SECRETARY OF LABOR,

Complainant,

v.

WILLIAMS ENTERPRISES, INC.,

Respondent

Docket No. 87-0960

ORDER

This case is here at the direction of the United States Court of Appeals for the D.C. Circuit. Dole v. William Enterprises, Inc., 876 F.2d 186 (D.C. Cir. 1989). rev'g William & Enterprises Inc., 13 BNA OSHC 1868, 1988 CCH OSHD 28,255 (No. 87-960, 1988 ALJ) (unreviewed decision of Administrative Law Judge). In accordance with the D.C. Circuit's decision and mandate, we hereby reinstate and affirm the Secretary of Labor's citation 1 alleging that Williams committed a serious violation of 29 C.F.R. 1926.750(b)(1)(iii) by failing to install perimeter cable along two sides of a temporary metal-decked floor on the second tier of a building in Washington, D.C.

Although the Administrative Law Judge determined that the cited fall hazard existed and that Williams' employees were exposed to it, he vacated the citation. The judge concluded that Williams' employees were exposed to "a greater fall hazard" when installing the perimeter cable to abate the violation than when performing their ordinary work and being exposed to the cited fall hazard.

The Secretary filed a petition for discretionary review with the Commission, but the case was not directed for review.

The D.C. Circuit granted the Secretary's Petition for review filed pursuant to section 11(b) of the Occupational Safety and Health Act of 1970 ["the Act"], 29 U.S.C. 660(b). Dole v. Williams Enterprises. Inc., supra, 876 F.2d at 191. The court concluded that, even though the judge's decision made no reference whatsoever to the greater hazard defense, the judge had in effect vacated the citation on the ground that Williams had established that defense. The court concluded that the judge's decision was in error because Williams had not pleaded the greater hazard defense in its answer (as required by the Commission's Rule of Procedure at 29 C.F.R. 2200.36(b)), nor proven the three requisite elements of the defense: hazard of compliance greater than hazard of noncompliance; alternative means of protection unavailable; and variance unavailable or inappropriate. 876 F.2d at 188-190. According to the court, "[w]ithout a showing on these elements of the claim, it was patently improper for the Commission [judge] to vacate the Secretary's citation on the ground that abatement posed a more serious hazard to Williams' employees." (footnote omitted) 876 F.2d at 190. After acknowledging that "[t]he record clearly reflects that Williams violated 1926.750(b)(1)(iii)," the court went on to determine that the violation was "serious" under section 17(k) of the Act, 29 U.S.C. 666(k), in that the Secretary had proven that serious physical harm could result from the 20- to 30-foot fall to which the employees were exposed. 876 F.2d at 191. According to the court, there was "no other supportable conclusion from the record." Id. The court then remanded the case to the Commission "with directions that [the citation at issue] be reinstated." Id.

Having reinstated the citation pursuant to the D.C. Circuit's instructions, we must consider what penalty to assess. The Secretary proposed a penalty of $630 for the violation. Section 17(j) of the Act, 29 U.S.C. 666(j), sets forth the criteria to be used in assessing a penalty: size of employer, gravity of violation, good faith of employer, and previous violations by employer. Based on those criteria, a penalty of $630 is assessed for the citation.

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

Dated: May 24, 1990


ANN McLAUGHLIN, SECRETARY OF
LABOR,
U.S. DEPARTMENT OF LABOR

Complainant

v.

WILLIAMS ENTERPRISES,
INCORPORATED

Respondent

Docket No. 87-0960

APPEARANCES:

Mark D. Swartz, Esquire
U.S. Department of Labor
Office of the Solicitor

For the Complainant

James Brent Clarke, Jr., Esquire

For the Respondent

DECISION AND ORDER

TENNEY, Judge:

I. Introduction

On May 6 and 7, 1987, OSHA inspected a worksite of the Respondent, Williams Enterprises, in Washington, D.C. As a result of that inspection Respondent was cited for a "serious" violation of 29 C.F.R. 1926.750(b)(1)(iii) alleging that it had failed to install wire rope railing around the perimeter of a temporary metal-decked floor and for a violation of 29 C.F.R. 1926.550(b)(2) alleging that monthly written inspection reports for a truck crane were not readily available. Respondent filed a timely notice of contest.[[1]] After the filing of the Complaint and Answer, the parties proceeded through discovery. A hearing was held on February 11, 1988.

