OSHRC Docket No. 76-181

Occupational Safety and Health Review Commission

June 30, 1981


Before: CLEARY and COTTINE, Commissioners.


Office of the Solicitor, USDOL

Bobbve D. Spears, Reg. Sol., USDOL

Robert T. Thompson, for the employer




This case is before the Commission for review under section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). Following an inspection, the Secretary of Labor ("the Secretary") issued a citation alleging that the Respondent, Daniel International Corp. ("Daniel"), committed a serious violation of the Act by failing to comply with a construction safety standard at 29 C.F.R. 1926.500(b)(1) requiring guarding of floor openings. After a hearing on the matter, Judge Paul L. Brady vacated the citation that contained one item comprised of two sub-parts. n1 The Secretary filed a petition for review regarding only sub-part 1(a) of the citation. Commissioner Cleary directed review of the issues raised by the petition and former Commissioner Moran directed review of the judge's decision "for error" without specifying the issues to be considered. Both parties submitted briefs and raised the following issues: n2

1. Whether the construction standards [*2] contained in 29 C.F.R. Part 1926 were invalidly promulgated;

2. Whether section 1926.500(b)(1) applies to a floor opening in an incomplete temporary floor;

3. Whether compliance with section 1926.500(b)(1) was impossible;

4. Whether the judge properly concluded that Daniel's noncompliance with section 1926.500(b)(1) resulted from unpreventable employee misconduct.

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n1 Daniel was issued one citation alleging a serious violation of the Act. Sub-part 1(a) alleged noncompliance with 29 C.F.R. 1926.500(b)(1) and sub-part 1(b) alleged noncompliance with section 1926.500(d)(1). A single penalty of $900 was proposed. The judge vacated both sub-parts. Neither party has taken issue with the judge's disposition of sub-part 1(b) and there is no compelling public interest warranting further review of that sub-part. Therefore, we will not review that aspect of the judge's decision. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976); Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976). It is accorded the significance of an unreviewed judge's decision. See Leone Constr. Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976), pet. for review withdrawn, No. 76-4070 (2d Cir. 1976).

n2 Daniel also argues that the judge erred in denying its motion to suppress the evidence obtained during the inspection on the ground that the inspection procedures set forth in 8(a) of the Act, 29 U.S.C. 657(a), violate the fourth amendment of the United States Constitution, and therefore the evidence in this case was obtained as the result of an unconstitutional search. The Supreme Court has held that the Act's inspection procedure violates the fourth amendment only to the extent that it authorizes warrantless inspections without consent. Marshall v. Barlow's, Inc., 436 U.S. 307 (1978). We have held that the fourth amendment principles announced by the Supreme Court in its Barlow's decision are "without retroactive remedy." Meadows Industries, Inc., 79 OSAHRC 74/F2, 7 BNA OSHC 1709 at 1712, 1979 CCH OSHD P23,847 at p. 28,952 (No. 76-1463, 1979). Inasmuch as the inspection in this case, which was conducted on December 18, 1975, predated the Court's decision in Barlow's, the Respondent's request to suppress the evidence is rejected. See, e.g., Bomac Drilling, a Division of TRG Drilling Corp., 81 OSAHRC    /   , 9 BNA OSHC 1681, 1981 CCH OSHD P25,363 (Nos. 76-450 & 76-2131, 1981); Daniel International Corp., 80 OSAHRC 25/A2, 8 BNA OSHC 1142, 1980 CCH OSHD P24,326 (No. 77-3121, 1980), appeal docketed, No. 80-1357 (4th Cir. May 22, 1980).

