SECRETARY OF LABOR,
Complainant,

v.

WILLIAMS ENTERPRISES, INC.,
Respondent.


OSHRC Docket No. 81-0381


ORDER VACATING DIRECTION FOR REVIEW


Before: BUCKLEY, Chairman; WALL, Commissioner.

BY THE COMMISSION:

On January 20, 1982, Administrative Law Judge George O. Taylor vacated one item of a citation that alleged that Williams Enterprises failed to provide adequate fall protection for its employees engaged in structural steel erection on a project in Vienna, Virginia. The judge also affirmed other items that alleged violations of other construction industry standards.

The central issue on review is whether, at the time of the inspection in 1980, Williams had fair notice that it was obligated to provide perimeter nets under the general construction industry standard at 29 C.F.R. 1926.105. Williams contends that it lacked such notice because the construction standards specifically applicable to steel erection under Subpart R of Part 1926 do not require such protection, and because the Secretary generally was not issuing citations to steel erection employers for lack of perimeter nets.

The Fourth Circuit, where this case arose, has held that Subpart R does not preempt the general standard requiring personal protective equipment to guard against hazards which are not covered by that subpart. Bristol Steel & Iron Works, Inc. v. OSHRC, 601 F.2d 717 (4th Cir. 1979). Bristol did not, however, address whether the fall protection requirements in the steel erection standards preempt any obligation of steel erectors to provide perimeter nets under section 1926.105. After the issuance of the citation here, there have been several decisions in other circuits that have elaborated upon the reasoning in Bristol and specifically concluded that steel erection standards do not preempt any requirement in section 1926.105 to use perimeter nets in circumstances similar to those here. [[1]] The Secretary has also issued an instruction explicitly stating that during structural steel erection, perimeter fall protection, including perimeter nets, is required under section 1926.105. The document directs OSHA field personnel to issue citations accordingly. OSHA Instruction STD 3-3.1 (July 18, 1983), reprinted in 1 BNA OSH Rep. Ref. File 21:9118 and in 1982-83 CCH Employ. S. & H. Guide New Developments 12,855.

In view of these developments in the case law and in the Secretary's enforcement policy, the issue of whether a steel erection employer in the Fourth Circuit has fair notice of an obligation to provide perimeter nets for fall protection is in a completely different posture row than it was in 1980. A decision on whether Williams had notice of such a requirement when this case arose would not establish whether Williams, or other steel erection employers, have notice of a need for perimeter nets under the current state of the law. Since Williams' construction project has been completed, abatement of the alleged perimeter fall hazard and other cited conditions is not in controversy. Under these circumstances, we conclude that review is no longer provident. See Paschen /Morrison-Knudsen/ Kenny, a Joint Venture, 86 OSAHRC 12 BNA OSHC 1827, 1986 CCH OSHD 27,571 (No. 80-6448, 1986); P & Z Co., 82 OSAHRC 8/C8, 10 BNA OSHC 1427, 1982 CCH OSHD 25,937 (No. 76-431, 1982); A. C. & S., Inc., 76 OSAHRC 93/A2, 4 BNA OSHC 1529, 1976-77 CCH OSHD 20,955 (No. 2229, 1976).

Accordingly, the direction for review is vacated; the judge's decision is the final order of the Commission.


FOR THE COMMISSION
Ray H. Darling, Jr.

Executive Secretary

DATED: APR 16, 1987


SECRETARY OF LABOR,
Complainant,

v.

WILLIAMS ENTERPRISES, INC.,
Respondent.

OSHRC Docket No. 81-0381

APPEARANCES

Michael S. Berger, Esq.,
for the complainant.

James Brent Clarke, Jr., Esq. and
David R. Clarke, Esq.,
for the respondent.


DECISION AND ORDER


Taylor, Judge:


Statement of the Case

The respondent was the steel erection contractor for a three-story building with a penthouse in Vienna, Virginia. (Tr. 167, 366; Exhs. C-20, C-21.) Following an inspection of that worksite on December 2, 1980, the respondent was issued a citation for serious violations that alleges that the respondent violated seven occupational safety standards.

The respondent duly contested all of the charges. The respondent admitted in its answer to the complaint that jurisdiction over this case is vested in the Commission. The respondent's counsel also confirmed at the trial that there were no jurisdictional problems in the case. (Tr. 7.)

