Contractors Welding of Western New York, Inc.
Earlier Commission decision vacated after court remand
Apply this precedent to your situation
This is citable Commission precedent from 1993, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
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
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