DANIEL CONSTRUCTION COMPANY

OSHRC Docket Nos. 7734; 7672

Occupational Safety and Health Review Commission

February 10, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor

Gregory B. Tobin, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

This case n1 presents the issue of whether Judge John S. Patton properly affirmed a serious citation issued under the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") which alleged noncompliance with 29 C.F.R. 1926.750(b)(1)(ii). n2 Judge Patton found, among other things, that the standard had been properly promulgated and that the building involved was a "tiered building" within the meaning of the standard. For the reasons below, we affirm on the promulgation issue, but not the Judge's conclusion that the building was tiered within the meaning of the standard. We vacate the citation.

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n1 This case was inadvertently given two docket numbers because Respondent filed two separate notices of contest to the same citation. Judge Patton consolidated the two docket numbers.

n2 The standard reads as follows:

Subpart R - Steel Erection

1926.750 Flooring requirements

(b) Temporary flooring - skeleton steel construction in tiered buildings

(1)(ii) On buildings or structures not adaptable to temporary floors, and where scaffolds are not used, safety nets shall be installed and maintained whenever the potential fall distance exceeds two stories or 25 feet.

[*2]

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The facts surrounding the alleged violation are largely undisputed. Respondent was engaged in erecting a large building which was ultimately to house a turbine generator and accessory equipment. The structure was of skeletal steel construction and was to be covered with metal siding. The building was essentially of an open bay or loft type of construction. It consisted of an operating floor, the sides of the building which were comprised of steel framework, and, at the top of the building approximately 100 feet above the operating floor, trusses or beams on which the roof would rest. Although there was some intermediate structural steel, floors were not to be located between the operating floor and the trusses, nor was the building adaptable to temporary floors. Thus, during the steel erection stage of construction, the inside of the building primarily consisted of an open expanse between the floor and the roof.

The building was erected by first setting column base plates and then setting lower vertical columns for one whole side of the building at a time. Horizontal beams were then laid across [*3] the columns along the one side and connected to the columns in order to stabilize them. The next set of columns were then placed on top of the first set, and were stabilized in the manner described above. At the roof level, trusses were laid horizontally over the interior of the building.

Respondent's two expert witnesses were of the opinion that the cited building was not a tiered building, but rather was a loft-type building since it was open inside and consisted essentially of exterior steel framework with large trusses across the top to support the roof. They thought a tiered building by way of contrast would have multiple stories with equal distances between floors. The Secretary's two expert witnesses opined that it was not necessary for a building to have floors in order for it to be a tiered building. They believed that any building on which the outside walls were constructed by placing columns on top of columns and tying the columns together by horizontal beams was a tiered building.

Several employees of Respondent were working along the columns at heights of more than 25 feet above the operating floor. One employee, an ironworker, was connecting a truss to a column, [*4] and fell approximately 105 feet to the ground level, resulting in his death. Respondent had not provided safety nets or scaffolds to protect employees working on the columns and trusses. The deceased ironworker was wearing a safety belt but was not tied off. It was Respondent's policy to have its employees tie off whenever it was practical, but it was not possible for employees to be tied off at all times due to the work being performed. n3

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n3 Respondent argues on review that it was not in violation of 1926.750(b)(1)(ii) because its use of safety belts resulted in greater safety to employees than compliance with the safety net provision in 1926.750(b)(1)(ii). Because of our disposition, it is unnecessary to decide this point.

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On these facts, Respondent was issued a citation alleging a serious violation of 29 C.F.R. 1926.750(b)(1)(ii) in that Respondent failed to provide safety nets while employees were exposed to a potential fall of over 25 feet while working in a tiered building not adaptable to temporary floors [*5] and where scaffolds were not used. A $600 penalty was proposed.

Judge Patton affirmed the citation. He determined as a threshold matter that the cited standard had been validly promulgated. He then found that the building on which Respondent's employees were working, while properly characterized as an open bay building, was also a tiered building within the meaning of the cited standard. In this regard, the Judge was much persuaded by the testimony of one of the Secretary's expert witnesses and he characterized his decision as being based on the weight of the evidence. The Judge also rejected Respondent's contention that the cited standard was unenforceably vague as well as its defense that its use of safety belts povided greater protection than safety nets would have provided. The Judge assessed a penalty of $600.

