Appendix — L. E. Myers Co. v. Secretary of Labor

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

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- Supreme Court, U.S,

No. 87 ‘' EILED

AUG I1 W987

JOSEPH © SPANIOL, JR.

IN THE = ster

SUPREME COURT OF THE UNITED STATES

October Term, 1987

THE L.E. MYERS COMPANY, HIGH VOLTAGE

DIVISION, and OCCUPATIONAL SAFETY

AND HEALTH REVIEW COMMISSION,

Petitioners,

Vs.

WILLIAM E. BROCK, SECRETARY OF LABOR

UNITES STATES DEPARTMENT OF LABOR,

Respondent.

APPENDIX TO

PETIT{LON FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

John W. Beatty

2100 Fountain Square Plaza

511 Walnut Street

Cincinnati, Ohio 45202

(513) 977-8200

Counsel for Petitioner

Of Counsel:

John M. Kunst, Jr.

Gary E. Becker

DINSMORE & SHOHL

APPENDIX

Page

Opinion of the Court of Appeal

EGG GO SEMEN COCGwIE. . cccccecceces 1

Opinion of the Occupational Safety

and Health Review Commission...... 32

Opinion of the Administrative Law

a re ae 78

Order of Judgment from the Court

cf Appeals for the Sixth Circuit.. 105

Pertinent Provisions of:

Occupational Safety and Health Act

of 1970, 29 U.S.C. § 614 et seq.

§5(a)(2), 29 U.S.C. § 654(a)(2)... 107

Be 108

Oe Weea TE ED eb dk aeucuscecceoces 108

§17(k), 29 U.S.C. § 666(k)........ 109

ee eee 110

EE ee 110

BO Get ets TH Bs POCO cs ccécccc cece. 110

No. 86-3215

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

WILLIAM E. BROCK, Secretary of Labor,

Petitioner

-V-

THE L. E. MYERS COMPANY, HIGH

VOLTAGE DIVISION, and OCCUPATIONAL

SAFETY AND HEALTH REVIEW COMMISSION,

Respondents.

ON PETITION TO REVIEW AN ORDER

OF THE OCCUPATIONAL SAFETY

AND HEALTH REVIEW COMMISSION

Decided and Filed May 13, 1987

Before: ENGLE and GUY, Circuit Judges;

and PECK, Senior Circuit Judge.

GUY, Circuit Judge. The Secretary of

Labor petitions this court for review of

an order of the Occupational Safety and

Health Review Commission reversing the

administrative law judge's (ALJ)

decision, which had upheld citations

issued against lL. E. Myers Company

(Myers). The Secretary contends that the

Commission's decision is not supported by

substantial evidence and did not

adequately articulate its reasons’ for

failing to credit the findings of the

ALJ. We agree and hereby reverse.

Be

This action arises from an inspection

conducted by a compliance officer of the

Occupational Safety and Health Adminis-

tration (OSHA) following the electrocution

death of one of Myers‘ employees. Follow-

ing the inspection, OSHA issued several

citations charging Myers with both serious

and non-serious violations of the Occupa-

sions Safety and Health Act of 1970 (the

Act). 29 U.S.C. § 651 et seq. However,

the Secretary appeals only the

Commission's ruling with respect to the

“i“ violation of

citation for “serious

29 C.F.R. § 1926.28(a), and we will

confine our discussion to that issue

only. Section 1926.28(a) provides:

§ 1926.28 Personal protective

equipment.

(a) The employer is’ responsible

for requiring the wearing of

appropriate personal protective

1/ A serious violation is deemed to exist

"if there is a substantial probability

that death or serious physical harm could

result from a condition which exists, or

from one or more practices, means,

methods, operations, or processes which

have been adopted or are in use, in such

place of employment unless the employer

did not, and could not with the exercise

of reasonable diligence, know of the

presence of the violation." 29 U.S.C.

§ 666(k).

equipment in all operations where

there is an exposure to hazardous

conditions or where this’. part

indicates the need for using such

equipment to reduce the hazards to

the employees.

The citation alleged that Myers’. had

committed a serious violation by exposing

employees working without safety belts or

other fall protection to a potential fali

of 75 feet.

The investigation ensued as the result

of an accident in which one employee was

killed and another was seriously injured

at a construction project near Cincinnati

Operated by High Voltage Systems, a

wholly-owned division of Myers’ which

constructs and installs electrical trans-

mission and distribution equipment. The

project required Myers' employees to

install rubber covering as an insulati)Dn

on a 13.2 kilovolt energized electrical

wire in a congested construction area

where Emery Industries, which had

contracted with Myers to perform the

insulation work, was building an addition

to a boiler house. The electrical lines

ran a distance of 85 feet between a

terminal pole and a tower located atop

the boiler house. The terminal pole was

about 47 feet high, the roof of the

boiler house was about 60 feet’ from

ground level, and the top of the tower

was about 80 feet from the ground.

Although the preferred method of

performing this operation called _ for

deadening the high-voltage power lines,

Emery refused to do so, whereupon James

Kevelder, Myers' district manager for the

Cincinnati area, consulted with Robert

Sayre, a Myers’ foreman, about alternate

methods of performing the job. It was

finally decided to attempt the job from

the roof of the boiler house building by

wate

standing a ladder on the roof against the

electrical tower supporting the

high-voltage wires and having a man mount

the ladder and slide the rubber hose down

onto the wires. No mention was made of

the use of any specific’ protective

equipment during this decision.

The foreman, Sayre, contacted James

Carmac, a journeyman lineman, and Russell

Miller, an apprentice lineman, to perform

the job. James Carmac testified before

the ALJ that he had asked Sayre if they

needed to bring any tools or belts with

them, and Sayre said, “No, you don't need

nothing. All you need is a ladder that

is in a shed there at the substantion.”

App. at 207. The work commenced when

Sayre, wearing no protective equipment

other than rubber gloves, mounted the 28

foot extension ladder on the east side of

the tower, and covered most of the

energized areas with rubber blankets. He

afe

then took the rubber hose which was

handed up to him by Carmac, who was

standing on a lower rung of the ladder,

and began to slip it over the wires.

This procedure involved laying a section

of hose over the top channel of the tower

structure, reaching under the channel and

over a diagonal brace, and feeding the

interlocking hose onto the line. As the

weight of the hose increased, Sayre

decided to balance the load by installing

hose onto the opposite side. He

accordingly dismounted and the ladder was

moved. Although it appears that’ the

ladder may have been "“tied-off" while

Sayre worked from it, Carmac testified

that when it was moved, the rope was

slack and it no longer appeared to be

secured.

| At that point, Miller mounted. the

ladder to continue the procedure from the

west side of the tower as Sayre had

aBe

previously been doing. Although Miller

was wearing both rubber ities as well as

sleeves,*” none of the three men were

wearing a safety belt or any other fall

protection equipment. A bystander, the

manager of another electrical

construction firm working at the Emery

site, testified at the hearing’ that

observing Miller Carrying out this

procedure was “like watching a guy

struggling on a tight rope, and we at

that point were debating whether’ we

should holler at the guy and tell him to

get off the thing." Shortly after he

began performing the work, Miller,

without explanation or warning, fell

foward and struck an uncovered energized

“pothead" or terminus for the - power

lines. He was instantly electrocuted,

2/ Rubber sleeves fit over the worker's

arms and extend all the way to the

shoulder area.

and continued falling until he struck the

ground some 85 feet below. Carmac,

standing on a lower ladder rung, fell

backward onto the roof, suffering broken

ribs and other injuries. Sayre, who had

been observing from a corner of the roof,

was unharmed.

Following investigation of the acci-

dent, Myers determined that Sayre was

subject to discipline for failing to

require the use of any fall protection

equipment, such as_ safety belts’ and

lanyards. Use of such equipment on the

Emery project was mandated by Myers own

written safety booklet which is distrib-

uted to all supervisory personnel. Sayre

was placed on a two-week suspension with-

out pay, from which he never returned. +’

3/ Sayre was not present to testify at

the hearing and his current whereabouts

are apparently unknown.

II.

Myers contested the citation for viola-

tion of 29 C.F.R. § 1926.28(a) on the

ground that the violation was not charge-

able to the company because it had a

safety rule requiring the use of safety

belts while working at elevated locations

and, therefore, the failure to use belts

in this instance was unforseeable employee

misconduct.

The evidence adduced at the hearing re-

vealed a safety program at Myers’ which

looked good on paper but was routinely

disregarded in practice in the Cincinnati

district. The formal safety program con-

sisted of: (1) distribution of safety

manuals to employees and supervisors, who

were required to sign and return a receipt

for the manuals; (2) regular safety “tail-

gate” meetings which were to be conducted

by foremen at the worksite; (3) the

-10-

filing of reports on such meetings with

the district manager (here Kevelder); (4)

individual pre-job discussions of safety

matters; (5) workside visits by a Myers

Safety Supervisor, headquartered in

Chicago; and (6) a progressive system of

discipline for safety infractions,

normally implemented by ‘he district

manager. Myers could produce no records

showing receipt by either Carmac or

Miller of their basic safety booklets nor

for the manuals required for supervisory

personnel, such as Sayre and Kevelder.

No records were produced of any tailgate

meetings conducted by Sayre, and Carmac

reported that he could not remember when

a safety meeting had last been held.

Kevelder's secretary, Nancy Maher,

testified that, prior to the accident,

Sayre had not filed any safety reports.

Following Miller's death, Kenneth

ekin

Kesmeyer, HSVS's manager out of Toledo,

demanded copies of Cincinnati's safety

reports. Maher testified that Sayre

repaired to a backroom with some pens, a

calendar, and a copy of Myers “Tailgate

Safety Meeting Guides” and prepared

several reports at once.

Kevelder testified that, as district

manager, he did not get “actively

involved" in the safety program and that

it was very seldom necessary to have safe-

ty meetings unless something was “really

out of the ordinary,” although the com-

pany's Safety Supervisor, Robert Grandt,

testified that it was the district mana-

gers who were responsible for training

and enforcement of safety matters within

their districts. Kevelder further admit-

ted that there had been no specific dis-

cussion of safety matters prior to the

Emery job at issue, mainly because it

would be “insulting [Sayre'‘s] intelli-

=—y =

gence” to remind him to take normal safety

precautions. However, as Carmac's testi-

mony revealed, Sayre specifically stated

that no safety belts would be needed on

the job and, in deed, he himself did not

have his belt on nor did he tie-off while

on the ladder as protection ajainst a

potentional fall. Finally, OSHA's

compliance officer testified that “The

written program is a fairly effective and

thorough program. It is not administered

in that manner; therefore, I rated the

program as being ineffective.”

The ALJ concluded that Myers “has made

an effort to institute and implement a

safety program of sorts. While this

safety program appears on its face to be

a workable program, the circumstances sur-

rounding the actions of foreman Sayre on

the day of the accident and prior thereto

cast serious doubt that the program was

o13e@

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effective with respect to the crews he

supervised.” He credited testimony

showing that Sayre did not conduct

tailgate safety meetings as mandated and

that he “may have falsified reports in

this regard." He also relied on Carmac's

testimony that Sayre told him belts would

not be needed as evidence of the _ fact

that Myers’ safety program “was not

effectively communicated or enforced."

