SECRETARY OF LABOR,
Complainant,

v.

ADAMS STEEL ERECTION, INC.,
Respondent.

OSHRC Docket No. 77-3804

DECISION

Before:  BUCKLEY, Chairman, and WALL, Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(j), 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, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA").  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 from an OSHA inspection of a construction worksite in Pittsburgh, Pennsylvania, where Adams Steel Erection, Inc. was the steel erection subcontractor.  Before us on review are three items of two citations.  Former Administrative Law Judge Henry F. McQuade affirmed all three items.

Adams Steel objects to the disposition of these three items, to the judge's denial of a motion to suppress the evidence on the ground that the underlying inspection was illegal, and to the judge's ruling on its challenges to the constitutionality of the Act.  We affirm the judge in all but one respect; we reverse his disposition of one of the three items, which we vacate because the cited standard was inapplicable.

I.

In its answer, Adams Steel alleged that:

The Citations . . . are invalid since the Occupational Safety and Health Act of 1970 is unconstitutional, violating the Fourth, Fifth and Sixth Amendments to the Constitution and since the inspection which resulted in the Citations was unconstitutional and void, being an inspection without a warrant.

In his decision, Judge McQuade noted Adams Steel's contention that the Act is unconstitutional.  In response, he held that the Commission lacked jurisdiction to question the constitutionality of the Act.

Adams Steel has not particularized its arguments under the Fifth and Sixth Amendments, and therefore we affirm the judge's decision not to rule on them.  As the judge correctly stated, under longstanding Commission precedent, the Commission lacks authority to rule on questions of the constitutionality of provisions of the Act on which no court has yet ruled; the Commission can do no more than apply judicial precedent concerning the constitutionality of the Act.  E.g., McGowen v. Marshall, 604 F.2d 885, 892 (6th Cir. 1979); Daniel International Corp.,81 OSAHRC 57/A2, 9 BNA OSHC 1980, 1985, 1981 CCH OSHD 25,492, p. 31,792 (No. 15690, 1981), order set aside on other grounds, 683 F.2d 361 (11th Cir. 1982); Bomac Drilling, 81 OSAHRC 45/A2, 9 BNA OSHC 1681, 1699, 1981 CCH OSHD 25,363, p.31,555 (No. 76-2131, 1981).  See also the cases cited by Judge McQuade.  Because Adams Steel has not particularized its arguments, they cannot be addressed in any fashion, even to such extent as might be permissible.  We therefore reject Adams Steel's Fifth and Sixth Amendment challenges.

We reject Adams Steel's challenge under the Fourth Amendment, but for different reasons.  The Supreme Court's decision in Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816 (1978), sustains Adams Steel's contention that the Act violates the Fourth Amendment to the extent that it purports to authorize warrantless searches.  The Barlow's decision nevertheless made clear that it was not invalidating all inspections conducted under the authority of section 8(a) of the Act, 29 U.S.C. 651(a).  On the contrary, the Court suggested that only an inspection conducted without an inspection warrant or its constitutional "equivalent," e.g., the voluntary consent of the inspected employer, would be invalid.  See, e.g., 436 U.S. at 316, 325, 98 S. Ct. at 1822, 1827.   See also 436 U.S. at 314, 98 S.Ct. at 1821 (objection to warrantless entry is "[t]he critical fact in this case").  Adams Steel is therefore entitled to relief only if OSHA's inspection of Adams Steel's workplace violated the Fourth Amendment.

Adams Steel claims that OSHA's inspection violated the Fourth Amendment because OSHA lacked a warrant and consent.  In support of a renewed motion to dismiss at the end of the hearing, it alleged that "any permission . . . granted for entry at the time . . . [was] permission from the general contractor in possession of the premises and certainly not . . . [from Adams Steel]."   When an employer seeks to suppress evidence obtained in a warrantless inspection, the Secretary bears the burden of proving that the inspection was lawful.  Sarasota Concrete Co., 81 OSAHRC 48/A2, 9 BNA OSHC 1608, 1612, 1981 CCH OSHD 25,360, p. 31,531 (No. 78-5264, 1981), aff'd, 693 F.2d 1061 (11th Cir. 1982).  The inspection here was evidently warrantless.  We must therefore determine whether there was consent.

When the compliance officer arrived at the Prudential Realty Building construction project, the representative of the general contractor invited Adams Steel's foreman, Donald McClendon, as well as representatives of other subcontractors, to join the inspection party.  Mr. McClendon accompanied the compliance officer during the inspection.  The compliance officer inspected the operations of other employers at the worksite in addition to Adams Steel's operations.

Adams Steel denies that it gave its own consent to the inspection.  It seems to concede, however, that the general contractor consented to the inspection; the only issue it raised before Judge McQuade was whether it was bound by that consent.  It is, however, clear from the record that Adams Steel itself consented to a warrantless inspection since its foreman joined the inspection party.  There is also no evidence nor any claim that Adams Steel objected to the warrantless inspection or requested OSHA to obtain an inspection warrant.[[1]]  We therefore find that the inspection was consensual.

II.

This case is one of three related cases in which Adams Steel raised issues concerning the Secretary's inspection policies and procedures.   The first in the series was a case we will refer to as Adams Steel IAdams Steel Erection, Inc., 84 OSAHRC, 11 BNA OSHC 2073, 1984-85 CCH OSHD 26,976 (No. 77-4238, 1984), rev'd, 766 F.2d 804 (3d Cir. 1985).

At the beginning of the hearing in Adams Steel I, the employer moved to consolidate that case with the case now on review and with a third related case, OSHRC Docket No. 77-3773.  Adams Steel sought this consolidation so that a joint hearing could be held on its motions in all three cases to suppress the evidence on the ground that the inspections were unlawful, violating both the Constitution and the Act.  Judge McQuade denied the motions to consolidate and the motions to suppress in all three cases. However, he granted Adams Steel's motions to incorporate relevant parts of the proceeding in Adams Steel I into the records in the other two cases.  Accordingly, the inspection issues we now review in this section of our decision are based on the record in Adams Steel I.

Adams Steel's claim that the inspection violated the Act raises three questions:

(1) Is the Secretary's authority to inspect in response to complaints limited by section 8(f)(1) of the Act, 29 U.S.C. 657(f)(1)?

(2) Did the Secretary comply with the "reasonableness requirement" of section 8(a)(2) of the Act, 29 U.S.C. 657(a)(2)?

(3) Did the Secretary exceed his statutory authority in adopting the inspection policy set forth in OSHA Field Information Memorandum #76-20 (July 2, 1976)("FIM 76-20")?

Adams Steel's original formulation of its defense under section 8(f)(1) was set forth in its answer, as follows:

The inspection of [Adams Steel's] work place on September 23, 1977 was invalid because it was in response to a complaint from a person other than an employee or employee representative.  [Adams Steel] avers that the non-employee informer was engaged in intentional harassment of [Adams Steel].

The issue implicitly raised by this defense is whether the Secretary exceeded his authority under section 8(f)(1) by conducting an inspection in response to a complaint of unsafe working conditions filed by someone not an employee of Adams Steel nor a representative of its employees.[[2]]

Judge McQuade rejected this argument on the basis of Aluminum Coil Anodizing Corp., 77 OSAHRC 70/A2, 1 BNA OSHC 1508, 1973-74 CCH OSHD 17,185 (No. 829, 1974) ("Aluminum Coil I").  That case involved an inspection conducted in response to a complaint of unsafe working conditions.   The complainant was neither an employee nor a representative of employees.   Aluminum Coil moved to vacate the citation on the ground that the inspection was therefore invalid under section 8(f)(1) of the Act.  The Commission disagreed, holding in effect that, because the complaint had not been filed by an employee or an employee representative, section 8(f)(1) was irrelevant in determining the validity of the inspection.  Instead, the issue was whether the Secretary had properly exercised his general inspection authority under section 8(a) of the Act.[[3]]

Applying Aluminum Coil I to this case, Judge McQuade held that the status of the complainant as an anonymous telephone caller did not render the inspection invalid.  He also rejected Adams Steel's argument that the alleged motive of the complainant, i.e., the alleged intent to harass Adams Steel, invalidated the inspection.  In essence, the judge found that Adams Steel had failed to establish this allegation ("The facts do not bear out the contention that anyone . . . was engaged in a program of intentional harassment of [Adams Steel]").

The parties seem to agree that the complaint that precipitated the inspection came from neither an employee nor a representative of employees.  This does not mean, however, that the Secretary could not act on it.  In Aluminum Coil I, former Commissioner Van Namee reasoned as follows:  (1) section 8(f)(1) is not a limitation on the Secretary's authority to conduct inspections in response to complaints of unsafe working conditions but rather a "specific duty" to "conduct a 'special inspection' when certain conditions are met"; (2) when complaints are filed by individuals who are not employees or employee representatives, the source of the Secretary's authority to conduct a responsive inspection is section 8(a) of the Act; and (3) the validity of these inspections is therefore determined under the "reasonableness" standard of section 8(a)(2) rather than by applying the "formality requirements"[[4]] of section 8(f)(1).

The Commission has not departed from this view of the relationship between sections 8(a) and 8(f)(1).  See, e.g., Quality Stamping Products Co., 79 OSAHRC sections 28/F11, 7 BNA OSHC 1285, 1288, 1979 CCH OSHD 23,520, p. 28,504 (No. 78-235, 1979); Aluminum Coil Anodizing Corp., 77 OSAHRC 70/A2, 5 BNA OSHC 1381, 1977-78 CCH OSHD 21,739 (No. 829, 1977) (Aluminum Coil II).  In addition, in those federal court cases where the issue of the Secretary's authority has been expressly raised, the courts have consistently agreed that the Secretary can respond to complaints from persons who are neither employees nor employee representatives.  E.g., Marshall v. Horn Seed Co., 647 F.2d 96, 100 n.3, 103 (10th Cir. 1981); Burkart Randall Div. of Textron, Inc. v. Marshall, 625 F.2d 1313, 1321-1322 (7th Cir. 1980); Donovan v. Metal Bank of America, Inc., 516 F. Supp. 674, 678 (E.D. Pa. 1981) (anonymous telephone call complaints).  We therefore reject Adams Steel's argument that "[t]he inspection...was invalid because it was in response to a complaint from a person other than an employee or employee representative."

