SECRETARY OF LABOR,
Complainant,

v.

ADAMS STEEL ERECTION, INC.,
Respondent.

OSHRC Docket No. 77-4238

DECISION

Before:  ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.

BUCKLEY, Commissioner:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration.  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. 659(c).

Two citation items affirmed by the administrative law judge are before us on review.  The citations resulted from an OSHA inspection of a multi-employer construction worksite known as the Robinson Plaza Project in Robinson Township, Pennsylvania. Adams Steel Erection, Inc. ("Adams Steel") was the steel erection subcontractor on the project and its employees were engaged in structural steel erection work on a four-story tiered building.  For the reasons that follow in this and Chairman Rowland's concurring opinion, we conclude that both citation items must be vacated and accordingly we reverse the judge's decision.

I

The first item on review involves three ironworkers who were observed working on perimeter beams.  Two of these employees were working at the fourth level, which was forty feet above the ground and twenty feet above metal decking that had been installed as a temporary floor.  The third employee at issue was working on a different side of the building at the third level, which was thirty feet above the ground and ten feet above the temporary floor on the second level.  In his citation the Secretary alleged that Adams Steel had a duty under 29 C.F.R. 1926.28(a) to require the three employees to wear tied-off safety belts while working on the perimeter beams.  The judge found that this method of fall protection would have been impractical and vacated the citation.   In his brief on review, the Secretary expressly states that he is not challenging either the finding described above or the judge's disposition of the section 1926.28(a) charge.  The judge also found that an employee falling to the outside of the building would have fallen more than 25 feet to the ground below.  Based on this finding, he concluded that Adams Steel had a duty under section 1926.105(a) to install safety nets in addition to temporary floors.[[1]] Because Adams Steel did not install these safety nets, the judge affirmed the section 1926.105(a) charge.  Adams Steel's exception to the disposition of this citation item is before us on review.

Before the judge, Adams Steel presented several defenses to the section 1926.105(a) charge.  Among its defenses was its contention that citation to this general construction standard was inappropriate in the circumstances of this case because other standards were more "specifically applicable" within the meaning of 29 C.F.R. 1910.5(c)(1).[[2]]  In particular, Adams Steel argued that its duties were governed by 29 C.F.R. 1926.750(b)(2)(i) and that it complied with its obligations under this standard.[[3]]  This standard is contained in subpart R of the construction standards, which apply specifically to the steel erection industry.  Adams Steel correctly notes on review that the judge failed to rule on this defense even though it had raised this issue before the judge in a clear and timely manner.  For the reasons expressed in our separate opinions, Chairman Rowland and I agree with Adams Steel that its preemption argument has merit.

The Commission has previously considered the issue whether section 1926.750(b) is specifically applicable to steel erection work to the exclusion of section 1926.105(a) in Williams Enterprises, Inc., 83 OSAHRC 26/A2, 11 BNA OSHC 1410, 1983 CCH OSHD 26,542 (No. 79-843, 1983), petitions for review filed, Nos. 83-1687 & 83-1690 (D.C. Cir. June 23 and 24, 1983).  A divided Commission, applying differing rationales in three opinions, held that section 1926.105(a) was preempted by the fall protection standards contained in subpart R section 1926.750(b)(2)(i), with respect to some, but not all fall hazards.  But see Daniel Construction Co., 9 BNA OSHC 1854, 1858, 1981 CCH OSHD 25,385, p. 31,621, 31,624 (1981), aff'd, 705 F.2d 382 (10th Cir. 1983) (steel erection not governed by general industry fall protection standards in section 1926.105(a)).

Three courts of appeals have also considered this issue and reached differing conclusions.  Compare Daniel International Corp. v. Donovan, 705 F.2d 382, 386 (10th Cir. 1983) (because steel erection standards apply, conditions at worksite are not judged by general industry standards) [and] Builders Steel Co. v. Marshall, 622 F.2d 367 (8th Cir. 1980) (section 1926.750(b)(2) preempts application of safety net requirements of section 1926.105(a) with L.R. Willson & Sons, Inc. v. Donovan, 685 F.2d 664 (D.C. Cir. 1982) ("Willson I") (section 1926.750(b) does not preempt section 1926.105(a) for "exterior" fall hazards).[[4]]  The Third Circuit, in which this case arises, has not ruled on this issue.  However, the Secretary has taken the position before the Third Circuit that the net requirement of section 1926.750(b) is more specifically applicable to steel erection and prevails over section 1926.105(a), an argument the court cited with approval.  United States Steel Corp. v. OSHRC, 537 F.2d 780, 784 (3rd Cir. 1976).  Moreover, the rationale of at least one member of the Commission majority in Williams Enterprises differs from that of the court in Willson I and departs from past Commission precedent addressing the question of preemption.  A reexamination of the preemption issue is warranted therefore.

The portions of subpart R that Adams Steel contends are specifically applicable set forth certain types of mandatory fall protection methods (temporary flooring, scaffolds, safety nets) and establish a specific hierarchy governing their use.  The preferred method of fall protection, to be used unless it is "not practicable," is that provided by Adams Steel in this case, temporary flooring.  29 C.F.R. 1926.750(b)(2)(i). Safety nets are required under this standard "only if temporary flooring cannot be used and scaffolds are not in use."  Willson I, 685 F.2d at 672; 29 C.F.R. 1926.750(b)(2)(i) and 750(b)(1)(ii).  The general construction standard which the Secretary seeks to apply here, 29 C.F.R. 1926.105(a), mandates that "[s]afety nets shall be provided . . . where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical."  Thus, both the steel erection standards at section 1926.750(b) and the general construction standard at section 1926.105(a) are specific standards addressing fall hazards and setting forth particular protective methods.  In both standards, safety nets are alternative means of fall protection to be used when floors are impractical.  Williams Enterprises, 11 BNA OSHC at 1418, 1983 CCH OSHD at p. 33,878.

In attempting to answer the question whether the fall protection standards in section 1926.750(b) are more specifically applicable within the meaning of section 1910.5(c)(1) and take precedence over the general industry standards in section 1926.105(a), several rationales have emerged from the decisions, not all of which can be reconciled, either with each other or with past Commission precedent.  The Secretary's regulation at section 1910.5(c)(1) restates the general rule of statutory construction that the specific takes precedence over the general.  See, e.g., Clifford F. MacEvoy Co. v. United States, 322 U.S. 102, 107 (1941) (broad remedial purpose of statute does not justify ignoring words of statute and rule that specific language prevails over general).  As set forth in
that rule:  "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 . . . ."

Although not entirely consistent, the decisions do seem to share a common starting point: the proposition that general standards are not rendered inapplicable to "an entire industry simply because some specific standards for that industry have been promulgated." Willson I, 685 F.2d at 669.  See Williams Enterprises, 11 BNA OSHC at 1416, 1983 CCH OSHD at pp. 33,876-77.  This conclusion is mandated by the language of section 1910.5(c)(2): "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." 29 C.F.R. 1910.5(c)(2).  Application of this principle, however, does not answer the question at issue here.  The contention of Adams Steel is that the fall protection measures of section 1926.750(b) do apply to Adams Steel and the Secretary agrees.  Whether and on what basis the fall protection standards of section 1926.105(a) can be applied in addition is the point at which the decisions part company.