Moreover, the Barlow's decision does not affect the validity of an inspection to which the employer voluntarily consented. The record in the instant case establishes that Daniel consented to the search. However, Daniel argues that any consent was involuntary because it was unaware of its right to refuse entry. The issue of voluntariness requires the consideration of several factors. Knowledge of the right to object is only one factor to be considered when determining whether a search was voluntary. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). Other factors to be considered in assessing voluntariness are coercion and misrepresentation. Schneckloth, supra; Bumper v. North Carolina, 391 U.S. 543 (1968). In this case the compliance officer duly presented his credentials and Daniel was fully apprised of the nature and purpose of the inspection. 29 U.S.C. 657(a); Occupational Safety and Health Administration, U.S. Dep't of Labor, Field Operations Manual, Chap. V, Sec. D, P2(a). No evidence of coercion or misrepresentation has been introduced by Daniel. Finally, Daniel has not brought to our attention any record evidence revealing that it intended to object to the entry at the time of the inspection. We conclude that Daniel voluntarily consented to the inspection. See Stephenson Enterprises, Inc. v. OSHRC, 578 F.2d 1021 (5th Cir. 1978); Walter C. Mehlenbacher, 78 OSAHRC 72/A2, 6 BNA OSHC 1927, 1978 CCH OSHD P22,985 (No. 15904, 1978).

Daniel also argues that inasmuch as the citation alleged one serious violation of the Act for failure to comply with two separate standards, the Secretary must establish that both standards were violated in order to conclude that Daniel committed one serious violation. As long as one sub-part involves a serious violation, a multi-item citation may be affirmed as serious, regardless of whether the remaining sub-parts are also demonstrated to be serious. See Charles A. Gaetano Constr. Corp., 78 OSAHRC 24/A2, 6 BNA OSHC 1463, 1468, 1978 CCH OSHD P22,630 (No. 14886, 1978). We hold that a violation may be predicated upon noncompliance with a standard cited in one sub-part of a single item in a citation even though another sub-part of the same item is vacated.


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The following facts are undisputed. On December 16, 1975, Daniel was engaged in the construction of a power plant in Roopville, Georgia. Mr. Foster, one of Daniel's foremen at the site, instructed two employees, Messrs. Fowler and Petit, to assist in placing two bundles of asbestos sheeting on level 778, a temporary floor of steel grating, approximately 48 feet above the concrete floor. Each bundle was about 4 feet high, 8 feet long and weighed between 500 and 800 pounds. The task was to be accomplished by lifting each bundle with a mobile telescopic boom crane through an open area of the structure. Foster instructed the employees to place the bundle in a "safe" location as far away from the unguarded edge of the floor as the crane would allow. He also cautioned the employees to be careful because the grates were wet and slippery. n3 After giving his instructions, Mr. Foster left the work area.

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n3 During the course of prior safety meetings, Fowler had been instructed to tie off with a safety belt when working more then ten feet above the ground.


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Earlier in the day ironworkers had been engaged in laying a temporary floor comprised of steel grates at level 778, but rainy conditions caused the ironworkers to cease construction before the temporary floor was completed. The grates, each approximately 30 inches wide and 16 feet long, were left unsecured and overlapped at various points creating an irregular surface. There were uncovered gaps in the floor and its open edges were not protected by guardrails or toeboards. This condition was clearly visible from the ground.

Before the materials were hoisted, Fowler climbed the stairs to level 778 and examined the temporary floor. At Fowler's request, Petit joined him and they moved two overlapping grates to make a level spot on which to unload the asbestos bundles. The area where the bundles were to be placed was adjacent to the unguarded edge of an open area within the structure that could accommodate the boom of the crane. Petit returned to the ground and hooked an asbestos bundle to the crane. As the crane hoisted the first bundle, Fowler remained on level 778 and stood on the grating near [*5] the unguarded edge to direct the crane operator. The asbestos bundle was placed on one of the grates after difficult maneuvering due to the inability of the crane to hoist the bundle more than 4 to 6 inches above level 778.

