SECRETARY OF LABOR,
Complainant,

v.

WILLIAMS ENTERPRISES, INC.,
Respondent.

OSHRC Docket No. 79-0843

DECISION

Before:  ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
CLEARY, Commissioner:

A decision of Administrative Law Judge Joseph L. Chalk is before the Commission for review pursuant to section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").  Judge Chalk vacated the Secretary's amended citation 1 alleging that certain employees of Williams Enterprises, Inc. ("WEI") engaged in the construction of a building were exposed to a 58-foot fall distance while moving metal decking over a platform that lacked guardrails, and WEI therefore failed to comply with the general construction standard at 29 C.F.R. 1926.500(d)(1).  Judge Chalk also vacated the Secretary's amended citation 2 alleging WEI's willful noncompliance with both the steel erection standard at 29 C.F.R. 1926.750(b)(2)(i) and the general construction standard at 29 C.F.R. 1926.105(a) in that employees spreading metal decking on the structural steel framework of the building were not protected from varying fall distances by the use of both temporary flooring and safety belts.  The Commission vacates citation 1 and affirms citation 2 to the extent indicated below, assessing an $8100 penalty. 

I

A.

The Secretary began an inspection of WEI's worksite at the Dirksen Senate Office Building Annex in Washington, D.C. on October 2, 1978.  The inspection was conducted by compliance officer ("CO") John Wiseman and extended through January of 1979.  The primary responsibility of WEI at the worksite, at which ten other contractors were also employed, was to spread sheets of metal decking to be used as temporary flooring on the building's structural steel I-beams.  The decking material was prefabricated in lengths of anywhere from twelve to thirty feet as required by the building specifications.  The material was three feet, three inches wide and was corrugated so that it would interlock without slipping while being spread out to form the temporary floors.

Bundled quantities of decking were hoisted up to the different levels of the building by crane and stacked on the steel beams.  WEI employees would remove decking from the hoisted bundles and carry it piece-by-piece across beams that were four to twelve inches wide to the particular areas where it was needed.

The employees initially spread the decking loosely, without interlocking the corrugated pieces, to form a temporary floor and offer protection for employees working on higher floor levels.  The employees worked from the floor itself as the floor was being completed.  Subsequently, the employees returned to where the temporary decking had been laid to make the decking tight and weld it to the building's steel beams.

On October 5 at about 8:10 a.m., the CO observed six WEI employees spreading decking on the roof of the elevator machine room in the building's central wing.  The employees were standing on steel beams or sheets of deck material and were not equipped with safety belts.  Had they fallen, the employees could have fallen a distance of about forty feet because the area directly below them was open for that distance.   The CO discussed the situation with WEI general foreman Rink (who had directed the employees to work in that area) and foreman Eastep (who had accompanied the employees to their work area) and advised them that the safety regulations required either a safety net or a solidly decked floor within thirty feet below the employees and that the employees could also wear tied off safety belts while spreading decking.

Subsequently, at about 9:30 a.m. on that same day, the CO noticed another crew of WEI employees spreading decking on the third floor of the worksite near column lines 8 and K.  The employees were not wearing safety belts and were working in an area where they were exposed to a 47-foot fall.  The CO discussed the situation with the employees' foreman, King, who told the CO that WEI had no safety belts on the site.   General foreman Rink subsequently joined the conversation between the CO and King and was told by the CO that planked floors or nets, as well as safety belts, were required.  Rink indicated he would attempt to acquire safety belts for the employees.

On the morning of October 6, the CO observed WEI employees spreading decking by column EC-E10 on the building's third floor.  The employees were not wearing safety belts and were working in an area where they were exposed to a 47-foot fall because neither a solidly decked floor nor a safety net was below them.  Foreman King, who supervised the employees, told the CO that WEI did not yet have safety belts on the worksite.

The CO continued his inspection at the worksite and, after determining that safety conditions were not significantly improving, drafted and posted an imminent danger notice there on October 11.  On the following day, the CO, his supervisor, and OSHA Area Director Esparza met with a number of employers at the worksite to discuss safety hazards observed by the CO.  WEI general foreman Rink attended the meeting and was informed by Esparza that his employees should wear tied off safety belts.  When safety conditions at the site still failed to improve, OSHA sought injunctive relief in federal court against WEI and another employer at the sited.  The inspection continued while the injunction request, subsequently denied, was being litigated.

