SECRETARY OF LABOR, Complainant, v. WHITING-TURNER CONTRACTING COMPANY, Respondent. OSHRC Docket No. 87-1238 _DECISION_ Before: BUCKLEY, Chairman, and AREY, Commissioner. BY THE COMMISSION: The Secretary of Labor cited Whiting-Turner Contracting Company for violating various occupational safety and health standards, including 29 C.F.R. § 1926.500(d)(1). [[1/]] The administrative law judge who heard the case found a violation, but he held that it was de minimis. Review was directed on whether the judge properly characterized the violation as de minimis. We find that the judge erred and hold that the violation was serious, as alleged in the citation. Whiting-Turner was construction manager of a construction project at the Washington Hospital Center in Washington, D.C., when an OSHA compliance officer inspected the worksite. Two four-story towers were being built, and the compliance officer observed that the perimeters of the floors were not properly guarded in the manner required by the standard. [[2/]] He observed two areas where there was no protection at all, and the remainder was guarded only by a single strand of wire rope, which sagged in several places. Whiting-Turner's project manager testified that the company had only three employees on the site, all of whom were graduate engineers. The compliance officer testified that he saw one of these Whiting-Turner employees near improperly-guarded perimeters on the second and third floors of the east tower. A foreman for the mechanical contractor on the site testified that, at different times, he had seen each of the three Whiting-Turner employees near improperly-guarded floor perimeters on both towers. In addition, Whiting-Turner's superintendent told the compliance officer that all three Whiting-Turner employees at the site had to be on several floors every day to inspect the construction work done by the contractors. On this evidence, the judge found that Whiting-Turner's employees were exposed to the unguarded or inadequately guarded perimeters of the floors. He therefore found that Whiting-Turner had violated section 1926.500(d)(1). We agree with and adopt that finding. The judge further found, however, that the violation was _de minimis._ He noted that the standards in Part 1926 of 29 C.F.R. were not developed by the Department of Labor as OSHA standards. Instead, the standards were originally promulgated under section 107 of the Contract Work Hours Safety Standards Act ("the Construction Safety Act"), 40 U.S.C. § 333, and later incorporated by reference as OSHA standards. The judge observed that the standards issued under the Construction Safety Act were intended to protect laborers and mechanics, whose tasks would be different from those of professional engineers. The judge concluded that the different nature of the work being done might result in different risks depending on the kinds of employees exposed. He inferred from the record that the inspection activities being performed by Whiting-Turner's engineers would result in only a brief exposure to the hazard. For that reason, the judge found the violation to be _de minimis._ We disagree. Section 9(a) of the Occupational Safety arid Health Act of 1970, 29 U.S.C. § 658(a), indicates that violations are _de minimis _when they "have no direct or immediate relationship to safety or health." A violation should be classified as de minimis when there is technical noncompliance with a standard but the violation has such a negligible relationship to the safety or health of employees that it is not appropriate to order abatement or assess a penalty. _Cleveland Consolidated, Inc.,_ 87 OSAHRC 8/A3, 13 BNA OSHC 1114, 1118, 1986-87 CCH OSHD ¶ 27,829, p. 36,429 (No. 84-696, 1987). We cannot agree that the conditions to which Whiting-Turner's three engineers were exposed had a negligible relationship to safety. The risk of falling to which Whiting-Turner's engineers were exposed may not have been as great as the risk to which the other workers were exposed, but it was nevertheless significant; and the consequences of a fall could well have been fatal. We therefore find that the Judge erred in classifying the violation as _de minimis. _[[3/]] We find, in fact, that the violation was serious within the meaning of section 17(k) of the Occupational Safety and Health Act, 29 U.S.C. § 666(k). Under section 17(k), a violation is deemed to be serious "if there is a substantial probability that death or serious physical harm could result" from the violative condition. The Commission has held that, in determining whether a violation is serious, the issue is not whether an accident is likely to occur; it is, rather, whether the result would likely be death or serious harm if an accident should occur. _Vanco Construction, Inc.,_ 82 OSAHRC 71/A2, 11 BNA OSHC 1058, 1061, 1983 CCH OSHD ¶ 26,372, p. 33,454 (No. 79-4945, 1982), _aff'd,_ 723 F.2d 410 (5th Cir. 1984). Here, there was testimony that the second floor of each building was twelve feet above the ground. A fall from even that modest height, could result in a serious injury, especially a fall onto the sort of debris typically found around a construction site. A fall from the third or fourth floor would be correspondingly more likely to result in serious injury.