Finally, he credited testimony by

Kevelder's secretary and a union repre-

sentative to the effect that, shortly

after the accident, Ke.elder stated that

he felt good linemen did not need safety

belts because they just “get in the

way.” App. at 166.

In reversing the findings of the ALJ,

the Commission concluded that Myers’

safety program was both adequate = and

effectively communicated to its employees,

-14-

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relying primarily on testimony relative

to the operation of the program as

envisioned by the Safety Director's

Office. They cited the compliance

officer's testimony for the proposition

that Myers’ employee training program was

not deficient, ignoring the rest of his

testimony to the effect that the manner

in which it was actually carried out

rendered it ineffectual. They further

found that “Sayre was a good supervisor"

despite the fact that there was testimony

presented regarding two incidents on prior

jobs which Sayre had supervised wherein

Sayre’s judgment and attention to safety

matters was called into question. No

mention was made of the- conflicting

testimony specifically credited by the

ALJ. The Commission concluded that the

Secretary failed to sustain his burden of

proving a violation of § 1926.28(a) and

vacated the citation.

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IIlI.

The Secretary raises two issues on

appeal:

1) whether the Commission erred

in placing the burden of proof on the

Secretary to establish that the

employee misconduct was’ unforseeable

to the employer, and

2) whether the Commission's

decision is supported by substantial

evidence where it failed to articulate

any reasons for discrediting evidence

relied on by the ALJ and _ ignored

evidence relative to the actual

enforcement and communication of

Myers’ safety program to its employees.

We address these issues seriatim.

A. The Burden of Proof

The Occupational Safety and Health

Act's stated purpose is to provide “so

far as possible every working man and

woman in the Nation safe and healthful

o1G<

working conditions . . . .” Whirlpool

Corp. Vv. Marshall, 445 U.S. l, 12

(1980). Its purpose is neither punitive

nor compensatory, but rather forward-

looking; i.e, to prevent the first

accident. Mineral Industries & Heavy

Construction Group, v. OSHRC, 639 F.2d

1289, 1294 (Sth Cir. 1981). To implement

the statutory purpose, Congress’ imposed

dual obligations on employers to comply

both with a “general duty clause”

requiring that the employer free the work-

place of all recognized hazards, 29 U.S.C.

§ 654(a)(1), and a “special duty clause”

which requires compliance with mandatory

occupational safety and health standards

issued by the Secretary, 29 U.S.C.

§ 654(a)(2). In this case, Myers is

charged with a breach of the special duty

ehense by its violation of the standard

set forth at 29 C.F.R. § 1926.28(a). This

ol Fo

standard mandates that an employer shall

require the wearing of appropriate per-

sonal protective equipment in all

Situations where an employee is_ both

exposed to a hazardous condition and the

need for such protective equipment is

indicated elsewhere in part 1926.

Although the current version of the

standard uses the disjunctive “or” with

respect to these separate clauses, its

Original version used the conjunctive

"and" to indicate that both conditions

must be satisfied. The Commission held

that the change to “or” was invalidly

promulgated by the Secretary and required

reinstatement of the prior interpretation

mandating that both conditions be met,

and the Secretary expressly declined to

challenge that ruling on appeal.

Therefore, our analysis will] proceed by

taking as a given that a violation of

-18-

both parts of § 1926.28(a) must be

proven.+”

Although Myers does not contest the

facts that neither the foreman, Sayre,

nor Carmac and Miller were wearing safety

belts, that such belts would have been

appropriate fall protection on the Emery

job, that risk of a fall was a recognized

hazard attendant upon a job performed from

a ladder over 75 feet above ground level,

4/ This court has held that "§ 1926.28(a)

requires an employer to require the wear-

ing of appopriate safety equipment by his

employees whenever a reasonably prudent

employer, concerned with the _ safety of

his employees, would recognize the

existence of a hazardous condition and

protect against that hazard by the means

specified in the citation.” Ray Evers

Welding v. Occupational Safety, 625 F.2d

726, 731 (6th Cir. 1980). However, that

case arose prior to the Commission's

invalidation of the disjunctive version

of the regulation.

-19-

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and that § 1926.105(a)*” “indicates the

need" for protective equipment where the

“workplace is more than 25 feet above the

ground,"*“ Myers nevertheless argues

5/7 § 1906.105 Safety nets.

(a) Safety nets shall be

provided when workplaces are more

than 25 feet above the ground or

water surface, or other surfaces

where the use of ladders,

scaffolds, catch platforms,

temporary forms, safety lines, or

safety belts is impractical.

Although this standard explicitly re-

fers only to “Safety nets,” the Commission

as well as several courts of appeals have

interpreted this standard to include safe-

ty belts as well as the other listed items

as appropriate means of fall protection.

See Southern Colorado Prestress Co. v.

OSHRC, 586 F.2d 142, 1350 (10th Cir.

1978); Brennan v. Southern Contractors

Service, 492 F.2d 498 (5th Cir. 1974).

6/ Myers puts forth an argument in this

regard that we must address. They contend

that § 1926.105(a) should be read only to

require an employer to utilize either a

safety net or any other enumerated safety

device -- including a “safety belt" or a

“ladder.” Therefore, they argue, since

Myers undisputedly provided a ladder upon

which the involved employees could stand,

the ladder itself was sufficient fall

protection and no other safety equipment

was mandated.

-20-

that these facts are insufficient to

prove the Secretary's case. They contend

that, since it is clear that Congress did

not intend employers to be insurers

against all accidents, but only those

which are preventable, that when = an

employer alleges the existence of a

comprehensive safety program which

renders noncompliance unforseeable, the

Secretary carries the burden of proving

the insufficiency of that program. We

disagree.

6/ cont'd

The Commission itself has acknowledged

that § 105(a) “is not satisfied simply by

the use of one of the devices listed in

that section without reard to whether such

use provided adequate fall protection to

employees." National Indus. Conductors,

Inc., 90 O.S.H. Cas. (BNA) 1871, 1872

(Rev. Comm'n 1981). See also Brock v. L.

R. Willson & Sons, Inc., 773 F.2d 1377,

1384 (D.C. Cir. 1985) (device used must be

capable of providing protection against

the type of hazard to which employees are

exposed). Moreover, in its brief to the

Commission, Myers specifically conceded

that safety belts should have been used

on this project.

-2l-

As Myers points out, there is a split

among the circuits with respect to this

question. Several circuits have held that

an allegation of unforseeable employee

misconduct constitutes an affirmative de-

fense to be pleaded and proved by the

employer. See, e.g., Forging Industry

Ass'n v. Secretary of Labor, 773 F.2d

1436, 1450 (4th Cir. 1985) (en banc)

(unforseeable employee misconduct

constitutes an affirmative defense);

Daniel International Corp. v. OSHRC, 683

F.2d 361, 363 (llth Cir. 1982) (same);

H. B. Zachry Co. v. OSHRC, 638 F.2d 812,

818-19 (5th Cir. 1981) (same); General

Dynamics Corp. v. OSHRC, 599 F.2d 453,

458 (lst Cir. 1979) (employer may defend

by showing it took all necessary precau-

tions to prevent occurrence of violation);

Danco Construction Co. v. OSHRC, 586 F.2d

1243, 1246 (8th Cir. 1978) (employer bears

~29<

burden of establishing affirmative defense

of unforseeable employee misconduct).

Other circuits place the burden of dis-

proving unforseeable employee misconduct

on the Secretary. See Capital Electric

Line Builder of Kansas v. Marshall, 678

F.2d 128 (10th Cir. 1982); Pennsylvania

Power and Light v. OSHRC, 737 F.2d 350,

357 (3d Cir. 1984) (Secretary bears the

burden of proving that supervisor's fail-

ure to comply with standard was forsee-

able).+* We are persuaded that the ap-

7/ Despite the Pennsylvania Power & Light

court’s holding, it also stated that “[iJjn

cases where the Secretary proves that a

company supervisor had knowledge of, or

participated in, conduct violating the

Act, we do not quarrel with the logic of

requiring the company to come _ forward

with some evidence that it has undertaken

reasonable safety precautions.”

Moreover, we observe that the court's

conclusion was predicated on the presence

of an adequate safety program and the

unblemished safety record of the involved

Supervisor.

cont'd

x«;=

propriate resolution of this question is

to regard a claim of unforseeable employee

7/ cont'd

We also observe that the Tenth Circuit

has itself issued a conflicting case in

Austin Bldg. Co. v. OSHRC, 647 F.2d 1063

(10th Cir. 1981). In Austin, the court

held:

The Secretary has the burden of show-

ing that the employer knew or, with

the exercise of reasonable diligence,

could have known of the likelihood of

the noncomplying condition or prac-

tice. The employer may defend by

showing that the violation was an un-

forseeable occurrence. Evidence that

the employer effectively communicated

and enforced safety policies to pro-

tect against the hazard permits an

inference that the employer justifi-

ably relied on its employees’ to

comply with the applicable safety

rules and that violations of these

safety policies were not forseeable

Or preventable.

Id. at 1067-68 (emphasis added). See

generally Annotation, Employee Misconduct

as Defense to Citation, Issued Pursuant

to O.S.H. Act, Arising Out of Alleged Vio-

lation of Standards Resulting in Death or

Personal Injury of Employee, 49 A.L.R.

Fed. 395 (1982).

-24-

misconduct as an affirmative defense to

be proved by the employer after the

Secretary has made out a prima facie case

of a violation of the Act.

In cases involving negligent behavior

by a supervisor or foreman which results

in dangerous risks to employees under his

Or her supervision, such fact raises an

inference of lax enforcement and/or com-

munication of the employer's safety poli-

cy. National Realty and Construction Co.,

Inc. v. OSHRC, 489 F.2d 1257, 1267 n.38

(D.C. Cir. 1973). See also Donovan v.

Capital City Excavating Co., Inc., 712

F.2d 1008, 1010 (6th Cir. 1983) (actions

of supervision are imputed to the com-

pany). However, the proper focus in em-

ployee misconduct cases is on the effec-

tiveness of the employer's implementation

of its safety program and not on whether

the employee misconduct is that of a fore-

o26<

it REL a ta Bae 0S PRED EI N00 8 dtl

man as opposed to an employee. Congress

has specifically imposed on the employer

the “responsibility to assure comp‘iance

by his own employees. Final responsibility

for compliance with the requirements of

this Act remains with the employers.” S.

Rep. 1282, 91st Cong. 2d Sess. 10-11

(1970). The statutory duty to assure com-

pliance with standards issued under the

Act includes the obligation to prevent

hazardous noncomplying conduct by employ-

ees. “[{A]n instance of hazardous employee

conduct may be considered preventable

even if no employer could have detected

the conduct, or its hazardous character,

at the moment of its occurrence.

