El Paso Crane and Rigging Co., Inc.

Read the official release (oshrc.gov)

Plain-English summary

An El Paso Crane and Rigging employee fell 27 feet from a roof-level steel beam while trying to remove a kink from metal banding and was fatally injured. The Commission agreed that safety nets were infeasible for the tilt-wall building, but the company did not prove that a scissor lift was infeasible for reaching the particular kink involved. It therefore affirmed a serious fall-protection violation and assessed a $640 penalty. The Commission vacated a separate training violation because the company had identified the fall hazard, supplied equipment, held bilingual safety meetings, and given instructions that were reasonable for changing worksite conditions. It also affirmed an other-than-serious recordkeeping violation because the annual injury and illness summary lacked the required certification signature and there was no evidence that an official had examined it for accuracy.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.750(b)(1)(ii), 1926.21(b)(2), and 1904.5(c)
• Outcome: The safety-net item was affirmed with a $640 penalty, the training item was vacated, and the unsigned annual-summary item was affirmed as other-than-serious.
• Key point: An infeasibility defense must address the employee's actual circumstances and show that available alternative protection was infeasible in that specific situation.

Full text (OSHRC public release)

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. — 9th Floor
Washington, DC 20036-3419

FAX:
COM (202) 606-5050
FTS (202) 606-5050

SECRETARY OF LABOR,
Complainant,
v. : OSHRC Docket No. 90-1106

EL PASO CRANE AND RIGGING
COMPANY, INC.,

Respondent.

DECISION

BEFORE: FOULKE, Chairman, and MONTOYA, Commissioners.
BY THE COMMISSION:

The Occupational Safety and Health Administration (“OSHA”), of the United States
Department of Labor, conducted the inspection in this case after an employee of El Paso
Crane and Rigging Company, Inc. (“the company”) fell 27 feet onto a concrete floor in a
building under construction in El Paso, Texas. The employee, Rogelio Orozco, had been
walking upon a steel beam at roof level in order to reach a kink in a strip of lightweight
steel banding that was being installed as support for insulation. The insulation and the roof
deck had not yet been installed where Orozco was working because they had to be placed
on top of the banding. Orozco had no safety net under him, and he was not using any other

form of fall protection.

I. Background

OSHA issued a citation alleging in item 2, that the company had failed to provide a
safety net.¹ In item 1, the citation alleged that the company had failed to instruct each
employee on how to recognize and avoid possible exposure to fall hazards such as the one
that gave rise to the fatality in this case.² OSHA proposed a $640 penalty for each violation
in this citation, which was classified as serious. OSHA also issued a second citation,
classified as other-than-serious, alleging that the company failed to sign its annual summary
of occupational injuries and illnesses and thereby failed to certify that the summary was
correct and complete.?

Administrative Law Judge Stanley M. Schwartz conducted a hearing at which the
Secretary of Labor (“the Secretary”) presented three witnesses: (1) the company’s vice presi-
dent, Phillip Cordova; (2) the inspecting compliance officer, Benita K. Horton; and (3) a
company employee who had worked as a laborer at the construction site, Perfecto

Dominguez. In its defense, the company recalled Cordova, who had more than 20 years

1The standard at issue is 29 C.F.R. § 1926.750(b)(1)(ii), which states:

On buildings or structures not adaptable to temporary floors, and where scaffolds are not
used, safety nets shall be installed and maintained whenever the potential fall distance exceeds
two stories or 25 feet. The nets shall be hung with sufficient clearance to prevent contacts
with the surface of structures below.

2The standard at issue is 29 C.F.R. § 1926.21(b)(2), which states:

The employer shall instruct each employee in the recognition and avoidance of unsafe
conditions and the regulations applicable to his work environment to control or eliminate any
hazards or other exposure to illness or injury.

3The standard at issue is 29 C.F.R. § 1904.5(c), which states:

Each employer, or the officer or employee of the employer who supervises the preparation
of the log and summary of occupational injuries and illnesses, shall certify that the annual
summary of occupational injuries and illnesses is true and complete. The certification shall
be accomplished by affixing the signature of the employer, or the officer or employee of the
employer who supervises the preparation of the log and summary of occupational injuries and
illnesses, at the bottom of the last page of the log and summary or by appending a separate
Statement to the log and summary certifying that the summary is true and complete.

3

experience in construction with the company. The company also presented as an expert
witness David Marquez, an “architect/engineer” having a master’s degree in structural stabil-
ity and 38 years experience in construction, including the construction of buildings of the
kind (“‘tilt-wall construction”) where the fatality occurred. Judge Schwartz, as stated in his
decision, found “no reason not to credit” the testimony of Cordova and Marquez because
their “demeanor .. . as they testified” was “at all times sincere and believable.” Relying
heavily upon both witnesses’ testimony to the effect that safety nets were infeasible, and
Cordova’s testimony outlining the methods of operation and the physical obstructions that
can occasionally prohibit use of the other forms of fall protection at issue during the hearing,
ie., scaffolds and safety belts, the judge vacated the serious citation. He also vacated item
1 on the basis of the testimony of Cordova and that of Dominguez regarding the safety
training that had been given to the company’s employees. The other-than-serious item,
which was only minimally addressed at the hearing because the underlying facts were
undisputed, Judge Schwartz reclassified to de minimis. He determined that the failure to
sign the annual summary of occupational injuries and illnesses had “such a negligible
relationship to employee safety and health that a penalty assessment or abatement order
would be inappropriate.”

The Secretary filed a petition for discretionary review. We will separately address

each alleged violation.

II. Analysis
A. Fall Protection (Item 2)

1. The Issue on Review

The cited standard requires safety nets if the building under construction is “not
adaptable to temporary floors” and “scaffolds are not used,” see supra note 1. To establish
the existence of conditions violative of this standard, the Secretary must establish that the
employer was not using safety nets even though temporary floors could not be installed and
scaffolds were not being used. See Donovan v. Daniel Marr & Son, 763 F.2d 477, 483 (1st
Cir. 1985); L.R. Wilson & Sons v. Donovan, 685 F.2d 664, 672 (D.C. Cir. 1982) (“by the

4

express terms of the standard, safety nets are required only if temporary flooring cannot be
used and scaffolds are not in use”); National Indus. Constructors, Inc., 10 BNA OSHC 1081,
1086, 1981 CCH OSHD ¶ 25,743, p. 32,127 (No. 76-4507, 1981) (noncompliance established
by evidence that neither temporary floors, scaffolds, nor safety nets were used); Daniel
Constr. Co., 9 BNA OSHC 1854, 1860, 1981 CCH OSHD ¶ 25,385, p. 31,627 (No. 12525,
1981) (noncompliance established by failure to use protective measures mentioned in
standard), aff'd, 705 F.2d 382 (10th Cir. 1983). There is no dispute in this case that the
Secretary did establish the existence of conditions violative of the cited standard. There is
also no dispute that the Secretary established the other elements of a violation. See, e.g.,
Kulka Constr. Mgt. Corp., 15 BNA OSHC 1870, 1873, 1992 CCH OSHD ¶ 29,829, p. 40,687
(No. 88-1167, 1992) (Secretary must prove applicability of cited standard, existence of condi-
tions violative of standard, employee exposure thereto, and employer knowledge thereof);
Astra Pharmaceutical Prods., 9 BNA OSHC 2126, 2129, 1981 CCH OSHD ¶ 25,578, pp.
31,899-900 (No. 78-6247, 1981) (same), aff'd in pertinent part, 681 F.2d 69 (1st Cir. 1982).

We turn, therefore, to the question of whether the company established any
affirmative defense. As Judge Schwartz held, the company may affirmatively defend by
establishing that compliance with the cited standard, section 1926.750(b)(1)(ii), was infeasible
in that safety nets, as well as any other available form of fall protection such as scaffolds,
were infeasible. Williams Enterp., 6 BNA OSHC 1986, 1989, 1978 CCH OSHD ¶ 23,064, p.
27,877 (No. 76-1801, 1978) (impossibility defense under same steel erection standard); see
State Sheet Metal Co., 16 BNA OSHC 1155, 1160, 1161, 1993 CCH OSHD ¶ 30,042, pp.
41,226-27 (No. 90-1620, 1993) (citation to 29 C.F.R. § 1926.105(a); infeasibility defense
addressed, including unavailability of alternative measures); Seibel Modern Mfg. & Welding
Corp., 15 BNA OSHC 1218, 1226-28, 1991 CCH OSHD ¶ 29,442, pp. 39,682-85 (No. 88-821,
1991) (where there is no alternative protection in use, affirmative defense of infeasibility

includes proof of infeasibility of alternative measures).‘ It is not enough, however, for the

“The hearing in the case took place prior to the issuance of Seibel, a potentially crucial decision, inasmuch as
it returned the burden of proof on alternative measures to the employer, where it had not rested since 1986.
See Seibel, 15 BNA OSHC at 1227-28, 1991 CCH OSHD at pp. 39,683-85 (history of alternative measures

(continued...)

