“SECRETARY OF LABOR,Complainant,v.JOHN QUINLAN,t\/a QUINLAN ENTERPRISES,Respondent.OSHRC Docket No. 91-2131*DECISION *BEFORE: FOULKE, Chairman; WISEMAN and MONTOYA, CommissionersBY THE COMMISSION:IntroductionThe only issue on review in this case is whether the steel erectionstandard at 29 C.F.R. ? 1926.750(b)(1)(iii)[[1]] is more specificallyapplicable than the general construction standard at 29 CFR ?1926.500(d)(1)[[2]] regarding the perimeters of permanent concretefloors in steel structures under construction.BackgroundRespondent, John Quinlan, t\/a Quinlan Enterprises (\”Quinlan\”), was thesteel erection subcontractor for construction of a two-story building inSavannah, Georgia. Quinlan was cited for failing to install standardguardrails around the edge of an open-sided floor. At the time of theinspection on April 19, 1991, construction of the two-story building hadsubstantially: the structural beams were in place, all concrete floorshad been poured, the roof was being completed, the electricians wereplacing conduit and pulling wire, and the air conditioning ducts werebeing installed, as was the elevator shaft. Aside from putting up acanopy in the front and adding some support beams around the escalatorpit, virtually all Quinlan had left to do was to install two metal-panstaircases. The second-story floor, approximately 20 feet up from theground floor, was not temporary planking or metal-decking but apermanent, concrete floor; however, because not all the walls were up,portions of the floor were still open-sided.Quinlan contends that because it was still engaged in structural steelassembly, the steel erection standard at 29 C.F.R. ? 1926.750(b)(1)(iii)is more applicable here. Quinlan further claims that the 42-inch highperimeter cable strung at the edge of the floor met the requirements ofthat standard.The judge rejected Quinlan’s argument and affirmed the Secretary’scitation. He assessed a penalty of $700. Upon review of the judge’sdecision, we affirm it for the following reasons.Discussion An analysis of which of two standards is more specificallyapplicable appropriately begins with 29 C.F.R. ? 1910.5(c), a regulationwhich codifies the principle that when more than one provision governs aparticular hazard, the more specifically applicable provisionprevails.[[3]] Quinlan’s position is that only the steel erectionstandards apply to a worksite during the course of steel erection,regardless of the condition of any floor. Quinlan cites Pima Constr.Co., 4 BNA OSHC 1620,1976-77 CCH OSHD ? 20,998 (No. 5221, 1976), for theproposition that the steel erection standard requiring a 42-inch highperimeter cable applies even where a substantial part of a floor ispermanent. In the instant case, however, the floor was not temporaryeven in part, but entirely permanent.The judge relied primarily on Adams Steel Erection, Inc., 13 BNA OSHC1073, 1986-87 CCH OSHD ? 27,815 (No. 77-3804, 1987) (steel erectionstandard is more specifically applicable where flooring is stilltemporary), reasoning that the steel erection standard is not morespecifically applicable where, as here, the floor is no longertemporary. The judge’s decision is compatible with current Commissionprecedent. Bratton Corp.,14 BNA OSHC 1893, 1087-90 CCH OSHD ? 29,152(No. 83-132, 1990). In Bratton, the Commission decided that employersengaged in steel erection are not governed exclusively by the steelerection standards. The Commission noted that its previous precedent tothe contrary had been rebuffed by virtually every circuit court[[4]]that considered the issue:We agree with the various appellate court decisions. . . and hold thatthe steel erection standards, . . . do not preempt application of thegeneral construction standards to steel erection work \”where generalstandards provide meaningful protection to employees beyond theprotection afforded by the steel erection standards . . . .\” AllCommission decisions to the contrary are overruled in that respect ….Id. at 1896, 1987-90 CCH OSHD at p. 38,992 (citation omitted). Thus,Bratton implicitly resolves the issue in the instant case.Section 1926.750(b)(1)(iii), which by its own terms speaks only oftemporary flooring, does not address the danger with which we areconcerned, namely, falls from permanent open-sided floors. In fact, thesteel erection standards make no provision whatsoever for the guardingof permanent open-sided floors.