Century Steel Erectors, Inc.

Plain-English summary

Century Steel employees were dismantling a bridge-work scaffold when an employee fell about 40 feet while tack welds were being cut. An ALJ found a serious fall-protection violation because employees were not tied off and assessed $1,000 for that item. The D.C. Circuit reversed, holding that the Secretary had to establish that safety belts were practical for the work and that the employer could rely on evidence of industry custom and practice. The Commission remanded the citation to the ALJ for findings under that standard. In the later remand decision included in the official release, the ALJ credited unrebutted ironworker testimony that tying off during the mobile tack-weld removal work was impractical and contrary to local industry practice. The ALJ then vacated the fall-protection item.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.105(a)
• Outcome: Commission remand ordered on the $1,000 fall-protection item; the included later ALJ decision vacated that item.
• Key point: When the Secretary relies on safety belts as the practical protection under this standard, evidence about whether tying off is workable, including industry practice, must be considered.

Full text (OSHRC public release)

Docket No. 87-1348

SECRETARY OF LABOR,

Complainant,

v.

CENTURY STEEL ERECTORS, INC.,

Respondent.

OSHRC Docket No. 87-1348

ORDER

This case was remanded to the Commission by the United States
Court of Appeals for the D.C. Circuit. Century Steel Erectors, Inc. v. Secretary of
Labor, 888 F.2d 1399 (D.C. Cir. 1989), rev'g Century Steel Erectors, Inc., 13
BNA OSHC 1869, 1988 CCH OSHD � 28,294 (No. 87-1348, 1988) (unreviewed decision of
Administrative Law Judge). The court reversed a decision that had found Century Steel
Erectors in violation of 29 C.F.R. 1926.105(a) [[1]] and remanded the case "for
further consideration."

Century was cited for violating section 1926.105(a) because it
did not require its employees cutting tack welds to use safety belts and tied-off lanyards
even though they were exposed to a 40-foot fall. The judge affirmed a violation of section
1926.105(a). He found that, although the use safety nets would have been impractical,
Century's employees could have been protected by securing their safety belt lanyards to a
secure object or safety line. The judge held that Century's claim that it was the custom
and practice in the industry not to tie off while cutting welds was no defense to a
violation of section 1926.105(a).

The court accepted the judge's finding that the use of safety
nets was impractical. Furthermore, the court held that the Secretary has the burden of
establishing that the use of safety belts is practical. Once the Secretary has presented a
prima facia case, the court held, the employer has the opportunity to present evidence
that the use of safety belts is not practical, including evidence of the industry's custom
and and practice of not using safety belts during the cited operation. The court held that
judge should have considered the evidence introduced by Century on the custom and practice
in the steel erection industry, and it remanded the case for a determination of the
practicality of using safety belts during the cutting of tack welds.

Accordingly, we remand this case to the Administrative Law Judge for him to make the
necessary findings consistent with the court's order and to issue an order disposing of
the section 1926.105(a) citation.

Edwin G. Foulke, Jr.

Chairman

Velma Montoya

Commissioner

Donald G. Wiseman

Commissioner

DATED:    May 24, 1990

SECRETARY OF LABOR,

Complainant,

v.

CENTURY STEEL ERECTORS, INC.,

Respondent.

Docket No. 87-1348

APPEARANCES:

COVETTE ROONEY, Esquire

U. S. Department of Labor

Office of the Solicitor

Philadelphia, Pennsylvania

For the Complainant

RICHARD R. NELSON II, Esquire

Alder Cohen & Grigsby, P. C.

Pittsburgh, Pennsylvania

For the Respondent

DECISION AND ORDER

Sommer, Judge:

This is a proceeding under section 10 (c) of the Occupational
Safety and Health Act of 1970, 29 U.S.C. � 651-78 ("the Act"), to review
citations and a notification of proposed penalty issued by the Secretary of Labor
("Complainant") to Century Steel Erectors ("Respondent") on July 28,
1987. A hearing was held in Pittsburgh, Pennsylvania. Both parties were represented by
counsel who filed post-hearing briefs. No jurisdictional issues are in dispute, Respondent
having admitted the jurisdictional allegations of the complaint. There are two citation
items in issue--items 1a and 2 of citation no. 2.

Citation no. 1 alleged that Respondent had committed serious
violations of 29 C.F.R. � 1926.200(g) (1) (item 1), 29 C.F.R. � 1926.350(b)(1) (item 2),
and 29 C.F.R. � 1926.450(a)(1) (item 3). At the hearing the parties agreed to settle
these items by vacating item 1, affirming item 2 and assessing a penalty of $250, and
amending item 3 to non-serious and assessing a penalty of $200.