In Williams Enterprises two Commissioners agreed that section 1926.750(b) does not preempt section 1926.105(a) with respect to exterior falls and held that the Secretary could cite an employer for failing to provide safety belts to its employees.   The lead opinion relied on the decision in Willson I in distinguishing between exterior and interior falls.  In a concurring and dissenting opinion, the second member of this majority reasoned that a standard was not preempted in any instance in which it afforded "the greatest protection for employees."  Williams Enterprises, 11 BNA OSHC at 1421, 1983 CCH OSHD at pp. 33,881-82 (Cottine, Commissioner, concurring and dissenting).  A different majority rejected this rationale, however, holding that section 1926.750(b) preempted section 1926.105(a) with respect to interior falls and preempted section 1926.500(d)(1) with respect to exterior falls notwithstanding the greater protection afforded by these standards against a fall hazard.[[5]]

The Williams Enterprises decision, consistent with other Commission decisions, correctly rejected the argument that the sufficiency of the protection afforded by a standard is material to the determination of which standard is applicable under section 1910.5(c)(1). See also General Supply Co., 77 OSAHRC 6/A2, 4 BNA OSHC 2039, 1976-77 CCH OSHD 21,503 (No. 11752, 1977), pet. for review dismissed, No. 77-1614 (5th Cir. June 22, 1977); The Ashton Co., Inc., 76 OSAHRC 6/B11, 3 BNA OSHC 1968, 1969, 1975-76 CCH OSHD 20,351, p. 24,275 (No. 5111, 1976).  Cf. Daniel International, Inc., 82 OSAHRC 23/D3, 10 BNA OSHC 1556, 1559, 1982 CCH OSHD 26,033, p. 32,683 (No. 78-4279, 1982) ("To permit the Secretary to require further precautions under Section 5(a)(1) because his standards purportedly do not provide sufficient protection would circumvent the rulemaking process and is impermissible.")  Whether section 1926.105(a) is preempted does not depend, therefore, on the adequacy of temporary floors as a means of fall protection.

The court in Willson I applied a different rationale to reach the conclusion that section 1926.750(b) was not a more specifically applicable standard within the meaning of 1910.5(c)(1). Consistent with Commission precedent, the court initially set forth the rule under section 1910.5(c)(1) that a "general standard is not preempted unless a specific standard sets forth the measures that an employer must take to protect employees from a particular hazard." Willson I, 685 F.2d at 670.  See Dravo Corp. v. OSAHRC, 613 F.2d 1227, 1234 (3rd Cir. 1980) (An employer may be held to the general industry standards "in those situations where no specific standard is applicable.")  See also General Supply Co., 4 BNA OSHC at 2040, 1976-77 CCH OSHD at p. 25,806. The court, however, did not apply that rule.  By applying that rule in this case I reach a different conclusion than did the Willson I court.

Section 1926.750(b) is, of course, specifically applicable to the steel erection industry in general and to the work on the tiered building at this construction site in particular.  Both parties here, as well as the Commission and Willson court decisions, are in agreement that this standard sets forth measures that an employer must take to protect employees in situations where the employee may be exposed to a fall.   Both standards specify safety nets, the type of protection the Secretary seeks here, as alternative fall protection devices.  Moreover, it is undisputed that section 1926.750(b) specifies methods such as temporary flooring to protect against interior falls and methods such as scaffolds and perimeter safety railing to protect against exterior falls.  See Willson I, 685 F.2d at 671 (section 1926.750(b)(1)(iii) provides protection against exterior falls; scaffolds may protect against exterior falls); Williams Enterprises, 11 BNA OSHC at 1417, 1983 CCH OSHD at p. 33,878 (section 1926.750(b)(1)(iii) protects against exterior falls preempting section 1926.105(a)).   See also Daniel Construction, 9 BNA OSHC at 1858, 1981 CCH OSHD at p. 31,624 (1981) ("standards in section 1926.750 are intended to provide fall protection to workers engaged in structural steel erection"). These facts compel the conclusion that section 1926.750(b) specifically addresses the particular hazard of falls and sets forth the measures that an employer must take to protect employees from this particular hazard.   This is so whether the hazard is further subdivided by definition to distinguish interior from exterior falls.

The court in Willson I reached a different conclusion, however, by altering the test it stated under section 1910.5(c):

We believe both [the Secretary and the employer] have framed the issue too broadly.  The question is not whether subpart R provides any exterior fall protection standards, but rather whether it provides standards to guard against the particular exterior fall hazard for which Willson was cited.  [685 F.2d at 672 (emphasis in original).]

The court thus predicates preemption on facts peculiar to the particular circumstances leading to a citation.  An employer would not be able to determine what standards applied to his workplace under this test because his obligations would shift depending on the nature of the particular circumstances resulting in a citation.   Moreover, applying this rationale would preclude finding a general standard to be preempted by a more specific standard in any instance where the Secretary specifies less comprehensive safety methods that may not cover all of the myriad situations that develop on a worksite.  The Secretary's decision not to require particular methods of fall hazard protection in section 1926.750(b) should be given the same preemptive effect as the Secretary's decision to adopt a specific standard addressing the hazard.  If this is not done, the result may well be the application of general standards to situations that the Secretary has deliberately decided to leave unregulated, thereby impairing or even destroying the regulatory scheme developed in the rulemaking process.

The absence of a specific perimeter safety net requirement in subpart R may well have been the result of a deliberate decision by the drafters of subpart R not to require such protection because, for example, it would interfere with the steel erection process, it would negatively affect the stability of the building, it was unnecessary or it would lead to some other undesirable consequences.  As the Commission observed in Daniel Construction, 9 BNA OSHC at 1858, 1981 CCH OSHD at p. 31,624, interpreting these standards as cumulative produces the "illogical" result that steel erection may be "governed by more general standards not drafted with steel erection specifically in mind."  Moreover, the underlying assumption that less protection is afforded by standards in subpart R is an unfounded generalization.  Id. at 1858, n.8 ("compliance with 1926.750 may provide superior fall protection to steel workers than more general fall protection standards") (citations omitted).  Accordingly, it seems evident that "filling in" supposed "gaps" or "interstices" in a comprehensive regulatory scheme with general standards that were not developed for application to a particular work situation can and often will result in reversing a deliberate decision not to require certain protective measures in response to that particular situation.

This potential for adverse effects is illustrated by the circumstances of this case.   In adopting sections 1926.750(b)(1)(ii) and (b)(2)(i) the Secretary established a hierarchy of fall protection measures to be implemented during the steel erection process.   The preferred precautions are either the installation of temporary floors or the use of scaffolds.  Installation of safety nets is an acceptable, although less desirable, alternative to the preferred measures.  Nevertheless, in the case on review, the Secretary seeks to superimpose the general industry standard at section 1926.105(a) on top of the regulatory scheme in section 1926.750(b) so that Adams Steel would be required to provide perimeter safety nets in addition to the temporary floors it had already provided.

There is no question as to the authority of the Secretary to vary or alter the kind and level of protection to be required for employees in a particular industry, including a relaxation of the requirements.  Indeed, the Secretary revised section 1926.750(b)(2) in 1974 to allow temporary floors to be placed 30 feet below employees performing steel erection work instead of the existing 25 feet.  As the comments of the Assistant Secretary of Labor make clear, a relaxation of a safety requirement can be based on practical considerations peculiar to the steel erection industry.  39 Fed. Reg. 24,361 (1974) (The amendment serves "to bring a present standard in line with current designs in steel construction which involve the use of a greater depth of structural beam members.")  The Secretary was aware that the revised standard exposed employees to a greater fall distance than the original 25 feet set forth in 1926.750(b)(2) and more than the 25 foot fall specified in section 1926.105(a).  See 39 Fed. Reg. 24,361; Builders Steel, 622 F.2d at 369-70.  Such differences are justified by differences in the workplace.  Cf. S & H Riggers & Erectors, Inc. v. OSAHRC, 659 F.2d 1273, 1283 (5th Cir. 1981) (An unguarded perimeter is an "obvious danger of which roofers and concrete erectors are highly conscious.") Such workers, unlike general construction workers, would not "mistakenly expect the edge to be guarded or perform their work in a manner creating a significant possibility of a fall." Id.

