Korte & Luitjohan, Inc.
Leading-edge fall citation vacated under steel-erection exception
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Plain-English summary
Korte & Luitjohan was installing metal roof decking on a commercial building with steel framing and wood trusses. Ten employees worked 16 to 22 feet above a concrete floor without guardrails, safety nets, or personal fall arrest systems. OSHA cited the company under the general construction leading-edge standard and proposed an $875 penalty. The dispute was whether the work was covered by that standard or by the steel-erection exception. The judge found that OSHA's July 1995 enforcement memorandum defined steel erection to include installing metal roof decking and that OSHA's narrower position in this case was inconsistent with that interpretation and failed to give adequate notice. The cited standard was therefore inapplicable, so the citation was vacated and no penalty was assessed.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1926.501(b)(2)(i)
- Outcome: Serious citation vacated; no penalty assessed.
- Key point: OSHA could not apply the general leading-edge standard when its existing steel-erection interpretation covered installation of the metal roof decking at issue.
Full text (OSHRC public release)
Secretary of Labor, :
Complainant, :
:
v. : OSHRC Docket No. 97-2117
:
Korte & Luitjohan, Inc., : EZ
Respondent. :
APPEARANCES:
Linda Panko, Esquire Julie Emmerich, Esquire
Office of the Solicitor Law Offices of Pellegrini and
Emmerich
U. S. Department of Labor St. Louis, Missouri
Chicago, Illinois For Respondent
For Complainant
Before: Administrative Law Judge Stephen J. Simko, Jr.
DECISION AND ORDER
Korte & Luitjohan, Inc. (Korte), is a corporation engaged in construction activities with a
jobsite located at St. Rose, Illinois. The Occupational Safety and Health Administration (OSHA)
conducted an inspection of this jobsite on November 17, 1997. As a result of this inspection, OSHA
issued a citation alleging a violation of 29 C.F.R. § 1926.501(b)(2)(i) with a proposed penalty of
$875.00. Korte filed a timely notice contesting this citation and proposed penalty, and a hearing was
held pursuant to EZ trial proceedings in St. Louis, Missouri, on May 21, 1998.
Citation
The citation, as amended, issued to the respondent following OSHA’s inspection, alleges a
serious violation as follows:
29 CFR 1926.501(b)(2)(i): Each employee who is constructing a leading edge six
feet or more above a lower level was not protected from falling by guardrail systems,
safety net systems, or personal fall arrest systems.
At the jobsite, the employer failed to provide conventional fall protection for up to 10
employees engaged in leading edge work. These employees were installing roof
decking and were exposed to a serious fall hazard ranging from 16 to 22 feet.
Stipulation of Facts and Law
Prior to the hearing on May 21, 1998, the parties submitted a Stipulation of Facts and Law
as follows:
1. Jurisdiction of this action is conferred upon the Occupational Safety
and Health Review Commission by section 10(c) of the Occupational
Safety and Health Act of 1970.
2. Respondent is and, at all times relevant to this proceeding, was a
corporation with an office and place of business in Highland, Illinois
62249, engaged in construction activities.
3. Respondent is and at all times relevant to this proceeding, was
engaged in a business affecting commerce in that Respondent was
engaged in handling goods or materials which had been moved in
interstate commerce.
4. Respondent at all times relevant is an employer employing employees
at the worksite located at a New Truss Plant, St. Rose, Illinois 62230.
The owner of the plant manufactures wood trusses and purlins, some
of which were used in the construction of the New Truss Plant.
5. Ten (10) of Respondent’s employees, including two foremen, were
installing metal sheeting over wooden trusses and purlins,
approximately 16 to 22 feet above the concrete floor. The metal
sheeting was to serve as the roof of the building.
6. Respondent’s carpenters, performing the work described in paragraph
5 above, were not using a guardrail, safety net or personal fall arrest
systems on November 17, 1997.
7. This work and the working conditions, described in paragraphs 5 and
6 above, had been ongoing for approximately four (4) weeks up to
and including November 17, 1997.
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8. The building under construction was a non-tiered building made with
steel beams and columns and was to be used for commercial purposes.
Ironworkers had erected the steel framework prior to the carpenters
work on the building described above.
9. The fall hazards, if any, presented on the project, as described by the
conditions in paragraphs 5 through 8 above, are the same regardless
of whether the work is described as “leading edge work” or “steel
erection work” and regardless of the trade performing the work,
10. The July 10, 1995 memorandum titled, “Fall Protection in Steel
Erection,” authored by Mr. James W. Stanley, then Deputy Assistant
Secretary of OSHA, has not been rescinded since it was issued. A
copy of the memorandum is attached as Exhibit A.
