SECRETARY OF LABOR,
Complainant,
v.
JOHN QUINLAN,
t/a QUINLAN ENTERPRISES,
Respondent.
OSHRC Docket No. 91-2131
DECISION
BEFORE: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners
BY THE COMMISSION:
Introduction
The only issue on review in this case is whether the steel erection standard at 29 C.F.R.
§ 1926.750(b)(1)(iii)[[1]] is more specifically applicable than the general construction
standard at 29 CFR § 1926.500(d)(1)[[2]] regarding the perimeters of permanent concrete
floors in steel structures under construction.
Background
Respondent, John Quinlan, t/a Quinlan Enterprises ("Quinlan"), was the steel
erection subcontractor for construction of a two-story building in Savannah, Georgia.
Quinlan was cited for failing to install standard guardrails around the edge of an
open-sided floor. At the time of the inspection on April 19, 1991, construction of the
two-story building had substantially: the structural beams were in place, all concrete
floors had been poured, the roof was being completed, the electricians were placing
conduit and pulling wire, and the air conditioning ducts were being installed, as was the
elevator shaft. Aside from putting up a canopy in the front and adding some support beams
around the escalator pit, virtually all Quinlan had left to do was to install two
metal-pan staircases. The second-story floor, approximately 20 feet up from the ground
floor, was not temporary planking or metal-decking but a permanent, concrete floor;
however, because not all the walls were up, portions of the floor were still open-sided.
Quinlan contends that because it was still engaged in structural steel assembly, the steel
erection standard at 29 C.F.R. § 1926.750(b)(1)(iii) is more applicable here. Quinlan
further claims that the 42-inch high perimeter cable strung at the edge of the floor met
the requirements of that standard.
The judge rejected Quinlan's argument and affirmed the Secretary's citation. He assessed a
penalty of $700. Upon review of the judge's decision, we affirm it for the following
reasons.
Discussion An analysis of which of two standards is more specifically applicable
appropriately begins with 29 C.F.R. § 1910.5(c), a regulation which codifies the
principle that when more than one provision governs a particular hazard, the more
specifically applicable provision prevails.[[3]] Quinlan's position is that only the steel
erection standards apply to a worksite during the course of steel erection, regardless of
the condition of any floor. Quinlan cites Pima Constr. Co., 4 BNA OSHC 1620,1976-77 CCH
OSHD ¶ 20,998 (No. 5221, 1976), for the proposition that the steel erection standard
requiring a 42-inch high perimeter cable applies even where a substantial part of a floor
is permanent. In the instant case, however, the floor was not temporary even in part, but
entirely permanent.
The judge relied primarily on Adams Steel Erection, Inc., 13 BNA OSHC 1073, 1986-87 CCH
OSHD ¶ 27,815 (No. 77-3804, 1987) (steel erection standard is more specifically
applicable where flooring is still temporary), reasoning that the steel erection standard
is not more specifically applicable where, as here, the floor is no longer temporary. The
judge's decision is compatible with current Commission precedent. Bratton Corp.,14 BNA
OSHC 1893, 1087-90 CCH OSHD ¶ 29,152 (No. 83-132, 1990). In Bratton, the Commission
decided that employers engaged in steel erection are not governed exclusively by the steel
erection standards. The Commission noted that its previous precedent to the contrary had
been rebuffed by virtually every circuit court[[4]] that considered the issue:
We agree with the various appellate court decisions. . . and hold that the steel erection
standards, . . . do not preempt application of the general construction standards to steel
erection work "where general standards provide meaningful protection to employees
beyond the protection afforded by the steel erection standards . . . ." All
Commission decisions to the contrary are overruled in that respect ....
Id. at 1896, 1987-90 CCH OSHD at p. 38,992 (citation omitted). Thus, Bratton implicitly
resolves the issue in the instant case.
Section 1926.750(b)(1)(iii), which by its own terms speaks only of temporary flooring,
does not address the danger with which we are concerned, namely, falls from permanent
open-sided floors. In fact, the steel erection standards make no provision whatsoever for
the guarding of permanent open-sided floors.[[5]] We therefore conclude that section
1926.500(d)(1) is the more specifically applicable standard and that it applies to the
permanent concrete floor in this case rather than section 1926.750(b)(1)(iii).
Accordingly, we affirm a serious violation of 29 C.F.R. § 1926.500(d)(1). Having
considered the statutory criteria, we agree with the judge's determination that a $700
penalty is appropriate.
Edwin G. Foulke,
Jr. Chairman
Donald G. Wiseman
Commissioner
Velma Montoya
Commissioner
Dated: July 17, 1992
SECRETARY OF LABOR,
Complainant,
v.
JOHN QUINLAN, TRADING AS QUINLAN ENTERPRISES,
Respondent.
OSHRC Docket No. 91-2131
APPEARANCES:
Leslie John Rodriguez, Esquire Frank L Kollman.