These reasons led the Eighth Circuit to hold that an employer could not be cited for failing to provide safety nets under section 1926.105(a) where the employer was in compliance with the floor requirements of section 1926.750(b)(2).  Builders Steel, 622 F.2d at 370.  The court observed that the Secretary can amend his regulations to require both temporary floors and safety nets "if he believes that employee safety so requires, [but] we do not believe that existing regulations compel the use of nets in such circumstances."  Id.  I agree with the decision in Builders Steel that the Secretary's regulation at section 1926.750(b) preempts application of section 1926.105(a) and that Adams Steel cannot be required to use both safety nets and temporary floors.   Having fully considered this matter, I conclude that section 1926.750(b) is more specifically applicable to the hazard of falling in steel erection work and that section 1926.105(a) may not be applied to require additional fall protection measures beyond those required under Subpart R.  To the extent that Williams Enterprises or any other Commission decisions conflict with this conclusion, Chairman Rowland and I agree that those decisions are overruled.

On review, the Secretary also presents an alternative argument to be resolved in the event the Commission determines that citation to section 1926.105(a) is preempted by section 1926.750(b)(2)(i).  If the steel erection standard applies, the Secretary argues, then Adams Steel failed to comply with it.  Because the three employees could have fallen distances greater than "two stories" (here, distances greater than twenty feet), the temporary floor erected at the second level was not, according to the Secretary, "maintained
within two stories . . . below and directly under" the perimeter beams on which the employees were working, within the meaning of section 1926.750(b)(2)(i).   Furthermore, because Adams Steel argued before the judge that it had complied with this steel erection standard, the Secretary contends that his allegation of noncompliance was tried with the implied consent of the parties.  Accordingly, the Secretary concludes, amendment of the pleadings is warranted under Rule 15(b) of the Federal Rules of Civil Procedure and the Commission should affirm a modified citation charging noncompliance with section 1926.750(b)(2)(i).[[7]]

Chairman Rowland and I deny the Secretary's belated motion to amend, made for the first time in his brief on review, on the ground that the parties did not try the issue of whether Adams Steel complied with section 1926.750(b)(2)(i).  The issues tried and argued before the judge were (1) whether the three employees could and should have been required to use personal protective equipment in accordance with section 1926.28(a) and (2) whether the three employees could and should have been protected by perimeter safety nets in accordance with section 1926.105(a).  At no point in the proceedings before the judge did the Secretary argue that the temporary flooring installed by Adams Steel was not in compliance with section 1926.750(b)(2)(i).  Nor did the Secretary introduce any evidence that the employees could or should have been protected by extending or relocating the temporary flooring at the second level.  Instead, the Secretary elicited opinion testimony to the effect that additional temporary flooring would have been impractical, and he remained silent in the face of Adams Steel's repeated assertions before the judge that it had complied with section 1926.750(b)(2)(i).  In addition, the Secretary's contention in his brief on review that Adams Steel was not in compliance with the steel erection flooring standard raises factual and legal issues that Adams Steel had no opportunity to address and did not address.  We conclude that the issue of failure to comply with section 1926.750(b)(2)(i) was not tried below, and that amendment would not be appropriate.

Based on our conclusions that section 1926.105(a) cannot be applied to the cited conditions and that the Secretary's motion to amend must be denied, we vacate item 1 of citation 1.

II

The second item on review involves five ironworkers who were not wearing hard hats at the time of the OSHA inspection.  It is undisputed that none of these five employees was wearing a hard hat during the time he was observed by the compliance officer. However, the parties disagree as to whether the employees were required to use head protection under the terms of the cited standard, 29 C.F.R. 1926.100(a), which provides:

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.

Chairman Rowland and I agree with Adams Steel that the Secretary failed to prove that the five employees were "working in areas where there [was] a possible danger of head injury" within the meaning of the standard.  We therefore reverse the judge's decision to affirm this citation item.

Two employees were working at the fourth level when the compliance officer observed them.   Apparently these are the same two fourth-level employees involved in the citation item discussed in Part I of this opinion.  As indicated, these two employees were working near the perimeter of the building, where they were installing small (six-inch) beams or braces.  With regard to these two employees, the record is devoid of any evidence indicating that it was even theoretically possible for them to be injured by falling objects.[[8]] The fourth level was the building's highest level.   Accordingly, no other employees could have worked above these two employees.   Moreover, there is no evidence that cranes were in use at the worksite so that materials could have been elevated above the employees.  So far as this record indicates, the two employees at the fourth level could not have been injured by falling objects. Nor was there any effort by the Secretary to prove that these two employees worked at any other level of the building or that they could have been injured in the course of ascending to or descending from the fourth level.

Two other employees were working at the third level of the building.  An employee named Chuck Keenan, who was also involved in the citation item discussed in Part I, was working near the perimeter of the third level, where he was spreading bar joists.   Another employee, a welder, was engaged in tack welding bar joists somewhere on the third level.  With respect to these two employees, the Secretary established that work was being performed at a higher elevation.  The two employees at the fourth level were working with tools and materials that could have fallen to the third level.   In addition, the Secretary established that there was a materials storage area at the fourth level, where a large 50-to 52-gallon barrel and several smaller barrels were placed on sections of temporary decking that were 24 to 36 inches wide.  These barrels contained materials ranging in size from bolts to masonry angles. Because the evidence establishes that the two employees at the fourth level obtained materials from these barrels for use at their work stations, we conclude that materials also could have fallen from the storage area to the third level.

Nevertheless, the Secretary failed to prove that either employee Keenan or the welder worked "in areas where there [was] a possible danger of head injury."  The Secretary made no effort to show where either Keenan or the welder was working in relation to the work area on the fourth level or the storage area on the fourth level.  Nor are we able to independently determine these facts based on our review of the record.   While Keenan and the two fourth-level employees were all working near the perimeter of the building, the photographic exhibits indicate that Keenan was working on a different side of the building.  As for the welder, the only thing that can be said about his work station is that it was somewhere on the third level.  In addition, the compliance officer testified that, at the time he observed the welder, no one was working directly above the welder.  Certainly we cannot find on this record that either Keenan or the welder at any time walked or worked below the fourth-level work area, the fourth-level storage area or any other area that could have been the source of falling tools or materials.  Similarly, we cannot find that the two employees at the fourth level at any time worked or walked above Keenan or the welder.

Finally, Adams Steel's foreman allegedly was exposed to a hazard while accompanying the compliance officer on the walkaround inspection.  Under Commission precedent, the Secretary cannot issue a citation due to the exposure of an employer's walkaround representative during an inspection.  Bechtel Power Corp., 79 OSAHRC 34/A2, 7 BNA OSHC 1361, 1365 n.7, 1979 CCH OSHD 23,575, p. 28,576 n.7 (No. 13832, 1979).   Accordingly, we vacate the citation concerning the foreman.  We also conclude that, in any event, the allegation must be vacated because the Secretary failed to establish that the foreman was exposed to the possibility of a head injury.[[9]]

On review, the Secretary argues that his burden of proof was merely to show that employees had access to a zone of danger.  He asserts, on the basis of the record, that it was reasonably predictable that each of the five employees at issue would enter an area where overhead work was being performed during the normal course of his workday.   Accordingly, he concludes, exposure to a hazard was established under the test set forth in Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD 20,448 (No. 504, 1976).

The Secretary's argument and the test adopted in that decision are inapposite.  In this case, the Secretary's burden of proof with reference to employee exposure to a hazard is governed by the express language of the cited standard.  In order to prove that an employer had a duty under section 1926.100(a) to require the wearing of hard hats, the Secretary must prove that its employees worked "in areas where there [was] a possible danger of head injury from impact, or from falling or flying objects, or from electrical shocks and burns."  This burden, which is part of the Secretary's burden of proving noncompliance with the cited standard, is independent of and separate from the burden discussed in Commission precedent, such as Gilles & Cotting, supra, that deals with the Secretary's burden of proving employee exposure under the Act.  Moreover, even if we were to apply the Gilles & Cotting test, we would conclude that the evidence fails to show that with reasonable predictability employees would be in a zone of danger.  Accordingly, item 1 of citation 2 is also vacated.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED:  JUL 20 1984


ROWLAND, Chairman, concurring:

For the reasons stated in the lead opinion, I agree that the administrative law judge erred in affirming the citation item alleging a violation of 29 C.F.R. 1926.100(a) for employees not wearing head protection and that the Secretary's motion to amend to the applicable provision of section 1926.750 must be denied.

