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).