Conceivably, such conduct might have been

precluded through feasible precautions

concerning the _ hiring, training, and

Sanctioning of employees.” National

Realty, 489 F.2d at 1267 n.37. Since the

Act itself places upon the employer the

a26-

responsibility of taking all reascnable

steps to eradicate preventable hazards,

“including imposing work rules, communi-

cating the rules to employees, and provid-

ing training, supervision and disciplinary

action designated to enforce the rules,”

Forging Industries, 773 F.2d at 1450, the

Secretary makes out a prima facie case of

the employer's awareness of a potentially

preventable hazard upon the introduction

of proof of the employer's failure to pro-

vide adequate safety equipment or to prop-

erly instruct its employees on necessary

safety precautions. See Brennan v. OSHRC,

511 F.2d 1139, 1143 n.5 (9th Cir. 1975)

("Proof of an employer's failure to pro-

vide guardrails, safety equipment, in-

structions, or the like, would establish

a prima facie case of an employer's

knowl- edge of its own acts of

omission.”"); Danco Construction Co. v.

OSHRC, 586 F.2d at 1246 (employer may not

“fail to prop-

ofte

erly train and supervise its employees and

then hide behind its lack of knowledge

concerning their dangerous working prac-

tices.").

Thereafter, an employer may defend the

citation on the ground that, due to tue

existence of a thorough and adequate

safety program which is communicated and

enforced as written, the conduct of its

employee(s) in violating that policy was

idiosyncratic and unforseeable. By its

nature, information with respect to the

implementation of its written safety pro-

gram will be in the hands of the employer,

and it is not unduly burdensome to require

it to come forward with such evidence.

If the employer’s evidence preponderates,

it has successfully established the de-

fense of unforseeable employee misconduct.

We emphasize that the employer who wishes

to rely on the presence of an effective

safety program to establish that it could

-28-

not reasonably have foreseen the aberrant

behavior of its employees must demonstrate

that program's effectiveness in practice

as well as in theory.

B. Substantiality of the Evidence

Factual findings of the Commission are

conclusive if supported by substantial

evidence in the record as a whole. 29

U.S.C. § 660(a). However, when’ the

Commission reverses the factual findings

of the ALJ, who had the unique opportunity

of observing the demeanor of the witnesses

and accepting or rejecting their testimony

based on those observations, the Commis-

sion must articulate reasons for its fail-

ure to discredit those findings. Citizens

State Bank v. FDIC, 718 F.2d 1440, 1444

(8th Cir. 1983); Brennan v. Gilles &

Cotting, Inc., 504 F.2d 1255, 1264 (4th

Cir. 1974) (administrative agency must

explain grounds for rejection of ALJ's

disposition).

-29-

In the case at bar, it is clear that

the Commission chose to accept Myers’ evi-

Qease as to the adequacy of its written

safety program while selectively ignoring

testimony, credited by the ALJ, which

showed that the program in practice, at

least in Kevelder's district, and more

specifically with respect to Sayre

personally, was not only ignored, but

actively disregarded.*” The Commission

gave no reasons for its failure to accept

the factual findings made by the ALJ.

Under these circumstances, we do not find

the Commission's conclusion supported by

8/ See, e.g., testimony establishing that,

when asked if belts or other. special

equipment would be necessary, Sayre said

"no". Further, Carmac testified that

after he saw what the job entailed, he

“would have put a lanyard on if I had

one." He had intentionally left his

safety equipment at his other job site in

reliance on Sayre's assurance that it

would not be necessary.

-30- ,

substantial evidence and it will

therefore be REVERSED.

PETITION GRANTED.

«Sie

REVIEW COMMISSION DECISION

SECRETARY OF LABOR,

Complainant,

alte

THE L. E. MYERS COMPANY, HIGH VOLTAGE

SYSTEMS DIVISION,

Respondent,

OSAHRC Docket No. 82-1137, Jan. 16, 1986.

William S. Kloepfer, U.S. Department

of Labor, Cleveland, Ohio, for

complainant.

Kent W. Seifried, Cincinnati, Ohio,

for respondent.

Review Commission Judge Edwin g.

Salyers.

Before Buckley, Chairman; Rader _ and

Wall, Commissioners.

BY THE COMMISSION:

This case is before the Occupational

Safety and Health Review Commission under

29 U.S.C. §661(i), section 12(j) of the

Occupational Safety and Health Act of

1970, 29 U.S.C. §651-678 (“the Act").

The Commission is an adjudicatory agency,

aS$2-

independent of the Department of Labor

and the Occupational Safety and Health

Administration. It was established to

resolve disputes arising out of

enforcement actions brought by the

Secretary of Labor under the Act and has

no regulatory’ functions. See section

10(c) of the Act, 29 U.S.C. §659(c).

This case arises out of an accident in

which one employee of Respondent L. E.

Myers Company was electrocuted and

another injured when they fell from a

ladder. As a result of his investigation

of the accident, the Secretary failed to

prove any violation, and that portion of

the judge's decision is not before us.

However, Judge Salyers did not find that

L. _£ Myers violated 29 C.F.R.

§1925.28(a) because its employees were

not using safety belts and lanyards to

o33q

protect against a fall. +” The judge

also found L. E. Myers in violation of 29

C.F.R. §1926.450(a)(7) for failing to

position the ladder at a proper angle,”

and 29 C.F.R. §1926.450(a)(6) for failing

to keep the area at the base of

ss ma = §1926.28(a) provides as

follows: The employer is_ responsible

for requiring the wearing of

appropriate personal protective

equipment in all operations where

there is an exposure to hazardous

conditions Or where this part

indicates the need for using’ such

equipment to reduce the hazards to the

employees.

2/ 29 C.F.R. §1926.450(a) (7) requires

that Portable ladders shall be used at

such a pitch that the horizontal

distance from the top support to the

foot of the ladder is about

One-quarter of the working length of

the ladder (the length along’ the

ladder between the foot and the top

Support). Ladders shall not be used

in a horizontal position as platforms,

runways, Or scaffolds.

—v

the ladder clear.+” Review was

directed on whether 29 C.F.R. §1926.28(a)

was validly promulgated and whether the

judge erred in finding Respondent L. E.

Myers in violation of §§1926.28(a),

1926.450(a)(6) and 1926.450(a)(7).

L. E. Myers is an electrical

contractor who constructs and installs

electrical transmission and distribution

equipment. Myers was engaged by Emery

Industries to place protective rubber

hosing over certain electric.1l1 power

lines at Emery's plant at St. Bernard,

Ohio.*” Myers put one of its foremen,

3/ Section 1926.450(a)(6) requires’ that

“[plortable ladder feet shall be

placed on a substantial base, and the

area around the top and bottom of the

ladder shall be kept clear.”

4/ Emery wanted to protect the power

lines from any accidental contact by a

Crane doing construction work at the

plant.

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Robert Sayre, in charge of this job.

Sayre, an experienced lineman himself,

was assisted by James Carmac, a

journeyman lineman, and Russell Miller,

an apprentice.

The lines to be covered with rubber

hosing ran from the top of a tower on the

roof of Emery’s boiler house downward to

a pole and cross arm approximately 85

feet away. The roof of the boiler house

was 60 feet above the ground and the

tower on top of the roof was 20 feet

high. The cross arm on the pole below

was 47 feet above the ground.

Foreman Sayre and Carmac and Miller

first attempted to use a 55-foot bucket

truck to put the hoses on the lines at

that height, and then push them uphill

towards the tower. However, this method

proved infeasible because of the friction

on the wire and the weight of the hoses.

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Sayre then consulted with his supervisor,

James Kevelder, who was Myers’ district

manager for the Cincinnati area. They

determined that the work could be done

from a ladder on the boilerhouse roof

placed against the tower, which would

allow the employees to place the hoses on

the power lines at the top of the tower

and slide them in a downward direction.

On the day of the accident, Sayre,

Carmac and Miller began to do the job

from the roof. Rubber blankets were

placed over all electrical equipment and

the employees wore’ protective’ rubber

gloves and sleeves. None wore safety

belts or lanyards on the day of the

accident. The ladder was placed on the

east side of the tower and_ secured.

Foremen Sayre and Carmac then went up on

the ladder, with Sayre ascending first.

«$7

Miller, who stood on the roof below,

began handing sections of hosing’ to

Carmac. In turn, Carmac’ handed the

pieces to Sayre, who placed them on the

easternmost power line. When the weight

of the hosing on the east line began to

unbalance the pole and cross arm at the

lower end, Sayre and Carmac came down off.

the ladder, and the crew moved the ladder

to the west side of the tower to begin

placing the hosing on the west power

line.*”

The roof area near the base of the

west side of the tow was obstructed by an

air conditioner box, with a pipe

extending outward from the box toward the

tower. In the same area there were

5/ The weight on the east and west lines

had to be balanced to prevent the pole

at the tower level from twisting.

_ =

also angle iron braces for the tower

itself. In order to avoid the air

conditioner box and the angle _ iron

bracing, the employees placed the base of

the ladder on the far side of the air

conditioner box so that the air

conditioner box was between the ladder

and the tower. The top of the ladder was

placed against a horizontal cross member

of the tower that was 18 feet above the

roof, and Carmac placed a piece of wood

under one of the legs of the ladder to

compensate for unevenness in the surface

of the roof.

Once the ladder was repositioned and

made secure, the employees recommended

installing the hosing on the power line.

This time Miller went up the ladder to

place the hosing on the _ power line,

followed by Carmac, while Sayre remained

on the roof to hand up the sections of

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hosing. For reasons unclear in the

record, Miller fell off the ladder and

struck and energized “pothead jumper” (a

connection between energized conductors

on either side of the tower) some four to

six feet below where he had been standing

on the ladder. Miller was electrocuted

when he struck the pothead jumper, and he

then fell to the ground below. Carmac

was injured when he jumped off the ladder

onto the roof to avoid the electric flash

that resulted when Miller struck’ the

pothead jumper. There was no evidence

that Miller's fall was caused by the

ladder tipping or sliding.

Alleged Violation of 29 C.F.R. §1926.28(a)

The Secretary charged Myers with a

serious violation of 29 C.F.R.

§1926.28(a) for its failure to require

its employees at the work site to wear

safety belts and lanyards. Myers

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counters thlt it may not properly be

cited under §1926.28(a) because’- the

standard was invalidly promulgated and is

therefore void. Myers also contends that

the failure of its employees to wear

safety belts and lanyards on the Emery

job was a direct violation of Myers’

published and enforced safety rules, was

unknown to Myers, and could not have been

reasonably anticipated. We deal with

these contentions in order.

(a) Validity and Interpretation

of 1926.28(a)

This standard was Originally

promulgated under the Contract Work Hours

and Safety Standards Act, commonly known

as the Construction Safety Act. Section

107 of that statute, 40 U.S.C. §333,

authorizes the Secretary to prescribe

safety and health standards for federal or

federally-assisted construction contracts.

-~4]-

The standard, then codified as 29 C.F.R.