I also agree that 29 C.F.R. 1926.105(a) is not applicable to the conditions at issue.   In my concurring and dissenting opinion in Williams Enterprises, Inc., 83 OSAHRC 26/A2, 11 BNA OSHC 1410, 1983 CCH OSHD 26,542 ( No. 79-843, 1983), I stated my view that the standards in Subpart R are exclusively applicable to fall hazards for employees engaged in steel erection and that these provisions preempt other fall protection standards outside Subpart R.  I concluded that the Secretary recognized that conditions in the steel erection industry were significantly different from those in the construction industry generally and that these differences warranted different fall protection requirements as well.  As I further explained in Williams, provisions of Subpart R dealing with protection of employees from falls from the perimeter of decked surfaces and from the exterior of other work surfaces demonstrate that the Secretary in Subpart R did address the matter of protecting steel erection employees from exterior falls.[[1]] For the reasons I stated in Williams, it is therefore inappropriate for the Secretary to seek to apply section 1926.105(a), a standard outside Subpart R, simply because the protections afforded against an exterior fall for steel erectors by Subpart R may not be as stringent.

I therefore agree with Commissioner Buckley to overrule Williams and any other Commission decision to the extent that they hold that section 1926.750(b) is not specifically applicable to the hazard of falling in steel erection work and they hold that section 1926.105(a) may be applied to require additional fall protection measures beyond these required under Subpart R.  I also join in reversing the judge's decision and in vacating the citation item alleging violation of 29 C.F.R. 1926.105(a).

CLEARLY, Commissioner, Dissenting:

In vacating the two citation items on review, the majority disregards the canon of statutory and regulatory construction that should be considered foremost in interpreting remedial social legislation, which the Occupational Safety and Health Act clearly was intended to be.  This fundamental rule is the principle that the Act and the regulations promulgated under the Act should be construed in a manner that effectuates the Congressional purpose -- "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources."  Section 2(b) of the Act, 29 U.S.C. 651(b).  The federal appellate courts have endorsed this basic principle in interpreting and applying the Secretary's standards and regulations.[[1]]  Moreover, the Commission has recognized, at least in some of its decisions, that it too has a responsibility to follow this essential guideline.[[2]]  Unfortunately, on other occasions, the Commission has ignored the effect of its rulings on employee safety and adopted narrow constructions of the Secretary's standards and regulations that "eviscerate[d] the import of the regulation[s] and flout[ed] the purposes of the enabling legislation."  Brennan v. Southern Contractors Service, 492 F.2d 498, 501 (5th Cir. 1974).  In my opinion, that is exactly what the majority has done in this case.  Accordingly, I respectfully dissent.

I
A

Under the Commission precedent prior to the Commission's decision in this case, a general standard such as 29 C.F.R. 1926.105(a) could be applied to steel erection work if application of the standard would "provide meaningful protection to employees beyond the protection afforded by the steel erection standards."  Williams Enterprises, Inc., 83 OSAHRC 26/A2, 11 BNA OSHC 1410, 1416, 1983 CCH OSHD 26,542 at p. 33,877 (No. 79-843, 1983), petitions for review filed, Nos. 83-1687 & 83-1690 (D.C. Cir. June 23 & 24, 1983).  The fact that the general standard was a fall protection standard located in a subpart of Part 1926 other than Subpart R did not act as an absolute bar to the application of that standard to steel erection work.  Instead, the critical issue was the determination of whether an ironworker would be exposed to a significant falling hazard even if his employer was in compliance with the relevant standards in Subpart R.   Thus, where compliance with Subpart R would not eliminate or at least substantially reduce a significant falling hazard, while compliance with the general fall protection requirements of Part 1926 would provide that needed protection, the Commission held that compliance with the general standard was required in accordance with 29 C.F.R. 1910.5(c)(2).[[3]]

Accordingly, application of the Williams test to this case requires a more thorough examination of the facts than the summary set forth in the lead opinion.  At the outset, it is necessary to clearly state that this citation item concerns three employees who were working on beams at the perimeter of the building and who were therefore exposed to the hazard of falling from the perimeter. Adams Steel disagrees with the judge and the Secretary over (1) the distances the employees could have fallen, (2) the surfaces to which the employees could have fallen, and (3) whether a fall would have caused death or serious physical harm.  At no time, however, has it disputed the Secretary's contention that its employees were exposed to the hazard of falling from perimeter beams.[[4]]

The principal factual dispute is over the distances that the employees could have fallen.  Two of the employees were working together on parallel perimeter beams at the 40-foot level, the highest level of the building.  The third employee was working on a different side of the building at the 30-foot level.  Temporary flooring was installed throughout the entire second floor at the 20-foot level.  In addition, scaffolding extended partially around the outside of the building's perimeter.  This scaffolding had a materials platform at a height of 6 feet above the ground and an outrigger platform at a height of 2 feet.  Since none of these heights or elevations is disputed, the calculation of the relevant fall distances is an easy matter.  The only difficulty lies in the preliminary determination of which surface each employee would fall to -- the temporary flooring, the materials platform, the outrigger platform, or the ground.

In his decision, Judge McQuade accepted Adams Steel's contention that the three employees were protected against a fall to the interior of the building by the temporary flooring at the 20-foot level.  However, he also accepted the Secretary's assertion that Adams Steel provided absolutely no protection against falls to the exterior of the building.   In particular, the judge rejected Adams Steel's claim that an employee falling to the outside of the perimeter would have fallen only to the scaffolding rather than to the ground.  The judge expressly noted that there was opinion testimony by the compliance officer that the employee working at the 30-foot level would have fallen to the materials platform 24 feet below him.  Nevertheless, the judge entered Findings of Fact 8 and 9 as follows:

8.  Falls on the outside perimeter of the structure would not effectively be stopped by frame scaffolding.  Such scaffolding is not as protective as interior decks and platforms since it is neither sizeable enough, nor secure enough, and does not extend out far enough to offer a viable safeguard for falling workers.

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

On review, Adams Steel takes exception to these two findings. It argues that the judge should have found, on the basis of the compliance officer's testimony, that an employee falling to the outside perimeter would have fallen to the materials platform of the scaffolding.  It reasons that the judge erred in finding that an employee could fall further than the materials platform because the compliance officer's testimony was "the only testimony on this particular issue."

Before I turn to the merits of this exception, I note that several conclusions are justified simply on the basis of Adam Steel's arguments.  First, I conclude that Adams Steel has conceded the inadequacy of the existing temporary flooring as a fall protection measure.  In arguing that the record compels a finding that, in the event of a fall to the outside of the building, an employee would have fallen to the materials platform of the scaffolding, Adams Steel has conceded the fact that the employee would have fallen right past the temporary flooring.  Thus, while the employer has argued that the temporary flooring satisfied its legal obligation to provide fall protection, it has presented no argument that the flooring was in fact adequate to restrict falls to two stories (here, 20 feet) or less.  See note 3 of the lead opinion.  Second, I further conclude that, at least with respect to the two employees at the 40-foot level, Adams Steel has in effect conceded that it was not in compliance with section 1926.105(a).[[5]]  Finally, it is obvious that Adams Steel's exception to Finding of Fact 9, supra, is frivolous.  Even if I accepted Adams Steel's contention that a falling employee would have fallen only 24 or 34 feet, respectively, to the materials platform, I nevertheless would have no difficulty in sustaining the judge's finding that such a fall would probably have led to death or serious injury.