5

company to show that compliance can be infeasible in some situations or operations unless
the company further shows that the particular fact situation to which the citation refers was
one of those infeasible situations. As our case precedents hold, employers must comply to
the extent feasible on a situation-by-situation basis, even if considerable evidence can be
mustered to establish that the industry cannot achieve full compliance in all operations. See
Peterson Bros. Steel Erection Co., 16 BNA OSHC 1196, 1203, 1993 CCH OSHD ¶ 30,052, p.
41,302 (No. 90-2304, 1993) appeal filed, No. 93-4913 (5th Cir. June 14, 1993); Walker Towing
Corp., 14 BNA OSHC 2072, 2075, 1991 CCH OSHD ¶ 29,239, p. 39,159 (No. 87-1359, 1991);
Bratton Furniture Mfg. Co., 11 BNA OSHC 1433, 1434, 1983-84 CCH OSHD ¶ 26,538, p.
33,858 (No. 81-799-S, 1983).

Here, the company presented extensive evidence of the infeasibility of the one form
of fall protection that the cited standard by its literal terms requires, 1.¢., safety nets. The
Secretary argued for their feasibility, primarily through the testimony of the compliance
officer, but Judge Schwartz found that the compliance officer “was unfamiliar with the con-
struction method used at the site” and “was unable to explain how a net could have been
installed,” because she had “not determined if the structure could have supported a net.”
On review the Secretary apparently concedes that the company has established its affirma-
tive defense with respect to safety nets, for he does not take exception to Judge Schwartz’s
reliance on the testimony of Cordova and Marquez that safety nets were infeasible in tilt-
wall construction, and the Secretary does not argue that there is any satisfactory evidence

of the feasibility of a safety net for Orozco. Accordingly, there remains for consideration

4 :
(...continued)

aspect of infeasibility); Dun-Par Engd. Form Co., 12 BNA OSHC 1949, 1956-59, 1986-87 CCH OSHD ¶ 27,650,
pp. 36,024-27 (No. 79-2553, 1986) (placing burden of proof for alternative measures upon Secretary), rev'd and
remanded, 843 F.2d 1135 (8th Cir. 1988), on remand, 13 BNA OSHC 2147, 2150 & 2151, 1987-90 CCH OSHD
1 28,495, pp. 37,764 & 37,766 (No. 79-2553, 1989) (leaving burden of proof upon Secretary despite adverse
court opinion). That is, Judge Schwartz would have been obliged to put the burden upon the Secretary except
that Seibel intervened. See Id. (implying that Commission judges must leave burden on Secretary until change
in Commission precedent). Nevertheless, on review the company does not claim prejudice from Judge
Schwartz’s decision to apply the new precedent, and our review of the record including the hearing transcript
discloses that the parties tried and argued the case as if the burden of proof might ultimately fall upon the
employer. We therefore direct our attention to the merits of the company’s defense. Compare Seibel, 15 BNA
OSHC at 1228, 1991 CCH OSHD at p. 39,685 (same approach).

6

only whether other feasible forms of fall protection were not suitable in these circumstances.
The two devices on which the parties presented evidence are tied-off safety belts and

portable scaffolds (“scissor lifts”).

2. Scissor Lifts

The total area of the roof was 250 x 500 feet, and the roofing materials were being
installed in 250 x 50-foot sections. One section took one day, for a total of ten days to
complete the roof. The first step in each section consisted of laying out strips of the
lightweight banding, which came in 250-foot rolls. Each section required twenty-five rolls
of the banding, which were unrolled across the roof’s 250-foot dimension, at a rate of five
rolls at a time, with the strips lying 2 feet apart. The insulation came in 50-foot rolls which,
as the next step in each section, were unrolled perpendicularly to the banding strips. The
last step consisted of covering the insulation with metal decking, thereby forming a deck
from which to work on another 250 x 50-foot section.

An employee would begin the next section by unrolling strips of the banding -- five
at a time -- onto the existing metal decking. Nonetheless, he would have to go out onto the
perimeter of the building to attach the five strips at 2-foot intervals and he would have to
go out onto the opposite perimeter to pull the strips taut and into position, 2-foot intervals
across the open roof beams. Also, Cordova agreed, it was not possible to follow this
procedure for the whole 50 feet that-had to be covered with banding before the 50-foot
pieces of insulation could be put down; at some point, employees had to walk upon the open
roof beams for the whole 250 feet. Furthermore, if any strip of banding was”kinked”, an
employee had to go back to it somehow and unkink it, either by walking across the roof
beams or by going down to the floor to get a scissors lift to reach the kink from below.

It is undisputed that the company had more than one scissor lift at the worksite; they
were used for tightening bolts in the structural steel, as well as for tasks associated with
installing the roof. For example, an employee on a scissor lift was needed to tape together
the pieces of vinyl-backed insulation as they were stretched out upon the banding. The
following two extracts from the transcript of the hearing are the closest Cordova came to

testifying that, to reach and unkink the particular kink in the banding that existed on the day

7

of his fall, Orozco could not have used a scissor lift. The first extract is from Cordova’s

testimony upon direct examination by the Secretary’s attorney:
Q. Okay. There were no scaffolds?

A. There were motorized scaffolds that they could use underneath where
they were working ... . They were not using them at the time, for one reason
or another.

It could be that [it was] because there was a second floor underneath, because

there were pipe braces off of tilt walls that I talked about earlier -- because of

electrical stuff up off of the floor that there was no place to put this -- or

plumbing, or other reasons. Sometimes they couldn’t get a scaffold to these

areas.
As Cordova had already testified, however, he had not been present at the worksite when
Orozco chose to walk upon the beams rather than use a scissor lift. Therefore, immediately
after the above-quoted testimony, the attorneys for both parties made clear that Cordova
was not describing what exactly, if anything, had prevented Orozco from using a scissor lift.
Instead, Cordova was listing things that might prevent and, at the worksite, had already
sometimes prevented use of scissor lifts. “I believe,” said the Secretary’s attorney, “he testi-
fied that he knows the process and [that] he was there [at the worksite] weekly and he saw
what they were doing.”

The same lack of first-hand knowledge undercuts Cordova’s testimony upon recall as
a witness for the company, from which comes our second extract:

A. As far as I know, there were people working under there. Perfecto

Dominguez, he was on the scissor lift driving back and forth, taping the vinyl-
backed insulation to hold it together.

When they tensioned the thing and it pulled apart, his job was to be up under
there taping the insulation.... So we were having to get motorized scaf-
folding equipment in there to do this.

Q. Okay. These other people come in, and they are installing maybe the
sprinklers or maybe taping. This is already after the decking is already down,
isn’t it?

8

[Discussion omitted as to whether Cordova might be permitted to explain his
answer, which was a simple “No.”

A. Well, I have got [the company’s photograph] Number 12? Okay.

This sprinkler is [depicted in Exh. R-12].... [AJt this time, the sprinkers
were in before the roof deck was on.

On [this job], some of the electrical conduit was in prior to the roof going on.
This was an ongoing operation that we were having to work harmoniously
together with other subtrades. And, like I say, we needed our motorized
scaffolds to get us back and forth to tighten bolts, to do welding, to weld the
bridging in [as part of the roof structure], [and to] place material up there to
get material to the jobsite.

Q. Right.

A. We need to have the thing open so we can run these motorized
scaffolds in there and allow other subtrades to get in there and work. So--

Q. But you are telling me that while you are laying down this banding,
there are also people working exactly right underneath there on the sprinklers
while you are also running a scaffold underneath them -- that that could be a
potential scenario. Is that what you are telling me?