Discussion
The Secretary has the burden of proving the violation:
In order to establish a violation of an occupational safety or health standard, the
Secretary has the burden of proving: (a) the applicability of the cited standard,
(b) the employer’s noncompliance with the standard’s terms, (c) employee access to
the violative conditions, and (d) the employer’s actual or constructive knowledge of
the violation (i.e., the employer either knew or, with the exercise of reasonable
diligence, could have known of the violative conditions).
Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
The primary issue to be decided in this case is whether the work performed by respondent’s
employees is general construction work, as alleged by the Secretary, or steel erection as alleged by
the respondent. The parties have stipulated to employee exposure, employer knowledge, and
employer noncompliance with the terms of the cited standard. The only remaining issue is the
applicability of the cited standard to the working conditions.
The Secretary argues that the work was leading edge work subject to the provisions of 29
C.F.R. § 1926.501(b)(2)(i) found in Subpart M of 29 C.F.R. Part 1926. Korte argues that this
standard is not applicable to this particular work, and that the steel erection standards found in
Subpart R of Part 1926 apply to these working conditions.
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The scope of Subpart M of 29 C.F.R. Part 1926 is set forth in part in 29 C.F.R.
§ 1926.500(a)(2) as follows:
(2) Section 1926.501 sets forth those workplaces, conditions, operations, and
circumstances for which fall protection shall be provided except as follows:
(iii) Requirements relating to fall protection for employees performing
steel erection work are provided in § 1926.105 and in subpart R of
this part.
The provisions of Subpart M, which include 29 C.F.R. § 1926.501(b)(2), set forth general fall
protection requirements for construction with certain exceptions. One such exception applies to
employees performing steel erection work. Respondent has the burden of proving that the steel
erection exception applies to the working conditions at issue. StanBest, Inc., 11 BNA OSHC 1222,
1983-84 CCH OSHD ¶ 26,455 (No. 76-4355, 1983). Statutory construction requires that exceptions
or exemptions from general rules be narrowly construed. Applicability of general standards, on the
other hand, is broadly construed.
The first step in determining whether the steel erection exception applies here is to define
“steel erection.” Part 1926 does not define that term in either Subpart M or Subpart R. Steel
erection is defined, however, by the Secretary in a July 10, 1995, memorandum titled “Fall Protection
in Steel Erection.” A copy of this memorandum was submitted by both parties as Exhibit A attached
to the Stipulation of Facts and Law (Exh. C-2).
That memorandum states in part:
1. New Subpart M does not apply to steel erection activities. The term
“steel erection activities” means the movement and erection of
skeleton steel members (structural steel) in or on buildings and non-
building structures. It includes initial connecting, moving point-to-
point, installing metal floor or roof decking, welding, bolting, and
similar activities. It does not mean the erection of steel members such
as lintels, stairs, railings, curtain walls, windows, architectural
metalwork, column covers, catwalks, and similar non-skeletal items,
nor does it mean the placement of reinforcing rods in concrete
structures.
This document is an official OSHA interpretation relating to Subpart R and “is a restatement
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of the interim enforcement policy to be applied to fall hazards in steel erection activities” (Exh.
C-2, A). That memorandum is currently in effect. It clearly states that the term “steel erection
activities” means, in part, the movement and erection of skeleton steel members on buildings and
includes installing metal roof decks.
I find the Secretary’s memorandum, which includes her interpretation of Subpart R and her
definition of “steel erection activities,” is a reasonable interpretation of ambiguous standards and,
therefore, entitled to substantial deference. See Martin v. OSHRC, 499 U.S. 144, 111 S. Ct. 1171
(1991).
The building under construction was a non-tiered building constructed with steel beams and
columns. Wood trusses were placed on the steel framework. At the time of the inspection,
employees were installing metal roof decking, attaching it to the wood trusses.
The Secretary argues that installing metal roof decking is steel erection when it is attached
to steel, but it is not steel erection when the same decking is attached to wood trusses rather than
steel. She seeks to further interpret her own official interpretation and to further narrow her
definition of “steel erection activities” to address the type of material to which metal decking is
attached.
The question before me is whether this additional interpretation is a reasonable interpretation
of her own regulation entitled to substantial deference by a reviewing judge or court. The Supreme
Court in Martin emphasized “that the reviewing court should defer to the Secretary only if the
Secretary’s interpretation is reasonable.” Martin v. OSHRC, supra, 111 S. Ct. at 1180.
James Stanley was the Deputy Assistant Secretary for OSHA in July 1995. He currently
works in private industry. He is the author of the July 10, 1995, memorandum titled “Fall Protection
in Steel Erection,” which interprets Subpart R and defines steel erection activities. Mr. Stanley
testified at a posthearing deposition regarding the preparation of that document and his intentions as
to the scope of the term “steel erection activities” in the memorandum. On cross-examination by the
Secretary’s attorney, he testified in part as follows:
Q. Wasn’t the memo intended to cover structural steel?
(Objection)
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A. This memo was intended to cover the connection of steel, the
movement on -- during a steel erection process, the installation of
flooring and decking, the welding that goes on, the bolting up that
goes on, any similar activities. It was meant to be a broad definition
to include all the activities involved in the erection -- steel erection
process, that’s what it was intended to do.
