Falcon Steel Company, Inc.
High-rise fall violations affirmed for $16,000
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
Falcon Steel erected structural steel for a 60-story Philadelphia high-rise and was cited for several fall hazards. The Commission affirmed a willful violation for using a crane-suspended man basket to carry employees to upper floors when elevators and ladders provided a conventional alternative. It also affirmed a willful perimeter-cable violation on completed lower floors, while accepting that cables could be infeasible on active erection floors where they would interfere with steel handling. The Commission further found serious safety-belt violations where employees worked stationary at open edges or astride beams without tying off. Falcon's employee-misconduct defense failed because multiple workers disregarded the rule, supervisors knew tie-off violations recurred, and enforcement was not shown to be effective. The Commission assessed $10,000 for the man basket, $5,000 for perimeter cables, and a consolidated $1,000 for the safety-belt items.
Decision snapshot
- Cited standard(s): 29 C.F.R. §§ 1926.550(g)(2), 1926.750(b)(1)(iii), and 1926.105(a)
- Outcome: Willful man-basket and perimeter-cable violations and serious safety-belt violations were affirmed, with $16,000 in total penalties.
- Key point: High-rise steel employers must use conventional access and fall protection when feasible, and recurring failures to tie off cannot be excused as isolated misconduct without effective enforcement.
Full text (OSHRC public release)
UNITED STATES OF ALjEgiCA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET WL
47-H FLOOR
WASHINGTON DC 20006 ‘246
FAX:
.. COM (202) 634-4008
FTS 634 - 4008
SECRETARY OF LABOR, ..
.
Complainant, ..
..
v. : OSHRC Docket Nos. 894883
.. & 89-3444
FALCON STEEL CO., INC., ..
. Respondent. ..
.
DECISION
BEFORE: FOULISE, Chairman; WISEMAN and MONTOYA, Commissiofiers.
BY THE COMMISSION:
Falcon Steel Company, Inc. (“Falcon”), a steel erection company, subcontracted to
perform the steel erection work on a 60-story high-rise building known as “Ll&erty II” in
Philadelphia, Pennsylvania. The building has a structural concrete core while the remaining
structural elements are steel. Compliance officers John Wiseman and Charles Ferguson of
the Department of Labor’s Occupational Safety and Health Administration (“OSHA”)
conducted two inspections of the worksite in the late summer of 1989,’ resulting in the
issuance of eight willful, sixteen serious, and five other-than-serious citations.
Review was directed on four items, all addressing fall hazards. Falcon petitioned for
review of an administrative law judge’s affirmance of a citation for a willful violation of 29
C.F.R. 8 1926.55O(g)( 2), restricting the use of personnel platforms known as “man baskets.”
The judge assessed a penalty of $10,000. The Secretary of Labor petitioned for review of
’ This matter is a consolidation of two cases. Do&et No. 89-2883 arises from the inspection of August 17-18,
1989. Docket No. 89-3444 arises from the inspection of August 28 - September 27, 1989.
2
the judge’s vacation of three citation items: one willful violation of 29 C.F.R.
0 1926.75O(b)( I)( ut
“‘ ) , re q uting wire-rope cables at the perimeter of open-sided temporary
floors, and two willful violations of 29 C.F.R. $ 1926.105(a), requiring employers to provide
some means of protection against falls of more than 25 feet.’
For the reasons set forth below, we find that the judge did not err in finding a
violation of the man basket standard. We affirm this violation as willful and assess a penalty
of $10,000. We find that the judge did err in vacating the other two citations. Falcon
willfully violated the perimeter cable standard and committed a serious violation of the safety
belt standard. We assess penalties of $5,000 and $1,000, respectively.
I. Section I926SSO(g): Man Basket Viin
By the time of the inspection, the general contractor had installed four exterior
personnel hoists (elevators) reaching up to the 38th floor. From there, access to the next
ten floors was provided by interior ladders. Despite this fact, the compliance officer
observed a.personnel
* aplatform or “man basket” suspended from an overhead crane being
used to transport employees between the ground and their workplaces on the 46th and 48th
floors of the building.
Falcon was cited for violating 29 C.F.R. 5 1926.550(g)(2).3 The judge found that
Falcon failed to prove that alternatives to the man basket were either impossible or more
hazardous and affirmed the citation. - .
- We will refer to these as the “man basket” violation (Docket No. 89-3444, citation no. 2, item 3); the
“perimeter cable” violation (Docket No. 89~lt454,citation no. 2, item 4); and the two “safety belt” violations
(Docket No. 894444, citation no. 2, item 1 and Docket No. 892833, citation no. 2, item 2).
3 The standard, found in Subpart N--Craw, Derricks, Hoists, Elevators, and Conveyors, provides:
0 1926.350 Cmnes and derricks.
....
(g) Crane or denick sus~nded pmmuu~ phfiwn~~ . . . .
(2) Genmf requirements. The use of a crane or derrick to hoist employees on a personnel
platform is prohibited, exceptwhen the erection, use, and dismantling of conventional mans
of reaching the worksite, such as a personnel hoist, ladder, stairway, aerial lift, elevating work
platform or scaffold, would be more hazardous, or is not possible because of structural design
or worksite
3
A. Burden of hqf
The judge p laced the burden on Fa icon to shw that its case fell within the exception
to the standard’s general ban on man baskets. Falcon. cltrng Centuly Steel Erectors, Inc., 888
F.2d 1399, 1402 (DC. Cir. 1989), and Astra Pharmocuuhh Pm&., Inc., 9 BNA OSHC 2126,
1981 CCH OSHD ll 25,577 (No. 78-6247, lW), clarms that because greater hazard and
impossibility are integral parts of the standard. it is t hc Sctcretary’s burden to prove them.
Further, Falcon contends that the judge erred in Imprqxrty relieving the secretary of his
obligation to prove the elements of the standard. The kretary, on the other hand, cites
a number of cases supporting the judge’s allocation of the burden of proof. E.g., Peavey
Grain Co., 15 BNA OSHC 1354, 1987-90 CCH OSHD 1 29,027 (No. 89-3046, 1991);
Carabetta Entep., Inc., 15 BNA OSHC 1429, 1987-90 CCH OSHD 1 28,934 (No. 89-2007,
1991).
The Commission has held that the party claiming the benefit of an exception bears
the burden of proving that its case falls within that exception. E.g., Dover EkvtztorCo&,15
BNA OSHC 1378, 1381, 1991 CCH OSHD 9 29,524, P. 39, 849 (NO. 8&2642, 1991).
Therefore, the judge was correct in placing the burden on Falcon here. l
B. Impsibikty and Greater Hazed
It is undisputed that because the elevators only reached the 38th floor, Falcon was
unable to use them to transport its employees all the way to their work stations on the 46th
through 48th floors. Falcon further argues that without the man basket, employe&-some
carrying tool belts weighing 15 to 20 pounds--would have been required to climb ladders
eight to ten floors several times a day. The parties disagreed on the number of trips that
would have been necessary per day and whether tools could have been safely stored at the
work level or hauled up by crane.
Falcon does not claim that using ladders was “impossible,” since employees
sometimes used the ladders to reach their work stations. Nonetheless, Falcon alleged in its
answer that because of “fatigue and the consequent increased possibility of injury to
employees,” use of the ladders would have posed a greater hazard than transport by use of
the man basket. Because allegations made in pleadings do not constitute evidence, and
4
because Falcon produced no evidence to establish that using a combination of elevators and
ladders would be more hazardous than traveling by man basket the full height of the
building, the record does not support Falcon’s claim of greater hazard.”
In summary, the evidence does not show ( 1) that it was impossible “because of
structural design or worksite conditions” to reach the upper floors except by man basket, or
(2) that the use of any other means of transport would have created a greater hazard than
using a man basket. We therefore concur with the ~uJgct finding that Falcon failed to
prove that its case fell within the standard’s impossibili$ or greater hazard exception. It
was possible, and not proven to be more dangerous, to use a combination of elevators and
ladders, rather than a man basket, to approach the working levels. The violation WaS
established. We therefore affirm item 3 of citation no. 2 in Docket No. 89-3444.
c. Wdlpidnms
The Commission has described a willful violation as one “committed with intentional,
knowing or voluntary disregard for the requirements of the Act, or with plain indifference
to employee safety.” A.!? O’Horo Co., 14 BNA OSHC 2004, 2012, 1991 CCH OSHD
1 29,223, p. 39,133 (No. 85-0369, 1991). See Babcock & W&ox Co. v. OSHRC, 622 F.2d
1160, 1167 (3d Cir. 1980); Frank hey, Jr. v. OSHRC, 519 F.2d 1200 (3d Cir. 1974). A willful
violation is differentiated from others by an employer’s heightened awareness of the illegality
of the conduct or conditions and by a state of mind, i.e., conscious disregard or plain indiffer-
ence for the safety and health of employees. Logically, then, a willful charge is not justified
if an employer has made a good faith effort to comply with a standard or eliminate a hazard,
4 Falcon objected to the judge’s differentiating the problem of travel between the 1st and 38th floors (elevator
access) from that of travel between the 38th and 48th floors (ladder access). The judge concluded that even
if using ladders were shown to be more hazardous than using the man basket for the second leg of the trip,
Falcon failed to show that the elevators were more hazardous than the man basket for the first leg, so the
violation would still exist as to the lifting of employees from the ground to the 38th floor. Since we find that
Falcon failed to carry its burden as to the trip & a whole, we do not reach that hypothetical result.
5 The reference in the standard to the term “impossibility” does not preclude an empluyer Born raising an
infeasibility defense. Seibef M&VTI Mfg. & Welding Corp., 15 BNA OSHC 1218, 1227, 1991 CCH OSHD
n 29,442, pa39,683 (No. S-821,1991) (an employer may establish a defense by showing that compliance would
be unreasonable or senseless). Falcon did not properly plead this affirmative defense here.
even though the employer’s efforts are not entirely effective or complete. Williams Enterp.,
Inc., 13 BNA OSHC 1249, 1256-57, 1986-87 CCH OSHD ll 27,893, pe 36,589 (No. 85-355,
1987). The test of good faith for these purposes is an objective one--whether the employer’s
belief concerning a factual matter or concerning the interpretation of a rule was reasonable
under the circumstances. Id. at 1259, 1986-87 CCH OSHD at p. 36,591.
Based on a number of factors, the judge found that Falcon willfully violated the man
basket standard and assessed a penalty of $lO,OOO.-Falcon introduced as evidence letters
it had sent complaining about the general contractor’s failure to provide elevator access all
the way to the erection floors. In those letters, Falcon noted the expense in operating the
crane-hoisted
. man basket. The judge interpreted these letters to focus on cost rather than
safety. The judge also noted what he perceived to be an intentional disregard of Falcon’s
own safety consultant’s warnings about the man basket involving certification of load capacity
and use of safety lines. While emphasizing that these warnings were not based on the
inherent, relative danger of the man basket compared to elevators and ladders, he found
that they were nonetheless safety-related and indicative of Falcon’s disregard for the safety
of its employees. He also found a heightened awareness on Falcon’s part because the
consultant had informed the company’s vice president in writing that the “[nlext OSHA
penalty for use of man baskets will be in the range of $10,000.” On the basis of these
factors, the judge concluded that Falcon had made a “studied decision” to ignore.its own
safety consultant’s recommendations in order to save money--more money than Falcon had
reason to think it could lose in an OSHA penalty. The judge concluded that this demon-
strated “a callousness toward employee safety which is willful under virtually all definitions
of that term. Bland Conm Co., 15 BNA OSHC 1031, 1991 CCH OSHD 1 29,325 (No.
87492, 1991).”
On review now before us, Falcon claims that it did not ignore the advice of its safety
consultant and that the record is inconclusive as to whether the specific problems noted in
the consultant’s reports dealing with the man basket were ultimately resolved. It also asserts
that it believed in good faith that section 1926.550(g)(2) permitted it to use the man basket
in the circumstances of this case.
6
In most cases, the hiring of a safety consultant will help to establish that an employer
W= making a good faith effort at compliance. However, we find no basis for extending such
credit here because we are uncertain how seriously Falcon took the consultant’s advice. At
the same time, we recognize that penalizing employers for their response (or lack thereof)
to their own consultant’s warnings might discourage employers from creating and developing
their own safety programs. Consequently, we will ascribe neither credit nor blame for the
results of Falcon’s self-audits. See General Motors Cop., GM Parts Div., 11 BNA OSHC
2062, 2066, 1984-85 CCH OSHD ll 26,961, p. 34,611 (No. 78-1443, 1984) (consolidated),
afd, 764 F.2d 32 (1st Cir. 1985) (“[i]f employers are not to be dissuaded from taking
precautions beyond the minimum regulatory requirements, they must be able to do so free
from concern that their efforts will be relied orr to establish their knowledge of an alleged
hazard”).
We instead base our finding of willfulness on an entirely different premise: the
uncompromising language of the standard itself. The standard demands that before
resorting to a man basket, an employer must show--not that alternative methods are merely
‘inconvenient or more expensive--but that they are either impossible or more hazardous.
Falcon argues that this is not a case in which it ignored the plain mandate of a safety
regulation but that, to the contrary, Falcon believed in good faith that the standard
permitted the use of the basket under the conditions at the site. Yet the record leaves no
doubt that Falcon was not driven to use the man basket by either physical impossibility or
safety concerns, but rather by frustration with the general contractor, whose actions, in our
view, led Falcon to seek an easier, faster (and thus less expensive) way to reach the upper
.
floors.
Most of the testimony and exhibits on this issue relate to an “impossibility” argument
that the judge rejected and that Falcon abandoned on review. Falcon had argued and
sought to prove that the elevators took too long and that sometimes there was substantial
waiting time by Falcon employees because of the limited capacity of the elevators and the
priority given to other subcontractors’ employees, thus increasing Falcon’s costs. Hence,
Falcon asserted it was “impossible” to use the elevators. Falcon points out that the safety
consultant himself testified that it would not have been “very practical” for Falcon to cease
7
u&lg the man basket because the elevators would have txxn “too time consuming.” Despite
the fact that this argument was later abandoned, the cvldence remains. Far from helping
to establish that elevators and ladders were impossible 01 more hazardous, this evidence only
shows Falcon’s underlying motivation for using the man basket: convenience and cost. As
Falcon well knew, the standard requires more. Had Falcon offered evidence supporting its
allegations that climbing ladders would have subjected employees to a greater risk of injury
than riding in the man basket, it might well have been able to.establish that the exception
applied in this case.
D. Penalty
In assessing a penalty, we find, as did the judge, that Falcon was a large employer and
that the employees’ exposure was not so brief as to mitigate the otherwise serious injury to
which they were exposed. H.H. Hall Conm Co., 10 BNA OSHC 1042, 1047, 1981 CCH
OSHD 1 25,712 at p. 32,057 (No. 76-4765, 1981) (duration of employee exposure is not
determinative of the seriousness of a violation; it relates rather to the gravity factor in
assessing a penalty). The absence in the record of recent prior history is outweighed by
Falcon’s lack of good faith, so no factors mitigate against imposing the maximum penalty
allowable for a willful violation. We therefore affirm the %10,000 penalty as proposed by the
Secretary and assessed by the judge.
II. Section 1926.75O(b)(l)fiii): Perimeter Cable Vwkatht
A. Patties’ Pdthas and Jut&&k lkcision
The compliance officer observed four instances (grouped together as one citation
item) of employees exposed to a fall hazard at the edge of open-sided temporary floors that
were not guarded with perimeter cables, as required by 29 C.F.R. 5 1926.7SO(b)(l)(iii).6
6 The standard, found in Subpart R--Steel Erection, provides:
g 1926.750, Flooring requirements.
....
(b) Temporaryflooring--skIeron steel constmction in tieredbuifdings.(1) . . . .
@)*Floor periphery--safety railing. A safety railing of %-inch wire rope or equal shall be
installed, approximately 42 inches high, around the periphery of all temporary-planked or
temporary metal-decked floors of tier buildings and other multifloored structures during
structural steel assembly.
8
The judge vacated the citation item because he found that the secretary failed to
show that the decking installation had been “substantially completed” at the time of the
inspection. According to the judge:
Under the wording of the standard and the reasoning of wl”lliants [Enterp. of
Georgia, Inc., 12 BNA OSHC 2097, 1986-87 CCH OS-ID 127,692
(No.7904618, 1986), rev’d on other grounds, 832 F.2d 567 (11th Cir. 1987)], a
bolted-up and plumbed-up level of open steel columns and beams does not
become a temporary metal-decked floor until at least a substantial portion of
the level has received decking. The [cabling] requirement thus does not
become effective at a level of steel erection until temporary floors or decking
is substantially in place.
Applying this “substantial completion test” --that a substantial portion of the entire‘5oor be
decked--to the facts of the case before him, the judge found the evidence on the degree to
which the decking installation had been completed to be “less than clear.” On that basis,
he found that the Secretary failed to prove a prima facie case and vacated the citation
item.’
Falcon concurs with the judge’s finding that at the time of the inspection, perimeter
cables were not. yet required under section 1926.75O(b)( l)(iii). The Secretary contends that
the decking was substantially completed and maintains that the key factor is that should be
that enough of a floor had been put down so that employees were actually using the floor
as-a working surface.
.
B.Seetary’s~F&caSe
At the parties’ urging, the judge ruled that the test for determining when cable must
be installed is whether the decking on the entire floor has been substantially completed. The
Secretary agrees in part, but argues that employees, in addition, should be protected if they
are exposed to perimeter falls while- working on a substantially completed portion of a
partially decked floor, citing Walker Towing Corp., Paducah River Service, 14 BNA OSHC
’ The judge found Wdliams “instructive” in understanding the typical sequence of various stages of the steel
erection process. In the Wdliams case, the Commission noted witnesses’ testimony that *‘theindustry practice
is to wait until a temporary floor has been installed before putting up the wire-rope railing required under
5 1926.75O(b)(l)(iii). Thus, customarily, not even wire-rope railings are installti until sometimeafter the bolt-
up and plumb-up crews complete their work on the perimeter beams.” 12 BNA OSHC at 2107 n.16,1986-87
CCH OSHD at p. 36,157 n.16.
9
2072, 2075, 1991 CCH OSHD 1 29,239, p. 39,159 (No. 87-1359). In cases involving simple
rectangular floors, the judge’s “substantial completion test,” which assesses the condition of
the entire floor, will yield the proper result. See 7%e Ashton Co., 3 BNA OSHC 1%8,1%9,
1975-76 CCH OSHD ll 20,351, p. 24,275 (No. 5111, 1976). In cases such as this, however,
waiting for the entire floor to reach the substantial completion stage before installing
perimeter cable denies the protection contemplated by the standard. In OUT view, it is not
inconsistent with the Williams holding to interpret‘tFubstantiaUy
complete” to mean that if (1)
a portion of a floors is (2) decked to the outer edge so as to constitute an open-sided floor
(3) on which employees are exposed to exterior falls, then perimeter guarding is required. .
