the use of a railing along the open-sided abutment (the fourth

item of the citation) has been acknowledged as infeasible, and the use of safety belts has also been acknowledged as an alternative means of protection, which would .not be required if
the Secretary's
charges relating to the life jackets and ring
buoys are to be sustained, therefore, in order to avoid a duplication of charges, the fourth item of the citation shall be
.
 13

vacated.
The Secretary proposes to assess
$480 for each of the

remaining three items which relate to safeguarding against the
potential danger of drowning.
If an employee had fallen into the

water without any of the safety devices in place, there was a substantial probability that serious physical harm or death could

have resulted from the existing working conditions. The

Secretary's penalty recommendations are in accord with the criteria set out in 29,U.S.C. 8 666(j)6

FINDINGS OF FACT

10 Two of Contractors* employees worked near the edge of a

concrete bridge abutment, some 8 feet above water that was at

least 15 feet deep.

20 Although there was a danger-of
drowning, the employees

did not wear life jackets or buoyant vests.

30 Life jackets or buoyant vests were not infeasible due to claimed fire hazard.
40 A ring buoy with at least 90 feet of line was not

readily available at Contractors' worksite.

50 A lifesaving skiff was not available where Contractors'

employees were working adjacent to water.

60 Contractors* employees did not have any kind of fall +.

6 Section 17(j), 29 U.S.C. 5 666(j), 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. 14

protection
while working near the edge of the concrete bridge

abutment.
7 l Guarding the open edge of the concrete bridge abutment
by the use of a standard railing was infeasible; however, an alternative means of protecting the employees from falling in the water was available in the form of safety belts which Contractors' employees did not use.

    80        If     Contractorsfi        employees       had     used        safety    belts

neither life jackets nor ring buoys would have been required.
90 The failure to take protective measures while working

over or near water exposed Contractors@ employees to serious

injury or 'death and Contractors should have known of the

violative conditions.

CONCLUSIONS OF LAW

    10        Contractors        seriously       violated       the   standards         at    29

C.F.R. Q§ 1926.106(a), (c), and (d), and a penalty of $480 is

appropriate
for each of the three violations.

    20        The    charge     of violating       the    standard       at    29 C.F.R. 8

1926.500(d)(l)
is not warranted.

ORDER

    It is ordered             that the citation          is affirmed      to the extent

indicated, item 4 of the citation alleging violation of section 15

1926.500(d)(1) is vacated, and a total penalty of $1,440 is

assessed.

. Judge, OSHRC
February 23, 1990
Dated:
Boston, Massachusetts