* * *
Q. Okay. Now, my next question is based on two sentences in your
memo which states -- in there in paragraph 1, relative part it states, the
term steel activities is the movement of steel members called structural
steel, it includes the connection of or moving from point-to-point, the
roof or floor decking. My question is based on a portion of paragraph
1.
My first question is, isn’t it true that it’s reasonable to interpret the
phrase or the clause, installing a metal floor or roof decking as part of
or attached to a structural steel member?
A. No, that is not reasonable. That’s not the only time you would do it.
Again, you can reasonably interpret it, I guess, anyway you want. But
everybody that I know has always interpreted that when you put metal
decking on a building that has steel columns and steel cross braces,
that is steel erection.
Now, the fact that there is some wood trusses there, to me doesn’t
make one bit of difference. If it was gold, it wouldn’t make any
difference. If it was copper, it wouldn’t make any difference. It’s
part of the steel erection process. That is the way it was intended, you
can interpret it any way that you want, that’s what I intended it to be.
Q. But when you say that the memo was intended to say that, isn’t there
more than one interpretation?
A. Not when I wrote it, it’s not. I’m the one who wrote it, I know what
I intended and that is the way I wanted it. (Stanley Deposition, Tr.
36-39)
The court in Martin stated clearly that “. . . the Commission is authorized to review the
Secretary’s interpretations only for consistency with the regulatory language and for reasonableness.”
It found that interpretive rules and agency enforcement guidelines are entitled to some weight on
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judicial review. It specified that:
A reviewing court may certainly consult them to determine whether the Secretary has
consistently applied the interpretation embodied in the citation, a factor bearing on the
reasonableness of the Secretary’s position. See Ehlert v. United States, 402 U.S. at
105, 91 S. Ct., at 1323.
Martin v. OSHRC, supra, 111 S. Ct. at 1178, 1179.
The Secretary’s interpretation in its July 10, 1995, memorandum is reasonable. Testimony
by James Stanley, its author, is consistent with, and supports, the clear language of that
memorandum. This document also gives OSHA compliance officers, employers, and employees
notice of the requirements for fall protection when workers are engaged in steel erection activities.
The position taken by the Secretary in this proceeding, however, further narrows the definition
of steel erection and gives insufficient and inadequate notice to those attempting to comply with
OSHA standards. Furthermore, it is inconsistent with the 1995 interpretation in that it adds a new,
previously undeclared element to its definition of steel erection.
The Secretary, acting through James Stanley, its Deputy Assistant Secretary for OSHA, did
not consider this new element and did not intend that it be included in the definition of “steel erection
activities” when this memorandum was issued in 1995. This interpretative memorandum remains in
effect unchanged. The Secretary chose not to subsequently directly modify this definition. She now
seeks to modify that definition indirectly by alleging a violation under the general fall protection
standard and arguing that such activity is not steel erection activity. The Secretary’s current
interpretation of steel erection activities, as embodied in this citation, is more than just a newly stated
position. It is inconsistent with the clear language of the Secretary’s own interpretation and definition
of “steel erection activities” and the intention of its author.
The Secretary’s position in this case, which narrows the scope of “steel erection activities,”
has not been consistently applied. It fails to give this employer adequate notice as to which fall
protection standard applies to the working conditions at issue, and it is inconsistent with the
Secretary’s current and long-standing official interpretation and enforcement policy statement relating
to fall hazards in steel erection activities. This position is an unreasonable interpretation and,
therefore, not entitled to deference. See Martin v. OSHRC, 111 S. Ct. at 1179, 1180.
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After due consideration of all testimony and other evidence presented in this case, I conclude
that the steel erection exception applies to the work performed. Respondent has carried its burden
to prove its affirmative defense that the steel erection standards apply to these working conditions.
Section 1926.501(b)(2)(i) is not applicable to the working conditions at issue in this case. Since the
Secretary has failed to prove the applicability of the cited standard, the alleged violation of 29 C.F.R.
§ 1926.501(b)(2)(i) is vacated and no penalty is assessed.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in accordance
with Federal Rule of Civil Procedure 52(a).
ORDER
Based upon the foregoing decision, it is ORDERED:
Item 1 of Citation No. 1, alleging a serious violation of 29 C.F.R. § 1926.501(b)(2)(i), is
hereby vacated and no penalty is assessed.
STEPHEN J. SIMKO, JR.
Judge
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