Item 1

Item 1 alleges that the respondent violated paragraphs (a) and (c)(1) of 29 1926.105 in the following particulars:

(a) Penthouse, North Side - Employees were connecting steel at edge of structure and not protected from falling approximately sixty-one feet to the ground ....
(b) Third Floor, East Side - Employees were connecting steel at edge of structure and not protected from falling approximately forty-five feet to the ground ....

A penalty of $900 is proposed for this item.

The complainant's inspector observed four of the complainant's employees connecting steel on the north side of the building from positions atop the penthouse. Only two of the connectors were working at the edge of the structure. (Tr. 175-176, 288; Exhs. C-22 through C-25.) The inspector also observed two of the complainant's employees connecting steel on the edge of the east side of the building at the roof level. (Tr. 186-194, 288; Exhs. C-26 through C-28.) A temporary floor located on the third floor beneath the connectors was within two stories and 30 feet of the connectors at both levels. [[1/]] (Tr. 257; Exhs. C-22 through C-28.) However, the connectors were not otherwise protected from falls. (Tr. 186, 194.) At the exterior of the building, the fall distance to the ground below was 61 feet from the top of the penthouse and 45 feet from the roof. (Tr. 182, 184- 185, 194, 409.)

The section of the standards here in issue, 29 C.F.R. 1926.105, is entitled "Safety Nets" and is located in Subpart E of the complainant's construction standards. That subpart is entitled "Personal Protective and Life Saving Equipment." Paragraph (a) of 29 C.F.R. 1926.105 provides that:

Safety nets shall be provided when workplaces fire 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.

Paragraph (c)(1) of 1926.105 provides that:

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. Nets shall be hung with sufficient clearance to prevent user's contact with the surfaces or structures below. Such clearances shall be determined by impact load testing.

At the outset of the trial, the complainant's counsel explained that the gravamen of the charge was the complainant's failure to provide safety nets on the building's exterior. (Tr. 22-23.) The complainant was not going "to show ... that safety belts or anything else besides nets should have been used.[[2/]] (Tr. 23.) The complainant's position is that the respondent's failure to provide exterior nets constitutes a violation of 1926.105(a) and that 1926.105(c) tells employers how the nets are supposed to be extended beyond a building's perimeter. [[3/]] (Tr. 22-23.)

The paramount thing that rings true in the record in this ease is that there is a wide divergence of opinion among the complainant's key enforcement personnel as to whether the standards in issue require steel erectors to provide exterior safety nets. This is succinctly illustrated by following statements in a September 26, 1980, memorandum from the Associate Solicitor for Occupational Safety and Health to the Deputy Assistant Secretary for Occupational Safety and Health, on the need for clarifying policy as to fall protection in structural steel erection:

The confusion in judicial opinions as to a steel erector's obligations is paralleled by a lack of consistency in OSHA enforcement of its regulations. Many compliance officers require no more than compliance with subpart R (decking every two floors and eventual erection of a parimeter [sic] cable).

* * *

The greatest divergence in enforcement, however, lies in the enforcement of 29 C.F.R. 1926.105(e)(1), which mandates the use of perimeter nets for employees exposed to a fall of greater than 25 feet. A survey of a number of OSHA area and regional offices indicates that this requirement is now being enforced only by the Hartford, Connecticut Area Office, and recently by some compliance officers in the Washington, D.C. Area Office. Throughout the rest of the country ironworkers walk the perimeter beams without any fall protection. (Exh. R-3.)

As a result of the above memorandum, a meeting was held on October 16, and 17, 1980, at the direction of Stephen D. Cooper, then a special assistant to the Assistant Secretary for Occupational Safety and Health, to "determine the needed clarification." (Tr. 550-551, 554, 558, 561-562; Exh. R-3.) The meeting was attended by officials from the Solicitor of Labor's office, the Occupational Safety and Health Administration (OSHA), and the International Association of lronworkers. (Tr. 479, 555-556; Exh. R-4.) Among other things, the applicability of 29 C.F.R. 1926.105(a) and (c)(1) to steel connectors and the content of the steel erection standards in 29 C.F.R. 1926.750 were considered at the meeting. (Tr. 481, 559-560.) Cooper testified that the meeting did not result in any consensus as to what 1926.105(a) and (c)(1) meant or on whether steel connectors should or could be protected by exterior safety nets. (Tr. 562-563, 567, 570-572.) Arthur J. Amchan, an attorney in Solicitor of Labor's office and one of the attendees at the meeting, testified that there was general agreement at the meeting that steel connectors "can and should be protected by perimeter nets or some other means, if some other means exists, at least when they are on the second floor or above." (Tr. 473, 483.) Amchan did not testify as to whether there was a consensus regarding the meaning of 29 C.F.R. 1926.105(a) and (c)(1). I consider the testimony of Cooper to he more credible than that of Amchan because Amchan's memory was quite hazy as to what transpired at the meeting. (Tr. 481, 484-485, 488.)