In any event, I conclude that the judge did not err in finding that the scaffolding was not "a viable safeguard for falling workers."  I acknowledge, as did the judge, that the compliance officer gave opinion testimony, in reference to the employee working at the 30-foot level, that supports Adams Steel's view that that employee would have fallen to the materials platform 24 feet below him if he had fallen away from the perimeter.  However, the compliance officer later modified his testimony to state that the employee alternatively could have fallen to the scaffolding's outrigger platform, which was 28 feet below him.  In addition, even though the compliance officer did not mention the third possibility in his testimony, I conclude that the judge properly drew an inference based on the record evidence that the employee could have missed the scaffolding entirely and fallen all of the way to the ground.

With respect to the two employees working at the 40-foot level, Adams Steel's exception to the judge's finding has even less merit. The compliance officer testified that these two employees were working on an "overhang" that extended 2 to 3 feet out from the rest of the building.  He further testified that, if either of these two employees had fallen, he would have fallen the full 40 feet to the ground.  The photographic exhibits support this testimony and there is no evidence to contradict it.   Specifically, there is no evidence that these two employees were working above any scaffolding, and there is no reason to believe that they could have fallen to the temporary flooring, which was set back from the overhanging fourth-level perimeter beams.

In summation, I would affirm the judge's findings that two employees working at a height of 40 feet and a third employee working at a height of 30 feet could have fallen from the perimeter of the building the full distance to the ground below and that such a fall would probably have caused death or serious injury.  In addition, I accept Adams Steel's argument that it was in compliance with the steel erection standards, including specifically 29 C.F.R. 1926.750(b)(2)(i), see lead opinion at note 3, because I believe that those standards deal solely with the hazard of falls to the interior of a building under construction and not with the hazard of falls from a perimeter beam to the exterior of a building.  L.R. Willson & Sons, Inc. v. Donovan, 685 F.2d 664, 670-673 (D.C. Cir. 1982).  See also Williams Enterprises, Inc., supra, 11 BNA OSHC at 1416 & 1421, 1983 CCH OSHD at pp. 33,877 & 33,881.  However, I also find that the temporary flooring required under the steel erection standard provided no protection at all to the two employees at the 40-foot level and only partial protection to the employee at the 30-foot level, that is, the floor could have protected the employee only if he had fallen toward the interior of the building.

Based on these findings, I conclude that application of 29 C.F.R. 1926.105(a) to the cited fall hazards, so as to require the installation of perimeter safety nets, clearly would have "provide[d] meaningful protection to [all three] employees beyond the protection afforded by the steel erection standards."   Under the test set forth in Williams Enterprises, Inc., supra, the citation item should have been affirmed.  Tragically, however, Williams Enterprises, Inc. is no longer followed as Commission precedent.
B

As seen from the discussion above, the Commission precedent that is being overruled by the majority in this case law that construed 29 C.F.R. 1910.5(c) in light of the Act's objectives and in favor of the Act's beneficiaries.  The majority overrules this precedent in order to adopt an interpretation of the regulation that leaves employees inadequately protected or sometimes
totally unprotected from obvious falling hazards.[[6]]  In my opinion, there is no justification for an interpretation of section 1910.5(c) that so disregards employee safety.

Initially, I wish to point out that the specter raised by the majority that the Williams test will cause a severe disruption of the Secretary's regulatory scheme is illusory.  Adams Steel defended in this case against the use of perimeter safety nets solely on legal grounds.  Specifically, it argued that it had no legal obligation to provide such equipment.  It made no claim at any point in the proceeding that installation of perimeter safety nets would have been impossible, impractical or even difficult.  Nor did it seek to establish that installation of perimeter safety nets would have interfered in any way with the steel erection process, destabilized the building or led to any other adverse consequences.[[7]]

Furthermore, there was no genuine problem of duplication or of conflict among the standards under the Williams test. Compliance with general fall protection standards was required only when it would "provide meaningful protection to employees beyond the protection afforded by the steel erection standards."  Conversely, the general fall protection standards were not applied to situations that were adequately covered by the steel erection standards.  For example, the perimeter safety nets sought by the Secretary in this case were not duplicative of the temporary flooring that was provided by Adams Steel.  The temporary flooring protected employees from falls to the interior of the building but provided no protection against any fall toward the exterior of the building. The perimeter safety nets sought by the Secretary would have provided protection where there was no protection.  Accordingly, section 1926.105(a) as applied in this case under the Williams test would have complemented section 1926.750(b)(2)(i).  It would not have conflicted with or duplicated the specific standard.

I also do not agree with the majority's conclusion that application of section 1926.105(a) to the facts of this case would reverse through adjudication a decision made in the rulemaking process.  I can find no convincing evidence that the Secretary ever intended to leave the hazard of exterior falls from perimeter beams totally unregulated.  The majority points to a standard in Subpart R that addresses the hazard of falls from interior beams but was obviously not intended to address the hazard of exterior falls from perimeter beams.  It points to a second standard that covers the hazard of falling from a perimeter at a level where temporary flooring has been installed but does not apply to the hazard of falling from the perimeter at a level that contains only a structural steel framework.  Finally, it points to a third standard that sets forth a requirement for interior safety nets but does not require perimeter safety nets.  Although it apparently concedes that none of these three standards applies to the cited hazards, the majority concludes, on the basis of these three inapplicable standards, that the Secretary in adopting Subpart R deliberated over the hazard of
falls from perimeter beams to the exterior of the building and reached a decision not to require any form of fall protection for employees exposed to this hazard.  I can only say in response that it would take a lot more evidence than that cited by the majority to convince me that the Secretary made a reasoned and deliberate decision that steel erection contractors need not protect their employees against the hazards at issue in this case.[[8]]

On the contrary, I find more convincing the indications that the Secretary intended instead to rely on the general fall protection requirements of Part 1926 as a supplement to the specific requirements of Subpart R.  I begin with the assumption that the Secretary acted in accordance with his statutory mandate and that he therefore did not adopt Subpart R with the intent of diminishing the level of protection steel erection employees were guaranteed under the general fall protection standards.[[9]]  I turn next to the Secretary's guidelines for applying his standards, which are set forth in 29 C.F.R. 1910.5(c).  See note 3 supra. Subsection (c)(1) states that a general standard like 29 C.F.R. 1926.105(a) is preempted "[i]f a particular standard is specifically applicable" to the cited conditions.  Here, however, there is no standard in Subpart R that is "specifically applicable" to the hazard of falling from a perimeter beam to the exterior of the building.  Accordingly, the situation at issue in this case is not governed by subsection (c)(1) but rather by subsection (c)(2), which states that a general standard like 29 C.F.R. 1926.105(a) "shall apply according to its terms ... to the extent that none of such particular standards [here, those prescribed in Subpart R] applies."

In addition, I find confirmation of the Secretary's intent in the Secretary's attempts, over the course of many years, to enforce general fall protection standards, and particularly sections 1926.28(a) and 1926.105(a), as a supplement to the standards in Subpart R.  These enforcement actions have clearly been a major part of the Secretary's effort to eliminate the grave hazard of falls during the steel erection process.  See, for example, the cases cited in the lead opinion.  Finally, I note that the Secretary's official statement of his enforcement policy is fully consistent with his enforcement action in this case.[[10]]

For all of these reasons, I conclude that the Commission's interpretation of 29 C.F.R. 1910.5(c)(1) conflicts with the Secretary's intent in adopting those guidelines as well as the Congressional purposes underlying passage of the Act.  In addition, as the majority concedes, their holding conflicts with the views of both circuit courts that have considered the particular issue of applying general fall protection standards to hazards not covered by the steel erection standards.  I therefore adhere to the Commission's decision in Williams Enterprises, Inc. because that case was correctly decided.   Applying the Williams test to the facts of this case, I would affirm the citation's alternative allegation that Adams Steel committed a serious violation of the Act by failing to comply with 29 C.F.R. 1926.105(a).