On November 1, the CO noticed four WEI employees moving sheets of metal decking across a bridge or platform formed by the interlocking of three or four three-foot wide pieces of decking on the building's fourth floor.  The platform did not have guardrails and bridged a 30-40 foot long area of beams.  The employees walked within one foot of the edge of the platform and could have fallen 58 feet to the ground below.   WEI foreman King worked with the employees during the time the CO was observing them.

On January 11, 1979, the CO returned to the worksite and observed four WEI employees spreading decking on the building's fourth floor near column line EE-E7.   The employees were not wearing tied off safety belts and could have fallen eleven feet, nine inches to the floor below.  The employees were supervised by foreman Wine.   Wine was observed by the CO walking without a safety belt along a steel beam on the building's perimeter.  Off the outside portion of the beam, there was a clear fall distance of 58 feet.  Off the inside portion of the beam, there was a possible fall distance of 58 feet because the area below had not been completely decked over.   After observing these incidents, the CO discussed them with both Wine and Rink.   Rink told the CO that the employees had been wearing safety belts but just had not put them on that particular day.

B.

Two citations issued to WEI as a result of the Secretary's inspection are before us for review.  Serious citation 1 alleged noncompliance with the standard at section 1926.500(d)(1)[[1/]] in that employees were exposed to a 58-foot fall distance while moving decking over a platform that lacked standard guardrails.  A $720 penalty was proposed.  Willful citation 2 alleged noncompliance with sections 1926.28(a)[[2/]] and 1926.105(a)[[3/]] in that employees in the four following areas were not protected against falls of over 25 feet by either nets, ladders, safety belts, or other appropriate personal protective equipment: (a) Third floor near 8 line and K - 47-foot fall distance, (b) Third floor near column  EC-E10 - 47-foot fall distance, (c) Fourth floor near column EE-E7 - 58-foot fall distance.  Following subitems (a), (b), and (c) of citation 2 were the terms "OR, IN THE ALTERNATIVE" and a separate allegation citing noncompliance with section 1926.750(b)(2)(i)[[4/]] in that a tightly planked floor was not maintained within two stories under employees placing decking on the roof of the elevator machine room where there was a potential 40-foot fall distance.  The proposed penalty for all of citation 2 was $8100.

By his complaint, the Secretary amended willful citation 2 to alternatively allege that the citation was serious and to delete his allegations of noncompliance with section 1926.28(a).  He also made certain other housekeeping and substantive amendments to citation 2 which resulted in the following allegations:

Subitem (a) alleged noncompliance with sections 1926.105(a) and 1926.750(b)(2)(i) in that employees on the third floor near 8 line and K were not protected from a 47-foot fall distance by either a net, safety belts, or other appropriate personal protective equipment, and by the use of a substantial floor no more than 30 feet below them.

Subitem (b) alleged noncompliance with sections 1926.105(a) and 1926.750(b)(2)(i) in that employees on the third floor near column EC-E10 were  not protected from a 47-foot fall distance by either a net, safety belts, or other appropriate personal protective equipment, and by the use of a substantial floor no more than 30 feet below them.

Subitem (c) alleged noncompliance with sections 1926.105(a) and 1926.750(b)(2)(i) in that employees on the fourth floor near column EE-E7 were not protected from a 58-foot fall distance by the use of nets, safety belts, or other protective equipment, and by the use of a substantial floor no more than 30 feet below them.

Subitem (d) alleged noncompliance with sections 1926.105(a) and 1926.750(b)(2)(i) in that employees spreading decking on the roof of the elevator machine room were not protected from a 40-foot fall distance by the use of nets, safety belts, or other protective equipment, and by the use of a substantial floor no more than 30 feet below them.

The Secretary later moved for, and the judge granted, the following amendments to citations 1 and 2:  (a) citation 1 was amended to a willful and/or repeated, alternatively serious, citation with a proposed $2880 penalty, and (b) citation 2 was amended to a willful and/or repeated, alternatively serious, citation.   Further, at the conclusion of the hearing, the Secretary moved to amend subitem (c) of citation 2 to conform to the evidence presented and allege noncompliance with section 1926.28(a) in that certain employees observed by the CO worked while not wearing safety belts 11 feet, 9 inches above a temporary floor.  The judge took the motion under advisement.

C.