§1518.28(a), required that personal

protective equipment be worn “in all

operations where there is an exposure to

hazardous conditions and where this part

[1518] indicates the need for using such

equipment to reduce the hazards to

employees." (Emphasis added). On May

29, 1971, the standards in Part 1£18 were

adopted as standards under the

Occupational Safety and Health Act, 36

Fed. Reg. 10469, and on December 30,

1971, §28(a) was redesignated as 29

C.F.R. §1926.28(a). 3* Fed. Reg. 25232

(1971). This adoption of the standards

at Part 1518 was accomplished pursuant to

section 6(a) of the Occupational Safety

and Health Act, 29 U.S.C. §655(a), which

allowed the Secretary for the first two

yoors under the Act to adopt any existing

federal or national consensus safety or

a@Ze

health standard without regard for the

notice and comment rulemaking procedures

of the Administrative Procedure Act, 5

U.S.C. 551 et seq, or the promulgation

procedures outlined in §6(b) of the OSH

Act, 29 U.S.C. §655(b).

When §28(a) was republished in the

January 1, 1972, revised Code of Federal

Regulations the wording of the standard

was still exactly the same as the old

Construction Safety Act standard at 29

C.F.R. 1518.28(a). Subsequently, on

December 16, 1972, without any notice and

comment rulemaking procedure, the

Secretary “revised" a number of the

standards at Part 1926, including

§1926.28(a). The revised §1926.28 (a)

read:

The employer is responsible for

requiring the wearing of

appropriate personal protective

=@9-

equipment in all operations where

there is an exposure to hazardous

conditions or where this_ part

indicates the need for using such

equipment to reduce the hazards to

the employees. (Emphasis added.)

37 Fed. Reg. 27510 (1972). this remains

the language of the current section

1926.28(a) under which Myers’ has_ been

cited.

Myers contends that the change of the

word “and” to the word "“or" was a

substantive change in the standard, which

is imperinissible without notice and

comment rulemaking. The Secretary, on

the other hand, contends that the

revision of §28(a) was only to “improve

its usefulness" and to “correct a number

of typographical and clerical errors,” 37

Fed. Reg. 27503 (1972), and did not

materially affect the duties of employees

tie

under the standard.

In its present form the standard is

clearly in the disjunctive; that is, an

employer must require the wearing of

personal protective equipment either

where there is an exposure to a hazardous

condition or where Part 1926 elsewhere

affirmatively indicates the need _ for

using such equipment. But if the word

“and” in the original standard was

conjunctive, then it imposed a bu-den on

employers to require the wearing of

personal protective equipment only if

there existed an exposure to a hazardous

condition and also if Part 1926 elsewhere

affirmatively indicated the need for the

use of such equipment.

The Commission and the courts have

held that in adopting consensus standards

under §6(a) of the OSH Act the Secretary

"was not empowered to make substantive

changes from the source standard.” Senco

-45-

Products, Inc. 82 OSAHRC 59/E9, 10 BNA

OSHC 2091, 2095, 1982 CCH OSHD 426.304,

p. 33,271 (No. 79-3291, 1982). See also

Diebold, Inc. v. Marshall, 585 F.2d 1327,

1332 & n.6 [6 OSHC 2002, 2004] (6th Cir.

19789). Thus, the question before us is,

first, whether “and” in the standard as

Originally promulgated was conjunctive,

and, if so, whether the - substantive

change of the word “and” to “or” in the

standard substantively affected the

duties of employers. With respect to

§1926.28(a), this is not the first time

that the question has_ been raised.

Indeed, the history of ~~ §28(a) is

particularly troublesome. Previous cases

have resulted in inconclusive holdings,

or have avoided the issue altogether.

Previous Review Commission cases

reflect a sharp division over whether the

word “and” in the original standard was

=@G-

in the conjunctive or the disjunctive.

See, e.g., Hoffman Construction Co., 75

OSAHRC 31/E12, 2 BNA OSHC 1523, 1974-75

CCH OSHD 419,275 (No. 644, 1975), rev'd,

546 F.2d 281 [4 OSHC 1813] (9th Cir.

1976); Carpenter Riggings & Contracting

Corp. 75 OSAHRC 32/D13, 2 BNA OSHC 1544,

1974-75 CCH OSHD 419,252 (No. 1399,

1975); General Bronze Architectural

Products, 75 OSAHRC 62/C14, 4 BNA OSHC

1244, 1974-75 CCH OSHD 419,690 (No. 2031.

1975); Umited Engineers & Contractors,

Inc., 75 OSAHRC 69/A2, 4 BNA OSHC 1313,

1974-75 CCH OSHD 19,780 (No. 2414,

1975); Isseks Brothers, Inc., 76 OSAHRC

8/B9, 3 BNA OSHC 1964, 1975-75 CCH OSHD

920,361 (No. 6415, 1975). However, it

seems clear to us that the use of the

word “and”" in the standards as originally

a@P<

promulgated was in the conjunctive,*“

6/ It is axiomatic that “and” normally

has a conjunctive meaning. United

States v. Castellana, 433 F.Supp. 1309

(M.D. Fla. 1977). See De Sylva v.

Ballentine, iam & F 570, 573-74

(1956). When “and” is used to join

two clauses, it normally indicates

that both must be read together in

determining the rights or obligations

of those affected by the statute or

regulation in question. See, Areizaga

v. Quern, 442 F.Supp. 168 (N.D. Ill.

1977). aff'd, 590 F.2d 226 (7th Cir.

1978); United States v. Gera, 279

F.Supp 731 (W.D. pa. 1968), rev'd and

rem'd on. other grounds, 409 F.2d 117

(3d Cir. 1969). Conversely, “or” is

normally a disjunctive rather than a

conjunctive; it separates alternative

Or fully independent provisions.

United States Customs Service v. FLRA,

739 F.2d 829 (2d Cir. 1984); United

States v. Garcia, 718 F.2d 1528,

1532-33 (llth Cir. 1983), aff'd 105

S.Ct. 479 (1984); George Hyman Const.

Co. v. OSHRC, 582 F.2d 834, 840 n.10

[6 OSHC 1855, 1959) (4th Cir. 1978);

Piet v. United States, 176 F.Supp.

576, 583 (S.D. Cal. 1959), aff'd 283

F.2d 693 (9th Cir. 1960). As a

disjunctive, therefore, “or” is not

freely interchangeable with “and.”

Illinois v. ICC, 687 F.2d 1047, 1054

(7th Cir. 1982); Umited States v.

Moore, 613 F.2d 1029, 1040 (D.C. Cir

1979), cert. denied, 446 U. S. 954

cont'd

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and that a violation could be established

only upon proof of both (a) an exposure

to hazardous condition requiring the use

cont'd 6/

(1960). We recognize, of course, that

there may be circumstances in which

strict adherence to the usual

definitions of “and” and "“or" would

frustrate the drafter's intent or

create an inconsistency with other

provisions. United States v. Fisk, 70

U.S. 445 (186); Moore, supra; In re

Rice, 165 F.2d 617, 619 n. 3 (D.C.

Cic. 4947). However, there is no

history of section 1926.28(a) or other

material to indicate the Secretary's

intent when he promulgated the

standard under the Construction Safety

Act and adopted it under the OSH Act.

We therefore cannot conclude that the

Secretary intended “and” to be read

disjunctively. See, Alabama Vv.

Marshall, 626 F.2d 366 (Sth Cir.

1980), cert. denied, 452 U.S. 905

(1981) (interpretation of a statute

must accord with its plain language if

a contrary intent is not clearly and

distinctly shown). Nor is there any

conflict with other standards arising

from the term “and” to necessitate

construing it in a disjunctive

manner. The circumstances’ presented

here, therefore, do not justify

construing “and” in a manner contrary

to its usual meaning.

-~49-

and that a violation could be established

only upon proof of both (a) an exposure

to hazardous condition requiring the use

of personal protective equipment, and (2)

the failure to use this equipment when

the need for its use is indicated

elsewhere in Part 1926. Our view is

buttressed by the holding of the Ninth

Circuit in Hoffman Construction Co.,

supra, 546 F.2d at 283 [4 OSHC at 1814]

where the court held that:

Liability under 29 C.F.R:

§1926[.28(a) ] as then written

required proof of three elements:

(1) that the employer did not

require the wearing of protective

equipment ; (2) that there was

exposure to hazardous conditions;

and (3) that [some other section

of] Part 1926 of the regulations

indicated a need for. protective

equipment.

«ti.

It is equally clear that the revised

§28(a) is in the disjunctive. Under the

standard as presently worded, a violation

may be establihed by proof of either a

hazard or the failure to use _ personal

protective equipment when the need for

its use is indicated elsewhere in Part

1926. With the revision, a violation can

be established by simply showing 4

failure to require the wearing of

“appropriate” personal protective

equipment where there is employee

exposure to a hazardous condition, but

also proof that need for a specific item

of protective equipment was indicated in

another section of Part 1926. Thus, the

revision of §28(a) obviously deleted an

element of proof necesary to establish a

violation.

Previous Review Commission cases have,

again, sharply divided over whether this

afihe

deletion of an element of proof, and the

corresponding obligation of employers

under the Act, was substantive.’ See,

e.g, Carpenter Rigging & Contracting

Corp., supra; Island Steel & Welding,

Ltd., 75 OSAHRC 51/A2, 3 BNA OSHC 1101,

1974-75 CCH OSHD 19,545 (No. 2931,

1975); Isseks Brothers, Inc., supra;

Sweetman Construction Co., 76 OSAHRC

35/A2, 3 BNA OSHC 2056, 1975-76 CCH OSHD

720,466 (No. 3750, 1976); Schiavone

Construction Co., 77 OSAHRC 78/A2, 5 BNA

7/ Under the standard as_ originally

promulgated the Secretary had the duty

to specify elsewhere in his standards

the circumstances where personal

protective equipment must be_- used

under §1926(a). By contrast, under

the standard in its present form the

employer is liable for evaluating

whether the conditions in its

workplace necessitate the use of

personal protective equipment without

the benefit of guidance from_ the

Secretary as provided under the

Original version of the standard.

ofiin

OSHC 1385, 1977); cf. Eichleay Corp., 75

OSAHRC 35/B6, 2 BNA OSHC 1635, 1974-75

CCH OSHD 919,324 (No. 2610, 1975);

Dic-Underhill, 75 OSAHRC 35/Fi0, 2 BNA

OSHC 1651, 1974-75 CCH OSHD 419,328 (No.

2232, 1975); General Bronze Architectural

Products, supra; B & B Insulation, Inc.,

_-—-— -

77 OSAHRC 49/7A2, 5 BNA OSHC 1265, 1977-78

CCH OSHD 421,747 (No. 9985, 1977), rev'd,

583 F.2d 1364 [6 OSHC 2062] (5th Cir.

1978). The decisions of the respective

courts of appeals unfortunately provide

no guidance in resolving this question.

Thus far the courts of appeals’ have

declined to rule on the direct issue of

whether’ the revision to §28(a) was

substantive. See, Austin Building Co. v.

OSHRC, 647 F.2d 1063, 1067 [9 OSHC 1718,

1721] (10th Cir. 1981); Ray Evers Welding

Co. v. OSHRC, 625 F.2d 726, 730 n.5 [8

OSHC 1271, 1273) (6th Cir. 1980); B & B

a$3<

Insulation, Inc., supra, 583 F.2d at 1368

{6 OSHC at 2064]; Hoffman Construction

Co., supra, 54f F.2d at 283 n.5 [4 OSHC

1816.)

