Docket No. 80-5866

SECRETARY OF LABOR,
Complainant,

L. R. WILLSON & SONS, INC.,
Respondent.

OSHRC Docket No. 80-5866

DECISION

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

BY THE COMMISSION:

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

The citation item on review [[1]] resulted from a 1980 OSHA inspection of a Washington, D.C. construction worksite. L. R. Willson & Sons, Inc. ("Willson") was engaged in structural steel erection work on the building under construction. The administrative law judge vacated the citation item on the basis that employers in the structural steel erection industry lacked notice that the cited construction standards generally requiring safety nets were applicable to the steel erection industry because OSHA had adopted particular standards applicable to steel erection requiring safety nets in certain circumstances. For the reasons that follow, we affirm the judge's decision.

The general industry safety net standards which OSHA cited are at 29 C.F.R. зз 1926.105(a) and (c). These standards are contained in Subpart E--Personal Protective and Life Saving Equipment--of 29 C.F.R. Part 1926--Safety and Health Regulations for Construction. They provide:

з 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.

* * *

(c)(1) Nets shall extend 8 feet beyond the edge of the work surface where employees are exposed and shall be installed as close under the work surface as practical but in no case more than 25 feet below such work surface. . . .

During the inspection of Willson's work areas at the construction worksite, the OSHA compliance officer observed two Willson employees standing on steel beams which formed the perimeter of the upper floors of a building under construction. The employees were respectively eleven and twenty-two feet above a temporary deck that extended to the perimeter of the floors below. The Secretary does not contend that the temporary floor did not comply with the requirements for such floors in steel erection. See 29 C.F.R. з 1926.750(b)(2)(i), infra. Nor has the Secretary alleged that safety belts were a feasible means of fall protection and should have been used. Instead, the Secretary contends that Willson was required under sections 1926.105(a) and (c) to install safety nets extending eight feet beyond the edge of the building. The OSHA area director for the Washington, D.C. office testified that perimeter nets are not required by the safety net provision in the steel erection standard, 29 C.F.R. з 1926.750(b)(1)(ii), infra.

Willson argues that the cited standards did not apply to its steel erection work in view of particular standards pertaining to structural steel erection and specifically requiring safety nets only where the building under construction is "not adaptable to temporary floors." These standards are contained in Subpart R--Steel Erection--of part 1926. They provide:

з 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)(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.

In Adams Steel Erection, Inc., OSHRC Docket No. 77-4238 (July 20, 1984), we held that section 1926.750(b) is specifically applicable to the hazard of falling in the steel erection industry, and that section 1926.105(a) may not be applied to require fall protection methods different than that specified in section 1926.750(b). The citation in this case to section 1926.105(c) as well as section 1926.105(a) does not alter our conclusion. That section provides that nets shall extend eight feet beyond the edge of a work surface where employees are exposed, and shall be placed as close under the work surface as practical, but no more than 25 feet away, with sufficient clearance to prevent contact with surfaces below the net. Section 1926.105(c) simply sets forth specifications to be met when safety nets are required by section 1926.105(a). It is section 1926.105(a) which states the circumstances under which safety nets are required. Thus, the requirement of section 1926.105(c) does not come into force unless nets are required under section 1926.105(a), and since section 1926.105(a) is not applicable, the citation to 1926.105(c) must also be vacated.[[2]]

We note that the Court of Appeals for the District of Columbia Circuit, the place where this violation occurred, has concluded that the general industry safety net standard is not preempted in its application by the particular standards for steel erection. L. R. Willson & Sons, Inc. v. Donovan, 685 F.2d 664 (D.C. Cir. 1982)("Willson").[[3]] However, applying the holding of the D.C. Circuit to this case, as the Secretary urges, does not alter our conclusion.

By its terms, section 1926.105(a) requires safety nets only where the use of the other listed fall protection devices or measures, including temporary floors, is "impractical." Where, as here, a temporary floor was in place beneath the employees, the question is whether the temporary floor was "impractical" as that term is used in section 1926.105(a). In Willson, the D.C. Circuit considered and rejected the Secretary's argument that safety nets must be used whenever one of the preferred, alternative fall protection methods in section 1926.105(a) "cannot provide fall protection at all times." 685 F.2d at 674 (emphasis in original). Although the Secretary may have intended to require safety nets in addition to other protective devices, "[t]his is not, however, what the regulation says." Id. at 675. Accord Brennan v. OSHRC (Ron Fiegen, Inc.), 513 F.2d 713 (8th Cir. 1975); Brennan v. OSHRC (J.W. Bounds), 488 F.2d 337 (5th Cir. 1973).

Safety nets are required only if other methods of fall protection, including temporary floors and safety belts, are "impractical." The Willson court concluded that it would be unreasonable to interpret the standard to mean that a fall protection device is impractical because it does not provide comprehensive, continuous protection. The court held that the Secretary must prove that a safety device did not provide protection during a "significant period" or "substantial portion" of the work day before the device can be considered impractical and safety nets can be required. 685 F.2d at 675. See Southwestern Industrial Contractors, 576 F.2d 42 (5th Cir. 1978); Brennan v. OSHRC (Ron Fiegen, Inc.), supra; Brennan v. OSHRC (J. W. Bounds), supra.