[[4/]] We therefore find that this violation was serious. Under section 17(j) of the OSH Act, 29 U.S.C. § 666(j), we must consider four factors in determining an appropriate penalty: the size of the employer, the gravity of the violation, the good faith of the employer, and the employer's history of prior violations. We find that the likelihood of an accident was low and that, therefore, the gravity of the violation was low. _See Niagara Mohawk Power Corp.,_ 79 OSAHRC 36/A2, 7 BNA OSHC 1447, 1450, 1979 CCH OSHD ¶ 23,670, p. 28,703 (No. 76-2414, 1979). As the judge stated, the three Whiting-Turner employees on the site were all professional engineers whose duty was to inspect the work of others. Their duties required only very brief exposure to the unguarded or inadequately-guarded floor edges. Although Whiting-Turner's engineers are entitled under the OSH Act to the protection required by the standard, the danger to them is much less than it would be to a worker whose duties involved spending considerable time near the floor perimeter and whose attention might be diverted from the danger presented by the floor's inadequately guarded perimeter. Having considered all the statutory factors, we deem a penalty of $50 to be appropriate. We affirm the Secretary's citation alleging a serious violation of 29 C.F.R. § 1926.500(d)(1), and we assess a penalty of $50. FOR THE COMMISSION Ray H. Darling, Jr. Executive Secretary DATED: April 20, 1989 ------------------------------------------------------------------------ ANN MCLAUGHLIN, SECRETARY OF LABOR U. S. DEPARTMENT OF LABOR Complainant v. WHITING-TURNER CONTRACTING COMPANY Respondent Docket No. 87-1238 APPEARANCES: JAMES E. CULP, ESQUIRE U.S. Department of Labor Office of the Solicitor For the Complainant L.E. THORPE Whiting-Turner Contracting Company For the Respondent _ DECISION AND ORDER_ TENNEY, JUDGE: 1. Upon the filing of a timely notice of contest by Whiting-Turner Contracting Company, the Secretary of Labor filed a formal complaint pursuant to 29 C.F.R. 2200.35 restating the allegations of several citation items, including violation of 29 C.F.R. 1926.500 (d)(i). The employer filed a letter dated December 4, 1987, that controverted the Secretary's allegation with respect to 29 C.F.R. 1926.500(d)(1). The letter put the Secretary to his proof that any employee of Whiting-Turner was exposed to the alleged hazard. 2. The Secretary filed a a motion to strike the "answer" and dismiss the notice of contest, because of the employer's failure to conform to the procedural requirements of Commission Rule 200.36 concerning the requirements of an answer. The motion was granted to the extent that the employer was found to have admitted the jurisdictional allegations of the complaint and those relating to Citation No. 1, except those in paragraph VI, subparagraph (d), alleging that the employers and employees were exposed or had access to an alleged violation. The employer was also considered to have denied the Secretary's penalty allegations specified in paragraph (g) of the complaint. Further, the allegations concerning Citation No. 2 for which no penalty was proposed were deemed admitted. It was also noted that the contest letter itself was unclear that Citation No. 2 was initially controverted. The merits on the matter in issue were heard on February 26, 1988, in Washington, D.C. Each party has filed arguments in support of its position. 3. Whiting-Turner Contracting Company, is a corporation with its principal office and place of business in Baltimore, Maryland. The Company is engaged in general construction. It employs about 300 employees. The company uses tools and equipment that come from locations outside Maryland. The employer is engaged in a business affecting interstate commerce. (Pleadings) 4. Under the order granting in part on the Secretary's motion, employer was deemed to have admitted the application of 29 C.F.R. 1936.500(d)(1) on June 26, 1987, to the second, third, and fourth floors of the east and west towers of a construction project at 106 Irving Street, N.W. in Washington, D.C. Section 1926.500(d)(1) requires, among other things, that every open-sided floor be guarded by standard railing, or the equivalent, on all open sides except where there is an entrance to a ramp, stairway, or fixed ladder. A "standard railing" is separately defined in paragraph (f) of the section to consist of a top rail, intermediate rail, toe board, and posts and to have a vertical height of about 42 inches. 5. In some areas, there were no protective rails. (Testimony of Mr. Wiseman, Tr. 10, Exhibit C-2). In one area a single cable was strung on the edge of a floor. (Testimony of Mr. Wiseman, Tr. 16; Exhibit C-3). The employer knew of these conditions. (Pleadings) 6. Whiting-Turner was the construction manager for the owner, and had the responsibility of getting a job built. With the exception of Mr. Alexander Lawrence, the assistant superintendent, the employees of Whiting-Turner on the job were graduate engineers who were assigned various phases of the work to watch. (Testimony of Mr. Bohrman, Tr. 36, 38, 39). It was Mr. Lawrence who elected the single cable. (Testimony of Mr. Wiseman, Tr. 19). The professional employees had many duties in inspecting the building such as checking sheet rock, checking the progress of the pipe installation and other installations in the building. In performing these tasks, they sometimes approached close to the edge of a floor. Some of the sheet metal that was inspected was about a foot or so from the edge. (Testimony of Mr. Wiseman, Tr. 12; that of Mr. Mountjsoy, Tr. 32, 34). 