Docket No. 89-2514

SECRETARY OF LABOR,

Complainant,

THE CECO CORPORATION,

and

McDEVITT & STREET COMPANY,

Respondents.

OSHRC Docket Nos. 89-2514 and 89-2588 (Consolidated)

ORDER

The Ceco Corporation ("Ceco"), a concrete forming subcontractor, and McDevitt & Street Company ("McDevitt") a general contractor, were each issued a citation in which one item alleged a serious violation of 29 C.F.R. § 1926.500(b)(5), which provides:

Subpart M--Floor and Wall Openings, and stairways

§ 1926.500 Guardrails, handrails, and covers.

(b) Guarding of floor openings and floor holes.

(5) Pits and trap-door floor openings shall be guarded by floor opening covers of standard strength and construction. While the cover is not in place, the pit or trap openings shall be protected on all exposed sides by removable standard railings.

Prior to the hearing, Administrative Law Judge Edwin G. Salyers granted the motion of the attorney representing both Ceco and McDevitt to consolidate the two cases.

In his decision, Judge Salyers vacated each 1926.500(b)(5) item on the basis that employees could not fall completely through the 20-3/4-inch deep cavity at issue on the sixth-floor forming deck. The judge relied on the general scope provision at 29 C.F.R. § 1926.500 (a), which reads:

General provision. This subpart shall apply to temporary or emergency conditions where there is danger of employees or materials falling through floor, roof, or wall openings or from stairways or runways ....

Having reviewed the record and the arguments of the parties, we vacate the decision of Judge Salyers and remand the cases to him for appropriate findings and entry of a new decision and order consistent with applicable Commission precedent and our instructions below. Accordingly, we direct the judge to resolve the following issues, which were not addressed or disposed of in his decision:

(1) whether the cited cavity is a "pit," within the meaning of the cited standard, section 1926.500(b)(5);

(2) the effect of the Commission's decision in National Industrial Constructors, Inc., 10 BNA OSHC 1081, 1095-96, 1981 CCH OSHD ś 25,743, pp. 32,136-37 (No. 76-4507, 1981), on the argument of Ceco and McDevitt that the standard does not apply because an employee cannot "fall through" the cavity at issue;

(3) whether the Secretary proved that Ceco and McDevitt failed to comply with the standard, that they had knowledge of the cited condition, and that their employees had access to the cited condition; and

(4) if the violations were proven, whether they are serious, as alleged.

We therefore remand these cases to Judge Salyers for further proceedings, which may include reopening the record or requesting additional briefs from the parties.

Edwin G. Foulke, Jr.,
Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

Dated: September 4, 1991

SECRETARY OF LABOR,

Complainant,

THE CECO CORPORATION,

and

McDEVITT & STREET COMPANY,

Respondents.

OSHRC Docket Nos. 89-2514

89-2588

(Consolidated)

APPEARANCES:
Donald R. McCoy, Esquire, Associate Regional Solicitor, U. S. Department of Labor, Fort Lauderdale, Florida, on behalf of complainant
Michael F. Swick, Esquire, Drew, Eckl, and Farnham, Atlanta, Georgia, on behalf of respondent.

DECISION AND ORDER

SALYERS, Judge: On July 13, 1989, Occupational Safety and Health Administration ("OSHA") Compliance Officer Joseph DiMartino inspected a construction site located at 200 East Las Olas Boulevard in Fort Lauderdale, Florida. On July 25, 1989, the Secretary of Labor issued one citation each to McDevitt and Street Company ("McDevitt"), the general contractor of the project under construction, and to The Ceco Corporation ("Ceco"), the concrete forming subcontractor. The citations were identical (except for the penalties proposed) and alleged the following:

1
29 CFR 1926.500 (b)(5): Pits or trap-door openings were not guarded by covers of standard strength and Construction or removable standard railings:
a) On or about July 18, 1989, employees were exposed to fall hazard of 3 feet into open pit area of 10 feet X 12 feet on the forming deck.