II

I also dissent from the majority's decision to vacate the citation item alleging noncompliance with 29 C.F.R. 1926.100(a) on the ground that the employees at issue were not "[e]mployees working in areas where there is a possible danger of head injury...from falling...objects" within the meaning of the standard.  The majority states that its decision is based on deficiencies it sees in the Secretary's evidence.  In its view, this is simply a case where the Secretary has failed to sustain his burden of proof.  I conclude, however, that the approach taken in the lead opinion obscures the real issue, which is the proper interpretation of the cited standard. Specifically, the majority interprets the standard at section 1926.100(a) as requiring construction workers to wear their hard hats only at those precise moments when they pass beneath overhead work or overhead workers pass above them.  Unless and until an employee is directly beneath overhead work, there is, according to the majority, no need for him to wear a hard hat.  Moreover, the majority adopts this restrictive interpretation on the ground that it is merely applying the standard as written by the Secretary.  Once again, I cannot join the majority in adopting an interpretation of a standard or regulation that so totally disregards employee safety. In particular, I cannot agree with the majority that its interpretation merely effectuates the Secretary's intent.

I begin my analysis with a review of the vast body of case law that has developed on the issue of employee exposure to a hazard.[[11]]  Specifically, I start with one of the earliest Commission decisions to deal with the exposure issue, J.E. Roupp & Co. & Denver Dry Wall Co., 74 OSAHRC 20/C1, 1 BNA OSHC 1680, 1973-74 CCH OSHD 17,660 (Nos. 146 & 147, 1974).  In that case, another Commission majority took the same position that is now being taken in this case, i.e., that a violation of the Act cannot be found unless and until an employee is actually exposed to a safety or health hazard.   In my separate opinion, I disagreed, setting forth the position that I have followed over the past decade:

The purpose of the Act is to prevent accidents, not to fix the blame for an accident after it has occurred.  Accordingly, it is incumbent upon the Commission to designate as a violation and to order the abatement of any hazard to which employees may potentially be exposed.[[8]]  To await the actual exposure of employees is too late.   1 BNA OSHC at 1682, 1973-74 CCH OSHD at p. 22,069.[[12]]

The following year, a significant appellate court decision was issued.   In Brennan v. OSHRC (Underhill Construction Corp.), 513 F.2d 1032, 1039 (2d Cir. 1975), the court soundly rejected the employer's contention that a citation requiring perimeter guarding must be vacated because employees weren't exposed to a falling hazard:

One takes it that Dic-Underhill would have us hold that for a citation properly to issue, an employee... must be seen by an inspector teetering on the edge of the floor 150 feet or so up from the ground.  No such interpretation of the standards would be reasonable. No such interpretation is consistent with, let alone called for by, the Act.

Partly in response to Underhill Construction Corp. and other appellate court decisions, the Commission re-examined the employee exposure issue in Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD 20,448 (No. 504, 1976).   Although we were unable to agree completely on what the Secretary must show in order to establish employee access to a hazard, former Commissioner Barnako and I did form a clear majority in support of two central holdings:  (a) access is the ultimate test for determining when protective measures must be taken and (b) actual exposure is not an appropriate test because an actual exposure rule does not "further the purposes of the Act."

The next important step in the development of the case law was the Commission's decision in Otis Elevator Co., 78 OSAHRC 88/E5, 6 BNA OSHC 2048, 1978 CCH OSHD 23,135 (No. 16057, 1978).  In that case, the Commission adopted a simplified access test as the rule for determining when employees are exposed to a hazard.   Since Otis Elevator Co., the Commission has consistently applied this simplified access test.  See, e.g., F.L. Heughes & Co., 83 OSAHRC 31/A2, 11 BNA OSHC 1391, 1394-95, 1983 CCH OSHD 26,520 at p. 33,767 (No. 14519, 1983).  Two statements from subsequent decisions clarify the Commission's reasoning behind the Otis Elevator Co. rule and the guidelines that have been followed by the Commission in applying it.  The Commission described its rationale as follows:

The Commission's access test is predicated on the recognition that employees may not be restricted to specific paths or movements about their workplace.  Given the random nature of employee movement, it is inappropriate to rely on employees to avoid a hazardous condition as the primary means of protecting employees from that condition.

Special Metals Corp., 80 OSAHRC 122/B8, 9 BNA OSHC 1132, 1134, 1981 CCH OSHD 25,018 at p. 30,908 (No. 76-4940, 1980).  More recently, the Commission stated:

We emphasize that our case law, which requires that the Secretary show access, does not require that the Secretary precisely track the movements of employees to show that they will be or have been in a zone of danger.  We have rejected such a brinksmanship approach to employee safety and health.

Farthing & Weidman, Inc., 82 OSAHRC 75/A2, 11 BNA OSHC 1069, 1071, 1983 CCH OSHD 26,389 at p. 33,491 (No. 78-5366, 1982).

That the majority's decision in this case directly and squarely conflicts with the teachings of this case law is so clear to me that I do not believe this point requires a lengthy discussion.  I will merely illustrate this conflict by focusing on one of the five employees at issue under this citation item.[[13]]  An employee named Chuck Keenan was working at the perimeter of the third level "spreading," "shaking out," or "scattering" bar joists.  This job involved spacing the bar joists at regular intervals along the perimeter.  As each bar joist was placed in its proper position, Keenan would secure it, at least partially.  Then he would return along the perimeter beam to the area where the bar joists were stacked to obtain another joist, which he placed in turn.  Witnesses emphasized that Keenan was constantly in motion, standing still only for those brief intervals when he was engaged in installing a single bar joist. Indeed, Adams Steel successfully argued to the judge below that Keenan's need for mobility was so great that he could not have been protected against falling hazards by the use of safety belts, lanyards and lifelines.

Two employees at the fourth level, the level 10 feet above Keenan, were engaged in similar work.  Accordingly, Adams Steel was also successful in asserting that these two employees could not have tied off because their work required them to be on the move constantly.  Like Keenan, these employees moved back and forth along the perimeter beams, spacing and placing small beams or braces between the two parallel structural beams that formed the overhanging perimeter at the fourth level.  In addition, these employees moved back and forth between the perimeter and an area in the interior of the building where the materials they used were stored.  Adams Steel even sought to prove, in defending against still another charge involving this storage area, that it would not have been feasible to tie down several 5-gallon materials buckets so as to secure them against accidental displacement.  Thus, according to Adams Steel's foreman, the level of mobility in these operations was so great that the employees in effect moved the storage area itself, or at least the 5-gallon buckets, every 30 to 45 minutes.

In sum, Adams Steel sought before the judge to depict a typical construction worksite -- an ever-changing scene of a highly-mobile work force engaged in separate but concurrent work projects.  Ironically, after successfully persuading the judge that the need for mobility prevented it from taking many the Secretary's suggested precautions, Adams Steel has turned around and persuaded the majority on review to ignore all of the evidence it introduced.  In agreement, the majority analyzes this item as if it were looking at a still photograph.  When the compliance officer observed Keenan, that employee was working on a different side of the building from the two fourth-level employees.  Or, stated in another way, the compliance officer failed to catch either of the two fourth-level employees directly above Keenan, on the verge of dropping a tool or some building materials onto his head.  Therefore, according to the majority, there was no need for Keenan to wear hard hat because there was no "possible danger of head injury" to him due to falling objects.  In so holding, the majority effectively erases ten years of development in the case law.