Judge Chalk vacated both citations 1 and 2.  In discussing citation 1, the judge found that the facts were essentially as the Secretary alleged them and that, further, WEI employees had moved decking across unguarded platform on at least four other occasions.  The judge vacated citation 1, however, after agreeing with the testimony of WEI's president, Williams, that cited section 1926.500(d)(1) was not applicable to skeleton steel erection and that the standard could only apply to buildings with floors already in place.  The judge found support for that interpretation of the standard in the Commission decision in Ashton Co., 76 OSAHRC 6/B11, 3 BNA OSHC 1968, 1975-76 CCH OSHD 20,351 (No. 5111, 1976).  The judge also observed that if the employees had not used the platform to bridge the open area they would have had to transport the decking by walking on the beams, which were as narrow as four inches wide, that framed the opening.

In discussing citation 2, Judge Chalk noted that the CO's position was that deckers were required to wear safety belts and lanyards even if temporary flooring was in place two floors beneath them.  The judge noted, however, that the testimony of witnesses with many years of industry experience established that the use of safety belts by deckers impeded work progress, was impossible, and was more hazardous than not wearing the belts.  Further, industry practice was to spread decking without wearing tied-off safety belts or using other protective devices.  The judge noted that WEI's president Williams had testified that since Subpart R [[5/]] did not require belts for deckers, belts were not required here.  The judge found implied support for Williams' views from Subpart R's limited mandate under section 1926.750(b)(2)(iii) that safety belts be used by employees gathering and stacking temporary planking, a task unrelated to decking.   The judge stated that if WEI's evidence about the impossibility and hazards of safety belt use by deckers was creditable, it was logical to conclude that the safety belt requirement the Secretary would impose in this case was purposely omitted from Subpart R.   Because he concluded that Subpart R had purposely omitted a safety belt requirement for deckers, the judge held that no safety belt requirement from any other part of the OSHA standards could be super-imposed in its place.

The judge accepted the testimony of WEI president Williams that it was more dangerous for deckers to install safety nets than it was for deckers to work without nets.   The judge also pointed out that union business agent Walker had agreed with Williams' testimony that it took about the same amount of time to hang a safety net as it did to spread decking.

With respect to the alleged lack of temporary flooring, the judge resolved the merits of the section 1926.750(b)(2)(i) allegations by finding that WEI could not have complied with the standard in this case because of the building's numerous open gallery areas, some of which extended from the building's basement to its roof.  The judge further found that walking on beams unprotected by temporary floors, safety nets, or safety belts was a necessary and proper adjunct to the decking process engaged in by WEI's employees.

D.

The Secretary petitioned for review, taking exception to the judge's order vacating citations 1 and 2.  Commissioner Cottine directed review on all of the issues raised by the petition including:

1.  Whether the judge erred in vacating citation no. 1 on the grounds that cited standard section 1926.500(d)(1) is inapplicable to skeleton steel erection.

2.  Whether the judge erred in vacating citation no. 2, alleging noncompliance with section 1926.750(b)(2)(i) or, alternatively, section 1926.105(a), on the grounds that (a) compliance with the flooring requirements of the former standard would be impossible, (b) no other means of protection was available, and (c) the use of safety nets or safety belts would be hazardous.

3.  Whether the judge erred in vacating citation no. 2 on the further ground that a safety belt requirement was purposely omitted from steel erection Subpart R and no other safety belt requirement can be superimposed in its place.

4.  Whether the judge erred in failing to issue a cease and desist order for the allegedly noncomplying conditions specified in citations 1 and 2.

E.

The major argument presented in the Secretary's review brief is that WEI is subject to all the OSHA construction safety standards, not just those found in Subpart R dealing with steel erection.  The Secretary argues that the general construction safety standards must apply to steel erectors to provide those employees with any meaningful protection under the Act.  In support of his argument, the Secretary cites the Fourth Circuit Court of Appeal's decision in Bristol Steel & Iron Works v. OSHRC, 601 F.2d 717 (4th Cir. 1979).

WEI's primary contentions on review are, with respect to citation 1, that section 1926.500(d)(1) does not apply to steel erection and, with respect to citation 2, that the Secretary's section 1926.28(a) amendment motion should be denied because amendment would deprive WEI of due process, but that, in any event, the Secretary did not prove that safety belts should have been used.  WEI also argues that section 1926.105(a) does not apply to safety belts but instead applies to safety nets, and that the Secretary did not prove noncompliance with either section 1926.105(a) or section 1926.750(b)(2)(i).