Item 1a of citation no. 2 alleged a willful violation of
section 5 (a) (1) of the Act or, in the alternative, 29 C.F.R. � 1926.28(a) for failure
to protect employees from a fall hazard by the use of safety belts and lanyards or other
means. The complaint amended this allegation to allege a violation of 29 C.F.R. �
1926.105(a) in lieu of section 5(a)(1) and 29 C.F.R. � 1926.28(a). Items 1b-1d alleged
violations of 29 C.F.R. � 1926.20(b)(1)1 1926.20(b)(2), and 1926.21(b)(2). These
allegations were dismissed with prejudice on Complainant's pretrial motion, leaving only
the allegation of violation of 29 C.F.R. � 1926.105(a) in issue under citation no. 2,
item 1. Another citation item (item 1 of citation 3), alleging a non-serious violation of
29 C.F.R. � 1926.51(c)(2), also was dismissed with prejudice prior to the hearing on
Complainant's motion.

Item 2 of citation 2 alleged a willful violation of 29 C.F.R.
� 1926.416(a)(1) in that Respondent permitted employees to work in close proximity to
energized high-voltage lines without taking adequate precautions to protect employees from
the hazard of severe electric shock. Complainant proposed a penalty of $10,000 for this
alleged violation, and a penalty of $9000 was proposed for the willful violations alleged
in item 1 of citation 2.

BACKGROUND

Respondent is a steel erection contractor with offices at 1125
Camp Hollow Road, West Mifflin, Pennsylvania. It was a subcontractor to Trumbull
Corporation on a construction site at the junction of the Pennsylvania Turnpike and Route
28 in Harmarville, Pennsylvania. (T 11, 411, ex. R9). Trumbull was engaged in repairing
the bridge which carried the Turnpike over Route 28 and adjoining railroad tracks. (T
423). Pursuant to its contract, Respondent had erected a scaffold to support a catch
platform for protecting the highway, the ramp from the highway to the turnpike, and the
railroad tracks from falling debris. (T 58, 376, 437). The catch platform was built in two
separate sections, one over the roadway and the other over the railroad tracks. The
section over the railroad tracks was built higher in order to clear some power lines that
ran alongside the tracks. (T 443-44). At the time in question, the repair work had been
completed, the catch platform had been removed, and Respondent was in the process of
dismantling the scaffold.

Complainant's compliance officer inspected Respondent's
worksite on June 17, 1987, in response to a fatal accident the previous day when an
employee of Respondent fell approximately 40 feet from the top of the scaffold.
Complainant alleges that Respondent's employees were not using fall protection and that
they were working too close to energized power lines.

DISCUSSION

Alleged violation of 29 C.F.R. � 1926.105(a) [[1]] --item

1a of willful citation no. 2

The scaffold on which Respondent's employees were working
consisted of several parallel sections of scaffolding. An H-beam, 14 inches wide, ran
across the top of each section. These beams in turn supported crossbeams, referred to as
bar joists, which extended between the scaffold sections, connecting one scaffold section
to another. The catch platform, which had previously been removed, had consisted of metal
decking laid across the bar joists. (T 16-17, 442, 5110 ex. G1, G2, R9). On the day the
accident occurred, the bar joists were being detached from the scaffold structure. on the
following day, when the inspection was conducted, removal of the bar joists was being
completed, and some of Respondent's employees were preparing to remove the supporting
H-beams. (T 521-26, 536-39). The deceased employee, William Spieler, was a member of a
work crew that was using cutting torches to remove the tack welds holding the bar joists
in place. Although the record does not show whether Spieler was wearing a safety belt at
the time he fell, there is no dispute that Spieler was not tied off (T 63-64, 533).

When compliance officer William Draper arrived at the site, work was being performed on
scaffold sections "D" and "E," the latter being the scaffold from
which Spieler had fallen. Two employees were cutting welds away from bar joists on
scaffold "D," while two others were sitting straddling an H-beam waiting to
connect it to the sling of the crane that was to lower the beam to the ground. (T 28-31,
33, 39, 101-02, 521- 24; ex. G2(c)-(k)). Three of the four employees were wearing safety
belts with lanyards that they could use to tie off; the fourth employee had a belt but no
lanyard. Draper felt that safety nets could not have been hung and would not have been
appropriate but told foreman Ronald Schagle that the employees should be tied off. [[2]]
Schagle then instructed them to do so, except for the one employee who did not even have a
lanyard. (T 39-41, 51). Although the record is not explicit, it appears that the employees
who tied off did so by looping their lanyards around one of the beams (T 50; ex. G2(j)).

