Fall Protection: Peterson Brothers Steel Erection Company v. Robert B. Reich, Secretary of Labor and the Occupational Safety and Health Review Commission, 26 F.3d. 573 (CA5, July 21, 1994)

Date: Mar 01, 1995

Construction work has always been known as a dangerous trade. Steel erection has unique hazards, particularly from falls due to the heights at which such work must often be done. To mitigate hazards involved in steel erection,OSHA promulgated a specific standard as SubPart R of the Constructions Industry standards, 29 C.F.R. §1926.750. Additional provisions to protect employees from falls are found in §1926.28(a) requiring personal protective equipment to guard against such fall hazards and §1926.105(a) (this section was renumbered to §1926.753 when the Construction Industry Fall Protection Standard waspublished on August 9, 1994. See 59 Fed. Reg. 40672.) requiring perimeter safety nets when other forms of fall protection are impractical. The case of Peterson Bros. Steel Erection Co. v. Reich, illustrates how these standards are integrated into a comprehensive system of fall protection in the construction industry.

Regulatory Background

Section 1926.750 requires temporary floors to be installed within two stories or 30feet below any tier of beams on which work is being done, or where these are not feasible, a safety net on the interior of a building structure when the potential fall distance is two floors or 25 feet. At the floor periphery, a safety railing of 1/2-inch wire rope, approximately 42 inches high, must be installed. Section 1926.105 requires that safety nets 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.

Section 1926.28 imposes a general duty on employers to provide employees, and require them to wear, "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."

The Case

The company was erecting the structural steel framework at a site in Austin, Texas, when an employee, performing the job of "Connector," was knocked off a beam, falling 70 feet to his death. The Connectors install the first two bolts on horizontal beams after raising the columns for the structural steel frame of a building, always at the top of a building frame as it is being erected. While installing the beams, the Peterson Bros. Connectors wore safety belts, but no safety lines or lanyards were attached, and the company did not install safety nets at the perimeter of the building. As a result, at the inspection following the fatality, the company was cited for failing to install the nets as required by 1926.105(a).

Peterson Bros. argued that it could not be cited under this standard because it did not know that the section applied to its operations. If a reasonable employer in Peterson Bros. position would not have known that the section applied, the employer cannot be cited because the employer would not have adequate notice of its specific legal obligations. This concept of "notice" is part of every citizen's right to due process guaranteed by the Fifth Amendment of the United States Constitution.

OSHA argued that Peterson Bros. knew that the standard applied to steel erection. In an earlier case, Peterson had a similar citation vacated by an Administrative Law Judge (ALJ) on the basis of two prior Occupational Safety and Health Review Commission (OSHRC) cases, which held that only Subpart R, the Steel Erection Standard, applied. Those cases were reversed on appeal, as noted in the ALJ's decision, but the Court acknowledged that the case law was unclear. Peterson,it said, should have known that its reliance on the OSHRC decisions was misplaced. By the time of the citation, at least four circuit court decisions had held that the Steel Erection Standard in Subpart R did not preempt the safety net requirement because the particular hazard of a fall at the perimeter beam was not addressed in the Steel Erection Standard.

Peterson also argued that it was not technically feasible to comply because safety nets must be supported from above. Because the Connectors' job was to erect the supports at the level at which the nets would be attached, there was nothing to support the nets within 25 feet of the height at which they were working. However, the Court upheld the OSHRC decision that Peterson had to comply to the extent possible. Limited compliance is required where it providessome protection. At least, the Court said, nets should have been installed three stories below.

Peterson Bros. was therefore held to have violated the standard by not installingsafety nets on the perimeter of the building during erection of the structural steelframe. Moreover, the implication of the decision is clear that the nets would have to be raised so that they are no further than three stories below the height where the Connectors are working at any given time. If it is technically feasible for an employer to reduce the free fall height to 25 feet or less, it must do so to comply with the specific provisions of the standards.

The Application Of OSHA'S Fall Protection Standards

Within the last two years, OSHA has issued several memoranda clarifying its position on these requirements. OSHA views the Steel Erection Standard, the safety net standard and the personal protective equipment standard at §1926.28 as an integrated system designed to address all fall hazards in steel erection. Falls to the interior of buildings must be prevented by providing flooring under §1926.750. Section 1926.105 (New Section 1926.753) requires safety nets to protect against perimeter falls, and 1926.28 requires personal fall protection when theprotection provided by '§1926.750 and 1926.105 is inadequate.

Additionally, OSHA has a policy to cite employers under the General Duty Clause when employees are exposed to falls of less than 30 feet. Sections 750 and 105 cited above only address falls of 25 feet or greater. Where OSHA will seek to show that an employer is aware that a fall of less than 30 feet can cause serious injury.

Under the General Duty Clause and the case of General Dynamics Land Systems Division, employers must take additional measures to mitigate a risk that the employer knows is not adequately addressed by a specific standard. InGeneral Dynamics, the court said:

"if an employer knows a particular safety standard is inadequate to protect his workers against the specific hazard it is intended to address, or that the conditions in his place of employment are such that the safety standard will not adequately deal with the hazards to which his employees are exposed, he has a duty under section 5(a)(1) to take whatever measures may be required by the Act, over and above those mandated by the safety standard, to safeguard his workers. In sum, if an employer knows that a specific standard will not protect his workers against a particular hazard, his duty under section 5(a)(1) will not be discharged no matter how faithfully he observes that standard."

Thus, compliance with a specific OSHA standard, no matter how precise or complete, will not absolve an employer from a greater duty if additional steps are necessary to protect employees and such steps are feasible.

This article appeared in Compliance Magazine (March 1995) and itis reprinted with permission of Compliance Magazine. Copyright © 2001 by IHSPublishing Group. All rights reserved.

For further information about this article, please contact David G. Sarvadi at 202-434-4249 or by e-mail at sarvadi@khlaw.com.