A. Well, if we are running the scaffold, then they can’t be occupying the
same floor space. They can run a scaffold and we can run a scaffold side by
side. The only time we stop people from working people underneath us is
when we have the loads in the air where they are attached by a crane and
they are not set down on the structure.

And at this point of construction -- and when this accident took place, we were
not using a crane on this job to hold any loads up.

So at that time . . . [w]e [were] just dragging [banding] over their heads. So

other trades were in there working at the same time.

A photograph in evidence shows the place upon the floor where Orozco fell; that
particular location was established. The location of the kink toward which he had been
proceeding was not established, however, and it therefore seems that no one identified it

during any of the post-accident investigations, including the company’s. Cordova never

9

testified explicitly that his post-accident investigation had revealed anything definite that pre-
cluded Orozco from taking a scissor lift to the kink -- no actual physical obstruction nor any
operation actually being performed by another subcontractor. Cordova repeatedly testified
that numerous other subcontractors were on the worksite, but he never testified that he or
anyone else knew of any operation in the area through which Orozco would have had to
travel. This is critical because, as Cordova specified, the company and other subcontractors
can each “run a scaffold side by side.” Cordova also specified that, usually, if the various
work tasks could be coordinated, employees of the other employers on the construction site
“would be working at different times that we were not directly over their head.”

We have meetings with them and say, Okay; today we are going to be right
here, so you guys have got to be over there... .

[T]hat is the process that [we use] -- we have to work hand in hand and allow
them access to get to this workplace. If we don’t allow them access to get to
this workplace, then they are unable to do their work.

Cordova said,” We try not to work directly overhead.”

3. Summary of the Arguments of the Parties on Scissor Lifts

The company “does not dispute that in some circumstances scissor lifts could be used
to untangle kinks in the banding,” and the company does not claim to have established “the
particular constraint which led Rogelio Orozco, the deceased employee, to choose to walk
to the kink rather than use a scissor lift on the occasion of his fatal fall.” The company
argues, however, that Cordova was “well aware of what those constraints were on this
project.” Therefore, “[t]he Administrative Law Judge’s conclusion that one or more of the
constraints described by Mr. Cordova must have prevented use of the scissor lift for
unkinking on the occasion in question is a reasonable inference under the record.” In
essence, the company asks us to infer that, if Orozco could have managed to use it, he would
have chosen to use an available scissor lift.

The Secretary argues that Cordova “could only speculate” as to why Orozco did not
use a scissor lift, and that the company failed therefore to establish the infeasibility of that

form of fall protection. The Secretary further argues that Cordova’s testimony proves that

10

arrangements could have been made with the other subcontractors to allow for the company

to have an employee on a scissor lift unkinking the banding.

4. Analysis of the Feasibility of Scissors Lifts in the Instant Circumstances

Judge Schwartz did not draw an inference that there must have been an obstruction
precluding Orozco from using a scissor lift. He only reasoned as follows:

[E]mployees in motion could not have tied off [any safety belts to a safety

line]. Cordova’s testimony indicates that part of the banding and insulating

process required employees to walk out on the steel, and that obstructions and

other operations kept them from using the lifts to untangle banding. His

testimony also indicates that the obstructions and operations which prevented

the use of nets and temporary floors also prevented the use of catch platforms

and scaffolds. It is found, therefore, that there were no feasible alternative

safety measures that could have been used.
This passage makes no explicit mention of Orozco’s circumstances; neither is there an
implicit inference that they were adverse to the use of a scissor lift, for the passage only
refers to the construction process in general. Moreover, the judge found that Cordova was
not on the construction site when the accident occurred and that Cordova only testified that
certain construction operations could have kept employees from using lifts to untangle band-
ing. Judge Schwartz’s citations to the hearing transcript reveal that he relied on the two
extracts which we have already quoted. In short, there is no indication that the judge was
drawing the inference that the company asserts in its review brief, ie, that other
construction work “must have prevented use of the scissor lift for unkinking on the occasion
in question.” Nor do we find any basis in the record for drawing the inference that other
construction work prevented Orozco from using the scissors lift.

This leaves us, then, with a record bare of evidence as to the circumstances that
confronted Orozco as he contemplated how to reach the kink. Without evidence of this type,

we must find that the company has failed to show why it was infeasible for Orozco to use

a scissor lift, and we hold that the company has not established its infeasibility defense.

11

5. Classification and Penalty

The Secretary proposes a penalty of $640 for a serious violation of the standard.
Considering the criteria set forth in section 17(j) of the Act, 29 U.S.C. § 666(j), and
particularly the company’s evidenced concern for employee safety, noted by the Judge

Schwartz in his decision, we assess a penalty of $640.

B. Training (Item 1)

1. The Issue on Review

The parties have focused on the first part of the cited standard, 29 C.F.R.
§ 1926.21(b)(2), see supra note 2, which requires each employer to “instruct each employee
in the recognition and avoidance of unsafe conditions.” This command is so general and
potentially subjective that the Commission and courts have seen fit to read into it a
reasonableness standard. That is, to establish noncompliance, the Secretary must establish
that the cited employer failed to provide the instructions that a reasonably prudent employer
would have given in the same circumstances. E.g., R & R Builders, Inc., 15 BNA OSHC
1383, 1390, 1991 CCH OSHD ¶ 29,531, pp. 39,862-63 (No. 88-282, 1991) (citing unpublished
Sixth Circuit opinions); A.P. O’Horo Co., 14 BNA OSHC 2004, 2008-09, 1991 CCH OSHD
1 29,223, p. 39,130 (No. 85-369, 1991); see also National Indus. Constructors, Inc. v. OSHRC,
583 F.2d 1048, 1054 (8th Cir. 1978). The Secretary must also establish the usual elements
of a violation. See Kulka, 15 BNA OSHC at 1873, 1992 CCH OSHD at p. 40,687 (appli-
cability of cited standard, noncompliance, employee exposure, and employer knowledge);
Astra, 9 BNA OSHC at 2129, 1981 CCH OSHD at pp. 31,899-900 (same).

2. Scissor Lifts

Horton testified that she “verified, through employee interviews, that [the employees]
had not been told specifically to tie off, in the various operations that they were using, that
there were no work platforms utilized in the -- rolling the insulation out or applying the
decking or stretching the steel banding across.” Later in her testimony, Horton agreed that

safety belts probably could not be used for the random task of unkinking the banding, but

12

she believed that the company “could have been more specific with their instructions as to
when [the employees] were to use their safety belts and to tie off, and when they were to
use the scissor lift . . . .” Horton’s concern was this: “[The employees] indicated to me that
they had been told to work safely. They did not indicate specifics as to when they were to
use their safety belts and lanyards and other fall protection.” Horton determined from her
interviews that employees had been only told to use safety belts as needed.

Cordova testified as follows about the company’s instructions for unkinking the

banding upon the open roof beams:
A. [The process] would be to walk out there and take the kink out.

Q. Okay. So an employee would have to walk onto the steel or off of the
metal deck to unkink it?

A. On -- whatever they felt was the safest method, if they thought it was
crawling along the steel or walking on top of it. They would have to go out
there to take the kink out of it, yes.

Q. Is that something that you would leave to the employee’s discretion?
A. That is left to employee discretion.

Q. Okay. Is there any--

A. They are provided a safety platform that they can use to do this.

Cordova summarized as follows: “They were instructed to use their safety platforms, but it
was their discretion, whether it was easy for them to reach out there and take a kink out or
to go down and get on a platform. That was up to them: whatever would be safer for
them.”

Dominguez began his testimony as a witness for the Secretary by affirming that he
had not received any training for walking out on the open beams. As his testimony
developed, however, it became apparent that he had received some training prior to the
accident. According to both Dominguez and Cordova, there had been weekly safety meet-
ings. Cordova testified that attendance was mandatory with pay. Dominguez testified that

the meetings were taught in English and Spanish; also, any videos shown at the meetings

13

were in both languages. A meeting that Orozco and Dominguez had both attended,
according to the signed record of attendance that predates the inspection, covered the neces-
sity for clean shoes when walking upon structural steel and for a safety belt when working
in a stationary position. All employees had been issued safety belts and had been instructed
in their use; Orozco and Dominguez both had safety belts, and Dominguez testified that he
knew to use his safety belt for stationary work, including work from a ladder or scissor lift.
All employees had also been issued copies of the OSHA standards. To further augment this
formal training, employees were encouraged to ask questions, particularly when they were
given a copy of the week’s safety lesson as a paycheck insert. Cordova had an “open door
policy” toward complaints. Also according to Cordova, new employees customarily received
substantial on-the-job training under the supervision of experienced employees, and the

employees assigned to install banding had been made aware of the hazards involved.

