PETITION TO REVIEW AN ORDER AND DECISION OF THE OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION (OSHRC No. 3010).
Seitz, Chief Judge, and Aldisert and Weis, Circuit Judges.
A United States Steel Corporation (USS) employee lost his balance while connecting a girder on the 109th floor of Chicago's Sears Tower and fell to his death. Shortly after the accident, the Occupational Safety and Health Administration (OSHA) issued a citation and notice of proposed penalty of $900 to USS for Serious Violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., in failing to provide safety nets for its workers. The Occupational Safety and Health Review Commission (OSHRC) upheld the citation and penalty. The major question presented by this petition to review the OSHRC decision is whether there was substantial evidence in the record to sustain the finding that USS violated 29 C.F.R. 1926.750(b)(1)(ii)*fn1 and 29 C.F.R. 1926.105(a)*fn2 by not providing safety nets. We conclude that there was such evidence and, accordingly, deny the petition for review.
We accept petitioner's account of the facts and history of the administrative proceedings:
On April 14, 1973, two United States Steel ("USS") employees, John DeKlerk and John Porsuczek, known as "connectors", were working on a horizontal steel girder at the 109th Floor level of Sears Tower Building, at 233 South Wacker Drive in Chicago. It was their function to guide the girders to their intended location and bolt them into place. As part of this process, the connectors walked approximately 30 feet along the 18 inch wide girders to disconnect the slings used by the derrick to hoist the girders from the 106th Floor. After removing one sling, one of the connectors, John DeKlerk, fell from the girder to the nearest solid surface, the 106th Floor, a distance of approximately 35 feet.
On April 16, 1973, two compliance officers from the Occupational Safety and Health Administration, Alfred Spenney and Joseph Velasquez, met with William Helm, USS Supervisor of Safety, at the jobsite. On April 17, 1973, the two compliance officers and Mr. Helm made an inspection of the 106th Floor and 109th Floor area.
On April 18, 1973, Mr. Velasquez and Morley Brickman, another Occupational Safety and Health Administration compliance officer, met with Howard Baxter, the Superintendent of the Sears Tower jobsite, but did not inspect the 106th Floor.
On April 24, 1973, the Occupational Safety and Health Administration issued a citation and notified appellant of a proposed penalty. Appellant filed a notice of contest on June 4, 1973. The Secretary of Labor filed a complaint and appellant thereafter filed its answer. A hearing was held on September 5 and 6, 1973, before the [hearing examiner (ALJ)].
[The ALJ] affirmed the citation and proposed penalty. On July 29, 1975, an equally divided two-member Occupational Safety and Health Review Commission upheld [his decision]. Petitioner now seeks review of the decision of the Occupational Safety and Health Review Commission.
Petitioner's Brief at 3-4.
The alleged violation was described in the citation issued USS:
Failure to install and maintain safety nets hung with sufficient clearance to prevent contacts with the surface or structure below wherever the potential fall distance exceeds two stories or 25 feet on buildings or structures not adaptable to temporary floors, catch platforms, scaffolds, ladders, safety lines or safety belts. For example: No safety nets, catch platforms or scaffold used for employees working erecting steel on the 109th floor and the clear fall distance was in excess of 25 feet to the next temporary floor on the 106th floor.
The strong consensus of witnesses for both sides was that temporary floors, scaffolds, ladders, and catch platforms were not feasible under the circumstances of the job site. (374a-75a). Although opinion concerning the feasibility of safety lines and belts was more diverse, those devices similarly were not employed. The ...