OSHRC ALJ decision
Docket 93-0785
Decided October 3, 1994
Citations affirmed
Judge Michael H. Schoenfeld
L. R. Willson and Sons, Inc.
Steel-erection tag-line violation affirmed serious, $4,000
What's the rule today?
This ALJ decision was superseded by the Commission's decision in the same case. Ezel starts from the controlling decision and answers your situation under current law, with citations.
ALJ decision, later reviewed by the Commission
This decision was issued by an OSHRC Administrative Law Judge, but it was not the final word in the case: the Commission directed review, and the Commission's decision is the one citable as precedent.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official OSHRC release. The full text is the Commission's own document.
Read the official release (oshrc.gov)
Plain-English summary
L. R. Willson and Sons, a structural steel erector, was cited after a September 1992 OSHA inspection of a steel-erection job in Ephrata, Pennsylvania. The Secretary issued a serious citation with two items but withdrew the first, leaving a single item: failure to use tag lines to control loads during steel erection, in violation of 29 C.F.R. § 1926.751(d). The company argued the tag-line standard was unconstitutionally vague and that using tag lines was infeasible at the cramped site. Administrative Law Judge Michael H. Schoenfeld rejected both arguments, holding the standard's broad "shall be used" language gave fair notice that some guiding rope was required and that the crew's own later use of shorter ropes showed compliance was feasible. He affirmed the violation as serious and assessed the proposed $4,000 penalty. A Commission decision (OSHRC 93-0785, issued in 1999) later reviewed this case.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1926.751(d)
- Outcome: Sole contested item (tag lines) affirmed as serious, $4,000; the other citation item was withdrawn by the Secretary before decision.
- Key point: A safety standard is not unenforceably vague merely because it is broadly worded. "Tag lines shall be used for controlling loads" gives fair notice that some guiding rope is required, and an infeasibility defense fails where the employer later complied using shorter ropes.
Full text (OSHRC public release)
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SAFE rL,\ UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
PHONE:
COM (202) 60645100
Frs (202) 606-5188
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 93-0785
L.R. 7NILSON AND SONS, INC.
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGES DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on September 1, 1994. The decision of the Judge-
will become a final order of the Commission on October 3, 1994 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 REVIEiW.
Any such petition should be received by the Executive Secretary on or before
September 20, 1994 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
Revrew Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOf
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
havmg questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
Date: September 1, 1994
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOH,
Room S4004 -
200 Constitution Ave., N.W.
Washington, D.C. 20210
Catherine Oliver Murphy
De uty Regional Solicitor
Of&e of the Solicitor U.S. DOL
14480 Gatewa Build&g
3535 Market Htreet
Philadelphia, PA 19104
Frank L. Kollman, Es uire
Kollman & Sheehan, i! .A.
8th Floor, Sun Life Building
20 South Charles Street
Baltimore, MD 21201
Michael H. Schoenfeld
Administrative Law Jud e
Occupational Safety an CKHealth
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419
00102697661:03
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419
PHONE
COM (202) 6064100
FTs(202)60&6100
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SECRETARY OF LABOR, l
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Complainant, l
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v.
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. Docket No. 93-0785
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L. R. WILLSON AND SONS, INC., ;
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Respondent. .
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Appearances:
Howard K. Agran, Esq. Frank L Kollman, Esq.
Office of the Solicitor Kollman and Sheehan
U.S. Department of Labor Baltimore, MD 21201
For Complainant For Respondent
Before: Administrative Law Judge Michael He Schoenfeld
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DECISION AND ORDER
Backmound and Procedural History
This case arises under the Occupational Safety and Health Act of 1970,29 UeSeC. 0 0
651 - 678 (1970) (“the Act”).
In September of 1992, a work site in Ephrata, Pennsylvania where L.Re Willson &
Sons, Inc. was engaged in the erection of structural steel was inspected by a compliance
officer of the Occupational Safety and Health Administration As a result of this inspection,
L.R. Willson & Sons, Inc. (“Respondent”) was issued a Serious Citation consisting of two
violations with proposed penalties of $4000.00 each. The Secretary of Labor (“Com-
2 .
plainant” or ‘The Secretary”) subsequently withdrew Serious Citation No. 1, Item 1. As a
result, the sole item left for consideration is Serious Citation No. 1, Item 2, alleging a
violation of 29 CFR 0 1926.751(d) for failure to use tag lines for controlling loads during
steel erection.