3. The Arguments of the Parties

The thrust of the Secretary’s argument is against the company’s instruction on
unkinking the banding. In the Secretary’s view, a company cannot instruct employees to
choose “whatever would be safer for them” if their only choice is to use fall protection or
subject themselves to a fall hazard. The Secretary warns that what the company has been
doing, in effect, is granting itself a variance each time an employee decides that walking
upon open beams is safer than using “scaffolds,” one of the alternative measures listed in
the cited standard.° Or, to put it another way, the company has been following its own, less

stringent rule instead of the applicable standard.® The Secretary also faults the company’s

SAny employer who believes that compliance will create a greater hazard than already exists must obtain a
permanent variance from the Secretary before deviating from an applicable standard. See, e.g., RSR Corp. v.
Donovan, 747 F.2d 294, 303 (5th Cir. 1984) (citing cases).

Employers must model their rules on the applicable requirements. See, ¢.g., R & R Builders, 15 BNA OSHC
at 1390, 1991 CCH OSHD at p. 39,863; Dover Elevator Co., 15 BNA OSHC 1378, 1382, 1991 CCH OSHD
{ 29,524, pp. 39,849-50 (No. 88-2642, 1991); Consolidated Freightways Corp., 15 BNA OSHC 1317, 1321, 1991
CCH OSHD ¶ 29,500, p. 39,810 (No. 86-351, 1991); Gary Concrete Prod., Inc., 15 BNA OSHC 1051, 1056, 1991
CCH OSHD ¶ 29,344, p. 39,453 (No. 86-1087, 1991).

14

rule for providing no guidelines by which an employee might reasonably determine whether
it was “safer,” as Cordova put it, “to reach out there and take a kink out.”

The company’s retort is essentially that the Secretary is so quick to criticize employee
discretion that he cannot perceive that the company’s safety program as a whole gives
employees reasonable guidance for exercising the discretion. The company emphasizes
first of all that the employees must have discretion because they cannot always use scissor
lifts to unkink the banding. Thus, the employees were given the OSHA standards and “were
specifically instructed to check their shoes before walking on structural members, to tie off
when working at a stationary location, and to utilize other safety equipment.” “The record
in this case clearly demonstrates that Respondent’s employees received specific training

regarding the specific hazard involved in this case, a fall from a steel structure.”

4. Analysis

All evidence indicates that the company sufficiently conveyed to its employees that
walking upon open beams is unsafe because it presents a fall hazard; how to avoid “falling
to your death” was the theme of the safety meeting on structural steel and, indeed, the
hazard is obvious. There is no question that Dominguez was aware of the hazard and we
have no evidence that any employee failed to understand that the hazard existed whenever
any banding had to be unkinked. Even Cordova’s instruction to do “whatever would be
safer” implies that unkinking the banding would put the employee in an unsafe position.

Also, we conclude that the Secretary failed to prove that the company’s instructions
for avoiding the hazard were significantly less than a reasonably prudent employer would

have given in the same circumstances. The Commission has said many times that we look

TIn general, employers must make their rules specific enough to advise employees of the hazards associated
with their work and the ways to avoid them. See, e.g., National Indus. Constructors, 583 F.2d at 1056; Pressure
Concrete Constr. Co., 15 BNA OSHC 2011, 2017-18, 1992 CCH OSHD ¶ 29,902, p. 40,812 (No. 90-2668, 1992);
Concrete Constr. Co., 15 BNA OSHC 1614, 1619-20, 1992 CCH OSHD ¶ 29,681, p. 40,243 (No. 89-2019, 1992);
Daniel Int'l Corp., 9 BNA OSHC 2027, 2031, 1981 CCH OSHD ¶ 25,813, p. 32,265 (No. 76-181, 1981).

The employer’s safety program as a whole is relevant to determining whether there was compliance with the
cited standard. See Marshall v. M.W. Watson, Inc., 652 F.2d 977, 979-80 (10th Cir. 1981); also infra notes 11
& 12 (cases indicating that safety program as whole gives context in which to evaluate substance of employer's
instruction and training).

15

at the substance of an employer’s safety program, not merely its form.? The same applies
to an employer’s safety instructions; their sufficiency must be judged in the context of the
safety program’s substance.!° An employer’s instructions are not necessarily deficient just
because they allow the employees discretion as to how to proceed, particularly where the
working circumstances are such that no one form of protection is capable of being used
every time.'! In the case now before us, the feasible means of fall protection for unkinking
the banding was being selected on a situation-by-situation basis. According to Cordova’s
uncontradicted and unrefuted testimony, there were often columns, braces, plumbing,
second-level floors, or other physical obstructions in the way of a scissor lift, and the
company was not always able to make arrangements with other subcontractors to have the
whole 250-foot by 50-foot area free of other employees doing construction work. In these

circumstances, a company that tells its employees what fall protective equipment is available

°See, e.g., Dover Elevator Co., 16 BNA OSHC 1281, 1287, 1993 CCH OSHD ¶ 30,148, p. 41,480 (No. 91-862,
1993) (“In evaluating the adequacy of a safety program, the substance of the program is determinative rather
than its formal aspects”), O’Horo, 14 BNA OSHC at 2008, 1991 CCH OSHD at p. 39,130 (finding necessity
for actual enforcement of safety rules rather than merely “a paper program”); Texland Drilling Corp.,9 BNA
OSHC 1023, 1026, 1980 CCH OSHD ¶ 24,954, p. 30,788 (No. 76-5307, 1980) (“The Secretary’s arguments
overemphasize the formal aspects of Texland Drilling’s safety program and fail to give proper significance to
its substance”).

10Cf. Ford Dev. Corp., 15 BNA OSHC 2003, 2009-10, 1992 CCH OSHD 29,900, pp. 40,801-02 (No. 90-1505,
1992) (citing cases generally indicating that employers must teach applicable safety requirements in necessary
detail by some means, including formal instruction and on-the-job training), petition for review filed, No.
93-3090 (6th Cir. Jan. 29, 1993); Concrete Constr., 15 BNA OSHC at 1620, 1992 CCH OSHD at p. 40,243
(“section 1926.21(b)(2) does not limit the employer in the method by which it may impart the necessary
training” but somehow substance must be imparted); Archer-Western Contrac., Inc., 15 BNA OSHC 1013, 1020,
1991 CCH OSHD ¶ 29,317, p. 39,381 (No. 87-1067, 1991) (training evidently adequate in that employees
properly performed crane rigging and signaling after some instruction in safety meetings), aff'd, 978 F.2d 744
(D.C. Cir. 1991) (table); O’Horo, 14 BNA OSHC at 2010, 1991 CCH OSHD at pp. 39,130-31 (substance of
requirements on trench sloping and shoring not taught in sufficient detail by on-the-job training and general
instructions, and formal instruction not provided); Dravo Engrs. and Constructors, 11 BNA OSHC 2010, 2011-
12, 1984-85 CCH OSHD ¶ 26,930, p. 34,507 (No. 81-748, 1984) (warning to “watch counterweight” is sufficient
in light of tool box meetings on hazard of swinging counterweight).

11Compare Consolidated Freightways, 15 BNA OSHC at 1321, 1991 CCH OSHD at p. 39,810 (discretion held
inappropriate if employees “have not been trained in the criteria to be considered and the guidelines to be
followed” for use of protective equipment while cleaning up various chemical spills), with Dravo, 11 BNA
OSHC at 2012, 1984-85 CCH OSHD at p. 34,507-08 (employer’s instruction not to go on trestle without legiti-
mate work-related purpose upheld as adequate).

16

and describes its use, or the circumstances in which it must be used, may quite conceivably
be doing all that anyone could reasonably do.

We find no problem with the company’s instructions about using safety belts. Insofar
as this record shows, employees were told to tie off when stationary; Dominguez knew that
this was the rule. Moreover, although Horton believed that safety belts could be used while
employees were in straight-line motion to lay the strips of banding, she agreed that tied-off
safety belts probably could not be used to go out to a kink. Thus, although Horton wanted
the company to be “more specific with their instructions as to when [the employees] were
to use their safety belts and to tie off,” she did not identify any deficiency in the company’s
instructions on safety belts and there is no evidence as to how these instructions could have
been more specific.

