SECRETARY OF LABOR,
Complainant,

v.

DANIEL MARR & SON COMPANY,
Respondent.

OSHRC Docket No. 82-0612

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

Daniel Marr & Son Company ("Daniel Marr") is a steel erection firm that was engaged in the construction of the Turbine #2 Building at the Seabrook Nuclear Power Plant in Seabrook, New Hampshire.  Following an OSHA inspection of the Seabrook site, Daniel Marr was cited for a serious violation of two safety standards, 29 C.F.R. 1926.750(b)(1)(ii) [[1/]] and 29 C.F.R. 1926.105(a).[[2/]]

The turbine building under construction contained a steel frame 325 feet long and about 115 feet high and had two floors at heights of 50 and 75 feet.  Daniel Marr had contracted to build this steel frame.  At the time of the OSHA inspection, Daniel Marr's employees were observed working at the top of the steel frame, 40 feet above the floor and 115 feet above the ground.  As a matter of general procedure, Daniel Marr installed safety nets after the extension columns and cross bracing had been set.  No nets were in place at the time of the inspection.  The Secretary of Labor issued a two-part citation on the theory that Daniel Marr failed to provide interior fall protection required under section 1926.750(b)(1)(ii) and failed to provide exterior fall protection required under section 1926.105(a).

Daniel Marr does not contest the judge's finding that it violated the safety net requirement of section 1926.750(b)(1)(ii) and that portion of the judge's decision is not on review.  Instead Daniel Marr, citing 29 C.F.R. 1910.5(c)(1),[[3/]] contends that the steel erection standard at section 1926.750(b)(1)(ii) is specifically applicable to the cited conditions and precludes application of the general construction standard at section 1926.105(a).  On this basis, Daniel Marr contests the judge's ruling that it could be in violation of both section 1926.105(a) and section 1926.750(b)(1)(ii).

We agree that Daniel Marr cannot be found in violation of both standards and vacate that portion of the citation alleging a violation of section 1926.105(a).  In Adams Steel Erection, 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 methods of fall protection different from that specified in section 1926.750(b).  It follows then that Daniel Marr cannot be found to have violated both standards.  Accordingly, that portion of the citation alleging a violation of section 1926.105(a) is vacated.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED:  JUL 20 1984


CLEARY, Commissioner, dissenting:

For reasons set forth in my dissenting opinion in Adams Steel Erection, OSHRC Docket No. 77-4238 (July 20, 1984), I dissent from the conclusion that, in the steel erection industry, section 1926.105(a) may not be applied to require methods of fall protection different from that specified in section 1926.750(b).

Again, the potential for a tragic accident is evident from the facts of this case.  Employees exposed to falls of 115 feet to the ground are to remain unprotected because there is an industry standard requiring fall protection from falls to the interior of the building. Application of section 1926.105(a) would require that protection and is properly applied to fall hazards not covered by fall protection standards specifically applicable to the steel erection industry.  Moreover, such a result is not only inconsistent with Commission precedent, but also ignores the Secretary's official policy of supplementing the fall protection standards of Subpart R with the general fall protection standards at 29 C.F.R. 1926.28(a) and 1926.105(a). [[1]]

The record establishes that Respondent failed to comply with section 1926.105(a).  At the time of the inspection, four employees, called connectors, were installing cross-bracing and connecting horizontal steel beams to vertical steel members.   The steel frame was 325 feet long and about 115 feet high.  There were two floors, one at 50 feet, the other at 75 feet above ground level. Respondent's procedures did not call for the installation of exterior safety nets.  The connectors worked at the top of the structure
without any form of fall protection, and thus were exposed to the hazard of falling 115 feet to the exterior ground level. Respondent's failure to provide any of the fall protection devices listed in the cited standard constituted a failure to comply with section 1926.105(a).  National Industrial Constructors, Inc., 81 OSAHRC 46/C2, 9 BNA OSHC 1871, 1981 CCH OSHD 25,404 (No. 76-891, 1981).  Accordingly, the item should be affirmed.


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


FOOTNOTES:

[[1/]] Section 1926.750(b)(1)(ii) is contained in subpart R of the Safety and Health Regulations and is specifically applicable to the steel erection industry.
It provides:

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.

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

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

[[3/]] 29 C.F.R. 1910.5(c)(1) reads, in relevant part, as follows:

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 . . . .

[[1]] Falling Hazards to the Exterior of Buildings.  For all types of construction, including steel erection, exterior falling hazards shall be cited under 1926.28(a) when the potential falling distance is 10 through 25 feet and under 1926.105(a) when the potential falling distance is greater than 25 feet.

OSHA Instruction STD 3-3.1 (July 18, 1983), paragraph 6.3.b, reported at CCH ESHG, 1982-1983 Developments, 12,855 at p. 17,166.