[[5]] We therefore conclude that section1926.500(d)(1) is the more specifically applicable standard and that itapplies to the permanent concrete floor in this case rather than section1926.750(b)(1)(iii).Accordingly, we affirm a serious violation of 29 C.F.R. ?1926.500(d)(1). Having considered the statutory criteria, we agree withthe judge’s determination that a $700 penalty is appropriate.Edwin G. Foulke, Jr. ChairmanDonald G. WisemanCommissionerVelma Montoya CommissionerDated: July 17, 1992————————————————————————SECRETARY OF LABOR,Complainant,v.JOHN QUINLAN, TRADING AS QUINLAN ENTERPRISES,Respondent.OSHRC Docket No. 91-2131*APPEARANCES: *Leslie John Rodriguez, Esquire Frank L Kollman. EsquireOffice of the Solicitor Kollman. Sheehan, Nathan & Fink U.S. Departmentof Labor Baltimore MarylandAtlanta, Georgia For Respondent For ComplainantBefore: Administrative Law Judge James D. Burroughs*DECISION AND ORDER***John Quinlan, Trading as Quinlan Enterprises [[1]] (\”Quinlan\”), a soleproprietorship engaged in the steel erection business, contests analleged serious violation of 29 C.F.R. ? 1926.500(d)(1), for failure tohave an intermediate raiI on the eastern and northern perimeter of thesecond floor of a building under construction at 14045 Abercorn Street,Savannah, Georgia. The charge arose from an inspection conducted byCompliance Officer David Baker on April 19, 1991, at the Savannah Mallexpansion project (Tr. 10). Quinlan contends that he was engaged insteel erection and was in compliance with 29 C.F.R. ?1926.750(b)(l)(iii), which he submits was the standard applicable to theworking conditions. Quinlan has been in the steel erection businesssince 1962 (Tr. 55).Compliance Officer Baker held an opening and closing conference at thesite and talked with Michael Quinlan, who represented himself as theforeman for Quinlan (Tr. 13, 15, 57). During the walk-around, heobserved a Quinlan employee coming down the staircase (Tr. 20). Thestairway was on the northern edge of the building and led to the secondfloor (Tr. 20).A two-story building for Montgomery Ward was under construction at theSavannah Mall (Tr. 11, 56). McCory Construction Company was the generalcontractor for the mall expansion (Tr. 56). Quinlan was a subcontractorresponsible for the steel erection and had eight employees at the site(Tr. 13, 16, 48, 56). It was Quinlan’s responsibility to unload anderect the entire structure including beams, columns, metal floordecking, stairways and canopies (Tr. 57).The construction of the building had progressed at the time of theinspection. The structural beam were in place. All cement floors hadbeen poured (Tr. 16-17). The roof was being completed, and theelectricians were placing conduit and pulling wire. The air conditioningduct work was being installed (Tr. 17). Stairways were being installed,and the elevator shaft was being prepared so that the elevator could beinstalled (Tr. 17).As Baker ascended to the second floor, he observed that the open- sidedfloor did not have a midrail to protect against an accidental fall.Quinlan employees were installing the pan metal stairwells at thenorthern and eastern sections of the building (Tr. 21-23, 32). There wasa single strand of wire approximately 42 inches high around the edge ofthe floor [[2]] (Exh. C-4; Tr. 26, 36). The second floor wasapproximately 20 feet above the ground (Tr. 31). Three employees ofQuinlan were working on the northern edge of the second floor (Exh. C-5;Tr. 31-32, 36). They were, for the most part, located within two tothree feet of the edge of the floor (Tr. 40-41).Quinlan contends that construction was still at the steel erection stageand that the requirements of ? 1926.750(b)(1)(iii) were more applicablethan ? 