II.

A.

Employees engaged in structural steel erection are exposed to obvious fall hazards, and many employees have been killed during such work.  See, e.g., Daniel Construction Co., 77 OSAHRC 21/A2, 5 BNA OSHC 1005, 1976-77 CCH OSHD 21,521 (No. 7672, 1977).  The Secretary has promulgated standards designed to protect against fall hazards.  He contends that the steel erection standards in Subpart R are not the only standards applicable to steel erectors and that fall protection standards applicable to general construction work supplement the fall protection standards in Subpart R.  In this case, the Secretary contends that the employees of WEI should have been protected by standard guardrails while working on a temporary platform, and by safety belts as well as temporary floors while working to spread decking in areas where they were exposed to fall distances of 30 feet or more.  The safety standards requiring guardrail and safety belt protection cited by the Secretary are both a part of the general construction standards, not Subpart R.  The threshold issue is, therefore, whether Subpart R is exclusive and therefore precludes steelworkers from being afforded the fall protection required by safety standards located outside Subpart R.

The courts that have addressed this problem have held that the steel erection standards in Subpart R are not exclusive.  In L.R. Willson & Sons v. Donovan, 685 F.2d 664 (D.C. Cir. 1982), the court stated:

We think it clear from the plain language employed in section 1910.5(c) [[6/]] that the general standards apply to all hazards native to the steel erection industry unless a specific standard in Subpart R sets forth a different mandatory or preferred method for protecting against the particular hazard in question.

685 F.2d at 669.  The Fourth Circuit, as the Secretary argues, has reached a similar conclusion:

The [steel erection standards] . . . . , while providing safety protection to employees engaged in steel erections, cannot achieve the goal of adequately protecting those employees in every conceivable situation.  Infinite hypotheticals can be envisioned in which employees engaged in steel erection would be exposed to an unnecessary hazard not covered by a Subpart R specific safety standard.

Bristol Steel & Iron Works v. OSHRC, 601 F.2d at 721-22.

In another case before the U.S. Court of Appeals for the District of Columbia, also involving L.R. Willson & Sons, the court found the Fourth Circuit's reasoning persuasive and held:

Section 1926.750(b) does not specify the measures required of employers to protect workers in the structural steel industry from hazardous falls of less than 30 feet and it is beyond question that falls of less than 30 feet can cause "serious physical harm." Accordingly, the scheme of the regulations permitted the Secretary to cite Willson for a violation of section 1926.28(a) for failing to protect its workers from the risk of a hazardous fall of 24 feet.

L.R. Willson & Sons v. OSHRC, 698 F.2d 507, 512 (D.C. Cir. 1983). 

These court decisions have properly resolved the issue.  The fall protection provisions in the steel erection standards are obviously directed at several specific situations rather than at the general problems of providing fall protection during all steel erection work.  Indeed, the steel erection standard in citation 2 here, section 1926.750(b)(2)(i), is a perfect illustration.  The latter standard requires a temporary floor within 30 feet of the tier of beams on which employees are working.  This standard does not, however, provide protection for employees that fall to the exterior of the building and offers only limited protection for employees that fall 30 feet to the interior of a building onto temporary metal flooring.  There is nothing in the steel erection standards which suggests that the Secretary intended to deny to steel erectors feasible protection otherwise available, that is, available outside Subpart R, against falling 30 feet to a temporary floor on the interior of a building or to the ground outside a building.  Consequently, where general standards provide meaningful protection to employees beyond the protection afforded by the steel erection standards, the general standards apply to steel erection work.  This does not mean, however, as the balance of this opinion will show, that the Secretary can indiscriminately cite employers engaged in steel erection under any general construction standard.

B.

In citation 1, the Secretary has cited WEI for noncompliance with section 1926.500(d)(1) because certain of its employees were exposed to a 58-foot fall distance while moving decking over a "platform" that lacked standard guardrails.   The Commission has recognized, in interpreting standards requiring the guarding of platforms, that not every surface on which an employee may stand during the course of his work is a "platform" within the meaning of such standards.  Globe Industries, 82 OSAHRC 40/D6, 10 BNA OSHC 1596, 1982 CCH OSHD 26,048 (No. 77-4143, 1982); General Electric Co., 81 OSAHRC 97/D6, 10 BNA OSHC 1144, 1981 CCH OSHD 25,736 (No. 76-2879, 1981); Rexco Industries, 80 OSAHRC 32/A2, 8 BNA OSHC 1227, 1980 CCH OSHD 24,376 (No. 15350, 1980).  Instead, such standards must be given a reasonable interpretation based on the facts of each case.  General Electric Co. v. OSHRC, 583 F.2d 61 (2d. Cir. 1978); Globe Industries, supra.