After the meeting, Amchan prepared a "draft program directive" that provided the following in regard to protecting employees engaged in the initial connection of steel columns and beams:

If an employer has not protected such employees, or employees performing other operations, above the second floor (above 25 feet) from perimeter falls with safety belts or other protective devices, the employer must protect such employees by erecting safety nets at the building perimeter, at a level below such employees.

(Tr. 502-505; Exh. R-7.) However, at the time of the trial of this case, Amchan's draft proposal had not been officially adopted by OSHA. (Tr. 507, 579.)

Pursuant to Cooper's request in about March 1980, the National Institute for Occupational Safety and Health contracted with the Western Institute for Research and Education, Incorporated, for a "Pilot Program to Determine the Effectiveness of OSHA Construction Standards at the Point of Operation." (Tr. 580; Exh. R-8.) Among other things, the contract requires Western to verify the applicability of 29 C.F.R. 1926.105 to point of erection operations.  (Exh. R- 8.) The last Cooper heard, Western expected to complete their study by October 1991. (Tr. 581.)

Most steel erectors do not use exterior nets. (Tr. 117, 163-164, 374, 425, 486.) However, a few steel erectors in Washington, D.C., and Connecticut have used perimeter safety nets to protect steel workers. (Tr. 73, 112.) The evidence at the trial indicates that OSHA's enforcement personnel only in Texas, Connecticut and Washington, D.C., enforce a requirement for exterior safety nets under 29 C.F.R. 1926.105 in steel erection. [[4/]] (Tr. 131-132, 490-491, 529-534, 575-577; Exh. R-3.)

Cooper testified that the meaning of 29 C.F.R. 1926.105(a) and (c)(1) "is ambiguous and not clear." (Tr. 561.) He construes 29 C.F.R. 1926.750(b)(l)(ii) [[5/]] as meaning that safety nets are not required if a steel erector complies with flooring requirements in 29 C.F.R. 1926.750(b)(2)(i). [[6/]] (Tr. 594.)

Charles T. Greene, a safety consultant in steel construction (Tr. 597). agreed with Cooper. Mr. Greene has a long and distinguished career in industrial safety. (Tr. 598- 602.) This includes serving as the Director of Industrial Safety in the District of Columbia from 1963 until 1980. (Tr. 598-599.) He initially joined that office in 1957, first serving as an inspector and later as a supervisor of the field staff. (Tr. 600.) From 1973 to 1975, his office enforced OSHA safety standards under 29 U.S.C. 656(c)(l). (Tr. 599, 619.)

Greene testified that 29 C.F.R. 1926.105(a) and (c)(l) did not apply to steel connection if temporary floors are provided at the proper distance below the connectors. (Tr. 603, 606, 627.) He pointed out that the steel erection standards in Subpart R of the construction standards make no reference to 1926.105(a) or (c) and requires safety nets only if its "impractical" to put in a floor. [[7/]] (Tr. 606-607.)

Kenneth Higdon, the assistant chief inspector of Maryland's Industrial Safety Division, agreed with Cooper and Greene. Higdon's agency has enforced the complainant's construction standards in Maryland since 1973. (Tr. 462.) Higdon testified that his agency cited steel erectors for a lack of exterior safety nets under 29 C.F.R. 1926.105 where they had installed interior nets under 29 C.F.R. 1926.750, but that it did not do so when temporary floors had been installed instead of interior nets. (Tr. 465-470.)

In two cases where the evidence is substantially the same as in the instant case, Review Commission Judge Joseph L. Chalk has held that the complainant's construction standards do not afford steel erectors with fair warning that they are required to install exterior safety nets. [[8/]] I agree with Judge Chalk's conclusion and his rationale therefor.

