BUILDERS STEEL COMPANY

OSHRC Docket No. 76-4558

Occupational Safety and Health Review Commission

June 20, 1979

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Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

Thomas M. Moore, for the employer

OPINIONBY: COTTINE

OPINION:

ORDER

COTTINE, Commissioner:

This case is before the Commission on remand from the United States Court of Appeals for the Eighth Circuit. Builders Steel Company v. Marshall, 575 F.2d 663 (8th Cir. 1978). On May 31, 1977, Administrative Law Judge Alan M. Wienman affirmed a single serious violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. ("the

Act"), finding that the Respondent, Builders Steel Company ("Builders"), had failed to comply with the occupational safety standard published at 29 C.F.R. 1926.105(a). n1 Although Builders petitioned the Commission for review of the judge's decision, no member of the Commission directed the case for review within the 30-day statutory review period provided by section 12(j) of the Act, 29 U.S.C. 661(i). n2 Accordingly, the decision of the judge became the final order of the Commission.

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n1 29 C.F.R. 1926.105(a) reads:

Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.

n2 Section 12(j) of the Act provides in pertinent part the following:

The report of the hearing examiner shall become the final order of the Commission within thirty days after such report by the hearing examiner, unless within such period any Commission member has directed that such report shall be reviewed by the Commission.

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On July 28, 1977, Builders petitioned the U.S. Court of Appeals for the Eighth Circuit for review of the Commission decision. The petition was granted and on May 17, 1978, the court issued its decision vacating the final order of the Commission and remanding the case for further proceedings.

On September 23, 1976, a compliance officer representing the Occupational Safety and Health Administration inspected a worksite in Kansas City, Missouri where Builders was engaged in constructing a warehouse. The warehouse was a single-story steel structure with unmerous 40 feet by 40 feet day: The Compliance Officer observed two teams of Builders' employees welding the bridging to the bar joists on the structure. The employees were observed working without any form of fall protection at a height of approximately 29 feet. A citation alleging a serious violation of 1926.105(a) resulted from this inspection.

Builders argued to the court, as it had argued to the administrative law judge, that the 25-feet fall protection requirements of 1926.105(a) are inapplicable to the warehouse project because 1926.750(b)(2)(i), [*3] a more specific steel erection standard that requires fall protection only at a height of 30 feet, is applicable. n3 Builders contended that it was in full compliance with 1926.750(b)(2)(i) because its employees were working at a height of less than 30 feet. The Secretary maintained that 1926.750(b)(2)(i) is inapplicable to the cited worksite because the single-story warehouse is not "tiered" within the meaning of that standard. n4 Finally, Builders maintained that it is unreasonable to apply the 25-foot requirement of 1926.105(a) to a single-story steel structure, rather than applying the 30-foot requirement of 1926.750(b)(2)(i), when the single story structure is erected in a manner identical to the erection of the first tier of steel in a multistory building. Builders contended that 1926.750(b)(2)(i) should apply because employees are exposed to identical dangers while engaged in the steel erection of either structure.

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n3 29 C.F.R. 1926.750(b)(2)(i) reads as follows:

Where skeleton steel erection is being done, a tightly planked and substantial floor shall be maintained within two stories or 30 feet, whichever is less, below and directly under that portion of each tier of beams on which any work is being performed, except when gathering and stacking temporary floor planks on a lower floor, in preparation for transferring such planks for use on an upper floor. Where such a floor is not practical, paragraph (b)(1)(ii) of this section applies.

n4 In Daniel Construction Co., 77 OSAHRC 21/A2, 5 BNA OSHC 1005, 1976-77 CCH OSHD P21,521 (No. 7734, 1976), the Commission held that 1926.750(b)(2)(i), which deals with skeleton steel construction in tiered buildings, applies only to buildings "which have numbers of floors."

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The Secretary did not attempt to distinghish the fall hazards to which employees were exposed and conceded that the steel erection methods for the warehouse and for the first tier of a multi-story building are the same. Nevertheless, the Secretary relied on the Commission's limited application of 1926.750(b)(2)(i) to "tiered" buildings as controlling on the issue.

Judge Wienman agreed with the Secretary's interpretation of the standards, noting that the Secretary's explanation accompanying the revision of certain subsections of 1926.750, 39 Fed. Reg. 24,360 (1974), n5 indicated that the Secretary intended 1926.105(a) to be enforced in situations not specifically covered by 1926.750. The judge acknowledged the "inconsistencies" in the present fall protection requirements for single tiered and multi-storied structures but concluded that the standards should be enforced "according to their terms."

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n5 An amendment to 1926.750(b)(2)(i) was published in the Federal Register on July 28, 1974. Prior to the amendment, 1926.750(b)(2)(i) required that where skeletion steel erection was being performed a floor was required within two stories or twenty-five feet, whichever is less.

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Relying on Clarkson Const. Co. v. OSHRC, 531 F.2d 451 (10th Cir. 1976), the court noted that an agency's interpretation of its own regulation is ordinarily given significant weight, provided it is a reasonable one. However, on the record before it, the court found no reasons that would justify the different fall protection requirements for single-story structures and multi-story structures. n6 Accordingly, the court concluded that the record was not sufficiently developed to allow it to assess the reasonableness of the Secretary's interpretation. The court retained jurisdiction and remanded the case to the Commission "to permit the Secretary to complete the record."

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n6 The court noted that the record contained no evidence that the safety considerations are different in the two types of structures, that the cost of compliance would be proportionately greater on a multi-story construction project, or that consistent enforcement practices belied Builders' evidence that industry practice did not require fall protection on buildings less than 30 feet.

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Accordingly, this case is remanded for further proceedings consistent with the order of the court. It is so ORDERED.