Carr Erectors, Inc.

Plain-English summary

Carr Erectors employees worked about 42 feet above the ground while constructing a cement bulk plant. The employer supplied safety belts and lines and instructed employees to use them, although two employees were observed without that protection. The Commission affirmed the judge's conclusion that the safety-net standard was not violated because practical alternative devices had been provided and used, and employees also worked from an aluminum ladder-type platform. The judge separately found that adding guardrails and toeboards to that platform would have made the work impossible, so the platform citation was also vacated. Both serious citation items and the combined proposed penalty of $650 were vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.105(a); 29 C.F.R. § 1926.500(d)(1)
• Outcome: Both serious elevated-work citation items and the proposed $650 penalty were vacated.
• Key point: No safety-net violation was established where listed alternatives were practical and provided, and the record showed the cited platform guarding would have prevented the work.

Full text (OSHRC public release)

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EN-US
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UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

��������������������������������������������
Complainant,

������������������������ v.

OSHRC DOCKET NO. 7909

CARR ERECTORS, INC.,

���������������������������������������������
Respondent.

June 4, 1976

BEFORE BARNAKO,
Chairman; MORAN and CLEARY, Commissioners.

MORAN,
Commissioner:

A
decision of Review Commission Judge Charles K. Chaplin, dated February 24,
1975, is before this Commission for review pursuant to 29 U.S.C. � 661(i). By
that decision, attached hereto as Appendix A, [1]
respondent was found not to be in violation of 29 U.S.C. � 654(a)(2) for
failure to comply with occupational safety and health standards codified at 29
C.F.R. �� 1926.105(a) and 1926.500(d)(1). We affirm that disposition.

Review
of this case was directed on March 17, 1975, on the following issue:

�Whether the
Administrative Law Judge erred in finding that respondent complied with the
provisions of the standard at 29 C.F.R. � 1926.105(a)?�

In
addition, respondent argues that the direction for review was untimely under 29
U.S.C. � 661(i) and should therefore be dismissed.

We
have previously considered the latter issue under similar circumstances in Secretary
v. Rob�t. W. Setterlin and Sons Company , OSAHRC Docket No. 7377, May 11,
1976. We adhere to our holding in that case. Consequently, we find that the
direction for review in this case was timely because it was executed before
March 26, 1975, the date on which the Judge�s decision would otherwise have
become a final order of the Commission. 29 U.S.C. � 661(i).

Furthermore,
we hold that the Judge correctly vacated the citation for noncompliance with �
1926.105(a), which provides as follows:

Safety nets shall be
provided when workplaces 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.

�

Although
a safety net was not provided, the two employees involved were working from a
�pic,� described by complainant as an �aluminum, ladder-type platform
approximately 20 feet long and 20 to 25 inches wide.� Inasmuch as the employees
were provided with and used an alternative safety device contemplated by the
standard, a violation of � 1926.105(a) for failure to provide safety nets has
not been established. Brennan v. OSAHRC and Ron M. Fiegen, Inc ., 513
F.2d 713 (8th Cir. 1975); Brennan v. OSAHRC and J. W. Bounds (Pearl Steel
Erection Co.), 488 F.2d 337 (5th Cir. 1973 ); Secretary v. Rob�t W.
Setterlin and Sons Company, supra .

Accordingly,
the Judge�s decision is affirmed.

�

FOR THE COMMISSION:

�

William S. McLaughlin

Executive Secretary

DATED: JUN 4, 1976

�

CLEARY,
Commissioner, DISSENTING:

I
respectfully dissent.