Adams Steel asserts, however, "that the non-employee informer was engaged in intentional harassment of [Adams Steel]."   At the hearing in Adams Steel I, the employer attempted to establish that it had been subjected to a series of inspections that were interrelated.  The parties stipulated that, during a five-week period in September and October 1977, OSHA's area office in Pittsburgh, Pennsylvania, inspected six different construction worksites where Adams Steel was performing work as a steel erection subcontractor.  The first five of these inspections were conducted in response to anonymous telephone call complaints of unsafe working conditions.  Two of these calls were directed against the unnamed steel erection contractor (later identified as Adams Steel) on specified projects, while the other three expressly named Adams Steel as the employer involved.  The sixth inspection was conducted in response to a complaint that concerned a particular, named subcontractor that was not Adams Steel at a worksite where Adams Steel was also a subcontractor.  This last complaint apparently was not received in the form of an anonymous telephone call.

This record does not identify the specific allegations of any of the six complaints.  We are therefore unable to determine the extent to which the safety complaints may have been meritorious.  However, four of the six inspections resulted in the issuance of citations to Adams Steel.  There is also no direct evidence as to the identity and motivation of the complainant or complainants.  Adams Steel has argued throughout this proceeding that all six complaints were filed by one person whose purpose was to harass Adams Steel.

Nevertheless, after unsuccessfully attempting to establish its claim through a request for admissions, Adams Steel made no further attempt to establish any of these allegations.[[5]]

In sum, Adams Steel proved only that it was subjected to six complaint inspections at six different construction project worksites in a period of five weeks and that five of those inspections resulted from anonymous telephone calls that directly or indirectly alleged safety violations by Adams Steel.   Adams Steel did not show that the telephone calls were not motivated by a genuine concern with safety.  We therefore agree with Judge McQuade that, particularly in light of the hazardous nature of the steel erection industry, the evidence was insufficient to establish a claim of intentional harassment.  We further note that, under Commission precedent, improper motivation on the part of the complainant is not in itself sufficient grounds for declaring an inspection invalid.  E.g., Quality Stamping Products Co., 7 BNA OSHC at 1289, 1979 CCH OSHD at, p. 28,505; Aluminum Coil II.

Consistent with Aluminum Coil I, Judge McQuade held that the issue raised by Adams Steel's challenge to the underlying inspection "is properly framed as whether the inspections were reasonable under section 8(a) of the Act...." He held that the Secretary had complied with the reasonableness requirement of section 8(a)(2), which states that "the Secretary...is authorized...to inspect and investigate...within reasonable limits and in a reasonable manner...." See note 3 supra (complete text of section 8 (a)).  In its petition for discretionary review, Adams Steel expressly took exception to this conclusion.  Yet, in its brief on review, it presents no argument in support of this exception.

We note initially that Adams Steel has neither alleged nor sought to prove any active misconduct or improper motivation on the part of OSHA personnel.  On the contrary, the employer expressly states in its review brief that "[i]t is not contended...that there was vindictive enforcement of the statute by the Secretary against [Adams Steel]."  We particularly note that Adams Steel does not direct any of its criticisms to the manner in which the OSHA compliance officer conducted his inspection.  Adams Steel's criticism refers instead to the procedures followed by OSHA's Pittsburgh area office in handling anonymous telephone call complaints and, in particular, OSHA's decision to conduct workplace inspections in response to this series of complaints.

Adams Steel has not established a violation of section 8(a) of the Act.  The Secretary may be required by the Fourth Amendment to obtain a warrant based on evidence of probable cause before he inspects without consent.   However, section 8(a) of the Act does not require the Secretary to obtain evidence of any particular sort to support his decision to seek a consensual inspection.  Of course, section 8(a) does require the Secretary to inspect "within reasonable limits and in a reasonable manner...." But we can find no basis in the record before us to support a conclusion that the Secretary failed to do that.

Adams Steel's primary argument is that the inspection was conducted under an inspection policy that circumvented the procedural protections for employers in section 8(f)(1) of the Act.  This policy, which was embodied in FIM 76-20, was to inspect in response to complaints "without regard to the formality requirements of Section 8(f)."   See note 4 supra.  Citing Aluminum Coil I's discussion of the legislative history of the Act, 1 BNA OSHC at 1509, 1973-74 CCH OSHD at p. 21,797, Adams Steel asserts that Congress intended for the Secretary to take effective measures to prevent misuse of section 8(f) procedures as a harassment device. In the employer's view, FIM 76-20 not only failed to comply with this Congressional expectation; it actually invited and encouraged harassment of employers by persons seeking to abuse the complaint inspection procedures.  Specifically, Adams Steel contends, this is "a case wherein [OSHA's] 8(f) procedure has obviously been used as a harassment device."

We have already held that the Secretary has the statutory authority under section 8(a) of the Act to conduct inspections in response to "non-formal complaints."  It necessarily follows that the Secretary had the authority to adopt FIM 76-20 and to inspect "without regard to the formality requirements of Section 8(f)."

In any event, we are not convinced that FIM 76-20 unfairly affected Adams Steel.  We previously held that Adams Steel failed to establish its assertion that the complaint that led to the inspection was filed to harass Adams Steel.  There is also no evidence supporting Adams Steel's broader allegation that FIM 76-20 invited and encouraged harassment of employers generally.  FIM 76-20 contained provisions designed to prevent such abuses of procedure.  For example, paragraph 3(f) stated that "all complaints, regardless of formality requirements, will be thoroughly evaluated by the receiving Area Office and an inspection shall be conducted in the event the existence of safety and health hazards is indicated...." (Emphasis added.)  In addition, paragraph 3(g) stated that, "if there is compelling evidence to indicate that the complaint procedure is abused groups or individuals for purposes other than safety and health matters, the Area Director shall consult with the Regional Administrator to determine whether to investigate the matter, and if the determination is reached that conducting an inspection is not warranted, shall so indicate in the complaint log."

We therefore affirm Judge McQuade's denial of Adams Steel's motion to suppress the evidence.

III.

Item 1 of citation 1 alleges a violation of section 1926.750(b)(1)(iii), which provides:

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 wire rope or equal shall be installed, approximately 42 inches high, around the periphery of all temporary planked or temporary metal-decked floors of tier buildings and other multifloored structures during structural steel assembly.

This citation item relates to the third floor of the Prudential Realty Building.  The building was triangular in shape and designed to have six floors and a roof.  By the time of the inspection, structural steel had been erected up to the fifth level while decking had been installed up to the third level.   It is undisputed that no safety railing of any type was in place around the perimeter of the third-floor decking.  Three ironworkers employed by Adams Steel were working on the third floor and were thereby exposed to the hazard of falling from its unguarded edges.

The primary issue with respect to this citation item is whether the standard applied to the third floor.  The standard requires a wire-rope safety railing around "temporary metal-decked floors . . . during structural steel assembly."  The specific question is whether the standard applies when a steel erection contractor is in the process of replacing temporary flooring or decking with permanent flooring or decking.  Adams Steel asserts that "where, as here, the temporary deck has been removed and the permanent deck is in the process of construction, it must necessarily follow that the cited standard, by its own terms, is inapplicable."   We disagree.

Adams Steel used the same sheets of metal in both its temporary decking and its permanent decking.  For example, when Adams Steel installed permanent decking on the third floor, it used the same metal sheets that had previously been installed as the temporary decking at that level.  That the same decking was used for both purposes, however, does not mean that there is no difference between temporary and permanent flooring.  All of the witnesses, the Secretary's as well as Adams Steel's, acknowledged that there were differences between temporary and permanent flooring.

Temporary decking, as described by the witnesses, was installed as a safety measure and for convenience in carrying out the work of structural steel assembly.  It served three functions during steel erection work:   (a) as a storage area and base of operations for those working above the floor, (b) as a working surface for those working at floor level, and (c) as a catch platform for employees and materials that might fall from upper levels.  A temporary deck consisted of sheets of metal that were haphazardly laid and uncut.  Because the building was triangular, this meant that the sheets overlapped the building's perimeter.  The temporary decking was held in place by wire or cable.

Permanent decking, on the other hand, was a part of the building's structure it was cut to shape, fitting within the perimeter of the building.  It was welded into place, and it served as a foundation on which a concrete floor eventually would be poured.   During steel erection work, the primary function of the permanent decking was to contribute to the stability of the building.

In replacing temporary decking with permanent decking, it appears the procedure was essentially as follows:  When Adams Steel was ready to complete construction of a floor, it "uncovered" the entire perimeter of the temporary floor by pulling back the metal decking from the edges.  Plumb-up cables, which were used to align the building, were extended between the floors.  Once the building was properly aligned, the "points" were "bolted" (i.e., apparently, pre-existing bolting in the underlying structural members was tightened, or reinforced with additional bolting, or both).  The decking was then cut by an employee using an acetylene torch, so that the sheets would fit within the building's perimeter.  Access areas and other openings were cut into the decking (also with an acetylene torch), and the decking was welded into place.  Once welded, the floor could no longer move and the plumb-up cables could be removed.  At a later stage in the construction process, concrete was poured onto the metal decking, thereby forming the completed floor.

It is not clear on this record how far the installation of permanent decking on the third floor had progressed by the time of the inspection.  At various points in his testimony, ironworker Robert Tierney stated that work on the permanent third floor had begun "about the same day" as the OSHA inspection, the day before the inspection "at least", and "perhaps" two days before the inspection.  At the time of the inspection, he asserted, the employees "were laying the [permanent] deck down and starting to cut it." The compliance officer testified that the employees "had lifted the temporary floor back down, tightened up the bolts and were putting down a permanent decking to weld."  Adams Steel's foreman McClendon testified that an employee photographed by the compliance officer was at the time "cutting everything to size around the columns, around openings and welding it down."

The record indicates that the key factor in determining whether flooring has become "permanent" is whether the flooring has been integrated into the structure so that it contributes to the stability of the building.  As stated by foreman McClendon, it is the welding that "holds the building."  Yet, there is no evidence in this record as to what percentage of the floor had been welded to the structural steel.

In any event, both parties agree on the two fundamental facts concerning the stage of construction.  First, at the time of the inspection, Adams Steel had disassembled the temporary decking on the third floor and begun the process of installing the permanent decking.  Second, Adams Steel had not yet completed the process, for the decking was yet not an integral part of the building's structure, contributing to its stability.  The question posed here is therefore whether section 1926.750(b)(1)(iii) requires a wire rope after the temporary decking is disassembled but before the permanent flooring is complete.