We find .that the critical factor is generally the extent to which decking has actually been laid
on a given story or floor in terms of total area,-unless employees, as here, are exposed to
an exterior fall from a finished section that serves as a discrete work area.
The photographic exhibits in this case, along with the testimony of the compliance
officer and others, demonstrate that in each- instance the decking was laid to the outer edge
and was functioning as a work surface. Employees were thus exposed to exterior faII
hazards while working at the perimeter of these open-sided floors and ought to have been
protected by a perimeter cable. For instance, the photographs that depict the vicinity of the
employee -exposure in instance (a), on the 48th floor, offer several perspectives of an
expanse of decking that reaches to the outer edge of the building. No cable has been strung
between the structural steel columns in view. As Compliance Officer Wiseman testified, one
of the pictures shows “employees carrying and sorting iron out on the floor. They are using
this floor as an erection floor and there is no perimeter cable around it.” Falcon’s own
erection estimator, John Egyed, upon being asked when he usually puts up the safety cable,
responded, “Well, this would be the time. You have installed your deck. You have a
working floor and that is when you put your cable up.” Instance (c), a violation observed
later in the inspection, was on the 54th floor, which by that time was serving as the erection
8 The entire floor in this case is not a simple rectangular deck, but a squared-off doughnut or angular ring
surrounding the ancrete core of the building. Segments or arcs of this ring are planked outward from the
we to the outer perimeter. Thus, each arc or segment constitutes a discrete work areas with a guardable
edge.
IO
floor. ‘Ihe evidence relating to instance (c) resembled that offered to prove the violation
in instance (a).
Instance (b) was observed seven floors beio~ the erection floor, on the 41st floor.
The photograph of the area shows an expanse of opctn-s~M floor, decked to the outer edge.
The compliance officer testified that the photograph shtnvs an employee leaning over the
edge of the floor with a hand line pulling up a welding torch. The photograph introduced
in connection with instance (d), a segment of the 45th floor, shows two employees walking
over a large area of metal decking toward the decked, but unguarded, outer edge of the
building. The employees on whose exposure instance (d) was based were much closer to
the outer edge than the two in the picture. The parties do not dispute that in each instance
employees were either walking or working at or near the edge, and therefore exposed to a
fall hazard.
In sum, the Secretary’s prima facie case under section 1926.75O(b)(l)(iii) will depend
not only on how much of an entire level is covered, but on whether a substantial portion of
the floor has been decked to the outer edge so as to create a discrete work area.
. (Work
surfaces fashioned out of temporary metal decking that do not skirt the out& edge of the
building would not constitute open-sided floors, but might nevertheless be cited under other
fall-protection standards if they pose interior fall hazards).
In this case, regardless of what a bird’s eye view of the floor would reveal about the
proportion of decking to open beams on the floor as a whole, employees were exposed to
exterior fall hazards at the perimeter of open-sided floors which were serving as their work
surfaces. Citing Wiilker Towing Corp., the Secretary emphasizes that the Commission has
rejected an all-or-nothing approach to compliance with the requirements of standards.
Instead, the Commission has insisted on compliance to the extent possible and necessary.
In W&T Towing, we criticized the employer for failing to attempt even partial compliance,
i.e., to implement a limited use of guardrails along the deck of a barge. The Secretary
argues in this case that the fact that the entire floor at a given story or level was not
completely decked over does not explain or justify the failure to install a perimeter cable
where and when it was possible to do so. We agree on the facts here, It was not necessary
for the decking crew to have completed its work around the entire perimeter of the building
11
before the requirement for cabling around a portion of perimeter arose. Cable should have
been installed wherever employees were working at the edge, or could be expected to pass
near it in the course of their duties. North Beny Concrete Cop, 13 BNA OSHC 2055,
1987-1990 CCH OSHD B 28,444 (No. 86-163, 1989).
Accordingly, we find that the “substantial completion” test adopted by the judge
focused here too narrowly on the condition of the entire floor. The location and physical
area covered by decking in a given instance will be important to the Secretary in determining
the most specifically applicable standard. See, e.g., WlilliamEntetp., Inc., 11 BNA OSHC
1410, 198384 CCH OSHD W26,542 (No. 79-843, 1983), affd in part, r&d in part, 744 F.2d
170 (D.C. Cir. 1984) ( construing a guardrail standard, court found that an unguarded
“bridge,” consisting of three or four 3-foot tide pieces of interlocking metal decking
spanning a 30- to 40-foot stretch of beams, constituted a “walkway,” not a “platform”). But
there is no question that the cited standard, section 1926.750(b)(l)(Z), applies here. The
issue is rather when cable should be installed. Waiting for the entire floor to be “sub-
stantially completed” before putting up cable anywhere along the perimeter, when employees
were exposed to- exterior falls while working on portions of the floor, iS contrary to Walker
Towing.
The Commission’s reviewing authority includes the authority to decide all issues it
could decide as the initial decision-maker. ‘Stevens Equip. Co., 1 BNA OSHC 1227, 1229,
1971-73 CCH OSHD 1 15,691, p. 20,987 (No. 1060, 1973) (citing the Administrative
Procedure Act, 5 U.S.C. $ 557(b)). The courts have recognized the authority of the
Commission to develop its own principles for determining the sufficiency of evidence. A.E.
Burgess Leather v. OSHRC, 576 F.2d 948 (1st Cir. 1978). We find that in instances (a), (b),
(c), and (d), the Secretary established a prima facie violation of the perimeter cable
standard. We now consider Falcon’s affirmative defenses.
12
C. Flcvln’s wve Defenses
First, we consider what may amount to Falcon’s attempt to raise a greater hazard
defense. Falcon seems to perceive the Secretary as requiring cable to be installed promptly
after the skeletal steel has been erected, even before any decking has been installed. Falcon
neither pleaded the “greater hazard” defense in its answer nor mentioned it as such in its
brief, and the judge does not characterize his discussion of these matters as such. For the
reasons that follow, we find that even if Falcon had properly pleaded this affirmative
defense, it has not been established on this record. To establish the greater hazard defense,
the employer must demonstrate that:
. (1) the hazards of compliance are greater than the hazards of noncompliance;
(2) alternative means of protection are unavailable; and
(3) a variance was unavailable or inappropriate.
. Co., 13 BNA OSHC 1084,1088,1~8&87 CCH OSHD 1 27,814, pp. 36,397.98
LmhofiGrain
(No. 81-984, 1987). Falcon’s argument in its brief to the Commission touches only on the
first element of the defense. Citing the judge’s decision instead of specific testimony in the
record, Falcon claims that the compliance officer testified that Falcon should have had iron-
workers crossing beams to weld angle irons into place so that cable could be installed before
the-floor in question was metal-decked to the outer edges. Our reading of the compliance
officer’s testimony, however, does not support this version of what he said. The compliance
officer’s remarks do not show that he thinks employees should string perimeter cables before
the decking has reached the perimeter. On the contrary, he suggests the opposite: “If there
were no columns and there was a means of putting in l . . perimeter cable[,] then it should
have been put in after the decking went down.” (Emphasis added.)
If the Secretary were to interpret the standard as requiring employees to venture out
onto bare, undecked perimeter beams to put up cable, e.g., before the creation of an open-
sided floor to fall off of, such an interpretation would be patently unreasonable. A
convincing “greater hazard” argument might certainly be made in that event. Neither the
evidence nor the argument before us proposes such an interpretation. Even if it did, Falcon
has not established the other two elements of the defense: the record is silent on whether
13
some alternate means of protection could have txcn used in lieu of perimeter cable (e.g.,
safety belts), and there is no evidence that Falcon ujught a variance. Therefore, to the
extent that Falcon relies on a “greater hazard” defense:, it has not been established here.
2. In$i??asibilitv
w
Falcon included the defense of infeasibility In rts formal pleadings and vigorously
sought to build a record on the issue during the hcanng. However, Falcon all but
abandoned this defense in its brief before the Commwion, relying instead on the judge’s
findings under the “substantial completion” test. Given our holding that the Secretary has
made out a prima facie case, we must now consider Faicon’s infeasl’bility defense. Y
One
. of Falcon’s positions was that, in some circumstances, it is physically impossible
to string cable when there are no columns nearby to which cable may be attached. Another
position was that in other circumstances, namely, on a floor being actively used as an
erection floor, putting up cable might be physically possible but would be seriously disruptive
of the scheduled steel erection operations.
In the only sentence in its brief to the Commission actually using the term “feasibili-
ty,” Falcon criticizes the Secretary: “[Tlhe Secretary argues, based on Wiseman’s unqualified
opinion, that it was feasible to install perimeter cable in each of the cited instances.” The
burden, however, is on Falcon to make out its affirmative defense of infea&iMy, not on the
Secretary to show the feasibility of the standard’s requirements. SeibelModenr.Mfg.&
Welding Co., 15 BNA OSHC 1218, 1227,199l CCH OSHD 1 29,442, p. 39,683 (No. 88-821,
1991) (any employer seeking to be excused from implementing a cited standard’s abatement
measure on the basis of infeasibility has the burden of establishing the infeaslSlity of the
specified abatement method and of alternative measures). The appropriate testis whether
compliance would so interfere with performance of necessary work as to be infeasl’bleunder
the circumstances. Dun-Par En@. Fomt Co., 12 BNA OSHC 1949, 1956-59, 1986-87 CCH
OSHD ll 27,650, pp. 36,024.27 (So. 79.2553,1986) rev’d on othergrounds, 843 F.2d 1135 (8th
Cir. 1988) (employer established that guardrails were incapable of being used anywhere for
a sufficient length of time to serve any practical purpose of protection and would have
disrupted the work to such a degree that compliance was infeasible).
14
(a) ~nfeasibiliiy 4~ pliysiccrl Impossibility
In testifying about what he observed at the worksI1ct, the compliance officer pointed
out in the photographic exhibits a number of columns to which cable could have been
attached. He further testified that for situations in which there was no column available,
owing to the design of the building or the stage of the steel erection process to which the
raising gang had progressed, Falcon could have used anplc Irons or other means of support
to hang the cable.
Dennis Allessandrine, a journeyman ironworker for 27 years and one of Falcon’s
witnesses, testified that when cable could not be strung from column to column, angle irons
were welded in place to carry the. cable. A number of the exhibits show cable strung from
angle irons on other stories. Other exhibits show angle irons in place without any cable
installed. This abatement method has been proposed in other cases. E.g., Wulker 7bwing,
14 BNA OSHC at 2076-77,1991 CCH OSHD at p. 39,159.
The testimony of both the compliance officer and Falcon employees, as well as the
photographic exhibits, suggest that in the absence of columns, the use of angle irons would
have been feasible. Therefore, Falcon’s claim of infeasibility on grounds of physical
imposslMity is not supported by the evidence.
(3) Infeasibility as Iktkv$emwe withOpenations
As already mentioned above, many 6f the photographic exhibits show steel columns
.
to which perimeter cable could have been attached. Several even show the eyelets through
which cable is typically strung already welded onto the columns. In these instances, Falcon
asserts not physical impossibility but interference with necessary work as the grounds for its
infeasibility defense, claiming that perimeter cable would prevent or delay the steel erection
process. We therefore now consider whether the Commission should recognize a defense
to a prima facie section 1926.750(b)( l)(“‘~1
) case, and allow the employer to show that cable
need not be strung on certain sides of an erection floor--even though employees are exposed
at the edge of that work surface--until structural steel assembly has progressed to a point at
which the cable will no longer interfere with the raising gang’s work.
In this case, the compliance officer maintained throughout the hearing that the proper
order of events on the erection floor, also called a working floor, is (1) structural steel erec-
15
tion of a level of open beams, (2) decking of that level, (3) cabling of that level, (4) more
erection, working Tom that level upward, two stories at a time. A number of witnesses for
Falcon testified that that was not the actual sequence of events. For example, Allessandrine
testified that he believed it would be “too hazardous” to put up cable on an erection floor:
“There is too much activity going on there with the crane swinging around and everything.
It would be done afterwards.” In addition, he hypothesized regarding the placement of cable
on the working floor from which the structural steel for the next two stories is being erected:
If you had the perimeter cable up on the working floor, when you bring a load
of iron up, sometimes the iron does protrude out over the end of the building:
So you couldn’t just bring the load straight down if the cable was there . . .
you just couldn’t work up there like that.
Similarly,
. John Egyed, Falcon’s estimator, testiied:
By the time we are putting safety cable on, the erection process has started
again. We are erecting the next tier. We do not put the safety cable on the
work@ floor in order to erect the next tier columns and the beams from the
working floor to the next level. It could possibly get tangled in the safety ca-
ble l
The Secretary offered no evidence in rebuttal. The language of the standard itself
does not preclude such an affirmative defense. The standard specifically requires that cable
be installed “during structural steel assembly.“’ Applying Dun-Par, to delay the installation
a
of cable on any substantially completed portion of an open-sided erection floor, an employer
must show that installation of cable along affected portions of the perimeter would interfere
with receiving, sorting and raising activities. The preponderance of the evidence in this
case demonstrates that on certain sides of open-sided erection floors, installing perimeter
cable too early or in the wrong places would have disrupted the normal sequence of steel
erection activities and endangered employees on that floor or those below at ground level
9 Falcon abandoned its earlier position that as long as cable was installed sometimt “during strwtural steel
assembly,” the standard would be satisfied. The judge properly rejected this argument, since under that
reading of the standard, no perimeter protection would be required on any floor until the last piece of
structural steel was in place, and such a result would be inamsistent with the intent of the Act and the
standard.
16
by blocking the normal path of steel beams as they were being delivered and maneuvered
on the deck‘
In conclusion, we find that Falcon established an infeasibility defense with respect to
instances (a) and (c), floors 48 and 54, the erection floors. As to instances (b) and (d),
floors 41 and 45, however, these lower floors were not serving as erection floors at the time
they were inspected. The erection activities on those floors were completed, and Falcon’s
infeasrbility defense does not apply. Accordingly, based on the violative conditions observed
in instances (b) atid (d), we affirm item 4 of citation no. 2 in Docket NOe 89.3444.
D. WillEJnerss
In light of his decision to vacate the perimeter cable citation, the judge did not reach
the characterization issue. Falcon likewise doe; not address this issue in its brief.
The Secretary argues that these violations were tillhle He points out that Falcon’s ’
own safety consultant advised Falcon of a number of unguarded floors during his inspections.
Compliance officer Wiseman testified on cross-examination that he took Falcon’s overall
attitude toward safety into account as a factor in determining whether a wiUu1violation had
occurred, and that he similarly considered Falcon’s voluntary, periodic self-auditing program.
However, he testified:
The company had a paper program and they had consultants to come to the l
.
job to give them written reports. It was my understanding and from my
obsentations that they were not paying much attention to the recommenda-
tions that were being made by the consultant at the job site.
Mr. Michael Champagne, the safety consultant, denied having made any statement to
Wiseman that might have contributed to that impression. Champagne testified that his
impression of Falcon was as of “[v]ery good company, safe company,” and when asked
whether his multi-item safety reports contradicted him, he replied, “Well on a job of that
size[,] of that magnitude[,] where you have 100 ironworkers spread over an area of the
tower, the retail section, the hotel section . . . for a job that big that is not a lengthy report.”
lo Under Seibel, in addition to establishing the infeasibility of the specifiedabatement method, an employer
musi also show that an alternative measure was used or there wasno feasiblealternative measure. In this case,
safety belts tied off to the same columns to which perimeter cable would be attached would p a similar
hazard to employees in that their lifelines could become entangled as the steel was being landed. We find that
Falcon has carried its burden under Seibel.
17
At the same time, he admitted that in his experience! as a safety expert, he had noted a
particular difficulty in achieving safety compliance among ironworkers, explaining that “I try
to communicate with them. They are somewhat indernctcnt [--] I think that is a good word
[for] the way the[yl work.” As mentioned in connectun with the man basket violation
above, holding the results of a company’s voluntary self-audits against it would not ultimately
serve the interests of employee safety and health. See Gem1 Motors, 11 BNA OSHC at
206% 1984-85 CCH OSHD at p. 34,611.
The Secretary also relies on Falcon’s history of prior citations in support of his charge
of willfulness. Falcon was cited for a violation of section 1926.75O(b)( l)(iii) only four months
earlier, in April 1989. How a company responds to citations may be considered in assessing
willfulness. See Carabetta Enterp., Inc., 15 BNA OSHC 1429, 1991 CCH OSHD q 29,543
(No.8902007, Ml), (citing Btock V. Morello BOOS.COPWE,809 F.2d 161 (1st Cire 1987)).
“Once an employer has been cited for an infraction under a standard, this tends to apprise
the employer of the requirement of the standard and to alert him that special attention may
be required to prevent future violations of that standard.” Dun-Par Engd Fom Co. v.
Marshall, 676 F.2d 1333, 1337 (10th Cir. 1982). Compliance Officer Wiseman testified that
he had characterized the violation as willful “[blecause they had been cited before on this
same job site. I had cited and talked to the employer on a previous occasion and besides,
there was floor after floor that needed peAmeter protection on it.” .
In Iight of the prior citations for violations of the same standard during an earlier part
of the project on the same job site, we find Falcon’s violation of the perimeter cable
standard to be willful. Our affirmance today of two other violations related to fall hazards
only bolsters our finding that Falcon had the “heightened awareness” of the standards and
of its own noncompliance that amounts to a conscious disregard for or plain indifference to
employee safety. WWiam Enrerprires, 13 BNA OSHC at 1256-57, 1986-87 CCH OSHD at
p. 36,589. G
E. Penalty
In determining an appropriate penalty, Falcon’s size and prior history of similar
citations weigh in favor of a heavy penalty. Moreover, Falcon displayed a lack of good faith
18
in failing to attempt even partial compliance with the standard on the two floors for which
we find a violation. At the same time, there was evidence that Falcon employed a work
gang whose sole responsibility was the installation of perimeter cable and that double cable
was strung to accommodate the rules for other trades. The record does show that cable had
been installed on other floors, and we have accepted Falcon’s infeasfbility defense with
regard to the affected portions of two of the floors cited in this case. The presence of cables
that Falcon did install, and the absence of cables that Falcon had a valid reason for not
installing, reduced the overall exposure of employees to serious injury. These efforts lead
us to assess less than the maximum penalty of $10,000 proposed by the Secretary.