On review, Respondent first argues that the cited standard is not enforceable since it was invalidly promulgated. The standard at 1926.750(b)(1)(ii) was adopted as an occupational safety and health standard under section 6(a) of the Act n4 on the basis that on the effective date of the Act it was an established federal standard promulgated under the Construction [*6] Safety Act (40 U.S.C. 333 et seq.). However, Respondent maintains that the standard was invalidly promulgated under the Construction Safety Act since the standard was made effective fewer than 30 days from the date of its publication without a statement of good cause, as required by section 553(d) of the Administrative Procedure Act (5 U.S.C. 551 et seq.). n5 Respondent argues that since the Construction Safety Act standard was improperly promulgated, it was not in effect on the effective date of the Act and thus could not have been adopted as an occupational safety and health standard under section 6(a) of the Act. Therefore, Respondent urges that 1926.750(b)(1)(ii) is unenforceable.

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n4 Section 6(a) of the Act provides in pertinent part that ". . . the Secretary shall, as soon as practicable during the period beginning with the effective date of this Act and ending two years after such date, by rule promulgate as an occupational safety or health standard any national consensus standard, and any established Federal standard. . ."

n5 Section 553(d) of the Administrative Procedure Act provides that "the required publication. . . of a substantive rule shall be made not less than 30 days before its effective date except. . . as otherwise provided by the agency for good cause found and published with the rule."

[*7]

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We reject Respondent's contentions and affirm Judge Patton's conclusion that the standard was properly promulgated under the Construction Safety Act. The Secretary made the Construction Safety Act standard applicable sooner than 30 days after publication with the following explanation:

. . . The time lag in the procurement process, together with the time periods specified, are considered sufficient to afford affected persons reasonable time to take such action as may be necessary to comply with the rules.

The Judge found this statement to constitute an adequate reason for advancement of the standard's effective date. In so finding, he considered the fact that the time taken to advertise and negotiate contracts would take the place of the period of time that normally would be allowed before a standard becomes effective. Although the Judge spoke in terms of "adequate reason" instead of "good cause" as contained in the Administrative Procedure Act, his conclusion that the statement conformed with the Administrative Procedure Act clearly indicates that he concluded that the statement constituted good [*8] cause. We agree.

Respondent argues that this conclusion is in conflict with certain cases which involve good cause findings made by different administrative agencies, citing Minden Beef Co. v. Cost of Living Council, 362 F. Supp. 298 (D. Neb. 1973); Pent-R-Books, Inc. v. United States Postal Service, 328 F. Supp. 297 (E.D.N.Y. 1971); and Clay Broadcasting Corp. of Texas v. U.S., 464 F. 2d 1313 (5th Cir. 1972), rev'd on other grounds, 415 U.S. 336 (1974). Respondent points out that, in these cases, the respective agencies found that early effective dates were necessary to achieve the Congressional and Presidential objectives underlying the various statutes and executive orders. Respondent would have us conclude that, because the statement made by the Secretary in promulgating the Construction Safety Act standards differed from those which were judicially approved in the cited cases, the Secretary's statement was deficient. We cannot draw such a conclusion. The cases cited by Respondent do not purport to establish the limits of the "good cause" exception in the Administrative Procedure Act. Furthermore, we note that the Secretary's action, by making the standards [*9] effective sooner than they would otherwise be, does tend to promote the objective of the Construction Safety Act to promote employee safety. Accordingly, we are not persuaded by the cases cited by Respondent that the Secretary's statement failed to constitute good cause.