Judge McQuade cited Ashton Co., 76 OSAHRC 6/B11, 3 BNA OSHC 1968, 1975-76 CCH OSHD 20,351 (No. 5111, 1976), and concluded that section 1926.750(b)(1)(iii) applied because the building "was still in the steel erection stage and installation of permanent flooring was not yet completed at the time of the inspection."

We agree with Judge McQuade's reading of Commission precedent.  Adams Steel contends that Ashton is distinguishable because the employees in Ashton were engaged in installing temporary decking rather than permanent decking.  However, any ambiguity in Ashton on that point was resolved by the later Commission decisions in Pima Construction Co., 76 OSAHRC 106/D3, 4 BNA OSHC 1620, 1622, 1976-77 CCH OSHD 20,998, p. 25,229 (No. 5221, 1976), and Carr Erectors, Inc.,77 OSAHRC 14/C9, 4 BNA OSHC 2009, 2010, 1976-77 CCH OSHD 21,471, p. 25,777 (No. 7247, 1977).  Read together, Commission precedent holds that if the employer is still engaged in structural steel erection and the permanent floor has not yet been completed, then the floor is a "temporary-planked" or "temporary metal-decked" floor within the meaning of section 1926.750(b)(1)(iii).

Our review of Subpart R in its entirety persuades us that Commission precedent is correct.  Subpart R makes precisely the same distinction between "permanent flooring" and "temporary flooring" and uses the terms in the same sense, as the witnesses in this case did.  In particular, paragraphs (a) and (b) of section 1926.750 are captioned "Permanent flooring--skeleton steel construction in tiered buildings" and "Temporary flooring--skeleton steel construction in tiered buildings," respectively.  Separate requirements are established under Subpart R for these two distinct types of flooring.  Further, the text of the permanent flooring requirements in section 1926.750(a), particularly the final clause of section 1926.750(a)(1), shows that the section's purpose is to insure the stability of the building.  See also section 1926.750(a)(2) ("permanently secured floor" used as synonym for "permanent flooring").  Thus, section 1926.750(a) indicates that the principal distinguishing feature of "permanent" flooring is that the flooring has been made an integral part of the building's structure and therefore contributes to stabilizing the building.  This is the same sense in which the witnesses used the term "permanent flooring."

The decking here was temporary rather than permanent flooring.  The decking had not been welded to the structural steel, had not become an integral part of the building's structure, and therefore was not contributing to the stability of the building.  Thus, section 1926.750(b)(1)(iii) was still applicable.

IV.

Item 2 of citation 1 alleges a violation of section 1926.500(b)(2).  The cited standard, which is contained in Part 1926, Subpart M--Floor and Wall Openings, and Stairways, provides as follows:

1926.500 Guardrails, handrails and covers.

(b) Guarding of floor openings and floor holes.

(2) Ladderway floor openings or platforms shall be guarded by standard railings with standard toeboards on all exposed sides, except at entrance to opening, with the passage through the railing either provided with a swinging gate or so offset that a person cannot walk directly into the opening.

The primary issue with respect to this item is whether the cited standard is preempted by more specifically applicable standards in Part 1926, Subpart R--Steel Erection.

The location of this alleged violation was the third floor of the Prudential Realty Holding Building, that is, the same floor that was the location of the violation alleged in item 1.  The compliance officer testified that item 2 related to a 36-foot-long wooden ladder that provided access from the ground up to the third floor.  At the third-floor level, the ladder extended through a ladderway opening that was not guarded.  The compliance officer further testified that Adams Steel's employees "had to use" the ladder because it "was the only ladder to the third floor."

Adams Steel does not dispute its failure to guard the ladderway opening in accordance with section 1926.500(b)(2) or the exposure of its employees to the unguarded opening.  Instead, it defends on the ground that the cited standard was preempted by more specifically applicable steel erection standards.   Its argument is based on 29 C.F.R. 1910.5(c)(1).[[6]]

In its arguments before the judge, Adams Steel reasoned that, because it was engaged in steel erection, Subpart R preempted section 1926.500(b)(2).  It noted that Subpart R specifically treats the subject of access openings in floors in section 1926.750(b)(1)(i), which states that a derrick or erection floor shall be solidly planked except for access openings.  It further noted that Subpart R deals with safety railings in section 1926.750(b)(1)(iii), which requires such railings only around the perimeter of the floor.  Thus, Adams Steel concluded:

Had the Secretary intended that the floor at access openings be guarded by safety railing, it must be presumed that the Secretary had the right and the ability to so require by a specific regulation.  Instead, by limiting safety railings only to the floor periphery and by permitting access openings to exist in decked floors, it must be assumed that the steel erection industry is not required to guard open ladderways.

(Emphasis in the original.)

In response, the Secretary contended that Subpart R "does not speak to protection of workers from the hazard of falling into unguarded access openings."  Therefore, he concluded, reliance on the generally applicable standard at section 1926.500(b)(2) was appropriate.[[7]]  In his decision, Judge McQuade essentially adopted the Secretary's position.  Accordingly, he affirmed the citation item.  On review, both parties resubmit the arguments that they made before the judge.

We agree with Adams Steel that the cited standard did not apply to the ladderway opening in the third floor at the time of OSHA's inspection.  However, our reasoning is based on another standard in Subpart R, section 1926.752(j), which provides:

1926.752  Bolting, riveting, fitting-up, and plumbing-up.

(j) All unused openings in floors, temporary or permanent, shall be completely planked over or guarded in accordance with Subpart M of this part.

Section 1926.752(j) is a scope provision that limits the application of the floor opening standards in Subpart M during the steel erection phase of construction to floor openings that are "unused."  In this case, since the opening in question was being actively used as the only means of access to the third floor, guarding was not required.  We therefore vacate item 2 of citation 1.

V.

Citation 2 as amended alleged a violation of section 1926.28(a) or section 1926.105(a) in that employees were working on a structural beam at the fifth-floor level, approximately 50 feet above the ground, and "[s]afety nets, ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts were not used" to protect them.

On review, only the alleged violation of Section 1926.105(a), which the judge affirmed, is still at issue.  See note 8 infra.  This general construction standard provides:

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.

Adams Steel defends against this charge on two grounds.  First, it contends that, under the terms of section 1926.105(a), it was not required to install safety nets because it had instead provided one of the other listed alternatives, "temporary floors."  In any event, it argues, section 1926.105(a) cannot be applied to steel erection work because it is preempted by more "specifically applicable" standards in Subpart R.

The relevant facts in determining the preemption issue are not in dispute.  The compliance officer observed that two employees of Adams Steel were working from a beam at the fifth-floor level while bolting up objects identified as "relief angles for the masonry" or "masonry lintels."   The compliance officer testified that the two employees, who were wearing safety belts that were not tied off, were exposed to the hazard of falling either 50 feet toward the outside of the building or approximately 20 feet toward the inside of the building.  On the outside of the building, there was nothing between the fifth-level beam and the ground below.  If either employee had fallen to the inside of the beam, he would have fallen to the third-floor decking.

This case is indistinguishable from two other cases in which the Commission previously has ruled on the same preemption issue: Adams Steel I, referred to above in connection with the employer's motion to dismiss; and Williams Enterprises of Georgia, Inc., 86 OSAHRC ____, 12 BNA OSHC 2097, 1986 CCH OSHD 27,692 (No. 79-4618, 1986), appeal filed, No. 86-8825 (11th Cir. Nov. 10, 1986).  In Adams Steel I, the Commission concluded that section 1926.105(a) cannot be applied to the hazard of falling from perimeter beams during steel erection work because it is a general construction standard and is therefore preempted by more "specifically applicable" standards in Subpart R. See note 6 supra.  On review, the Court of Appeals for the Third Circuit reversed the Commission, holding that section 1926.105(a) can be applied to the hazard of exterior falls at issue because there are no "particular standards" in Subpart R that apply to that hazard.  See note 7 supra.   In Williams Enterprises, the Commission, with Commissioner Wall dissenting, respectfully disagreed with the position of the Third Circuit and reaffirmed the position it had taken in Adams Steel I.

In the absence of a ruling from the Supreme Court or a Court of Appeals with jurisdiction over the case, Chairman Buckley would adhere to the Commission's position on the preemption issue as stated in Adams Steel I and Williams Enterprises.  Nevertheless, because this case arises in the Third Circuit, i.e., both the inspected workplace and Adams Steel's principal place of business are located there, Chairman Buckley defers to the appellate court for that circuit in rejecting the preemption argument raised by Adams Steel.  See Babcock & Wilcox Co. v. OSHRC, 622 F.2d 1160, 1166 (3d Cir. 1980) (binding effect of appellate court's rulings on cases arising in the Third Circuit).  See also Davis Metal Stamping, Inc., 85 OSAHRC _____, 12 BNA OSHC 1259, 1261, 1984-85 CCH OSHD 27,236, p. 35,156 (No. 78-5775), aff'd, 800 F.2d 1351 (5th Cir. 1986).  Commissioner Wall rejects Adams Steel's argument on its merits, concluding that section 1926.105(a) applies to the cited conditions.

The facts relating to Adams Steel's argument that it was in compliance with the standard are also undisputed.  Based on the compliance officer's uncontradicted testimony, Judge McQuade entered the following finding:

It was not practical or of likely utility for Adams Steel employees at the Prudential Building to use scaffolds, ladders, catch platforms, or temporary floors as safety devices to protect against the dangers of outer perimeter falls.

Resolving a conflict in the testimony over the feasibility of personal protective equipment, the judge also entered this finding:

It was not practical or of likely utility for Adams Steel employees at the Prudential Building to tie off to beams, relief angles, bolt holes, or static lines.

This latter finding is not challenged on review.[[8]]  Because all of these other forms of fall protection were impractical, the judge concluded that, under the terms of section 1926.105(a), Adams Steel was required to provide perimeter safety nets.  It is undisputed that perimeter safety nets were not provided and that the temporary flooring at the third-floor level would not have broken an exterior fall from the perimeter beam at the fifth-floor level to the ground below.