"It is axiomatic that standards should be interpreted to effectuate rather than frustrate their underlying intent."  Gerard Leone & Sons, Inc., 81 OSAHRC 46/A2, 9 BNA OSHC 1819, 1821, 1981 CCH OSHD 25,368 at p. 31,568 (No. 76-4105, 1981).   In addition, standards "should be interpreted in light of the conduct to which they are addressed."  Julius Nasso Concrete Corp., 77 OSAHRC 45/C6, 5 BNA OSHC 1235, 1236, 1977-78 CCH OSHD 21,720 at pp. 26,101-102 (No. 7542, 1977), appeal dismissed, No. 77-4107 (2d Cir. Aug. 16, 1977).  Applying these rules of construction to the standard at issue here, it seems apparent that a far greater margin of safety is called for than would exist under the majority's interpretation.  For example, the "reality of the workplace" suggests that an employee, like Chuck Keenan, who is not wearing a hard hat when he goes up onto a structural steel beam is not suddenly going to interrupt his work to put on a hard hat when he sees someone approaching overhead, assuming he even sees the other employee approaching.  Nor is the worker likely to make a reasoned determination as to whether his own route of travel will take him beneath overhead work so that he can put on his hard hat before he passes beneath that work. Therefore, the clear intent of the standard, the underlying purpose of the Act, and the realities of employee behavior on a construction worksite require a much broader interpretation of the standard than that adopted by the majority.  These factors compel an interpretation that would require the employee to wear his hard hat before there is actual exposure to the hazard of falling objects.  As I stated many years ago:

[To await, actual] exposure to a hazard simply means that...employees must risk injury and possibly death before the Secretary can require abatement of hazardous conditions.... [However,] Congress did not intend to endorse such game-playing with the health and safety of employees....

Gilles & Cotting, Inc., supra (concurring opinion), 3 BNA OSHC at 2005, 1975-76 CCH OSHD at p. 24,426.

Furthermore, contrary to the majority, I conclude that the specific language of the standard does not lead to a different result.  I find it significant that the key phrase in the standard is not "danger of head injury" or even "a possibility of head injury."  Instead, the standard emphasizes the element of potential risk by using both terms together so that employees must be protected by hard hats whenever there is a "possible danger" of head injury.  This broad wording supports my view that the intent of the Secretary was to require hard hat protection whenever there is potential exposure to head injury.  See note 12 supra.   The language certainly does not support the interpretation of the standard adopted by the majority.

The Secretary properly interpreted the cited standard and applied it to the conditions at issue in this case.  The alleged violation of section 1926.100(a) therefore should be affirmed.


The Administrative Law Judge decision in this matter is unavailable in this format.  To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).


FOOTNOTES:

[[1]] Section 1926.105(a) is contained in subpart E -- Personal Protective and Life Saving Equipment, of 29 C.F.R. Part 1926 -- Safety and Health Regulations for Construction.  It 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.

[[2]] Section 1910.5(c)(1) is a regulation intended to prevent overlaps among the Secretary's safety and health standards.  It provides:

1910.5 Applicability of Standards.
* * *
(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. . . .

[[3]] Section 1926.750(b)(2)(i), provides:

1926.750 Flooring requirements.
* * *
(b) Temporary flooring -- skeleton steel construction in tiered buildings.
* * *
(2)(i) Where skeleton steel erection is being done, a tightly planked and substantial floor shall be maintained within two stories or 30 feet, whichever is less, below and directly under that portion of each tier of beams on which any work is being performed, except when gathering and stacking temporary floor planks on a lower floor, in preparation for transferring such planks for use on an upper floor.  Where such a floor is not practicable, paragraph (b)(1)(ii) of this section applies.

[[4]] In a second case involving L. R. Willson a different panel of the D.C. Circuit noted that Builders Steel held that "[s]ection 1926.750(b)(2)(i) requiring [a temporary] floor within two stories or 30 feet of workplace . . . preempts application of general regulation, 29 C.F.R. 1926.105(a)(1981), requiring use of safety nets. . . ." L. R. Willson & Sons Inc. v. OSHRC, 698 F.2d 507, 512 n.15 (D.C. Cir. 1983) ("Willson II").  Willson II involved the question of preemption of a general duty standard (29 C.F.R. 1926.28(a)) by the specific standards applicable to falls in the steel erection industry, 29 C.F.R. 1926.750(b).  The Willson II court, citing a Fourth Circuit decision in Bristol Steel & Iron Works, Inc. v. OSHRC, 601 F.2d 717 (4th Cir. 1979), held that 1926.750(b) did not preempt 1926.28(a).   But see McLean-Behm Steel Erectors, Inc. v. OSHRC, 608 F.2d 580 (5th Cir. 1979) rev'g on other grounds, 78 OSAHRC 93/A9, 6 BNA OSHC 2081, 1978 CCH OSHD 23,139 (No. 15582, 1978) (section 1926.750(b) is more specifically applicable standard preempting section 1926.28(a) with respect to steel erection employees installing window framing).   Both courts reasoned that the general safety standard at section 1926.28(a) was similar to section 5(a)(1) of the Act and was "designed to fill those interstices necessarily remaining after the promulgation of specific safety standards."  Id. at 512, quoting Bristol Steel at 721.  In contrast, the Commission, consistent with the Fifth Circuit, has ruled in McLean-Behm, supra, that section 1926.750(b) requiring safety nets when temporary floors are not practical is specifically applicable to steel erection employees working at the edge of a building preempting section 1926.28(a).   But cf. Tippens Steel Erection Co. Inc., 83 OSAHRC 20/D14, 11 OSHC BNA 1428, 1430, 1983 CCH OSHD 26,593 (No. 76-3682, 1983) (section 1926.28(a) not preempted by subpart R) (dicta)).  Unlike section 1926.28(a), section 1926.105(a) cannot be described as a general standard designed to fill interstices left by promulgation of specific standards.   As is section 1926.750(b), section 1926.105(a) is a specific standard addressing fall hazards.  Moreover, the Commission has previously rejected the approach used by the two courts in another analogous preemption case.  See Dillingham Tug & Barge Corp., 82 OSAHRC 40/D6, 10 BNA OSHC 1859, 1982 CCH OSHD 26,166 (No. 77-4143, 1982), appeal dismissed, No. 82-7552 (9th Cir. Nov. 4, 1982).

[[5]] Chairman Rowland and Commissioner Cleary voted to vacate a citation to a general construction guardrail standard, section 1926.500(d)(1), because section 1926.750(b)(1)(iii) was applicable, although the general standard provided greater fall protection. Similarly, Chairman Rowland and Commissioner Cleary voted to vacate three items alleging violations of section 1926.105(a) for interior falls.  Chairman Rowland did so on the ground that section 1926.105(a) was preempted.  Commissioner Cleary did so because the means of fall protection provided by the two standards was "duplicative," although the general standard provided more protection since it applied to falls of twenty-five feet or less, while the steel erection standard applied to falls of thirty feet or less. Commissioner Cottine, who was in the majority with Commissioner Cleary in holding that section 1926.105(a) was not preempted with respect to exterior falls, dissented on the basis that the general construction standards provided greater protection and were therefore applicable as well.

[[7]] Federal Rule 15(b) provides:

(b) Amendments to Conform to the Evidence.
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment. . . .

[[8]] Both the Secretary's case and the judge's decision were based on the theory that employees were working in areas where overhead work was occurring and that they therefore could have been injured by falling tools or materials.  This is the only source of a potential head injury that is suggested in this record.  Thus, there is no evidence or argument in this case that employees were exposed to any of the other hazards referred to in section 1926.100(a), i.e., possible injury from "impact," "flying objects," or from "electrical shock and burns."

[[9]] The foreman admitted at the hearing that he had been present on the second floor at the same time that the employees discussed previously had been working on the beams at higher elevations.  However, the foreman testified that none of these employees was working directly above him or "in such a fashion that there was a chance of objects falling on [him]."  The Secretary made no effort to rebut that testimony.  Indeed, the two other members of the walkaround party, i.e., the compliance officer and the union steward, both corroborated the foreman's testimony.   Thus, we would find that the foreman was not exposed to a possible danger of head injury from falling objects during the time he accompanied the inspection party on the second floor.