The alleged "platform" in this case consisted of several sheets of interlocked temporary metal decking.  At the time of the alleged violation, WEI's employees were moving other sheets of temporary decking across this "platform."

Clearly, it would be unreasonable to apply the platform guarding requirement of section 1926.500(d)(1) to the work of spreading temporary decking during steel erection.  Such work, by its nature, requires the brief presence of employees on various surfaces, including the building's structural steel framework and the very temporary decking being spread by the employees.  To regard each of such surfaces as platforms that require guarding would mean that, as the work progresses, each piece of decking on which employees stood to place the next piece of decking would have to be guarded.  Such a requirement would not only be infeasible, but would also unnecessarily expose employees to fall hazards for the time involved in erecting guardrails.  Thus, the use by employees of interlocked temporary decking sections as working surfaces from which to install or transport other sections of decking does not convert those working surfaces into platforms within the meaning of section 1926.500(d)(1).  Further, section 1926.750(b)(1)(iii)[[7/]] specifically requires the installation of 1/2-inch wire rope safety railings around the periphery of temporary metal decked floors.  In light of the fact that the "platform" being used by the employees consisted of temporary metal decking, it would be improper to apply the more general standard at section 1926.500(d)(1) here.  Ashton Co., supra.   Consequently, citation 1 is vacated.

C.

With respect to citation 2 and the allegations made in subitems (a), (b), and (d) of noncompliance with section 1926.750(b)(2)(i) for WEI's failure to use temporary floors to protect its employees from interior falls of 30 feet or more, WEI argues generally that the Secretary failed to present evidence of a violation.  WEI also argues, specifically in regard to subitems (a) and (b), that no flooring was placed between the employees and the ground because no flooring had been planned for that area until the building reached the level on which the employees worked and that the employees observed by the CO were laying decking as a safety precaution to protect employees working on higher levels.  WEI's arguments are rejected because they do not rebut the prima facie case of nocompliance with section 1926.750(b)(2)(i) established by the testimony of the CO that employees worked without the protection of temporary floors that should have been placed within 30 feet beneath them.  Further, with respect to WEI's argument directed at subitems (a) and (b) that its employees were only laying decking to protect employees working on higher levels, the Commission has held that employees must be protected even while they are in the process of installing safety protection.  See Floyd S. Pike Electrical Contractor, Inc., 77 OSAHRC 26/B11, 5 BNA OSHC 1088, 1977-78 CCH OSHD 21,584 (No. 12398, 1977), aff'd, 576 F.2d 72 (5th Cir. 1978).  WEI should therefore have placed a temporary floor within 30 feet beneath where it knew its employees would work.  Also, the judge erred in finding that WEI could not have complied with section 1926.750(b)(2)(i) because of the building's numerous open gallery areas.   Although WEI did introduce general evidence about the existence of gallery areas in the building, such general evidence failed to establish that temporary floors could not have been placed beneath the employees working in the particular area specified by subitems (a), (b), and (d).  Further, photographic evidence of the area cited in subitem (b) reveals that the employees could have been protected by the use of temporary floors.[[8/]]  Consequently, WEI failed to comply with section 1926.750 (b)(2)(i) in subitems (a), (b), and (d) of citation 2 where interior falls of 30 feet or more are alleged.

D.