Adams Steel contends that, because it provided temporary flooring approximately 20 feet below the two employees on the perimeter beam, it was in compliance with section 1926.105(a), even though this flooring would not have provided protection if either employee had fallen toward the outside of the building.  We conclude, however, that this argument is contrary to the Third Circuit's decision in Adams Steel I.  We interpret the court's decision as holding that, under the circumstances that existed both in that case and in this case, section 1926.105(a) not only applies but also is violated.  In the Third Circuit's view, the hazard at issue in these cases is the hazard of falling from a perimeter beam to the outside of a building.  See, e.g., 766 F.2d at 808.  Section 1926.105(a) applies to this hazard as thus defined and requires the employer to protect employees against it.  Since a temporary floor provides no protection against exterior falls, see, e.g., 766 F.2d at 808, an employer who relies solely on temporary floors is not in compliance with section 1926.105(a), as it is interpreted by the Third Circuit.  We therefore will affirm citation 2 as modified by the judge.

Accordingly, we affirm item 1 of citation 1, vacate item 2 of citation 1, and affirm citation 2 as modified by the judge.

FOR THE COMMISSION

Ray H. Darling Jr.
Executive Secretary

DATED: February 2, 1987


SECRETARY OF LABOR,
Complainant,

v.

ADAMS STEEL ERECTION, INC.,
Respondent.

OSHRC Docket No. 77-3804

DECISION AND ORDER

Appearances:

David F. Street, Esq.
Office of the Regional Solicitor
U.S. Department of Labor

Philadelphia, Pennsylvania
for the Complainant

Richard S. Crone, Esq.
Crone and Zittrain
Philadelphia, Pennsylvania
for the Respondent

McQuade, Judge:

This proceeding was commenced pursuant to Section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq., (the Act).  The Respondent is charged with serious violations of 29 C.F.R. 1926.28(a) or, in the alternative, 1926.105(a); 29 C.F.R. 1926.750(b)(1)(iii); and 29 C.F.R. 1926.500(b)(2).  Respondent is also charged with an other-than-serious violation of 29 C.F.R. 1926.100(a).

Respondent, Adams Steel Erection, Inc., is a Pennsylvania corporation having its sites as a steel erection company in the Pittsburgh area and maintaining its headquarters in Kittaning, Pennsylvania.

The Pittsburgh office of the Occupational Safety and Health Administration (OSHA) conducted six inspections of the Respondent's construction sites pursuant to anonymous telephone calls.  Three inspections resulted in issued citations, one inspection in an uncontested nonserious violation, and two inspections in findings of compliance (Tr. 321-322).

This case resolves the citations which were issued from the September 23, 1977, inspection of the Prudential Building worksite in Pittsburgh, Allegheny County, Pennsylvania.  Adams Steel Erection, Inc., (Adams Steel) was issued three citations on October 17, 1977.

On November 7, 1977, Citation No. 1 was amended to reduce the proposed penalties of the two items from $800 each to $420 each.  The proposed penalty for Citation No. 2, termed at that time as a "Repeated Citation," was reduced from $2,000 to $840. Respondent contested all citations on November 7, 1977, and a hearing was, conducted on March 27, 1978.

Complainant moved to amend Citation No. 2's classification from "Repeated" to "Serious."  Without objection from the Respondent the motion was granted (Tr. 8).

Serious Citation No. 1, Item 1, alleges noncompliance with 29 C.F.R. 1926.750(b)(1)(iii) because Respondent did not supply a safety railing around the periphery of the third floor.

The regulation requires:

(iii) Floor periphery--safety railing.  A safety railing of 1/2-inch wire rope or equal shall be installed approximately 42 inches high, around the periphery of all temporary-planked or temporary metal-decked floors of tier buildings and other multifloored structures during structural steel assembly.

The inspecting compliance officer, James Weyrauch, observed during the course of the inspection three Adams Steel employees working on the third floor of the Prudential Building structure.  The workers were in the process of converting temporary decking into permanent flooring.  No wire rope or other safety railing was in place around the third-floor perimeter (Tr. 13, 22-23; Ex. C-1, C-2, C-3).

Weyrauch testified that the employee shown kneeling in the background of Exhibit C-1 was 3 feet from the edge of an unprotected outside perimeter, with nothing to break a 27-foot fall should he fall from the edge of the building (Tr. 16).  Weyrauch described the surface upon which the employee could have fallen as either street, sidewalk, or "excavated rocks and rubble from the trench." (Tr. 18).  Weyrauch testified that an employee falling 27 feet from the third floor would suffer "broken bones, possibly death." (Tr. 18-19).

Respondent's witness offered varying estimates of what percentage of the third floor had already been converted to permanent flooring:   70, 80 and 85 percent.

Robert Tierney, Respondent's employee, testified that all the flooring shown in Exhibits C-1, C-2, and C-3 had been temporary, but that by the time of the inspection 70 percent of the third floor had been converted to permanent flooring. (Tr. 116).

Don McClendon, Respondent's foreman, testified that the conversion from temporary deck to permanent decking was 80 percent completed (Tr. 133).

Lloyd Leadbeter, Respondent's supervisor, gave the highest estimate of the third-floor portion already converted to permanent, 85 percent (Tr. 165-167).  However, Complainant argues that Leadbeter's estimate is the least reliable since he was not at the worksite on the day of the inspection, nor had he been there for a week prior to the inspection (Tr. 180).  He based his estimate only from examining the worksite the day after the inspection and from examining Weyrauch's photographs.

Respondent argues that (1) the standard is inapplicable under the facts of the case, and (2) compliance is impossible.  This is asserted in Respondent's Eighth Defense in its Answer and reiterated in motions for involuntary dismissal at the conclusion of the presentation of both the Secretary's case (Tr. 89-90) and all evidence (Tr. 193).

Adams Steel points to the testimony of its witnesses Tierney, McClendon, and Leadbeter to show that the third floor consisted primarily of permanent flooring at the time of inspection (70 to 85 percent).  Respondent thereby concludes that the standard in issue is inapplicable to the facts because 1926.750(b)(1)(iii) prescribes safety railings only for temporary flooring, not permanent floors.

Respondent contends that the standard in issue is vague as to time of applicability and denies the employer fair warning of the conduct it prohibits or requires.

Respondent also argues that the Secretary has the burden of proving that the local custom in the steel erection industry requires use of a railing around the perimeter of the structure during conversion from temporary to permanent flooring.  Respondent claims that the Secretary has failed this burden.

However, the Secretary has no such burden of proof.  Local custom and usage cannot control in the face of a Federal standard. There is no requirement that Federal law carry with it a showing that it does not contradict local custom to be enforceable.

Furthermore, Respondent's contention is not sustained that the standard is too vague to be enforced and does not supply the fair notice to which employers are entitled.  The standard is very precise as to specifications for railing, its placement, its height, the type of floors and structures where it is to be placed, and the stage of construction at which the safety railing is to be in place.  The employer receives fair notice of what is required by the standard from its language.  The requirement of safety railings around temporary floors "during structural steel assembly" is a clear mandate for this safety measure; the absence of exceptions or particular address to the stages of temporary flooring does not function as a loophole to compliance.  The standard is clear:  A safety railing is required around the perimeter of temporary floors of multi-floored steel erection structures.

Complainant relies on The Ashton Company, Inc., 76 OSAHRC 6/B11, 3 BNA OSHC 1968, 1975-76 CCH OSHD 20,351, OSHRC Docket No. 511 (1976), in which the Commission held 1926.750(b)(1)(iii) to apply to the working conditions of a building "still in the steel erection stage [where] the installation of permanent flooring had not completed."  In the case at bar, the permanent flooring similarly had not been "completed" and the construction similarly was still in the steel erection stage.  Therefore, by the reasoning of the Commission in Ashton Company, it is clear 1926.750(b)(1)(iii) applies to the Prudential Building inspection facts.

The three elements of establishing a violation are:  (1) applicability of the standard to the facts, (2) employer failure to comply with the standard, and (3) employee access to the hazard resulting from the violation.   Anning-Johnson Company, 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD 20,690, OSHRC Docket Nos. 3694 and 4409 (1976).

Since it is clear that the Prudential Building was still in the steel erection stage and installation of permanent flooring was not yet completed, by the Ashton Company standard, 1926.750(b)(1)(iii) applies to the facts.  Therefore, the first of the three elements of a violation is satisfied.  It is also clear that Adams Steel did not provide any safety railing and that employees working on the third floor were exposed to the danger of falling 27 feet to the ground, thereby satisfying the second and third elements of establishing a violation.   Complainant has thereby proven the violation.

Respondent's argument that because the floor in question had been largely converted from temporary to permanent flooring, the standard is inapplicable, lacks support.  During the conversion period, Respondent is still required to provide protection for its employees.  Whether the permanent floor safety railing requirement, 29 C.F.R. 1926.500(d)(1), or the temporary floor safety railing requirement, 1926.750(b)(1)(iii), is applicable, the prescription is clear:  An employer must provide a safety railing around the building perimeter.  The basic purpose is to protect workers during all phases of the steel erection, regardless of whether 20 percent or 80 percent assembled.  The standard applies and has been violated.

Serious Citation No. 1, Item 2, alleges noncompliance with 29 C.F.R. 1926.500(b)(2) because Respondent left a third-floor ladderway opening unguarded by railings or toeboards.

The applicable regulation requires:

SUBPART M--FLOOR AND WALL
OPENINGS, AND STAlRWAYS

1926.500 Guardrails, handrails, and covers.

(b) Guarding of floor openings and floor holes.

(2) Ladderway floor openings or platforms shall be guarded by standard railings with standard toeboards on all exposed sides, except at entrance to opening, with the passage through the railing either provided with a swinging gate or so offset that a person cannot walk directly into the opening.

The inspecting compliance officer, Weyrauch, testified that entry onto the third floor was provided by a 36-foot wooden ladder. The ladder was the sole means of access from the ground to the third floor for ironworkers.  The Iadderway opening was in use and was not protected by standard railings, standard toeboards, or any perimeter guarding whatsoever.  Employees were exposed to a fall of 27 feet through the hole erected by the opening (Tr. 19-22; Ex. C-4).  This evidence is undisputed.

Weyrauch testified that the hazard workers were exposed to was a possible 27-foot fall to dirt, material and rubble from a trench, and steel scaffolding, a hazard which would result in serious injury or death (Tr. 57-59).

Respondent's witnesses testified that the ladder had been in place one week (Tr. 102), but the opening was smaller, only 2-1/2 feet wide, prior to the day of inspection when cutting for the permanent flooring had begun (Tr. 102-103, 131).  Messrs, Tierney, McClendon, and Leadbeter, all Respondent witnesses with considerable industry experience, agreed that they had never seen a steel erector install a handrail or cable around an opening for an access way to a deck (Tr. 105, 134-136, 168).  Supervisor Lloyd Leadbeter also stated that a reasonably prudent employer in the steel erection industry in the Pittsburgh area would not recognize the necessity of a steel erector to install standard railings and toeboards (Tr.168).