Accordingly, having considered the criteria set forth in section 17(j) of the Act, we assess a
penalty of $5,000.
III. Sect&m 1926.105(a): Safety &b Vii-n
Falcon was cited twice for willfully violating 29 C.F.R. 0 1926.105(a).” Two pairs
of employees were observed doing bolt-up work--one individual was standing at the edge of
the open-sided floor, while the other three were sitting astride beams; another employee was
seen standing outside a perimeter cable while installing studs on metal decking; and another
two employees, taking a coffee break, were seen sitting close to the edge of the deck. (In-
stances (a), (b), and (c), all in Docket No. 89-3444, and the single instance in Docket No.
89-2883, respectively.) Not one of these employees was wearing a tied-off safety belt, and
no safety nets or other fall protection devices had been installed. The instances observed
by Compliance Officer Wiseman carried a proposed a penalty of $9,ooO; the instance
detected by Compliance Officer Ferguson carried a $7,000 proposed penalty.
l1 The standard9 found in Subpart E--Personal Protective and Life Saving Equipment, provides:
0 1926.105(a) Safety nets.
(a) Safety nets shall be provided when workplaces are more than 25 feet above the ground
where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or
Safety belts is impractical.
Implicit in this standard is that devices other than nets must be used, if practical. The Secretary commonly
cites any exterior fall protection violation under this standard.
19
The standard provides that safety nets are required where other devices are
impractical, not that safety nets are required unless other devices are practical. This
distinction has, as the judge observed, generated extensive litigation, particularly over the
allocation of the burden of proof. Perhaps the most comprehensive discussions of the
standard, if also the most challenging to reconcile, are by the Court of Appeals for the
District of Columbia Circuit. That court most recently considered the standard, as well as
the burden of proof issues, in Centwy Steel Erectors, Inc. v. Dole, 888 F.2d 1399 (D.C. Cir.
1989) (“Cenw Steer,), in which it reviewed other leading fall-protection cases, including its
own decisions in L.R Willson & Sons, Inc. w. Donovan, 685 F.2d 664 (D.C. Cir. 1982)
(“WUso~ I”) and Bmck v. L.R Willson & Sons, 773 F.2d 1377 (D.C. Cir. 1985) (“W&on
III”). The parties and the judge focus almost exclusively on these cases.
A. P&s’ Positions ad Judgr’s lkision: l&e Century SteelCase
To paraphrase the court’s holdings in Century Steel:
0 if the Secretary cites an employer for failure to provide safety MB, and if
none of the fall protection devices listed in section 1926.105(a) was used, then
the Secretary will establish a prima facie case upon showing that employees
were exposed to a fall in excess of 25 feet and that none of the protective
devices was used; and
- (2) if the Secretary cites an employer for failure to provide a fall protection ’
device listed in section 1926.105(a) &er than safety nef+s[e.g., belts], then the
Secretary must prove that use of that device is practical.
See Century
Steel, 888 F.2d at 1402, 1405. The Centwy Steel court’s distinction between the
two categories of cases seems to depend . on the nature of the Secretary’s citation, not on any
act or omission of the employer, or on any physical condition at the workplace. Centwy
Steel seems first to force the Secretary to choose among a variety of abatement methods,
and then to force the trier of fact to second-guess the Secretary’s choice.
As the judge lamented, “[ulnfortunately, this case does not fall easily into one of the
two categories established by the Century holding.” Apparently, feeling bound under Century
Steel to discern whether the Secretary cited Falcon for failing to provide and ensure the use
of belts or for failure to install nets, the judge examined each sentence fragment in the
20
citations themselves and each pertinent allegation in the complaint, ali to no avail. Based
on each compliance officer’s testimony about his understanding of the citation he had
recommended and about what he believed would k appropriate abatement methods,
however, the judge concluded that the compliance ol‘~~crs thought that either belts or nets
would have served to abate the violations they obxrv4 and belts would have been practical.
Considering the citations and complaints to be compthlc wqth this thinking, the judge found
that the Secretary cited Falcon for failing to provide a fall protection device other than
safety nets, Le., safety belts. He then said that under Cenrwv. Steel, the Secretary must show
that safety belts were practical in each instance.
The judge discounted the probative value of the compliance officers’ testimony
regarding the practicality of using belts. However, his ul timate finding was that the Secretary
failed to make even a prima facie case that safety belts were practical. T’his amounts to a
finding that safety belts were impractical. Under the plain wording of the standard, safety
nets are the device of last resort, required if the other enumerated devices, including belts,
are impractical. Since the judge found that safety belts were impractical in this case, he then
should have gone on to consider the merits of the safety net allegation. See, e.& cases cited
supra, note 15. Unlike the Century Steel case, where the Secretary had already conceded
that nets were infeasible, here the nets issue would--if we were to uphold the judge’s finding
that belts were impractical--remain to be decided.‘* However, because we find, for reasons
set out in detail below, that belts were practical in each instance, we need not remand to the
judge for resolution of the nets issue.
The Secretary concentrates on the argument that the “absence of nets was a
fundamental issue in this case,” presumably striving to maintain as many open options as
possible under Cenfzuy Steel. He further claims that the only time he is compelled to prove
that belts are practical is if he concedes that nets are infeasible. He also argues altemative-
ly, however, that ‘even if the judge is correct that the case turns on the practicality of belts,
I2 k the Secretary points out, a total of about 530 pages (almost half the testimony in the case) dealt with
the economical and technological feasibility of installing safety nets.
21
the Secretary showed that belts were practical in each of the instances and has thus met his
burden of proof.
Falcon, for its part, maintains that the Secretary’s case was “confused” because of his
“overzealous” enforcement policy, seeking to mandate safety netsol Falcon asserts that
the Secretary failed to prove a violation of section 1926.105(a) for absence of nets, but that
even if the Commission found such a prima facie violation, Falcon has established a
technological and economic infeasibility defense. The rest of Falcon’s argument follows the
judge’s decision focusing on the practicality of belts.
B. Secmtwy’s Rima Facie Cizse: Pnzcticd@ of Safety Bdks
Our de IU)VOreview of the exhibits and testimony leads to a finding--contrary to the
judge’s decision--that the Secretary did make ou; a prima facie case that belts were .practical
in each instance. Although it is equally applicable here, we will not repeat our discussion,
supra, concerning the scope of review and deference to the judge except to add that on the
belts issue in this case, the judge did not purport to base his decision on factors uniquely
observable by him, such as demeanor. He did not state that he was making crediiility
findings; rather, ‘he referred to the relative weight of the testimony of the witnesses. Here,
we are in as good a position as the judge to determine the practicality of belts in this case.
All Purpose Crane, Inc., 13 BNA OSHC 1236,1239,1986-87 CCH OSHD 127,877, p. 36,550
(No. 82-284, 1987). .
The holdings of the leading fall protection cases14 suggest a three-part test for
l3 While we take no position on the underlying motivation or strategy behind the Secretary’s presentation in
this case, his multi-hated approach is due at least in part to the cumbersome language of the standard itself~
For instance, any clear admission early in the case that the Secretary had cited Falcon only for the absence
of belts would have narrowed the issues in the case to the practicality of belts, a limitation the Secretary IMY
understandably have been unwilling to accept, given his view that either nets or belts would have abated the
violative conditions. Without knowing whether the judge will focus on belts as the pivotal issue, the parties
are almost always compelled to try their nets case in the alternative, making for needlessly complicated
litigation. We agree with courts that have urged the Secretary to promulgate a more precise fall protection
standard. E.g., Wiibon 4 685 F.2d at 676, and cases cited.
l4 Although this case may be appealed to the Third Circuit, that jurisdiction’s case law provideslittle guidance
for disposition of a case such as this one in which belts are shown to be practical and the nets issue need not
be reached. See, e.g., Donovan v. Adams Steel Erec., Inc., 766 F.2d 804, 805-M (3d Cir. 1W) (reinstating
judge’s affirmance of a citation for failure to provide safety nets, where judge found that safety belts for
(continued...)
22
determining practicality consisting of (1) evidence on where and how employees could have
tied off m this case, (2) the role of the “substantial portion of the workday test” or the “not
actually used test” or both, and (3) evidence on industry custom and practice. See U/~~&CWZ
I, Wilson III, and Cenhlry Steel. The results of each of these inquiries, taken as a whole,
lead us to conclude that the Secretary established a prima facie case of practicality here.
I. Case-specific Evidence on sing w
The judge, finding that the Secretary had failed to establish a prima facie case,
characterizes the record on the practicality of belts as “meager indeed.” For example, the
judge characterizes one portion of the compliance officer’s testimony recounting each of his
observations using photographs to illustrate his proposed abatement methods as “only [a]
brief .unexplained conclusion” that “the safety belt and line system would have been very
easy to do. They could have hooked up a line with a safety belt going to the area and per-
formed their task without falling.” According to the judge, “[@deed, the most that can be
said of the testimony of the compliance officers on this record is that they stated, in each
instance, that Falcon employees ‘could’ have used a safety belt.” In our view, this testimony
is hardly patently unsatisfactory. Although neither compliance officer testified, in so many
words, that use of belts was “practical,” they both considered that to be the case. As in
Century Steel, the sum and substance of the testimony of the compliance officers, taken in
context, was that safety belts were practical. Century Steel, 888 F.2d at 1403. .
The judge discounted the probative value of the compliance officers’ opinions,
ostensibly because they had not been proffered as “experts.” However, we believe that this
approach only encourages “battles of experts.” Such battles may sometimes be inevitable,
a fact both parties recognized in trying the alternative nets issue in this case. Depending on
the nature, of the standard, the violation, and the Secretary’s theory of the case, certain
14(...continued)
employees who were “constantly in motion” were both impractical and would expose employees to greater
hazard) and United States Steel Corp. V. OSHRC, 537 F.2d 780, 782 (34 Cir. 1976) (affirming an OSHRC
decision requiring safety nets for connectors, where the opinion evidence concerning the faibility of safety
belts was “diverse” and b&s were not used, thus narrowing the dispute to the net issue). Cases from other
jurisdictions that focus exclusively on the nets issue are similarly unhelpful for our purposes. E.g., Corbcsco,
hc. v. Secy of Labor, 926 E2d 422 (5th Cir. 1991) (upholding judge’s decision requiring nets).
23
situations may require the Secretary to produce an expcxt- .The title of “compliance officer”
does not ahvays carry as much weight as the Secretirn.* might hope. At the same time, the
judge neither explains why he saw fit to require “expert” testimony on the issue of
practicality, nor intimates what the qualifications of’ such an expert might be; nor does he
assure us that he took into account these lav-wtnesscts’
* significant field experience.
Wiseman, who was actually employed as an ironworkcrr for a time early in his career, has
been a compliance officer since 1974, performing approximately 1600 inspections, mostly of
construction sites, 10 to 15 percent of which were buildings at least fifteen stories tall and
about a dozen of which were over thirty stories. Ferguson had 7 years’ experience and had
conducted
. 800 inspections--over half involving the construction industry and at least a dozen
involving buildings over fifteen stories high. ii reasonably competent, alert compliance
officer conducting hundreds of inspections cannot help but observe, on a regular basis, what
ironworkers do, and in particular, where and when ironworkers tie off. Yet the judge
“accorded little probative weight” to their testimony, calling some of it “sheer unsupported
speculation.” We are unable to adopt the judge’s evaluation of the evidence here. An
experienced compliance officer’s reasonable suggestion as to how an employer could have
set up a safety line based on previous specific personal observations or on specific training
strikes us as possibly sufficient to make out a prima facie showing of practicality under the
standard. Any rebuttal evidence would, of course, have to be considered in turn. .
The judge suggests that the record contained no evidence or opinion that tying off
to perimeter cables or static lines, as prescribed by the compliance officers, had proven
successful in protecting employees from injury. In the judge’s words, “[sluch is the essence
of ‘practicality’ under sect ion .105(a).” However, not only did the compliance officers
suggest that a safety line could have been tied off to cables, but Dr. John Rumpf, a
consulting engineer whom the judge qualified as an expert in steel erection, also testified to
that effect. In addition, one of Falcon’s own witnesses testified that this practice was not
uncommon. Aho see WilliamsEntepties, 11 BNA OSHC at 1419, 1983-84 CCH OSHD at
pa 33,879.
24
In conclusion, we think that the very evidence the Judge criticizes as being inadequate
actually at a minimum supports a finding of a prima facie case with respect to the
practicality of safety belts here.
or “Nat Actually Used Test” 01 i&h
Falcon argues that “where, as here, the Secretam . alleges a failure to use safety belts,
[he] must prove that belts were not impractical in that wcxkers could have been, but were
not, protected by the use of safety belts for a substantial portion of the day,” citing FWLson
I and WWsonIII in support. The Secretary counters that the so-called “substantial portion
of the workday test” does not apply here since no fall protection devices were actually used,
b
l
citing FWson III and Century Steel. We find that the workday test does not apply in this
case, but for a different reason: the test only applies in cases in which the nets issue is
reached, and then only if some other device provided partial protection from falls?
(a) 77~ “subst(antial Portion of the Wo&iizy Test”
The substantial portion of the workday test (“the workday test”) was introduced in
Ma&tall v. Southwestern Iixdus. Contrac. & Riggers, Inc., 576 F.2d 42, 44 (5th Cir.1978), a
case involving a safety net violation under section 192,6.105(a). In that case, the evidence
showed that employees, who were engaged in securing concrete beams, were using safety
belts but were actually tied off only “about one-half of the time.” Id. at 43 n.1. To the
. court
this meant that the employees were not tied off, and were thus totally unprotected, for a
“substantial portion of the workday.” Id. at 44 n.2,45. The court found that because safety
belts were not and could not be used in any meaningful sense for a substantial portion of
the workday, the employer should have provided some “means of reasonably continuous fall
protection” like nets. Id. at 45.
The workday test was then modified in Willron I. In ?Wson I, a case similar to
Southwesternin that the Secretary sought to prove that nets were required even though belts
were in use, the test was refined to prevent the Secretary from arguing that whenever safety
l5 This scenario presents the missing third prong of the Cenfwy Steel holding, see supm: (1) Secretary cites
for absence of nets where no device at all is used, (2) Secretary cites for absence of device other than nets, (3)
Secretary cites for absence of nets where another device is already in use.
belts fail to provide “continuous” protection, ie., if workers are not tied off “at all times,”
the employer must install nets as back-up protection. WilLson I, 685 F.2d at 674, 676. The
court in wiuron III confirmed this reading of WilUsortI, noting that “the [wirrson Ij court
concluded that the employer could not be required to provide nets to bolster the practical
protection already provided by safety belts for a substantial portion of the work day.”
WEllsonIII, 773 F.2d at 1386. Thus, under the Southwestern- WZson I workday test, if belts
are available but the Secretary demands that nets be installed as well, he has the additional
burden of showing that the belts are, in effect, impractical because they are not tied off for .
a substantial portion of the workday. In the words of the W&on III court:
[t]he court in willron I held that whether the safety belts used in that case
were practical as protective devices depended on the amount of time during
. the work day that they could be used. The court’s conclusion was that “the
inability to use safety belts during a significant period of the work day renders
them ‘impractical’ within the meaning of section .105(a).” 685 F.2d at 675.
W&on III’ 773 F.2d at 1385. However, since the Secretary in W&on I produced no
evidence demonstrating that Willson’s employees did not use safety belts during a substantial
portion of the workday, he failed to prove impracticality and the court vacated the safety
nets violation. Again, willson I and Southwestern were cases, unlike the case now under
consideration, in which the burden was on the Secretary, in order to prove a nets violation,
to show that belts were impractical, i.e., employees were not tied off for a substantialportion
of the workday. The workday test could have been fatal to the Secretary’s case here-or
could at least have compelled a remand--had we not found that the preponderance of
evidence indicates that belts were practical, thus truncating our inquiry into the nets
violation. Had we reached the nets issue in this case, depending on the evidence adduced,
the Secretary might have used the test to show that nets were required because belts, even
when tied off at the appropriate times, did not protect each of the cited employees for a
substantial portion of the workday. On the other hand, Falcon might have relied on the test
26
to show that nets were not required, because employees were already protected by belts for
a substantial portion of the workday.16
We therefore reject Falcon’s contention that the Secretary failed to prove an essential
element of his case--that belts could have been, but were not, used for a substantial portion
of the day. The workday test cases do require the Secretary to prove that employees are
not tied off for a substantial portion of the workday when his ultimate goal is to prove that
belts are impractical. None of these cases, on the other hand, makes it incumbent on the
Secretary to prove the converse, that employees are tied off for a substantial portion of the
workday, when his ultimate goal is to prove that belts are practical, as opposed to
impractical. To sum up, the workday test is used only to show impracticality, not practicality,
of belts.
(5) l%e WimtActuaUyUsed Test”
As a final note, the Secretary argued that the workday test is inapplicable here
because no fall protection devices were actually used in this case. While it is true that in
each of the four instances here, belts were, in some sense, not actually used, our review of
the cases construing the so-called “not actually used” test suggests that this one does not fall
into that category. The “not actually used” test reflects a long line of judicial and
Commission decisions holding that section 1926.105(a) is violated if none of the listed-safety
devices is being used. WilLsonIII, 773 F.2d it 1383. Many of those cases involve connectors,
or other ironworkers performing an operation that keeps them continually in motion, under
circumstances in which fall protection is not only literally “not used,” but also not required,
encouraged, ensured, or even provided or available. See Centwy Steel, 888 F.2d at 1404;
Willson III, 773 F.2d at 1383-84 and cases cited; and most recently, Peterson Bms. Steel Erec.
Co., (NO. 90-2304, April 27, 1993). Therefore, contrary to the Secretary’s characterization,
this is not a case in which no fall protection devices were used. Rather, the etidence shows
that many employees at the site involved in the same or similar activities as those cited were
l6 As it happens, there is no need to remand this case to gather evidence on what portion of the workday
employees were exposed and not tied off during the activities in question. However,the parties will never
know definitively in advance whether the judge or the Cmu&sion will reach the nets issue, so they should
introduce evidence on this point in section 1926.105(a) cases.
actually using belts and tying off appropriately, and. moreover, that even those seven
employees observed not using belts were supposed to tx using them.
In summary, the “not actually used” test does not end our inquiry because belts were
used in this case, and the workday test is inapplicable not. as the Secretary argues, because
this case is like W&on III and Cenhuy Steel in that no fall protection devices were actually
used (here, safety belts were generally in use), but txca~ it is unlike Southwestern and
WZkon I in that this is not a case that turns on the absence of nets.