7. As to the frequency of exposure, the compliance officer saw the employees on the floor several times, and was informed by Whiting-Turner's superintendent that the employees were "up and down on the floors" checking the work on the job everyday. (Testimony of Mr. Wiseman, (Tr. 17). The frequency of exposure was estimated to be between 10 to 20 times a month. (Testimony of Mr. Mountjoy, Tr. 32). 8. If an employee were to fall from the second floor, which was about 12 feet from the ground, there was a substantial probability of serious injury in the form of broken bones. From the higher floors the risk of more serious injury would exist. (Testimony of Mr. Wiseman, Tr. 18). Mr. Wiseman also testified that the likelihood of an accident was very probable. However, the narrative suggests that the witness was actually addressing the probability of serious injury if a fall were to occur rather than the incidence of a fall. (See Tr. 18, Lines 20-25.) Also, there is no direct evidence on the duration of the several exposures of the professional engineers to fall hazards. It may, how ever, be inferred from the evidence that professional engineers were up and down on the floors doing their daily checking work that their individual inspections were brief rather than prolonged. 9. It is noted that the standards published in Part 1926 of Title 29 of the Code of Federal Regulations were adopted under section 107 of the Contract Work Hours Safety Standards Act (40 U.S.C. section 333) for the protection of laborers and mechanics employed on contract work subject to the Act's terms. It is by virtue of the Occupational Safety and Health Act itself and 29 C.F.R. 1910.12(a) adopted pursuant thereunder that Part 1926 is extended to every employment of every employee engaged in "construction work". While it is accepted that professional engineers may be engaged in "construction work" it is important that Part 1926 as a whole and section 1926.500 in particular were initially intended to protect laborers and mechanics whose construction tasks may be different from those of professional engineers. The plain purpose of section 1926.500(d) is to protect those using a floor as a working surface. Yet the nature of that use may result in different risks from exposure. 10. In considering exposure of an employee to a fall hazard, the cases are legion that the distance from the edge of the working service is significant. The frequency and duration of exposure are also important in ascertaining if the exposure offers a realistic hazard. _Fredcon, Inc._ 1987 CCH OSHD 22,805 (adm. law judge). Here, the inspections by a professional engineer were close to the edge of the floors, and the frequency of the activity was significant. But there is no indication of any significant length of exposure in the performance of the inspecting tasks which as described in the evidence suggest brief rather than long duration. 11. Under these circumstances, the exposure is found to be only marginally realistic. _Fredcon, Inc._ _supra._ The employer is found to have violated 29 C.F.R. 1926.500(d)(1). However the violation is characterized as de minimis requiring no penalty assessment or abatement order. PAUL A. TENNEY Judge, OSHRC DATED: MAY-5 1988 Washington, D.C. ------------------------------------------------------------------------ FOOTNOTES: [[1/]] That standard provides: § 1926.500 _Guardrails, handrails, and covers._ (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)(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. [[2/]] A standard guardrail required by 29 C.F.R. § 1926.500(d)(1) must meet the specifications set out in 29 C.F.R. § 1926.500 (f)(1), which provides in part: § 1926.500 _Guardrails, handrails, and covers._ (f) _Standard specifications_. (1) A standard railing shall consist of top rail, intermediate rail, toeboard, and posts, and shall have a vertical height of approximately 41 2 inches from upper surface to top rail to floor, platform., runway, or ramp level. The top rail shall be smooth-surfaced throughout the length of the railing. The intermediate rail shall be halfway between the top rail and the floor, platform, runway, or ramp. [[3/]] It appears from the record that Whiting-Turner was probably the employer that "created" and "controlled" the cited violation within the meaning of Commission precedent. If so, it would have been appropriate under that precedent to hold Whiting-Turner responsible for the violation even if the only exposed workers had been the employees of other contractors. _See, e.g.,_ _Lee Roy Westbrook Constr. Co.,_ 13 BNA OSHC 2104, 1989 CCH OSHD ¶ 28,465 (No. 85-601, 1989). These employees were clearly exposed to a serious falling hazard. We need not address this issue, however, because we reach the same result even if we limit our analysis to the three Whiting-Turner employees discussed in the judge's decision. We note that both parties have focused solely on those three employees in their pleadings and in their briefs on review. We therefore decide only the narrow issue argued by the parties. [[4/]] Although the record does not reveal the distances between the upper floors, our experience indicates that it would be approximately 10 feet, meaning that a fall from the fourth floor would be about 32 feet.