Respondent timely contested. Following the filing of a complaint and answer and
pursuant to a notice of hearing, the case came on to be heard on March 16, 1994. No
affected employees sought to assert party status. Both parties have filed post-hearing briefs.
Jurisdiction
Complainant alleges and Respondent does not deny that it is an employer engaged
in structural steel erection. It is undisputed that at the time of this inspection Respondent
was engaged in structural steel erection at the Ephrata job site. Respondent does not deny
that it uses tools, equipment and supplies which have moved in interstate coinmerce. I find
that Respondent is engaged in a business affecting interstate commerce.
Based on the above finding, I conclude that Respondent is an employer within the
meaning of 5 3(5) of the Act. ’ Accordingly, the Commission has jurisdiction over the
subject matter and the parties.
Discussion -
Serious Citation No. 1, Item 1 alleges a violation of the construction safety standard
at 29 C.F.R. 5 1926.751(d), which states that “[t]ag lines shall be used for controlling loads.”
It is undisputed that, prior to the inspection, Respondent had been lifting and placing
steel beams by crane without attaching tag lines of any kind to the steel beams. The
standard requires the use of tag lines. Respondent contends that the standard is unenfor-
ceably vague because neither the cited standard nor any other standard adopted by the
Secretary of Labor describes the length, composition or required usage of a tag line. In the
alternative, respondent asserts that the use of tag lines at the Ephrata site was infeasible.
For the reasons discussed below, the citation alleging a violation of 0 1926.751(d) is affirmed.
’ Title 29 U.S.C. 0 652(5).
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Respondent argues that because “tag lines are no where defined, l .. explained, [or]
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described in sufficient detail to show the Respondent when they are required, what they are
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to be made of, how long they are to be, or in what circumstances
1 their use may be
hazardous,” the standard is unenforceably vague. The 3 1926.751(d) standard states, in its
entirety, that “[t]ag lines shall be used to control lines.” This standard is admittedly broad,
but the commission has held that “a standard is not impermissibly vague simply because it
is broad in nature.” JA. Jones Const~ Co., 15 BNA OSHC 2201,2205 (NO.8702059,1993).
An employer must have either actual or constructive notice of the conduct required by a
standard, or must be able to derive notice from the language of the standard. JLA, Jones
Con.m Co., 15 BNA OSHC at 2205. The issue to be resolved here is whether the .
requirement that tag lines be used to control loads provided sufficient notice to Respondent
as to the conduct required for compliance. See I%roff Forge Co. v. Secretary of L.abm, 657
F.2d 119, 9 BNA OSHC 2133, 2136 (7th Cir. 1981) (holding that regulations must provide
fair warning to the employer as to what is required or prohibited).
The commission has previously upheld standards that do not provide exact
specifications for the required conduct. The terms of compliance with a standard may ‘Vary
depending on numerous factors” involved with “the circumstances existing in each case” and
may require an individual at the job site, such as the crane operator, to “exercise judgment”.
Omet Corp., 14 BNA OSHC 2134,2136 (No. 85.531,199l). The use of the word “shall”in
5 1926.751(d) indicates that the use of tag lines is mandatory. This language put Respom
dent on notice that some action was required. Prior to the inspection by Compliance Officer
(“CO”) Womer, however, Respondent did not attach ropes of any kind to the steel beams
for use in guiding them into place.
This is not a case where Respondent attempted to comply with the standard and
Respondent’s actions where later deemed insufficient. As stated in LE. Myers Co., 16 BNA
OSHC 1037, 1044 (No. 90-945,1993), “[vlagueness challenges are not measured against the
facial text of the standard, but are rather considered in light of the conduct to which they
are applied.” Given the fact that Respondent took no action; failure to comply with the
mandatory standard was not shown to be the result of unenforceably vague language.