3. hulusby Custom and Pm&x
Falcon observes in its brief that unless the term “impractical” in section 1926.105(a)
is interpreted in the context of practice and custom in the steel industry, the requirements
of the fall protection standard are impermissibly vague, citing Century Steel, 888 F.2d at
1403-05. In Centzuy Steel, the court observed:
[wlhile evidence of the steel erection industry’s custom and practice might well
shed little light on the feasibility of using safety belts in the circumstances here
at issue, it is clearly relevant to the question of practicality as reflected by the
industry’s actual usage.
Id. at 1405. (emphasis in original).
Our review of the record revealed one of Falcon’s own exhibits, an August 14, 1987
submission by the Safety Advisory Committee of the Structural, Ornamental, Rigging and
Reinforcing Steel Industries, representing both labor and management, which provides
comments on the Secretary’s November 25, 1986 proposed rulemaking on Subpart M fall
protection. In a section entitled “Iron Workers Moving From Point to Point,” the
Committee lists a number of activities it thinks should be exempt from the 6-foot lanyard
tie-off requirement. Among the sixteen different activities listed were “1. Bolt up man
moving from one location to another to install bolts;” and “2. Welder moving from one
location to another to weld.” Notably, every single activity speaks of a person “moving from
one location to another.” The last sentence of the section reads: “However, it should be
understood that once ironworker employees have arrived at their work station, they should
be protected from falls as required.” Testimony of both the Secretary’s and Falcon’s
28
witnesses generally supported this view, and Falcon does not attempt to refute the basic
principle, relying instead on an unpreventable employee misconduct defense.
A fair statement of industry practice and custom on safety belts, then, is that
ironworkers move freely about when they are actually en route from one location to another,
but that they tie off when stationary. Barring proof of an exception to this general rule,
which was not forthcoming from Falcon, the ironwo.rkers involved in this case should all have
been tied off, as all were sitting or standing in place.
The judge, finding that the Secretary did not establish even a prima facie case, did
not consider the merits of any unpreventable employee misconduct defense. Since we find
that the Secretary did establish a prima facie case showing that safety belts were practical
in each instance and that Falcon failed to rebut that case with evidence proving that belts
were in fact impractical, we turn now to Falcon’s affirmative defense.
As we have already stated, the evidence in this case demonstrates that safety belts
were not only practical but were generally used elsewhere on the site by other employees
under circumstances similar to the ones cited here, yet the compliance officers observed at
least seven employees who failed either to wear a belt or to tie off. The issue remains
whether Falcon may defend against these apparent violations of section 1926.105(a) by
establishing the unpreventable employee misconduct defense. To prove this affirmative
defense, an employer must show that:
(1) it had established work rules designed to prevent the violation;
(2) the work rules had been adequately communicated to its employees; and
(3) it had taken steps to discover violations, and had effectively enforced the
rules when violations had been discovered.
Gay Concrete Rude., 15 BNA OSHC 1051, 1054-55, 1991 CCH OSHD 1 29,344, p. 39,452
(NO. 861087, 1991); Jensen Conm. Co., 7 BNA OSHC 1477, 1479, \1979 CCH OSHD
1 23,664, p. 28,695 (No. 764538, 1979). Although Falcon failed to raise this affirmative
defense in its answer, Falcon’s counsel raised the possibility late in the hearing that the issue
may have been tried by consent. For the reasons that follow, we find that even if Falcon
had properly pleaded this affirmative defense, it has not been established on this record.
29
Falcon claimsin its brief that any evidence of employees failing to tie off is evidence
of four isolated instances of employee misconduct, evidence which ‘does not support a viola-
tion of the Act, citing Penruylvania PWE& Light CO. v. OSHRC, 737 F.2d 350, 354 (3rd Cir.
‘1984) (“MkU,“). In the pp&L case, which dealt with a single employee failing to comply
with an electrical grounding standard, the court found that the Act does not impose strict
liability on employers for isolated and idiosyncratic instances of employee misconduct, and
that PP&L had successfully defended itself on that basis. The Secretary, for his part,
emphasizes that seven employees, not one individual as in pp&L, were involved here. He
argues that the cumulative effect of all the cited instances undermines any claim that the
incidents are “isolated.” We agree. The misconduct here is more systemic than it is
idiosyncratic.
The evidence in this case does show, as Falcon claims, that: Falcon had a policy
requiring its workers to tie off when bolting up steel, whenever tying off was feasible and
practical, Le., whenever they were stationary and not moving from point to point; Falcon
provided safety belts and lines for this purpose; and this subject was addressed at safety
meetings. At the same time, however, one Falcon foreman expressed the result of these
efforts this way: “Most of the men complied. You might have to tell some guys sometimes
to tie off.‘? He acknowledged that he had done just that on occasion. In fact, although the
evidence showed that Falcon had threateried to discharge employees who failed to. tie off
in appropriate circumstances, there was no evidence that it had ever acted on that threat.
For example, one ironworker who had been with Falcon for 13 years testified that the union
steward, who ran the safety meetings, had at one point warned the crew that “the next
person who l . . was caught not tied off [would be] fired or terminated from his job.” This
testimony suggests that Falcon supervisors were aware of what had developed into a
recurring problem. In B-G Maintenance Mgt., Inc., 4 BNA OSHC 1282,1283,1976-77 CCH
OSHD II 20,744; p. 24,881 (No. 4713, 1976), a case in which the Commission denied the
employer’s unpreventable employee misconduct defense, the employer was “aware . . . of
the tendency of its employees not to use safety belts and lifelines. Indeed, its supervisory
personnel had seen such violative conduct before, but had never disciplined an employee on
30
that account.” Cf: Cemo Metal prods. Div., ihrmw~ Grp.. h., 12 BNA OSHC 1821, 1986-87
CCH OSHD ll 27,579 (NO. 78-5159, 1986) (no emknce that supervising personnel were
aware of violations of work rule involving math Ine shut -down procedures).
In light of the less than compelling evidence on communication and enforcement of
the work rule, the incidents here seem to be four In ;in ongoing series, representative of a
pattern of disregard for the work rule rather than, tis t-&on would have us conclude, four
separate coincidences during which the compliance: officer happened to be present when an
errant employee strayed from the routine. In Daniel Consrr. Co. ofAlabama, 9 BNA O$HC
2002, 2006, 1981 CCH OSHD II 25,553, p= 3 186263 (No. 13874, 1981), where four
employees out of 2,500 to 3,000 were spotted without hard hats, the Commission held that
the employer’s workrule was uniformly and effeitively enforced, and that noncompliance was
unpreventable. This case involves a much closer ratio: four incidents involving seven out
of a total of approximately thirty employees. (We find this rate of noncompliance
significant, even taking into account that the inspections spanned the course of a month.)
That the incidents here involved pairs of employees instead of single individuals
exacerbates the degree of noncompliance in this case. In Daniel Intl. C&p., Brvwn &
WilliamsonRoj., 9 BNA OSHC 1980, 1982-83, 198 1 CCH OSHD 1 25,492, p. 31,790 (No.
15690,1981), all four members of a crew, out of a total of 175 ironworkers on the site, failed
to tie off. The Commission noted that where all the employees participating in a particular
.
activity violate an employer’s work rule, the unanimity of such noncomplying conduct shows
weak enforcement of the rule. Id. at 1983 n.9, 1981 CCH OSHD at p. 31,790 n.9. Similarly,
in Daniel Constz Co., 10 BNA OSHC 1549, 1982 CCH OSHD II 26,027, p. 32,672 (No.
16265, 1982), the compliance officer observed five failures to tie off involving two pairs of
employees, a threesome including a supervisor, and a single employee. The Commission
held that “looking at the record as a whole, the instances of employees failing to tie off their
lanyards are too numerous to permit a conclusion that Daniel’s rule . . . was effectively
enforced.” Id. at 1552, 1982 CCH OSHD at p. 32,672. Accord Restressed System, Inc., 9
BNA OSHC 1864, 1866, 1981 CCH OSHD ll 25,358, p. 31,49798 (No. 16147, 1981) (“a
number
I of proven instances of noncompliance with the safety belt rule” together with an
31
employee’s testimony that “he did not always tie off and had seen other employees wearing
safety belts without tying off” blocked the defense).
Also to be taken into account is evidence of prior violations or instances of
noncompliance. Although Falcon’s safety consultant’s reports include notations on a number
of tie-off violations, as mentioned in connection with the two other citation items in this case,
using the results of a company’s voluntary self-audits against it is counterproductive. see
General Motors Corp., GM Parts Div., 11 BNA OSHC at 2066, 1984-85 CCH OSHD at p.
34,611. A history of previous citations, on the other hand, tends to show that the employer
knew its workrule communication and enforcement efforts required improvement. Dun-Par,
676 F.w at 1337. Falcon had been cited twice before, most recently in April 1989, for
bolters not being tied off. In one instance, emphyees were on structural beams; in another,
they were installing bolts in a concrete deck, outside the perimeter guard. In PP&L,
instances of lax enforcement of safety rules raised at the hearings were dismissed as having
little or no probative value because they related to incidents long before the.accident, and
there was no evidence of prior citations. PP&L, 737 F.2d at 359. Here, the incidents are
not from the remote past, but quite recent and remarkably similar to the cited instances.
For all these reasons, we find that Falcon failed to establish an unpreventable
employee misconduct defense. We therefore find a violation of section 1926.105(a) for
failure to use safety belts. Accordingly, iteZn 1 of citation no. 2 in Docket No. 89-3444
. and
item 2 of citation no. 2 in Docket 89-2833 are affirmed.
D. WiyFlness
As with the other vacated citation in this case, the judge did not reach the issue of
willfulness; Falcon also does not address it. The Secretary argues the willfulness issue only
in the broader sense of Falcon’s failure to provide “fall protection” for its workers.
We find the Secretarv’s
/ burden in showing willfulness in this context to be somewhat
heavier than his .burden in other situations. The man basket and perimeter cable violations,
both of which we found to be w1llful, required affirmative decisions by Falcon’s supervisors
on a daily basis, decisions direct 1’
y attributable to Falcon’s management alone. By contrast,
individual employees have some degree of discretion in deciding whether and when to wear
32
safety belts. This is not to say that an employer may not ever be held liable for a willful
violation of a safety belt or other personal protective equipment standard. In William
EnteprLse,s,11 BNA OSHC at 1420, 198384 CCH OSHD at p. 33,880, for example, despite
repeated warnings from a compliance officer over the course of a month, the employer
obstinately refused to take any steps to provide and ensure the use of appropriate fall
protection devices (temporary floors and safety belts). The compliance officer posted an
imminent danger notice and warned employees and supervisors about the violative condi-
tions, to no avail. A return trip to check up on the situation several months later proved
that the problem was still recurring. The Commission affirmed the violation as willful. In
contrast, we find that Falcon’s compliance problem here, while serious and deserving of
concentrated remedial measures, does not ambunt to “intentional, knowing or voluntary
disregard for the requirements of the Act, or . . . plain indifference to employee safety.”
General Motors Cop., Electra-MotiveDiv., 14 BNA OSHC 2064, 2068, 1991 CCH OSHD
ll 29,240, pi i9,168 (No. 82-630, 1991) (consolidated).
E. Penal@
Having considered the statutory criteria, we assess a single penalty of $1,000 for these
consolidated violations.
In summary, we affirm item 3 of citation no. 2 in Docket No. 89-3444 as a. willful
violation of section 1926.55O(g)( 2) and assess a $10,000 penalty; we affirm item 4 of citation
no. 2 in Docket No. 89-3444 as a willful violation of section 1926.75O(b)(l)(iii) and assess
33
a $&o()() penalty; we affirm item 1 of citation no. 2 in Docket No. 89-3444 and item 2 of
citation no. 2 in Docket 89-2833 as serious violations of section 1926.105(a) and assess a
single penalty Of $1,000.
. Velma Montoya
Commissioner
Dated: hril 27. 1923
FOULKE, Chairman, concurring in part and dissenting in part:
me I concur with most of the findings contained in the main opinion, 1 disagree
with the characterization of items 1 and 2 of citation no. 1 as willful. In sum, the main
opinion accurately cites the law on the determination of willfulness, but misapplies that law.
The evidence in the record of this case simply does not support a characterization of
willfulness for either of these violations.
In citation no. 1, item 1, Falcon is cited for an alleged violation of 29 C.F.R. 5
1926.550(g)(2), restricting the use of personnel platforms known as “man baskets.” After
correctly finding that the facts support a finding of a violation, the judge concludes that a
characterization of willfulness is also supported on two grounds: (1) in disregard for the
recommendation
. from its consultant, Falcon chose to use the man baskets; and (2) Falcon
wrote letters to the general contractor complaining about the unavailability of elevators to
work floors. This evidence, the judge concludes, establishes the requisite state of mind for
a willful characterization.
In, affirming this determination, the majority opinion is inconsistent. First, the
majority opinion unequivocally states that employers should not be discouraged from seeking
advice from consultants, and therefore will “ascribe neither credit nor blame for the results
of’ Falcon’s self-audit. I agree, but point out that in so stating the majority negates one of
the two grounds used by the judge to support his finding of willfulness. Second, in the
letters to the general contractor, Falcon criticizes it for having elevators that run only as high
as the 38th floor. Falcon complains that for its employees to have to take the elevator to
floor 38, and then climb the additional floors by ladder is too slow. Because this process
takes too long for employees to :wive at their work stations, Falcon also complains that the
arrangement is prohibitivelv I cxpctnsive. In its briefs to the Commission, Falcon argues that
this practice also creates a grc~er hazard, for the reasons addressed in the main opinion.
Although I agree that a grr;lter hazard defense is not shown on this record, Falcon’s
concerns in this regard are crrtwdy lqitimate enough to cast doubt on the majority’s finding
of willfulness.
That these grounds are not supportive of the violations being characterized as willful
is demonstrated in the majoritvd qxnm bvd the fact that the majority chooses not to address
2
their me&. Instead, the majority opinion chooses to “- base [its] finding of willfulness on
an entirely different premise: the uncompromising language of the standard itself.”
ms matter does not require discussion at great length. A finding of willfulness based
on the “uncompromising language of the standard” alone is a practice heretofore
unrecognized in Commission law. In contrast, the Commission has consistently noted in its
analysis of willfulness that proof of knowledge by the Secretary is required for a finding of
any violation. Thus, something more--a state of mind of conscious disregard or plain
indifference--must be evidenced. As stated earlier, the majority opinion correctly identifies
the precedent in the area of willfulness, but here, chooses to depart from that law entirely.
Based on the aforesaid reasons, I conclude that for item 1 of citation no. 1, the
characterization of this violation as willful is not supported by the evidence in this record,
or by the law. I would find this a serious violation and hold that the judge erred in
characterizing this violation as willful.
In citation no. 1, item 2, Falcon is cited for an alleged violation of 29 C.F.R.
1926.7SO(b)( l)(“‘111
) ) re q uiring wire-rope cables at the perimeter of open-sided temporary
floors. Once again, the characterization as willful is not supported by the facts presented
at the hearing.
The main opinion relies exclusively on Falcon’s “prior citations for violations of the
same standard” and “[o]ur affirmance today of two other violations related to fall hazards”
to find willfulness. In doing so, the main opinion ignores that the facts herein were suffkient
to lead the judge to vacate this citation item entirely based on his reading of the law. Under
these circumstances, where a legitimate question of law exists, I cannot agree with a finding
of willfulness and would instead chqracterize this violation otherwise.
Edwin G. Foulke, Jr.
Chairman
ADril 27, 1993
Dated
--
UNITED STATESOF AMERICA
OCCUPATIONAL SAFETY AND t=EALTH REVIEW COMMISSION
1825 K STREET NW
4TH FLOOR
WASHINGTON, DC 20006- 1246
FAX
cCMAf202) 634-4008
FTS (202)6WJOO8
SECRETARY OF LABOR, ..
..
Complainant, ..
..
v. .. Docket Nos. 89-2883 & 89-3444
FALCON STEEL COMPANY, INC., :
.
Respondent. ..
.
NOTICE OF COMMISSION DECISION
The attached decision by the Occupational Safety and Health Review Commission was issued on
April 27,199X 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 ot’ the Occupational Safety and Health Act ot’ 1970, 29 U.S.C. $ 660.
FOR THE COMWSSION
April 27, 1993 .
Date
Executive Secretarvd
Docket Nos. 89-2883 & 89-3443
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
1Marshall H. Harris, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
14480 Gateway Building
3535 Market Street
Philadelphia,. PA 19104
David Westermann, Jr., Esq.
Westermann & Tryon
61 Hilton Avenue
PO Box 6006
Garden City, New York 11530
Michael H. Schoenfeld
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 417/C
1825 K Street, N.W.
Washington, D.C. 20006-1246
UNITED STATES Of AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET N.W.
4Tt-i FLOOR
WASHINGTON D.C. 20006-l 246
Secretary of Labor, .
Complainant, 1
v. Docket Nos. 89-2883 and 89-3444
Falcon Steel Company, Inc. :
Respondent. :
NOTICE OF DOCKETING
The Administrative Law Judge’s Report in the above referenced case was docketed with the
Commission on June 28, 1991. The decision of the Judge will become a final order of -the
Commission on July 29, 1991 unless a Commission member directs review of the decision on
or before that date. ANY PARlY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW. Any such petition
should be received by the Executive Secretary on 01 before July 18, 1991 in order to permit
sufficient time for its review. See Commission Rule 91, 29 C.F.R. Q 2200.91.
All further pleadings or communications regarding this case shall be addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1825 K St., N.W., Room 401
Washington, D. C. 20006-l 246
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel- for Regional Trial Litigation
Office of the Solicitor, US. DOL
Room S4004
200 Constitution Avenue, N.W.
Washington, DC. 20210
If a Direction for Review is issued by the Commission, then the Counsel for Regional Trial
Litigation will represent the Department of Labor. Any party having questions about review rights
may contact the Commission’s Executive Secretary or call (202) 634-7950.
FOR THE COMMISSION
June 28, 1991
Date Ray H. Darling, Jr.
Executive Secretary
Docket No, 89-2083 ant -3444
NOTICE IS GIVEN TO THE FOLLbWING:
Daniel 3. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., NW.
Washington, DC. 20210
Marshall H. Harris, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
14480 Gateway Building,
3535 Market Street
Philadelphia, PA 19104
David L; Westerman, Jr., Esq.