Duke Powell, a Daniel Foreman from another craft, was on the temporary floor watching the operation. He instructed Fowler to tell the crane operator to lift the second bundle higher to avoid a steel beam at the outer edge of level 778. The second bundle was placed next to the first bundle at the edge of an opening in the grating. The floor opening was approximately 50 inches wide and 52 inches long. n4 At that point, Fowler returned to the ground. He and Petit then climbed back up to level 778 with a plastic cover to protect the asbestos from the elements. The testimony does not indicate whether they were wearing safety belts; however, it is undisputed that they were not tied off while on leved 778. While they were covering the asbestos, Petit fell through the 50 X 52 inch opening and was fatally injured. n5

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n4 The gap was bounded on one side by the horizontal steel girder which constituted the edge of the large open area through which the asbestos bundles were hoisted. The gap was bounded on the opposite side by steel grating, and apparently was bounded on the other two sides by horizontal girders running perpendicular to the edge of the open area. Therefore, it properly is termed a "floor opening" under the cited standard.

n5 There were no eyewitnesses to the incident.


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As the result of an inspection on December 18, 1975, the Secretary issued a citation for a serious violation. Sub-part 1(a) alleged a failure to comply with 29 C.F.R. 1926.500(b)(1). n6 Daniel contested the citation, and a hearing was held before Judge Brady. The judge essentially concluded that Petit's exposure to the 50 X 52 inch floor opening was an instance of unpreventable employee misconduct and therefore vacated the sub-part. The judge stated:

There is no question in this case that both the employer and employees in question were aware of the hazards involved in the placement of the asbestos sheeting on level 778. Furthermore, the testimony clearly establishes that the foreman repeatedly stressed the importance of the employees performing their duties in a careful manner. Although the employees were directed to place the asbestos in a certain area, there is nothing in the record to indicate that it was necessary to place the bundles so close to the openings as to make it impossible to carry out their assigned duties without being subjected to the hazard of falling through such openings. [*7] In this instance the employees were properly instructed to avoid a dangerous situation and to proceed safely. Also, the means to do so were clearly within the employee's discretion and control.

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n6 1926.500 Guardrails, handrails, and covers.

* * *

(b) Guarding of floor openings and floor holes. (1) Floor openings shall be guarded by a standard railing and toeboards or cover, as specified in paragraph (f) of this section. In general, the railing shall be provided on all exposed sides, except at entrances to stairways.

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Daniel first contends that the alleged violations, which involve construction standards found in 29 C.F.R. Part 1926, must be vacated because these standards were invalidly promulgated under the Contract Work Hours and Safety Standards Act, 40 U.S.C. 327-333 ("the Construction Safety Act"), n7 and thus were adopted improperly as established federal standards under section 6(a) of the Act. n8 Daniel does not contend that there was any deficiency in the procedure by with the Secretary [*8] adopted the Construction Safety Act standards under the Occupational Safety and Health Act.

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n7 Daniel argues that these standards were invalidly promulgated because the Secretary made them effective fewer then 30 days from their publication without an adequate statement of good cause as required by section 4(c) of the Administrative Procedure Act, 5 U.S.C. 553(d).

n8 Section 6 of the Act, 29 U.S.C. 655, contains procedures the Secretary must follow in promulgating standards under the Act. Within two years of the Act's effective date, the Secretary was authorized to summarily promulgate established federal standards and national consensus standards. Section 6(a) of the Act, 29 U.S.C. 655(a). An established federal standard is defined as a standard "established by any agency of the United States and presently in effect, or contained in any Act of Congress in force on the date of enactment of this Act." Section 3(10) of the Act, 29 U.S.C. 652(10). The Secretary made the Construction Safety Act standards effective under the Act pursuant to his authority to adopt established federal standards. 29 C.F.R. 1910.11 and 1910.22.


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The Commission will not entertain challenges to the standards in Part 1926 when such challenges question the procedures followed in the adoption of the standards under the Construction Safety Act. Daniel Construction Co., 81 OSAHRC    , 9 BNA OSHC    , 1981 CCH OSHD P    (No. 12525, 1981). This recent holding was based on our decision in General Motors Corp., GM Parts Division, 81 OSAHRC    , 9 BNA OSHC 1331, 1981 CCH OSHD P25,202 (No. 79-4478, 1981), pet. for review filed, No. 81-3194 (6th Cir. April 6, 1981), in which we held that we will not consider challenges to the validity of standards based on alleged procedural deficiencies in the manner in which the ancestor standards were adopted under other statutes.