Respondent also argues that the good cause exception should be scrutinized since it goes against the thrust of the Administrative Procedure Act's provision for a thirty day period in which interested parties are afforded an opportunity to protest a proposed rule. Respondent further contends that, in the absence of an adequate statement of good cause, a reviewing court cannot determine the propriety of the decision to bypass the 30 day rule. We conclude that Respondent's arguments are without merit. The Administrative Procedure Act itself provides for the good cause exception to the 30 day rule, and we have concluded, for the reasons already discussed, that the Secretary's statement comports with the Administrative Procedure Act. Therefore, it cannot be said that the finding of good cause here renders the 30 day rule meaningless or fails to provide a reviewing court a basis on which to evaluate the propriety of [*10] the action.

Accordingly, we conclude that the underlying established federal standard was properly promulgated, so that the occupational safety and health standard based on that federal standard was properly adopted under section 6(a) of the Act. n6

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n6 Inasmuch as we find that the underlying established federal standard was validly promulgated on the basis discussed above, we need not consider other arguments advanced by the Secretary regarding the validity issue.

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Respondent further argues on review that Judge Patton erred in applying 1926.750(b)(1)(ii) to the cited working condition since the building involved in the citation was not a "tiered building" within the meaning of the standard. Respondent urges that a tiered building is one which is multi-floored. It points to the standard dictionary definition of "tiered" as "having or arranged in tiers, rows, or layers." n7 It also points to other provisions of section 1926.750, and argues that when the section is read as a whole the term "tiered" means "multi-floored." [*11] Respondent further emphasizes that its two experts testified that the building was commonly considered to be a loft-type or open bay building since it was not built in layers as a tiered building would be. n8

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n7 See Webster's Third New International Dictionary, 1969; American College Dictionary, 1966.

n8 As a related matter, Respondent also contends that 1926.750(b)(1)(ii) is unenforceably vague in that the expert witnesses at trial could not agree regarding the proper interpretation of the term "tiered". We agree with the Judge's rejection of this argument. As discussed infra, the meaning of the term "tiered building" can be determined as a matter of statutory construction.

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The Secretary argues that the Judge's application of the standard to the subject building should be affirmed. He maintains that the presence of floors does not constitute an essential component of a tiered building. In this regard, the Secretary relies on the testimony of his experts that a tiered building is one in which columns making [*12] up the outside wall are placed on top of other columns. He also points to provisions in 1926.750 which impose requirements based on falling distances determined by floors or feet, thereby evidencing, the Secretary argues, that floors are not necessary components of a tiered building. Finally, he contends that the judge's conclusion that the building was tiered was based on his crediting the testimony of Secretary's expert over that of Respondent's experts, and is therefore based on a credibility finding which should not be overturned.

We have carefully considered the parties' arguments and have reviewed the cited standard in context with other provisions in the same section. We conclude that the standard at 1926.750(b)(1)(ii) does not apply to an open bay type building as is involved here.

The cited standard is located in Subpart R of the Construction Safety and Health Standards which is entitled "Steel Erection" and is part of section 1926.750 entitled "Flooring requirements." The term "tiered building" appears as part of the titles of two paragraphs of the section: 1926.750(a) is entitled "Permanent flooring - skeleton steel construction in tiered buildings" and 1926.750(b) [*13] is entitled "Temporary flooring - skeleton steel construction in tiered buildings." The provisions of the subparagraphs under those paragraphs evidence a general intent that tiered buildings must be multi-floored structures. For example, 1926.750(a)(1) requires that "the permanent floors shall be installed as the erection of structural members progresses." As Respondent points out, 1926.750(b)(1)(iii) requires a rope around the perimeter of certain floors "of tier buildings and other multifloored structures" (emphasis added). Section 1926.750(a)(2) states that "at no time shall there be more than four floors or 48 feet of unfinished bolting or welding above the foundation or uppermost permanently secured floor," and 1926.750(b)(2)(i) requires that "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." n9 Further, we are not persuaded by the Secretary's argument that, because fall distances are referred to by both floors and feet, the term "tiered" includes other than multi-floored structures. Although we do not here [*14] decide the import of those alternative fall distances, we note that they are insufficient to detract from the thrust of the section as discussed above. Accordingly, we conclude that a reading of the cited standard as a part of the whole section establishes that a "tiered building" was meant to include only those buildings which have numbers of floors, as do conventional office and apartment buildings.