Schagle did not deny that he instructed the employees to tie
off but testified that he did so to placate Draper and because the employees had stopped
working when Draper appeared. Schagle felt that if employees were simply going to sit on
the beams doing nothing they might as well tie off. He then changed his mind and directed
the workers to come down since they were not working. (T 519).

Respondent's written safety rules require that "when working in high places or where
there is a chance of falling, employees must use safety devices" and that
"workers must be tied off when working in a stationary position such as grinding,
welding, torch burning ..." (ex. R1). However, ironworkers are not required to use
safety belts while removing tack welds and customarily do not tie off during such work
because it is considered to be mobile work. A tack weld can be removed in 15 to 40
seconds; thus, employees move quickly from one. weld to another (T 173, 390-92, 485-86).
The Harmarville job in particular required a high degree of mobility because the welds on
each end of the joists were being removed simultaneously by two crews. (T 515, 526).

Respondent's foreman Beton also testified that it would be more
hazardous to use a safety belt during mobile work because the lanyard could get snagged.
(T 391). Superintendent Weber agreed that tying off would be more hazardous but did not
explain why. (T 476).

The record also shows that Respondent has a well-established
safety program. Its safety manual is printed in the form of a small booklet that is
distributed to all employees. Regular safety meetings are held at jobsites, and a written
record is made of such meetings. Respondent's rule that employees must tie off while
stationary is frequently mentioned at these meetings. Foremen and superintendents have the
responsibility for enforcing the safety rules, and foreman Schagle testified that he has
reprimanded employees for not tying off where required. (T 424-26, 542). Jobs are planned
in advance, including on-site visits by superintendent Weber to determine how the work may
be performed safely. Respondent's safety director also makes field visits, a report of
which is given to Weber and the on-site foreman. Exhibit R6 includes a report of the
safety director's visit to the Harmarville worksite in March 1987, which notes that most
employees were tied off and the failure of two employees to wear their belts was corrected
immediately. Respondent's insurance carrier, Liberty Mutual, also conducts inspections
which include discussions with foremen and employees. Reports of inspections by Liberty
Mutual of the Harmarville site in September and October 1986 were admitted as exhibit R8.
The first report recommends that "ironworkers working in a stationary position such
as welding or burning" should be tied off. This recommendation refers to welding that
requires a substantial amount of time in one location and does not include tack welding.
The second report notes that "the practice of tying off ironworkers has been stressed
at a number of safety talks held on the job." Additional safety material maintained
by Respondent consists of safety memos that are distributed to employees to keep them
abreast of company safety policy and a daily diary of each major job, in which safety
notations are logged. (T 424-36, 480-81).

Respondent is charged with a violation of 29 C.F.R �
1926.105(a), which requires that safety nets be used where the other protective devices
enumerated are "impractical." While the term "impractical " is
ambiguous, Brennan v. Southern Contractor Service, 492 F.2d 498 (5th Cir. 1974),
both the Commission and the courts have held that the standard is violated if none of the
devices listed, including safety belts, are being used to protect employees from a fall of
over 25 feet. Brock v. L.R. Willson & Sons, Inc., 773 F.2d 1377, 1383-84 (D.C.
Cir. 1985) (" Willson II "); Southern Colorado Prestress Co. v. OSHRC, 586
F.2d 1342 (10th Cir. 1978); L.E. Myers Co., High Voltage systems Division, OSAHRC /
12 BNA OSHC 1609, 1614 & n.11, 1986-87 CCH OSHD � 27,476, pp. 35,604-05 & n.11
(No. 82-1137, 1986), rev'd on other grounds, 818 F.2d 1270 (6th Cir. 1987), cert .
denied, 108 S.Ct. 479 (1987); Morgan & Culpepper, Inc., 81 OSAHRC 26/A2,
9 BNA OSHC 1533, 1538, 1981 CCH OSHD 11 � 25,293, p. 31,298 (No. 9850, 1981), aff'd,
676 F.2d 1065 (5th Cir. 1982).

On the other hand, if one of the protective devices listed in
the standard is in fact being used at the worksite in question, the employer will be in
violation only if the device it is using does not provide adequate fall protection. See
L.E. Myers, supra, 818 F.2d at 1276 n.6 and cases cited therein. In L.R.
Willson & Sons. Inc. v. Donovan, 685 F.2d 664 (D.C. Cir. 1982) ( "Willson
I" ), the court concluded that the standard does not require that fall protection
be used at all times. The court vacated a citation under 29 C.F.R. � 1926.105(a)
because the Secretary failed to prove that safety belts were not used during a
"substantial portion" of the workday.