We also find no problem with the company’s instruction regarding scissor lifts. “{The
employees] were instructed,” according to Cordova’s plain testimony, “to use their safety
platforms, but it was their discretion, whether it was easy for them to reach out there and
take a kink out or to go down and get on a platform“and “ how they chose to proceed was
up to them: whatever would be safer for them.” (Emphasis added.) Taking into account
the workplace circumstances, it is hard to see what more a reasonable employer should have
said than this, which tells employees to use scissor lifts unless the kink can be reached safely.
The record shows without contradiction that the employees knew to work from any existing
decking as much as possible while installing the banding, and the employees knew to use
safety belts for stationary work. Nevertheless, not only were there sometimes obstructions
to a scissor lift, but some of the work involved in installing the banding could not be accom-
plished in any other way than by walking upon the open beams; even Horton acknowledged
this fact. Thus, Horton’s belief that the company “could have been more specific with their
instructions as to when [the employees] . . . were to use the scissor lift” was never supported
by any reliable facts or information, such as industry custom and practice or the recommen-
dations of safety professionals familiar with the industry. Because the Secretary’s evidence
is conclusory, we find that the Secretary failed to establish noncompliance with the cited

standard.

17

We also find no basis for the Secretary’s theory that the company has been, in
essence, granting itself variances by allowing its employees to choose to walk.on the beams.
An employer cannot reasonably ask his employees to do more than is feasible in the
circumstances, and how better to impress upon employees the importance of safety than to
tell them to do whatever is safer? To penalize this employer for this instruction when he
has clearly identified the hazards to the employees and pointed out the ways they can be
avoided would not only be so clearly unreasonable, but would also be discouraging and
counterproductive to the cause of employee safety and health. The issue as to this particular
citation item, item 1 of the serious citation, is whether the employer’s program of safety
instruction provided adequate guidance to the employees, not whether the accident could
have been averted if Orozco had made a better choice in accordance with the instructions.
We essentially dealt with that issue in rejecting the infeasibility defense to serious citation

item 2. Accordingly, we affirm the judge’s decision to vacate item 1 of the serious citation.

C. Annual Summary (Other-than-serious Citation)

1. The Issue on Review

The cited regulation requires, in pertinent part, that “each employer . . . shall certify
that the annual summary of occupational injuries and illnesses is true and complete. . . . by
affixing the signature of the employer, or the officer or employee of the employer who
supervises the preparation of the log and summary of occupational injuries and illness-
es....” See supra note 3 (quotation of full text). It is undisputed that the company’s
annual summary was unsigned and that this noncompliance constituted a violation. The one
issue is whether the violation was only de minimis, as Judge Schwartz found, rather than
other-than-serious as the Secretary alleged.

The Commission and its judges have authority to reclassify a violation as de minimis.
Secretary v. OSHRC (Erie Coke Corp.), _ F.2d ____ (3d Cir. 1993) petition for reh’g filed, No.
92-3297 (3d Cir. Aug. 13, 1993); see also Phoenix Roofing, Inc. v. Secretary, 874 F.2d 1027,
1032 (5th Cir. 1989); Donovan v. Daniel Constr. Co., 692 F.2d 818, 821 (1st Cir. 1982). “A

de minimis violation is one in which there is technical noncompliance with a standard but

18

the departure from the standard bears such a negligible relationship to employee safety and
health as to render inappropriate the assessment of a penalty or the entry of an abatement
order.” Keco Indus., Inc., 11 BNA OSHC 1832, 1834, 1983-84 CCH OSHD ¶ 26,810, p.
34,297 (No. 81-1976, 1984); see also Anoplate Corp., 12 BNA OSHC 1678, 1688, 1986-87
CCH OSHD ¶ 27,519, p. 35,686 (No. 80-4109, 1986) (same explanation of law). Technical
noncompliance with OSHA’s recordkeeping regulations can in some circumstances have a
negligible relationship to employee safety and health. See Anoplate, 12 BNA OSHC at 1687-
88, 1986-87 CCH OSHD at pp. 35,685-86 (failure to record employees’ job title and regular
department, but small workforce and sufficient information about type of eye injury to
indicate location where injury occurred); B.C. Crocker Cedar Prod., 4 BNA OSHC 1775,
1776, 1975, 1976, 1976-77 CCH OSHD ¶ 21,179, p. 25,471 (No. 4387, 1976) (failure to use
OSHA Form No. 100, but employer had recorded sole recordable accident on form
furnished by Idaho State Industrial Commission). Not all instances of noncompliance with
OSHA’s recordkeeping regulations can be classified as de minimis, however. See General
Motors Corp., Electro-Motive Div., 14 BNA OSHC 2064, 2072 & n.20, 1991 CCH OSHD
1 29,240, pp. 39,169-70 (No. 84-816, 1991) (denial of employee access to medical and
exposure records, inasmuch as use of such records in worker’s compensation proceedings
promotes occupational safety and health); General Motors Corp. Inland Div., 8 BNA OSHC
2036, 2040-41, 1980 CCH OSHD ¶ 24,743, p. 30,470 (No. 76-5033, 1980) (failure to record
on OSHA Form No. 100 three instances of respiratory illness, inasmuch as such records
“play a crucial role in providing the information necessary to make workplaces safer and
healthier”). We must now decide whether a company’s failure to sign its annual summary
of occupational injuries and illnesses must be classified as de minimis rather than other-than-
serious, taking into account that, by the terms of the cited regulation, an official signature

is required to certify that the annual summary is “true and complete,” see supra note 3.

2. Facts
   Upon cross-examination by the company’s attorney, Horton testified that, to the best

of her recollection from her inspection, all requisite information pertaining to the company’s

19

annual totals of occupational injuries and illnesses had been entered correctly on the annual
summary, and that the only information missing was the requisite official signature, which
would verify that a company official had examined the annual summary for correctness. !
But neither Cordova nor any other company official gave any testimony to the effect that

he had examined the annual summary for correctness and then had simply failed to sign it.

3. The Parties’ Arguments
   On the following basis, the Secretary distinguishes this case from those in which we

found de minimis violations of recordkeeping requirements, i.e., Anoplate and Crocker:

The instant case does not involve a question of whether requisite information
was recorded properly in every detail or if it was assembled in the appropriate
format. What this citation is about is the regulatory requirement that an
employer officially stand behind the accuracy of the information provided.

The Secretary views the requirement for an official signature as a mechanism to ensure

accuracy:

Inaccurate or incomplete information would obviously subvert the
purposes of the reporting requirements. To help insure the accuracy of these
records, the Secretary included a certification requirement, which compels a
particular individual to take responsibility for the truth and completeness of
the annual summary. This serves both as a means to enhance the likelihood
of compliance as well as an enforcement tool in the breach. An individual
who falsely certifies the accuracy of the summary is subject to criminal
prosecution for a false reporting under 29 U.S.C. § 666(g) and 18 U.S.C.
§ 1001. The certification in such an action would obviously be a crucial part
of the government’s case. By finding the lack of a certification to be de mini-
mis, the judge effectively writes this enforcement mechanism out of the
standard. Accordingly, it was error to hold this violation to be de minimis.

Quoting the Secretary’s brief against him, the company argues that the cited violation

is de minimis because it “does not involve a question of whether requisite information was

12 29 C.F.R. § 1904.5(a) prescribes that an annual summary shall include the following information: “a copy
of the year’s totals from the form OSHA No. 200 and ... [c]alendar year covered, company [n]ame[,]
establishment name, establishment address, certification signature, title, and date.”

20

recorded properly in every detail or if it was assembled in the appropriate format.” The
company presents the following analysis:

Despite extensive rhetoric regarding the importance of reporting requirements

and the dangers of inaccurate or incomplete information, the Secretary does

not allege that either occurred in this instance. Respondent properly recorded

the required information in the required format. The sole violation alleged
was the absence of a signature. .. .

Respondent submits that the B.C. Crocker case is directly analogous to
the situation in the instant proceeding. Obviously, the state form had not
been certified under the penalties of 29 U.S.C. Section 666(g) or 18 U.S.C.
Section 1001. Nevertheless, the Commission apparently recognized that the
compilation and recording of the information was the element which would
promote safety of employees, not the fact that it was prepared in accordance
with federal perjury laws.