Westerman and Tryon
61 Hilton Avenue
P.O. Box 6006
Garden City, New York 11530
Stephen C. Yohay, Esquire
Janet L. Miller, Esq.
Jones, Day, Reavis & Pogue
Metropolitan Square
1450 G Street, N.W.
Washington, DC. 20005-2088
Michael H. Schoenfeld
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 417/C
1825 K Street, N.W.
Washington, D.C. 20006-l 246
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
v. l
. Docket Nest 89-2883
and 89-3444
FALCON STEEL COMPANY, INC. (Consolidated)
Respondent.
Appearances:
Michael Rosenthal, Esq.
U. S. Department of Labor
Philadelphia, Pennsylvania
For Complainant
Stephen C. Yohay, Esq.--
Janet L. Miller, Esq.
Jones, Day# Reavis & Pogue
Washington, D.C. and Cleveland, Ohio
and
David L. Westerman, Jr., Esq.
Westerman and Tryon
Garden City, New York
For Respondent'
BEFORE: MICHAEL H. SCHOENFELD,
Judge, OSHRC
DECISION AND ORDER
Backaround and Procedural History
This case arises dnc3erthe Occupational Safety and Health Act
of 1970, 29. U.S.C. $5 451 - 678 (1970) ("the Act").
1
Respondent *as initially, and for only a short time,
represented by a lay representative. After the hearing, Jones,
Day, Reavis & Pogue withdrew as counsel for Respondent. Filing the
post-hearing brief on behalf of Respondent was Westernan and Tryon.
1
On August 16 and 17, 198% and again on August 28, 1983,
through September 27, 1989, the sixty story high rise construction
site located at 16th and Chestnut Streets in Philadelphia,
Pennsylvania was inspected by Compliance Officers (VO") of the
Occupational Safety and Health Administration (*tOSHA1l)
of the U.S.
Department of Labor. Falcon Steel Company, Inc. ("Respondent") had
employees engaged in steel erection working at the site which is
commonly referred to as Liberty Place, Phase II or "Liberty II."
As a result of the earlier inspection two citations were
issued
. on September 11, 1989, to Respondent alleging that it had
committed four serious and two Willful violations of the Act.
Respondent timely contested the citations. This contest was
docketed before the Commission as Docket No. 89-2883. The latter
inspection resulted in the issuance on November 13, 1989, of three
citations alleging six willful, twelve serious, and five other than
serious violations of the Act. Again, Respondent timely contested
the citations. This second matter was docketed with the Commission
under Docket No. 89-3444. The matters were consolidated for trial
and decision.
After extensive prehearing activities, a hearing was held from
August 14 through 21, 1990. No affected employees or authorized
representative of affected employees sought party status. Inasmuch
as new counsel for Respondent was not engaged until December 6,
1990, time for filing post-hearing briefs was extended. Briefs were
filed on March 4 and 11, 1991. Neither party availed itself of the
opportunity to request permission to file a reply brief.
2
L
- -
Jurisdicfion
The complaints allege and Respondent does not deny that it is
a corporation engaged in the business of steel erection, had
employees at the inspected work site so engaged, and that it uses
tools, materials and supplies originating outside the Commonwealth
of Pennsylvania. (Complaint, q II; Answer, q 2). I so find.
Accordingly, I conclude that Respondent is an employer within
the meaning of 5 (3)(5) of the Act.'
DISCUSSION
--Numerous alleged violations were subject to either withdrawal
by the Secretary or settlement -(TR 8, 9, 279).3 Those alleged
violations which were neither withdrawn nor settled were- heard,
argued, and briefed?
Docket No. 89-2883
Citation No. 2, Item No. 2
Docket No. 89-3444
Citation No. 2, Item No. 1 .
29 C.F.R. § 1926.105(a)
Fall Protection
The cited standard, 29 C.F.R. 5 1926.105(a) (1989), reads as
follows:
* Title 29 U.S.C. g 652(5).
3 References to the record are as follows; TR - transcript
of hearing; Exhibits 1,2, 3, Etc. (1 through 46), Complainant's
Exhibits; Exhibits A, B, C, Etc. (A through JJJJ).
4 The following items were tried. Docket No. 89-2883,
Citation No. 2, Item NO. 2. Docket No. 89-3444, Citation No. 1,
Items 1 and 9. Citation No. 2, Items 1 through 6.
-1926.105 safety Nets
(a) Safety nets shall be provided when workp-
laces are more than 25 feet above the ground
Or water surface, or other surfaces where the
use of ladders, scaffolds, catch platforms,
temporary floors, safety lines, or safety
belts is impractical.
The application of this
I standard has, to say the least, been
the subject of extensive litigation. The Court of Appeals for the
District of Columbia Circuit in Century Steel Erectors, Inc. V.
Secretaxy:, 888 F.2d 1399 (1989) (Venturvgg) reviewed its decisions
in the Willson cases' and in Donovan v. Williams Entermises, Inc.,
744 .
F..2d 170 (D. C. Cir. 1984).
Assigning burdens of proof 'In cases brought under the cited
standard occupied much of the Court's decision. After extensive
discussion
. the Century court observed;
The standard established by section .105(a)
contains several elements: those that the
Secretarv must prove deoend on the nature of
the violation described in the OSHA citation.
888 F.2d at 1402. (Emphasis added.) The court went on to distin-
guish between those cases in which none of the fall protection
devices listed in section l 105(a) were used and the Secretary cited
an employer for the failure to provide safety nets as opposed to
those cases in which an employer is cited under section .105(a) for
failure to provide fall protection other than safety nets. The
court set out two dH!erent burdens of proof.
In those cases in llhrcnno devices were used and the employer
' L R. Willson 6 jms. Inc. v. Donovan, 685 F.2d 664 (D.C.
Cir. 1982') (VgWillson 4
T'(j: Brock v. L.R. willson & Sons, 773 F.2d
1377 (D.C. Cir. 1985) "*tiuson lIItl).
was cite&-for failure to provide nets, the Century court said;
[T]he Secretary will establish a prima facie
case upon showing that the employees were
exposed to a fall in excess of twenty-five
feet and that none of the protective measures
was used.
Id. (Citations omitted.) On the other hand;
[W]hen .an employer is cited under section
105(a) for failure to provide a fall protec-
kon safeguard other than safety nets, the
Secretary must prove that its use is practi-
cal.
888 F.2d at 1405. Thus, under the Century holdings, analysis must
begin with a determination as to the nature of the alleged
violations. . Complainant% statement as to the appropriate
requirements for a prima facie set out in her post-hearing brief
(p. 24) is applicable only if, under Centurv, the citations at
issue charge that no safety devices were used and Falcon was cited
for its failure to provide nets.
Unfortunately, this case does nat fall easily into one of the
two categories established by the Century holding. It cannot be
reasonably determined by reading the citations themselves whether
the nature of each of the alleged violations of section .105(a) is
based upon (1) the failure to use any fall protection combined with
a lack of safety nets, or (2) the failure to use safety belts -- an
enumerated fall protection safeguard.
Indeed, the alleqed violations as described in the citations
themselves are discrepant. In Docket No. 89-3444, general language
introducing the three ‘?nstances” of alleged violations of section
0105(a) I merely repeats the wording of the standard.' The citation
goes on to describe each instance of an alleged violation in more
detail. The detailed description of instance (a) is silent as to
both nets and belts7 while instance (b) describes employees not
using safety belts', and instance (c) is not specific but fairly
infers a- failure to use belts in that it is hard to envision how
and employee would Wse" safety netso The citation in Docket NO.
6 This introductory paragraph reads:
Safety nets were not provided when .
.. workplaces were more than 25 feet
above the ground or water surface,
or other surfaces where the use of
ladders, scaffolds, catch platforms,
temporary floors, safety lines, or
safety belts was impractical:
7 The citation describes instance (a) as follows:
a) 16th and Chestnut Streets, Liber-
ty Place II, Philadelphia PA 19103,
East Side of The 48th Floor of The
Tower. Observed 8 /29/89
8 Instance (b) is described as:
b) 46th Floor - employees bolting up
steel were not using safety belts,
where there was a potential of fall-
ing 46 floors. Observed 8/29/89
9 The citation describes Instance (c) as follows:
c) Southwest Corner of The 4th
Floor of the Retail Section - fall
protection was not provided and used
by an employee working outside the
perimeter protection where there was
a potential of falling 4. floors.
Observed g/7/89
8902883,~ifter the same introductory language, states, in pertinent
part, that Qmployees were not wearing safety belt and lanyard or
provided any other equivalent fall protection." Thus, based on the
citations themselves, it cannot be determined if OSHA cited Falcon
for failure to provide one of the enumerated fall protection
devices or for a failure to provide safety nets.
The complaints in these cases add little illumination.10 In
Docket No. 3444, paragraph XXI(c) of the complaint describe& the
three instances by again using an introductory paragraph repeating
the language of the standard" combined with a separate description
of e&h instance.12 In Docket No.-89-2883, the relevant paragraph
lo Under Commission Rule 35(b)(3), 29 C.F.R. 5 2200.35.(b)(3)
(1989) I the complaint is to contain a separate subparagraph which
"clearly and conciselyl@ states;
The factual basis for each allegation neces-
sary to establish that the cited circumstanc-
es, conditions, practices or operations vio-
lated the cited provision of the Act, stan-
dard, regulation, rule or order
11 The introductory paragraph used in the complaint reads:
Respondent was in violation of 29 C.F.R.
5 1926.105(a) on August 29 and September 7,
1989, in that in three instances observed by
the compliance officer respondent did not
provide safety nets when workplaces were more
that 25 feet above ground or other surface
where the use of ladders scaffolds catch
platforms; temporary floors or safety belts
was impractical:
I2 The complaint describes each instance as follows: .
i) On August 29, at the East Side of the 48th
Floor of the Tower, the compliance officer
observed two employees bolting steel. One had
a safety belt but was not using it. The other
--
of the complaint mimics the terms of the standard itself/
The citations were issued based upon the recommendations of
two compliance officers who inspected the worksite. Where, as
7
here, there is ambiguity in the language of a citation, the
rationale of the issuing compliance officer as set forth in his
testimony can be used to clarify the ambiguity. See t Martin v.
OccuDational Safety and Health Review Commission, 111 s* ct. 1171
(1991). Both compliance officers testified as to the reasons why
they recommended the citations be issued. Additionally, how the
Compliance Officers believed abatement could have been accomplished
.
is strong evidence at to what--each of them thought was the
essential nature of the violation at the time the citations were
did not have a safety belt. Respondent did
not provide nets. [Instance a]
2) On August 29, 1989, at the 46th floor two
employees (sic.) the compliance officer ob-
served two employees working alone (sic.) the
edge of the building bolting up steel. Nei-
ther employee was using a safety belt and no
nets were provided. [Instance b] .
3) On September 7, 1989 at the Southwest
corner of the 4th floor the compliance officer
observed an employee working outside the
perimeter protection. He was not wearing a
safety belt and no nets were provided. [In-
stance c]
l3 Paragraph XI of the complaint in Docket No. 89-2883 states:
(c) Respondent was in violation of 29 C.F.R.
1926.105 (a) on August 17, 1989 in that safety
nets were not provided when workplaces were
'more that 25 feet above the ground or water
surface or other surfaces where the use of
ladders, scaffolds, catch platforms, temporary
floors, safety lines, or safety belts were
impractical.
drafted. - .
In Docket ~0, 89.3444, compliance officer Wiseman testified as
to instance (a) that he recommended the issuance of the citation
because employees were working along the edge of a floor without
fall protection - meaning without tying off safety belts and in the
absence of safety nets (TR 44). He thought Falcon could have
remedied the hazard created by instance (a) by either installing
nets or having the employees use a safety belt and lanyard system
(TR 54-55). The CO recommended the issuance of a citation
regarding instance (b) because "[h]ere again, employees [were]
.
working at the perimeter of the building without protection (TR
48) l He opined that nets or safety belts could abate the hazard
(TR 56). ,Similarly, instance (c) was cited because an employee was
seen outside a perimeter cable without fall protection (TR Si), a
situation the CO thought could be remedied by either safety nets or
the use of safety belts (TR 57). Compliance officer Furgeson
recommended issuance of the citation alleging a violation of
section .105(a) in Docket No. 89-2883 because he observed two
employees sitting on the edge of a floor drinking coffee ltwithno
fall protection whatsoever." Asked by what he meant by fall
protection, he replied "They were not tied off. There was no safety
net, no available protection there." (TR 285-286). In describing
how to abate this al:eqed violation the CO spoke of tying off
safety belts (TR 287-288).
The testimony of the two compliance officers indicates that
their belief that Falcon could have enforced the use of safety
belts and-lanyards or could have installed safety nets led to the
issuance of the citations in these cases. It is thus clear that
both of the compliance officers, in issuing their citations, were
of the belief that the use of safety belts was practical at the
worksite. The ambiguous citations and complaints are compatible
with the initial reasoning of the Compliance Officers. I thus find
in this case that OSHA, through its Compliance Officers, issued
citations which charged Falcon with violating section .lOS(aj by
failing to provide a fall protection other than safety nets, i.e.,
safety belts.
.
For the above reasons, I -hold that in order to show a
violation of the cited standard in this case Complainant bears the
burden of proving that the use of safety belts for Falcon employees
at Libdrty II was practical. Century Steel Erectors, Inc. v.
SeCretarY, 888 F.2d 1399 (D.C. Cir. 1989).
As was the case in Century, the Secretary's prima facie case
must include a showing that the use of safety belts (in each cited
instance) was practical. If such a case is made, consideration
must then be given to Falcon's rebuttal evidence, if any, relevant
to the question of the practicality of using safety belts. Where
an employer rebuts the prhma facie showing of practicality, or any
other element of her pr:x facie case;
the Secretary bears the ultimate burden of
proving, by a preponderance of the evidence,
that the employer indeed violated the regula-
.tion.
888 F.2d 1399. (Citations omitted.)
For the following reasons, I conclude that the Secretary has
-lO-
failed to-make a prima facie case that the use of safety belts was,
under the conditions present upon inspection, practical.
The record in this case as to the practicality of the use of
safety belts and lanyards is meager indeed. As to each of the four
allegedly violative situations, the compliance officers testified
that they had observed employees of Falcon exposed to the requisite
fall hazards and that in each situation, the employees were not
wearing safety belts, or if safety belts were worn, that the
lanyards used to secure the belts to a safety line or solid object,
were not tied off (TR 44, 48, 51, 285-286). While this evidence is
relevant to the factual issues of non-compliance and employee
exposure to hazardous conditions, it is not evidence of the
practicality of using life lines and safety belts. Although both
.
.
compliance officers mentioned life lines and safety belts they were
not closely questioned as how such belts and lanyards could be used
under the circumstances encountered at the cited workplace.
Addressing instances (a) and (b) in Docket No. 2883, compli-
ance officer Wiseman gave only the brief unexplained conclusion
that;
the safety belt and line system would have
been very easy to do. They could have hooked
up a line vlth a safety belt going to the area
and performed t,?e:r task without falling.
(TR 56-57). As to 1~st.r.x :c>, compliance officer Wiseman opined
that the exposed employee -orkmg outside the perimeter protection
could have tied off 5;s safety belt to an existing steel cable
shown in photographs Exhlblts 6 & 7). Compliance officer
Furgeson, testifying ;,? Zocket NO. 89-3444, stated that the
employees shown sitting at the edge of an open-sided floor could
have been protected from the fall hazard by safety belts and
lanyards if they had been wearing safety belts with lanyards tied
off to a static line which, in turn, could have been placed between
columns which were not shown in the relevant photographic exhibit
(TR 287-288, Exhibit 36).
Neither compliance officer offered a specific opinion as to
whether the use of safety belts and lanyards was practical or
feasible." This is not a case, such as Century. where a compli-
ance officer offered an opinion which amounted -to a conclusion that
the use of safety belts case was -lVpractical.lf See I Century, 888
F.2d at 1403. Indeed, the most that can be said of the testimony
of the compliance officers on this record is that they stated, in
each instance, that Falcon employees 'could@have used a safety
belt. The compliance officers testified that safety belts could
have been tied off either (1) to an existing perimeter cable
(instance (c)) or (2) to some other 1 ines or cables which would
have had to be installed in the area (instances (a) and (b) and
Docket No. 89-2883). This testimony is insufficient to make a
prima facie case that the use of safety belts was practical under
the circumstances existing at the workplace.
14
The court in Century relied on Webster's Ninth New
Collegiate Dictionary (1983) for the definition of "practical" as
"relating to, or manifested in practice or action: not theoretical
or ideal.!' The court noted that the Dictionary distinguished
between "practicable" and "practical" by explaining that egPFUKTICAL
applies to things and to persons and implies proven success in
meeting the demands made by actual living or use? Centurv Steel
Erectors, Inc. v, Dole, 888 F.2d 1399, 1405 (D.C. Cir., 1989).
The compliance officers' testimony as to what Falcon could
have done is evidence as to 1*feasibility11not evidence as to
(fpracticalityP The court noted that "feasible1g was defined as
"capable of being done or carried out." Centurv, 888 F.2d at 1405.
The testimony of the compliance officers here does not amount to an
assertion that the use of safety belts as they prescribed had
proven successful in preventing in protecting construction workers
from falls under such conditions. For example, there is no
evidence or opinion that the perimeter cables to which compliance
officer Wiseman suggested safety belts be tied could (or in the
past had) sufficient strength to -hold a falling worker. -Such is
the essence of "practicality" in cases under section .105(a).
Moreover, even though not testifying as to practicality, the
compliance officers' opinions as to feasibility are accorded litt-2
probative weight. Neither was proffered as an expert witnesses.
Compliance officer Wiseman's attempts to testify as to his opinions
regarding matters generally requiring expertise and specifically
his opinions as to what Falcon could have done was vigo;ously
challenged (TR 42-43, 47, 148-155, 249-251, Exhibit F). Rulings on
those objections resulted in permitting Wiseman% opinions into
evidence for the limited purpose of explaining the basis of his
conclusions. They were not accepted as probative of the validity of
those conclusions (TR 54-55). Compliance officer Furgeson's
testimony as to practicality was that the exposed employees could
have been protected by static lines strung between columns whose
location and distance from the exposed employees is not shown or
--
discussed. He presented no reason Or Opinion as to how such static
lines would be successful in preventing employee falls. His
testimony in this regard amounts to sheer. unsupported specula-
tion? Thus, 1 find that the testimony of both compliance
officers fails to show either the feasibility or practicality of
using safety belts.