In the instant case, Respondent contends that item la must be
vacated because Complainant failed to prove that safety belts were not used for a
substantial part of the day of the inspection. In fact, Respondent claims that compliance
officer Draper testified that after the employees tied off at his insistence, they
remained tied off during the rest of that day. (Trial brief at 15-16, reply brief at 4). I
find to the contrary.

The violation was alleged to have occurred on June 16 (the day of the fatality) and June
17 (the day of the inspection). The work being performed consisted of the removal of bar
joists on June 16 and the removal of bar joists and H-beams on June 17. It is undisputed
that Respondent does not require its ironworkers to tie off during either of these
operations and that they customarily do not tie off when doing such work. The evidence
therefore supports a finding that Respondent's employees were not using safety belts on
June 16.

on the following day, none of the ironworkers were tied off
when compliance officer Draper first observed them, and they did not tie off until he
insisted that they do so. The record shows that Draper arrived at the site at about 11
a.m., that the employees came down for their lunch break after they initially had tied
off, and that he then saw them tied off for about 15 minutes when they went back to work
after lunch. Draper then left the worksite. (T 12, 29, 102). Contrary to Respondent's
argument, the evidence does not show that the employees remained tied off after Draper
left. However, since I find that Respondent's employees did not use safety belts during
their normal work operations before the inspector arrived, I do not need to speculate on
what actions the employees may or may not have taken after Draper's departure. Since the
evidence shows that Respondent's employees were exposed to a fall of more than 25 feet and
that none of the devices listed in the standard were used, Complainant has established a
prima facie case. Sierra Construction Corp., 78 OSAHRC 2/E6, 6 BNA OSHC 1278, 1978
CCH OSHD � 22,506 (No. 136381, 1978).

Respondent also contends that it would not have been practical for its employees to tie
off during the work operations at issue here. Respondent emphasizes the need for mobility,
the interference that lanyards would cause, and the custom and practice of ironworkers not
to tie off in the circumstances here. Under Dun-Par Engineered Form Co., OSAHRC /
12 BNA OSHC 1949, 1986-87 CCH OSHD � 27,650 (No. 79-2553, 1986), rev'd on other
grounds, 843 F.2d 1135 (8th Cir. 1988), Respondent can defend by showing that the use
of tied-off safety belts would have been infeasible. However, I find that it failed to
establish its defense.

With the exception of foreman Beton's remark that a lanyard
could get snagged, Respondent's evidence does not explain why the need for mobility would
preclude or render infeasible the use of safety belts. I find Beton's testimony
unpersuasive. The record does not show that Beton had any knowledge of or experience with
lanyards becoming snagged or that he had any other basis on which to conclude that
snagging was a realistic possibility. In addition, foreman Schagle described the normal
precautions that are taken to prevent a welding torch hose from interfering with the work:
the hose is pulled or draped over a joist to reduce slack, the hose is not laid in the
immediate work area, and attempts are made to avoid tangles that could cause a tripping
hazard. (T 544-45). The record does not show any reason why similar care could not be
taken with respect to a lanyard. Furthermore, Schagle testified that while tying off is
not customary, employees are permitted to tie off if they so choose, and in fact he
conceded that safety belts could have been used for a majority of the workday. (T 530-31).
Finally, since 29 C.F.R. � 1926.105(a) is a specific standard, compliance with industry
custom and practice is not a defense. See Willson II , supra, 173 F.2d at
1387.

However, I do not find the violation willful as alleged. To
establish that a violation is willful, the Secretary must show that it was committed
voluntarily with either an intentional disregard for the requirements of the Act or plain
indifference to employee safety. E.g., Simplex Time Recorder Co., OSAHRC /
12 BNA OSHC 1591, 1984-85 CCH OSHD � 27,456 (No. 82-12, 1985). The evidence fails to
prove that Respondent exhibited disregard for the fall protection requirements of 29
C.F.R. � 1926.105(a) or was indifferent to employee safety.

Complainant contends that the violation is willful because
Respondent allowed its employees to continue to work without using safety belts on the day
after Spieler fell. However, simple carelessness or lack of diligence in eliminating a
violative condition does not in itself establish willfulness. Asbestos Textile Co., OSAHRC
12 BNA OSHC 1062, 1984-85 CCH OSHD � 27,101 (No. 79-3831, 1984). In a recent decision the
First Circuit explained that willfulness requires an inquiry into the employer's state of
mind:

[A]n act may be "willful" if the offender shows
"indifference" to the rules; he need not be consciously aware that the conduct
is forbidden at the time he performs it, but his state of mind must be such that, if he
were informed of the rule, he would not care.