The
relevant citation issued to the employer described the alleged violation of
section 1926.105(a) as follows:

1926.105(a):
�Failure to provide safety nets when workplaces 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.
e.g. During the inspection, one employee was observed walking across an I beam
10 to 12 inches wide, 62 feet long and 42 feet in height from the ground
without any type of protection being provided to prevent his falling nor was a
safety net installed. e.g. During the inspection, four other employees were
observed walking horizontal I beams at different areas 42 feet from the ground
without any type of safety equipment being installed to prevent their falling.�

�

The
evidence shows that two employees were walking on I-beams while unprotected by
safety nets, ladders, scaffolds, catch platforms, temporary floors, and safety
lines or belts. The majority, however, focuses only on the fact that the two
employees were working from a �pic,� a portable, aluminum, ladder type device,
20 inches wide, which was placed horizontally upon and between two roof beams.
The majority holds that the �pic� is an alternative safety device contemplated
by the cited standard. They do so even though the �pic� had no guardrail or
toeboard. The Administrative Law Judge held that the use of a guardrail and
toeboard would render the performance of the work impossible and therefore were
not required. [2]

The
majority loosely describes the �pic� as a �ladder-type standard. The �pic�
bears only a superficial standard. The �pic� bears only a superficial
resemblance to a ladder. I would hold that it is not a �ladder� under the
standard, [3]
and that it does not come within any of the other regulatory terms. I read
section 1926.105(a) as requiring the protection of employees by at least one of
the devices specified in the standard. Brennan v. Southern Contractors
Service , 492 F.2d 498 (5th Cir. 1974).

Even
if the �pic� could be fairly characterized as a �ladder� or compassed by any
other term in section 1926.105(a). I would consider it to be �impractical�.
Without the use of guardrails and toeboards it provides no protection
whatsoever to employees from the hazard of falling. If the word �impractical�
has any meaning at all under the standard, it would seem to bar a device having
little or no safety value. Contra. Brennan v. O.S.H.R.C. and Ron Fiegen, Inc .,
513 2d 713 (8th Cir. 1974).

Finally,
the employer argues that it is complying with section 1926.105(a) by requiring
the use of safety belts. The briefs of both parties suggest that the crucial
issue that should be decided in this case is whether the employer has done all
that was possible to require the use of safety belts. The majority ignores the
issue.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

��������������������������������������������
Complainant,

������������������������ v.

OSHRC DOCKET NO. 7909

CARR ERECTORS, INC.,

���������������������������������������������
Respondent.

FINAL ORDER
DATE: March 26, 1975

APPEARANCES:

William
Curphey, III, Esq. For Complainant

R.
Larry Schneider, Esq. For Respondent

DECISION
AND ORDER

Charles K.
Chaplin, Judge:

This
is a proceeding pursuant to section 659 of the Occupational Safety and Health
Act of 1970 (29 U.S.C. 651 et seq., hereafter the Act) wherein the respondent
contested both the fact of violations as well as the total proposed penalty of
$650 for alleged serious violations of section 5(a)(2) of the Act by failing to
comply with the standards codified at 29 CFR 1926.105(a) and 1926.500(d)(1).

The
standard at 1926.105(a) provides:

Safety nets shall be
provided when workplaces 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
standard at 1926.500(d)(1) provides:

�Every opensided
floor or platform 6 feet or more above adjacent floor or ground level shall
be guarded by a standard railing, or the equivalent . . . The railing shall be
provided with a standard toeboard . . .� (Emphasis added)

The
citation, issued May 6, 1974, after a May 1, 1974, inspection, described the
alleged violations as follows:

1926.105(a):
�Failure to provide safety nets when workplaces 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.
e.g. During the inspection, one employee was observed walking across an I beam
10 to 12 inches wide, 62 feet long and 42 feet in height from the ground
without any type of protection being provided to prevent his falling nor was a
safety net installed. e.g. During the inspection, four other employees were
observed walking horizontal I beams at different areas 42 feet from the ground
without any type of safety equipment being installed to prevent their falling.�

�

1926.500(d)(1):
�Failure to guard every opensided floor or platform 6 feet or more above
adjacent floor or ground level by a standard railing, or equivalent. The
railing shall be provided with a standard toeboard wherever, beneath the open
sides persons can pass, or there is moving machinery, or there is equipment
with which falling materials could create a hazard. e.g. Two employees were
observed working on an unsecured ladder-type platform approximately 18 to 20
inches wide, with a drop of 42 feet laying across two steel I beams without any
guardrails and toeboards installed on all opensides and ends.