Respondent denies the applicability of the standard, claiming Subpart R, the steel erection standard, specifically treats the subject of access openings in floors.  Subpart R only indirectly mentions access ways in 1926.750(b), however, in requiring that floors be solidly planked except for access openings.  Respondent reasons that since Subpart R requires tightly planked floors except for access openings, and also requires safety railings around the periphery of the floor, this excludes steel erectors from being required to place guardrails around openings.  Respondent claims a reasonable employer would find in Subpart R permission to leave access ways unguarded.

However, to assume that the steel erection industry is not required to guard open ladderways is taking liberty with the spirit of the Act and an application of loophole logic.  The Subpart R standards do not address the issue of protection of workers from the hazard of falling into unguarded access openings.   Complainant is correct in arguing that since 1926.750(b) does not deal with protection of employees from this hazard of falling through access openings, reference to the construction standards pertaining generally to openings is necessary.

The Act provides in 1910.5(c)(2) that to the extent that a particular standard does not apply (giving as an example Subpart R, the specific standard in question in the case at bar), more general standards apply.

The relevant provision, 29 C.F.R. 1910.5(c)(2), after requiring the priority of on-point specific standards over general standards, states:

On the other hand, any standard shall apply according to its terms to any employment and place of employment in any industry, even though particular standards are also prescribed for the industry, as in Subpart B or Subpart R of this part, to the extent that none of such particular standards applies.  To illustrate, the general standard regarding noise exposure in 1910.95 applies to employment and places of employment in pulp, paper, and paperboard mills covered by 1910.261.

The rule of construction of 1910.5(c)(2) is that a general standard may apply, even if a particular standard is also prescribed for the industry, to the extent that the particular standard is inapplicable.  Bristol Steel & Iron Works, Inc., 77 OSAHRC 181/D6, 5 BNA OSHC 1940, 1977-78 CCH OSHD 22,240, OSHRC Docket No. 14537 (1977).  In Bristol, Commissioner Cleary held:

I agree with the Administrative Law Judge that the steel erection standards were not intended to cover all situations related to steel erection.  In other words, Subpart R contains some specific steel erection standards.  It does not contain comprehensive rules for steel erection, or rules covering work incidental thereto.  This is why the rule of construction in 29 C.F.R. 1910.5(c)(2) should be applied.

Respondent argues that the standard is ambiguous and, therefore, custom and practice in the industry in the Pittsburgh area is most significant and a "reasonable man" test should be applied.  However, 1926.500(b)(2) is clear in its language and applicability is in order.  Federal law takes priority over local practice.

Complainant reasons that since 1910.5(c)(2) and Bristol Steel and Iron Works, supra, support the applicability of the standard, the two remaining elements for establishing a violation are:  Employer failure to comply with the standard and employee access to the hazard resulting from the violation Anning-Johnson Company, supra.  Since the facts that the standard were not complied with and workers had access to the danger of a 27-foot fall are undisputed, Respondent was in violation of the cited standard.

Serious Citation No. 2 alleges a violation of 29 C.F.R. 1926.28(a) or, in the alternative, 1926.105(a).  The inspecting compliance officer, James Weyrauch, observed two employees tightening bolts on the structure on beam B-16 between columns C-7 and C-13 at the inspected worksite.  To their left side was a deck 22 feet below; to their right side was concrete 50 feet below (Tr. 23, 86; Ex. C-5).

Complainant alleges that these employees should have been tied off to beams or to a static line to reduce the potential hazard of these workers falling.  Adams Steel's failure to provide lanyards and a static line to tie off on is the basis of the alleged personal protective equipment violation, 29 C.F.R. 1926.28(a), which reads:

1926.28 Personal protective equipment.

(a) 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.

In the alternative, if such protective equipment is deemed to be impractical or to present a greater hazard, Complainant alleges 29 C.F.R. 1926.105(a) noncompliance because Respondent did not supply safety netting as an alternative safety precaution.

The safety nets regulation requires:  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.

Compliance Officer Weyrauch testified that an employee fall of 50 feet would result in serious injury or death (Tr. 25-26). Although both employees observed (Ex. C-5) were wearing safety belts, there were no lanyards or static line and if a static line had been erected above the beam, the employees could have tied off to the line as a protection against falling.  Weyrauch testified that the employees could have tied off to the beam they were working on, to the previous relief angles they had just put in, to the bolt hole (with a connector's lanyard), or to a static line (Tr. 26-27).  Weyrauch also suggested that the fifth floor perimeter guardrail could have been used as a static line with an O-ring attached to the lanyard end for ease of movement (Tr. 77-79).  Weyrauch also admitted on cross-examination, however, that the fifth floor had no safety railing and no flooring.  Respondent's counsel tried to establish that since there was no flooring, no railing was required or supplied, and thus a perimeter safety railing could not practically be used as a static line (Tr. 78-79).

Weyrauch admitted scaffolds, ladders, catch platforms, and temporary floors were impractical as protection against injury from falls to the outside of the building (Tr. 27-28).  Weyrauch also testified that there were no safety nets in use at the inspected worksite (Tr. 27).

Respondent's employee, Robert Tierney, claimed it would be more of a problem to tie off to the relief angle than not to tie off. Because the beam was 30 or 33 inches deep and 12 inches wide, 42-45 inches of the 6-foot lanyard would be consumed by tying off itself.  This would necessitate the worker bending over several feet and would have been neither practical nor feasible (Tr. 107-108).

Tierney testified that the workers were bolting up either two or four bolt holes, a process which took "about a minute," followed by movement 4 or 5 feet to the next position.  Tierney said the only bolt holes available were the ones the workers were filling with bolts, so that it is obvious you cannot tie off to the same bolt holes you are bolting up (Tr. 109-110).

Tying off to the beam is also impractical, according to Tierney, because the beam is 84 or 90 inches in circumference and the lanyards are only 72 inches long (Tr. 110-111).

Tierney also found Weyrauch's suggestion of tying off to a static line from a perimeter railing impractical.  Since there was no temporary floor, there was no perimeter railing around the temporary floor.  Tierney testified he had never seen a railing where there was no floor (Tr. 111).

Tierney did admit, however, that there had been scattered temporary decking on the fifth floor prior to the inspection day (Tr. 126-127).

Foreman McClendon agreed with Tierney on several points:  It was 4 or 5 feet between work positions, the lanyards were too short to reach around the beams, and tying off to the bolt holes was impossible since the workers were engaged in the very act of filling those bolt holes with bolts (Tr. 137-139).  McClendon said the bolting up process took 1 to 3 minutes, which was less time than it would take to tie off (Tr. 138-139).  McClendon testified that he had never seen a perimeter safety railing used as a static line (Tr. 139).

Respondent's superintendent, Lloyd Leadbeter, said that tying off to either the relief angle or the beam was more dangerous than simply straddling it (Tr. 171, 173).  He testified that the lanyard and a bolt could not both fit into a bolt hole (Tr. 172).  Leadbeter also testified that a perimeter wire static line would be impractical because workers as they stood up would have been "into the cable" (Tr. 176-177).

Complainant counters that an employee bumping his head is not a greater danger than an employee working without protection from falling.   Complainant maintains that the greater hazard defense fails since a knot on the head is a less serious injury than the injury resulting from a fall of 50 or 22 feet.

However, workers would be subjected to more serious harm than a bump on the head; workers could be bumped, knocked down, or entangled by the connecting, disconnecting, and wearing of the safety belt-lanyard-static line-perimeter railing apparatus. The greater hazard claim of Respondent has not been dispelled and the practicality of static lines is doubtful.  Complainant's suggestion of a second perimeter railing being installed above the normal railing (at a greater height) is also impractical.  Under any of the suggested means of tying off - to the beam, relief angle, bolt hole, or static line from perimeter railing - tying off is impractical.

Complainant maintains that in the event 1926.28(a) safety measures be deemed impractical, 1926.105(a) has been violated because Respondent has not supplied safety nets.

Respondent's argument that both 1926.28(a) and 1926.105(a) are vague and impossible to comply to, and therefore inapplicable, lacks merit.  Adams Steel claims the standards are ambiguous and imprecise, but the standards' language is clear and implicit in its prescription of applicability.  Respondent claims that in the event of a citation under an ambiguous standard, custom and practice in the industry should prevail.  However, local industry custom does not prevail as against a specific Federal standard.

Respondent also argues that 1926.105(a) is inapplicable because Subpart R, the more specific steel erection standards section, applies.  Adams Steel contends that 1926.750(b)(2)(i), in Subpart R, requires only a tightly planked and substantial floor. Respondent argues that 1926.105(a) is ambiguous because safety nets are required only where alternate protection is impractical.  In the case at bar, Respondent maintains the employer had a floor within two stories or 25 feet of employees, as required by the steel erection standard, and this suffices as a valid form of fall protection as required.

However, Respondent's reliance for this argument is on the critically distinguishable facts of Southwestern Industrial Contractors and Riggers, Inc., 77 OSAHRC 95/E9, 5 BNA OSHC 1631, 1977-78 CCH OSHD 22,840, OSHRC Docket No. 14424 (1977).  In Southwestern, the employer had safety belts in use as a form of fall protection already, so that safety nets were not required.  The safety belts in use protected Southwestern's employees against harm from falls on the interior and exterior of the structure.  In the case at bar, Respondent's argument that temporary flooring is a valid substitute for the use of safety nets ignores the hazard of falls on the outside of the structure.

Although temporary flooring protects high steelworkers against falls to the interior sides of the building structure, absolutely no protection against falls on the outside perimeter of the building was provided by Adams Steel.  As Complainant points out, an employee falling in the "wrong" direction, to the outside of the structure, would fall 50 feet to the ground below.

Complainant relies on precedent to show that 1926.105(a) is applicable when personal protective equipment is impractical under 1926.28(a).  Roanoke Iron & Bridge Works, Inc., 77 OSAHRC 74/C9, 5 BNA OSHC 1391, 1977-78 CCH OSHD 22,522, OSHRC Docket No. 10411 (1977), Cornell & Company, Inc., 77 OSAHRC 18/D10, 5 BNA OSHC 1018, 1977-78 CCH OSHD 21,532, OSHRC Docket No. 9353 (1977).  Particularly on point is the Cornell holding that Respondent was "required under the terms of Sec 1926.105(a) to protect its employees by erecting safety netting on the outside perimeter of the building."