1926.500(d)(1). Section 1926.750(b)(1)(iii) provides:(iii) Floor periphery–safety railing. A safety railing of 1\/2-inch wirerope or equal shall be installed, approximately 42 inches high, aroundthe periphery of all temporary-planked or temporary metal- decked floorsof tier buildings and other multifloored structures during structuralsteel assembly.The cited standard controls multifloored structures during structuralsteel assembly. Section 1926.750(b)(1)(iii), by express terms, isapplicable \”around the periphery of all temporary-planked or temporarymetal-decked floors\” (Emphasis added).In Adams Steel Erection, Inc., 13 BNA OSHC 1080, 1986-87 CCH OSHD ?27,815 (No. 77-3804, 1987) the Commission recognized that there areinherent differences between temporary and permanent flooring. Itenunciated a key factor in making a distinction that is equallyapplicable to Quinlan:The record indicates that the key factor in determining whether flooringbas become \”permanent\” is whether the flooring has been integrated intothe structure so that it contributes to the stability of the building.There is no credible evidence that disputes the fact that the concretefloors added to the integrity and stability of the building precedent asrestated in Adams Steel is as follows (3 BNA OSHC at 1081):Read together, Commission precedent holds that if the employer is stillengaged in structural steel erection and the permanent floor has not yetbeen completed, then the floor is a \”temporary-planked\” or \”temporarymetal-decked\” floor within the meaning of section 1926.750(b)(1)(iii).There is no dispute that all concrete flooring had been poured. Once thecement was poured the floors became permanent. The floors became part ofthe building structure and contributed to its stability. Since permanentflooring had been installed throughout the building, the steel erectionstandard does not apply. The fact that the concrete floors had beenpoured removed the applicability of ? 1926.750(b)(1)(iii). Section1926.500(d)(1) was more specifically applicable. The are no steelerection standards applicable to the guarding of open-sided floors.Carpenter Rigging Inc., 11 BNA OSHC 1088, 1982 CCH OSHD ? 26,384 (No.76-5125, 1982). The argument that ? 1926.500(d)(1) is preempted by amore specifically applicable standard under Subpart R — Steel Erection,is rejected.Section 1926.500(d)(1) provides:(d) Guarding of open-sided floors, platforms, and runways. (1) Everyopen-sided floor or platform 6 feet or more above adjacent floor orground level shall be guarded by a standard railing, or the equivalent,as specified in paragraph (f)(1) of this section, on all open sides,except where there is entrance to a ramp, stairway, or fixed ladder. Therailing shall be provided with a standard toeboard wherever, beneath theopen sides, persons can pass, or there is moving machinery, or there isequipment with which falling materials could create a hazard.Although Quinlan was in compliance with ? 1926.750(b)(1)(iii), since ithad a wire strand along the sides that was 42 inches high, that standarddoes not require a midrail. There is no dispute over the fact that themidrail was missing. Since the floor was permanent, Quinlan was requiredto comply with ? 1926.500(d)(1). The violation has been established.Classification of the ViolationThe Secretary contends that the violation of ? 1926.500(d)(1) wasserious within the meaning of section 17(k) of the Act. A seriousviolation exists where there is substantial probability that death orserious physical harm could result from the condition in question. TheSecretary need not prove that an accident is probable, it is sufficientif an accident is possible, and its probable result would be seriousinjury or death. Brown & Root Inc., Power Plant Division, 8 BNA OSHC1055, 1980 CCH OSHD ? 24,275 (No. 76-3942, 1980).The Secretary must also prove that the employer knew or, with theexercise of reasonable diligence, should have known of the existence ofthe violation. The knowledge element is directed to the physicalconditions which constitute a violation. Southwestern Acoustics &Specialty, Inc., 5 BNA OSHC 1091, 1977-78 CCH OSHD ? 21,582 (No. 12174,1977). The single strand of wire being used as a rail was in plain view.There were other areas of the floor that had a standard toprail andmidrail (Tr. 37). Quinlan had full knowledge of the condition eventhough as a steel erector he did not think ? 