In the company’s view, then, there is “no evidence which demonstrates any relationship

between employee safety and the requirement of a signature.”

4. Analysis

As the court discussed in Phoenix Roofing, 874 F.2d at 1032-34, any finding that a
violation is de minimis means that the instance of noncompliance had little or no impact on
safety and health in view of the particular factual circumstances at the employer’s workplace;
it does not mean that the cited OSHA standard has little impact and will not be enforced,
regardless of any employer’s circumstances. Thus, when we find a de minimis violation, we
are not questioning the wisdom of any cited standard, nor are we rendering any standard
unenforceable; we are merely finding that a particular employer’s deviation was trifling in
that it never really compromised any protection meant for employees under the terms of the
standard. In other words, we are finding that, despite the employer’s literal deviation from

the standard’s terms, its purpose was achieved.

21

The Secretary argues that the purpose of the standard cited here is to assure that the
employer has examined the annual summary for accuracy. This process of examination, the
Secretary reasons, provides a direct and tangible relationship to employee safety and health.
In the record before us, there is a lack of evidence concerning whether this examination
occurred, regardless of the presence of a signature. Accordingly, we must find the judge’s
decision that this citation item should be classified as de minimis is not supported by the
evidence. We affirm this item as other-than-serious.

III. Order
Item 2 of the serious citation is affirmed and a penalty of $640 is assessed. Item 1

of the serious citation is vacated. The other-than-serious citation is affirmed.

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Dated: September 30, 1993

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW.
4TH FLOOR
WASHINGTON DC. 20006-1246

: FAX:
COM (202) 834-4008
Secretary of Labor, FTS 634-4008

Complainant,
v. ; Docket No. 90-1106
El Paso Crane & Rigging ;

Company, Inc.,
Respondent.

NOTICE OF DOCKETING

The Administrative Law Judge’s Report in the above referenced case was docketed with the
Commission on September 23, 1991. The decision of the Judge will become a final order of the
Commission on October 23, 1991 unless a Commission member directs review of the decision
on or before that date. ANY PARTY 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 or before October 15, 1991 in order to permit sufficient
time for its review. See Commission Rule 91, 29 C.F.R. § 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. 20006-1246

Petitioning parties shall also mail a copy to:

Daniel J. Mick, Esq.

Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004

200 Constitution Avenue, N.W.
Washington, D.C. 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

September 23, 1991 / (Zz w . hhitske oo

Date Ray H. Darling, Jr.
Executive Secretary

i thge

Docket No. 90-1106
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

James E. White, Esq.

Regional Solicitor

Office of the Solicitor, U.S. DOL
Suite 501

525 S. Griffin Street

Dallas, TX 75202

Charles C. High, Jr., Esq.

Kemp, Smith, Duncan & Hammond
P.O. Drawer 2800

El Paso, TX 79999-2800

Stanley M. Schwartz

Administrative Law Judge

Occupational Safety and Health
Review Commission

Federal Building, Room 7B11

1100 Commerce Street

Dallas, TX 75242-0791

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,

v.

OSHRC DOCKET NO. 90-1106

EL PASO CRANE AND RIGGING
COMPANY, INC.,

Respondent.

APPEARANCES: Terry K. Goltz, Esquire
Dallas, Texas
For the Complainant.
Charles C. High, Jr., Esquire
El Paso, Texas
For the Respondent.
DECISION AND ORDER
SCHWARTZ, Judge:

This is a proceeding brought before the Occupational Safety
and Health Review Commission ("the Commission") pursuant to § 10 of
the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et
seq. ("the Act").

An inspection was conducted of a construction worksite in El
Paso, Texas, where Respondent was erecting a building, after a
tragic accident. The accident occurred on October 31, 1989, when
one of Respondent's employees fell from a steel beam and sustained
fatal injuries. As a result of the inspection, two citations were

issued. Citation number 1 alleges a serious violation of 29 C.F.R.

§ 1926.21(b) (2). It also alleges a serious violation of 29 C.F.R.

2
§ 1926.750(b) (1) (ii), or, in the alternative, § 1926.105(a).'
Citation number 2 alleges an "other" violation of 29 C.F.R. §
1904.5(c). Respondent timely contested the citations, and a
hearing was held on February 27, 1991. Respondent filed a post-
trial brief. The citation items are discussed below.
29 C.F.R. §§ 1926.750(b)(1)(ii) and 1926.105(a)²

The basic facts of this case are undisputed. Respondent was
one of a number of subcontractors at the site. The project was a
500 by 750-foot commercial tilt-wall building divided into three
250 by 500-foot sections with vinyl-backed insulation between the
roof and the structural steel. Respondent's job was to erect the
walls and structural steel, and to install the insulation and metal
roof decking. (Tr. 10-13; 155-58; 173-74; 182-83; 194).

In tilt-wall construction, a crane lifts and positions
concrete wall panels which are held in place by steel braces set
inside the building. The braces support the panels and remain in
place until all of the decking is installed and secured; they are
adjustable so the panels can be aligned as construction progresses.
Cranes operating inside the building set steel columns in place, as
well as the girders and joists that ultimately support the roof.
The joists are bolted to the columns and bridging is installed and

welded, after which banding, insulating and roof decking can begin.

'The 1926.105(a) citation was vacated on the record, based on
its preemption by 1926.750(b)(1)(ii). (Tr. 151-52). My reasoning
in this regard is set out below.

Although these standards were cited as item 2 of citation
number 1, they are addressed first for purposes of expediency.

3
(Tr. 10-23; 160-75; 186-87; 232; C-1-7; R-1-12)°.

The banding used at the site was half-inch lightweight metal
strips on spools. It was laid across the joists two feet apart by
employees who held onto the ends of a rack with five spools, each
containing 250 feet of banding, which reeled off as they walked
from one side to the other of the building section. If any kinks
occurred employees untangled them, after which they fastened the
banding to each end of the section. They then rolled insulation,
which was in five by 50-foot rolls, across the banding; the banding
provided support for the insulation. Once an area of 50 by 250
feet was covered, 30-foot sheets of roof decking were placed over
the banding and insulation. Employees walked out on 36-inch
platforms, decking already in place or the structural steel itself
to install banding and insulation. They could also use motorized
scaffolds called scissor lifts to untangle banding. (Tr. 13-19;
25-32; 181-85; 188; 221-27; C-3-7).

At the time of the accident, the building was about 50%
completed. Rogelio Orozco and three or four other employees were
installing banding and insulation in the building's center section.
The employees were working up on the steel, which was about 27 feet
high. Orozco fell to the concrete floor below as he was attempting
to untangle some of the banding. (Tr. 12-13; 217 25; 41-42; 96;

129-31; 183-84; 194; 236-37).

3c-1-7 were taken during the inspection and depict the section
of the building in which the accident occurred. R-1-12 are photos
of a different site showing the same type of construction. (Tr.
14; 43; 66-67; 157-59; 163-64; 167-68; 176-77).

4

Benita Horton is a compliance officer ("CO") with the
Occupational Safety and Health Administration ("OSHA"). She
inspected the site from November 3-9, 1989. She testified that
Respondent was cited because employees had been working up on the
steel without nets or other fall protection. She talked to Phillip
Cordova, who told her temporary floors and nets could not be used.
Horton concluded that portable nets could have been used after
researching the matter and consulting with regional personnel. She
could not explain how they could have been installed, and did not
determine if a net could have been attached to the structure. She
had seen nets used in steel erection, but was not familiar with
industry custom in regard to using nets for banding. (Tr. 37-40;
49-51; 59-67; 70-81; 101-07; 115; 124-25).

Horton believed other measures could have been used. She said
the scissor lifts could have been used to untangle the banding, and
that the safety line in C-7 would have protected employees rolling
out insulation. She noted the line would not have worked for
untangling banding, or if employees had to work more than six feet
from it. She also noted employees in motion could not have tied
off. She saw employees installing insulation, but did not see them
laying banding. Frank Cordova, the company president, demonstrated
how banding could be laid from the decking, but she did not know if
all of it could be installed that way. (Tr. 51-53; 79-80; 85; 88-
103; 114-15; 120-23).