Accordingly, I conclude that Complainant has failed to
demonstrate that Respondent failed to comply with the requirements
of 29 C.F.R. 5 1926.105(a) as alleged in Docket No. 89-2883, Item
No 2 of Citation No. 2 and in Docket No. 89-3444, Item No. 1 of
..
l
Citation No. 2.16 These items are vacated.
Docket No. 89-3444
Citation No. 1, Item No.1
Section 5(a) (11 of the Act
Entrance Overhead Protection
Compliance officer Weisman observed construction personnel,
including Falcon.employees, entering and leaving the job site by
walking in an area where there was work progressing above them and
where materials had fallen or were falling and could strike them.
Although some falling concrete struck the CO (TR 30-31) he did not
establish that materials had actually fallen on or near Falcon
employees (TR 37). Ho described the danger as that of materials
1s
The transcrrFt at p. 287, line 22, should read "BY MR.
ROSENTHAL." It is hert?bjrso corrected.
l6 Other issues, FU*'-cularly the asserted economic infeasib-
ility of installing perxeter safety nets, raised as an affirmative
defense, are not reached. Inasmuch as Complainant failed to make
a prima facie case, matters of affirmative defense are irrelevant
to the detemination'.
falling from upper floors which could strike Falcon employees while
they were going in or out of the building and could result in
serious harm or death (TR 30). He maintained that Falcon could
have provided a covered entrance at the building to protect its
employees (TR 68) by constructing an overhead canopy using welded
frame scaffolds with two inch wood planking on top (TR 69).
The CO stated, in reference to falling concrete, that a
contractor other than Falcon was doing the concrete work and that '
several other contractors were cited for the same lack of overhead
protection (TR lS9)* He agreed that citing several contractors
indicated his belief that a number of different employers at the
site had the power to abate (TR 160). The CO, conceding that he
did not discuss any potential problem of craft union jurisdiction
with the union tradesmen at the site, nonetheless maintained that
any of the craft trades could have installed the overhead protec-
tion (TR 161).
Michael Champagne, a safety specialist employed by Construc-
tion Safety Consultants (TR 532), prepared reports of his inspec-
tions of Liberty II (Exhibits 40, 41, 43, 44 and 49; TR 539) for
its client, Falcon (TR 534, 539). He stated that there was one
special inspection because Falcon was concerned about falling
materials (Exhibit 43: 7-R 554-556).
Falcon's job estlxator, John Egyed, who has extensive creden-
tials and familiarity 31th the high rise construction business in
the Philadelphia area, !TR 580-604) prepared Falcon's job estimates
for both Liberty I and II (TR 604). He testified that sidewalk
bridges are traditionally installed bY carpenters. He opined that
if the ironworkers on Liberty II had tried to build one there would
have been a union dispute and a possible work stoppage (TR 692).
Fhane Jones, an Ironworkers International Vice President and
former officer of the Camden, New Jersey, Ironworkers local noted
that it was part of his job to monitor what other craft unions were
doing in the Philadelphia area (TR 823). As an officer in the
local he was personally involved in jurisdictional disputes and
collective bargaining (TR 815). He testified that determining
which. craft union would have the jurisdiction to build overhead
protection would depend upon the--nature of the materials used in
the construction of the overhead canopy. He stated that, as a
general matter, if a craftsman began work that "belonged" to
another craft there would be a disturbance or a job shut-down. In
addition, if pipe scaffolding were used to construct an overhead
canopy, the work would be under the jurisdiction of the carpenters
union. He opined that the only way the ironworkers would have had
jurisdiction to build such protection were if it required major
structural steel supports (TR 826-827). Finally, Mr. Jones main-
tained that if, in fact, ironworkers removed wood barriers in the
elevator shaft openings, the carpenters would have "raised helP
(TR 827-828).
Jeffery Flannigan, an ironworker with 13 years experience who
was foreman of the ironworker crew erecting elevator rails in the
elevator shafts (TR 868-869) noted that the workers in the shafts
had overhead protection installed in the 23rd floor which consisted
-16-
of "erected steel beams, scaffold planked over and completely
sheeted with plywood*g(TR 872). He also stated that there were a
few occasions when ironworkers stripped wooden forms from elevator
shaft openings (TR 873).
Section 5(a)(l) of the Act,17 the "general duty clause,"
provides that each employer;
(1) shall furnish to each of his employees
employment and a place of employment which are
free from recognized hazards that are causing
or are likely to cause death or serious physi-
cal harm to his employees...
To prove a violation of the general duty clause, the Secretary
must demonstrate that;
the cited employer failed to free the workpl-
ace of a hazard that was recognized by the
cited employer or its industry, that was .
causing or likely to cause death or serious
physical harm, and that could have been mate-
rially reduced or eliminated by a feasible and
useful means of abatement.
Pelron Cornoration, 12 BNA 1833, 1835 (No. 82-0388, 1986).
Falcon argues that the general duty clause is inapplicable
because there is a specific standard, 29 C.F.R. 1926.100(a), which
addresses the hazard. Inasmuch as the hazard described by the
Compliance Officer encompasses the danger of falling debris hitting
a person on any exposed area of the body, the hard hat requirement
is irrelevant. Indeed, the CO, although uninjured, was himself
struck on the shoulder by debris. The general duty clause is thus
applicable.
The Secretary has made out a prima facie case of a violation.
l7 29 U.S.C. 5 654(a)(l).
-17.
The CO'S testimony that materials had fallen in an area where
Respondent's employees generally and usually entered and left the
worksite is sufficient to demonstrate that a hazard to Respondent's
employees existed. In addition, as discussed, Respondent's actual
knowledge of the existence of the hazard is demonstrated by the
fact that it requested its own safety consultant to inspect the
worksite with reference to the problem of falling objects. It is
also reasonable to infer that a person hit by almost any object
found on a construction site which had fallen a distance of at
least several stories would likely suffer serious bodily injury or
.
death.
Falcon maintains that because it neither created nor had the
ability to abate the hazard it has established the so-called multi-
employer affirmative defense..Annina-Johnson Co. v. OSHRC, 516 F.2d
1081, (7th Cir. 1975); Annins-Johnson, Co., 4 BNA OSHC 1193 (1976)a
The Commission's Annins-Johnson defense re-
quires a noncontrolling, noncreating subcon-
tractor to show either that its exposed em-
ployees were protected by other realistic
measures taken as an alternative to literal '
compliance with the cited standard or that it
did not have, nor with the exercise of reason-
able diligence could have had, notice that the
condition was hazardous.
D. Harris Masonry Contractinq, Inc. v. Secretary of Labor, 876
F.2d 343, 345 (3rd Cir., 1989).
Identifying the hazard as an unprotected entrance to the
project, Falcon maintains that the general contractor who failed to
construct a canopy was not under its control. Further, argues
Falcon, it could not abate the hazard because the employees it had
-18-
at the site, being ironworkers, could not construct the canopy
without creating a craft union dispute and a possible work
stoppage.
The Secretary argues that Respondent's employees at the site
had the expertise to erect an overhead canopy protection using
tubular steel scaffolding covered with planking as described by the
co 0 Wontrole as used in the so-called multi-employer work site
cases refers to the hazard itself. Indeed, a respondent at a
multi-employer work site Vontrols*g a hazard if it is shown that it
possessed the expertise and personnel to abate the cited hazard.
Union Boiler ComDanv, 11 BNA 1241 (No. 79-0232, 1983). On this
record# other than speculating as to possible labor-management
problems, Falcon has not shown that its employees at the site
' lacked the ability to construct an overhead canopy as described by
the CO.
Even where a respondent has personnel who have the ability to
abate a cited hazard, the Commission has held that a sub-contractor
on a multi-employer worksite lacks the VontroP over a hazard
requisite for finding a violation where it demonstrates that union
work rules precluded it from abating the hazard. See, Lewis b
Lambert Metal Constructors, Inc., 12 BNA OSHC 1026, 1029 (No. 800
5295) 0 Recognizing that two witnesses indicated that union
jurisdictional problezzs could arise if Respondent's employees
constructed the overhead canopy, the Secretary points to two pieces
of evidence to the effect that some extra-jurisdictional work had
been performed at the site without incident, i.e., carpenters
:,
-19-
installed safety cables in elevator Shaft Openings and ironworkers
removed wood forms to gain access to the elevator shaft openings
(TR 797, 873).
Moreover, the Secretary maintains that the record demonstrates
that Respondent's employees, without incident, at times crossed
jurisdictional boundaries, doing work assertedly belonging to
another craft. On this basis, she argues that even if the
construction of such overhead protection was not within the craft
union jurisdiction of Respondent's employees, the canopy could have
been .constructed by them without the labor relations friction or
job shut-down predicted by other-gitnesses.
Inasmuch as it is part of an affirmative defense, Respondent
bears the. burden of persuasion that if its employees had construct-
ed a canopy, there would have been a genuine risk .of a union
jurisdictional dispute and job shutdown. Respondent has made such
a claim here. The evidence is however, unpersuasive. One witness
who stated that a job stoppage might result was Respondent's job
estimator. While highly experienced in the general field of steel
erection and intimately familiar with the design and planning of
the Liberty II, his opinion that a craft union jurisdictional
dispute and work stoppaqe could have resulted if Respondent's
employees erected overt?ejd protection at ground level amounts to
speculation. The xxe qualified witness in this regard is the
Ironworkers International union official. Mr. Jones answered one
question couched in "qenericml terms (TR 826) but did not specifi-
cally address the 1ikel:hood of a job shutdown at Liberty II. He
-2o-
--
did not address the statements that there had been occasions at
Liberty II where craft jurisdiction lines had been ignored. or,
Jones did not explain why the general prediction he made, that
there would be labor relations problems if craft jurisdictional
lines were crossed, did not occur at Liberty II.
The fact that there were examples of employees at the site
performing some tasks outside of their union jurisdiction as relied
upon by the Secretary, is not by itself persuasive. The examples,
however, demonstrate that at least one of Respondent's supervisory
personnel (foreman Flannigan) felt free to do work within another
.
craft's jurisdiction and did so without labor relations friction or
strife resulting. The predictions that if Respondent had embarked
on installing a canopy entrance to the work site labor strife would
have re'sultedare speculative and inconsistent with actual, albeit
limited, experience at the site. Thus, -Respondent has not
fulfilled its burden of proving that it did not control the cited
hazard of a lack of overhead protection at the ground level
entrance to the work site.
Finally, in the absence of an ability to abate a hazard on a
multi-employer worksite, a sub-contractor is under an obligation,
at the minimum, to take reasonable actions to have the general
contractor provide :,."e-etzessary protection. See, Weisblatt
Electric Co., 2367 (No. 79-2537,
10 BYA -.ri': 1982). There is no
such showing here. '4
h
-..'e ?espondent was concerned enough about the
very hazard created by tiling materials to have a special
inspection conducted by xs wn safety consultant regarding that
-21-
problem, ihere is no record that Respondent suggested, requested or
demanded that the general contractor install an overhead canopy at
the building entrances. Accordingly, Respondent has failed to
establish the multi-employer work site affirmative defense by a
preponderance of the evidence.
The Secretary has shown that Respondent failed to provide
overhead protection for its employees at the entrance to the
building site. Respondent has not established that it could not
abate the hazard or that it took reasonable alternative measures to
protect
. its employees. Accordingly, I conclude that Respondent
violated § 5(a)(b) of the Act as-alleged.
The violation of 5 5(a) (1) is serious in that objects falling
seven stories or more are likely to cause serious physical harm or
death.
In all contested cases in which a violation is found, the
Commission is charged ‘with the responsibility to assess a civil
penalty
giving due consideration 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.
Section 17(j), 29 U.S.C. 661(i). Long Manufacturina Co. v. OSHRC,
554 F.2d 902 (8th Cir. 1977). The gravity of the offense, taking
into account the number of employees exposed to the risk of injury,
the duration of the exposure, the precautions taken against injury,
if any, and the degree of probability of the occurrence on an
injury, is the most important of the considerations. National
z
-22.
Realtv 6 COnstruction CO. V. OSHRC, 489 F.2d 1257, 1 BNA OSHC 1422
(D,C. Cir. 1973).
As to Respondent's size, its answer indicates it had approxi-
mately 100 employees at Liberty II, a project on which Falcon bid
$16.7 million dollars (TR 656). Falcon is one of the largest of
the 6 or 8 high rise steel erection companies in the Northeast (TR
725). The Secretary entered scant evidence as to how the amount of
proposed penalty was arrived at (TR 38) and devotes one conclusory
sentence to penalty calculations in her post-hearing brief
(Complainant's brief, p. 62.) Regarding gravity., there, is no
factual basis provided by the -Secretary as to the number of
employees exposed or the duration of the exposure. Similarly,
there is no evidence, other than that Respondent9 employees used
hard hats, as to any precautions taken against injury. While the
CO was himself splattered with some falling concrete, the Secretary
put in no evidence of the likelihood of occurrence. Respondent's
good faith as to employee safety is in serious doubt as discussed
in detail in other sections of this decision. Other than <he two
citations in this case, the Secretary presented no evidence as to
a history of prior violations.
On the above considerations, the assessment of a penalty of
$1,000 as proposed by the Secretary does not appear to be warrant-
ed, particularly in the absence of any way to assess the likelihood
of a falling object hitting a Falcon employee. Lacking any
evidence as to gravity, the most important element, I find that a
penalty of $200 is appropriate.
Docket No. 89-3444
Citation No. 1, Item No. 9
29 C F R. 50 1926.4Sl(dH 10)
l
Lack 0; Rauiua on Scaffold
l
Item No. 9 of Citation No l 1, alleges that Respondent failed
to comply with the standard at 29 CeFeRe 5 1926.451(d)(lO) which
provides, in pertinent part:
(10) Guardrails... shall be installed at all
open sides and ends on all scaffolds more than
10 feet above the ground or floor.
Compliance Officer Wiseman testified that two employees were _
. an elevator shaft working
inside from a scaffold which had no
guardrail (TR 39, Exhibit 2). TM scaffold was at the 38th floor
level. He saw one employee walk across the top of the scaffold
which was not fully planked (TR 39-40). The CO was of the opinion
that a'fall of 38 stories was possible (TR 39). A photograph was
taken of the end of the scaffold while an employee was doing
welding or cutting. There was no guardrail in place (Exhibit 2).
A Falcon foreman was present (TR 41). On cross examination the CO
agreed that there came a time when the employee tied off his safety
belt to the scaffold but could not recall if the employee9 safety
belt was tied off while he was working. The CO pointed out that the
employee had to walk across Ita single plank to get to this work
statiorP (TR 187-188) l He agreed, however, that a de minimis
violation would exist -.Clereemployees xere tied off while on a
scaffold lacking guxdraL:s (TR 190).
Several witness testrfied that Falcon had installed temporary
flooring and nets inside the elevator shafts (TR 573, 695, 7840
-240
--
785) l
The arrangement used by Falcon could have resulted in a fall
of up to 25' (TR 875).
complainant argues that Falcon's installation of decking and
nets within the elevator shafts was incomplete, leaving gaps in the
protection which could have resulted in falls of great distances.
Nonetheless, argues Complainant, since the distance between floors
at Liberty II was 12 l/2', even if the floor below were completely
covered with decking, the employee was exposed to a fall of greater
than the 10' specified by the standard. Complainant argues that
even .if the employee in the photograph (CX 2) was shown to be tied
off while performing the cutting-operation, he was not tied off
when he walked across the two narrow planks to get to his work
station. Complainant reasons that at that time he was exposed to
the fall hazard. .
Respondent takes the position that the installation of a
guardrail at the end of the scaffold would have t5nterfered'v with
the employee% ability to do the cutting operation. Falcon states
that it provided its employees with safety belts and require& their
use (TR 693, 167), that the employee was tied off, and that in
tying off where there was no guardrail created, at most, a de
minimis violation according to the OSHA Field Operations Manual (TR
121, 190; Exhibit C).
In general, to prove a violation of a standard, the Secretary
must prove by a preponderance of the evidence that (1) the cited
standard applies, (2) non-compliance with the terms of the
standard, (3) employee exposure or access to the hazard created by
,
-250
the non-compliance; and (4) the employer knew or, with the exercise
of reasonable diligence, could have known of the condition. Astra
Pharmaceutical Products, Inc., 9 BNA OSHC 2126, 2129 (No. 78-6247,
1981). Employee exposure to a hazard is established where it is
reasonably predictable that employees, in the course of their
duties, .will be, are or have been in the zone of danger created by
the violative condition. Gilles & Cottina, Inc., 3 BNA OSHC 2002
(No l 504, 1976). Even brief exposures involved in passing or
standing near an open edge constitute "access." Walker Towinq
cor13., 14 BNA OSHC 2072, 2074 (No. 87-1359, 1991). -
There is no dispute that the cited standard applies. It is
less than clear however, that there was non-compliance with the
terms of the standard. First, it must be recognized that the
scaffold was located on decking which was the entire
. width of the
elevator shaft but only half the length of the shaft. Thus, in
order to fall over 10' from the scaffold, the fall would have to be
from the end of the scaffolding closest to the viewer as shown in
Exhibit 2. Indeed, Exhibit 2 shows the employee working at the
very end of the scaffold with his left leg over the side rail. A
fall to that side of the scaffold would have been greater than 10'.
The CO, however, did not know if the employee was tied off when he
was working in that position. Moreover, the CO did not know when
the employee did tie off his safety belt. Complainant rests its
case solely on the argument that the employee was not tied off or
protected by railings while walking across the two planks to get to
the end of the scaffold. This argument is specious. As is clearly
-260
--
demonstrated by Exhibit 2, a fall from either side Of the two plank
walkway would have resulted in a fall to the deck on which the
scaffold rested, a distance the Secretary has not shown to be
greater than 10'. only if the employee fell off the end of the
planking closest to the viewer of exhibit GX 2 would the fall be
greater than 1OL
On this record there is no reason to find it more likely that
the employee failed to tie off for some period of time after
reaching the end of the scaffold than to believe that employee tied
off immediately
. upon reaching the end of the scaffold. Only if he
did the former would there have' been a violation of the kited
standard. Given the fact that the employee did, in fact tie off at
some time and given the lack of direct evidence as to when he tied
off, I find that the Secretary has failed to show by a'preponder-
ance of the evidence that there was a violative condition as
alleged. Having failed to make a prima facie case of a violation,
there is no need to reach the affirmative defenses asserted by
Respondent. Accordingly, Citation No. 1, Item 1 is VACATED.