Unquestionably, steel erection is a hazardous business. (Tr. 383-385.) However, as the Fifth Circuit has recently indicated, "due process requires not only that employers be aware of it hazard but also that they have notice of what is required of them under the regulations in response to that hazard." [[9/]] In my opinion, no reasonable person could conclude that the complainant's standards provide steel erectors with fair notice that they must use exterior safety nets.

In recognition that steel erection is a unique industry, the complainant has promulgated specific standards in Subpart R of its construction standards that are applicable only to steel erection. Such specific standards "'prevail over any different general standard which might otherwise be applicable,' including ... the general fall protection standard at 29 C.F.R. 1926.105(a)."[10/] Under Subpart R a steel erector is required to maintain a floor "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."[[11/]] If he does not and the potential fall distance exceeds two stories or 25 feet, then Subpart R requires him to install safety nets.[[12/]] In 29 C.F.R. 1926.105, paragraph (c) provides notice that exterior safety nets are generally required. However, the specific steel erection standards make no mention of exterior safety nets and do not even cite steel erectors to 1926.105. The only logical conclusion that can be drawn from this is that a steel erector is not required to install perimeter nets even when interior nets are used under 29 C.F.R. 1926.750(b)(1)(ii), much less when he uses flooring in accordance with 29 C.F.R. 1926.750(b)(2)(i).[[13/]]

The complainant knows that it is not the practice of the structural steel erection industry to use exterior nets and that there is a wide divergence of opinion among his key enforcement personnel as to whether his construction standards require steel erectors to use exterior safety nets. Yet, the complainant has not amended Subpart R or issued any general notice to steel erectors that he interprets his standards to require them to use exterior safety nets.

The complainant argues in his post-trial brief that the respondent had actual knowledge that exterior nets were required because it "was cited for a violation of 1926.105 a[t] the Dirksen Office Building in 1978" and because two other steel erectors on that job, who subsequently settled their cases, were cited for exterior safety net violations. (Tr. 113-116.) It is unclear from the testimony at this trial [[14/]] (Tr. 115-116) and the judge's decision in the respondent's prior case [[14/]] that the complainant was proceeding in that case on a theory that exterior safety nets were required under 1926.105. The charge there related to the protection of deckers and was vacated by the judge. At best, the citations issued to steel erectors constructing the Dirksen Office Building merely shows that the respondent was "aware that the Secretary would like to require" exterior safety nets and falls far short of establishing that the respondent had actual knowledge that they were required under the standards. [[15/]]

Item 2

Item 2 contains two subitems. Subitem 2a alleges a violation of 29 C.F.R. 1926.450(a)(9) [[16/]] in that a wooden ladder was resting about one foot below a landing on the north side or the building. Subitem 2b alleges that the ladder was 20 feet long and was not secured to prevent displacement as required by 29 C.F.R. 1926.450(a)(10). [[17/]] The proposed penalty for item 2 is $400.

The evidence conclusively establishes that a ladder conforming to the descriptions contained in the two charges was positioned in an upright position on the north side of the building, with the top of the ladder resting about one foot below the landing to the second floor. (Tr. 204, 212, 356; Exhs. C-29, C-30.) The ladder was equipped with safety shoes,[[18/]] but it was neither tied nor blocked. (Tr. 208, 356.) The fall distance from the second floor to the ground below was about 16 feet. (Tr. 184.)

The ladder was put in place by Fred B. Lamb, one of the respondent's welders. (Tr. 352, 356, 426.) Lamb testified that he did not use the ladder to gain access to the second floor. (Tr. 356, 359.) According to Lamb he used the ladder only for welding and to gain access to a welding chair positioned beside the ladder. (Tr. 353, 355-356, 359, 364.) Lamb did not see anyone using the ladder to get to the second floor. (Tr. 360, 363.) Arthur Ward, the respondent's superintendent, testified that he did not see any of the respondent's employees use the ladder to gain access to the second floor. (Tr. 407, 426, 429.)

The complainant's inspector testified that she saw Lamb use the ladder once to gain access to the second floor. (Tr. 207, 301, 304-305.) Although she did not see any other employee of the respondent on the ladder, she did see employees of other contractors use the ladder to gain access to the second floor. (Tr. 207, 210-212, 309.)