Next Daniel argues that section 1926.500(b)(1) applies only to a completed temporary floor and is inapplicable to the incomplete temporary floor in this case. Daniel argues that if the standard applies to incomplete temporary floors then employees would be required to erect and remove guardrails each time a piece of grating is laid in place on such a temporary floor. n9

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n9 In this regard, Daniel relies on Palmer Co., 74 OSAHRC 43/D10, 2 BNA OSHC 3061, 1973-74 CCH OSHD P17,940 (No. 4870, 1974), an unreviewed judge's decision dealing with the construction standard requiring guarding of open-sided floors (29 C.F.R. 1926.500(d)(1)). Unreviewed judge's decisions are not precedent binding on the Commission. Leone Constr. Co., supra, note 1.

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Daniel's argument is inapposite to the facts in this case. The employees involved here were sent to the floor to unload asbestos, a task unrelated to the installation of the floor, at a time when the floor was not being extended. We also reject Daniel's argument that the standard only applies to completed temporary floors. According to section 1926.500(a), the standard expressly applies to temporary conditions such as those in question here, n10 and nothing in the cited standard itself suggests that its applicability is limited to completed floors. n11

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n10 The general provision of section 1926.500 reads an follows:

1926.500 Guardrails, handrails and covers

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

n11 The cited standard permits covers as an alternative to guardrails for floor openings. Thus, even if standard guardrails were not intended to be required in the circumstances, there is no reason why covers could not be used.


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We now consider whether there was a violation of the Act. In order to prove a violation of section 5(a)(2) of the Act, the Secretary must show 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 with the exercise of reasonable diligence have known of the condition. See Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1197, 1975-76 CCH OSHD P20,690, at p. 24,783 (Nos. 3694 & 4409, 1976) (applicability and noncompliance); Otis Elevator Co., 78 OSAHRC 88/E5, 6 BNA OSHC 2048, 2050, 78 CCH OSHD P23,135 at p. 27,952 (No. 16057, 1978) (access); Prestressed Systems, Inc., 81 OSAHRC    , 9 BNA OSHC    ,    , 1981 CCH OSHD P23,358, at p. 31,499 (No. 16147, 1981) (knowledge); General Electric Co., 81 OSAHRC    , 9 BNA OSHC 1722, 1732, 1981 CCH OSHD P    , at p. (No. 13732, 1981) (knowledge) (Cottine, Commissioner, concurring in part, dissenting in part).

The standard at issue seeks to protect employees [*12] from the hazard of falling through unguarded floor openings and, as mentioned above, is applicable to the situation here. The Secretary proved noncompliance with the standard by presenting undisputed testimony that Daniel did not provide guardrails, toeboards, or a cover to protect employees from falling through the floor opening. The Secretary also established that two of Daniel's employees were instructed to perform a task that exposed them to the hazardous condition and that the foreman's words of caution as well as the fact that the condition was visible from where the foreman stood demonstrate that Daniel had knowledge of the hazardous condition. Thus, the Secretary has established a violation of section 1926.500(b)(1).


We next consider Daniel's affirmative defenses. Daniel argues that performance of the work have been impossible had guardrails been in place, and that the exposure to the fall hazards was the result of unpreventable employee misconduct. To establish the affirmative defense of impossibility of performance an employer must prove that (1) compliance with the requirements of the cited standard would preclude performance of required work, and (2) alternative [*13] means of employee protection are unavailable. M.J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD P23,330 (No. 15094, 1979). Daniel states that since the crane was unable to raise the asbestos bundles more than 6 inches above level 778 it would have been impossible to hoist the asbestos bundles to the temporary floor if guardrails were in place at the floor's edge or around the 50 X 52 inch floor opening. We disagree. As an alternative to guardrails and toeboards for floor openings, section 1926.500(b)(1) allows the use of covers over floor openings. There is no claim and no evidence that a cover could not have been placed over the floor opening in question. Thus, Daniel has failed to demonstrate that it could not have performed the work in compliance with the floor opening standard. Moreover, it has not shown that alternative means of protection were unavailable. Accordingly, we reject Daniel's impossibility of performance defense.