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‘*Aregulation should be construed to give effect to the natural and plain meaning of it’s
words.” Diamond Roofbg Co. Inc. v. OSAHRC, 528 F.2d 645,4 BNA OSHC 1001,1004 (5th
Cir. 1976). The language of 5 1926.751(d) unequivocally states that the use of tag lines is
mandatory in steel erection. CO Womer testified that steel erectors should use common
sense in determinin g the exact specifications for the length and composition of tag lines to
be used on a particular job. (Tr. 70). The broad language of 8 1926.751(d) is necessary to
provide flexibility to employers in determinin g the best type of tag line to be used. The lack
of an explicit definition of a tag line does not, in itse& make the standard unenforceably
vague.
In general, to establish a violation of a standard, the Secretary must demonstrate by
a preponderance of the evidence (1) that the cited standard applies, (2) non-compliance with.-
the terms of the standard, (3) employee exposure or access to the hazard created by Qc
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non-compliance, and (4) the employer knew or, with the exercise of reasonable diligenm
could have known of the condition.Astia Pharmaceuticalploducts, Inc., 9 BNA OSHC 2la _
2129 (No. 78-6247, 1981); Dun-Par Engineered Fom Co., 12 BNA OSHC 1949 (No. 7%
2553), rev’d & remanded on othergrounds, 843 F.2d 1135 (8th Cir. 1988), decision on remand
13 BNA OSHC 2147 (1989). Respondent is charged with the failure to use tag lines, a
violation of 0 1926.751(d). Based upon Respondent’s failure to use any type of guiding rope
in compliance with this mandatory standard, plus the undisputed fact that employees were
close enough to the beams being lifted into place so that they could have been bumped or
hit by them were there uncontrolled movement of the steel, the prima facie elements of a
violation have been shown.
Respondent asserts that it was infeasible to use tag lines at the Ephrata site due to
space constraints which limited the mobility of the crane. In order to prevail on the affirm
mative defense of infeasl%ility,the employer must show that compliance with the standard
would “not be practical or reasonable in the circumstances.” Dun-Par Engineered Fom Cu.,
12 BNA OSHC 1962, 1966 (No. 82-0928, 1986). Respondent asserts here that the use of
tag lines was either not possible at the Ephrata job site, or would have created additional
dangers, or both. In this case, the defense of infeasibility depends upon acceptance of
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Respondent’s narrow definition of a tag line as the sole acceptable definition. Inasmuch as
Respondent’s limited interpretation of the standard has been rejected, the defense of infeas-
ibility fails. Considerable disagreement exists bekeen the parties as to the definition of
a tag line. Complainants witness, CO Womer defines a tag line as “a rope, strong enough
to control--it’s tied fast to the steel beam or column and it’s used to control the movement
of that beam.” (Tr. 37). Womer further testified that a tag line must “be long enough so
that the person that’s trying to control it can do so, from a safe distance.” (Tr. 38). He did
not believe that a tag line must be controlled by a person on the ground from the
commencement of the lift until the beam is in place. (Tr. 53). It should be noted that CO
Womer did not say that tag lines cannot be used throughout the lift, just that this is not a
mandatory requirement.
Respondent’s expert witness, Mr. Larson, testified to a much narrower definition ti
a tag line. He identified a tag line as “a device used to control a load fkom inception of lifk
to completion of lift.” (Tr. 85). Larson stated that tag lines should be manned at all times
by a stationary ground person, who should not even be walking with the movement of the
steel. (Tr. 98). Under this limited definition, Larson testified that tag lines could not be
used at the Ephrata site because the tag line would potentially be dragged across existing
pieces of construction that might snag or interfere with the line. (Tr. 85-86).
In instances such as this one, where the exact meaning of language in the standard
is open to different interpretations, “the reviewing court should give effect to the agency’s
interpretation so long as it is reasonable.” Secretaryof Labor v. OSHRC, 499 U.S. 144, 151,
14 BNA OSHC 2097,2099 (No. 89-1541, 1991). The two definitions of a tag line set forth
by the parties are not necessarily mutually exclusive. Respondent’s definition may be
considered a subset of the Secretary’s definition. CO Womer testified that the exact
composition, length and use of a tag line for a specific job site depend on the steel erector’s
6
judgment about what is appropriate at that time *. There may be instances when the use
of a tag line with the characteristics descriid by Respondent’s expert will be appropriate.
