“SECRETARY OF LABOR,Complainant,v.DANIEL CONSTRUCTION COMPANY,Respondent.OSHRC Docket No. 79-5821_DECISION_Before: ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.BY THE COMMISSION:A decision of Administrative Law Judge Richard DeBenedetto is before theCommission under 29 U.S.C. ? 661(i). On review are two items of anamended citation issued to Daniel Construction Company, the primecontractor at a construction site in Rumford, Maine. The first itemalleged that Daniel violated the general duty clause, 29 U.S.C. ?654(a)(1), by failing to adequately support a 40-foot vertical pipelineof a pumpcrete system, which conveys concrete to upper constructionlevels. The judge vacated this item because the pumpcrete systemstandard at 29 C.F.R. ? 1926.700(d)(6) addresses the subject of pipesupport, and thus preempts the general duty clause. The second itemalleged that Daniel violated the temporary flooring standard at 29C.F.R. ? 1926.752(i) by failing to secure the planks of a walkway thatwas 20 inches wide. The judge vacated this item on the ground that thetemporary flooring standard did not apply to a 20-inch wide walkway. Wehave examined the entire record and find no prejudicial error in thejudge’s disposition of either item. Accordingly, the judge’s decisionis affirmed.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: FEB 29 1984CLEARY, Commissioner, dissenting in part:I dissent from the majority’s decision to vacate the second item. In myview, the cited planks were \”temporary flooring\” within the meaning of29 C.F.R. ? 1926.752(i). This standard specifies that \”[p]rovisionsshall be made to secure temporary flooring against displacement.\” Thewalking surface in question was formed by pairs of planks laid end toend across a series of structural steel members. The planks wereoverlapped at their ends but were not otherwise secured againstdisplacement. Indeed, employees of other employers who worked onsimilar planking had to tie it down before they used it. In vacatingthis item, the judge held that \”section 1926.752(i) applies only to atemporary or a working floor.\” Relying on a related steel erectionstandard at section 1926.750(b)(1)(i), the judge found that \”temporaryflooring\” is \”solidly planked or decked over its entire surface exceptfor access openings.\” Because the cited walking surface was only twoplanks wide and used only as a \”temporary passageway\”–as opposed to \”awork surface\”–the judge concluded that it was not \”temporary flooring\”within the meaning of the section 1926.752(i). I cannot agree.In my view, the judge incorrectly defined \”temporary flooring.\” Section1926.750(b)(1)(i), which forms the basis of judge’s decision, states:(b) _Temporary flooring-skeleton steel construction in tiered building_. (1)(i). The _derrick or erection floor_ shall be solidly planked ordecked over its entire surface except for access openings . . . .(Emphasis supplied.) Inasmuch as section 1926.750(b)(1)(i) addresses\”temporary flooring\” on the \”derrick or erection floor,\” this provisioncannot be used to define \”temporary flooring\” at all other locations. I find no evidence that the planks in question were located on the\”derrick or erection floor.\” Moreover, the standard the judge refers tosays the floor must be solidly planked ordecked over its entire surface. But the walkway, whatever itsdimensions, was the entire surface of this particular floor. Section1926.750(b)(1)(i) does not set dimensions for a surface. Its import isonly that there should be no apertures in the surface, whatever size thesurface might be.The hazard of plank displacement on unsecured temporary flooring is thesame regardless of the area covered by such flowing. Under the judge’sdecision, an employer would never be required to secure flooring untilit covered an \”entire surface.\” Thus, the protection afforded toemployees who do the same work and who are exposed to the same hazardswill vary according to the extent of the flooring they work on. Such aresult is neither logical nor mandated by the standard.The judge’s ruling on item two also is premised on a misunderstanding ofthe nature and purpose of \”temporary flooring.\” The judge determinedthat the cited planks were not \”temporary flooring\” because there was noevidence that they were used as a \”work surface.\” The judge’sdistinction finds no support in the steel erection standard. Nowheredoes this standard state that a surface must be used as a walkingsurface and a \”work surface\” before it is considered \”temporaryflooring.\”[[*]] \”Temporary floorings may serve as a walking _or_ work_surface_, and as fall protection. _Cf_. 29 C.F.R. ?1926.750(b)(2)(i)(requiring \”temporary flooring\” two stories or 30 feetbelow beams where work is being performed). It does not lose itscharacter as \”temporary flooring\” because it serves only one function.In this case, the cited planking served as a walking surface–a commonfunction of \”temporary flooring\”. The standard requires that suchflooring be secured \”against displacement\” so that employees would notfall through or off dislodged planking and so that planking would not bedislodged and strike employees below. Accordingly, I would find thatthe cited planks were \”temporary flooring.\” Inasmuch as the planking ofthe walkway was not secured against displacement, I would find that aviolation of section 1926.752(i) was established.————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[*]] Although it is not clear from his decision, it may be that thejudge’s conclusion that the cited standard applies only to \”temporaryflooring\” used as a \”work surface\” is based on the heading of 29 C.F.R.? 1926.752, \”_Bolting, riveting, fitting up, and_ _plumbing up_.\” Before the judge and on review, the employer argued that ? 1926.752(i)was inapplicable to the walkway becausethe Secretary presented no evidence that any of the activities listed inthe heading of ? 1926.752 were being performed. I am not persuaded bythis argument. Sections (a) through (d) of ? 1926.752 sets forthspecific precautionary measures that are to be followed when employeesare engaged in bolting, riveting and plumbing up. The remainder of ?1926.752–sections (e) through (k)–contains several standards thatgenerally address flooring and fall hazards. I do not consider theheading of ? 1926.752 an exhaust listing of the type of activities thatare governed by sections (e) through (k). The scope of a standard isdetermined by the standard itself rather than its caption or heading_Chesapeake Operating Co_., 82 OSAHRC 36\/C9, 10 BNA OSHC 1790, 1982 OCHOSHD ? 26,142 (No. 76-13531 1; _see_ _Wray Electric Contracting, Inc_.,78 OSAHRC 78\/A2, 6 BNA OSHC 1981, 1978 CCH OSHD ? 23,031 (No. 76-119,1978), _aff’d_, 633 F.2d 220 (6th Cir. 1980). Under the employer’sinterpretation, an employee who was bolting or riveting would beprotected against unsafe flowing while an employee who was welding– or,for that matter, performing any task not mentioned in the heading–wouldnot. I decline to construe the heading of ? 1926.752 to produce such anodd result. “