“Docket No. 91-2131 SECRETARY OF LABOR, Complainant,v.JOHN QUINLAN,t\/a QUINLAN ENTERPRISES, Respondent.OSHRC Docket No. 91-2131DECISION BEFORE: FOULKE, Chairman; WISEMAN and MONTOYA, CommissionersBY THE COMMISSION:IntroductionThe only issue on review in this case is whether the steel erection standard at 29 C.F.R.? 1926.750(b)(1)(iii)[[1]] is more specifically applicable than the general constructionstandard at 29 CFR ? 1926.500(d)(1)[[2]] regarding the perimeters of permanent concretefloors in steel structures under construction.Background Respondent, John Quinlan, t\/a Quinlan Enterprises (\”Quinlan\”), was the steelerection subcontractor for construction of a two-story building in Savannah, Georgia.Quinlan was cited for failing to install standard guardrails around the edge of anopen-sided floor. At the time of the inspection on April 19, 1991, construction of thetwo-story building had substantially: the structural beams were in place, all concretefloors had been poured, the roof was being completed, the electricians were placingconduit and pulling wire, and the air conditioning ducts were being installed, as was theelevator shaft. Aside from putting up a canopy in the front and adding some support beamsaround the escalator pit, virtually all Quinlan had left to do was to install twometal-pan staircases. The second-story floor, approximately 20 feet up from the groundfloor, was not temporary planking or metal-decking but a permanent, concrete floor;however, because not all the walls were up, portions of the floor were still open-sided.Quinlan contends that because it was still engaged in structural steel assembly, the steelerection standard at 29 C.F.R. ? 1926.750(b)(1)(iii) is more applicable here. Quinlanfurther claims that the 42-inch high perimeter cable strung at the edge of the floor metthe requirements of that standard.The judge rejected Quinlan’s argument and affirmed the Secretary’s citation. He assessed apenalty of $700. Upon review of the judge’s decision, we affirm it for the followingreasons.Discussion An analysis of which of two standards is more specifically applicableappropriately begins with 29 C.F.R. ? 1910.5(c), a regulation which codifies theprinciple that when more than one provision governs a particular hazard, the morespecifically applicable provision prevails.[[3]] Quinlan’s position is that only the steelerection standards apply to a worksite during the course of steel erection, regardless ofthe condition of any floor. Quinlan cites Pima Constr. Co., 4 BNA OSHC 1620,1976-77 CCHOSHD ? 20,998 (No. 5221, 1976), for the proposition that the steel erection standardrequiring a 42-inch high perimeter cable applies even where a substantial part of a flooris permanent. In the instant case, however, the floor was not temporary even in part, butentirely permanent.The judge relied primarily on Adams Steel Erection, Inc., 13 BNA OSHC 1073, 1986-87 CCHOSHD ? 27,815 (No. 77-3804, 1987) (steel erection standard is more specificallyapplicable where flooring is still temporary), reasoning that the steel erection standardis not more specifically applicable where, as here, the floor is no longer temporary. Thejudge’s decision is compatible with current Commission precedent. Bratton Corp.,14 BNAOSHC 1893, 1087-90 CCH OSHD ? 29,152 (No. 83-132, 1990). In Bratton, the Commissiondecided that employers engaged in steel erection are not governed exclusively by the steelerection standards. The Commission noted that its previous precedent to the contrary hadbeen rebuffed by virtually every circuit court[[4]] that considered the issue:We agree with the various appellate court decisions. . . and hold that the steel erectionstandards, . . . do not preempt application of the general construction standards to steelerection work \”where general standards provide meaningful protection to employeesbeyond the protection afforded by the steel erection standards . . . .\” AllCommission decisions to the contrary are overruled in that respect ….Id. at 1896, 1987-90 CCH OSHD at p. 38,992 (citation omitted). Thus, Bratton implicitlyresolves the issue in the instant case.Section 1926.750(b)(1)(iii), which by its own terms speaks only of temporary flooring,does not address the danger with which we are concerned, namely, falls from permanentopen-sided floors. In fact, the steel erection standards make no provision whatsoever forthe guarding of permanent open-sided floors.