2
29 CFR 1926.500 (d) (1): Open-sided floors or platforms, 6 feet or more above adjacent floor or ground level, were not guarded by a standard railing or the equivalent on all open sides:

a) On or about July 18, 1989, employees were exposed to fall hazard of 30 feet at the East and S. East area of forming deck where the top rail height was reduced to about 20 inches above the raised decking perimeters. (Reference 1926.500 (f))

McDevitt's case, Docket No. 89-2588, and Ceco's case, Docket No. 89-2514, were consolidated for hearing. The respondent companies were represented by the same attorney and rely on the same evidence.

FACTS

DiMartino testified that he arrived at the construction site between 9:00 and 9:30 on the morning of July 18, 1989. He was assigned to conduct a routine inspection of the site. When he arrived, a project and safety meeting was in progress.

Ten to fourteen Subcontractors were in the meeting room. DiMartino took the opportunity to hold an opening conference (Tr.11-13).

After the opening conference, DiMartino commenced to inspect the project site. He was accompanied by Mr. Jaynes, the project manager for McDevitt, Mr. Simergran, the superintendent, and Charles McEachern, the safety manager for Ceco (Tr. 14). They proceeded to the forming deck at the top of the building, which at that time was the sixth floor (Tr. 15).

DiMartino observed a floor opening, which he described as a "pit," at the northwest area of the floor. He estimated that the opening was 20 to 24 inches deep. [[1]] The opening contained gang boxes for tools and materials. It was approximately 10 feet wide and 12 feet long. There was no covering over the opening nor was their guarding around the perimeter of the opening (Ex. C-2; Tr. 20, 27). Debris was scattered around the opening, including empty soda cartons, pieces of lumber, and loose wire and metal material (Tr. 30, 31).

DiMartino proceeded to the building perimeter, where he observed several employees working along the northeast and southeast ends (Tr. 36). Guardrails were constructed around the perimeter of the building. The guardrail system was irregular and parallel to the raised deck. The entire perimeter was guarded with standard guardrails (Ex. C-3; Tr. 38-39).

29 C.F.R. § 1926.500(b)(5)

Section 1926.500(b)(5) of 29 C.F.R. provides:

Pits and trap-door floor openings shall be guarded by floor opening covers of standard strength and construction. While the cover is not in place, the pit or trap openings shall be protected on all exposed sides by removable standard railings.

To prove a violation of this standard, the Secretary must establish by a preponderance of the evidence that "(1) the cited standard applies, (2) there was a failure to comply with the cited standard, (3) employees had access to the violative condition; and (4) the cited employer either knew or could have known of the condition with the exercise of reasonable diligence." Astra Pharmaceutical Products, Inc., 81 OSAHRC 79/D9, 9 BNA OSHC 2126, 2129, 1981 CCH OSHD ś 25,578 (No. 78-6247, 1981).

McDevitt and Ceco argue that the Secretary failed to prove the first element of the above-quoted test: that the standard applies. Section 1926.500 (a) of 29 C.F.R. provides:

This subpart shall apply to temporary or emergency conditions where there is danger of employees or materials falling through floor, roof, or wall openings, or from stairways or runways. (Emphasis added.)

The floor opening in question was 20-3/4 inches deep and its bottom was decked solid with plywood (Tr. 90). DiMartino testified that there was no way an employee could fall through the opening (Tr. 23).

McDevitt and Ceco also argue that the standard does not apply, because the floor opening in question was not a "pit" or a trap-door floor opening within the meaning of § 1926.500(b)(5). It was undisputed that the opening was for a stairwell (Tr. 86). It was not a trap-door floor opening. DiMartino characterized the opening as a "Pit," and his subjective interpretation that "pit" was an opening with a depth of at least 12 inches. He acknowledged that this distance was not found in the standards but was only his own opinion (Tr. 56-57).