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n9 We note that, subsequent to the date of the issuance of the citation, 1926.750 was amended. See 39 F.R. 24316 (July 2, 1974). Provisions added by the amendment also indicate that the term "tiered" means multifloored. For example, section 1926.750(b)(2)(i) as amended discusses "gathering and stacking temporary floor planks on a lower floor, in preparation for transferring such planks for use on an upper floor."

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The Secretary argues, however, that the Judge's finding that the building was tiered was founded on a credibility determination in which he credited the testimony of the Secretary's expert witness over that [*15] of other expert witnesses, and that the finding, as a credibility determination, cannot be disturbed. The question of whether a loft or open bay type building is a tiered building within the meaning of the cited standard is a question dealing with the proper interpretation of the standard, not a question of fact. Thus, a resolution of the question does not turn on the demeanor of witnesses or other factors commonly associated with a credibility determination. An expert's testimony as to the proper interpretation of a standard may be persuasive, particularly where the standard is ambiguous; however, such testimony is not controlling. Here, the interpretation of the standard advanced by the Secretary's expert is contradicted by the language and the provisions of the standard itself.

Accordingly, we conclude that the building which was the subject of the citation was not a tiered building under 1926.750(b)(1)(ii). Accordingly, a violation of the standard was not established.

The Secretary moves on review to amend the citation to allege in the alternative a violation of 1926.28(a) in that Respondent failed to require employees to tie off safety belts where there was exposure to [*16] hazardous conditions n10 and 1926.105(a) in that Respondent failed to provide safety nets where the workplace was 25 feet above ground and where the use of scaffolds and temporary floors is impractical, n11 if the Commission finds 1926.750(b)(1)(ii) to be inapplicable to the building involved in the citation. The Secretary argues that Respondent would not be prejudiced by the amendment since the underlying facts would remain unchanged, the parties tried by consent the charges sought to be added, and the Respondent briefed the issues raised by the other standards and generally had the opportunity to raise all relevant defenses to those standards.

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n10 The standard at 1926.28(a) states that "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."

n11 The standard at 1926.105(a) states that "safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other workplaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical."

[*17]

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We deny the Secretary's motion to amend to either standard. We conclude that Respondent would be prejudiced by the amendment proposed on review since it would be foreclosed from raising defenses available to it had violations of those standards been sharged at the hearing. With regard to 1926.28(a), we note first that Respondent was not on notice that a failure to use safety belts was at issue, since the citation charged a failure to use safety nets. The evidence which was adduced on safety belts came in by way of a defense to the 1926.750(b)(1)(ii) charge and cannot be construed as representing the consent of Respondent to try the safety belt issue as a separate violation. See Penrod Driling Co., No. 5991, BNA 4 OSHC 1654, CCH OSHD para. 21,072 (Sept. 9, 1976). Further, by not being on notice that safety belts were at issue, Respondent was denied the opportunity to develop certain defenses which might have been available. For example, Respondent contended that its policy of requiring employees to tie off when feasible complied with the standard, but it did not have the opportunity to fully [*18] levelop this defense. n12 As to 1926.105(a), again Respondent's lack of notice that that standard might be at issue precluded it from raising defenses at the hearing to which it might have availed itself. Respondent's contention on review that it was in compliance with 1926.105(a), when coupled with the undisputed fact that safety nets were not hung on the site, clearly indicates that Respondent believed itself to have valid defenses under 1926.105(a). Indeed, the record shows that safety belts were in use and, even though they did not provide complete protection, their use may well have been adequate to comply with 1926.105(a). See Brennan v. OSHRC (Pearl Steel Erection Co.), 488 F.2nd 337 (5th Cir. 1973); Brennan v. OSHRC (Ron M. Fiegen, Inc.), 513 F.2d 713 (8th Cir. 1975).

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n12 We also note, but do not express any opinion on, the conclusion of one court that 1926.28(a) does not require the use of fall protection. Hoffman Construction Co. v. OSHRC, No. 75-1741 (9th Cir., Nov. 1, 1976).