II. Findings of Fact

1. On May 6 and 7, 1987, Williams Enterprises, Incorporated, a corporation engaged in structural steel erection, had a workplace at the Intelstat project at 4000 Connecticut Avenue, N.W., Washington, D.C. Williams is an employer within the meaning of the Occupational Safety and Health Act. (Pleadings)

2. Respondent's employees were welding on the second tier of the 90 feet by 90 feet octagonally shaped section of the Intelstat project designated as POD L. (Testimony of Wilfred Epps, Tr. 36; that of Darrell Moore, Tr. 78-79; that of Joseph Graham, Tr. 120-121; Joint Ex. 1, Gov. Ex. 3-A.)

3. The metal decking on the second tier was substantially complete. Both Mr. Epps and Mr. Moore testified that the tier was 90% decked, Tr. 69, 93. Mr. Graham testified that decking was 75% complete, Tr. 117.) On the south and east sides of the second tier, decking was complete to the perimeter except for small triangular sections. (Testimony of Mr. Epps, Tr. 23, 24, 26; that of Mr. Moore, Tr. 93; that of Mr. Graham, Tr. 111, 125, 127, 128, 131, 140, 141, 145; Joint Ex. 2, Gov. Exs. 3A, 3B, 4A and 4B.)

4. Respondent's employees came within one foot of the edge of the floor when pulling up welding leads and when using a ladder to enter and exit the second tier. (Testimony of Mr. Epps, Tr. 30, 31, 38, 39, 66; that of Mr. Moore, Tr. 80-83; that of Mr. Graham, Tr. 126-127, 130, 157-158; Gov. Exs. 4A and 4B.) Pulling up welding lead required approximately 10 minutes a day. Using the ladder involved one to five minutes for each use. (Testimony of Mr. Moore, Tr. 81, 83.)

5. There was no perimeter cable at the edges of the south and east sides of the second tier. (Testimony of Mr. Epps, Tr. 27, 38; that of Mr. Moore, Tr. 86; that of Mr. Graham, Tr. 137-138.) The fall distance from the south side of the second tier was 20 feet to the mechanical room roof. From the east side, the fall distance was 30 feet to the ground. (Testimony of Mr. Epps, Tr. 36, 37.)

6. Respondent's employees were exposed to a fall hazard when pulling up welding lead and using the ladder. (Findings of Fact Nos. 4, 5, 6)

7. Respondent's employees were exposed to a fall hazard when they installed cable on the south and east perimeters. (Testimony of Mr. Epps, Tr. 62.) Installing the cable on the south and east perimeters took three of Respondent's employees half an hour. In order to install the cable on the three undecked triangular corners, employees had to crawl or "coon" across four-to eight-inch wide steel beams, carrying cable that could weigh 150 pounds. (Testimony of Mr. Graham, Tr. 139-143.)

8. Respondent's employees received a longer exposure to the fall hazard during installation of the guardrails than during the work that made the guardrails necessary. That part of the installation requiring Respondent's employees to "coon" across four- to eight-inch wide steel beams, exposed Respondent's employees to a more serious fall hazard than pulling up welding lead and using the ladder. (Findings of Fact Nos. 5, 6 and 7)

9. A truck crane operated by Respondent was in use at the Intelstat workplace. (Stipulation, Tr. 98-99) On the dates of the inspection, May 6-7, 1987, there were no monthly inspection records available for the crane. (Testimony of Mr. Epps, Tr. 99-100.)

10. Respondent knew that the records were not available on the first day of the inspection but was not able to produce the records on the second day. (Testimony of Mr. Epps, Tr. 100; that of Charles Swann, Tr. 170-171.)

III. Discussion

1926.750(b)(1)(iii)

The cited standard reads as follows:

Section 1926.750 Flooring requirements
            *                  *                  *
(b) Temporary flooring skeleton steel construction

in tiered buildings

(1)(iii) 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 Multi-floored structures during structural steel assembly.

It is not disputed that for approximately 10 minutes each day Respondent's employees came within one foot of an unguarded perimeter edge while pulling up welding leads.[[2]] The Secretary alleges that this condition violates 29 C.F.R. 1926.750(b)(1)(iii). Respondent contends that the standard does not apply because the metal-decked floor was not fully laid. The Secretary argues that the standard does not require that metal decking completely cover the floor before it applies. She relies on The Ashton Company, Inc., 76 OSAHRC 76/B11, 3 BNA OSHC 1968, 1975-76 CCH OSHD 20,351 (No. 5111, 1976).