The Secretary has also alleged noncompliance with section 1926.105(a) in subitems (a), (b), and (d) of citation 2 for WEI's failure to assure that employees used safety belts, along with temporary floors or safety nets, to protect against interior falls of 30 or more feet.  Although temporary floors are better than no protection at all for steel workers, the protection they offer is minimal and does not provide employees with the protection they need against serious injury should they fall 30 feet to temporary floors.  Therefore, the protection offered by section 1926.750(b)(2)(i) may be supplemented by the protection offered in any appropriate safety standard found outside Subpart R.  L.R. Willson & Sons v. Donovan, supra; Bristol Steel & Iron Works v. OSHRC, supra; see also L.R. Willson & Sons v. OSHRC, supra.  The cited section 1926.105(a), however, is not an appropriate standard for the protection of the employees here against interior falls because the standard would merely duplicate the protection offered by section 1926.750(b)(2)(i), under which standard violations have already been found.  Both section 1926.105(a) and section 1926.750(b)(2)(i) look to floors as preferred methods of protection from falls and safety nets as alternative means of fall protection when floors are not practicable (section 1926.750(b)(2)(i)) or are impractical (section 1926.105(a)).[[9/]]  See S & H Riggers and Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1261, 1979 CCH OSHD 23,480 at p. 28,434 (No. 15855, 1979), rev'd on other grounds, 659 F.2d 1273 (5th Cir. 1981).  As determined above, floors could and should have been provided to protect the employees involved in subitems (a), (b), and (d).  Therefore, the Secretary's allegations involve the failure to use safety belts to protect employees against interior falls, are vacated.

Protecting WEI's employees from 30-foot falls to temporary floors would have been most appropriately attained by the use of safety belts.  See L.R. Willson & Sons v. OSHRC, supra.  By citing WEI for noncompliance with sections 1926.750(b)(2)(i) and 1926.105(a), this is what the Secretary attempted to do.  The Secretary erred, however, in citing to section 1926.105(a) instead of section 1926.28(a).[[10/]]  The latter section requires that safety belts be used whenever a reasonable person familiar with the facts, including any facts unique to a particular industry, would recognize a hazard warranting their use.  S & H Riggers and Erectors, Inc., 7 BNA OSHC at 1263, 1979 CCH OSHD at p. 28,436.  Although the Secretary originally included a section 1926.28(a) allegation in citation 2 as to the interior falls of 30 feet or more, he deleted the allegation in his original complaint, and did not seek to restore it in his amended complaint.  Thus, although WEI may well have violated section 1926.28(a) as well as section 1926.750(b)(2)(i), that question is not before us in this case.

E.

Subpart (c) of citation 2 alleges noncompliance with section 1926.750(b)(2)(i) for WEI's failure to use temporary floors and noncompliance with section 1926.105(a) for WEI's failure to use safety belts to protect (1) a group of employees working without protection 11 feet, 9 inches above a temporary floor and (2) foreman Wine working without protection on building perimeter beams 58 feet above the ground.  The Secretary seeks to amend the portion of subitem (c) involving the employees working 11 feet, 9 inches above a temporary floor to allege noncompliance with the more appropriate safety belt standard for that fall distance, section 1926.28(a).

The Secretary's motion to amend to section 1926.28(a) is denied.  As mentioned above, the Secretary's citation 2 originally included a section 1926.28(a) allegation, but that allegation was deleted from the Secretary's subsequently-issued complaint.  The Secretary failed to reinstate the section 1926.28(a) allegation in his amended complaint and specifically stated in the pre-hearing deposition of the CO that he was abandoning the section 1926.28(a) allegation.  Further, the Secretary remained silent at the beginning of the hearing when the judge stated that the Secretary had deleted the allegation from the case.  The Secretary did not seek to reinstate the allegation until the end of the hearing and then only with respect to the employees subject to the 11-foot, 9-inch fall distance.  WEI was not, therefore, put on notice that the appropriateness of safety belts to protect against 11-foot, 9-inch falls would be at issue during the hearing.  WEI would be prejudiced if amendment were allowed.   Also, WEI did not fail to comply with either section 1926.750(b)(2)(i) or section 1926.105(a) as to the employees unprotected at the 11-foot, 9-inch fall distance because that fall distance is less than the fall distances against which the cited standards require fall protection.

WEI has, however, failed to comply with both sections 1926.750(b)(2)(i) and 1926.105(a) in regard to foreman Wine, who was observed standing without protection on perimeter beams where he could either have fallen 58 feet to the ground on the interior of the building because there was no temporary flooring beneath him or 58 feet to the ground on the outside of the building because he was not wearing a safety belt and there was not a safety net on the building's perimeter.  WEI advances the same arguments in regard to the section 1926.750(b)(2)(i) allegation here as it did in regard to the section 1926.750(b)(2)(i) allegations made in subitems (a), (b), and (d) above.  The arguments are rejected for the reasons outlined above.  Also, photographic evidence establishes that Wine could have been protected from a 58-foot fall to the ground on the building's interior by the installation of temporary flooring within 30 feet beneath him.

