“Docket No. 79-5821 SECRETARY OF LABOR,Complainant,v.DANIEL CONSTRUCTION COMPANY, Respondent.OSHRC Docket No. 79-5821DECISION Before:\u00a0 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).\u00a0 On review are two items of an amended citationissued to Daniel Construction Company, the prime contractor at a construction site inRumford, Maine.\u00a0 The first item alleged that Daniel violated the general duty clause,29 U.S.C. ? 654(a)(1), by failing to adequately support a 40-foot vertical pipeline of apumpcrete system, which conveys concrete to upper construction levels.\u00a0 The judgevacated this item because the pumpcrete system standard at 29 C.F.R. ? 1926.700(d)(6)addresses the subject of pipe support, and thus preempts the general duty clause. \u00a0The second item alleged that Daniel violated the temporary flooring standard at 29 C.F.R.? 1926.752(i) by failing to secure the planks of a walkway that was 20 inches wide.\u00a0The judge vacated this item on the ground that the temporary flooring standard did notapply to a 20-inch wide walkway.\u00a0 We have examined the entire record and find noprejudicial error in the judge’s disposition of either item.\u00a0 Accordingly, thejudge’s decision is affirmed.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED:\u00a0 FEB 29 1984CLEARY, Commissioner, dissenting in part:I dissent from the majority’s decision to vacate the second item.\u00a0 In myview, the cited planks were \”temporary flooring\” within the meaning of 29 C.F.R.? 1926.752(i).\u00a0 This standard specifies that \”[p]rovisions shall be made tosecure temporary flooring against displacement.\”\u00a0 The walking surface inquestion was formed by pairs of planks laid end to end across a series of structural steelmembers.\u00a0 The planks were overlapped at their ends but were not otherwise securedagainst displacement.\u00a0 Indeed, employees of other employers who worked on similarplanking had to tie it down before they used it.\u00a0 In vacating this item, the judgeheld that \”section 1926.752(i) applies only to a temporary or a working floor.\”\u00a0 Relying on a related steel erection standard at section 1926.750(b)(1)(i), thejudge found that \”temporary flooring\” is \”solidly planked or decked overits entire surface except for access openings.\”\u00a0 Because the cited walkingsurface was only two planks wide and used only as a \”temporary passageway\”–asopposed to \”a work surface\”–the judge concluded that it was not \”temporaryflooring\” within the meaning of the section 1926.752(i).\u00a0 I cannot agree.In my view, the judge incorrectly defined \”temporary flooring.\”\u00a0Section 1926.750(b)(1)(i), which forms the basis of judge’s decision, states:(b) Temporary flooring-skeleton steel construction in tiered building.\u00a0 (1)(i).\u00a0 The derrick or erection floor shall be solidly planked ordecked over its entire surface except for access openings . . . .(Emphasis supplied.)\u00a0 Inasmuch as section 1926.750(b)(1)(i) addresses\”temporary flooring\” on the \”derrick or erection floor,\” thisprovision cannot be used to define \”temporary flooring\” at all other locations.\u00a0 I find no evidence that the planks in question were located on the \”derrick orerection floor.\”\u00a0 Moreover, the standard the judge refers to says the floor mustbe solidly planked ordecked over its entire surface.\u00a0 But the walkway, whatever its dimensions, was theentire surface of this particular floor.\u00a0 Section 1926.750(b)(1)(i) does not setdimensions for a surface.\u00a0 Its import is only that there should be no apertures inthe surface, whatever size the surface might be.The hazard of plank displacement on unsecured temporary flooring is the sameregardless of the area covered by such flowing. Under the judge’s decision, an employerwould never be required to secure flooring until it covered an \”entire surface.\”\u00a0Thus, the protection afforded to employees who do the same work and who are exposedto the same hazards will vary according to the extent of the flooring they work on. \u00a0Such a result is neither logical nor mandated by the standard.The judge’s ruling on item two also is premised on a misunderstanding of thenature and purpose of \”temporary flooring.\”\u00a0 The judge determined that thecited planks were not \”temporary flooring\” because there was no evidence thatthey were used as a \”work surface.\”\u00a0 The judge’s distinction finds nosupport in the steel erection standard.\u00a0 Nowhere does this standard state that asurface must be used as a walking surface and a \”work surface\” before it isconsidered \”temporary flooring.\”[[*]]\u00a0 \”Temporary floorings may serveas a walking or work surface, and as fall protection.\u00a0 Cf. 29C.F.R. ? 1926.750(b)(2)(i)(requiring \”temporary flooring\” two stories or 30feet below beams where work is being performed).\u00a0 It does not lose its character 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\”.\u00a0 The standard requires that such flooringbe secured \”against displacement\” so that employees would not fall through oroff dislodged planking and so that planking would not be dislodged and strike employeesbelow.\u00a0 Accordingly, I would find that the cited planks were \”temporaryflooring.\”\u00a0 Inasmuch as the planking of the walkway was not secured againstdisplacement, I would find that a violation of section 1926.752(i) was established.The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation 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 the judge’s conclusionthat the cited standard applies only to \”temporary flooring\” used as a\”work surface\” is based on the heading of 29 C.F.R. ? 1926.752, \”Bolting,riveting, fitting up, and plumbing up.\”\u00a0 Before the judge and onreview, the employer argued that ? 1926.752(i) was inapplicable to the walkway because the Secretary presented no evidence that any of the activities listed in the heading of ?1926.752 were being performed.\u00a0 I am not persuaded by this argument.\u00a0 Sections(a) through (d) of ? 1926.752 sets forth specific precautionary measures that are to befollowed when employees are engaged in bolting, riveting and plumbing up.\u00a0 Theremainder of ? 1926.752–sections (e) through (k)–contains several standards thatgenerally address flooring and fall hazards.\u00a0 I do not consider the heading of ?1926.752 an exhaust listing of the type of activities that are governed by sections (e)through (k).\u00a0 The scope of a standard is determined by the standard itself ratherthan its caption or heading Chesapeake Operating Co., 82 OSAHRC 36\/C9, 10 BNA OSHC1790, 1982 OCH OSHD ? 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).\u00a0 Under the employer’s interpretation, an employee whowas bolting or riveting would be protected against unsafe flowing while an employee whowas welding– or, for that matter, performing any task not mentioned in the heading–wouldnot.\u00a0 I decline to construe the heading of ? 1926.752 to produce such an odd result.\u00a0″