Esquire
Office of the Solicitor Kollman. Sheehan, Nathan & Fink U.S. Department of Labor
Baltimore Maryland
Atlanta, Georgia For Respondent For Complainant
Before: Administrative Law Judge James D. Burroughs
DECISION AND ORDER
John Quinlan, Trading as Quinlan Enterprises [[1]] ("Quinlan"), a sole
proprietorship engaged in the steel erection business, contests an alleged serious
violation of 29 C.F.R. § 1926.500(d)(1), for failure to have an intermediate raiI on the
eastern and northern perimeter of the second floor of a building under construction at
14045 Abercorn Street, Savannah, Georgia. The charge arose from an inspection conducted by
Compliance Officer David Baker on April 19, 1991, at the Savannah Mall expansion project
(Tr. 10). Quinlan contends that he was engaged in steel erection and was in compliance
with 29 C.F.R. § 1926.750(b)(l)(iii), which he submits was the standard applicable to the
working conditions. Quinlan has been in the steel erection business since 1962 (Tr. 55).
Compliance Officer Baker held an opening and closing conference at the site and talked
with Michael Quinlan, who represented himself as the foreman for Quinlan (Tr. 13, 15, 57).
During the walk-around, he observed a Quinlan employee coming down the staircase (Tr. 20).
The stairway was on the northern edge of the building and led to the second floor (Tr.
20).
A two-story building for Montgomery Ward was under construction at the Savannah Mall (Tr.
11, 56). McCory Construction Company was the general contractor for the mall expansion
(Tr. 56). Quinlan was a subcontractor responsible for the steel erection and had eight
employees at the site (Tr. 13, 16, 48, 56). It was Quinlan's responsibility to unload and
erect the entire structure including beams, columns, metal floor decking, stairways and
canopies (Tr. 57).
The construction of the building had progressed at the time of the inspection. The
structural beam were in place. All cement floors had been poured (Tr. 16-17). The roof was
being completed, and the electricians were placing conduit and pulling wire. The air
conditioning duct work was being installed (Tr. 17). Stairways were being installed, and
the elevator shaft was being prepared so that the elevator could be installed (Tr. 17).
As Baker ascended to the second floor, he observed that the open- sided floor did not have
a midrail to protect against an accidental fall. Quinlan employees were installing the pan
metal stairwells at the northern and eastern sections of the building (Tr. 21-23, 32).
There was a single strand of wire approximately 42 inches high around the edge of the
floor [[2]] (Exh. C-4; Tr. 26, 36). The second floor was approximately 20 feet above the
ground (Tr. 31). Three employees of Quinlan were working on the northern edge of the
second floor (Exh. C-5; Tr. 31-32, 36). They were, for the most part, located within two
to three feet of the edge of the floor (Tr. 40-41).
Quinlan contends that construction was still at the steel erection stage and that the
requirements of § 1926.750(b)(1)(iii) were more applicable than § 1926.500(d)(1).
Section 1926.750(b)(1)(iii) provides:
(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
multifloored structures during structural steel assembly.
The cited standard controls multifloored structures during structural steel assembly.
Section 1926.750(b)(1)(iii), by express terms, is applicable "around the periphery of
all temporary-planked or temporary metal-decked floors" (Emphasis added).
In Adams Steel Erection, Inc., 13 BNA OSHC 1080, 1986-87 CCH OSHD ¶ 27,815 (No. 77-3804,
1987) the Commission recognized that there are inherent differences between temporary and
permanent flooring. It enunciated a key factor in making a distinction that is equally
applicable to Quinlan:
The record indicates that the key factor in determining whether flooring bas become
"permanent" is whether the flooring has been integrated into the structure so
that it contributes to the stability of the building.
There is no credible evidence that disputes the fact that the concrete floors added to the
integrity and stability of the building precedent as restated in Adams Steel is as follows
(3 BNA OSHC at 1081):
Read together, Commission precedent holds that if the employer is still engaged in
structural steel erection and the permanent floor has not yet been completed, then the
floor is a "temporary-planked" or "temporary metal-decked" floor
within the meaning of section 1926.750(b)(1)(iii).
There is no dispute that all concrete flooring had been poured. Once the cement was poured
the floors became permanent. The floors became part of the building structure and
contributed to its stability. Since permanent flooring had been installed throughout the
building, the steel erection standard does not apply. The fact that the concrete floors
had been poured removed the applicability of § 1926.750(b)(1)(iii). Section
1926.500(d)(1) was more specifically applicable. The are no steel erection standards
applicable to the guarding of open-sided floors. Carpenter Rigging Inc., 11 BNA OSHC 1088,
1982 CCH OSHD ¶ 26,384 (No. 76-5125, 1982). The argument that § 1926.500(d)(1) is
preempted by a more specifically applicable standard under Subpart R -- Steel Erection, is
rejected.
Section 1926.500(d)(1) provides:
(d) Guarding of open-sided floors, platforms, and runways. (1) 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) 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.