Section 29 C.F.R. 1926.750(b)(1)(iii) was designed to prevent persons from falling when working on otherwise unguarded floor perimeters. The Commission has interpreted it to apply to temporary floors that were about three-fourths decked. The Ashton Company. See Adams Steel Erection, Inc., 87 OSAHRC / ,13 BNA OSHC 1073, 1080, 1986-87 CCH OSHD 27,815, p. 36,406 (No. 77- 3804, 1987); Carr Erectors, Inc., 77 OSAHRC 14/C9, 4 BNA OSHC 2009, 1976-77 CCH OSHD 21,471 (No. 7247, 1977). Respondent's contention that similarities in the text of 29 C.F.R. 1926.750(b)(1)(iii) and some provisions of ANSI A10.13, Safety Requirements for Steel Erection, point to an interpretation that the standard applies only when temporary decking is fully laid, is rejected. Respondent failed to establish any persuasive inference of a nexus between the cited standard and the ANSI standard. The cited standard is an "established Federal standard" adopted from rules issued under the Construction Safety Act. See 29 C.F.R. 1910.11 and 1910.12. Moreover, the Commission's interpretation is more consistent with the Act's essential purpose of assuring safe and healthful working conditions for employees.

Although the standard applies to Respondent's workplace, entry of an abatement order requiring the installation of perimeter cable would not provide Respondent's employees with "appropriate" relief. 29 U.S.C. 659(c). There is no persuasive evidence that work was being done on the portion of the floor that was completed and was proximate to the edge, except for pulling up the welding leads, which occurred without regard to the progress in decking. Also, abatement would present Respondent with a "Catch 22" dilemma. See U.S. Steel v. OSHRC, 537 F.2d 780, 783, 4 BNA OSHC 1424, 1425-26 (3rd Cir. 1976). When installing the perimeter guarding, Respondent's employees received a longer exposure to the fall hazard than pulling up welding lead had required. See H. S. Holtze Construction v. Marshall, 627 F.2d 149, 151-152, 8 BNA OSHC 1785, 1788 (8th Cir. 1980). The employees also were exposed to a greater fall hazard than they ordinarily encounter, that of falling from a four- to eight-inch wide steel beam.

In any future situations that may arise, the Secretary may wish to consider applying a requirement for personal protective equipment in order to afford employees fall protection.

1926.550(b)(2)

The cited standard, 29 C.F.R. 1926.550(b)(2) reads as follows:

1926.550 Cranes and derricks
            *              *              *
(b) Crawler, locomotive and truck cranes
            *              *              *

(2) All crawler, truck, or locomotive cranes in use shall meet the applicable requirements for design, inspection, construction, testing, maintenance and operation as prescribed in the ANSI B30.5-1968 Safety Code for Crawler, Locomotive and Truck Cranes.
Section 5-2.1.5 of ANSI B30.5 provides:

5-2.1.5 Inspection Records

Written dated and signed inspection reports and records shall be made monthly on critical items in use such as brakes, crane hooks, and ropes. Records shall be kept where readily available.

The evidence establishes that the records were not readily available. The compliance officer requested the records from Respondent's crane operator and one of Respondent's safety representatives on May 6, 1987, the first day of the inspection, but they did not produce them. The compliance officer gave Respondent an opportunity to produce the records on the next day, but they were not made available.

Conclusions of Law

1. Section 29 C.F.R. 1926.750(b)(1)(iii) applies to temporary floors in steel erection that are not fully decked.

2. The Secretary of Labor has failed to demonstrate that entry of an abatement order requiring the installation of wire rope around the perimeter of the second level at POD L of Respondent's worksite would be appropriate.

3. Citation 1, item 1, which alleged a serious violation of 29 C.F.R. and proposed a penalty of $630, is vacated.

4. The Secretary has sustained the burden of proving that the Respondent failed to make crane inspection records readily available, and that the employer knew the records were not readily available.

5. The Respondent has violated section 5-2.1.5 of ANSI 830.5-1968, Safety Code for Crawler, Locomotive and Truck Cranes as adopted by 29 C.F.R. 1926.550(b)(2). No penalty for the violation was proposed, and none is assessed.

SO ORDERED

PAUL A. TENNEY
Judge, OSHRC

MAY 31 1988
Dated: Washington, D.C.


FOOTNOTES:

[[1]] Williams withdrew its notice of contest to two other items.

[[2]] Because exposures to unguarded perimeters that occur when employees use steps, ramps or ladders are not the type of exposure for which guarding is generally required, see 29 C.F.R. 1926.500(d)(1), the exposures involving the ladder would not require guarding.