Further, the Secretary made out a prima facie case that WEI violated section 1926.105(a) by proving that none of the means of fall protection specified in section 1926.105(a) were used to protect Wine against an exterior fall to the ground of 58 feet.   Southern Colorado Prestress Co. v. Marshall, 586 F.2d 1342 (10th Cir. 1978).   The CO testified that Wine should have been protected with a safety belt that could have been attached to a static line or, if there were a perimeter cable in the area, Wine could have snapped his belt to the cable and walked the entire length of the beam.

WEI defends by arguing that the CO's testimony is irrelevant because WEI has not been charged with noncompliance of any standard involving the use of safety belts or cables.  WEI also argues that section 1926.750(b)(1)(iii), note 7 supra, does not require a perimeter cable until the floor on any particular building level has been fully decked.  The level on which the employee here worked was not yet fully decked.

WEI's arguments are rejected.  Section 1926.105(a) may appropriately be applied here to require safety belt protection against the exterior fall hazard because the temporary floor requirement of section 1926.750(b)(2)(i) would not have protected Wine from a fall to the outside of the building.  Further, WEI's section 1926.750(b)(1)(iii) argument is inapposite.  WEI was required to afford Wine fall protection.  Since the use of a safety belt as fall protection would have required installation of a static line or perimeter cable to which the safety belt could have been attached, WEI was required to install the static line or perimeter cable in time for its use by Wine as a safety belt tying off point. [[11/]]

III

The Secretary argues that citation 2 should be characterized as willful, and the record amply supports such a characterization.  The allegations made in the four subitems of citation 2 relate to events which occurred on October 5 and 6, 1978: November 1, 1978; and January 11, 1979.  On October 5, 1978, the CO observed employees and their foreman, Eastep, working without the protection of temporary floors or safety belts.   The CO spoke to both Eastep and WEI's project general foreman, Rink, about the violation and advised them to provide temporary floors within two stories of where employees worked.  Later that same day, the CO observed WEI foreman King and his crew of employees working without the protection of temporary floors or belts.  The CO discussed the problem with King in a conversation which was subsequently joined by Rink.   On the very next day, the CO again observed King and his crew working without protection.  The CO again spoke with King.

The situation did not significantly improve thereafter, however, and the CO continued to witness similarly violative conditions.  On October 11, therefore, the CO posted an imminent danger notice at the jobsite.  He warned employees and supervisors about the violative conditions and urged their correction; similarly violative conditions continued to appear, however.  After spending a period of time away from the jobsite, the CO subsequently returned to it and on January 11, 1979 observed WEI supervisor Wine working without the protection of a temporary floor, safety belt, or safety net.  The CO spoke to Wine and general foreman Rink about correcting the recurring problem.

In addition, the Secretary presented testimony from a number of employees who had worked at the jobsite for WEI during the period of inspection.  Those employees all testified that they frequently worked without the protection of temporary floors or safety belts, usually in the presence of their supervisors.  Thus, because the facts clearly establish WEI intentionally disregarded the terms of the cited standard, citation 2 is willful.   See Mel Jarvis Construction Co., 81 OSAHRC 89/B13, 10 BNA OSHC 1052, 1981 CCH OSHD 25,713 (No. 77-2100, 1981).

An $8,100 penalty is assessed for citation 2.  WEI is a large employer with a history of past violations of the Act.  The gravity of the noncomplying instances in citation 2 was high because employees worked many feet above the ground without fall protection.  Further, WEI was deficient in good faith because it essentially refused to protect its employees after being advised on numerous occasions of what was required to protect them.  Also relevant to WEI's deficiencies in the area of good faith is its operation of the jobsite under a general foreman, Rink, who lacked safety training.  Rink testified that he had never been given any training by WEI or anyone else on the contents of the OSHA safety standards and that he had never discussed employee safety with WEI president Williams or WEI supervisory employees.  Rink was WEI's senior supervisor at the jobsite and was present daily.

IV

The Secretary also contends that the judge improperly failed to grant the Secretary's request for a cease and desist order under Section 10(c) of the Act.   Assuming, without deciding, that the Commission has authority to grant such an order, the Secretary has failed to demonstrate the appropriateness of such an extraordinary remedy to a case involving a construction site where WEI's responsibilities for the installation of temporary flooring have ended.  See Wright and Lopez, Inc., 80 OSAHRC 36/A2, 8 BNA OSHC 1261, 1980 CCH OSHD 24,419 (No. 76-3743, 1980).