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Accordingly, [*19] we vacate the citation which alleged a violation of 1926.750(b)(1)(ii) and deny the Secretary's motion on review to amend the citation to allege violations of 1926.28(a) and 1926.105(a). It is so ORDERED.

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

I agree that the citation should be vacated because the structure involved was not a tiered building within the meaning of the cited standard. I do not, however, join in my colleague's discussion of the validity of the promulgation of 29 C.F.R. 1926.750(b)(1)(ii). Proper resolution of that matter requires the investigation and exposition of complex issues which were not addressed by my colleague. n13 Since the parties have not discussed these matters in their briefs, I consider it best to exercise judicial restraint and to reserve opinion on the promulgation issue until a later case when resolution thereof is essential to the proper disposition of the case.

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n13 I specifically take exception to the lead opinion's unsubstantiated conclusion "that the Secretary's action . . . making the standards effective sooner than they would otherwise be, does tend to promote the objective of the Construction Safety Act to promote employee safety." This type of thinking subordinates due process of law - the fundamental bedrock of our system of government - for a few extra days enforcement of an administrative regulation. No court would abide such a disposition. For example, see Synthetic Organic Chemical Manufacturers Association v. Brennan, 506 F.2d 385, 392 (3d Cir., 1974) where the enforcement of regulations promulgated by the Secretary of Labor to control the use of allegedly dangerous chemicals in the workplace was delayed "so that appropriate notice may be issued to interested parties and opportunity provided for comment and hearing."

[*20]

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Finally, it should be noted in regard to footnote 12 of the lead opinion that Hoffman Construction Co. v. OSAHRC, No. 75-1741 (9th Cir., Nov. 1, 1976), deals with anearlier version of 29 C.F.R. 1926.28(a) which was amended before the inspection in this case. The Court indicated in footnote 5 of their decision that "[w]e express no opinion upon the current version."

DISSENTBY: CLEARY

DISSENT:

CLEARY, Commissioner, DISSENTING:

In my opinion, the majority has improperly rejected Judge Patton's determination that the structure involved in this case was a "tiered building" within the meaning of 29 CFR 1926.750(b)(1)(ii).

Throughout the proceedings respondent has taken the position that the term "tiered building" is synonymous with the term "multi-floored structure." Complainant, on the other hand, has urged that the presence of multiple floors is not essential to a determination that a building is "tiered." Rather, complainant has maintained that a structure under construction should be considered a "tiered building" whenever its construction requires that steel columns be vertically stacked one upon another. In [*21] other words, complainant has taken the position that the "tiering" contemplated by the standard refers to vertically stacking steel columns rather than erecting distinct floor levels.

The parties have generally agreed on a description of the structure under construction. It was an open bay or loft-type building. This description derives from the fact that a completed structure would be characterized by a large vertical open space in its interior instead of floors. It was also agreed that steel columns were placed vertically upon each other as construction progressed upward.

Both parties offered expert testimony on the issue of whether the structure described above could be considered a "tiered building." Respondent's experts testified that the cited structure was a "loft-type building" and therefore could not be considered a "tiered building" because the terms are mutually exclusive. Complainant's experts disagreed with the narrow reading of the terms proffered by respondent's experts. Instead, they testified that a "loft-type building" should be regarded as a "tiered building" whenever the skeletal steel structure consists of tiers of vertically stacked columns.

Recognizing [*22] an absence of guidance as to the meaning of the term in question, Judge Patton considered relevant the meaning of "tiered building" within the steel erection industry. Judge Patton meticulously reviewed the credentials and testimony of the numerous expert witnesses, and accepted the opinion advanced by Luther Fleming, a safety consultant who testified on behalf of complainant. Indeed, after noting the substantial differences of opinion between the expert witnesses as to the proper use of the term "tiered building," the Judge stated that:

This judge, however, is very much impressed by the unusual qualifications of Mr. Fleming. It appears that it would be difficult to find a person who is better qualified by education and experience including the highest possible responsibility in the field. Primarily because of the unusual qualifications of Mr. Fleming it appears that the weight of the evidence is to the effect that the building did not lose its character as a tiered building because there were open bays. This judge is therefore of the opinion that the building was a tiered building and falls under the definition as used in the standard. n14

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n14 As noted by the Judge, Mr. Fleming has a long list of credentials that are relevant to the issue in this case. Mr. Fleming has degrees in both industrial and safety management and has had a great deal of experience working as a safety engineer. For example, he served as the engineer in charge of safety during the construction of facilities at Cape Canaveral. Some of the structures built during his tenure at Cape Canaveral included steel framed loft-type buildings as much as 200 feet in height.

