“SECRETARY OF LABOR,Complainant,v.LEXCON BUILDING SYSTEMS,Respondent.OSHRC Docket No. 88-0854_ORDER_This case was directed for review before the Occupational Safety andHealth Review Commission by Former Commissioner Linda L. Arey onDecember 30, 1988 from a decision by Administrative Law Judge Edwin G.Salyers dated November 23, 1988. The Secretary of Labor has filed aWithdrawal of Item 1 of Citation 1 pursuant to Commission Rule 102, 29C.F.R. ? 2200.102.Having reviewed the official record in this case, the Commissionconstrues the Secretary’s withdrawal as a motion to Withdraw Item 1 ofCitation 1 and grants the motion. In addition, the Commission sets asidethe Judge’s decision to the citation. Judge Salyers’ Decision and Ordernow becomes a final order to the extent that it rules on Item 2 ofCitation 1.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: May 24, 1990————————————————————————SECRETARY OF LABOR,Complainant,v.LEXCON BUILDING SYSTEMS ,Respondent.OSHRC Docket No. 88-0854APPEARANCES:Sandra R. Kramer, Esquire, Office of the Solicitor, U. S. Department ofLabor, Cleveland, Ohio on behalf of complainant.James H. Newman, Safety Engineer, Lexcon Building Systems, Forest FairMall Project, Fairfield, Ohio, on behalf of respondent._DECISION AND ORDER_SALYERS, Judge: Respondent, Lexcon Building Systems, is a wholly-ownedsubsidiary of Lathrop Company, Inc. At the time in question, Lexcon wasengaged by the project developer as the construction manager or generalcontractor at the Forest Fair Mall Project in Fairfield, Ohio (Tr. 59).In this capacity, Lexcon employed approximately eight employees tooversee the operations of numerous subcontractors at the site (Tr. 10).Lexcon’s primary responsibility was to coordinate the construction andto assure that construction schedules were met and that work performedby subcontractors met specifications (Tr. 27). The role of Lexcon wassupervision and its employees did not engage in actual construction (Tr.28). Included among the responsibilities of Lexcon, however, was theobligation to conduct safety inspections at the project to insurecompliance with applicable safety standards (Ex. R-1).The Forest Fair project was inspected by compliance officers of theOccupational Safety and Health Administration during the period December22, 1987, through February 1, 1988. This inspection resulted in theissuance of 143 citations to various subcontractors at the site (Ex.C-3) alleging violations of the Occupational Safety and Health Act of1970 (29 U.S.C. 651, _et. seq._). The Secretary also charged Lexcon withthe following items;129 CFR 1926.20(b)(2): Programs providing for frequent and regularinspections or the job sites, materials and equipment were not beingmade by competent persons designated by the employer:(a) On the mall part of the project, inspections were being done on amonthly basis with the past two conducted resulting in only six and tenviolations noted.229 CFR 1926.153(h)(5): Valves on containers having water capacitygreater than 50 pounds (nominal 20 pounds LP-Gas capacity) were notprotected from damage while in use or storage:(a) On the east side of the Lexcon office trailer, there was a 100gallon capacity LP gas cylinder in use that was not protected fromphysical damage of vehicular traffic.[[1]]329 CFR 1926.500(b)(1): Floor openings were not guarded by standardrailings and toeboards or covers as specified in paragraph (f) of thissection:(a) At the east end of the mall in area E, near column lines N5 and3-18.5, employees were exposed to unprotected floor openings measuring6’1\” x 6’1\” and 15 1\/2′ x 16’1\” that were 5\” deep._ADEQUACY OF INSPECTION PROGRAM_Section 1926.20 of 29 C.F.R. requires an employer to initiate andmaintain an accident prevention program to assure a safe workplace isprovided for employees. Subsection b(2) of this standard requires:Such programs shall provide for frequent and regular inspections of thejob sites, materials, and equipment to be made by competent personsdesignated by the employers.The Secretary contends in this case that Lexcon failed to meet itsresponsibilities under this standard since it did not conduct \”frequentand regular inspections.\” [[2]] While the standard is nonspecific, theSecretary maintains that inspections should be performed on a weeklybasis and that the results of each inspection should be written up andcommunicated to the responsible parties (Tr. 14-15).The evidence is undisputed that Lexcon’s safety engineer, Jim Newman,did not make formal inspections on a weekly basis. During the time inquestion, Mr. Newman made four inspections in a five-month period (Ex.C-1; Tr. 18). These reports note a variety of unsafe acts and conditionsrelative to several of the subcontractors at the site. These reportsalso make specific reference to construction standards allegedlyviolated and observed during the course of the inspection.In support of her contention that weekly inspections are required by thestandard, the Secretary offered a report made by one of Lathrop’sinsurance carriers (Ex. C-4). The report makes three references toweekly inspections. On page one under Job Planning, it is noted that\”controls for these hazards include hazard recognition by your SafetyManager during his weekly inspections.\” Page two refers to a meetingwith Mr. Daulton [[3]] in which he stated that the company’s Safety andAccident Prevention Manual was followed and \”[t]his included weeklysafety inspections conducted by himself.\” Also, on page two, Lathrop isadvised \”[i]t may also be beneficial to post signs, as well as note theviolators during your weekly safety inspections.\”The Secretary’s contention is bolstered by the testimony of ComplianceOfficer James M. Denton, who holds a degree in Environmental Safety andManagement from Indiana University and has nine years’ experience inconstruction safety (Tr. 7-8). Mr. Denton’s testimony, based upon hisexperience, reflects an industry practice of conducting safetyinspections on a weekly basis (Tr. 26).The Secretary also calls attention to the numerous citations, issued tothe various subcontractors at the site and urges this tribunal to drawan inference that this circumstance reflects Lexcon’s safety inspectionprogram was inadequate and ineffective.Lexcon was represented at the hearing by its safety engineer, James H.Newman, acting _pro_ _se_. In support of his company’s position, heoffered into evidence Lexcon’s Safety and Accident Prevention Manual(Ex. R-1), various certificates reflecting his membership in safetysocieties and completion of safety training courses (Ex. R-2), andcertain summaries showing names of persons attending safety meetingsduring the period September 19, 1987, through July 3, 1988 (Ex. R-3).