To establish the affirmative defense of unpreventable employee misconduct the employer must prove that the employee's action constituting noncompliance with a standard was a departure from a uniformly and effectively [*14] enforced workrule. See Stuttgart Machine Works, Inc., 81 OSAHRC    , 9 BNA OSHC 1366, 1981 CCH OSHD P25,216 (No. 77-3021, 1981); H.B. Zachry Co., 80 OSAHRC 9/D8, 7 BNA OSHC 2202, 1980 CCH OSHD P24,196 (No. 76-1393, 1980), aff'd, No. 80-1357 (5th Cir. March 2, 1981). The Secretary argues that Daniel's foremen, Foster and Powell, permitted employees Fowler and Petit to perform a task that exposed them to a hazardous condition even though the foremen knew "that gaps in the floor existed, that the steel grating was dangerously slippery and that the crew laying the grating had suspended work due to the weather." Daniel argues that its employees disobeyed its workrule requiring employees to tie off when more than 10 feet above the ground. This workrule, however, does not implement the standard's requirement that floor openings be "guarded by a standard railing and toeboards or cover." Under the circumstances of this case, Daniel's workrule is not equivalent to the cited standard, and we reject its argument. See Kansas Power & Light Co., 77 OSAHRC 39/A2, 5 BNA OSHC 1202, 1977-78 CCH OSHD P21,696 (No. 11015, 1977). Daniel also argues that its employees disregarded [*15] the instructions of their supervisor who cautioned them to be careful and to place the bundles in a "safe" place. The judge's conclusion that the employees were "properly instructed" is contrary to the Commission holding that general safety instructions are inadequate to inform employees of hazards peculiar to the job being performed. See Paul Betty d/b/a Betty Brothers, 81 OSAHRC    , 9 BNA OSHC 1379 at 1383, 1981 CCH OSHD P25,219, at p. 31,151 (No. 76-4271, 1971), Enfield Tree Service, Inc., 77 BNA OSHC 32/B3, 5 BNA OSHC 1142, 1977-78 CCH OSHD P21,607 (No. 9118, 1977).

Moreover, Daniel's foreman, Powell, watched Fowler unload the second bundle near the floor opening, and there is no evidence that Powell corrected the employee's alleged misconduct in any way. The fact that Powell failed to instruct Fowler as to the specific hazards and the fact that foreman Powell, without comment, witnessed a violation of Daniel's asserted rule requiring employees to tie off indicates that workrules were not effectively communicated to Daniel's employees and that Daniel's enforcement of its rules was lax. Also, there is no evidence that Daniel had a disciplinary policy to prevent [*16] violations of its rules or that it undertook any disciplinary measures to enforce its rules. Daniel has therefore failed to carry its burden of establishing the defense of unpreventable employee misconduct.

We now apply the criteria for penalty assessment under section 17(j) of the Act, 29 U.S.C. 666(i). n12 Daniel is a large employer with approximately 2,000 employees. The possibility of an incident under the cited conditions was relatively high and the probable consequence would be serious physical harm or death. As to previous history and good faith, Daniel was issued and did not contest at least one citation for a violation of the steel erection standards for failure to cover a floor opening at a similar height on another building under construction. We conclude that the $900 penalty proposed by the Secretary is appropriate.

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n12 Section 17(j), 29 U.S.C. 666(i), provides:

The Commission shall have authority to assess all civil penalties provided in this section, giving due respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and history of previous violations.


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Accordingly, the judge's decision is reversed and sub-part 1(a) of the citation is affirmed. We conclude that Daniel committed a serious violation of the Act by failing to comply with section 1926.500(b)(1) and assess a $900 penalty.