Horton observed that 1926.750(b) (1) (ii) is a specific standard

which applies to steel erection, while 1926.105(a) is a general

5
standard. She said a specific standard usually takes precedence
over a general one, and that 1926.105(a) was cited in the
alternative based on OSHA Instruction STD 3-3.1. (Tr. 68-70; 74-
75; 80-83; 116-18; C-15).

Phillip Cordova has been Respondent's vice president from its
inception in 1974. He testified that while he was not there when
the accident occurred, he had visited the project weekly since it
started and was familiar with the construction process used. He
said temporary floors and nets could not have been used at the site
due to obstructions such as braces, columns, second-level floors
and other operations, which he explained. Employees would have
been driving lifts around to weld and bolt structural members, to
get materials up to the steel and to tape insulation as it was
being installed. Concrete workers would have been pouring cement,
and sprinkler system, electrical and plumbing workers would have
been using lifts to do their work. Cordova said these operations
were required to take place during banding and insulating, and
indicated they could have kept employees from using lifts to
untangle banding. He also indicated that while employees could
install some of the banding from platforms and decking, they had to
lay a portion of it by walking on the steel. (Tr. 7-10; 21-23; 32-
337 36-37; 153-57; 173-79; 186-92; 198; 224; 228-32; 237; R-12).

Cordova further testified that due to the process his company
was required to use at the site and the OSHA requirement that nets
extend six feet beyond the work area, a portable net of 62 by 250

feet would have been needed. He noted that even if the process had

6

been altered to install one sheet of decking at a time, a net of 52
by 62 feet would have been required; 50 feet of banding had to be
laid before one roll of insulation could be rolled across it, and
40 feet of insulation had to be laid before one 30-foot sheet of
decking could be installed. Cordova had checked with net
manufacturers and learned that the largest portable net available
was about six by 20 feet. (Tr. 185-91; 220-28).

Cordova stated that even if there had been a net large enough,
using it would have collapsed the structure. He noted that the
building was very unstable during construction and was not designed
to support nets of that size. Although the bridging was welded,
the joists were only bolted to the columns to allow for alignment.
If nets were tied to structural members, the building would
collapse. If they were tied to the walls, the braces and wall
panels would collapse. Cordova was familiar with industry custom
regarding this kind of construction, and had never known of nets
being used. (Tr. 185-97; 226-28).

Cordova said the safety line in C-7 was devised to show Horton
the difficulties of using such a line. The line was over 100 feet
long and slack, and both men were tied off to it with a six-foot
lanyard. Cordova noted that if one man fell he would pull the
other off with him, and that carrying equipment out on the steel to
install the line was dangerous. He also noted the line limited the
range of motion and ability to work. He pointed out that employees
were instructed to tie off when performing stationary duties on the

steel, such as welding, but that employees in motion could not tie

7
off. (Tr. 23-25; 30-31; 34-35; 214-19).

David Marquez is an architectural and engineering consultant
with 38 years of experience. He has a B.S. in civil engineering,
and an M.S. in structural stability. He testified he designed the
first tilt-wall building in El Paso. He was familiar with the
design of the subject building, and had reviewed the plans for it.
His opinion was that it would not be able to support the weight of
a 50 by 50-foot net prior to the roof's completion, and that
stringing such a net from the columns or joists would cause the
structure to collapse. He said the building was not designed to
hold a net of that size, which would add an additional 30,000
pounds of stress to the structure, and that there were too many
obstructions for a net to be used. (Tr. 244-60).

Marquez further testified he had never seen safety nets used
during the construction of a building like the one at the site, and
that he had not found a net measuring 50 by 50 feet. He noted he
had been a quality controller at an air force base two years before
in regard to a similar building; he and the Corps of Engineers had
concluded safety nets were not possible for that building. He
pointed out that such a building would have to be designed to hold
a net, and that a contractor like Respondent could not change the
design. (Tr. 250; 254-60).

As noted above, the 1926.105(a) citation was vacated on the
record due to its preemption by 1926.750(b)(1)(ii). The Secretary
correctly cited 1926.105(a) in the alternative, as the Commission

has recommended for cases in which it is unclear which standard

8

applies. See, e.g., Paschen Contractors, Inc., 14 BNA OSHC 1754,

1757, 1990 CCH OSHD ¶ 29,066 (No. 84-1285, 1990). However, the
Commission's recent decision in Bratton Corp., 14 BNA OSHC 1893,

1990 CCH OSHD ¶ 29,152 (No. 83-132, 1990), compels the preemption
of 1926.105(a) in this case.

In Bratton, the issue was whether 1926.750(b)(2)(i), a
specific steel erection standard, preempted 1926.28(a), a general
standard. The Commission said the determinative factor was the
type of fall hazard addressed by 1926.750(b) (2) (i), and noted that
several circuit courts had held that the standard addressed only
interior falls. Since the cited hazard in Bratton was in regard to
exterior falls, the Commission concluded that 1926.750(b) (2) (i) did
not preempt 1926.28(a). Id. at 1895-96. The Commission noted it
was expressing no view on whether 1926.28(a) would apply when steel
erection exposed employees to interior falls. Id. at 1895 n.5.
However, it is evident that had the Commission reached the issue,
it would have concluded the general standard does not apply in
steel erection cases involving the hazard of interior falls.

The record demonstrates that the hazard in this case was in
regard to interior falls. Based on the foregoing, the 1926.105(a)
citation is preempted by 1926.750(b)(1)(ii) and is accordingly
vacated. The remaining issue to be determined is whether there was
a violation of 1926.750(b) (1) (ii), which provides as follows:

On buildings or structures not adaptable to temporary

floors, and where scaffolds are not used, safety nets

shall be installed and maintained whenever the potential

fall distance exceeds two stories or 25 feet. The nets

shall be hung with sufficient clearance to prevent
contacts with the surface of structures below.

9

The applicability of the standard is clear, since the record
shows that the potential fall distance was over 25 feet. There
were no scaffolds used at the site other than the scissor lifts,
and the Secretary, in alleging the violation, obviously determined
the building was not adaptable to temporary floors. The standard
therefore required the use of safety nets, and since it is
undisputed that nets were not used, the Secretary has established
a prima facie violation. Regardless, it is concluded Respondent
was not in violation of the standard, for the following reasons.

Respondent asserts the affirmative defense of impossibility in
regard to the use of nets. The Commission redefined this defense
in the late 1980's to require an employer to show that compliance
was infeasible under the circumstances. Dun-Par Engineered Form
Co., 12 BNA OSHC 1949, 1956-59, 1986 CCH OSHD ¶ 27,650 (No. 79-
2553, 1986); Cleveland Elec. Illuminating Co., 13 BNA OSHC 2209,
2213, 1989 CCH OSHD ¶ 28,494 (No. 84-593, 1989)... Once an employer
demonstrated infeasibility, then the Secretary had the burden of
showing the feasibility of alternative measures. Dun-Par, supra.

The Commission has reexamined this defense once again in its

recent decision in Seibel Modern Mfg. & Welding Corp., OSHRC Docket

No. 88-821, (August 9, 1991). In Seibel, the Commission noted that
employers may not rely on industry custom and practice alone to
avoid the abatement method specified by the standard, but must
rather show the method was unreasonable and unusable under the
circumstances. It also overruled Dun-Par, supra, in regard to the

burden of proof as to alternative measures. Employers must now

10
show not only that the abatement method prescribed by the standard
was infeasible, but also that an alternative protective measure was
used or there was no feasible alternative measure.

Respondent has clearly met its burden in regard to the use of
nets in this case. Although the CO believed nets could have been
used, it is apparent from her testimony that she was unfamiliar
with the construction method used at the site. Moreover, she was
unable to explain how a net could have been installed, and had not
determined if the structure could have supported a net. The
testimony of Cordova and Marquez, on the other hand, was that nets
could not have been used because of obstructions and other work
taking place inside the building and, even more importantly,
because using nets would have caused the structure to collapse. I
observed the demeanor of Cordova and Marquez as they testified.
They were at all times sincere and believable, and there is no
reason to not credit their testimony. Accordingly, it is found as
fact that safety nets could not have been used at the site.