Both Lamb and Ward could not testify that employees of other contractors did not use the ladder to gain access to the second floor because they were not always present at the ladder's location when it was in the upright position. (Tr. 363, 429.) On the basis of the inspector's unrebutted testimony, I find that employees of other contractors on the worksite used the ladder to gain access to the second floor.[[19/]]

The purpose of the requirement in 29 C.F.R. 1926.450(a)(9) for side rails to extend at least 36 inches above a landing is to provide a secure grip for an employee when mounting or dismounting a ladder on a landing. Accordingly, if a ladder is used only for fall protection, the standard does riot apply.[[20/]] I know of no good reason for similarly limiting the applicability of 29 C.F.R. 1926.450(a)(10) on the basis of ladder usage and have found no authority for doing so. [[21/]]

Since both violative conditions were in plain view, the respondent would have known of them if it had exercised reasonable diligence. Therefore, I find that the respondent possessed constructive knowledge of the violations. The violations are serious because there is a substantial probability that fractures or lacerations could result if an employee fell from the ladder. (Tr. 213, 439.)

Item 3

Item 3 alleges that the respondent violated 29 C.F.R. 1926.550(a)(9) in that the swing radius of a 90-ton BLH Lima Truck Crane, Model 900-T, located on the north side of the building, was not barricaded as required by 29 C.F.R. 1926.550(a)(9). [[22/]] A penalty of $400 is proposed for this item.

It is undisputed that the cited crane was not barricaded. (Tr. 214-215, 222; Exh. C-31.) The crane, which was the property of the respondent, was being used to lift steel to "the top floors." (Tr. 217-218.) While the crane was being used for this purpose, employees passed within "very close proximity" to both sides of the crane. [[23/]] (Tr. 214, 216-217, 312.) At least three of these employees were employed by the respondent. (Tr. 216-217.) Although there is no evidence that any employee came close enough to the crane to be struck by the rotating superstructure or had reason to come that close to the crane (Tr. 313-214), it is clear that the employees had access to the danger area. [[24/]]

The violative condition was in plain view. The respondent would have known of that condition if it had exercised reasonable diligence. Thus, the respondent possessed constructive knowledge of the violative condition. The violation is serious, there being a substantial probability that an employee would be killed or receive serious injuries if crushed against the crane by the rotating superstructure. (Tr. 313, 439-440.)

Item 4

Item 4 alleges that the respondent failed to comply with the safety railing requirement of 29 C.F.R. 1926.750(b)(1)(iii)[[25/]] on the north and east sides of the second and third floors in that:

Employees were carrying materials, placing metal decking and walking along edges of floors, exposed to a fall of approximately 16 to 31 feet ....

The proposed penalty for this item is $700

No wire rope or equivalent protection was installed where the respondent's employees were working on the north side of the second and third floors and on the east side of those floors. (Tr. 229.)

Lamb, the respondent's welder, walked along the north side of the second floor at the edge of the unguarded perimeter. (Tr. 230, 233; Exh. C-32, C-33.)   Complainant's Exhibit 34 also shows that another one of the respondent's employees, either Howard Beam or Jeffrey Coleman, was walking along the east side of the second floor.[[26/]] (Tr. 229-230, 239, 241; Exh. C-34.) He was about 2 feet from the unguarded perimeter of the building. (Tr. 238--239.) While carrying decking materials, Beam and Coleman were also within about 2 feet of the unprotected perimeter of the second floor on the north side of the building. (Tr. 236.) In addition, the unrebutted testimony of the complainant's inspector indicates that she saw employees of the respondent performing various functions at the edge of the unprotected perimeter on both the second and third floors. (Tr. 321.) Accordingly, I find that the respondent's employees were actually exposed to the violative condition as alleged.

The second and third floors were not completely decked. Five bays on the second floor and four bays on the third floor were not decked with temporary flooring. (Tr. 325-326.) On both floors, there were also several openings for welding that were approximately 4 feet square and openings for an elevator shaft that were not decked. (Tr. 243--244, 323.) However, the laying of temporary metal-decking had been completed as far as the respondent planned to go in the areas where the respondent's employees were working near the perimeters of the two floors. (Tr. 239, 320, 323-324, 327.)