Of course, there may be instances in which unsafe conduct is so
egregious, so life-threatening, that the agency might apply an "objective"
standard of willfulness, assuming its existence from the offender's knowledge of
conditions even without direct evidence of its subjective attitude toward the law. But,
this is not such a case, For experienced workers on a flat roof (surrounded by a low
parapet) to come within a foot or two of the edge under the eye of a monitor may be
unsafe, but it is not so obviously unsafe that the agency is required by law to
assume a "willful" state of mind on the part of the employer.

Brock v. Morello Brothers Construction, Inc., 809 F.2d
161 (1st Cir. 1987) (emphasis in original).

The only evidence relating to Respondent's state of mind is the
testimony of foreman Schagle that ironworkers would not consider walking along and sitting
on 14-inch wide beams to be hazardous. Based on conversations with Spieler's co-workers,
Schagle also determined that Spieler fell because he had simply "blacked out."
(T 522, 525, 534). This evidence fails to show that Respondent's state of mind was such as
to indicate conscious disregard or indifference to employee safety. Nor can I conclude
that experienced ironworkers working off of beams 14 inches wide presents such an
egregious hazard that a willful state of mind should be presumed in the absence of any
other evidence.

In addition, Respondent has a comprehensive general safety
program, including a specific safety belt rule that it implements and enforce in certain
work operations. Precautions Respondent took prior to the inspection at an earlier stage
of the scaffold construction further demonstrate that it was not unmindful of the need for
fall protection. When the scaffold and catch platform was first erected, Respondent
installed a cable and placed pieces of metal decking along the perimeter of the catch
platform as fall protection. It also put a handrail along a walkway that connected the two
sections of the catch platform. (T 441-43, 474-75). After the perimeter protection was
removed when Respondent began disassembling the scaffold, it made safety belts and
lanyards available to its employees for their use if they so desired. (T 475, 530-31).
Belts were in fact used when employees began dismantling larger sections of the scaffold
after the bar joists and H-beams had been taken down. (T 543). The fact that Respondent
furnished but did not require full use of safety belts is not sufficient to show a willful
violation; a good faith effort to comply with a standard or eliminate a hazard negates
willfulness even if the employer's efforts are not entirely effective or complete. Mobil
Oil Corp., 83 OSAHRC 47/B6, 11 BNA OSHC 1700, 1983-84 CCH OSHD � 26,699 (No. 79-4802,
1983).

The record evidence is sufficient, however, to show that the
violation of 29 C.F.R. 1926.105(a) is serious under section 17(k) of the Act. Foreman
Schagle knew that the deceased and other employees were not tied off (T 33), and there
clearly was a substantial probability of death or serious injury. Consistent with the
criteria set forth in section 17(j), and all the circumstances herein, a penalty of $1000
is assessed.

Alleged violation of 29 C.F.R. � 1926.416(a)(1) [[3]] -- item

2 of willful citation no. 2

Scaffold section "E," one of the sections that had
supported the catch platform over the railroad tracks, was adjacent and parallel to some
power lines that ran alongside the tracks. (T 16-17; ex. R9). The bar joists between
scaffold sections "D" and "E" which were being removed at the time of
the inspection were perpendicular to, and crossed over, the power lines. (Ex. C1 (a), R9).

The lines were supported on poles with two crossarms. The lower
crossarm carried three phases (conductors) of 12kv (12,000 volts) each; there were three
25kv lines on the upper crossarm. On the day of the accident only the top lines were
energized. None of Respondent's employees, including the deceased, ever actually came into
contact with the energized lines, which were not insulated. (T 159, 267).[[4]]
Complainant's theory is that the employees were working too close to the lines.

The power lines were operated by West Penn Power Company ("West Penn"). Toward
the end of January 1986, when West Penn's line foreman reported that Respondent was
building some scaffolding in the area, Campbell, West Penn's senior engineering
technician, went to the worksite to check clearances. He decided to move the 25kv
conductors as far from the scaffold as possible and to deenergize sections of two of the
12kv lines. One 25kv conductor was relocated from the scaffold side of the crossarm to the
other side of the pole, thus freeing space to move the outermost conductor closer to the
pole. Two 12kv lines were deenergized between the poles closest to the work area; the
remaining 12kv line was left energized to supply power for Respondent's equipment at the
site. (T 303-13).