The Secretary has not met that burden in this case. When the OSHA compliance officer first arrived at the worksite, he observed two employees standing on steel beams which were part of the "outside" perimeter of the building. He observed this for only about five minutes, while he was parking and getting his materials ready for the inspection. The compliance officer did not know whether the employees "were connecting or bolting or what." Later, when the compliance officer photographed the worksite, the employees were not on the outside perimeter but were standing on "the leading edge," a location where there was a temporary floor directly below them. The photographs introduced into evidence show that the structure was constructed with columns and beams throughout the interior as well as around the exterior. The compliance officer indicated, based on the photographs, that logically the employees would continue to work near the leading edge but not near the outside perimeter of the building. Aside from this testimony by the compliance officer, there was no evidence which would indicate the amount of time during the work day that the employees would work on the outside perimeter.

In sum, the record does not show that Willson's employees were unprotected by a temporary floor or other fall protection during a "significant period" or "substantial portion" of the work day. Accordingly, even if we apply the rationale of the Willson case, we conclude that the Secretary has not established a violation of sections 1926.105(a) and (c).

For the above reasons, we affirm the judge in vacating the citation item.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED: JUL 20 1984

CLEARY, Commissioner, dissenting:

The majority purports to apply the law of the circuit to this case, but the interpretation placed on the D.C. Circuit's decision is imaginative to say the least. I disagree.

At the outset, I would note that in L. R. Willson & Sons, Inc. v. Donovan, 685 F.2d 664 (D.C. Cir. 1982), the D.C. Circuit held that

[t]he 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.

Noting that з 1926.750(b)(1)(ii) provides only for interior fall protection, the D.C. Circuit held that з 1926.105 is applicable to protect against exterior falls. As indicated in my dissent in Adams Steel Erection, Inc., OSHRC Docket No. 77-4238 (July 20, 1984), I adhere to that view and would apply that rationale in all instances, regardless of the circuit in which the case arises.

The D.C. Circuit, in L. R. Willson & Sons, Inc. v. Donovan, supra, also held that з 1926.105(a) requires the use of safety nets when the other listed devices are "impractical." The court held that these other devices would be deemed impractical when they would fail to provide protection for a substantial portion of the workday or a significant portion of the employees' work activities. 685 F.2d at 675.

In adopting this language, the majority concludes that Respondent's employees performed a substantial amount of work in the interior of the building during which time they were protected by temporary floors, and that while working upon the beams and columns along the perimeter, the temporary floor provided some protection. Accordingly, the decision holds that these temporary floors, which provided protection against interior falls during a significant portion of the workday, require vacating the citation for failure to provide fall protection against exterior falls. In essence, the decision finds that a safety device geared almost exclusively as protection against interior falls was "practical" for purposes of з 1926.105 for protection against exterior falls.

Implicit in the discussion of whether з 1926.105 or з 1926.750(b)(1)(ii) applies to exterior falls is the understanding that we are concerned with two separate hazards, exterior falls and interior falls. The majority decision concludes, however, that because exposure to exterior falls constituted a lesser portion of employee time, while exposure to interior falls (against which they are protected by temporary floors) occupied the majority of their time, the temporary floors were sufficiently practical within the meaning of з 1926.105(a), to obviate the need for safety nets.

I do not agree that this represents the D.C. Circuit's definition of "practical." First, temporary floors are a form of interior fall protection and, by their very nature, are impractical as a safety device against exterior falls. Moreover, there is nothing in the D.C. Circuit's decision to indicate that employees would have to be exposed to the hazard of an exterior fall for a substantial portion of the workday before fall protection is required. Yet, such an interpretation would be required to support the majority's holding. Rather, the court considered a safety device impractical if it could not be used for a sufficient percentage of the time employees were exposed to the fall hazard.

In the instant case, two employees were exposed to exterior falls of 88 and 99 feet while engaged in setting steel. The employees were not wearing safety belts, and there was no perimeter protection. Although temporary floors were provided to protect against interior falls, they were not effective as exterior fall protection. Moreover, the compliance officer testified that the need of employees to maintain mobility to allow them to dodge steel beams being swung by cranes rendered safety belts impractical. Accordingly, safety nets should have been provided, and Respondent's failure to do so constituted a violation.

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]] OSHA issued four citations. Before the judge the parties reached a settlement as to all citation items except three contained in one citation. The judge affirmed two of these items. The parties have not asked for review of the judge's decision concerning these items and review has not been directed concerning them. The judge vacated the one remaining item, and this item is before us upon former Commissioner Cottine's direction for review. Our review is thus limited to this one item of the one citation.

[[2]] Chairman Rowland would hold 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. Adams Steel Erection, OSHRC Docket No. 77-4238 (July 20, 1984) (concurring opinion); Williams Enterprises, Inc., 83 OSAHRC 26/A2, 11 BNA OSHC 1410, 1983 CCH OSHD ╢ 26,542 (No. 79-843, 1983) (Rowland, concurring and dissenting opinion). Therefore, in Chairman Rowland's view since section 1910.105(c) is outside subpart R, this is an additional ground for vacating the citation.

[[3]] Section 11(b) of the Act provides that the Secretary may obtain review of a final Commission order "in the United States court of appeals for the circuit in which the alleged violation occurred or in which the employer has its principal office...."