Respondent has also met its burden in regard to alternative
measures. While the CO's opinion was that the safety line would
have provided some protection, she herself acknowledged it would
not have worked for untangling banding and that employees in motion
could not have tied off. Cordova's testimony indicates that part
of the banding and insulating process required employees to walk
out on the steel, and that obstructions and other operations kept
them from using the lifts to untangle banding. His testimony also

indicates that the obstructions and operations which prevented the

11

use of nets and temporary floors also prevented the use of catch
platforms and scaffolds. It is found, therefore, that there were
no feasible alternative safety measures that could have been used.

The undersigned is well aware of the tragic consequences of
the use of the insulation method at the site, and the hazards of
the process are apparent. However, my conclusion that Respondent
was not in violation of the standard is based on the language of
the standard itself and the unique facts of this particular case.
The employer's good faith and obvious concern for employee safety
have also been noted.* This citation item is vacated.

29 C.F.R. § 1926.21(b)(2)

Benita Horton testified she determined employees had not been
instructed about the hazards of working on the steel based on her
observation of the site and employee interviews.*> She understood
some instructions were given but believed they were inadequate and
should have been more specific regarding how to work safely and
when to use safety belts and scissor lifts. She did not recall
seeing any safety rules, but there was an indication employees were
told to use safety belts as needed. (Tr. 48-49; 109-12).

Perfecto Dominguez has been employed with Respondent as a
laborer for over two years. He testified he had worked on the

steel at other sites, but that he had not done so at the subject

“It is refreshing that Respondent. has voluntarily stopped
using the insulation method out of concern for employee safety.
(Tr. 239-41). .

*Horton testified Phillip Cordova assisted her by translating
during interviews with Spanish-speaking employees. (Tr. 63).

12

site until after the accident.® He first said he did not recall
attending safety meetings before the accident, but then indicated
he had. He also said he did not recall any training about working
on the steel, but then indicated that before the accident he had
been given a safety belt and lanyard and instructed when to use
them. He noted he had used the belt when installing decking and
using the scissor lift. (Tr. 129-43).

Dominguez further testified that his signature appeared on a
document dated September 4, 1989, which was about safety. He noted
employees signed papers when they attended safety meetings and that
they received safety sheets along with their weekly paychecks. He
said the safety meetings were in both Spanish and English, and that
employees were given videos about safety which were also in Spanish
and English. (Tr. 135-45; R-15).

Phillip Cordova testified that his responsibilities include
implementing the company safety program. He said there are
periodic mandatory general assembly safety meetings, as well as
weekly safety meetings when paychecks are handed out. He noted the
weekly meetings had taken place since the company's inception; at
the time of the accident they were held by his safety helper, Jim
McMinn, and a payroll clerk fluent in Spanish and English to ensure
employees understood the meeting. Employees signed attendance

sheets which set out the information covered, and were given copies

‘The testimony of Dominguez was translated during the hearing
by a court-certified interpreter of Spanish. (Tr. 125-29).

13
of the sheets with their checks. Cordova identified R-15 as copies
of the weekly meeting sheets. (Tr. 198-201).

Cordova further testified that the March 13, 1989 meeting
addressed structural steel and that Rogelio Orozco had signed the
attendance sheet. The sheet told employees to check their shoes
before walking out on the steel, which meant to check for mud or
debris and to ensure shoelaces were tied. It also told them to be
alert and aware of the dangers and to use required equipment, such
as safety belts. Cordova said employees were instructed to tie off
when performing stationary work, but that they could not do so when
mobile. He also said employees were told to use lifts to untangle
banding, but that it was left to their discretion to decide whether
it was safer to do this from a lift or from the steel. (Tr. 28-29;
201-03; 211-17; R-15).

Cordova identified R-16 as the list of equipment given to
‘Rogelio Orozco on June 24, 1988. He noted the list was part of the
safety program and that employees received instructions about the
equipment when it was issued to then. He said employees also
received R-17, a list of company guidelines, and an OSHA booklet in
English which contained the construction standards. (Tr. 203-11).

Cordova stated that because of the dangerous nature of the
work, all new employees go through an on-the-job training program.
He noted that the program is not written but is very detailed, and
that employees are trained until they are sufficiently aware of the

hazards to be able to work on their own. He said the training is

14

usually given by his father, Frank Cordova, the company president,
but that Orozco was trained by his own father, who had worked for
the company since its inception. He also said that 14 of the 60
employees at the time of the accident were relatives of Orozco, and
that all of them had been through the program. (Tr. 236-38).

The subject standard provides as follows:

The employer shall instruct each employee in the

recognition and avoidance of unsafe conditions and the

regulations applicable to his work environment to control
or eliminate any hazards or other exposure to illness or

injury.

The citation was issued because the CO believed Respondent
should have given more specific instructions about how to work
safely on the steel and when to use safety equipment. However, it
is found that Respondent did, in fact, instruct employees as
required and that it was not in violation of the standard.

The record shows that employees go through a detailed on-the-
job training program, and that they do not work on their own until
they are sufficiently aware of the hazards involved. They are
given an OSHA construction standards booklet, and instructions when
safety equipment is issued. They attend weekly safety meetings and
are given safety videos, both of which are in Spanish and English.
They are told to check their shoes before walking on the steel, to
tie off when doing stationary work, and to be alert and aware when
working on the steel. They are instructed to use lifts to untangle
banding, but to use their discretion to decide if it is safer to do

this work from a lift or the steel.

15

The 1926.750(b)(1) (ii) discussion, supra, established that
employees were required to perform some of their duties on the
steel without any fall protection. It also established that the
lack of protection, while obviously hazardous, was unavoidable
under the unique facts of this case. Upon consideration of the
work performed and the instructions and training provided, it is
found that Respondent gave employees all of the instructions that
it could have under the circumstances. The fact that the decision
of whether to use scissor lifts was left to employee discretion was
reasonable in this case. The program, instructions and training
adequately met the employer's responsibility under the above
standard to instruct each employee in the recognition and avoidance
of unsafe conditions that arose during the insulation operation.
This citation item is accordingly vacated.

29 C.F.R. § 1904.5(c)

Benita Horton testified that although Respondent had the
required injury and illness records, the 1986 annual summary was
not signed to certify that it had been checked and was accurate.
(Tr. 53-54; 112-13).

The subject standard provides, in pertinent part, as follows:

Each employer ... shall certify that the annual summary

of occupational injuries and illnesses is true and

complete. The certification shall be accomplished by

affixing the signature of the employer ... at the bottom

of the last page of the log and summary or by appending

a separate statement to the log and summary certifying
that the summary is true and complete.

16

Respondent does not dispute the violation, but contends it
should be classified as de minimis. Commission precedent is well
settled that a violation should be characterized as de minimis
where a technical noncompliance with a standard bears such a
negligible relationship to employee safety or health that a penalty
assessment or abatement order would be inappropriate. See, e.g.,
Keco Indus., Inc., 11 BNA OSHC 1832, 1834, 1984 CCH OSHD ¶ 26,810
(No. 81-1976, 1984). Moreover, the Commission has held mere
technical noncompliance with a recordkeeping requirement to be de
minimis. Anoplate Corp., 12 BNA OSHC 1678, 1687-88, 1986 CCH OSHD
¶ 27,519 (No. 80-4109, 1986); B.C. Crocker Cedar Prod., 4 BNA OSHC
1775, 1776, 1976 CCH OSHD ¶ 21,179 (No. 4387, 1976). In this case,
Respondent's only recordkeeping deficiency was its failure to
certify the 1986 summary. It is concluded that such failure is
properly classified as a de minimis violation.

Conclusions of Law

1. Respondent, El Paso Crane and Rigging Company, Inc., is
   engaged in a business affecting commerce and has employees within
   the meaning of § 3(5) of the Act. The Commission has jurisdiction
   of the parties and of the subject matter of the proceeding.

2. On October 31, 1989, Respondent was not in violation of 29
   C.F.R. §§ 1926.21(b) (2), 1926.750(b) (1) (ii), and 1926.105(a).

3. On October 31, 1989, Respondent was in de minimis

violation of 29 C.F.R. § 1904.5(c).

17
Order
On the basis of the foregoing Findings of Fact and Conclusions
of Law, it is ORDERED that:

1. Items 1 and 2 of serious citation number 1 are VACATED.
2. Item 1 of "other" citation number 2 is AFFIRMED as a de

minimis violation, and no penalty is assessed.

Stanley M. Schwartz
Administrative Law Judge

DATE: SEP 10 1991