[[4]]The safety manual (Ex. R-1) sets forth the company’s concern for safetyand accident prevention and places primary responsibility for thisprogram on the safety engineer. it specifically reflects the safetyengineer (Ex. R-1, page 5):Performs compliance reviews on an unscheduled, yet planned, periodicbasis to evaluate job conditions and personnel compliance. Reviewsresults which concerned and involved Management and Supervisory Staff.Formulates plans to correct noted deficiencies. Refers to Managers allof those safety requirements and recommendations involving changes toCorporate policy.In his testimony, Mr. Newman outlines, in general terms, the procedureshe follows in making his inspections. This testimony reflects he looksonly for obvious infractions (i.e., missing ground plugs or guardrails)and marks them with tags to warn of hazards. If he considers a problemrequires immediate attention, he will discuss it with project managersor the superintendent and request action (Tr. 60-61). He emphasized,however, that he in careful to avoid the implication that hisinspections relieve the subcontractors of their primary responsibilityfor safety, because his company \”takes a position that if all thesubcontractors make me their safety representative, then we’ve taken ona large responsibility that we don’t want and can’t handle\” (Tr. 60).As previously noted, the issue for determination with respect toCitation Number One, Item One, is whether the practice followed byrespondent prior to and at the time of the Secretary’s inspectioncomports with the cited standard. No case law has been found whichresolves this issue. Under this circumstance, deference should be givento the Secretary’s interpretation of the standard. If the interpretationmade by the policymaking agency is reasonable, it should be givencontrolling weight. _United Steelworkers of America v. Schuylkill MetalsCorp._, 828 F.2d 314 at 319 (5th Cir. 1987).In this case, respondent has undertaken by contract to conduct safetyinspections in furtherance of an accident prevention program. TheSecretary’s interpretation that these inspections should be made on aweekly basis is reasonable and appears to accord with industry practice.The purpose of such inspections is to promote safety awareness among thevarious subcontractors and to reflect the concern of the generalcontractor in this regard. While this procedure does not shift theprimary responsibility for the safety of subcontractors’ employees toLexcon, it does impose an obligation to conduct regular and effectiveinspections in furtherance of Lexcon’s accident prevention policy andits overall responsibility as the general contractor\/constructionmanager to promote a safe workplace. In this case, the failure of Lexconto conduct inspections on a weekly basis constitutes a violation of thecited standard._GUARDING FLOOR OPENINGS_The Secretary charges Lexcon with a violation of 29 C.F.R. ?1926.500(b)(1) [[5]] for its alleged failure to guard or cover certainfloor openings on the ground floor in the east end of the mall. One ofthese openings was roughly six feet by six feet and the other fifteenfeet by sixteen feet. Both were approximately five inches deep (Ex.C-5–C-8; Tr. 44). The Secretary maintains these openings created aserious hazard to employees working in the area including employees ofrespondent who allegedly traversed the area in the performance of theirduties. [[6]] Lexcon argues that this standard is directed at protectionagainst employee falls through the openings and does not to the shallowopenings here involved where the \”fall\” would be a maximum of fiveinches (Tr. 68-69).The general provisions of the cited standard provide that the standardapplies to conditions \”where there in _danger of employees or materialsfalling through the floor_, roof or wall openings\” [1926.500(a)].(Emphasis added.) In similar fashion, the definition of \”floor opening\”found at 1926.502(b) provides \”an opening measuring 12 inches or more inits least dimension in any floor, roof, or platform _through whichpersons may fall_.\” (Emphasis added.) It is concluded that the citedstandard was intended to protect against falls which could result inserious consequences to employees At the very most, this conditionexposed employees to no more than a minor tripping hazard with minimalpotential for serious injury (Tr. 47). This item will be vacated.The foregoing constitutes my findings of fact and conclusions of law.ORDER It is ORDERED:1. Serious Citation One, Item One, is affirmed and a civil penalty of$640.00 is assessed.2. Serious Citation One, Item Two, is vacated. Dated this 23rd day ofNovember, 1988.EDWIN G. SALYERSJudgeFOOTNOTES:[[1]] This item was withdrawn by counsel for the Secretary at thehearing and is no longer in contention.[[2]] The Secretary concedes that James H. Newman, respondent’s safetyengineer who conducted inspections, is a competent person ascontemplated by the standard (Tr. 15; see also Ex. R-2).[[3]] This individual is not identified in the record but is,apparently, a Lathrop supervisor.[[4]] The significance of this exhibit was not fully explained in thetestimony of Newman. Apparently, Newman conducted periodic meetings withthe supervisor\/foremen of subcontractors during which safety topics werediscussed (Tr. 57). However, this evidence does not directly relate tothe crucial issue, i.e, safety inspections of the jobsite.[[5]] Section 1926.500(b)(1) of 29 C.F.R. provides:(b) _Guarding of floor openings and floor holes_. (1) Floor openingsshall be guarded by a standard railing and toe boards or cover, asspecified in paragraph (f) of this section. In general, the railingshall be provided on all exposed sides, except at entrances to stairways.[[6]] No proof was offered by the Secretary that Lexcon’s employeesactually were exposed to the alleged hazard.”