Docket No. 89-3444
Citation No. 2, Item No. 2
29 C.F.R. S 1926.500(d) (11
Unauareglevator Shaft Ox>eninqs
Citation No. 2, Item No. 2, sets forth four instances in which
it is alleged that Respondent failed to comply with the standard at
29 C.F.R. 5 1926.500(d)(l). That standard provides, in pertinent
part;
(1) Every open-sided floor or platform 6 feet
or more above adjacent floor or ground level
-270
shall be guarded by a standard railing, or the
equivalent... on all open sides....
The cited standard does not apply to the cited conditions,
The item must thus be vacated.
Liberty II was built by making a slip-form poured concrete
Voreg* around which the rest of the building was constructed in the
usual steel erection fashion. A wooden form for the core was
devised. Starting below ground level, the form was filled with
concrete which was allowed to cure. Once the concrete had enough
strength, the form was raised straight up by jacks into a position
where more concrete was poured. Again, after the new concrete set
sufficiently, the form was raised to the next level. The process
was repeated numerous times so that the interior Voreg@ which
remained was a concrete structure with walls of solid concrete all
the way to the top of the building. The lkoremtwas designed to
have certain spaces in the concrete open to the outer parts of the
building. In the form these areas were constructed of wood so the
finished concrete would contain the openings. After the concrete
.
cured and the form was raised to the next pouring level, the wooden
areas in the newly formed concrete wall could be removed thus
leaving openings into the core.
The concrete Vore'* -became the vertical shaftway into which
elevators were to be installed. Falcon, the steel erection
contractor, not only installed the steel outer parts of the
building but also installed vertical steel rails in the shafts on
which the. elevators would eventually ride.
The conditions encountered by the Compliance Officer thus
-280
consisted of floors of steel decking surrounding the concrete core,
The photographic exhibits, CX 10 in particular, amply demonstrate
that a person standing on the decking, facing the center of the
building, would be looking at steel deck flooring ending at a
concrete wall in which there were openings. Indeed, the Compliance
Officer described "openings in the wall" (TR 69). See I Cowen
Construction, Inc., 7 BNA OSHC 1206 (No. 784600, 1979) (AIJ
Blythe) (Digest). But, see also, Structural Development Corp.,
Inc.. 12 BNA OSHC 1872 (No. 85-1370-S, 1986) (ALJ Blythe) (Digest).
Judge Blythe was correct the first time, an opening into an
.
elevator shaft is not "an open-sided floor or platfomP within the
meaning of the cited standard.
While the definitions applicable to the standards covering
floor and wall openings as well as stairways" do not d&fine
"floor,** they do contain specific meanings of both ~qplatformll
and
"wall opening." "PlatforV is defined by 5 1926.502(e) as '@[a]
working space for persons, elevated above the surrounding floor or
ground, such as a balcony or platform for the operation of
machinery and equipment." Although defining a '*platfomP in part
as a lgplatfonn*g
provides little guidance, it is clear that there
are no open-sided platforms at issue here. Section 1926.502(o)
defines “wall opening" 3s "[a]n opening at least 30 inches high and
18 inches wide, in any *da11or partition through which a person may
fall, such as a yard-am doorway or chute opening/ On the record
in this case, I find that the cited conditions were wall openings,
l8 29 C.F.R. 55 1926.500 0.502 (1989).
)I -29.
not open-sided floors or platforms. Falcon was thus not in
violation of 29 C.F.R. 5 1926.500(d)(l) as alleged in the citati
and complaint.
A more 'specific standard, 29 C.F.R. 5 1926.500(c)(l), is
applicable in this case. It reads as follows;
(c) Guarding of wall openings. (1) Wall open-
ings, from which there is a drop of more than
4 feet, and the bottom of the opening is less
than 3 feet above the working surface, shall
be guarded as follows:
(i) When the height and placement of the
opening in relation to the working surface is \
such that either a standard rail or intennedi-
.. ate rail will effectively reduce the danger of
falling, one or both shall be provided:
(ii) The bottom of a wall opening which is
less than 4 inches above the working surface,
. regardless of width, shall be protected by a
* standard toeboard or an enclosing screen
either of solid construction or as specified
in paragraph (f) (7) (ii) of this section.
The existence of a more applicable standard does not, by
itself, necessarily require vacating a citation which referred to
a different standard. Due process requires, however, that a
Respondent have a fair opportunity to defend against alleged
violations. Thus, where there is a more specifically applicable
standard, a violation of that standard may be found after the
hearing if both partles, 41th their concurrence or by their actions
actually conducted a hexlr,q on all issues related to the more
applicable standard. 'The Secretary, in her post-hearing brief
maintains that if the elevator shaft openings are found to be **wall
openings,'9 a violatlcn of C.F.R. 5 1926.500(c) (1) has been
-30.
established by the record and that such issue was tried by consent
of the parties. The Secretary is incorrect on both counts.
Questions as to whether and to what degree, if any, citations
and complaints may be amended after a hearing have been before the
Commission many times. The issue is governed by Rule 15(b) of the
Federal Rules of Procedure made applicable to Commission proceed-
ings by Commission Rule 219. The Commission has held that the
consent of the.parties to the trial of an issue which had not been
pleaded can only be found where the parties "squarely recognized"
that they were trying the issue which had not been pleaded. Seward
Motor Freiaht. Inc., 13 BNA OSHC-2230, 2234 (No. 86-1691, 1986),
0
quoting McW111 iams Forse Co., 11 BNA OSHC 2128 (No. 80-5868, 1984).
In this .case I some issues relevant and necessary for a determina-
tion of whether there was a violation of 29 C.F.R- 5 1926.500(c) (1)
were not tried at all.
Under the cited standard, 5 1926.500(d) (1) a "standard
railing IN the detailed specifications of which are contained in yet
other standards, 29 C.F.R. 0 1926.500(f)(i) - (iv), must be in
place "on all open sides" of "every open-sided floor or platform 6
feet or moreVt above the floor or ground. Under 0 1926.500(c)(l) no
barrier is required in a wall opening unless "the bottom of the
opening is less than ?' rtove the working surface.lt Similarly, a
particular type of Frc::ez: m is needed where the bottom of the
wall opening is less t!xn P above the work surface according to
l9 Rules of Procedure of the Occupational Safety and Health
Review Commission, 29 C.F.R. $5 2200.1 - .212, as amended, 58 Fed.
Reg. 22780-83 (June 4, 1 +I).
-31-
§ lg26,5()o(c)(ii). Moreover, a Wall opening barrier, which might
or might not be a standard railing as required by 5 1926.500(d)(l),
must be placed in a wall opening only where the relationship of the
opening to the work being performed to be such that a barrier "wili
effectively reduce the danger of falling."
By not identifying the more applicable standard before or at
the hearing, Respondent had no opportunity to either cross examine
the compliance officer as to the specific conditions for the
standard. to apply such as critical measurements or the relationship
between the work being performed andthe danger of falling through
the wall openings. Evidence was not introduced as. to these
questions. The parties thus never Qquarely recognized" that an
unleaded issue was being tried nor was the issue fully tried.
Accordingly, ComplainanYs motion, contained in its brief, .toamend
the citation and complaint is DENIED.'*
Accordingly, Citation No. 2, Item No. 2 is VACATED.
Docket No. 89-3444
Citation No. 2, Item No. 3
29 C.F.R. 5 1926.55O(.gl(21
Use of Man Basket
It is alleged that Falcon wilfully violated the standard at 29
C.F.R. 5 1926.550(g)(2) in permitting its employees to be raised
** Moreover, even if Respondent were fully aware that it had
to defend against 29 C.F.R. 5 1926.500(c) (1) charges, I would find
that the Secretary failed, in all four alleged instances, to show
by a preponderance of the evidence, that Respondent was in
violation. There is no record of the necessary measurements having
been made nor is there sufficient testimony as to the nature of the
work activities in relation to the wall openings.
-320
and lowered in a man basket at Liberty II. The standard provides:
(2) General requirements. The use of a crane
or derrick to hoist employees on a personnel
platform is prohibited except when the erec-
tion, use, and dismantling of conventional
means of reaching the worksite, such as a
personnel hoist, ladder, stairway, aerial
lift, elevating work platform or scaffold,
would be more hazardous, or is not possible
because of structural design or worksite
conditions.
It is undisputed that Falcon employees working at the upper
reaches of the building (over 40 stories) were hoisted from the
ground to their working levels and back down by the use of a man .
basket suspended from an overhead crane (TR 90, 274, 570). Thus,
the standard is applicable. In addition, there is no dispute that
Respondent knew of the condition. A number of letters signed by
Respondent% Vice President, oral statements made by him to the CO
and a written report made to Respondent by it's safety consultant
all acknowledge that employees were being hoisted in a man basket
suspended from an overhead crane (e.g., Exhibits Y, Z, AA through
II; Exhibit 43, TR 93-94).
The record in this case also establishes non-compliance with
the requirements of the standard. Under the standard, hoisting
employees by 'craneis prohibited exceDt where the use of alterna-
tive means are 'more hazardousV or "not possible.*' Respondent's
post-hearing argument that;
[t]he Secretary has not proved that the use of
Falcon's man basket was more hazardous than
the use of hoists and ladders, even when such
use was permitted by site conditions
(Respondent's brief, p. 39.) is misplaced. By alleging that it
-33.
comes within an exception to a general rule Respondent has the
burden of proving the exceptiOn.'The Secretary's prima facie case
under this standard has been established by showing the applicabil-
ity of the standard, the fact that employees were being lifted in
a man basket, and showing that Respondent actually knew of the
activity. See I Astra Pharmaceutical Products, Inc., 9 BNA OSHC
2126, 2129 (No. 78-6247, 1981). The burden now shifts to Rekpon-
dent.
Respondent maintains both that worksite conditions made the
use of personnel hoists (elevators) impossible and that it was more
hazardous for employees to use the personnel hoists.
Impossibility has not been established by Respondent. There
is no dispute that at the time of the inspection the uppermost
level &ached by the four personnel hoists was the 38th floor and
that Falcon employees were working as many as eight or ten floors
above that level (TR 92, 205-06, 567, 679; Exhibits Y, 2, AA, BB,
CC, DD, EE, FF, HH, KK, LL, 00 and XX).
There are two distinct areas of concern: first, from ground level
up to the 38th floor, and second, from the 38th floor up to the
working positions at about the 46th or 48th floor. Respondent
first claims that because the personnel hoists only went up to the
38th floor, the hoists were "unable to transport Falcon's men to
their stations.qg Respondent is incorrect. The inability of the
*' The exception appears to be consistent with the recognized
affirmative defenses of "greater hazard" and "infeasibility of
compliance" both of which were raised by Respondent in its amended
answer (11 37, 38) but neither of which was specifically identified
or argued in its post-hearing brief.
-34.
personnel hoists to reach the 46th or 48th floors does not mean
that the employees had to be hoisted in a man basket from the
ground, They could have used the personnel hoists as far as the
38th floor then used other means to reach their work stations at
the 46th and 48th floors.
Respondent argues that it was "impossible" for its employees
to use the personnel hoists. Respondent cites considerable
testimony that each personnel hoist had a somewhat limited
capacity, that the operator of the personnel hoists, the general
contractor, at times gave lower preference to Falcon's employees in
their use, and that sometimes there was a substantial waiting time
for transportation by personnel hoist. Respondent% argument
amounts to a claim that increasing the time its employees had to
spend using personnel hoists, thus increasing its cost, amounted to
work site conditions rendering the use of the personnel hoists
"impossible." The argument is rejected. In the first instance,
the standard speaks to impossibility not increased costs. Thus,
literally, increased cost of compliance is not acceptable tinder
this standard. Moreover, even if increased economic costs could
rise to the 8*impossibility1t required by the standard, the evidence
on this record is insufficient to demonstrate the severe economic
displacement which might be cognizable as impossibility. There is
a paucity of reliable evidence as to how much Falcons' costs were
increased by the use of the personnel hoists as compared to the man
basket. There are several self-serving letters from Falcon to the
general contractor claiming as much as $313,707.85 in increased
735,
costs (Exhibit BB) but there is no basis for such calculations 01f
testimony in support thereof. In addition, there are several
indications that Respondent was planning to charge the general
contractor for its assertedly increased costs (Exhibits Z, EE).
I conclude that Respondent has failed to demonstrate by a
preponderance of the credible evidence of record that it was
impossible or more hazardous**, within the meaning of the cited
standard, for its employees to have used the existing personnel
hoists to reach the 38th floor from the ground.
A somewhat different question arises in considering how Falcon
employees were to reach the 46th.or 48th floors from the 38th. The
CO opined that Respondent% employees could have taken personnel
hoists from the ground to the 38th floor, then used existing
interior ladders to reach their work stations
. seveiral floors
above? There is testimony that some of Falcon's employees did,
in fact, use the ladders (TR 571-572). Respondent nonetheless
argues that it would have been Vmpossible" and "more hazardous*'
for its employees to use the ladders. Respondent takes the
position that it was less hazardous to use a man basket than to
require ironworkers to climb several stories of ladders "several
times a day@@from the 38th floor to their work stations. Respon-
22 The opinion of one individual regarding an easily correct-
able problem in the manner a particular operator ran one personnel
hoist (TR 839) does not demonstrate that the hoists were hazardous.
So long as the secretary shows that some other means of
reaching work areas existed, the standard does not require the
Secretary to specify the particular means of abatement as is the
case in alleged violations of 5 5 (a)(l).
-360
dent points to the strenuous nature of ladder climbing, especially
when wearing a tool belt weighing 15 to 20 pounds. Falcon
disagrees with the ~0% contention that the tool belts could have
been'stored at the working levels and need not have been carried UP
and down daily. Initially, other than some evidence that ironwork-
ers in general are assumed to be qualified to participate in the
unloading of trucks, there is no persuasive evidence that Falcon's
employees would have had to climb the ladders %everal time&g per
day. It is obvious that ladder climbing while wearing a tool belt
. 10 to 20 pounds is not an easy task, but the testimony in
of some
support of Falcon's argument cotiists primarily of observations
that the ironworkers usually carried their tools up and down with
them (e.g., TR 578, 759) and speculation that tools left in tool
shanties or tool boxes might be stolen (TR 785). The fact that
some ironworkers left their tools in the tool shanties or tool
boxes which were provided for them (TR 758, 785) and the absence of
any cogent reason why all who wanted to could not do so leaves
Falcon short of carrying its burden of persuasion*% Respondent
has thus failed to show that it was either impossible or more
hazardous to use the man basket.
Even if the contested facts regarding the ladders were
resolved in Respondent's favor and it were found that it was
impossible or more hazardous (or both) to require Falconfis
employees to use ladders from the 38th floor up to the 46th or 48th
24 There is no explan -ion as to why the ironworkers' tool
belts and supplies could not be lifted into position by crane.
-37-
--
floors, the violation would exist as to the lifting of employees
from the ground to the 38th floor.*'
In the absence of persuasive evidence that it was impossible
for Falcon% employees to reach their worksite by use of available
means or that the use of the available means of reaching the
worksite was more hazardous, I conclude that Respondent was in
violation of the standard.
For the following reasons, I conclude that the violation was
willful. A willful violation has been described by the Commission
as a violation;
committed with intentional, knowing or volun-
tary disregard for the requirements of the
Act, or with plain indifference to employee
safety.
A. P. O'Horo Companv, Inc., 14 BNA OSHC 2004, 2012 (No. 85-0369,
1991).
Respondent's own safety consultant, Michael Champagne,
recommended that Falcon cease using the man basket apparently
because there was no certification on the assembly, as well as for
.
other, unstated reasons (TR 570). Champagne testified, however,
that he felt that it was not Wery practical" for Falcon to cease
using the man-basket because use of the elevators would have been
"too time consumingw (TR -571).
Falcon was clearly put on notice by its own safety consultant
25 Assuming Respondent had proven that it was either
*5mpossible1‘ or lgmore hazardousgg'to use the ladders from the 38th
floor to the working levels, that same evidence has not shown that
it was "impossible14 or “more hazardous" to use the personnel
elevators rather than the 3an basket from the ground to the 38th.
-3a-
that the use of the man-basket should Cease. Although the spe fit
basis for the consultantts recommendation was not the violation
found her& it was nonetheless safety related. That is, Falcon was
given warnings about safety shortcomings of the man basket by its
own safety consultant but continued to use the man basket solely
for economic reasons. Respondent's Vice President told the CO
during the inspection that Falcon used the basket because the
elevators took too long (TR 94). That statement is consistent with
all of the other evidence on this record. Falcon's studied
decision to ignore a safety recommendation in order to save money
is conduct which constitutes plain-indifference of employee safety
demonstrative of willfulness. The degree of willfulness is
demonstrated by the fact that Falcon continued to use the man
. Vice President
basket although its own consultant wrote to Falcon's
"[The] [n]ext OSHA penalty for use of man baskets will be in the
range of $10,0004* (GX 43). Falcon thus knowingly decided to risk
a $10,000 OSHA penalty rather than correct the problem.
Two other factors which weigh heavily in finding this
violation to be willful. First, the correspondence from Falcon to
the general contractor, which Falcon cites as evidence supporting
its argument that it was impractical for its employees to use the
personnel elevators, 1s silent as to the safety of its employees.
All, however, complain of added costs to Falcon (Exhibits Y, 2, AA,
BB, CC, DD, EE, FF, GG, HH, and II) (See also exhibits LL, MM, NN,
00 and XX.) The close attention to costs while making no mention
of etiployeesafety in relation to an OSHA violation brought to its
attention demonstrates indifference to employee safety. Second,
although based on another safety concern, Falcon not only continued
to use the man basket against the recommendation of its own safety
expert, it has not shown that it took any action whatsoever to
correct those safety problems raised by the expert. The failure of
Falcon to address even the specific man basket safety problems
pointed out to it by its expert, while at the same time deciding to
continue the use of the basket because it saved more money, than an
anticipated OSHA penalty demonstrates a callousness towards
.
employee safety which is willful under virtually all definitions of
that term. See Bland Construction Co., BNA OSHC -f - (NO 0
87-0952, 1 991 ) l
Respotidentis a large employer with many ironworkers at the
site. Those ironworkers were hoisted daily for a period 'of time.
There are no factors on this record mitigating against imposing the
maximum penalty allowable for a willful violation? Accordingly,
I find that a penalty of $10,000 is appropriate.
Docket No. 89-3444
Citation No. 2. Item No . 5
29 C.F.R. S 1926.75Uu
Beam and Column Connecfiprq
Citation No. 2, I:',cTFJo. 5 alleges that Falcon failed to
26 Although the fats of this case appear to warrant the
imposition.of a monetary pendty in an amount at least as great as
the amount of money saved by Respondent in willfully violating the
standard, the seven-foid :ncrease in the maximum penalty for
willful violations is not applicable where, as here, the violation
occurred before the Occqutlonal Safety and Health Act of 1970, 29
U.S.C. 5s 651-678, was arerxiedby the Omnibus Budget Reconciliation
Act of 1990, Pub. L. No. m~-so8, 5 3101 (Nov. 5, 1990).