Judge Salyers below ruled that’ the

revision of §28(a) from “and" to “or” was

not substantive, following the

Commission's decision in S & H_ Riggers

and Erectors, Inc., 79 OSAHRC 23/A2, 7

BNA OSHC 1260, 1979 CCH OSHD 423, 48 (No.

15855, 1979), rev'd on other grounds, 659

F.2d 1273 [10 OSHC] 5th Cir. 1981). In S&S

& H Riggers the Commission rejected an

identical challenge to §28(a) on_ the

belief that “we have consistently held

that the change was not substantive." 7

BNA OSHC at 1263. The majority in S & H

Riggers thought that the earlier

Commission decisions in Carpenter Rigging

& Contracting Corp., supra, Isseks

Brothers, Inc., supra, Island Steel and

o$4-

Welding, Ltd., supra, and Eichleay Corp.,

supra, established that the change in

§1926.28(a) was not substantive.

Analysis of those cases, however, reveals

that a majority of the Commissions never

could agree on the proper interpretation

of §28(a) either before or after the

amendment. Indeed, as Commissioner

Barnako correctly pointed out in his

separate opinion in S & H Riggers, the

cases relied on in S & H Riggers actually

reflect inconsistent and sharply divided

views as to the proper interpretaion of

§26(a).*”

8/ In Carpenter Rigging & Contracting

Corp., supra, Commissioner Clearly

interpreted the original standard as

being in the disjunctive and therefore

concluded that the change from “and”

to "or" was not substantive.

Commissioner Moran took the opposite

view. Commissioner Van Namee

expressly did “not join in"

Commissioner Clearly's interpretation

of the standard, but voted to affirm

=fiq

Cont'd

8/ the citation on other grounds. 2 OSHC

at 1549. In Eichleay Corp. and in

Island Steel and Welding, Ltd. the

majority held only that the standard

meant the same after the amendment as

it did before the amendment.

Commissioner Clearly so held because

he believed that the “and” in the

original standard was in the

disjunctive, so that the change to

"ot" was not substantive.

Commissioner Van Namee had-~ stated

earlier in Hoffman Constr. Co., supra,

3 BNA OSHC at 1102, 1974-75 CCH OSHD

, at og. 83, ~30S. Commissioner Moran

consistently asserted that the change

in the standard was substantive.

Similarly, in Isseks Brothers, Inc.,

Supra, Commissioner Clearly adhered to

his previous interpretations of the

standard. Although Commissioner

Barnako voted to affirm the citation,

he expressly disassociated himself

from Commissioner Clearly's

“discussion of the vagueness and

validity” of § 28({a). 3 BNA OSHA at

1967, 1975-76 CCH OSHD at p. 24,288.

Commissioner Moran again dissented on

the grounds that the amendment to the

standard was invalid. Thus, there has

never been a clear majority holding as

to either the interpretation or the

validity of § 28(a). Indeed, this

divergence of views prompted the Fifth

Circuit to comment that “each decision

by the Commission has produced as many

conflicting interpreters as there were

participating Commissioners, both

under the old regulation and_ the

new." B & B Insulation, Inc., supra,

583 F.2d at 1368 [6 OSHC at 2064].

=ié-

the revision of §28(a) was not

substantive, we overrule that decision.

We conclude, rather, that the revision or

amendment of §28(a) constituted 4

substantive change, not an administrative

one .*7

[2] When the Secretary desires to make

such a substantive change in a standard,

9/ We reject the Secretary's contention

that the Commission should defer to the

statement accompanying the revision of

the standards that no substantive changes

were made. As a subsequent,

noncontemporaneous document, the revision

and its preamble cannot be relied on to

establish the meaning the Secretary

intended when he originally promulgated

section 1926.28(a) under the Occupational

Safety and Health Act. Waterman

Steamship Corp. v. United States, 381

U.S. 252, 269 (1965); United States v.

Price, 361 U.S. 304, 313 (1960). In any

event, the Secretary's characterization

of his rulemaking actions is not binding

on the Commission. See Marhsall _v.

Huffhines Steel Co., 488 F. Supp. 995 [7

OSHC 1910] (N.D. Tex. 1979), aff'd memo.,

645 F.2d 288 [9 OSHC 1762) (5th Cir.

1981), and cases cited therein.

~\ =

he must provide notice of the

contemplated change to the public and

allow the opportunity to submit written

objections thereto and to participate in

a publ.c hearing’ thereon. > B.8-C-

§ 553; 29 U.S.C. § 655(b).+°”% Those

procedures were not followed in amending

10/ We do not view the notice and comment

requirements of 5 U.S.C. § 553 as

meaningless technicalities to be

disregarded when it is inconvenient to

follow these procedures. Section 553 was

enacted to give the public an opportunity

to participate in the rulemaking

process. Section 553 also contemplates

that the agency promulgating the rule (or

amendment) will use this procedure to

educate itself before establishing rules

and procedures which have a _ substantial

impact on those regulated. See Texaco,

Inc. v. Federal Power Commission, 412

F.2d 740, 744 (3rd Cir. 1969). This

Principle of fundamental fairness’ was

emphasized by the Supreme Court in

N.L.R.B. v. Wyman Gordon Company, 394

U.S. 759, 764 (1969), wherein the Court

observed that the rulemaking provisions

of section 553 “were designed to assure

fairness and mature consideration of the

rules of general application.”

o8H-

29 C.F.R. § 1926.28(a). Section 28(a) is

therefore invalid in its modified form

because it was not properly promulgated.

Senco Products, iac., supra; Florida

Peach Growers Association, Inc. v. United

States Department of Labor, 489 F.2d 120

(Sth Cir. 1974). Since amendment of §

28(a) was invalid, it did not repeal the

Original standard. Frost v. Corporation

Commission, 278 U.S. 515, 525-527 (1929);

United States v. Tufti, 542 F.2d 1046

(9th Cir. 1976); Conlon _v. Adamski, 77

F.2d 397 (D.C. Cir. 1935). We therefore

conclude that the original version of §

1926.28(a) remains in effect and that to

establish a violation of the Secretary

must prove (1) exposure to a hazardous

condition; (2) that some other section of

Part 1926 indicates a need for the use of

particular protective equipment in the

-59-

circumstances presented; and that (3) the

employer failed to require the use of the

equipment. Hoffman Construction Co.,

supra, 546 F.2d at 283 [4 OSHC 1814].

(b) Proof Of A Violation

In the present case the Secretary

proved the first element necessary to

establish a violation. The facts plainly

demonstrate that the three Myers'

employees were exposed to the hazard of a

fall warranting the use of safety belts.

Indeed, Myers concedes this in its brief

on review.

The second part of the Secretary's

burden under § 1926.28(s) requires him to

prove that some other section of Part

1926 indicates the need for the

particular personal protective equipment

under the circumstances of this

-fi-

case.++” By “indicates the need" we

mean that the other section indicates

that a particular form of # personal

protective equipment is a practical and

an appropriate means of protection

against a specified hazard. We do not

mean that the other section necessarily

requires the use of the particular

equipment, but that it cites the

equipment as among the satisfactory means

of protecting against a described hazard

1l/ We do not say, at this point, that

the Secretary must specify in the

citation itself the conjunctive section

Part 1926 that “indicates the need" for

personal protective equipment under the

particular circumstances, although that

seems to us to be the better approach.

We only reiterate the due process

requirement that at some point in the

proceedings the respondent mus have fair

notice of the conjunctive section upon

which tthe Secretary relies. In the

present case we find that Myers had fair

notice of the charge of failure to use

safety belts to abate the hazard of a

fall exceeding twenty-five feet.

ait

so as to put an enpteves on notice that a

particular type of personal protective

equipment is appropriate in a_- given

case. The Secretary has alleged, and we

agree, that § 1926.105(a) “indicates the

need” for safety belts where the

“workplace is more than twenty-five feet

above the ground." The record in this

case clearly establishes that Myers’

employees were working “more than

twenty-five feet above the ground” and

were exposed to a fall hazard.+*”

12/ Section 1926.105(a) states as follows:

Safety nets shall be provided when

workplaces are more than twenty-five

feet above the ground or water

surface, or other surfaces where the

use of ladders, scaffolds, catch

platforms, temporary floors, safety

lines, or safety belts is impractical.

If the issue of the interpretation of

this language were one of first

impression, Commissioner Rader would

conclude that this standard does not

indicate a need for the use of personal

~ te

Finally, under the clear wording of the

standard, the Secretary must prove that

the employer failed to "“requir[e] the

wearing of” the prescribed safety

equipment under the circumstances

cont'd

12/ protective equipment as fall

protection. Rather, in Commissioner

Rader’'s view, section 1926.105(a) speaks

only to safety nets, and under the plain

wording of the standard, safety nets are

called for only when the other specified

means of fall protection, including

safety belts and safety lines, cannot

feasibly or practicably be used.

Commissioner Rader recognizes, however,

that the courts and the Commission have

interpreted section 1926.105(a)

otherwise, and have held as the majority

states here, that the standard for safety

belts as an appropriate means of fall

protection See, Southern Colorado

Prestress Co. v. OSHRC, 586 F.2d 1342,

1350. {6 OSHC 2032, 2037] 10th Cir.

(1978); Brennan v. Southern Contractors

Service, 492 F.2d 498 [1 OSHC 1648] (5th

Cir. 1974) Sierra Constr. Corp., 78

OSAHRC 2/E6, 6 BNA OSHC, 1978 CCH OSHD

%22,506 [No. 13638, 1978] of the

controlling case law, Commissioner Rader

joins in the majority's conclusion that

section 1926.105 indicates a need for

using safety belts in the circumstances

of this case.

=@3<

specified. We find here that Myers did

require its employees to use safety belts

and lanyards under the conditions cited.

The record shows that Myers’ safety rules

specifically address the appropriate use

of safety belts and require employees to

use safety belts when “working at

elevated locations on poles, towers or

other structures." Each supervisor is

given a copy of Myers’ safety manual

containing these rules, must sign an

acknowledgement of receipt, and is

expected to follow and enforce the

rules. Myers’ safety supervisors visit

the various worksites to insure” that

safety directives are received,

understood and followed. The company's

safety program is enforced through a

progressive system of discipline

consisting of verbal and written

reprimands, demotion to a lower

=@6<

classification, suspension from duties,

and discharge. At the hearing the

compliance officer acknowledged that the

company's procedures for belts and

ladders set forth in the safety rules and

manual were appropriate, and that he did

not consider Myers' employee training to

be deficient. Myers’ evidence concerning

the communication of its rule regarding

safety belts for all employees, including

foreman, established that Sayre received

the same training afforded all employees.

Moreover, Myers had no reason to

suspect that Sayre's crew was likely to

perform work in violation of its safety

rules. Sayre was a good supervisor who

in the past had never been known to

engage in or supervise any activity

during which he or his crew failed to use

safety belts when they were necessary.

We find no evidence in the record before

-65-

us that Robert Sayre's conduct here was

reasonably foreseeable to or preventable

by Myers. When Myers became aware of his

violation, it took decisive action.