Other-than-Serious Citation No. 3 alleges a violation of the Act for noncompliance with 29 C.F.R 1926.100(a) because an employee of Respondent was not wearing a hard hat and was exposed to the potential harm which would result from being struck by falling materials.

The relevant statute requires:

1926.100   Head protection.

(a) Employees working in areas where there is a possible danger of head injury from impact, or from falling or flying objects, or from electrical shock and burns, shall be protected by protective helmets.

The employee shown in Exhibit C-7 is not wearing a hard hat and is "standing directly beneath the man working on beam-16," according to the inspector (Tr. 35).  The employee, foreman McClendon's son, was employed as an apprentice and was carrying ice as part of his duties as a "go-fer" (Tr. 115).  Respondent's witnesses testified that the employee was "maybe five feet" (Tr. 114) and "about ten feet away from the building" (Tr. 140).  The employee's father, foreman McClendon, testified that his son had long hair, didn't "get along" well with his hard hat, and "would take it off every chance he could." (Tr. 140-141).

Complainant argues that since this employee was directly under or near the perimeter of the building and was without a hard hat, Respondent was in violation of the cited standard.

Respondent argues that there is no violation because (1) the employee was not working, and (2) he was not in a place where there was a possible danger of head injury from impact or from falling or flying objects.

Respondent points out that the employee depicted in Exhibit C-7 was merely standing near the street smoking a cigarette.  He was carrying ice for a water bucket and looked as if he were calling up to people to see if they wanted coffee, to which his father, the foreman, attests "he is not doing much work..." (Tr. 140).  Respondent claims this leads to the factual dispute -- was the employee working?--since the standard only applies to "employees working" in areas where danger exists.

However, the presence of the employee in an area of exposure to hazard is enough; he doesn't have to be actively working.  We need not assume that employees momentarily inactive are excluded from coverage of the standard regardless of exposure to the hazard.  The standard's language, "employees working," simply means "on the job" and if the employee is on the worksite, it is spurious reasoning to rationalize exemption from the standard because he is on "break."

Respondent also argues that the employee is not in a position of danger since its witnesses testified that the employee was 5 or 10 feet away from the building's perimeter.  Complainant's witness, the inspecting officer, testified that the employee was right under a beam being worked on, and Exhibit C-7 appears to bear this out.

Regardless of the dispute as to distance of the employee from the building's, outside perimeter, whether 10 or 5 feet or less, he is still an employee working on the worksite without wearing a hard hat.  It is enough to be near the perimeter of the building, not directly under, to be exposed to the hazard the standard seeks to rectify.  The regulation contemplates the entire worksite and it is Respondent's duty to ensure that the exposure to the hazard is minimized, especially for an employee whom the foreman knows "would take off (his hard hat) every chance he could." (Tr. 141).

Harassment Issue

Respondent argues that the six inspections of Adams Steel construction sites are invalid because they were in response to the complaints of anonymous caller(s), and the informant(s) who, aided by OSHA, were engaged in a program of intentional harassment of the Respondent.

In the Ninth Defense in its Answer, Respondent contends that the inspection is invalid because (1) it was in response to a person other than an employee or his representative and (2) the non-employee informer was engaged in intentional harassment.  Respondent motioned to suppress all evidence (Tr. 4), and later motioned twice for involuntary dismissal (Tr. 89, 192).

Adams Steel objected to the series of inspections and the administrative policy elucidated in Field Information Memorandum No. 76-20, which represents an intent to inspect all but the clearly frivolous complaints, including anonymous complaints, and to give priority to steel erection site complaints because of the high hazard of this work.

Respondent considers the series of Adams Steel worksite inspections, totaling six inspections within 33 days, unreasonable and therefore beyond the reasonableness prescribed in Section 8(a) of the Act.  Section 8(a) gives the Secretary inspection authority during reasonable times, within reasonable limits and in a reasonable manner.

Section 8(a) of the Act provides that:

Inspections, Investigations, and Recordkeeping

Sec. 8. (a) In order to carry out the purposes of this Act, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized--

(1) to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work as performed by an employee of an employer; and

(2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee.

Respondent maintains that the six inspections from September 23 to October 26, 1977, transcend this statutory authority and constitute harassment of the Respondent which Adams Steel alleges to be both unwarranted and illegal.  The schedule of anonymous telephone complaints and subsequent OSHA inspections of Adams Steel's plants totaling six inspections within a five-week period is as follows:

Plant Date of Anonymous Call Date of Inspection
Prudential Building
(the site at which
inspection is at bar)
September 21, 1977 September 23, 1977
L. B. Foster Project September 19, 1977 September 23, 1977
U.S. Steel Supply October 6, 1977 October 11, 1977
Bridgeville Bridge October 6, 1977 October 12,1977
Robinson Township Project October 18, 1977 October 20, 1977
Beaver County Medical
Center
General schedule inspection* October 26, 1977


*A sewer contractor on the job site was named in a complaint received by OSHA, and all contractors and subcontractors on the site, including the Respondent, were subsequently inspected.

Respondent argues that Section 8(f),[[1/]] unlike the general inspection provision Section 8(a), requires that the Secretary determine there are reasonable grounds to believe such a violation or danger exists.   Respondent further points to Field Information Memorandum (FIM) No. 76-20[[2/]] and its consideration of the handling of Section 8(f) complaints.  Paragraph 3(g) of FIM No.76-20 lists some exceptions to the general rule of the memorandum's policy to conduct the inspection without regard to source or adherence to Section 8(f) formality.  One of these exceptions is "if there is compelling evidence to indicate that the complaint procedure is abused by groups or individuals for purposes other than safety and health matters."  Harassment certainly is not a safety or health matter and would be a proper reason for non-response to complaints if it was clearly determined that the purpose of such complaints was harassment of an employer.  However, it has not been shown by Respondent that the series of six Adams Steel inspections, given the hazardous nature of the industry, constitutes "compelling evidence" that the complaint response process has been abused.  The facts do not bear out the contention that anyone, let alone an employee, was engaged in a program of intentional harassment of the Respondent.

The Complainant maintains that in relation to worker safety, the steel erection industry is one of the "highest hazard" of all American industries, citing the Bureau of Labor Statistics discussed at the hearings (Tr. 339-341) to bear this out.  The Pittsburgh Area Office, like several other Region III offices, ranks complaints on a system of three priorities with "serious" being the highest priority assigned.  Complaints dealing with Steel erecting contractors are always given a "serious" designation with the intention to inspect within 3 days of the complaint (Tr. 328-330).

The Secretary points to the number and severity of worker injuries in the steel erection industry as justification for the quick and thorough response to complaints in this area and as strong policy against ignoring such complaints.

Charles Straw, OSHA's Pittsburgh Area Director, testified that "(i)f somebody reports an unsafe condition at a workplace, we cannot afford to ignore that simply on the basis that it may or may not be valid...(b)ecause somebody may suffer serious injury or death as a result of our ignoring the complaint" (Tr. 355).

OSHA argues that public policy favors inspection over non-response since lives are at stake.  The possibility that too frequent or inconvenient inspections of a business' worksite may occur is overbalanced by the hazardous nature of the industry.  Because of these dangers, the need for assured worker safety is greater, as is the compulsion to respond to complaints.

Complainant's further evidence is not only as to the need, but also as to the routineness of response to anonymous complaints.

OSHA's operations officer for the Pittsburgh area, William Mason, testified that his office received 1,400 safety and health complaints in 1976 and all of them, excepting the clearly frivolous, lead to inspections (Tr. 358, 360-361).  Charles Straw's testimony that between 20 and 25 percent of the complaints received at the Pittsburgh office are anonymous phone calls (despite attempts to ascertain informant's names) (Tr. 331-332) indicates that the Prudential Building inspection, which the Respondent alleges to be intentional harassment, is only one of over 300 inspections a year which that office routinely conducts in response to anonymous complaints.

Since all serious complaints are followed up, and all steel erection firms are inspected quickly after a complaint is received, the issue as to the source of the complaint is rendered moot.  Regardless of anonymity, each Adams Steel complaint would have been followed through by an inspection.

Straw also testified on behalf of Complainant as to the infeasibility of requiring informants to supply their names to OSHA before complaints are responded to.  He said that requiring names would reduce both the number of complaints received and the effectiveness of OSHA's safety program (Tr. 354).

Complainant contends that informants call anonymously because of fear of employment discrimination despite advisement of their rights and the protection of Section 11(c) of the Act[[3/]], and efforts by OSHA personnel to ascertain the identity of callers (Tr. 331-333).

The proof does not establish harassment.  Complainant's proof left unfettered the longstanding premise that anonymous calls are a valid basis for industrial searches under Section 8(a) of the Act.  Section 8(a) gives the Secretary the right to inspect.  This section begins "(i)n order to carry out the provisions of this Act."  Since the Act's first words are "(t)o assure safe and healthful working conditions for working men and women," the purposes of this Act are clear.  Since nearly all witnesses agreed that it is a high-hazard occupation, it is not unreasonable for the Secretary to give priority to complaints, even anonymous complaints, in this occupational field.

OSHA is not only entitled to inspect, but in the case of high safety-risk industries such as this, the statute demands timely and efficient response to complaints.

Respondent complains that OSHA policy opens it to anonymous complaints by competitors, estranged wives, and nonunion contractors (Tr. 344).

Anonymous complaints are not the same as employee complaints and cannot be assumed to be so.  Therefore, Section 8(f), and any arguments pursuant thereto, are inoperable in this case.  Employees are not known to be the informants and logically can only be considered a subgroup of the callers.

Regardless of the source of the complaint, Respondent, in a high worker safety-risk industry, was inspected and issued three citations, two of them serious.

Respondent cites the Congressional Record as quoted in Aluminum Coil Anodizing Corporation, 77 OSAHRC 70/A2, 5 BNA OSHC 1381, 1977-78 CCH OSHD 21,789, OSHRC Docket No. 829 (1977) as showing the Secretary is aware of the potential for harassment, including harassment by competitors.  The passage notes "we (Congress) have seen very few cases wherein it might conceivably be said there was a harassment factor involving either labor or business."  However, contrary to Respondent's contention, this supports the proposition that the Secretary is complying with Congress' expectations, and abuse of the standard for harassment is uncommon.