The normal procedure in steel erection is to completely deck a floor before starting another floor. (Tr. 321-322.) This was also the respondent's normal procedure. (Tr. 421.) On this jobsite, however, it was necessary to stagger the decking because an insufficient amount of decking was on hand. (Tr. 242, 419-421.) Therefore, the respondent moved the decking from one location to another on the floor in order to protect the connectors working above the floor as required by 29 C.F.R. 1926.750(b)(2)(i) [[27/]] (Tr. 242, 327-328, 330, 420-421)

The respondent argues. that 29 C.F.R. 1926.750(b)(l)(iii) does not require the installation (if a safety railing until a floor is completely decked. There is some testimony that tends to support the respondent's position. (Tr. 152, 319-320, 613-614.) There is also some testimony to the contrary. (Tr. 320-324, 327-330, 437.)

Section 1926.750(b)(l)(iii) does not specify how much temporary flooring must be in place before the safety railing must be installed. I reject the respondent's argument and conclude that the respondent violated the standard by not installing safety railings on the north and east sides of the two floors.

Government regulations and standards must be interpreted in a reasonable manner.[[28/]] Pointing out that the purpose of the standard is to protect employees from falls at the perimeter of steel buildings, the complainant contends that 1926.750(b)(1)(iii) requires the installation of safety railings "at the latest after deck is laid around the periphery."[[29]] In my opinion, the complainant's interpretation is for more reasonable than that of the respondent,[[30/]] particularly when viewed in light of the Occupational Safety and Health Act's purpose of assuring employee safety so far as possible. [[31/]]  Moreover, Ward conceded that he usually installed safety railings while the temporary flooring was being put down. (Tr. 415-416.) Of course, there would probably be no violation of the standard if employees did not work near an unguarded perimeter and were not likely to be near it In the performance of job-related activities,[[32/]] but that is not the case here.

Since this violative condition was also in plain view, the respondent would have known of that condition if it had exercised reasonable diligence. Therefore, the respondent possessed constructive knowledge of the violative condition.

The fall distances from the second and third floors were 16 and a feet, respectively. (Tr. 184, 235.) If an employee did not suffer death from falling those distances, there is clearly a substantial probability that he would incur serious physical harm in the form of fractures or lacerations. (Tr. 213.)

Item 5

Item 5 alleges that the respondent failed to maintain the flooring required by 29 C.F.R. 1926.750(b)(2)(i)[[33/]] in the following particulars:

North Side of Building, Second and Third Floors - Elevator shaft, 8 feet by 10 feet and 4 foot openings in metal decking. Employees walking and working above openings and exposed to a fall of approximately sixty-one feet . .

A penalty of $800 is proposed for this item.

Three of the respondent's employees, while connecting steel atop the penthouse on the north side of the building, were working above at least two series of openings in the temporary floors on the second and third floors through which they could have fallen 61 feet to the first floor. (Tr. 184, 246-251, 334, 341- 342; Exhs. C-35 through C-37.) The openings were "approximately three to four-foot" in size. (Tr. 249.) An elevator shaft was located on the third floor near the northeast corner of the building. (Tr. 252-256; Exhs. C-38, C-39.) Another shaft was located directly below it on the second floor. (Tr. 254-255.) The dimensions of these openings were about 8 by 10 feet. (Tr. 253.) At the roof level, two of the respondent's connectors walked on beams that were directly above the elevator shaft openings. (Tr. 253-254, 338.) The fall distance from the roof through the openings to the first floor was 45 feet. (Tr. 184, 255.) Therefore, the evidence[[34/]] establishes that the respondent failed to maintain "a tightly planked and substantial floor ... within two stories or 30 feet ... below and directly under" tiers of beams on which its employees were working as required by 29 C.F.R. 1926.750(b)(2)(i).

The violative conditions again begin in plain view, the respondent would have known of them if it had exercised reasonable diligence. Accordingly, the respondent's constructive knowledge of the violative conditions is established.

Because of the absence of tightly planked and substantial floors, the respondent's employees were actually exposed to falls varying from 45 to 61 feet. Obviously, there is a substantial probability that a fall of such a distance could result in death or serious physical harm. (Tr. 213, 254-255.)