After the company determined that Sayre

had failed to require the use of safety

belts on September 17, 1982, he was given

a two-week disciplinary suspension with

the expectation that he would not return

to work.

[3] Based on this evidence, we

conclude that the Secretary failed to

sustain his burden of proving a violation

of section 5(a)(2) of the Act. See

Pennsylvania Power & Light Co. v. OSHRC,

737 F.2d 350 [11 OSHC 1985] (erd Cir.

1984); Horne Plumbing & Heating Co. v.

OSHRC, 528 F.2d 564, 571 [3 OSHC 2060,

2065] (5th Cir. 1976); H. E. Wiese, Inc.,

82 OSAHRC 18/A2, 10 BNA OSHC 1499, 1505,

1982 CCH OSHD Y 25,985, pp. 32,613-14

(Nos. 78-204 & 78-204, 1982), aff'd, No.

«@6-

82-4202, (th Cae. Apr. 27, 1983)

(unpublished). As the Ninth Circuit

stated in Brennan v. OSHRC (Alsea Lumber

Co.), S1ll F.2d 1139, 1144 [2 OSHC 1646,

1651] (9th Cir. 1975), “Fundamental

fairness would require that one charged

with and penalized for violation be shown

to have caused, or at least knowingly

acquiesced in, that violation.” Since

the Secretary did not make such a showing

here, we vacate the citation alleging

noncompliance with 29 C.F.R. § 1926.28(a).

Alleged Violation of

29 C.F.R. § 1926.450(a) (7)

Section 1926.450(a)(7) requires’ that

the pitch of a portable ladder be “about”

one-to-four. In concluding that Myers had

violated this’~ standard, Judge Salyers

found that the base of the 18 foot ladder

upon which the employees were working was

placed 9 feet 8 inches from the tower.

However, it is not at all clear from the

aG73a

evidence in the record that this distance

is correct. Myers contends that_ the

distance between the base of the tower and

the base of the ladder was not that great,

and from our reiew of the photographic

evidence we are inclined to agree.

Moreover, it appears that the air

conditioning box, the pipe, and the angle

iron bracing precluded placing the ladder

anywhere other than on the far side of the

air conditioning box. The ladder could

not be placed between the box and the

tower because the space was clearly too

narrow to allow the ladder to be safely

pitched against the tower. The ladder

would also have been obstructed by the

pipe extending from the box if Myers had

attempted to place the ladder on the tower

side of the air conditioner box. From our

review of the evidence it appears that

Myers’ employees had no alternative but to

place the ladder on the far side of the

wT

|

‘

u

|

air conditioner box, when working on the

west side of the tower.

Section 1926.450(a)(7) does not require

that the horizontal distance to the base

of a portable ladder must be precisely

one-fourth of the working length of the

ladder but, rather, requires only that the

ratio between the horizontal distance and

the length of the ladder be “about”

one-to-four. The standard, therefore,

permits an employer to deviate from a

strict one-to-four ratio but does not

indicate the precise degree of deviation

permitted. In interpreting a _ standard

that uses terms which are relative rather

than absolute, the Commission must

consider objective factors that may give

guidance to the meaning of the standard.

See Austin Bridge Co., 85 OSAHRC / ‘

12 BNA OSHC 1181, 1985 CCH OSHD {27,169

(No. 81-1049, 1985), petition for review

filed, No. 85-4190 (5th Cir. Mar. 21,

1985).

-~69-

These factors should obviously include the

purpose of the standard, to the extent

that purpose can be discerned. Cf. F. L.

Heughes & Co., 83 OSAHRC 31/A2, 11 BNA

OSHC 1391, 1983 CCH OSHD 426,520 (No.

14519, 1983) (standard allowing guardrail

to be placed at “approximately” a 42-inch

height does not permit the employer to

position the guardrail at a height that

defeats the purpose of a guardrail). The

record here does not indicate the purpose

of the pitch requirement of the standard.

We may reasonably conclude, however, that

the standard is intended to insure that

the angle at which a portable ladder is

placed is neither too great nor too

shallow to permit an employee to climb the

ladder without losing his’ balance or

causing the ladder to tip or fall. The

Judge here found, and the Secretary does

not dispute, that the ladder had been

properly secured and was stable.

-70-

Photographs taken shortly after the

accident show that the ladder had remained

in place against the tower. Thus, the

ladder did not move while the employees

were working from it, and it remained in

position even after Miller fell and Carmac

jumpted from it. Therefore, it is clear

that the angle at which the ladder ~-had

been placed did not cause the ladder

itself to be incapable of safely

supporting the employees. Since the

record fails to explain what may have

caused Miller to fall, it would be purely

speculative to conclude that the angle of

the ladder exposed Myers‘ employees’ to

injury.

[4] In conclusion, we find that’ the

pitch of the ladder was’ sufficiently

within the standard's relative requirement

that the angle be “about” one-to-four, and

that the Secretary failed to demonstrate

that any discrepancy between a precise

aFile

one-to-four pitch and the slope of Myers’

ladder was excessive in light of the

4

totality of the circumstances here.+4#

Alleged Violation of

29 C.F.R. § 1926.450(a) (6)

The Secretary alleged that there were

pieces of wood and metal on the roof near

the base of the ladder, and cited Myers

for a tripping hazard. Myers acknowledges

that when the employees moved the ladder

to the west side of the tower they placed

a piece of wood under one leg of the

ladder to brace it because the roof was

uneven. Myers contends that there was

nothing other than that pice of wood near

13/ In this case, assuming, arguendo, that

the distance figures given by the

inspector are correct, Myers’ ladder had

been placed at an angle to the tower of

approximately 62 degrees. An exact ratio

of one-to-four between the _ horizontal

distance and the length of the ladder

constitutes an angle of approximately 75

degrees. We do not find this deviation to

be sufficient under the circumstances to

justify find that Myers’ violated the

standard.

aIieu

.

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the base of the ladder and that it cannot

properly be found in violation of this

standard when it placed material at the

base of the ladder for the purpose of

stabilizing the ladder. The judge found

that there were pieces of angle iron “in

the area around” the foot of the ladder

and confirmed the citation.

The standard says “Portable ladder feet

shall be placed on a substantial base and

the area around the top and bottom of the

ladder shall be kept clear.” The standard

clearly intends that the ladder shall be

firmly established on a base to prevent

slippage or movement of the ladder, and

also seeks to prevent tripping hazards

that could occur while an employee is

ascending or descending the ladder. We do

not believe that the purpose of

§ 1926.450(a)(6) is to prevent the use of

a piece of wood to brace and stablize the

foot of the ladder. Rather, we find here

ofa

that the ladder feet were “placed on a

substantial base" and conclude that there

was no violation of the standard as to

proper bracing and stabilizing.

With respect to a possible tripping

hazard, the evidence does not establish

that any material other than the wood

piece used to stabilize the ladder was

placed directly at the foot of the

ladder. The inspector's photograph relied

on by the judge clearly shows pieces of

metal some distance away from the ladder's

base. However, the standard requires only

that the area around the base of the

ladder be kept clear. Thus, the issue

before us is whether Myers can be found in

violation of this standard merely on the

fact that metal objects were located on

the roof in the general vicinity of the

ladder.

[5] The standard does not define the

term “area,” nor does it otherwise

-_*

indicate the extent of the area_ the

employer is required to keep clear. As we

said in discussing the alleged violation

of section 1926.450(a)(7), the Commission

must rely on objective factors in order to

give meaning to a standard that uses

imprecise and relative terminology. There

is no evidence showing the actual distance

between the base of the ladder and the

pieces of metal depicted in the

photograph. From the photograph, however,

it appears that there is a considerable

clear area along the roof from the metal

objects to the ladder. It is plain from

the photograph that these objects are not

in a location where they would obstruct an

employee in ascending or descending the

ladder. Indeed, on the limited record

here, there is no apparent relationship

between the metal objects and the ladder.

Absent any indication to the contrary, we

cannot conclude that the standard was

~ =

intended to apply in these circumstances.

We therefore vacate this citation item.

Accordingly, the citation items alleging

violations of 29 C.F.R. §§1926.28(a),

1926.450(a) (6) and 1926.450(a) (7) are

vacated.

~_ =

c-

PUBLISHER'S NOTE:

THE FOLLOWING PAGE IS UNAVAILABLE

FOR FILMING: Y, 7

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH COMMISSION

1365 Peachtree Street, N.E., Suite 240

Atlanta, Georgia 30309

(404) 881-4197

FTS: 257-4197

SECRETARY OF LABOR,

OSHRC DOCKET

Complainant, NO. 82-1137

Vv.

THE L. E. MYERS CO., HIGH

VOLTAGE SYSTEMS DIVISION,

and

INTERNATIONAL BROTHERHOOD

OF ELECTRICAL WORKERS,

LOCAL UNION NO. 212,

Authorized

' Employee

Representative.

)

)

)

)

)

)

)

)

)

Respondent, )

)

)

)

)

)

)

)

)

)

)

~Feo

APPEARANCES :

F. Benjamin Riek, Esquire, Office of

the Solicitor, U. S. Department of

Labor, Cleveland, Ohio, on behalf of

complainant

Kent W. Seifried, Esquire, Cincinnati,

Ohio, on behalf of respondent

Mr. Walter J. Zimmer, International

Brotherhood of Electrical Workers,

Local Union No. 212, Cincinnati, Ohio,

on behalf of authorized employee

representative

DECISION AND ORDER

SALYERS, Judge: Respondent, lL. E.

Myers Co., is a corporation engaged in

the construction of electrical

facilities. At the time in question,

respondent had been engaged by Emery

Industries to place protective’ rubber

hosing over energized electrical lines

located at Emery's facilities in St.

Bernard, Ohio. While this work was in

progress, one of respondent's employees

fell from a ladder onto an energized

“pothead” and was’ electrocuted. The

~_ =

ensuing investigation conducted by the

Secretary of Labor led to the issuance of

citations charging respondent with

violations of the Occupational Safety and

Health Act (29 U.S.C. § 651, et seq.).

The serious charges are as follows:

1

Section 5(a)(l1) of the Occupa-

tional Safety and Health Act of

1970: The employer did not

furnish employment and a place of

employment which were free from

recognized hazards that were

causing or likely to cause death

Or serious physicial harm to

employees in that:

(a) On or about 9/17/82

there were two employees exposed

to a potential fall of up to 18'

due to overloading of the type 1

Louisville 250 pound capacity

fiberglass extension ladder used

by these employees to. install

protective coverings to the

13,000 volt power lines at the

southwest corner of building 8D.

A feasible and useful method to

correct this hazard would be to

use one ladder for each employee

or (preferred) perform this task

from an aerial lift truck.

-~80-

2

29 CFR 1926.28(a): Appropriate

personal protective equipment was

not worn by employee(s) in all

operations where there was

exposure to hazardous conditions:

(a) On Or about 9/17/82

employees working from a Louis-

ville type 1 fiberglass ladder at

the southwest corner of building

8D were exposed to a potential

fall of up to 75‘ and were not

using safety belts and _ lanyards

Or equivalent type fall

protection.