[[5]] We therefore conclude that section1926.500(d)(1) is the more specifically applicable standard and that it applies to thepermanent concrete floor in this case rather than section 1926.750(b)(1)(iii).Accordingly, we affirm a serious violation of 29 C.F.R. ? 1926.500(d)(1). Havingconsidered the statutory criteria, we agree with the judge’s determination that a $700penalty is appropriate.Edwin G. Foulke,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Jr. ChairmanDonald G. Wiseman CommissionerVelma Montoya\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0CommissionerDated: July 17, 1992SECRETARY OF LABOR, Complainant, v.JOHN QUINLAN, TRADING AS QUINLAN ENTERPRISES, Respondent.OSHRC Docket No. 91-2131APPEARANCES: Leslie John Rodriguez, Esquire Frank L Kollman.EsquireOffice of the Solicitor Kollman. Sheehan, Nathan & Fink U.S. Department of LaborBaltimore MarylandAtlanta, Georgia For Respondent For ComplainantBefore: Administrative Law Judge James D. Burroughs DECISION AND ORDERJohn Quinlan, Trading as Quinlan Enterprises [[1]] (\”Quinlan\”), a soleproprietorship engaged in the steel erection business, contests an alleged seriousviolation of 29 C.F.R. ? 1926.500(d)(1), for failure to have an intermediate raiI on theeastern and northern perimeter of the second floor of a building under construction at14045 Abercorn Street, Savannah, Georgia. The charge arose from an inspection conducted byCompliance Officer David Baker on April 19, 1991, at the Savannah Mall expansion project(Tr. 10). Quinlan contends that he was engaged in steel erection and was in compliancewith 29 C.F.R. ? 1926.750(b)(l)(iii), which he submits was the standard applicable to theworking conditions. Quinlan has been in the steel erection business since 1962 (Tr. 55).Compliance Officer Baker held an opening and closing conference at the site and talkedwith Michael Quinlan, who represented himself as the foreman for Quinlan (Tr. 13, 15, 57).During the walk-around, he observed a Quinlan employee coming down the staircase (Tr. 20).The stairway was on the northern edge of the building and led to the second floor (Tr.20).A two-story building for Montgomery Ward was under construction at the Savannah Mall (Tr.11, 56). McCory Construction Company was the general contractor for the mall expansion(Tr. 56). Quinlan was a subcontractor responsible for the steel erection and had eightemployees at the site (Tr. 13, 16, 48, 56). It was Quinlan’s responsibility to unload anderect the entire structure including beams, columns, metal floor decking, stairways andcanopies (Tr. 57).The construction of the building had progressed at the time of the inspection. Thestructural beam were in place. All cement floors had been poured (Tr. 16-17). The roof wasbeing completed, and the electricians were placing conduit and pulling wire. The airconditioning duct work was being installed (Tr. 17). Stairways were being installed, andthe elevator shaft was being prepared so that the elevator could be installed (Tr. 17).As Baker ascended to the second floor, he observed that the open- sided floor did not havea midrail to protect against an accidental fall. Quinlan employees were installing the panmetal stairwells at the northern and eastern sections of the building (Tr. 21-23, 32).There was a single strand of wire approximately 42 inches high around the edge of thefloor [[2]] (Exh. C-4; Tr. 26, 36). The second floor was approximately 20 feet above theground (Tr. 31). Three employees of Quinlan were working on the northern edge of thesecond floor (Exh. C-5; Tr. 31-32, 36). They were, for the most part, located within twoto three feet of the edge of the floor (Tr. 40-41).Quinlan contends that construction was still at the steel erection stage and that therequirements of ? 1926.750(b)(1)(iii) were more applicable than ? 