Jake Heaton Erecting Company, Inc.

Plain-English summary

Jake Heaton Erecting Company was cited under 29 C.F.R. § 1926.28(a), the standard that requires employers to make workers wear appropriate personal protective equipment when exposed to hazards. A foreman knelt on a small platform about twenty feet above the ground, within a foot of the edge, without a safety belt or any fall protection. Administrative Law Judge James D. Burroughs found a violation, and the company sought review on three grounds: that the proof of who employed the foreman rested only on hearsay, that the foreman going unbelted was an unforeseeable isolated incident, and that the government never showed what protection he should have used or that using it was feasible. The Commission rejected all three arguments. It agreed the employer's identity was proven by competent evidence, that the isolated-incident defense failed under Commission precedent, and that the foreman could have tied off just as the three workers he was speaking with had done. The Judge's decision was affirmed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.28(a)
• Outcome: Affirmed. The Commission upheld the fall-protection violation.
• Key point: Feasible abatement was proven by the fact that other workers at the same spot were tied off, and a foreman's own failure to use fall protection does not qualify as an unforeseeable isolated incident.

Full text (OSHRC public release)

Docket No. 76-1309

JAKE HEATON ERECTING COMPANY, INC.

OSHRC Docket No. 76-1309

Occupational Safety and Health Review Commission

September 28, 1977

Before: CLEARY, Chairman; BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Bobbye D. Spears Reg. Sol., USDOL

J. Roy Weathsy, for the employer

OPINION:

DECISION

BY THE COMMISSION: This case is before the Commission for review pursuant to 29 U.S.C. § 661(i).

The issues on review pertain to whether Review Commission Judge James D. Burroughs properly held that the respondent failed to comply with the personal protective equipment standard cetified at 29 C.F.R. § 1926.28(a). n1 The Judge concluded that the respondent violated that regulation by not requiring its foreman to use a safety belt while exposed to a serious fall hazard. The foreman was not equipped with any protective device as he knelt on a small platform twenty feet above the ground.

• • • Footnotes - - -

n1 That standard provides:

The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

• • • End Footnotes - - -

On review, the respondent contends that:

(1) The Judge erred in relying solely on unsupported hearsay to establish the identity of the employer of the foreman.

(2) The foreman's failure to wear a safety belt was an isolated occurrence that reasonably could not have been foreseen by the respondent.

(3) The evidence of record is insufficient because it fails to establish "what protective equipment the [foreman] should have used, what Respondent could have done to eliminate or minimize the risk of fall, and the feasibility of so doing." n2

• • • Footnotes - - -

n2 The respondent's attorney is to be commended for the excellent brief that was filed in support of these issues.

• • • End Footnotes - - -

Concerning issue 1, the Commission agrees with the Judge's reasons for concluding that the identity of the employer of the foreman was established by competent evidence and adopts his decision on this matter.

As to issue 2, the Judge's rejection of the respondent's isolated incident defense is consistent with Commission precedent and is also adopted by the Commission. See, e.g., Western Waterproofing Co., 77 OSAHRC 25/A2, 5 BNA OSHC 1064, 1976-77 CCH OSHD para. 21,572 (No. 9225, 1977); Ocean Electric Corp., 75 OSAHRC 6/C14, 3 BNA OSHC 1705, 1975-76 CCH OSHD para. 20,167 (No. 5811, 1975), aff'd, No. 76-1060, 4th Cir., August 2, 1977.

With respect to issue 3, the Judge found that the respondent's foreman was exposed to a 20-foot fall while squatting within one foot of the edge of a roof panel. He also found that the foreman could have been tied off in the same manner as the three empioyees to whom he was talking at the time. These findings are supported by the preponderating evidence which establishes that the respondent should have required the foreman to use a safety belt. Cf. Frank Briscoe Co., 76 OSAHRC 129/A2, 4 BNA OSHC 1729, 1976-77 CCH OSHD para. 21,162 (No. 7792, 1976).

Accordingly, the Judge's decision is affirmed.