Contractors Welding of Western New York, Inc.

Plain-English summary

Contractors Welding employees repaired a drawbridge while working near deep water. Approved life vests were available at the site, but the welders were not wearing them. The Commission held that the standard's requirement to "provide" life vests meant to furnish or make them available, not to require their use, and it vacated that item. It affirmed a separate serious item because neither available ring buoy had the required 90 feet of line, assessing $480. The judge's dispositions of the lifesaving-skiff and guardrail items were not before the Commission on review.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.106(a); 29 C.F.R. § 1926.106(c); 29 C.F.R. § 1926.106(d); 29 C.F.R. § 1926.500(d)(1)
• Outcome: The life-vest item was vacated, while the serious ring-buoy item was affirmed with a $480 penalty.
• Key point: A standard requiring an employer to "provide" safety equipment does not require use unless the regulation clearly says so.

Full text (OSHRC public release)

Docket No. 88-1847

OSHRC Docket No. 88-1847

SECRETARY OF LABOR, Complainant, v. CONTRACTOR WELDING OF
WESTERN NEW YORK, INC., Respondent.

DECISION

Before: FOULKE, Chairman; WISEMAN, Commissioner. [[1]]

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 ("CO") 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 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. � 1926.106(a) and � 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"), 239 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. � 1926.106(c), and we reverse his finding of a
violation of section 1926.106 (a) and vacate that item.

I.

Section 1926.106(a) provides that: "Employees working over
or near water, where the danger of drowning exists, shall be provided with U.S. Coast
Guard-approved life jacket[s] or buoyant work vests." (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
themselves could catch fire, which could cause serious burns. [[1/]] The question before
us is whether the company's failure to require 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 12971 1974-75 CCH OSHD � 18,882 (No. 1284, 1974). The majority concluded that
section 1926.106(a) must be read together with 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)'s 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 Corp., 5 BNA OSHC 2076, 1977-78 CCH OSHD � 22,316 (No. 13578, 1977) A new
commissioner, who had not participated in Wagman, expressed the opinion that the holding
in Wagman 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 Wagman was controlling Commission precedent.

More recently, in considering a different OSHA standard, the
Commission again held that the word "provide" contained an implicit requirement
that the safety equipment be used. Borton, Inc., 10 BNA OSHC 1462, 1982 CCH OSHD � 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 Usery v. Kennecott Copper Corp., 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
"provide" is 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's decision in Borton, the
Commission reconsidered whether "provide" means "use" in Pratt Whitney
Aircraft Group, 12 BNA OSHC 1770, 1986-87 CCH OSHD � 27,564 (No. 80-5830, 1986), aff'd,
805 F.2d 391 (2d Cir. 1986) , and adopted the Tenth Circuit's reasoning in Borton.

In Pratt & Whitney, the Commission noted that it had in previously considered a number
of cases in which the Secretary had argued that "provide" means "require
the use of," and that it had read that term to mean "supply" 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 & Whitney , the Commission
examined the definitions of the term "provide" in dictionaries. In its decision,
the Commission held that the word "provide" is not ambiguous and that it is
commonly understood to mean "furnish" or "make available." 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's decision in Pratt & Whitney 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
"provide" is not ambiguous and that it means "make available."

The Secretary of Labor asserts that "[i]t 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
principles of statutory construction, however, when a statute or standard is not
ambiguous. [[2/]] Since the word "provide" is 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. � 1926.106(a) to determine its
meaning. The majority in Wagman 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.
OSHRC (CF&I Steel Corp.), 111 S. Ct. 1171, 1180 (1991). Here, the Secretary's
interpretation of the word "provide" stretches the word far beyond its commonly
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" 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, "If a violation of a regulation subjects private
parties to criminal or civil sanctions, a regulation cannot be construed to mean what an
agency intended but did not adequately express." Diamond Roofing 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 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 Corp. v. OSHRC, 573 F.2d 157, 161 (3d Cir. 1978)). If the Secretary wishes
for standards using the word "provide" also to require the use of the equipment
provided, the proper course would therefore be for her to amend those standards to make
that requirement 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.

II.

Contractors Welding was also cited for a violation of 29 C.F.R.
� 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.

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 snows 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 requirement that there be "at least 90 feet of line."

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.[[3/]]

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 equipment 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 to state and local government
employees. See 29 U.S.C. � 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 has proved by a preponderance of the evidence that
Contractors Welding was not in compliance with 29 C.F.R. � 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. � 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 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. � 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. � 1926.106(c).  We assess a penalty of $480 for that
item.