1926.500(d)(1).Section 1926.750(b)(1)(iii) provides:(iii) Floor periphery–safety railing. A safety railing of 1\/2-inch wire rope or equalshall be installed, approximately 42 inches high, around the periphery of alltemporary-planked or temporary metal- decked floors of tier buildings and othermultifloored structures during structural steel assembly.The cited standard controls multifloored structures during structural steel assembly.Section 1926.750(b)(1)(iii), by express terms, is applicable \”around the periphery ofall temporary-planked or temporary metal-decked floors\” (Emphasis added).In Adams Steel Erection, Inc., 13 BNA OSHC 1080, 1986-87 CCH OSHD ? 27,815 (No. 77-3804,1987) the Commission recognized that there are inherent differences between temporary andpermanent flooring. It enunciated a key factor in making a distinction that is equallyapplicable to Quinlan:The record indicates that the key factor in determining whether flooring bas become\”permanent\” is whether the flooring has been integrated into the structure sothat it contributes to the stability of the building.There is no credible evidence that disputes the fact that the concrete floors added to theintegrity and stability of the building precedent as restated in Adams Steel is as follows(3 BNA OSHC at 1081):Read together, Commission precedent holds that if the employer is still engaged instructural steel erection and the permanent floor has not yet been completed, then thefloor is a \”temporary-planked\” or \”temporary metal-decked\” floorwithin the meaning of section 1926.750(b)(1)(iii).There is no dispute that all concrete flooring had been poured. Once the cement was pouredthe floors became permanent. The floors became part of the building structure andcontributed to its stability. Since permanent flooring had been installed throughout thebuilding, the steel erection standard does not apply. The fact that the concrete floorshad been poured removed the applicability of ? 1926.750(b)(1)(iii). Section1926.500(d)(1) was more specifically applicable. The are no steel erection standardsapplicable to the guarding of open-sided floors. Carpenter Rigging Inc., 11 BNA OSHC 1088,1982 CCH OSHD ? 26,384 (No. 76-5125, 1982). The argument that ? 1926.500(d)(1) ispreempted by a more specifically applicable standard under Subpart R — Steel Erection, isrejected.Section 1926.500(d)(1) provides:(d) Guarding of open-sided floors, platforms, and runways. (1) Every open-sided floor orplatform 6 feet or more above adjacent floor or ground level shall be guarded by astandard railing, or the equivalent, as specified in paragraph (f)(1) of this section, onall open sides, except where there is entrance to a ramp, stairway, or fixed ladder. Therailing 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 fallingmaterials could create a hazard.Although Quinlan was in compliance with ? 1926.750(b)(1)(iii), since it had a wire strandalong the sides that was 42 inches high, that standard does not require a midrail. Thereis no dispute over the fact that the midrail was missing. Since the floor was permanent,Quinlan was required to comply with ? 1926.500(d)(1). The violation has been established.Classification of the ViolationThe Secretary contends that the violation of ? 1926.500(d)(1) was serious within themeaning of section 17(k) of the Act. A serious violation exists where there is substantialprobability that death or serious physical harm could result from the condition inquestion. The Secretary need not prove that an accident is probable, it is sufficient ifan accident is possible, and its probable result would be serious injury or death. Brown& Root Inc., Power Plant Division, 8 BNA OSHC 1055, 1980 CCH OSHD ? 24,275 (No.76-3942, 1980).The Secretary must also prove that the employer knew or, with the exercise of reasonablediligence, should have known of the existence of the violation. The knowledge element isdirected to the physical conditions which constitute a violation. Southwestern Acoustics& Specialty, Inc., 5 BNA OSHC 1091, 1977-78 CCH OSHD ? 21,582 (No. 12174, 1977). Thesingle strand of wire being used as a rail was in plain view. There were other areas ofthe floor that had a standard toprail and midrail (Tr. 37). Quinlan had full knowledge ofthe condition even though as a steel erector he did not think ? 