�

THE ABOVE TWO ITEMS
TOGETHER CONSTITUTE AN ALLEGED SERIOUS VIOLATION�

During
the hearing respondent made motions to dismiss both alleged violations. These
motions are denied.

Complainant�s
motion, also made during the hearing, to amend the pleadings in the alternative
to a charge under 1926.750(b)(ii) is denied because the untimeliness thereof
would clearly prejudice respondent, and this subpart is inapplicable under the
circumstances here.

THE
EVIDENCE

The
parties have stipulated that respondent is an employer within the meaning of
section 652 of the Act and employs approximately 14 employees in and about its
aforesaid worksite; in addition, that respondent�s construction business
affects commerce within the meaning of section 3(3) of the Act. Furthermore,
relation to the charge under 1926.105(a), respondent stipulated that there was
no safety net at the worksite during the time of the inspection.

The
unrebutted evidence developed upon the record shows that on May 1, 1974,
respondent�s employees were working on a one-story cement bulk plant located at
2930 Crescentville Road, Sharonville, Ohio (Tr. 31, also see the complaint and
answer hereunder). Five employees were working on the roof which was 41�42 feet
above ground level (Tr. 33, 44, 70�71). Of these five, three employees were
�tied off,� while the remaining two used no apparent safety devices (Tr. 44)
even though they had been provided with and instructed to use safety belts and
lines (Tr. 59�61, 67, 73, 83). The inspector testified that some type of safety
line would have been acceptable in lieu of the use of safety nets (Tr. 96). He
also testified that at various times he saw two men not wearing any safety belt
or line, walking on the �I� beams and working from an aluminum ladder type
platform having no handrail or toeboard (Tr. 34, 36�39, Exhibits C�2 through
C�8, and C�10). However, respondent�s employee ironworker, Paul M. Kates,
testified that no work could have been accomplished had a handrail or toeboard
been attached thereto (Tr. 74�75).

ISSUES

The
issue is whether there is a preponderance of the evidence [4]
showing respondent is in violation of the charged standards.

DISCUSSION

Respondent
has been charged with a violation of 1926.105(a). That standard makes it
mandatory that safety nets be provided upon two findings: (1) the workplace is
more than 25 feet above the ground, and (2) the use of listed alternative
safety measures is impractical. Clearly, the failure to so do, i.e., to not use
the alternative listed safety devices when practical and no safety net is provided,
under said conditions demands finding a violation thereunder. Brennan v.
Southern Contractors Service , 492 F2d 498, 501 (5th Cir. 1974). However,
when a listed alternative is practical and used, no violation can be found. Brennan
v. Occupational Safety and Health Review Commission , 488 F2d 337 (5th Cir.
1973).

Here,
the evidence establishes that five of respondent�s employees were working more
than 25 feet above the ground. Though no safety net had been provided, all of
the employees had been given safety lines and belts together with instructions
requiring the use thereof. This use was a practical alternative to providing A
safety net. On the day of the inspection, three of them were wearing these
safety devices.

Based
on this evidence, I can not conclude respondent is in violation of the
standard. As required, respondent has provided practical safety devices which
were used. Section 5 of the Act requires both employers and employees to comply
with standards promulgated thereunder. The record here establishes that the
respondent has done what 1926.105(a) demands of it. The two employees acting
contrary to their fellow workers and instructions must also accept
responsibility for adhering to these requirements. Furthermore, to find a
violation in the face of this evidence would, in essence, make the respondent
an absolute guarantor or insurer that its employees will observe all the
Secretary�s standards at all times. This would be contrary to the holdings of
this Commission. See Secretary v. Standard Glass Co ., 1 OSAHRC 594
(Docket No. 259, July 27, 1972).

Therefore,
because practical alternative safety devices were provided and used, I conclude
no violation can be found under the charged standard.