1926.500(d)(l) was applicable.In the event of a fall, employees would have fallen twenty feet onto aconcrete surface (Tr. 38). A fall from that height to a concrete wouldresult in death or serious physical injury. The violation was serious.Determination Of Appropriate PenaltyThe Commission is the final arbiter of penalties in all contested cases.Secretary v. OSAHRC and Interstate Glass Co., 487 F.2d 438 (8th Cir.1973). In determining an appropriate penalty, the Commission is requiredto find and give \”due consideration\” to the size of the employer’sbusiness, the gravity of the violation, the good faith of the employer,and the history of previous violations.Quinlan employed forty persons at the time of the issuance of thecitation (Tr. 39). At the time of the hearing, Quinlan had elevenemployees (Tr. 54). There were three employees exposed to the hazard.The duration of the exposure was brief (Tr. 40). The company had noprevious history of violations (Tr. 44). The gravity was mitigatedsomewhat by the fact that there was a single wire strand around the areathat was 42 inches high. Quinlan did not have a written safety andhealth program or a hazard communication program (Tr. 43). A penalty of$700 is appropriate for the violation and is assessed against Quinlan.*_FINDINGS OF FACT AND CONCLUSIONS OF LAW_*The findings of fact and conclusions of law contained in this opinionare incorporated herein in accordance with Rule 52(a) of the FederalRules of Civil Procedure._*ORDER *_In view of the foregoing and good cause appearing in support of thedeterminations, it is*ORDERED:* That the serious citation issued to, Quinlan on June 27,1991, is affirmed and a penalty of $700 assessed for the violation.JAMES D. BURROUGHSJudgeDate: February 24, 1992FOOTNOTES:[[1]] Found in \”Subpart R-Steel Erection,\” the standard states:? 1926.750 Flooring requirements.(b) Temporary flooring–skeleton steel construction in tiered buildings. (1). . . .(iii) Floor periphery–safety railing A safety railing of 1\/2-inch wirerope or equal shall be installed, approximately 42 inches high, aroundthe periphery of an temporary-planked or temporary metal-decked floorsof tier buildings and other multifloored structures during structuralsteel assembly.[[2]] Found in \”Subpart M–Floor and Wall Openings, and Stairways,\” thestandard states:? 1926.500 Guardrails, handrails and covers.. . . . .(d) Guarding of open-sided floors, platforms, and runways. (1) Everyopen- sided floor or platform 6 fact or more above adjacent floor orground level shall be guarded by a standard railing, or the equivalent,as specified in paragraph (f)(1)(i) of this section, on all open sides .. . .. . . . .(f) Standard specifications. (1) A standard railing shall consist of toprail, intermediate rail, toeboad, and posts, and shall have a verticalheight of approximately 42 inches from upper surface of top rail tofloor ….(i) [specific dimensions for wood railings].[[3]] The relevant portions of the regulation provide:? 1910.5 Applicability of Standards…..(c)(1) If a particular standard is specifically applicable to acondition. . . it shall prevail over any different general standardwhich might otherwise be applicable to the same condition ….(2) On the other hand, any standard shall apply according to anyemployment and place of employment, in any industry, even thoughparticular standards are also prescribed for that industry . . . to theextent that none of such particular standards applies . . . .[[4]] E.g., the Eleventh Circuit, the court in Quinlan’s ownjurisdiction, has held since 1987 that the steel erection standards arenot an exclusive set of safety standards for the steel erectionindustry. Brock v. Williams Enterp, 832 F.2d 567 (11th Cir. 1987).[[5]] Quinlan claims that its. 42-inch cable met the requirements ofsection 1926.750(b)(1)(iii). However, as our holding makes clear, thatstandard does not apply where as here, a permanent floor is in place.The judge properly took into account Quinlan’s efforts to afford itsemployees some protection when he lowered the penalty from $1,250 to$700, but the applicable standard requires a guardrail, midrail andtoeboard.[[1]] A motion to change the caption was granted at the commencement ofthe hearing (Tr. 5). Prior to granting the motion, the caption had beenunder the name of Quinlan Enterprises Inc.[[2]] It a determination had been made that Quinlan was engaged in steelerection, the cable would have been in compliance with ? 1910.750(b)(1)(iii) (Tr. 49-50).”