There is general agreement regarding the distances between the
power lines and the scaffold. For this decision, I will rely on the testimony of West
Penn's personnel, who took actual measurements of these distances. The 12kv lines were
approximately 27 feet above the ground and 5 feet, 4 inches below the 25kv lines. The top
crossarm which supported the 25kv lines was 11.8 feet below the level of the bar joists.
Laterally, the pole was 5.8 feet from the scaffold and the closest 25kv insulator was 5.6
feet to the side of the scaffold. The 12kv line that remained energized was on the
opposite side of the pole, 10 feet horizontally from the scaffold and 17 feet below the
level of the joists. (248-55, 327-28, 356-57; ex. G3).[[5]]

Since the top of the scaffold where the employees were working was above and to one side
of the power line, the closest distance between the nearest 25kv conductor and the
employees on the scaffold beams would be a diagonal line extending down from the top of
the scaffold and over to the conductor. While the record does not indicate the length of
this imaginary line, I take official notice that it would be approximately 13 feet by
mathematical computation.

On or about February 11, Respondent was ready to put the first
bar joists in place. Since this work required use of a crane, foreman Beton asked West
Penn to deenergize the 25kv lines. West Penn cut the lines off the next morning, February

12. On that day, while measuring for the bar joists, Beton accidentally dropped his metal
    measuring tape onto the one energized 12kv line. This incident did not cause any injuries.
    (T 268-80, 402-03, 407-08; ex. G6). Shoemaker, West Penn's claim representative, estimated
    that Beton would have been no closer than 20 feet to the energized line when taking his
    measurements. (T 295, 297). Although this line supplied power to the worksite, it was
    deenergized at the time of the accident for reasons which the record does not indicate. (T
    106-08).

Respondent's safety rule specifies minimum clearance distances
from unprotected or uncovered power lines. Ironworkers may not come within 8 feet of
8.7-15kv lines and must keep 10 feet away from 15-35kv lines. This safety rule has been
agreed on with the employees' union, and it appears in Respondent's union contract as well
as Respondent's safety manual. (T 151-52; ex. R1, R3).

The cited standard, 29 C.F.R. � 1926.416(a)(1), does not
specify any minimum clearance distance from unguarded or uninsulated energized circuits.
Rather, it limits the "proximity" of an employee to such circuits. While the
term "proximity" is not vague, the standard does require proof "by
objective means [that] employees are within reach of, and therefore may contact, an
energized power circuit while they work." Cleveland Consolidated, Inc.,
OSAHRC/, 13 BNA OSHC 1114, 1117, 1986-87 CCH OSHD � 27,829, p. 36,428 (No. 84-696,
1987).[[6]]

It is clear from the record evidence that Respondent's
employees were in excess of 10 feet from the power lines during the course of their work
on top of the scaffolding. The scaffolding itself separated them from the conductors, and
their work duties did not require that they work or go below the top of the scaffolding.
Nor were they using any tools with long handles or other components capable of extending
into the lines. The evidence fails to show any "objective facts" from which one
could reasonably conclude that the employees were within reach of the power lines in the
performance of their work duties.

Nevertheless Complainant contends that there are some
circumstances indicating that employees could have come into contact with the power lines.
The Secretary refers to the incident when Beton dropped his tape into the lines as well as
to the accident itself when Spieler hit some of the lines as he fell. However, Beton's
dropping of his tape was clearly not part of his assigned work duties but an accident
which, so far as the record indicates, was totally unanticipated. The Act does not require
an employer to prevent all accidents or to be an insurer of his employees' safety. E.g,
Usery v. Kennecott Copper Corp., 577 F.2d 1113 (10th Cir. 1977). Similarly,
Spieler's fall was the result of the lack of fall protection at the worksite; the fact
that he happened to strike power lines as he fell does not show that he was working too
close to them during his assigned duties. [[7]]

Complainant also asserts that employees came overly close to
the lines when they crossed the bar joists from scaffold section "E" to section
"D" and when they left their work area by climbing down scaffold "E."
Inspector Draper testified that he observed one employee "shimmying" across a
bar joist between sections "D" and "E," thus crossing over the power
lines. (T 30). Since the 25kv lines were more than 11 feet below the bar joists, I find
that an employee crossing over the lines on a bar joist would not be "within reach
of" the lines under the rule of Cleveland Consolidated, supra.