Since the identity of the caller(s) is unknown, the issue is properly framed as whether the inspections were reasonable under Section 8(a) of the Act, not Section 8(f).  The formality requirements of Section 8(f) or the judiciousness of FIM No. 76-20 are not at issue.  What is at issue is whether the Prudential Building inspection in particular, and the series of six inspections in general, are a reasonable and valid exercise of OSHA authority to inspect.

As to the Section 8(f) employee complaints provisions, the specification of employee status renders this section inapplicable to the facts of this case.  At no point was it shown that the complaints received were from employees of the Respondent and there is no reason to believe, absent such proof, that the anonymous caller(s) were necessarily either employees or employee representatives.   In discussing its contention that there is no evidence that a former employee made any of the calls, Respondent readily admits "it appears agreed that anyone could have made these complaints."  Since Section 8(f) is inapplicable, the proper standard to use to measure the validity of the inspections is Section 8(a).  Like Section 8(f), FIM No. 76-20 and any purpose it may have or duty it may create is inappropriate as the measure of inspection validity.

Complainant relies on Aluminum Coil, supra, in which the Commission held:

The identity or purpose of the individual responsible for making the complaint does not alter the fact that the Secretary is broadly authorized by subsection 8(a) to conduct inspections.

This holding was reaffirmed by the Commission In Robberson Steel Company, 78 OSAHRC 21/C14, 6 BNA OSHC 1430, 1977-78 CCH OSHD 22,603, OSHRC Docket Nos. 76-4636 and 76-4637 (1978).

In Aluminum Coil the complaint received was from a non-employee, which may or may not be the case here.  The Commission in Aluminum Coil barred subsequent Respondent's evidence, proposed to show the informer's intent was to harass, because "(t)he purpose of the individual does not affect the validity of the inspection."  The Commission held that the Section 8(a) general authority to inspect "is not limited by the special inspection provision of subsection 8(f)."

Based on this recent, unanimous Commission policy, Complainant here argues that the identity or purpose of a caller is irrelevant to any inquiry as to the OSHA inspection's legality.  Aluminum Coil supports Complainant's argument that the Secretary may exercise his authority to respond to complaints not meeting the Section 8(f) formality requirements.  The inspection in this case was made pursuant to the Secretary's general inspection authority.

The record evidences Complainant's good faith and does not bear out Respondent's contention that the OSHA inspections reached an unbiased level.  The disagreement concerns whether six inspections in five weeks are reasonable under the circumstances.  These circumstances favor the validity of the inspection:  OSHA's broad authority under Section 8(a) to conduct inspections, relied upon by Complainant with reference to Aluminum Coil Anodizing Corporation, supra, and Robberson Steel Company, supra; the high-hazard nature of the industry and priority given by OSHA to complaints concerning steel erection; the prevalence of both anonymous complaints and subsequent inspections; and the public policy heavily favoring the concerns of protecting worker safety and lives over employer convenience, accommodation, and freedom from determination of compliance.  The inspections were routinely authorized and conducted within the requirements of Section 8(a).

Constitutional Issue

Adams Steel contends that the Occupational Safety and Health Act of 1970 is unconstitutional because it violates the Fourth, Fifth, and Sixth Amendments to the Constitution.  Respondent argues that the citations are invalid based on these constitutional grounds in the Third Defense of its Answer and in motions for involuntary dismissal at the conclusion of evidence presented by both Complainant (Tr. 89) and Respondent (Tr. 192-193).

These arguments must be discounted, however, since the Commission is not an Article 3 court and, therefore, cannot decide constitutional issues.

Precedent makes it clear the Review Commission lacks authority to determine constitutional issues.  The Commission has no jurisdiction over issues which question the constitutionality of the Act itself.  This was announced in Secretary of Labor v. Grebb Electric Company 74 OSAHRC 63/C10, 1974-75 CCH OSHD 18,567, OSHRC Docket No. 3552 (1974) which held, "judges of this Commission have no authority to rule on issues which involve direct attacks upon the constitutionality of provisions of the Act." Grebb Electric cites Public Utilities Commission of California v. United States, 335 U.S. 534, 78 S. Ct. 446 (1958) and Secretary of Labor v. American Smelting and Refining Company, 76 OSAHRC 5/A2, 3 BNA OSHC 1992,1975-76 CCH OSHD 20,345, OSHRC Docket No. 10 (1975).  The Court in Public Utilities Commission of California v. United States, supra, held that not only direct attacks on the Act's constitutionality, but also indirect constitutional questions are not within the province of the Commission's discretion.   Only when "an administrative proceeding might leave no remnant of the constitutional question" may it apply administrative remedy; otherwise, judicial relief should be sought.

Substantial additional precedent states that the Review Commission lacks authority to decide constitutional questions.  Secretary of Labor v. Colorado Pipe Lines, Inc.; 75 0SAHRC 23/A2, 3 BNA OSHC 1865, 1975-76 CCH OSHD 20,251, OSHRC Docket No. 2805 (1975); Secretary v. Garland Call Pole Company; 75 OSAHRC 57/E12, 3 BNA OSHC 1188, 1974-75 CCH OSHD 19,603, OSHRC Docket No. 2028 (1975); Secretary v. Heede International Inc., 75 OSAHRC 26/C9, 2 BNA OSHC 1466, 1974-75 CCH OSHD 19,182, OSHRC Docket No. 1889 (1975); Secretary v. Marino Development Corporation, 74 OSAHRC 73/B12, 2 BNA OSHC 1260, 1974-75 CCH OSHD 18,825, OSHRC Docket No. 1040 (1974).

Furthermore, there is sufficient precedent in the Federal courts upholding the constitutionality of the Occupational Safety and Health Act of 1970 and holding that employers are not denied due process because the Secretary inspects, cites, and penalizes as a final order absent a challenge.  Atlas Roofing v. Occupational Safety and Health Review Commission, 97 S. Ct. 1261, 518 F.2d 990 (1977) and Lake Butler Apparel Company v. Secretary of Labor, 519 F.2d 84 (5th Cir., 1975).  Civil penalties are not penal in nature and, therefore, are not invalid because the Act does not provide for the constitutional protections given criminal defendants by the Constitution.  Atlas Roofing, supra; Lake Butler Apparel Company, supra.  Although its full impact is yet to be seen, the Supreme Court's holding in Marshall v. Barlow's, Inc., 98 S. Ct. 1816 (1978) concerns only inspections where the employer refused consent to the search and denied entry, which did not occur in this case.

Nonetheless, it is clear that this proceeding has no jurisdiction over, and cannot determine, constitutional issues.

Respondent is a relatively large steel erector in the Pittsburgh, Pennsylvania area.  Previous violations or employee injuries have not been shown.  In the past, it should be noted, Adams Steel has demonstrated a safety program and significant concern for the safety of its employees.  Use of safety nets around building perimeters is uncommon in the industry.  Therefore, Respondent should not suffer a large penalty simply because it is one of the first employers to be determined in violation of the general standard 29 C.F.R. 1926.105(a).

FINDINGS OF FACT

1.  Adams Steel Erection, Inc., is a corporation headquartered in Kittaning, Pennsylvania which conducts its principal business activities in the Pittsburgh, Pennsylvania area.

2.  The inspection of the Prudential Building was in response to an anonymous complaint received at the Pittsburgh Occupational Safety and Health Administration Office.

3.  The inspection was one of six inspections of Adams Steel worksites conducted within a 5-week period.  All six inspections were conducted pursuant to anonymous telephone call complaints.

4.  Of all American industries, the steel erection industry is one of the most hazardous to employees.

5.  The inspection took place at what Section 8(a)(1) of the Act describes as a "construction site . . . where work is performed by an employee of an employer."  The physical inspection itself was within the limits prescribed in Section 8(a)(2), having been conducted "during regular working hours" and within reasonable limits and in a reasonable manner."

6.  Employees working at an elevation of greater than 25 feet above the ground are exposed to a substantial risk of harm from falling.

7.  No wire rope or other safety railing was in place around the third-floor perimeter.

8.  Three employees were observed working on the third floor of the Prudential Building structure at a height of 27 feet above the ground.

9.  An employee falling over the outside perimeter of the building would have suffered serious injury or death.

10.  The third floor was between 70 and 85 percent converted from temporary to permanent flooring.

11.  The safety railing around temporary flooring statute, 29 C.F.R. 1926.750(b)(1)(iii), is sufficiently clear and precise, and gives employers fair notice so as to be enforceable.

12.  The Prudential Building was still in the steel erection stage and installation of permanent flooring was not yet completed at the time of inspection.

13.  The ladder in issue was in use at the time of inspection, was the sole means of access from the ground to the third floor, and ascended through a third-floor opening unprotected by railings, toeboards or any similar safety guards.

14.  An employee falling 27 feet through the opening to the ground would have suffered serious injury or death.

15.  Subpart R does not, by omission of addressing the subject, permit steel erectors to leave access ways unguarded.

16.  General standards apply to the extent that particular standards are inapplicable.

17.  An employee falling 50 feet over the outside perimeter of the building would have suffered serious injury or death.

18.  It was not practical or of likely utility for Adams Steel employees at the Prudential building to tie off to beams, relief angles, bolt holes, or static lines.

19.  It was not practical or of likely utility for Adams Steel employees at the Prudential Building to use scaffolds, ladders, catch platforms, or temporary floors as safety devices to protect against the dangers of outer perimeter falls.

20.  Both 29 C.F.R. 1926.28(a) and 1926.105(a) are sufficiently clear and precise, and give employers fair notice so as to be enforceable.

21.  Respondent did not provide safety nets or other protection against outside perimeter falls.

22.  Safety nets were practical and useful as safety device which could have been employed at the Prudential Building to protect workers against the dangers of falling.

23.  There was need for safety nets on the outside perimeter of the structure since employees were working on or near the outside perimeter and were subject to outside perimeter falls of 50 feet.

24.  The employee depicted in Exhibit C-7 was in close enough proximity to the structure so as to be exposed to possible head injury from impact or from falling or flying objects.

25.  The employee depicted in Exhibit C-7 was "working" for the purposes of 29 C.F.R. 1926.100(a), even though he is momentarily inactive.