3

29 CFR 1926.450(a)(7): Portable

ladder(s) were not used at such a

pitch that the horizontal

distance from the top support to

the foot the ladder(s) was about

one quarter of the working length

of the ladder(s):

(a) On Or about 9/17/82

employees were working from a

Louisville type 1 fiberglass ex-

tension ladder at the southwest

corner of the roof of building 8

while the ladder was set at an

angle of approximately 62° (18'

vertically and up — 2 8"

horizontally).

iia

4

29 CFR 1926.450(a)(10): Portable

ladders in use were not tied,

blocked, or otherwise secured to

prevent their being displaced:

(a) On or about 9/17/82 em-

ployees were working from a type

1 Louisville fiberglass exten-

sion ladder at the southwest

corner of the roof of building 8D

while the ladder was not secured

from displacement.

The nonserious charge is as

follows:

1

29 CFR 1926.450(a) (6): The

area(s) around the bottom of

portable ladder(s) were not kept

clear:

(a) On or about 9/17/82 there

were two angle iron racks

blocking the bottom of the

Louisville type l fiberglass

extension ladder on which

employees were standing. This

condition existed on the roof of

building 8D at the southwest

corner.

-~82-

THE FACTS

The basic facts are, for the most part,

undisputed. In September 1982, the respon-

dent was commissioned to perform certain

work for Emery Industries. This included

the placing of rubber hosing over elec-

trical lines running between a terminal

pole and a tower located on tope of the

boiler house building at Emery's facility.

The pole was approximately 47 feet high,

and the top of the tower was approximately

80 feet above ground level. The distance

between these two points was approximately

85 feet with the wires running uphill from

the pole to the tower. Alt :.cugh respondent

had requested that Emery de-energize the

lines while this work was in progress, the

request was denied.

The work was to be performed by respon-

=fiRu

dent's foreman, Robert Sayre, an experi-

enced lineman; James Carmac, a journeyman

linemen and union steward; and Russell

Miller, an apprentice. After unsuccessful

attempts to use a 55-foot bucket truck to

accomplish the task,~“ it was finally

decided by the foreman, after consultation

with respondent's district manager, to use

an alternate method. It was decided the

work could be done from the tower by

covering all electrical equipment with

protective rubber blankets and the use of

a ladder on the rear of the tower, pro-

viding employees safe access to the wires

which could then be “rubbered"** by

1/ The trick was parked near the wire at

99e highest reach of the bucket. The

employees then applied the hoses~ and

pushed them uphill on the wire towards the

tower. Because of the weight of the hoses

and friction on the wire, this method had

to be abandoned.

2/ The colloquial term for the process of

covering the wires with rubber hosing.

-84-

sliding the hosing downhill on the wires

from the tower to the pole.

On the day of the accident, Sayre,

Carmac and Miller began to do the job from

the tower. The rubber blankets’ were

placed over all electrical equipment, and

employees were wearing protective rubber

gloves and sleeves. None of the employees

wore safety belts or lanyards on the day

of the accident. A fiberglass ladder with

a manufacturer's load limit of 250 pounds

was placed on the east side of the tower

and tied off. The foreman then went up on

the ladder and began to place rubber hwses

on the east wire. When the weight of the

hosing increased on the east wire,*” the

foreman came down off the ladder, which

was then moved to the west side of the

3/ The weight on the east and west wires

had to be balanced to prevent the pole at

the lower level from twisting.

fin

tower. The record is unclear whether the

ladder when moved to the west side was

again tied off, but the only witness

(Carmac)*” to appear at the hearing who

was eresent at the time believed it was

tied off (Tr. 130). Carmac stablized the

ladder by placing a wooden block under one

leg to compensate for a slight pitch in

the roof.

After the ladder was moved, employee

Miller mounted the ladder and climbed to

the fifth or sixth rung from the top where

he began to “rubber” the wire. Employee

Carmac stood on the ladder below Miller

handing up the hose sections. Foreman

Sayre stood near the ladder on the roof.

For reasons unclear in the record, Miller

4/ The’ foreman (Sayre) was disciplined

after the accident for his failure to

require the use of safety belts on the job

and did not return to respondent's employ

after his suspension. His whereabouts at

the time of the hearing were unknown to

both the respondent and the Secretary.

-~86-

fell forward from the ladder, struck an

energized “pothead jumper" some four to

six feet below where he had stood on the

ladder, and was electrocuted. There was

no probative evidence that the ladder

collapsed, tipped over, or slid causing

Miller to fall to his death.

THE LADDER CHARGE

The Secretary charges respondent with

serious violations under the Act's general

duty clause for allowing use of the ladder

by two employees in circumstances wehre

the weight on the ladder allegecly

exceeded the load limit specified by the

manufacturer. Charges are also _ leveled

under specific standards which reiate to

ladder pitch and security. Each of these

will be discussed separately.

Ladder Collapse

The Secretary charges respondent

seriously violated the Act's general duty

clause by allowing two employees with a

o$F=

combined weight in excess of 300 pounds to

work from a ladder having a work load

Capacity of 250 pounds, thereby creating

the potential for ladder collapse = and

possible injuries from falling.

It is undisputed that the ladder bore a

sticker indicating a load capacity of 250

pounds, that Miller and Carmac were posi-

tioned on the ladder at the same time, and

that their combined weight exceeded 300

pounds. Respondent disputes, however,

that these circumstances created a hazard.

Respondent urges that the load limit of

250 pounds, as specified on the ladder in

question, is not the determining factor

for ladder collapse. According to respon-

dent, manufacturers build in a four-to-one

safety factor and, when the load limit is

specified as 250 pounds, the ladder will

actually and safely support up to 1,000

pounds without collapsing. This practice

by manufacturers is confirmed in the testi-

-88-

mony of the compliance officer (Tr. 281-

282) and is not otherwise contradicted

in the record.+’

Since this charge is lodged under

section 5(a)(l) of the Act (the general

duty clause), the Secretary has a higher

burden of proof than in the regular case.

The Secretary must show: (1) the employer

filed to render its workplace free of a

hazard; (2) the hazard was recognized by

the cited employer or the saptests"s

industry in general; (3) the hazard was

causing or was likely to cause death or

serious physical harm; and (4) there was a

feasible means by which the employer could

have eliminated or materially reduced the

5/ The Secretary also argues that two men

on the ladder caused another hazard and

was a violation of respondent's own work

rules. This argument is without’ merit

since the rule in question does not apply

to hook ladders which is the type in use

at the time.

-89-

hazard. Aluminum Company of America

(Alcoa), 83 OSAHRC 24/E10, 11 BNA OSHC

1520, 1983 CCH OSHD ¥ 26,526 (No. 78-3157,

1983).

In this case the Secretary has failed

to show that the placement of two men on

the ladder in question created a hazard of

ladder collapse, and this charge will be

vacated.*”

Ladder Security

The Secretary charges respondent with a

violation of 29 C.F.R. §1926.450(a)(10)~

for failure to properly secure the ladder

in question. The best probative evidence

on this point is contained in the testi-

6/ Had the violation been charged under

section 5(a)(2) of the Act and a specific

standard, a different conclusion might be

reached.

7/ The standard at 29 C.F.R. § 1926.450

(a)(10) provides:

(10) Portable ladders in use shall

be tied, blocked, or otherwise secured

to prevent their being displaced.

-90-

mony of employee Carmac who was on the

scene at the time of the accident.

It is uncontradicted in the record that

the ladder was tied off and secured while

employees were working on the east phase

of the project. When the ladder was moved

to the west phase, it is unclear whether

the ladder was tied off. However, the

standard speaks in the alternative and

does not require the ladder to be tied off

if it is “otherwise secured.” The burden

is on the Secretary to show the ladder in

question was not secured or was unstable.

It is undisputed that the ladder in

question was in good condition and was a

hook ladder (Ex. C-15). This latter fact

is significant since, if the hooks were in

place at the top and were mounted over a

beam on the structure or some other stable

support, this would give the ladder consid-

erable security. However, a review of the

record, including examination of pictures

-9l-

taken of the ladder immediately following

the accident and on the day of the inspec-

tion, neither confirms nor refutes that

the hooks were in place on some type of

support. This leaves the testimony of em-

ployee Carmac as the best evidence relevant

to the security of the ladder. Carmac set

up the ladder when it was moved to the west

phase. He placed a block of wood under one

leg of the ladder to brace it from dis-

placement and to compensate for a slight

pitch in the roof at that point ( Tr. 121).

He testified repeatedly on direct examina-

tion, on cross-examination, and to ques-

tions posed by the Court that the ladder

was “secure"*’ (Tr. 104, 121-124, 131).

He went so far as to state he would not

have mounted the ladder if he believed it

8/ The Secretary argues that this is not

what Carmac told the compliance officer

during the investigation, but it was his

sworn and unequivocating testimony at the

hearing. :

«92

to be unstable or not secure (Tr. 131).

Accordingly, the Secretary has failed to

carry the burden of proof and this item

will be vacated.

Ladder Pitch

Respondent is charged with a violation

of 29 C.F.R. § 1926.450(a)(7)*’ for fail-

ure to assure the ladder was placed at a

proper pitch; i.e., four teet vertical for

every one foot horizontal. The evidence

reflects the top of the ladder was placed

against a cross member of the tower 18

feet above the base. The bottom or foot

of the ladder was approximately 9 feet 8

9/ The standard at 29 C.F.R. § 1926.450

(a)(7) states:

(7) Portable ladders shall be used

at such a pitch that the horizontal

distance from the top support of the

foot of the ladder is about one-quarter

of the working length of the _ ladder

(the length along the ladder between

the foot and the top support). Ladders

shall not be used in a_ horizontal

position as_- platforms, runways, Or

scaffolds.

-93-

inches from the base of the tower on a

horizontal plame. Given the fact that the

vertical was 18 feet, the standard would

require the foot of the ladder to be

placed no farther from the base than 4

feet 6 inches. Obviously, respondent's

erection of the ladder on the day of the

accident did not meet the requirements of

this specific standard, and the Secretary

107

has established a violation.

PROTECTIVE EQUIPMENT CHARGE

The Secretary charges respondent with a

serious violation of 29 C.F.R. § 1926.28(a)

10/ Respondent does not dispute the mea-

surements regarding the height of the lad-

der or the horizontal distance of the foot

from tower base but argues the foot could

not be placed within the required distance

because of an obstruction on the roof.

This argument is rejected since it appears

the distance between the obstruction and

tower base was in excess of five feet.

1l/ The standard at 29 C.F.R. § 1926.28(a)

states:

(a) The employer is responsible for

requiring the wearing of appropriate

cont'd

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BR,

for its failure to require the employees

at the work site to wear safety belts and

lanyards. The record is clear and uncon-

tradicted that none of respondent's employ-

ees on the Emery job were wearing this

equipment at the time of and prior to the

accident. Thus, the Secretary has made a

4

prima facie case in this regard.++

Respondent concedes that the equipment

was not in use at the time but asserts

this failure was a direct violation of

respondent's safety rules, was unknown to

respondent, and could not have been rea-

1l/ cont'd

personal protective equipment in all

operations where there is an exposure

to hazardous conditions or where this

part indicates the need for using such

equipment to reduce the hazards to the

employees.