[[1]] See 1926.750(b)(1)(iii), 1926.750(b)(2)(iii), and 1926.752(k); Williams, supra, 11 BNA OSHC 1425-26 & n.9, 1983 CCH OSHD at pp. 33,885-86 & n.9.

[[1]] See, e.g., Bristol Steel & Iron Works, Inc. v. OSHRC, 601 F.2d 717, 721 (4th Cir. 1979) ("Being remedial and preventative in nature the Act must 'be construed liberally in favor of the workers whom it was designed to protect....'"); Southern Colorado Prestress Co. v. OSHRC, 586 F.2d 1342, 1350 (10th Cir. 1978); Floyd S. Pike Electrical Contractor, Inc. v. OSHRC, 576 F.2d 72, 76 (5th Cir. 1978); Marshall v. Western Electric, Inc., 565 F.2d 240, 245 (2d Cir. 1977) (court adopts the interpretation of a standard that is "better calculated. . .to achieve the congressional goal of accident prevention and protection against potential danger," stating that "[t]he reasonableness of any construction of the. . .standard must be considered in the light of the broad, remedial purpose of the Act...."); GAF Corp. v. OSHRC, 561 F.2d 913, 915 (D.C. Cir. 1977) ("[T]he standards must be construed. . .to protect the employees."); Irvington Moore, Div. of U.S. Natural Resources, Inc. v. OSHRC, 556 F.2d 431, 435 (9th Cir. 1977); Brennan v. OSHRC (Gerosa, Inc.), 491 F.2d 1340, 1343 (2d Cir. 1974) ("[I]t is especially important that these regulations be construed to effectuate congressional objectives.")

[[2]] See, e.g., Borton, Inc., 82 OSAHRC 17/E13, 10 BNA OSHC 1462, 1982 CCH OSHD 25,983 (No. 77-2115, 1982), appeal filed, No. 82-1661 (10th Cir. May 26, 1982); Salah & Pecci Constr. Co., 78 OSAHRC 50/A13, 6 BNA OSHC 1688, 1978 CCH OSHD 22,807 (No. 15769, 1978); Whitcomb Logging Co., 74 OSAHRC 89/F7, 2 BNA OSHC 1419, 1974-75 CCH OSHD 19,128 (No. 1323, 1974).

[[3]] This regulation states:

1910.5 Applicability of standards.
* * *
(c)(1) [Quoted in note 2 of the lead opinion]
* * *
(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....

[[4]] All of the record evidence is consistent in indicating that the three employees were required to work at the perimeter of the building for extended periods of time and that their work required almost constant motion along the perimeter beams with short periods when the employees, although stationary, would lean over the beams to attach small braces or bar joists.  Accordingly, the record supports the judge's unchallenged finding that the three employees were "exposed to a substantial risk of harm from falling."

[[5]] Adams Steel's argument on review that it provided "scaffolds" and "temporary floors" as required by the standard is defeated by its admission that these two employees could nevertheless have fallen 34 feet from the fourth-level perimeter beams to the materials platform.  See, e.g., National Industrial Constructors, Inc., 81 OSAHRC 46/C2, 9 BNA OSHC 1871, 1872, 1981 CCH OSHD 25,404 at p. 31,657 (Nos. 76-891 & 76-1535, 1981) ["(S)ection 1926.105(a) is not satisfied simply by the use of one of the devices listed in that section without regard to whether such use provides adequate fall protection to employees."]

[[6]] Situations even more dangerous than those involved in this case appear to be within the scope of the majority's ruling.  For example, employees could have been working at a height of 100 feet on an overhang that extended 10 feet beyond the lower stories; yet, the majority's ruling still would have been that the employer was under no obligation to provide any fall protection whatsoever.

[[7]] If the employer in fact had any objections of this nature, it could and presumably would have raised an affirmative defense such as impossibility or the greater hazard defense.  In this regard, I note that Adams Steel was successful in raising and proving these same affirmative defenses in this proceeding when it defeated the Secretary's alternative charge that it should have required the use of personal protective equipment under 29 C.F.R. 1926.28(a).  In any event, the fact that the impossibility and greater hazard defenses are recognized in Commission case law precludes any possibility of the dire consequences to safety hypothesized by the majority.

[[8]] If the Secretary had made a deliberate decision to exempt the cited conditions from Subpart R, then this case would be analogous to the situation at issue in Irvington Moore, Div. of U.S. Natural Resources, Inc. v. OSHRC, note 1 supra.  There, the Ninth Circuit held that a general machine guarding standard could be applied to a press brake, rejecting the contention that the general standard was preempted by a specific machine guarding standard that expressly excluded press brakes from its coverage. Quoting 1910.5(c)(1), the court stated, 556 F.2d at 435:

The rule that a specific standard prevails over a general standard can hardly mean that a section from which press brakes are entirely excluded should preempt a section under which press brakes are clearly covered.  Moreover, if ... [the inapplicable specific standard] were somehow to prevail over ... [the applicable general standard], this would clearly violate 29 U.S.C. 655(a) which mandates application of the standard that assures the greatest protection for employees.  Such a reading of the regulation would also do violence to the general canon of statutory construction that remedial statutes are to be liberally construed in favor of their beneficiaries....

By analogy, the fact that the Secretary deliberately exempted the conditions in this case from Subpart R, assuming that were true, would not preclude the application of general standards that otherwise apply to the situation, such as 1926.105(a).

[[9]] Both the specific steel erection standards and the general fall protection standards were adopted pursuant to the Secretary's authority under 6(a) of the Act, 29 U.S.C. 655(a).  That section gave the Secretary the power, during the first two years after the Act's effective date, to adopt as OSHA standards "any established Federal standard," a category that included all of the standards discussed in this case, "unless he determines that the promulgation of such a standard would not result in improved safety or health for specifically designated employees."  Section 6(a) also instructed the Secretary to resolve any conflict among established Federal standards by promulgating "the standard which assures the greatest protection of the safety or health of the affected employee."

[[10]] "For all types of construction, including steel erection, exterior falling hazards shall be cited...under 1926.105(a) when the potential falling distance is greater than 25 feet."  OSHA Instruction STD 3-3.1 (July 18, 1983), paragraph G.3.b, reported at CCH ESHG, 1982-1983 Developments, 12,855 at p. 17,166.

[[11]] The majority summarily dismisses the Secretary's arguments on review, which are based on this precedent, because the cases he cites did not involve the interpretation and application of the particular standard at issue here, section 1926.100(a).  However, the problem of determining when an employee is exposed to a hazard so that mandated protective measures not be taken is a fundamental and all-pervasive question that constantly arises in cases under the Occupational Safety and Health Act.  Although the context in which this issue arises admittedly differs from case to case, it does not follow that the principles announced in other cases are totally inapplicable to the case now on review.  On the contrary, I believe that Commission and appellate court precedent on the employee exposure issue has a great deal to say about when an employee should be "protected by protective helmets" as required under section 1926.100(a).

[[12]] The footnote referred to in the passage above, footnote 8, states:

Where a hazard exists on a worksite and employees have access to the situs of the hazard, there is potential exposure, regardless of whether there is any evidence of an employee coming into immediate proximity of the hazard.

[[13]] The facts concerning this employee demonstrate vividly that the majority has adopted a restrictive "actual exposure test" within the meaning of the case law that I have outlined above.  In contrast, I believe that the proper test for determining when an employee must wear a hard hat is whether that employee has "access" to the "zone of danger" created by overhead work or by the other conditions identified in the standard.  These key terms also have established meanings in the case law, so I need not elaborate on them here.

I agree with the majority that the Secretary cannot issue a citation due to the exposure of an employer's walkaround representative during an inspection.  Therefore, I do not base the affirmance of this item on the asserted exposure of Adams Steel's foreman. However, because I apply an "access test" and because I identify the "zone of danger" in this case as an area that included the entire second floor and the entire third level of the building, I would affirm the citation's allegation with respect to all four of the remaining employees.