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

September 6, 1991

OSHRC Docket No. 88-1847

SECRETARY OF LABOR, Complainant v. CONTRACTORS WELDING OF WNY, INC, Respondent

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
serious [[1]] violations of four construction safety standards which read as follows:

29 C.F.R. � 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.

(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. � 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)(i) 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 4-item citation arises out of an inspection conducted by
an OSHA compliance officer on July 13, 1988, at the Ferry Street Bridge in Buffalo, Now
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 "from the shoulders to the waist" (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 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 Contractors' 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), 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):

Q. 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 were working with?

A. Tommy, Tommy Gombos.

Q. Okay.

A. I don't know how you spell it.

Q. And was he wearing a safety belt?

A. We both were. I insisted on it.

It's just common sense.

Q. And he was tied off to the bridge as well?

A. Uh-huh.

Q. Was he also working welding that day?

A. Yes. Well, burning, welding, air arking (sic), chipping, whatever was required of the
time, but we're both welders.

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

A. Yeah. Q. Okay.

A. Up and down all day.

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

A. 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.

Q. And you had tools and things --

A. I got all my stuff in it, yeah.

Q. What about Mr. Gombos?

A. Same thing. In fact, he was even carrying spud wrenches too.

Q. All right. so, it's a practice for welders then to wear safety belts that have

A. Absolutely.

Q. --a compartment for your tools? Okay.

A. 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)(1) standard, would have been
infeasible (Tr. 42-43). 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's duty is limited to "providing" life 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. Berton Inc 10 BNA OSHC 1462,
1465, 1982 CCH OSHD � 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 severe burns (Tr. 7).
However, on cross-examination the witness could recall only one instance "in the
early 70's" 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
"experiment" performed by Contractors' vice president, Michael Gast, which
consisted of applying a "BIC" butane 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):

A. 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. We actually had to submerge it in water to put it out.
[[2]]

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 accepted as strong evidence in
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 Drop Forge Co. v. Secretary of Labor, 683
F.2d 1105, 1116 (7th Cir. 1982).

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 conference [[3]] with Contractors' foreman and the
compliance officer, Lewis was quite certain that the two main topics of discussion were
life jackets and a guardrail, 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:

A. 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.

Q. And you had tools and things --

A. I got all my stuff in it, yeah.

Q. What about Mr. Gombos?

A. 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 15 or 20-foot-deep span of water. The compliance
officer had ample opportunity to observe the two employees "from the shoulders to 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 Contractors' 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 acknowledged that
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 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):

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

A. 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. Where was your buoy?

A. 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 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-1,
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 12-foot barge
"hooked to cables under the (bridge) structure." [[5]] 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):

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

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

Q. 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?

A. 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. Okay. Then if I understand the situation, the barge didn't have like anything like a
motor --

A. No, it was not motored.

Q. --or some other way of maneuvering it other than with the lines that you've been
explaining, right?

A. 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 Dictionary,
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 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. � 666(j). [[6]]

FINDINGS OF FACT

1. 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.

2. Although there was a danger of drowning, the employees did
   not wear life jackets or buoyant vests.

3. Life jackets or buoyant vests were not infeasible due to
   claimed fire hazard.

4. A ring buoy with at least 90 feet of line was not readily
   available at Contractors' worksite.

5. A lifesaving skiff was not available where Contractors'
   employees were working adjacent to water.

6. Contractors' employees did not have any kind of fall
   protection while working near the edge of the concrete bridge abutment.

7. 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.

8. If Contractors' employees had used safety belts neither life
   jackets nor ring buoys would have been required.

9. 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

1. Contractors seriously violated the standards at 29 C.F.A.
   �� 1926.106(a), (c), and (d), and a penalty of $480 is appropriate for each of the three
   violations.

2. The charge of violating the standard at 29 C.F.R. �
   1926.500(d)(1) 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 1926.500(d)(1) is vacated,
and a total penalty of $1,440 is assessed.

Dated: Boston, Massachusetts

RICHARD DeBENEDETTO

Judge, OSHRC

FOOTNOTES:

[[1]] Commissioner Montoya did not participate in the deliberations on this case or in the
issuance of this decision.

[[1/]]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.

[[2/]] 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, 614-15 (D.C. Cir. 1980); cf. TVA v.
Hill, 437 U.S. 153, 184 n.29 (1978) (when statute is unambiguous on its face, we do not
look to legislative history for its meaning) (citing Ex parte Collett, 337 U.S. 55, 61
(1949)).

[[3/]] In fact, it appears that the cord in the photograph is
not "'Line" at all, but an electrical cord.

[[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 violation." 29 U.S.C. � 666(k).

[[2]] This testimony was contradicted by the compliance officer
who testified that Coast Guard-approved life jackets are "noncombustible" which
causes the jackets to "melt" but not burn (Tr. 62).

[[3]] A "closing conference" takes 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. � 1903.7(e).

[[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).

[[6]] Section 17(j), 29 U.S.C. � 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.