There is a conflict in the testimony as to whether employees used scaffold "E"
as a means of egress from the work area. As previously indicated, the closest 25kv line
was approximately five feet to the side of scaffold "E." According to Draper,
the employee who did not have a lanyard came down off the scaffolding by climbing down
through scaffold "E." Draper took a photograph of the employee inside the
framework of scaffold "E." (T 51, 140-41; ex. G2(1)). Schagle insisted that the
employee Draper photographed was a "ground man" whose duties included tagging
bundles of joists coming off the structure, controlling tag lines, landing material, and
preparing material for loading onto trucks. Schagle was not sure why the employee was in
the scaffold but speculated that he may have jumped up into the scaffold to free a guide
cable that had gotten hung up as it was dropped. Schagle said that this employee was on
the scaffold about 5 or 6 feet of f the ground when the photograph was taken. (T 516-20,
543, 545-46). Draper estimated that the employee was about 8 feet above the ground when
photographed. (T 135).

I find Schagle's testimony on this issue to be more credible.
Schagle identified by name the employee shown in exhibit G2(1) and positively stated that
the individual was a groundman (T 517). In addition, the record shows that scaffold
sections other than section "E" were routinely used for access to the work area
(T 76-77, 93-94, 196, 200, 470-71). However, even if I were to find that scaffold section
"E" was used as a means of egress from the top of the scaffolding, I would not
find a violation of 29 C.F.R. � 1926.416(a)(1) on that basis alone. The closest energized
conductor was approximately five and one-half feet from the side of the scaffold. If an
employee climbed down through the scaffold framework, his movements presumably would be
controlled and confined within the structural members of the scaffold. He would not be
sufficiently close to a power line over five feet away to come into contact with that line
as he passed it on his way down.

FINDINGS OF FACT

All findings of fact relevant and necessary to a determination
of the contested issues have been found specially and appear above in the decision. See
Fed. R. Civ. P. 52. Any proposed findings of fact or conclusions of law that are
inconsistent with this decision are deemed denied.

CONCLUSIONS OF LAW

1. Century Steel Erectors, Inc. at all times material to this
   proceeding was subject to the requirements of the Act and the jurisdiction of the
   Commission.

2. The record establishes by a preponderance of the evidence
   that Century committed a serious but not willful violation of 29 C.F.R. � 1926.105(a).

3. A penalty of $1000 is appropriate for this violation.

4. The preponderance of the evidence does not establish that
   Century was in violation of 29 C.F.R. � 1926.416(a)(1).

ORDER

Based upon the findings of fact, conclusions of law, and the entire record, it is ORDERED

1. Item 2 of citation no. 1 is affirmed item 3 of citation no.
   1 is amended to a nonserious violation and as amended is affirmed, and item 1a of citation
   no. 2 as amended in the complaint is affirmed as a serious violation. A total penalty of
   $1450 is assessed.

2. Item 1 of citation no. 1; items 1b, 1c, 1d, and 2 of
   citation no. 2; and item 1 of citation no. 3 are vacated.

IRVING SOMMER

Judge, OSHRC

DATED: JUL 18, 1988

Washington, D.C.

ELIZABETH DOLE, SECRETARY OF LABOR

U. S. DEPARTMENT OF LABOR

Complainant

v.

CENTURY STEEL ERECTORS, INC.,

and its successors,

Respondent

Docket No. 87-1348

APPEARANCES:

COVETTE ROONEY, ESQUIRE

U. S. Department of Labor

3535 Market Street

Philadelphia, PA 19104

For the Complainant

RICHARD R. NELSON, II, ESQUIRE

Alder, Cohen & Grigsby

600 Grant Street, 5th Floor

Pittsburgh, PA 15219

For the Respondent

DECISION AND ORDER

SOMMER, JUDGE:

This case is before the undersigned on remand from the
Commission. In its remand order, the Commission directed that necessary findings be made
consistent with the order of the United States Court of Appeals for the D. C. Circuit. Century
Steel Erectors, Inc. v. Secretary of Labor, 888 F.2d 1399 (D. C. Cir. 1989), rev'g Century
Steel Erectors, Inc. 13 BNA OSHC 1869, 1988 CCH OSHD � 28,294 (No. 87-1348, 1988).

The standard at issue in this case, 29 C.F.R. 1926.105(a) provides:

Safety nets shall be provided when workplaces are more than 25
feet above the ground or water surface, or other surface where the use of ladders,
scaffolds, catch platforms, temporary floors, safety lines, or safety belts is
impractical.