Penalties

The respondent has about 50 full-time regular employees, but it employs up to as many as 400 employees at times. (Tr. 386-387.) The respondent had about 6 to 12 employees at the worksite involved in this case. (Tr. 372.) There was no proof that any prior citations issued to the respondent had become final orders of the Commission, which is required to establish a history of prior violations. [[35/]] (Tr. 199-201.) Ward's failure to cooperate with the complainant's inspector during the inspection reflects unfavorably on the respondent. (Tr. 172, 176, 345-346.) However, the evidence tends to indicate that the respondent does not have an unusually excessive injury rate for its type of work. (Tr. 379- 382, 394-401.) Since October 1980, the respondent has been striving to improve its safety program through a new safety director. (Tr. 393, 431-433.) In my opinion, the proposed penalties for items 2 through 5 are appropriate, particularly in view of the gravity of the violations.

Conclusions of Law

1. The Commission has jurisdiction over the case.

2. The respondent did not violate 29 U.S.C. 654(a)(2) by failing to comply with 29 C.F.R. 1926.105(a) or (c)(1).

3. The respondent violated 29 U.S.C. 654(a)(2) by failing to comply with 29 C.F.R. 1926.450(a)(9), 1926.450(a)(10), 1926.550(a)(9), 1926.750(b)(l)(iii), and 1926.750(b)(2)(i).

4. Considering the criteria contained in 29 U.S.C. 666(i) in conjunction with the entire record, the penalties proposed for items 2 through 5 are appropriate.

Order

Item 1 of Citation Number 1 is vacated. Items 2 through 5 of Citation Number 1 are affirmed. A total penalty of $2,300 is assessed.

 

GEORGE O. TAYLOR, Jr.
Judge, OSHRC

Dated: January 20, 1982
Hyattsville, Maryland


FOOTNOTES:

[[1]] See, e.g., Brock v. L.R. Willson & Sons, Inc., 773 F.2d 1377 (D.C. Cir. 1985); Donovan v. Adams Steel Erection Inc., 766 F2d 804 (3d Cir. 1985); Donovan v. Daniel Marr & Son Co., 763 F.2d 477 (1st Cir. 1985).

 

[[1/]] The steel erection standard fit 29 C.F.R. 1926.750(b)(2)(i) requires that:
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)(l)(ii) of this section applies.

[[2/]] Apparently the complainant did not contend that safety belts were required because the use of safety belts by steel connectors, rather then enhancing their safety, usually exposes them to a more hazardous situation. (Tr. 104-105, 393- 384, 491, 493-4144, 570; Exh. R-1.)

[[3/]] It is unnecessary to examine the validity of this contention. Since the citation alleges a violation of the two standards in the conjunctive, I will consider whether the standards collectively required the respondent to provide exterior safety nets. Obviously, if they do not collectively impose such a requirement, neither one of them can do so individually.

[[4/]] In his post-trial brief, the complainant cites a number of cases for the proposition that OSHA has a national policy of enforcing 29 C.F.R. 1926.105 with respect to steel erection. The cases cited by the complainant clearly do not establish a national policy of requiring the use of exterior safety nets to protect connectors where an employer has complied with 29 C.F.R. 1926.750(b)(2)(i), supra at footnote 1, by installing temporary flooring within two stories or 30 feet below the connectors. At best, the cases show that the complainant's enforcement is slightly broader than the evidence at the trial reflected. Moreover, none of the cases address whether 29 C.F.R. 1926.105 provides fair notice that exterior safety nets are required during steel erection, which is the critical issue in this case.

[[5/]] This standard, which is contained in Subpart R of the complainant's construction standards, provides that:
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. The nets shall be hung with sufficient clearance to prevent contacts with the surface of structures below. (Emphasis added.)
Subpart R is entitled "Steel Erection."

[[6/]] See footnote 1, supra.

[[7/]] See footnote 5, supra.

[[8/]] L.R. Willson & Sons, Inc., OSHRC Docket No. 80-5866 (November 16, 1981)(on review); Skyline Crane Service, Inc., OSHRC Docket No. 80-1622 (May 26, 1981) (on review).

[[9/]] S & H Riggers & Erectors, Inc. v. OSHRC, No. 79-2358 (5th Cir., October 26, 1981).

[[10/]] Vicon Corp., OSHRC Docket No. 78-2923 (October 30,1981).

[[11/]] Sec footnote 1, supra.

[[12/]] See footnote 5, supra.