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I accept this assessment which is amply supported by evidence of record. Also, I would attach weight to the Judge's analytical approach and ultimate resolution of the issue regarding the reading of the term "tiered building" in the standard. Cf. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474 (1951).

However, my colleagues would apparently disregard the Judge's findings regarding the industry understanding of the term and the Secretary's interpretation of the term because ". . . a reading of the standard as a part of the whole section establishes [*24] that a 'tiered building' was meant to include only those buildings which have numbers of floors . . . ." In my opinion, the majority errs.

While it is true that it is possible to read the section as a whole to support respondent's interpretation of the term, it is equally true that the section can be read as a whole to support the interpretation of the term advanced by complainant. In other words, the lead opinion errs when it implies that the term "tiered building" can be construed definitively within the four corners of the section itself without any regard for either complainant's interpretation or industry understanding of the term.

The lead opinion extracts language out of context in various subdivisions of 1926.750 to support its reading of the standard. For example, the Chairman notes that 1926.750(b)(2)(i) requires that a floor be maintained within two stories or 30 feet below and directly under the uppermost tier of beams upon which work is being performed. According to the Chairman, this standard supports the majority's reading of the term "tiered building" to include only multifloored structures. This is simply wrong. Reading 1926.750(b)(2)(i) as a [*25] whole one discovers that its language contradicts the majority's interpretation. In reciting language from 1926.750(b)(2)(i) regarding flooring requirements, the lead opinion fails to explain the significance of the final sentence in the standard. This omission is important because that sentence states that "[w]here such a floor is not practicable, paragraph (b)(1)(ii) of this section applies." It would appear, therefore, that the standard as a whole contemplates a "tiered building" that would not possess floor levels. Interestingly, respondent was cited for failing to provide safety nets in place of flooring under the terms of 1926.750(b)(1)(ii), i.e. precisely the standard to which an employer is referred by 1926.750(b)(2)(i) if the structure in question is not adaptable to flooring. Moreover, it should also be noted that part of 1926.750(b)(2)(i) relied upon in the lead opinion contains the phrase "tier of beams." It can be argued that this phrase indicates that the standard contemplates the tiering of beams rather than floors when it uses the term "tiered building." As such, the terms of the standard would support complainant's interpretation.

While the [*26] above represents perhaps the most glaring weakness in the Chairman's reading of 1926.750 as a whole, his references to other subdivisions in 1926.750 prove also to be tenuous. For example, the lead opinion refers to 1926.750(a)'s requirements regarding "permanent flooring." I submit, however, that merely because the standard covers "tiered buildings" that possess permanent floors does not mean that the standard does not encompass "tiered buildings" that do not possess permanent floors. It is equally plausible to read 1926.750(a) as regulating permanent flooring in the subclassification of multifloored buildings included within the larger classification of "tiered buildings."

The lead opinion relies on language in 1926.750(b)(1)(iii) requiring perimeter guarding on temporary floors ". . . of tier buildings and other multifloored structures . . . ." Contrary to the Chairman's implication, this language does not indicate that the terms "tier building" and "multifloored structure" are synonymous. Indeed, under the Chairman's reading the quoted portion of 1926.750(b)(1)(iii) would read ". . . of multifloored structures and other multifloored structures . . . ." I doubt that [*27] the drafters of the standard intended this tautology. In any event, even if one ignores the canon of construction that standards be read to avoid redundancy and assumes that the drafters intended the redundancy, I submit that the presence of such language in 1926.750(b)(1)(iii) does not render nugatory the interpretation advanced by complainant. By its terms 1926.750(b)(1)(iii) requires that the periphery of certain temporary floors be guarded during structural steel assembly. As noted with regard to 1926.750(a)'s requirements regarding permanent flooring, the mere fact that the standard requlates conditions in buildings that will possess floors does not mean that the standard does not regulate structures that will not possess floors.