The witnesses for both parties were found to’be credible. Respondent’s expert, Mr.
Larson, was very knowledgeable and has extensive experience in the steel industry. CO
Womer was not testifying as an expert in the case, but his work history entailed some prior
experience with tag lines and he was able to give lay opinion testimony under Federal Rule
of Evidence 701. See Falcon Steel Co., 16 BNA OSHC 1179, 1190 (No. 892883, 1993)
(crediting opinion testimony by experienced compliance officer not proffered as an expert).
I am persuaded that the broad wording of the standard warrants the broad definition of “tag
line,” as given by CO Womer. Respondent pointed out that none of the safety standa&
adopted by the Secretary contain a more explicit definition of a tag line. Given this la& of
specificity, Respondent failed to prove that onZy tag lines with the limited character&i&
described by Mr. Larson would be acceptable under 0 1926.751(d). .r
The commission has held that employers who cannot fully comply with a standard,
must nevertheless comply to the extent possible. Bratton Ftunitwe Manufactwihg Co., 11
BNA OSHC 1433, 1434 (No. 81-799-S, 1983). Lengths of rope labelled “rope grabs” by
Respondent’s expert, but which fit the definition of tag lines set forth by Complainant’s
witness, were used at the Ephrata site after CO Womer had begun his inspection. The use
of these ropes demonstrates the feasibility of compliance with the standard by the use of
shorter ropes which are less likely to become entangled on existing construction. see P&-
Des Moines Inc., 16 BNA OSHC 1429,1434 (No. 90-1349, 1993) (holding that the feasibility
of compliance with a standard was proven by the employer’s post-citation conduct).
For the reasons stated above, I conclude that the standard 5 1926.751(d) is not so
vague as to fail to provide notice to employers that the use of some type of guiding rope is
2 Circumstances may exist at a particular worksite, such as a clear day with a light load
in full view of the crane operator to be placed into position for connectors who are on a
stable and secure position, under which the failure to use a tag line might not represent any
danger to employees handling the steel. Under such circumstances, the failure to comply
with the standard could well be de minimis within the meaning of 09(a) of the Act inasmuch
as such failure would have been shown to “have no direct or immediate relationship with
safety or health.” 29 U.S.C. 5658(a).
.
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required. That Respondent failed to use any kind of tag line to comply with the standard,
and that Respondent has failed to show, by a preponderance of the evidence that use of any
type of tag line was infeasible at the Ephrata site. Respondent does not argue, nor did it
seek to present any evidence that the alleged violation was not serious within the meaning
of g 17(k) of the Act as alleged, or that the penalty of $4,000 proposed by the Secretafy for
the violation is not appropriate under the factors set forth at 0 17(j) of the Act. Accordingly,
the violation is found to be serious and a civil penalty of $4,000 is assessed therefor.
FINDINGS OF FACT
All findings of fact necessary for a determination of aII relevant issues have been
made above. Fed. R. Civ. P. 52(a). All proposed findings of fact and conclusions of law
inconsistent with this decision are hereby denied.
CONCLUSIONS OF LAW
1. Respondent was, at all times pertinent hereto, an employer within the meaning
of 8 3(5) of the Occupational Safety and Health Act of 1970, 29 U. S. C. 0 5 651 - 678
(1970).
2. The Occupational Safety and Health Review Commission has jurisdiction over the .
parties and the subject matter.
3. Respondent failed to comply with the standard at 29 C.F.R. 5 1926.751(d), as
alleged. A civil penalty of $4,000 is appropriate therefor.
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ORDER ’
1. Item 2 of Citation 1 issued to Respondent on or about February 25, 1993, is
AFFIRMED. A civil penalty of $4,000 is assessed.
MICHAEL H. SCHOENFE~
/
Judge, OSHRC
Dated: AU622994 l
Washington, D.C.
Find out what applies today
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