Accordingly, citation 1 is vacated.  Citation 2, subitems (a), (b), and (d) are affirmed insofar as they allege noncompliance with section 1926.750(b)(2)(i) for the failure to use temporary floors to protect employees from interior fall distances of 30 feet or more and vacated insofar as they allege noncompliance with section 1926.105(a) for the failure of employees to wear safety belts.  Subitem (c) of citation 2 is vacated insofar as it alleges noncompliance with sections 1926.105(a) and 1926.750(b)(2)(i) for the failure to protect employees from a fall of 11 feet, 9 inches.   The Secretary's motion to amend the foregoing portion of subitem (c) to allege noncompliance with section 1926.28(a) is denied.  Subitem (c) is affirmed insofar as it alleges noncompliance with section 1926.750(b)(2)(i) for the failure to use temporary flooring and noncompliance with section 1926.105(a) for the failure to use a safety belt to protect foreman Wine from interior and exterior falls of 58 feet.  Citation 2 is designated willful and an $8,100 penalty is assessed.  The Secretary's request for a cease and desist order is denied.

SO ORDERED.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED:  APR 27 1983


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FOOTNOTES:

[[1/]] The standard at 1926.500(d)(1) provides:

1926.500 Guardrails, handrails, and covers.

*     *       *

(d) Guarding of open-sided floors, platforms, and runways.
(1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent as specified in paragraph (f)(1)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder.  The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.

[[2/]] The standard at 1926.28(a) provides:

1926.28 Personal protective equipment.

(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

[[3/]] The standard at 1926.105(a) 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.

[[4/]] The standard at 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) or this section applies.

[[5/]] Subpart R, entitled "Steel Erection," is that portion of the construction standards found at 29 C.F.R. 1926.750-1926.752 which contains standards specifically applicable to steel work.

[[6/]] Section 1910.5(c) 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.  For example, 1501.23(c)(3) of this title prescribes personal protective equipment for certain ship repairmen working in specified areas.  Such a standard shall apply, and shall not be deemed modified nor superseded by any different general standard whose provisions might otherwise be applicable, to the ship repairmen working in the areas specified in 1915.23(c)(3).

(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, as in Subpart B or Subpart R of this part, to the extent that none of such particular standards applies.  To illustrate, the general standard regarding noise exposure in 1910.95 applies to employments and places of employment in pulp, paper, and paperboard mills covered by 1910.261.

[[7/]] The standard at 1926.750(b)(1)(iii) provides:

1926.750 Flooring requirements.

(b) Temporary flooring--skeleton steel construction in tiered buildings. (1)

*       *          *

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

[[8/]] The photographic evidence depicting the areas involved in subitems (a) and (d) does not show the area beneath the employees where flooring should have been placed.

[[9/]] Section 1926.750(b)(2)(i), note 4 supra, provides that section 1926.750(b)(1)(ii) applies when temporary floors are not practicable.  The latter section mandates that, on buildings or structures not adaptable to temporary floors, safety nets must be used whenever the potential fall distance exceeds 25 feet.  Thus, under section 1926.750, floors must be installed within 30 feet or, if not practicable, nets must be used to limit the potential fall to 25 feet.  Under section 1926.105(a), falls must be limited to 25 feet in all cases; if temporary floors, ladders scaffolds, catch platforms, safety lines, or safety belts are not practical, safety nets must be used.

[[10/]] The Secretary elected to proceed under 1926.105(a) rather than 1926.28(a) stating that the former standard is more specifically applicable to falls of more than 25 feet than the latter.  However, 1926.105(a) is not more specifically applicable, even when the height requirement is satisfied, than a standard requiring the use of safety belts in the first instance.  S & H Riggers and Erectors, Inc., supra.

[[11/]] The CO's testimony established that the installation of a cable could have been effected with significantly less danger than that presented by Wine's standing erect on the perimeter beams without any protection.  An employee could have "walked" a horizontal perimeter beam by placing his feet on the lower flange of the beam and grasping the beam's top flange with his hands (a process sometimes referred to as "cooning" a beam).  The employee would coon the horizontal beam between two vertical steel columns and on reaching the columns attach a static line to them.  Once installed, the line could serve as a point to which safety belts and lanyards would be attached.