From the above it is apparent that the standard is not clear on its face as suggested in the lead opinion. It can be read to support the interpretation urged by both parties. Under these circumstances, it becomes necessary to look to extrinsic aids in interpreting the standard.

I submit that one appropriate consideration is the meaning afforded the term "tiered building" within the steel erection industry. As noted, there was substantial [*28] disagreement between complainant's and respondent's expert witnesses in this case regarding the interpretation of the term "tiered building" within the steel erection industry. This disagreement was, however, resolved by the Judge when he accepted the interpretation advanced by Luther Fleming, one of complainant's experts, and rejected the contrary testimony of respondent's witnesses. As a reviewing agency the Commission may overrule findings of its administrative law judges. F.C.C. v. Allentown Broadcasting Corp., 349 U.S. 358, 364 (1955); 5 U.S.C. 557(b). Nevertheless, the Commission must give some weight to the findings of its judges even when it involves an evaluation of expert testimony. See Utica Observer-Dispatch v. N.L.R.B., 229 F.2d 575, 577 (2d Cir. 1956); 2 K. Davis, Administrative Law Treatise 10.04 (1958).

In my opinion, the industry practice, when coupled with the deference due the interpretation urged by complainant, warrants an affirmance of the Judge's disposition of this case. It is a settled principle of construction that an adopting agency's interpretation of its own regulation ". . . is controlling so long as it is one of several reasonable [*29] interpretations, although it may not appear as reasonable as some other. Brennan v. Southern Contractors Service, 492 F.2d 498, 501 (5th Cir. 1974) (citation ommitted).

Finally, it is well settted that this Commission has an obligation to construe standard in favor of the workers whom the Act seeks to protect. n15 This obligation dictates that we adopt the reasonable reading urged by complainant because it affords greater protection to affected employees than that urged by respondent. Indeed, the protection that would be required if 1926.750(b)(1)(ii) were applied to respondent's jobsite would have probably prevented the fatality that occurred on this jobsite. The deceased fell while setting trusses at a height of 105 feet. He was not protected by either a safety net or properly tied off safety belt. Substantial evidence shows that, because safety belts could not always be secured while working at such heights, the most appropriate form of protection would be a safety net as required by 1926.750(b)(1)(ii). Under such circumstances, complainant's reasonable reading of the standard should be followed so as to assure the maximum degree of protection for affected employees. [*30]

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n15 GAF Corp. and United Engineers & Constructors, Inc., 3 BNA OSHC 1686, 1975-76 CCH OSHD para. 20,163 (Nos. 3203, 4008 & 7355, 1975) (consolidated cases), petition for review docketed in Nos. 3203 & 4008, No. 76-1028, D.C. Cir., Jan. 13, 1976, petition for review dismissed in No. 7355, No. 76-1041 (3rd Cir., Nov. 8, 1976).

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Based upon the above, I dissent from the majority's disposition of this case and would adopt Judge Patton's decision. n16 In light of my position, I express no opinion concerning the lead opinion's discussion and disposition of complainant's motion to amend in the event the Commission rules that 29 CFR 1926.750(b)(1)(iii) does not apply in this case.

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n16 The opinions of both Chairman Barnako and Judge Patton reject the merits of respondent's argument that the cited standard was improperly promulgated. In my opinion this Commission does not possess the requisite authority to decide such issues. United States Steel Corp., 2 BNA OSHC 1343, 1974-75 CCH OSHD para. 19,047 (Nos. 2975 & 4349) (concurring opinion), petition for Review dismissed as premature, 517 F.2d 1400 (3rd Cir. 1975). Assuming arguendo that we do have such authority, I agree with the analysis and disposition of this issue in the lead opinion and the Judge's decision.

[*31]

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