The Secretary cites Daniel Construction Co. of Alabama, 81 OSAHRC 71/A2, 9 BNA OSHC 2002, 1981 CCH OSHD ś 25,553 (No. 13874, 1981), in support of its argument that the stairwell opening was a pit. In that decision, the Review Commission noted that both § 1926.500(b)(5) and § 1926.600(t) used the word "Pit," and that "both standards are intended to protect against the same hazard, i.e., falling into open cavities. The important distinguishing feature between the standards is that section 1926.500(b)(5) is limited in applicability to interior cavities." Id., 1981 CCH OSHD at p. 31,864. Daniel involved an interior cavity approximately 12 feet long, 12 feet wide, and 12 feet deep. The Secretary argues that because § 1926.500(b)(5) would have applied if that opening had been in the interior of a building, rather than outside, the standard applies to the 20-3/4-inch opening in the present case.

It is a welI-established principle of statutory Construction that where the language of a statute is clear and unambiguous, that language should be given its plain and ordinary meaning. Section 1926.500(a) provides that subpart M shall apply where there is a danger of employees falling through floor openings. "Through" means "[i]n one side and out the opposite or another side of." American Heritage Dictionary, 1266 (2nd Ed. 1981). "Through floor openings" means starting at, one side of a floor (the top side) and ending tip on the other side of the floor, i.e., below the floor. There is no way that a person of average height (or even of below-average height) could fall through an opening that is less than two feet deep.

The Secretary argues that the debris in and around the opening created a tripping and falling hazard. Perhaps it did, but the standard at issue contains no language regarding debris and is not violated simply because debris was present. Jose Sanchez, the Area Director for the Fort Lauderdale OSHA office, visited the work site and observed the opening approximately a month after DiMartino's inspection. At that time, the debris and boxes had been removed and the opening was clean. When asked if he would have considered the opening to be a violation had he been conducting an inspection, Sanchez replied, "Probably not" (Tr. 75).

The Secretary has failed to prove that § 1926.500(b)(5) applies to the floor opening in question. The opening could not be fallen through, and therefore required no covering or guarding. McDevitt and Ceco were not in violation of § 1926.500(b)(5).

29 C.F.R. § 1926.500(d)(1)

Section 1926.500(d)(1) of 29 C.F.R. provides:

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.

Section 1926.500(f)(1)(i) of 29 C.F.R. provides in pertinent part:

A standard railing shall consist of top rail, intermediate rail, toeboard, and posts, and shall have a vertical height of approximately 42 inches from upper surface of top rail to floor, platform, runway, or ramp level.

It is undisputed that the rail around the floor's perimeter was a standard manufactured 42-inch rail (Tr. 65). At the time of the inspection, the forming deck was partly completed and was supported by aluminum trusses that rested on the completed floor. The forming deck was 20-3/4 inches higher than the floor (Ex. C-3; Tr. 166). Thus, the guardrail was 21-1/4 inches higher than the raised forming deck. DiMartino observed several employees working on the raised deck (Tr. 36). These employees were never identified as McDevitt's or Ceco's employees (Tr. 139-140).

The distance between the raised deck and the guarded perimeter varied. At some points, there was as much as five feet between the deck and the railing. In other areas, the space narrowed down to about the width of a man's foot (Tr. 39). This irregularity was due to the interior features of the building which offset the trusses (Tr. 155).

DiMartino testified that the railing was adequate where there was a greater amount of space between the deck and the railing, as shown in the lower part of Exhibit C-3. Where the space between the deck and the railing narrowed; however, DiMartino believed the railing was inadequate to comply with the standard.

Charles McEachern is the manager of safety and labor relations for the southern United States for Ceco. He accompanied DiMartino on his inspection (Tr. 125-126). He stated that the lateral distance between the raised deck and the guardrails was two feet except for places where it jogged narrower due to interior construction (Tr. 141-142, 154). It was his observation at the time of the inspection that the man closest to the railing in Exhibit C-3 was tied off, and that the other employees were six feet or more from the railing (Tr. 127).