-40.
comply with the cited standard which rewires the installation of
"not less than two bolts, or the equivalent at each connection"
before the steel member is released from the. hoisting line.
The cited standard, 29 C.F.R. 5 1926.751(a), provides:
(a) During the final placing of solid web
structural members, the load shall not be
released from the hoisting line until the
members are secured with not less than two
bolts, or the equivalent at each connection
and drawn up wrench tight.
There is no dispute as to the operative facts regarding this
alleged violation. The CO saw and photographed, and other
witne'sses testified as to the presence of numerous steel members
,
which were held in position with only one bolt at the connection
before the hoisting lines were released (TR 110-115, 841, 9994000,
Exhibits 21-23). Moreover, that Respondent had knowledge of and
sanctioned the procedure is also undisputed in that the placements
were done at the direction and in the presence of a foreman (TR
114). The controversy here is whether Falcon's one-bolt connec-
tions were the l*equivalentlfi
of the required two bolt connection.
Falcon takes the position that if it had used VraditionaP
double-angle connections two bolts would have been required but
since it was using a shear plate connection, one bolt was suffi-
cient.
Respondent's pcs;':.~ is specious. Falcon went to great
lengths to repeatedly Ldentlfy the type of connection it was using
as a shear.plate connect :on in an attempt to distinguish it from a
'double angle connectlarr. ?W. Becker, clearly qualified as an
expert in the field, szwhat reluctantly conceded that framing
-41-
angle ctinections and shear plate connections are both types of xeb
connections in that they connect the web of a beam to a supporting
element (m 999, 1038-1039). Respondent would thus have the two
bolt requirement apply to one type of web connection (framing
angles) but not to another (shear plates), There is no basis on
this record to make such a distinction.
The Commission has noted that the purpose of the two bolt
requirement includes both preventing the beam from rolling or
twisting when walked upon and the 'kecurity requirement" 0f
assuring that "steel members are secure before loads are placed on
them? Williams EnterDrises, Inc., 13 BNA OSHC 1249, 1252, n. 6
(No. 85-0355, 1987). The CO testified similarly (TR 110). Since
the two-bolt requirement is at least two-fold, testimony that one-
bolt shear connections prevent the attached beam from twisting when
walked upon (TR 702-3, 843) is not, by itself, enough to show that
the one-bolt method is equivalent.
Moreover, perhaps the most important hypothetical question
asked of Mr. Becker points up the problem. Mr. Becker was asked:
Q In your opinion, is -- do you have an
oiinion on whether a one-bolt connection and a
shear plate connection if drawn up wrench
tight is equivalent to a two-bolt connection
and a standard pair of framing angles, insofar
as it Protects an ironworker from a fall ?
(TR 1001) (Emphasis added.) The question itself deals only with
the potential of the beam rotating or twisting. It esentially
-427
instructs the witness to ignore the %ecurity requirement.tt27 The
answer, when asked to state his opinion, is alSO instructive.
I Mr .
Becker replied;
A Well in my opinion, a one-bolt shear
co&e&ion
piate has sufficient stability and
strength for the erection forces that are on
. it, including workmen, decking, whatever is
going to be put on it.
(TR 1002). Testimony that the one-bolt shear plate connection is
Wuf ficienF is not evidence that it is equivalent to a two-bolt
connection. While both may be sufficient, this testimony fails to
show that the one-bolt connection is as good as or better than the
two-bolt arrangement.
Finally, although not pursued in its post-hearing brie
Respondent%
. attempt at the hearing to imply that the shear plate
connection was developed after the standard was adopted and thus
could not have been contemplated by the drafters of the regulation
is rejected. The evidence as a whole shows that the shear plate
method of web connection has been recognized for at least 20 years
(TR 702, 719, 1000, 1027 - 1028). Even if the shear plate
connection were developed after the standard was issued, there is
no showing on this record that it is equivalent to the use of txo
bolts to secure the beam before removing its hoisting line.
The Secretary al!ec;es the violation to have been willful. The
sole evidentiary basis far this recommendation is the CO's
27 Moreover, since ?espondent was using shear plate connec-
tions throughout the kulldinq, the more appropriate comparison
would have been between a one-bolt shear plate connection and a
two-bolt shear plate cvmection.
-43.
testimony that at SOme prior inspection he had talked to Responden-
t's president about one bolt connections and on another occasion,
at a hearing, he "had quite a conversation4' with the father of
Respondent's president about it (TR 115). 1 find such evidence
fails to demonstrate the degree of indifference essential to
proving a violation to have been willful. See, Aa PO O'HO~O
ComDanv, Inc., 14 BNA OSHC 2004, 2012 (No. 85-0369, 1-l).
The violation is serious in that death or serious physical
injury is clearly the likely consequence of either an ironworker
falling from some 50 stories or the possible collapse of a steel
beam held in place with only one bult. The above evidence, coupled
with the fact that the non-compliant method of connection steel was
used on a regular basis at Liberty II until after the OSHA
inspection (TR 110-114, 753, 755) resulting in the exposure of
numerous employees to the dangers of improper bolting, demonstrates
that a penalty of $1,000 is appropriate for this serious violation.
Accordingly, Citation No. 2, Item No. 5, alleging a violation
of the standard at 29 C.F.R. 5 1926.750(a) is affirmed. the
violation is found to be serious but not willful, as alleged. A
penalty of $1,000 is appropriate.
Docket No. 89-3444
Citation No. 2, Item Yo. 6
29 C.F.R. 6 1926.752Lu
Unguarded Deck Openin=
Item.No. 6 of Citation No. 2 alleges that in seven separate
instances Respondent failed to comply with 29 C.F.R. 5 1926.705(j)
in that its employees .uJerexposed to openings in the decking which
-44.
--
should have been either covered over or guardedoz8
The CO described and presented photographs of openings in the
decking he found on the following floors:
Instance Floor Testimony Exhibitts)
A 42 TR 121 24 - 26
B 40 TR 121 27
C 43 TR 124, 127 28
D 44 TR 127 - 8 29
E 45 __ TR 130 20
F 46 TR 131 30
G 48 TR 139 31 - 35
Speaking in general terms, the CO conceded that there are
times when deck openings must exist in order to do welding or other
bolting and that in some places the decking must be cut to size to
properly fit the opening (TR 215-217). He agreed that after the
initial decking was put into place unguarded, unplanked openings
would exist until the next step in the process was performed (TR
217-218). In examining photographs he agreed that extra decking
material was next to at least three openings (TR 218, Exhibits 26,
28 6r 29). In addition also conceded, as to all of the cited
28 The cited standard provides:
(j) All unused openings in floors, temporary or penna-
nent, shall be completely planked over or guarded in
accordance with Subpart M of this part.
-45.
openings, that it was possible that the decking could have been in
place prior to his inspection and had been removed to allow other
work to be performed (TR 246). He agreed that steel erection and
the installation of decking were actually in progress on the 48th
floor (Instance
, G) at the time of his inspection (TR 221). He
opined, however, that the level on to which the steel was unloaded
from the ground should have been completely decked (with no
openings remaining) before landing (unloading) steel beams (TR
223). One of the cited openings, Instance B, was occasioned by the
remova of the mast of a tower crane (TR 248). It was agreed
amongst the contractors at the site-that the crane structure was to
be removed towards the end of the day's shift and another contrac-
tor, HCB, was to install guard rails each night around the
resulting openings (TR 248-249). The procedure to*be used for the
removal of the tower crane was confirmed by Mr. Egyed (TR 701 -
704).
James Halpin, the foreman in charge of the decking crews at
Liberty II, testified that there were three rrgangsq*installing
decking, one each on the erection floor and one on the intermediate
floor. A third crew "finalized8' the decking by cutting around
columns and welding the decking into place (TR 760 - 770). The
foreman testified that, in general, areas of decking were not left
open but that if they came across an opening they would plank it
immediately (TR 772). As to instance A, this witness testified
that Exhibit 24 (42d floor) showed the foreman of one of the
decking crews on an intermediate floor where previously installed
-460
decking had been pulled back so cutting around Cohlmns Could be
done (TR 771). Similarly, he identified Exhibit 28 (43d floor,
Instance C) as depicting an area where men who were installing the
decking were momentarily away getting materials just when the photo
was taken (TR 772-773). AS to Exhibit 29 (referring to the 45th
floor, sic.), the witness stated that the piece of decking had been
in place previously, but had been removed to tighten up bolts in a
beam (TR 773). Viewing Exhibit 30 (46th floor, instance F) the
witness could not say whether decking had been in place then pulled
back (TR 776). While examining Exhibits 32, 33, 34 and 35
(Instance G, 48th floor), the witness described welding leads and
tools that were used to fill in the openings and the process of
placing the decking on the erection floor (TR 778-779). He also
described the area shown in Exhibit 27 as a hole created by the
removal of the mast of the tower crane which was supposed to be
immediately protected by another contractor constructing guard
rails (TR 780-781). In sum, the decking foreman testified several
times that he was not allowed and did not in fact, permit deck
holes to remain open but required them to be planked or protected
promptly.
The Secretary relies on the testimony of the CO to the effect
that at the time the photographs were taken Falcon employees were
not performing work at most of the openings (TR 247). The
Secretary argues that the CO's concession that two areas on the
48th floor which were observed (Exhibits 33 & 34) could have been
areas in which Falcon employees were welding, does not vitiate its
-47-
case as there were other openings in the 48th floor which were not
actually in use at the time of the inspection.
Respondent argues that still photographs fail to demonstrate
the activity at the site. Claiming that the Secretary is attempt-
ing to show a violative condition at "one frozen point*' (Responden-
t's Brief, p. 44), Respondent points to the testimony of the
decking foreman as to almost every exhibit that work was in
progress just before or just after the photograph was taken. In
sum, Respondent posits that an employer is not in violation of
5 1926.752(j) "during the brief interval of time necessary for a
creti to arrive and cover the opening that another crew has just
finished using2 Respondent maintains that the CO took most of his
photographs just a moment before a crew arrived to close the
opening or just a moment after
. a crew, which had been working in
the opening. left the scene.
Respondent% position is rejected in regard to all instances
except instance G (48th floor). There is no dispute that at least
at the moment each photo was taken, no employees were performing
work in or immediately adjacent to each opening depicted. Thus,
the floor openings were "unused" at the time the photographs were
taken. It is not reasonable to infer that seven photographs
(Exhibits 24 through !9)-, showing on 6 different floors under
construction, all happened to be taken just at the precise moment
when employees, not shosn in any of the photographs, were preparing
to work in the operunqs or to cover them. Nor did Respondent
elicit from the CO testlxony as to whether he saw the openings used
*
-480
at any time before or after the photographs were taken. The
decking foreman's testimony as to the activities which supposedly
occurred immediately prior to the taking of each of the photographs
is granted little credible weight. There is ni evidence that he
accompanied the compliance officer during the inspection nor is
there direct testimony that he was present when each of the
photographs were taken. His testimony is based on his memory of
conditions long after the fact of inspection and contains detailed
descriptions of a very few specific floor openings which occurred
on a .project some 60 stories in height. These factors lead ne to
find that his testimony as to theSe specifics is not reliable.
Moreover, while Respondent might well be correct that a
violation of the cited standard does not occur in the few moments
between the laying of the deck and the arrival of a crew to finish
the bolting and cutting necessary to tightly fit the deck, there is
no showing here that such an interval was anywhere near a "few
momentsoVq The evidence on this record is insufficient to make any
reasonably based finding as to how long the photographed floor
openings (with the exception of those on the 48th floor) remained
open. Absent a time requirement as part of the standard, once the
existence of a violative condition has been established, the
duration of the existerxe of the condition becomes, in essence, an
element of the gravrty of the violation in that the shorter the
duration of the existence of the condition, the less employee
exposure can occur.
As to the 48th floor, the evidence fails to raise the
CI
-49.
inference that floor openings Were not covered or protected as soon
as was possible. The 48th floor at the time the photographs were
taken was the erection floor. It is undisputed, in contrast to the
other cited floors, that decking crews were actually working on the
48th floor at the time of the inspection. The conditions there
were thus changing virtually from minute to minute as decking crews
were in the process of performing their duties. Surely, even in
the most efficient construction scheme some amount of time must
elapse between the creation of a floor hole and the covering of
that .hole. The Secretary has not demonstrated that, as to the 48th
floor, deck openings were left open.
Falcon, having created the floor openings and having a foreman
and crews. whose responsibility it was to close off the openings is
chargeable with knowledge of the violative conditions;
Employee exposure, that is Falcon employees passing near deck
openings was testified to by the CO without rebuttal (Exhibits 24
& 25; TR 118, 121, 124, 125-126, 128 and 138). There is, however,
specific evidence of Falcon employee exposure to only one of the
cited floor holes (Exhibits 24 61 25; TR 118, Instance A) other
than those on the 48th floor. There is no evidence as to the
duration or frequency of such employee exposure.
On this record, ?:e Secretary has shown that the cited
standard applies, that Respondent failed to comply with the terms
of the standard, that FCson' s employees were exposed or had access
to the hazard created, .xd that Falcon knew or, with the exercise
of reasonable diligence, could have known of the condition. A
-5O-
violation of 5(a) (2) has thus been established. See Astra Pharma-
ceutical Products. Inc., g BNA OSHC 2126, 2129 (No. 78-6247, 1981);
Dun-Par weered Form Co., 12 BNA OSHC 1949 (NO. 7902553), revId
E;remanded on other cxounds, 843 F.2d 1135 (8th Cir. 1988), deci-
sion on remand, 13 BNA OSHC 2147 (1989).
Given that falls through any of the openings cited in
instances A through F would have resulted in falls of more than 12'
to a steel deck or concrete floor below, "he violations are serious
within the meaning of the Act.
The Secretary's allegation that these violations are willful
does not withstand scrutiny. Th& record lacks the evidence that
Falcon willfully disregarded employee safety as to the deck
openings. There is no evidence on which to base an inference, as
the Secretary argues, that Falcon did not cover the openings to
save time and money.
In arriving at an appropriate penalty for the six instances of
violation of 29 C.F.R. 5 1926.752(j) the evidence of Respondent's
size is already on record. There is a paucity of evidence as to
gravity except to say that some unknown number of employees were
exposed to falls of over 12" for an unknown period of time.
Respondent's history rs 3 xatter of record, as is its good faith.
On these factors, I f:- I tr?ata penalty of $600 per violation for
each of the six instAxes LS appropriate. The appropriate total
penalty for Item No. 3 of C:tation No. 2, is thus $3,600.
-51-
FINDINGS OF FACT
All findings of fact necessary for a determination of all
relevant issues have been made above. Fed. R. Civ. P. =(a). All
proposed findings of fact and conclusions of law inconsistent with
this decision are hereby denied.
CONCLUSIONS OF LAW
1 0 Respondent was, at all times pertinent hereto, an employer
within the meaning of 5 3(5) of the Occupational Safety and Health
Act of 1970, 29 U. S. C. 55 651 - 678 (1970).
2 l The Occupational Safety and Health Review Commission has
jurisdiction over the parties and the subject matter.
Docket No. 89-2883
3 . Respondent was not in violation of 29 C.F.R. 5 1926.105(a)
as alleged in Citation No. 2, Item No. 2.
Docket No. 89-3444
40 Respondent violated 5 5(a) (1) of the Act as alleged in
Citation No. 1, Item No. 1. The violation was serious within the
meaning of § 17 (k) of the Act. A civil penalty in the amount of
$200 is appropriate for this violation under 5 17(j) of the Act.
5 l Respondent was not in violation of 29 C.F.R.
§ 1926.451(d)(lO) as alleged in Citation No. 1, Item. No. 9.
6 . Respondent ws not in violation of 29 C.F.R. 5 1926.105(a)
as alleged in Citation No. 2, Item No. 1.
70 Respondent t,lasnot in violation of 29 C.F.R.
!j 1926.500(d)(l) as alleged in Citation No. 2, Item No. 2.
- -52.
8 0 R<&ondent was in violation Of 29 C.F.R. 5 1926.550(g)(2)
as alleged in Citation No. 2, Item No. 3. The violation was
willful under 5 17(a) of the Act. A civil penalty in the amount of
$10,000 is appropriate for this violation under 517(j) of the Act.
9 l Respondent was not in violation of 29 C.F.R.
5 1926.7s50(b)(l)(iii) as alleged in Citation No. 2, Item No. 4.
10 0 Respondent was in violation of 29 C.F.R. § 1926.751(a) as
alleged in Citation No. 2, Item No. 5. The violation was serious
within the meaning of 5 17(k) of the Act. The violation was not
willful as alleged. A civil penalty of $1,000 is appropriate for
this'violation under 5 17(j) of the Act.
11 0 Respondent was in violation of 29 C.F.R. 5 1926.752(j) as
alleged in instances (a) through (f) in Citation No. 2, Item No. 6,
The alleged violations were serious within the meaning of S 17(k)
of the Act. The violations were not willful as alleged. A civil
penalty of $3,600 is appropriate for the violations under 5 17(j)
of the Act. Respondent was not in violation of 29 C.F.R. 5
1926.752(j) as alleged in instance (g) in Citation No. 2,
Item No.6.
-53.
ORDER
Docket No. 89-2883
1 l Item No. 2 of Citation No.2 is VACATED.
Docket No. 89-3444
20 Item No. 1 of Citation No. 1 is AFFIRMED.
A civil penalty of $1,000 is assessed for this violation,
3 l Item No. 9 of Citation No. 1 is VACATED.
40 Item No. 1 of Citation No. 2 is VACATED.
5 l Item No. 2 of Citation No. 2 is VACATED.
60 Item No. 3 of Citation No. 2 is AFFIRMED.
A civil penalty of $10,000 is assessed for this violation.
7a Item No. 4 of Citation No. 2 is VACATED.
8 l Item No . 5 of Citation No. 2 is MODIFIED.
. A civil penalty of $1,000 is assessed for this violation.
9 l Item No. 6 of Citation No. 2 is MODIFIED.
A civil penalty of $3,600 is assessed for this violation.
G. -,’ r;’
Y’ *:/ ,r ‘2’;‘.
/ 0 L,*-“-L * ’ l .
Michael H. SchoLnfeld
Judge, OSHRC
Dated: ,juN2 8 199
Washington, D.C.
-54.
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