[[13/]] See Bethlehem Steel Corp., 81 OSAHRC 15/A2 (No. 76-3444,1981).

[[14/]] Williams Enterprises, Inc., OSHRC Docket No. 79-843 (February 14, 1980) (on review).

[[15/]] See S & H Riggers & Erectors, Inc., supra.

[[16/]] This ladder standard provides that:
The side rails shall extend not less than 36 inches above the landing. When this is not practical, grab rails, which provide a secure grip for an employee moving to or from the point of access, shall be installed.

[[17/]] This standard provides that:
Portable ladders in use shall be tied, blocked, or otherwise secured to prevent their being displaced.

[[18/]] Safety shoes are component parts on ladders, with one safety shoe being attached to each of the two feet on a ladder. (Tr. 634.) A safety shoe is "a metal bracket . . . with a rubber pad underneath it " It provides "a better foundation" and reduces the possibility of slipping. (Tr. 362.)

[[19/]] It is unnecessary for me to resolve the conflicting evidence as to whether Lamb used the ladder to gain access to the second floor. Since the respondent created the violative condition and had control over it, the respondent is responsible for the violation even though only employees of other contractors used ladders to gain access to the second floor. Anning-Johnson Co., 76 OSAHRC 54/A2 (No. 3694,1976).

[[20/]] Turner Welding & Erection Co., 80 OSAHRC 62/A2 (No. 16235,1980).

[[21/]] Greene testified that a ladder with safety shoes can be "otherwise secured" within the meaning of 1926.450(a)(10). (Tr. 617-618.) However, he admitted that safety shoes, did not provide adequate protection for ladders used to gain access to a floor. (Tr. 615-616, 618, 631-633.) In my opinion, "otherwise secured" does not encompass a component part of a ladder and means some external measure. Nevertheless, my finding that the ladder was to gain access to the second floor makes the question moot.

[[22/]] This standard provides that:
Accessible areas within the swing radius of the rear of the rotating superstructure of the crane, either permanently or temporarily mounted, shall be barricaded in such a manner as to prevent an employee from being struck or crushed by the crane.

[[23/]] The testimony indicates that the employees were moving towards a trailer owned by the respondent. (Tr. 214-215, 217, 312, 422.) However, their reason for passing the crane is irrelevant, the dispositive question being whether the employees had access to the swing radius of the rotating superstructure of the crane.

[[24/]] Access to the zone of danger is sufficient to establish the requisite employee exposure. Gilles & Cotting, Inc. 76 OSAHRC 30/D9 (No. 504, 1976); Jensen Construction Co., 717 OSAHRC 201/C6 (No. 14300, 1977).

[[25/]] This standard provides as follows:
Floor periphery-safety railing. A safety railing of 1/2-inch wire rope or equal shall be installed, approximately 42 inches high, around the periphery of all temporary-planked or temporary metal-decked floors of tier buildings and other multifloored structures during structural steel assembly.

[[26/]] The complainant's inspector testified that this employee was on the third floor. (Tr. 238.) However, I conclude on the basis of the photographic evidence he was on the second floor. Complainant's Exhibit 34 shows temporary flooring on the floor on which the employee was walking and also on the floor above him. Since there was no temporary flooring on the roof (Exhs. C-22 through C-28) it is clear that the employee was on the second floor.

[[27/]] See footnote 1, supra.

[[28/]] B & B Insulation, Inc v. OSHRC, 583 F.2d 1364 (5th Cir. 1978); Builders Steel Co. v. Marshall, 575 F.2d 663 (8th Cir. 1978).

[[29/]] The complainant also asserts that: "Preferably, it could be placed before the deck is laid." It is unnecessary to address that contention in this case in view of the factual situation.

[[30/]] A contrary conclusion in this case would allow steel erectors to intentionally avoid compliance with 1926.750(b)(1)(iii) simply by not installing complete temporary decking on a floor.

[[31/]] 29 U.S.C. 651(b).

[[32/]] Gilles & Cotting, Inc., supra.

[[33/]] For the contents of this standard, see footnote 1, supra.

[[34/]] There is also evidence that employees other than connectors walked on beams over the openings (Tr. 333--334, 341-342: Exh. C-26.)

[[35/]] General Steel Fabricators, Inc., 77 OSAHRC 173/F2 (No. 76-710,1977).