Sanchez testified regarding his observations of the work site a month after DiMartino's inspection. He stated that the railing system was "totally unacceptable and a hazardous condition" (Tr. 72). His testimony regarding this alleged violation must be discounted. He stated that what he observed on August 16, 1989, was not similar to what is depicted in Exhibit C-3 (Tr. 72) Sanchez stated that he was not making an inspection, he did not take measurements, and he was not sure if he was on the same floor as was cited pursuant to DiMartino's inspection (Tr. 72, 80). Sanchez's testimony is irrelevant on this issue.

Thomas Graham is the Director of Safety for Ceco (Tr. 160). He testified that Exhibit R-2, the shoring layout plans for the project, specified a minimum distance of two feet from the raised deck to the perimeter edge (Ex. R-2; Tr. 168). Graham testified that, if a person's center of gravity is within a 45 angle of the top of the railing, the railing will provide fall protection. As a person gets further away from the railing, the 45 angle increases in height. As long as the person's center of gravity stays within the 45 cone, he is protected (Ex. R-5; Tr. 165). Graham stated that subtracting the deck height of 20-3/4 inches from the railing height of 42 inches is meaningless unless the lateral distance between the two is taken into account (Tr. 178).

Graham's argument is persuasive and was not rebutted by the Secretary. Based on the record, it must be concluded that the Secretary failed to prove the essential element of employee exposure. DiMartino took no measurements of the site. He failed to identify the employees present as belonging to either McDevitt or Ceco. The one employee in Exhibit C-3 (on which the Secretary relies for her case), who is next to the railing, is tied off. The other employees are six feet or more away from the railing.

The Secretary has failed to establish that either McDevitt or Ceco were in violation of 29 C.F.R. § 1926.500(d)(1).

FINDINGS OF FACT

1. McDevitt was the general contractor of a construction project located at 200 East Las Olas Boulevard in Fort Lauderdale, Florida. Cecc was the concrete forming subcontractor.

2. At the time of the inspection, the building was six stories high. A forming deck was being completed on the top floor.

3. The northwest area of the floor contained a floor opening which was to be a stairwell opening. The opening was 10 feet wide, 12 feet long, and 20-3/4 inches deep. There was no covering over the opening and no guarding around it.

4. The perimeter of the building was guarded with standard 42-inch railing. The railing system was irregular and parallel to a raised deck. The raised deck was 20-3/4 inches high.

CONCLUSlONS OF LAW

1 McDevitt and Ceco, at all times material to this proceeding, were engaged in a business affecting commerce within the meaning of section 3(5) of the occupational Safety and Health Act of 1970 ("Act").

2. McDevitt and Ceco, at all times material to this proceeding, were subject to the requirements of the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and the subject matter.

3. McDevitt. and Ceco were not in violation of 29 C.F.R. § 1926.500(b)(5).

4. McDevitt and Ceco were not in violation of 29 C.F.R. § 1926.500(d)(1).

ORDER

Based upon the foregoing findings of fact and conclusions of law, it is hereby ORDERED:

1. Item 1 of the citation in Docket No. 89-2514 is vacated and no penalty is assessed.

2. Item 2 of the citation in Docket No. 89-2514 is vacated and no penalty is assessed.

3. Item 1of the citation in Docket No. 89-2588 is vacated and no penalty is assessed.

4. Item 2 of the citation in Docket No. 89-2588 is vacated and no penalty is assessed.

Dated this 23rd day of July, 1990.

EDWIN G. SALYERS
Judge

FOOTNOTES:
[[1]] Item one of the citations alleges the hazard of a fall of three feet into the opening. At the hearing, the Secretary stipulated that the opening was 20-3/4 inches deep (Tr. 88).