26.  The complaints were anonymous and, therefore, it is unknown whether the complaints were made by employees, non-employees, or both.

27.  Both anonymous complaints and subsequent inspections are routine and common.

28.  The Secretary has broad authority to inspect under Section 8(a) of the Act.

29.  Respondent has an excellent safety record in the past and is participating in employee safety protection.

CONCLUSIONS OF LAW

1.  Adams Steel Erection, Inc., comes within the jurisdiction of Section 10(c) of the Occupational Safety and Health Act of 1970.

2.  Citation No. 1 was amended to reduce the proposed penalty of the two items from $800 to $420 each.

3.  Citation No. 2 was amended to reduce the proposed penalty from $2,000 to $840.

4.  Citation No. 2 was amended to be classified as "Serious" instead of "Repeated."

5.  The Secretary of Labor has validly exercised his authority under Section 8(a)(2) "to inspect and investigate during regular working hours. . . and within reasonable limits and in a reasonable manner ..." places of employment.  Inspections of the Adams Steel construction sites are authorized by the Act and were reasonable and valid as performed thereunder.

6.  The Commission is not an Article 3 court and cannot rule on constitutional issues.

7.  Section 8(f) of the Act is inapplicable to the facts of this case since it is unknown who made the complaints and an employee provision cannot be applied based on an unfounded assumption.  Section 8(a)'s general inspection authority is the applicable statute governing the inspections.

8.  Local custom and practice in an industry or trade does not prevail as against a specific Federal standard.

9.  Adams Steel has violated 29 C.F.R. 1926.750 (b)(1)(iii) by failing to supply a safety railing around the periphery of the third floor.  The standard is applicable to the facts of this case and compliance is feasible.

10.  Adams Steel has violated 29 C.F.R. 1926.500(b)(2) by failing to protect workers from the dangers of an open ladderway by supplying standard railings and standard toeboards.  Employees had access to the hazard and Respondent failed to comply with the standard which is applicable under the facts of this case.

11.  Adams Steel is not in violation of 29 C.F.R. 1926.28(a) requiring personal protective equipment where there is exposure to hazardous working conditions because the installation and use of static lines or lanyards are rendered infeasible by the dangers to which installation and use would subject workers.  Tying off not only was impractical, it would have created a greater hazard than the risks involved in nonuse.  Under the facts, tying off to a beam, relief angle, bolt hole, or static line are all infeasible.

12.  Adams Steel has violated 29 C.F.R. 1926.105(a) by failing to install safety nets which is Respondent's duty in view of the infeasibility of the use of personal protective equipment.  Section 1926.105(a) requires safety nets to be provided when work places are more than 25 feet above the ground and Adams Steel has clearly failed to meet this requirement, subjecting its workers to possible unprotected falls of 50 feet.

13.  Adams Steel has violated 29 C.F.R. 1926.100(a) because an employee of Respondent while working was observed not wearing a hard hat and was exposed to danger from being struck by falling materials.

ORDER

1.  Serious Citation No. 1, Item 1, alleging a 29 C.F.R. 1926.750(b)(1)(iii) violation, is affirmed.

2.  Respondent is assessed a penalty of $420 for the 29 C.F.R. 1926.750(b)(1)(iii) violation.

3.  Serious Citation No. 1, Item 2, alleging a 29 C.F.R. 1926.500(b)(2) violation, is affirmed.

4.  Respondent is assessed a penalty of $420 for the 29 C.F.R. 1926.500(b)(2) violation.

5.  Serious Citation No. 2 is partially vacated and partially affirmed.  The serious violation of 29 C.F.R. 1926.28(a) is vacated; the alternative serious violation of 29 C.F.R. 1926.105(a) is affirmed.

6.  Respondent is assessed a penalty of $50 for the 29 C.F.R. 1926.105(a) violation.

7.  Other-than-Serious Citation No. 3, alleging a 29 C.F.R. 1926.100(a) violation, is affirmed.

8.  Respondent is not assessed a penalty for the Other-than-Serious violation of 29 C.F.R. 1926.100(a).

HENRY F. McQUADE
Judge, OSHRC
Dated:  April 25, 1979

Hyattsville, Maryland


FOOTNOTES:

[[1]] Commissioner Wall would additionally find that the general contractor consented to the inspection and that its consent was binding on Adams Steel.  The compliance officer informed the general contractor of the purpose of his inspection; he presented his credentials and a copy of the transcribed safety complaint.  The response of the general contractor was to gather together the inspection party.  Commissioner Wall therefore infers that the general contractor gave its voluntary consent to the inspection.   See Daniel Construction Co. of Alabama, 81 OSAHRC 71/A2, 9 BNA OSHC 2002, 2004 n.3, 1981 CCH OSHD 25,553, p. 31,861 n.3 (No. 13874, 1981)(voluntary consent found where employer had no intent to object to entry at time of inspection and OSHA did not misrepresent itself or coerce the employer).  That consent bound Adams Steel.  The relationship between these two employers was the typical general contractor/subcontractor relationship common to nearly all of the multiple-employer, construction-worksite cases the Commission has adjudicated.  Adams Steel's work area was not a discrete or private area.  Instead, it was an open area consisting of the third-floor decking and structural steel above the third floor.  Commissioner Wall therefore finds that the general contractor shared authority with Adams Steel over the area in question so that it could give effective consent to an inspection of this area.  See Donovan v. A.A. Beiro Construction Co., 746 F.2d 894 (D.C. Cir. 1984) (general contractor's consent binding on subcontractor.)

[[2]] Section 8(f)(1) of the Act, 29 U.S.C. 657(f)(1), provides as follows:

(f)(1) Any employees or representative of employees who believe that a violation of a safety or health standard exists that threatens physical harm, or that an imminent danger exists, may request an inspection by giving notice to the Secretary or his authorized representative of such violation or danger.  Any such notice shall be reduced to writing, shall set forth with reasonable particularity the grounds for the notice, and shall be signed by the employees or representative of employees, and a copy shall be provided the employer or his agent no later than at the time of inspection, except that, upon the request of the person giving such notice, his name and the names of individual employees referred to therein shall not appear in such copy or on any record published, released, or made available pursuant to section (g) of this section.  If upon receipt of such notification the Secretary determines there are reasonable grounds to believe that such violation or danger exists, he shall make a special inspection in accordance with the provision, of this section as soon as practicable, to determine if such violation or danger exists.  If the Secretary determines there are no reasonable grounds to believe that a violation or danger exists he shall notify the employees or representative of the employees in writing of such determination.

[[3]] Section 8(a) of the Act, 29 U.S.C. 657(a), provides as follows:

(a) In order to carry out the purposes of this Act, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized--
(1) to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and
(2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee.

[[4]] OSHA uses the term "non-formal complaints" to refer to safety and health complaints that do not meet the "formality requirements" of 8(f)(1), note 2 supra.  At the hearing in Adams Steel I, OSHA Regional Administrator Rhone identified the following "formality requirements" for a 8(f)(1) complaint:  (a) it must be submitted by an employee or an employee representative, (b) it must describe its allegations with sufficient particularity, and (c) it must be signed.  Paragraph 3(f) of FIM 76 20 lists the following examples of "non-formal complaints":  complaints that do not state with reasonable particularity the nature of the violation, unsigned complaints, anonymous complaints, complaints received by telephone, and complaints filed by anyone other than an employee or an employee representative.

[[5]] Specifically, Adams Steel requested admissions that the complaint in this case had been made by Donald Gardner, who was neither an employee of Adams Steel nor a representative of its employees, and that this same person had also made an earlier complaint that led to the inspection of the L.B. Foster Building project.  The Secretary admitted that the complainant in this case was neither an employee nor an employee representative.  However, he further asserted that he did not know the identity of the complainant and that he therefore could neither admit nor deny that this complainant had filed other complaints or that this complainant was Donald Gardner.  The record contains no other references to Donald Gardner.

[[6]] The Secretary's regulation at 1910.5 is captioned "Applicability of standards."  It instructs employers as to which standards they must comply with when a situation appears to be governed by more than one standard.  The provision relied upon by Adams Steel states:

(c)(1) If a particular standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any different general standard which might otherwise be applicable to the same condition, practice, means, method, operation, or process . . . .

[[7]] The Secretary cites to the following provision of his regulations, which is also found in 1910.5(c):

(2) On the other hand, any standard shall apply according to its terms to any employment and place of employment in any industry, even though particular standards are also prescribed for the industry...to the extent that none of such particular standards applies....

[[8]] The case was tried before the judge on alternative theories, i.e., that the two employees should have been protected by tied-off safety belts under 1926.28(a) or that they should have been protected by perimeter safety nets under 1926.105(a).  The judge upheld only the charge under 1926.105(a).  He vacated the 1926.28(a) charge on the basis of his finding that it would have been impractical for the two employees to tie off.  The Secretary has not taken exception to the judge's disposition of the 1926.28(a) charge.

 

[[1/]] That section is set forth for reference purposes:

(f)(1) Any employees or representative of employees who believe that a violation of a safety or health standard exists that threatens physical harm, or that an imminent danger exists, may request an inspection by giving notice to the Secretary or his authorized representative of such violation or danger.  Any such notice shall be reduced to writing, shall set forth with reasonable particularity the grounds for the notice, and shall be signed by the employees or representative of employees, and a copy shall be provided the employer or his agent no later than at the time of inspection, except that, upon the request of the person giving such notice, his name and the names of individual employees referred to therein shall not appear in such copy or on any record published, released, or made available pursuant to subsection (g) of this section.  If upon receipt of such notification the Secretary determines there are reasonable grounds to believe that such violation or danger exists, he shall make a special inspection in accordance with the provisions of this section as soon as practicable, to determine if such violation or danger exists.  If the Secretary determines there are no reasonable grounds to believe that a violation or danger exists he shall notify the employees or representative of the employees in writing of such determination.

[[2/]] Paragraph 3(c) of the Field Information Memorandum No. 76-20, superceded December 1, 1977, requires "(w)henever information comes to the attention of the Area Director without regard to its source and without regard to whether it meets the formality requirements of Section 8(f), an inspection shall be conducted . . . ."

[[3/]] Section 11(c) of the Act provides that employees may not be discharged or discriminated against because they have "instituted or caused to be instituted any proceeding" under the Act.  "Any proceeding" includes inspections the "cause" of which may be anonymous complaints by employees.
Section 11(c) of the Act reads:

(c)(1) No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act.