Since the Secretary does not allege the violation herein was
the failure to use safety nets (the Compliance Officer testified they were infeasible and
inappropriate), but that alternative measures (tieing on with safety belts and lanyards)
could have been used, the burden is on the Secretary to prove that "its use is
practical", and "must consider, and overcome, the employer's evidence that such
devices are 'impractical' including its evidence of industry custom and practice." Century
Steel, 888 F.2d at 1406

Century's employees were engaged in burning off tack welds,
collecting the bar joists, and lowering them to the ground. These activities were part of
the dismantling of the structural steel supports of the catch platform previously used.

The Court of Appeals concluded that the testimony of Compliance
Officer Draper established that the "use of safety belts was 'practical' within the
meaning of .105(a)". 888 F.2d at 1403.

Century contended that the use of safety belts during the work
period at issue was impractical and contrary to industry practical and custom in the area
concerned herein, i.e. the western part of Pennsylvania. To support this contention
testimony was elicited from the employees of Century who were ironworkers with a combined
total of over 70 years experience in the field. Each of them testified they had done tack
wielding during their career, and that such work required the welder to be constantly
moving, and therefore the use of safety belts was a hazard. They further testified that
the steel erection industry custom and practice in the western district of Pennsylvania
where the work was being done by Century was not to use safety belts under the facts and
circumstances herein. They testified in a straightforward, frank and convincing manner,
and their testimony was not discredited, nor rebutted by the Secretary. Under the facts of
this case, the Respondent has proven that the use of safety belts was impractical. The
citation alleging a violation of 29 C.F.R. 1926.105(a) is not supported by a preponderance
of the evidence in the record and is vacated. [[1]]

FINDINGS OF FACT

All findings of fact relevant and necessary to a determination
of the contested issue has been specially found and appear above in the decision. See Fed.
R. Civ. P. 52. Any proposed findings of fact and conclusions of law that are inconsistent
with this decision are denied.

CONCLUSIONS OF LAW

1. Century Steel Erectors, Inc. at all times material to this
   proceeding was subject to the requirements of the Act and the jurisdiction of the
   Commission.

2. The preponderance of the evidence does not establish that
   Century was in violation of 29 C.F.R. 1926.105(a).

ORDER

Based upon the findings of fact, conclusions of law, and the
entire record, it is ORDERED:

Citation No. 2, item 1(a) as amended, alleging a willful
violation of 29 C.F.R. 1926.105(a) is vacated.

IRVING SOMMER

Judge, OSHRC

DATED: NOV 20, 1990

Washington, D.C.

FOOTNOTES:

[[1]] Section 1926.105(a) provides: Safety nets shall be
provided when workplaces are more than 25 feet above the ground or water surface, or other
surface where the use of ladders, scaffolds, catch platforms, temporary floors, safety
lines, or safety belts is impractical.

[[1]] The standard provides:

� 1926.105 Safety nets.

(a) 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.

[[2]] The complaint alleges that employees were not protected
from a fall "through the use of safety belts or harnesses with lanyards or other suitable
protective means" (emphasis added). At the hearing the Secretary's counsel stated
that the citation was not based on the absence of nets and that the Secretary did not
intend to show that nets could have been used.

[[3]]The standard provides:

� 1926,416 General requirements.

(a) Protection of employees --(1) No employer shall permit an
employee to work in such proximity to any part of an electric power circuit that the
employee could contact the electric power circuit in the course of work, unless the
employee is protected against electric shock by deenergizing the circuit and grounding it
or by guarding it effectively by insulation or other means.

[[4]] The deceased hit one of the deenergized 12kv lines as he
fell, and he was not electrocuted.

[[5]] Because the scaffold was not precisely parallel to the
power lines, but somewhat angled in relation to them, the distance between the scaffold
and the power lines would vary. Campbell, for example, testified that the distance to the
nearest conductor at one point was 9.7 feet. (T 331-34, ex. G3). For purposes of this
decision I will use the shortest distances shown on the record.

[[6]] CIeveland Consolidated involved 29 C.F.R. �
1926.400(c)(1), the predecessor to � 1926.416(a)(1). When the Secretary revised the
electrical standards in Subpart K of Part 1926, � 1926.400(c)(1) was redesignated as �
1926.416(a)(1). 51 Fed. Reg. 25308 (1986).

[[7]] Inspector Draper's own testimony puts the proper gloss on
Spieler's fall in relation to the alleged violation of 29 C.F.R. � 1926.416(a)(1):

Q. [Spieler] was at least ten feet from the power lines, wasn't
he?

A. Not on the way down, he wasn't; but when he was
working on the beam, he was. (T155-56, emphasis added).

[[1]] The cases relied upon by the Secretary do not address the issue at hand and are
distinguishable from the interpretation of Section 1926.105(a) by the D.C. Circuit Court
of Appeals, to which deference is given.