Although Quinlan was in compliance with § 1926.750(b)(1)(iii), since it had a wire strand
along the sides that was 42 inches high, that standard does not require a midrail. There
is no dispute over the fact that the midrail was missing. Since the floor was permanent,
Quinlan was required to comply with § 1926.500(d)(1). The violation has been established.
Classification of the Violation
The Secretary contends that the violation of § 1926.500(d)(1) was serious within the
meaning of section 17(k) of the Act. A serious violation exists where there is substantial
probability that death or serious physical harm could result from the condition in
question. The Secretary need not prove that an accident is probable, it is sufficient if
an accident is possible, and its probable result would be serious injury or death. Brown
& Root Inc., Power Plant Division, 8 BNA OSHC 1055, 1980 CCH OSHD ¶ 24,275 (No.
76-3942, 1980).
The Secretary must also prove that the employer knew or, with the exercise of reasonable
diligence, should have known of the existence of the violation. The knowledge element is
directed to the physical conditions which constitute a violation. Southwestern Acoustics
& Specialty, Inc., 5 BNA OSHC 1091, 1977-78 CCH OSHD ¶ 21,582 (No. 12174, 1977). The
single strand of wire being used as a rail was in plain view. There were other areas of
the floor that had a standard toprail and midrail (Tr. 37). Quinlan had full knowledge of
the condition even though as a steel erector he did not think § 1926.500(d)(l) was
applicable.
In the event of a fall, employees would have fallen twenty feet onto a concrete surface
(Tr. 38). A fall from that height to a concrete would result in death or serious physical
injury. The violation was serious.
Determination Of Appropriate Penalty
The Commission is the final arbiter of penalties in all contested cases. Secretary v.
OSAHRC and Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973). In determining an
appropriate penalty, the Commission is required to find and give "due
consideration" to the size of the employer's business, the gravity of the violation,
the good faith of the employer, and the history of previous violations.
Quinlan employed forty persons at the time of the issuance of the citation (Tr. 39). At
the time of the hearing, Quinlan had eleven employees (Tr. 54). There were three employees
exposed to the hazard. The duration of the exposure was brief (Tr. 40). The company had no
previous history of violations (Tr. 44). The gravity was mitigated somewhat by the fact
that there was a single wire strand around the area that was 42 inches high. Quinlan did
not have a written safety and health program or a hazard communication program (Tr. 43). A
penalty of $700 is appropriate for the violation and is assessed against Quinlan.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The findings of fact and conclusions of law contained
in this opinion are incorporated herein in accordance with Rule 52(a) of the Federal Rules
of Civil Procedure.
ORDER
In view of the foregoing and good cause appearing in
support of the determinations, it is
ORDERED: That the serious citation issued to, Quinlan on June 27, 1991,
is affirmed and a penalty of $700 assessed for the violation.
JAMES D. BURROUGHS
Judge
Date: February 24, 1992
FOOTNOTES:
[[1]] Found in "Subpart R-Steel Erection," the standard states:
§ 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 an
temporary-planked or temporary metal-decked floors of tier buildings and other
multifloored structures during structural steel assembly.
[[2]] Found in "Subpart M--Floor and Wall Openings, and Stairways," the standard
states:
§ 1926.500 Guardrails, handrails and covers.
. . . . .
(d) Guarding of open-sided floors, platforms, and runways. (1) Every open- sided floor or
platform 6 fact 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 . . . .
. . . . .
(f) Standard specifications. (1) A standard railing shall consist of top rail,
intermediate rail, toeboad, and posts, and shall have a vertical height of approximately
42 inches from upper surface of top rail to floor ....
(i) [specific dimensions for wood railings].
[[3]] The relevant portions of the regulation provide:
§ 1910.5 Applicability of Standards.
....
(c)(1) If a particular standard is specifically applicable to a condition. . . it shall
prevail over any different general standard which might otherwise be applicable to the
same condition ....
(2) On the other hand, any standard shall apply according to any employment and place of
employment, in any industry, even though particular standards are also prescribed for that
industry . . . to the extent that none of such particular standards applies . . . .
[[4]] E.g., the Eleventh Circuit, the court in Quinlan's own jurisdiction, has held since
1987 that the steel erection standards are not an exclusive set of safety standards for
the steel erection industry. Brock v. Williams Enterp, 832 F.2d 567 (11th Cir. 1987).
[[5]] Quinlan claims that its. 42-inch cable met the requirements of section
1926.750(b)(1)(iii). However, as our holding makes clear, that standard does not apply
where as here, a permanent floor is in place. The judge properly took into account
Quinlan's efforts to afford its employees some protection when he lowered the penalty from
$1,250 to $700, but the applicable standard requires a guardrail, midrail and toeboard.
[[1]] A motion to change the caption was granted at
the commencement of the hearing (Tr. 5). Prior to granting the motion, the caption had
been under the name of Quinlan Enterprises Inc.
[[2]] It a determination had been made that Quinlan was engaged in steel erection, the
cable would have been in compliance with § 1910.750 (b)(1)(iii) (Tr. 49-50).