Respondent
was also charged with a violation of 1926.500(d)(1). That standard requires a
guardrail and toeboard on platforms that are six feet or more in height above
the working surface. Considering the definition of �platform� in 1926.502(e), [5]
I am of the opinion that the aluminum ladder type platform in question so
qualifies. However, such a finding does not inevitably mean a violation must be
found therefrom. Only when the use of protective measures, such as those
described in the standard, does not severely disrupt or make impossible the
performance of work can there be such a finding. Secretary v. Mohawk
Manufacturing Co ., 1 OSAHRC 520 (Docket No. 608, July 7, 1972); Secretary
v. Deluca Construction Co ., 2 OSAHRC 435 (Docket No. 1225, February 9,
1973); Secretary v. LaSala Contracting Co., 2 OSAHRC 976 (Docket No. 1207,
March 28, 1973); See Secretary v. Tilo Co ., 2 OSAHRC 1391 (Docket No.
211, April 27, 1973); Secretary v. Masonry, Inc ., 5 OSAHRC 524 (Docket
No. 2693, December 6, 1973; Secretary v. W.B. Meredith II, Inc. , 9
OSAHRC 245 (Docket No. 810 June 7, 1974).

No
such finding can be made here. In fact, the unrebutted evidence clearly
establishes that the performance of the work would not have been possible from
the aluminum ladder type platform if it was equipped with a handrail or
toeboard. Upon so concluding, no violation can be found.

FINDINGS
OF FACT

1.
On May 1, 1974, respondent was in the process of constructing a cement bulk
plant located at 2930 Crescentville Road, Sharonville, Ohio.

2.
Five of its employees were working on the roof thereof with no safety net being
provided or used.

3.
This roof was 41�42 feet above the ground.

4.
All of these employees were provided with and instructed to use safety belts
and lines.

5.
Three of them were using safety belts and lines on the day in question; however,
two were not using any of the provided safety equipment.

6.
Under these circumstances, the provided and used safety devices were practical
within the meaning of 1926.105(a).

7.
On the roof of subject building some of the employees were working from an
aluminum ladder type platform.

8.
This platform is of such a type as to be subject to the requirements under
1926.500(d)(1).

9.
The platform had no guardrail or toeboard.

10.
Because of the physical characteristics thereof, no work could have been performed
if it was so equipped.

CONCLUSIONS
OF LAW

1.
Respondent is, and was at all times, relevant to the issues herein, engaged in
a business affecting commerce within the meaning of section 652 of the Act.

2.
Respondent is, and was at all times herein mentioned, an employer within the
meaning of section 652 of the Act and subject to the provisions of sections 653
and 654 thereof and standards authorized by section 655.

3.
Respondent was not in violation of section 654 of the Act for failure to comply
with occupational safety and health standards codified at 29 CFR 1926.105(a)
and 1926.500(d)(1).

It
is hereby ORDERED:

That
the citation for two serious violations herein and civil penalty proposed
therefor, dated May 6, 1974, and directed to the respondent, are vacated.

�

CHARLES K. CHAPLIN

Judge, OSAHRC

Dated: February 24, 1975

Washington, D.C.

[1] Chairman Barnako does not agree to this attachment.

[2] This holding of the Judge
is not before us.

[3] A ladder has been aptly
defined as an appliance which rises at an angle and is used for ascending or
descending to and from a desired height. See Streetman v. Andress Motor Co.,
189 So. 321, 324 (La. App. 1939); Cole v. List & Weatherly Constr. Co .,
156 So. 88, 90 (La. App. 1934); Washburn v. Skogg , 204 Wis. 29, 233 N.W.
764, 766 (1930); Montgomery Ward & Co. v. Snuggins , 103 F.2d 458,
462 n.3 (8th Cir. 1939); Davis v. Duss Machine Works , 169 Mich. 498, 135
N.W. 303, 304 (1912).

[4] See Secretary v. Armor
Elevator Co., 5 OSAHRC 260 (Docket No. 425/426, November 20, 1973).

[5] 1926.502(e) defines
platform as �[a] working space for persons, elevated above the surrounding
floor or ground . . . for the operation of machinery and equipment.