12/ Respondent renews a defense raised

earlier in a motin to dismiss based upon

the allegation that his standard was

improperly promulgated and, therefore,

void and unenforceable. This question was

fully addressed in the order denying the

motion dated July 28, 1963.

4.

sonably anticipated. Relying upon H. E.

Weise, Inc. & Industrial Electrical

Construction Co., 82 OSAHRC 18/A2, 10 BNA

OSHC 1499, 1982 CCH OSHD ¥Y 25,985 (Nos.

78-204 & 78-205, 1982); Capital Electric

Line Builders v. Marshall, 678 F.2d 128

(10th Cir. 1982); and Daniel International

Corp. v. OSHRC, 683 F.2d 361 (ilth Cir.

1982), respondent asserts the defense of

“unavoidable employee misconduct.” These

cases indicate this defense is appropriate

if an employer can demonstrate:

l1. It has an effective safety program;

2. The program has been communicated

to its employees; and

> wee rules are enforced through

appropriate supervision and discipline.

Respondent has made an effort to

institute and implement a safety program

of sorts. It maintains a corporate office

for safety headed by a full-time safety

director who is assisted in the field by

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safety supervisors. At the time of hiring,

a new employee is issued a copy of the com-

pany’s basic safety rules and is made aware

of the company's safety manual which is

more comprehensive. Thereafter, additional

safety materials are from time to time dis-

seminated to employees in the field (Tr.

326). The jobsites are visited on occasion

by safety superintendents to insure that

the safety rules are followed (Tr. 62-64).

Periodic safety meetings are conducted at

“tailgate” sessions. When infractions of

safety rules occur, respon- dent has on

occasion utilized disciplinary action

ranging from oral reprimand to suspension.

While this safety program appears on its

face to be a workable program, the circum-

stances surrounding the actions of foreman

Sayre on the day of the accident and prior

thereto cast serious dout that the program

was effective with respect to the crews he

supervised.

aGFa

There is evidence to indicate Sayre did

not conduct the required safety “tailgate”

meetings and may have falsified reports in

this regard (Tr. 430-432). There is no

evidence that Sayre received safety

instructions of any kind from respondent

at any time prior to the accident nor was

he instructed by respondent's’ district

manager concerning any potential hazards

which might be encountered on the job in

question. Even though employee Carmac

brought up the gqeustion of safety belts

prior to commencing the Emery job, he was

told by Sayre that belts would not be

needed.+~” This failure by Sayre to

require the use of belts indicates a casual

indifference to safety on his part and sup-

ports a conclusion that respondent's safety

13/ Respondent concedes (and every witness

that testified on the point verified) that

safety belts are standard equipment in this

industry and should be_- used whenever

working at elevations.

aS@q

program was not effectively communicated

or enforced. This conclusion is also sup-

ported by certain statements made by

respondent's district manager in charge of

the project following the accident in the

presence of an office employee and a union

representative to the effect that safety

belts were unnecessary and just “get in

the way” (Tr. 148, 184).

Respondent has failed to establish its

defense of “unavoidable employee miscon-

duct,” and the citation will be affirmed.

NONSERIOUS CHARGE

Respondent is charged with a violation

of 29 C.F.R. § 1926.450(a)(6)***% for

failure to keep the area clear at the foot

of the ladder to prevent tripping. It is

14/ The standard at 29 C.F.R. § 1926.450

¢a)(6) provides:

(6) Portable ladder feet shall be

placed on a substantial base, and the

area around the top and bottom of the

ladder shall be kept clear.

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undisputed that two angle iron racks were

in the area around the foot of the ladder.

This situation is depicted in Complainant's

Exhibit 60 and would clearly present 4a

tripping hazard. The citation will be

affirmed.

FINDINGS OF FACT

l. Respondent, The L. E. Myers Co.,

High Voltage Systems Division, is a corpor-

ation engaged in the construction of elec-

trical facilities. Respondent has employ-

ees who handle or otherwise work on goods

that have been moved in commerce.

2. In September 1982, respondent under-

took an assignment from Emery Industries to

“rubber” energized power lines’ running

between a terminal pole and a tower located

on top of the boiler house building at

Emery’s facility. Three employees were

assigned to accomplish this work, and fore-

man Robert Sayre was in charge. All elec-

trical equipment on the tower was covered

-100-

with rubber blankets, and a ladder was

placed on the tower to permit the workers

access to the power lines.

3. The ladder in use during this pro-

cess bore a sticker indicating the manu-

facturer’'s load limit to be 250 pounds.

However, this load limit has a built-in

four-to-one safety factor, and the ladder

would actually support a load limit of up

to 1,000 pounds. Two employees whose

combined weight exceeded 300 pounds were

positioned on this ladder at the same

time. This situation did not create a

condition for ladder collapse.

4. The ladder in use on the project

was properly secured before use.

5. The top of the ladder was placed

against a cross member of the tower 18

feet above the base. The bottom or foot

of the ladder was approximately 9 feet 8

inches from the base of the tower on a

horizontal plane.

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6. The employees using the ladder in

the process of rubbering the lines did not

wear safety belts and lanyards.

7. For reasons unknown employee Russell

Miller, while working on the ladder, fell

from the ladder and struck an energized

“pothead" causing his death.

&. Two angle iron racks were located

in the area around the foot of the ladder

causing a tripping hazard.

9. Respondent's safety program was not

effectively communicated or enforced.

CONCLUSIONS OF LAW

1. The Occupational Safety and Health

Review Commission has jurisdiction of the

parties and subject matter in this case.

2. Use of the ladder in question by

two employees did not create a hazard of

ladder collapse, and respondent has not

violated section 5(a)(1) of the Act.

3. The ladder in use at the time of

the accident was properly secured within

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the meaning of 29 C.F.R. § 1926.450(a)(10),

and respondent’ did not violate this

standard.

4. The ladder in question was placed

against a cross member of the tower 18

feet above the base. The foot of the

ladder was approximately 9 feet 8 inches

from the base of the tower on a horizontal

plane. This circumstance caused a

violation of 29 C.F.R. § 1926.450(a)(7).

5. Respondent's employees at the time

of the accident and prior thereto were not

wearing safety belts and lanyards contrary

to 29 C.F.R. § 1926.28(a).

6. The area at the base of the ladder

during the time in question was not kept

clear to avoid tripping hazards contrary

to 29 C.F.R. § 1926.450(a) (6).

ORDER

It is hereby ORDERED:

1. Serious Citation No. l, item l, is

>

vacated.

-103-

2. Serious Citation No. l, item 2, is

affirmed and ae penalty of $720.00 is

assessed.

3. Serious Citation No. 1, item 3, is

affirmed and ae penalty of $540.00 is

assessed.

4. Serious Citation No. l, item 4, is

vacated.

5. “Other” than serious Citation No.

2, item l, is affirmed.

/s/ Edwin G. Salyers

EDWIN G. SALYERS

Judge

-104-

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 86-3215

WILLIAM E. BROCK, Secretary of Labor,

Petitioner,

_e

THE L. E. MYERS COMPANY, HIGH

VOLTAGE DIVISION, and OCCUPATIONAL

SAFETY AND HEALTH REVIEW COMMISSION,

Respondents.

ee — |

: ON PETITION TO REVIEW AN ORDER

OF THE OCCUPATIONAL SAFETY

AND HEALTH REVIEW COMMISSION

Decided and Filed May 13, 1987

Before: ENGLE and GUY, Circuit Judges;

and PECK, Senior Circuit Judge.

-105-

JUDGMENT

ON PETITION TO REVIEW a decision of

the Occupational Safety and Health Review

Commission.

THIS CAUSE came on to be heard on the

transcript of record from the said agency

and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now

here ordered and adjudged by this court

that the decision of the said agency in

this cause be and the same is’ hereby

reversed, the petition to review is

granted.

Each party is to bear its own costs on

appeal.

ENTERED BY ORDER OF THE COURT

John P. Hehman, Clerk

CLERK

Issued as Mandate: June 8, 1987

COSTS: None Attest:

Filing fee... $

Printing......$

Total... $ Deputy Clerk

-106-

29 U.S.C. § 654. Duties of employers and

employees

(a) Each employer --

(1) shall furnish to each of his

employees employment and a _ place of

emp loyment which are free from

recognized hazards that are causing or

are likely to cause death or serious

physical harm to his employees;

(2) shall comply with occupational

safety and health standards promulgated

under this chapter.

-107-

29 U.S.C. § 666. Civil and criminal

penalties

(b) Citation for serious violation

Any employer who has received a citation

for a serious violation of the requirements

of section 654 of this title, of any

standard, rule, or order promulgated pur-

suant to this sectin 655 of this title, or

of any regulations prescribed pursuant to

this chapter, shall be assessed a civil

penalty of up to $1,000 for each such

violation.

(c) Citation for violation

determined not serious

Any employer who has received a citation

for a violation of the requirement of sec-

tion 654 of this title, of any standard,

rule, or order promulgated pursuant to sec-

tion 655 of this title, or of regulations

prescribed pursuant to this chapter, and

such violation is specifically determined

not to be of a serious nature, may be

-108-

assessed a civil penalty of up to $1,000

for each such veagtetsen.

(k) Determination of serious violation

For purposes of this section, a serious

violation shall be deemed to exist in a

place of employment if there is a substan-

tial probability that death or _ serious

physical harm could result from a condition

which exists, or from one or more prac-

tices, means, methods, operations, or pro-

cesses which woiuld have been adopted or

are in use, in such place of employment

unless the employer did not, and could not

with the exercise of reasonable diligence,

know of the presence of the violations.

-109-

29 C.F.R. § 1926.28 Personal protective

equipment

(a) The employer is responsible for re-

quiring the wearing of appropriate personal

protective equipment in all operations

where there is an exposure to hazardous

conditions or where this part indicates

the need for using such equipment to

reduce the hazards to the employees.

29 C.F.R. § 1926.105 Safety nets

(a) Safety nets shall be provided when

workplaces are more than 25 feet above the

ground or water surface, or other surfaces

where the use of ladders, scaffolds, catch

platforms, temporary floors, safety lines,

or safety belts is impractical.

29 C.F.R. § 2200.73 (1983) Burden of proof

(a) In all proceedings commenced by the

filing of a notice of contest, the burden

of proof shall rest with the Secretary.

-110-

CERTIFICATE OF SERVICE

I hereby certify that a copy of the

foregoing Appendix was sent by First Class

1°

Mail, postage prepaid, this day of

August, 1987 to:

Sandra Lord

Assistant Counsel

U. S. Department of Labor

S-4004

Washington, D.C. 20210

Ray H. Darling, Jr.

Executive Secretary

OSHRC

1825 K. Street, N.W.

Walter Zimmer, Business Mgr.

IBEW, Local 212

1216 E. McMillan Street

Cincinnati, Ohio 45206

Solicitor General

Department of Justice

Washington, D.C 20530

Vind Qs

Gary\F. Becker —

-lll-