1926.500(d)(l) wasapplicable.In the event of a fall, employees would have fallen twenty feet onto a concrete surface(Tr. 38). A fall from that height to a concrete would result in death or serious physicalinjury. The violation was serious.Determination Of Appropriate PenaltyThe Commission is the final arbiter of penalties in all contested cases. Secretary v.OSAHRC and Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973). In determining anappropriate penalty, the Commission is required to find and give \”dueconsideration\” to the size of the employer’s business, the gravity of the violation,the good faith of the employer, and the history of previous violations.Quinlan employed forty persons at the time of the issuance of the citation (Tr. 39). Atthe time of the hearing, Quinlan had eleven employees (Tr. 54). There were three employeesexposed to the hazard. The duration of the exposure was brief (Tr. 40). The company had noprevious history of violations (Tr. 44). The gravity was mitigated somewhat by the factthat there was a single wire strand around the area that was 42 inches high. Quinlan didnot have a written safety and health program or a hazard communication program (Tr. 43). Apenalty of $700 is appropriate for the violation and is assessed against Quinlan.FINDINGS OF FACT AND CONCLUSIONS OF LAWThe findings of fact and conclusions of law containedin this opinion are incorporated herein in accordance with Rule 52(a) of the Federal Rulesof Civil Procedure.ORDER In view of the foregoing and good cause appearing insupport of the determinations, it isORDERED: That the serious citation issued to, Quinlan on June 27, 1991,is affirmed and a penalty of $700 assessed for the violation.JAMES D. BURROUGHS JudgeDate: February 24, 1992FOOTNOTES: [[1]] Found in \”Subpart R-Steel Erection,\” the standard states:? 1926.750 Flooring requirements.(b) Temporary flooring–skeleton steel construction in tiered buildings. (1). . . .(iii) Floor periphery–safety railing A safety railing of 1\/2-inch wire rope or equalshall be installed, approximately 42 inches high, around the periphery of antemporary-planked or temporary metal-decked floors of tier buildings and othermultifloored structures during structural steel assembly.[[2]] Found in \”Subpart M–Floor and Wall Openings, and Stairways,\” the standardstates:? 1926.500 Guardrails, handrails and covers.. . . . .(d) Guarding of open-sided floors, platforms, and runways. (1) Every open- sided floor orplatform 6 fact or more above adjacent floor or ground level shall be guarded by astandard railing, or the equivalent, as specified in paragraph (f)(1)(i) of this section,on all open sides . . . .. . . . .(f) Standard specifications. (1) A standard railing shall consist of top rail,intermediate rail, toeboad, and posts, and shall have a vertical height of approximately42 inches from upper surface of top rail to floor ….(i) [specific dimensions for wood railings].[[3]] The relevant portions of the regulation provide:? 1910.5 Applicability of Standards…..(c)(1) If a particular standard is specifically applicable to a condition. . . it shallprevail over any different general standard which might otherwise be applicable to thesame condition ….(2) On the other hand, any standard shall apply according to any employment and place ofemployment, in any industry, even though particular standards are also prescribed for thatindustry . . . to the extent that none of such particular standards applies . . . .[[4]] E.g., the Eleventh Circuit, the court in Quinlan’s own jurisdiction, has held since1987 that the steel erection standards are not an exclusive set of safety standards forthe steel erection industry. Brock v. Williams Enterp, 832 F.2d 567 (11th Cir. 1987).[[5]] Quinlan claims that its. 42-inch cable met the requirements of section1926.750(b)(1)(iii). However, as our holding makes clear, that standard does not applywhere as here, a permanent floor is in place. The judge properly took into accountQuinlan’s efforts to afford its employees some protection when he lowered the penalty from$1,250 to $700, but the applicable standard requires a guardrail, midrail and toeboard.[[1]] A motion to change the caption was granted atthe commencement of the hearing (Tr. 5). Prior to granting the motion, the caption hadbeen under the name of Quinlan Enterprises Inc.[[2]] It a determination had been made that Quinlan was engaged in steel erection, thecable would have been in compliance with ? 1910.750 (b)(1)(iii) (Tr. 49-50).”