“Docket No. 88-0854 SECRETARY OF LABOR, Complainant, v. LEXCON BUILDING SYSTEMS, Respondent.OSHRC Docket No. 88-0854ORDERThis case was directed for review before theOccupational Safety and Health Review Commission by Former Commissioner Linda L. Arey onDecember 30, 1988 from a decision by Administrative Law Judge Edwin G. Salyers datedNovember 23, 1988. The Secretary of Labor has filed a Withdrawal of Item 1 of Citation 1pursuant to Commission Rule 102, 29 C.F.R. ? 2200.102.Having reviewed the official record in this case, theCommission construes the Secretary’s withdrawal as a motion to Withdraw Item 1 of Citation1 and grants the motion. In addition, the Commission sets aside the Judge’s decision tothe citation. Judge Salyers’ Decision and Order now becomes a final order to the extentthat it rules on Item 2 of Citation 1.Edwin G. Foulke, Jr. ChairmanVelma Montoya CommissionerDonald G. WisemanCommissionerDated: May 24, 1990SECRETARY OF LABOR, Complainant, v. LEXCON BUILDING SYSTEMS ,Respondent.OSHRC Docket No. 88-0854APPEARANCES: Sandra R. Kramer, Esquire, Office of the Solicitor,U. S. Department of Labor, Cleveland, Ohio on behalf of complainant. James H. Newman, Safety Engineer, Lexcon BuildingSystems, Forest Fair Mall Project, Fairfield, Ohio, on behalf of respondent.DECISION AND ORDERSALYERS, Judge: Respondent, Lexcon Building Systems,is a wholly-owned subsidiary of Lathrop Company, Inc. At the time in question, Lexcon wasengaged by the project developer as the construction manager or general contractor at theForest Fair Mall Project in Fairfield, Ohio (Tr. 59). In this capacity, Lexcon employedapproximately eight employees to oversee the operations of numerous subcontractors at thesite (Tr. 10). Lexcon’s primary responsibility was to coordinate the construction and toassure that construction schedules were met and that work performed by subcontractors metspecifications (Tr. 27). The role of Lexcon was supervision and its employees did notengage in actual construction (Tr. 28). Included among the responsibilities of Lexcon,however, was the obligation to conduct safety inspections at the project to insurecompliance with applicable safety standards (Ex. R-1).The Forest Fair project was inspected by complianceofficers of the Occupational Safety and Health Administration during the period December22, 1987, through February 1, 1988. This inspection resulted in the issuance of 143citations to various subcontractors at the site (Ex. C-3) alleging violations of theOccupational Safety and Health Act of 1970 (29 U.S.C. 651, et. seq.). The Secretaryalso charged Lexcon with the following items;129 CFR 1926.20(b)(2): Programs providing for frequent and regular inspections or the jobsites, materials and equipment were not being made by competent persons designated by theemployer:(a) On the mall part of the project, inspections werebeing done on a monthly basis with the past two conducted resulting in only six and tenviolations noted.229 CFR 1926.153(h)(5): Valves on containers having water capacity greater than 50pounds (nominal 20 pounds LP-Gas capacity) were not protected from damage while in use orstorage:(a) On the east side of the Lexcon office trailer,there was a 100 gallon capacity LP gas cylinder in use that was not protected fromphysical damage of vehicular traffic.[[1]]3 29 CFR 1926.500(b)(1): Floor openings were not guarded by standard railings and toeboardsor covers as specified in paragraph (f) of this section:(a) At the east end of the mall in area E, nearcolumn lines N5 and 3-18.5, 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 PROGRAMSection 1926.20 of 29 C.F.R. requires an employer toinitiate and maintain 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 regularinspections of the job sites, materials, and equipment to be made by competent personsdesignated by the employers.The Secretary contends in this case that Lexconfailed to meet its responsibilities under this standard since it did not conduct\”frequent and regular inspections.\” [[2]] While the standard is nonspecific, theSecretary maintains that inspections should be performed on a weekly basis and that theresults of each inspection should be written up and communicated to the responsibleparties (Tr. 14-15).The evidence is undisputed that Lexcon’s safetyengineer, Jim Newman, did not make formal inspections on a weekly basis. During the timein question, Mr. Newman made four inspections in a five-month period (Ex. C-1; Tr. 18).These reports note a variety of unsafe acts and conditions relative to several of thesubcontractors at the site. These reports also make specific reference to constructionstandards allegedly violated and observed during the course of the inspection.In support of her contention that weekly inspectionsare required by the standard, the Secretary offered a report made by one of Lathrop’sinsurance carriers (Ex. C-4). The report makes three references to weekly inspections. Onpage one under Job Planning, it is noted that \”controls for these hazards includehazard recognition by your Safety Manager during his weekly inspections.\” Page tworefers to a meeting with Mr. Daulton [[3]] in which he stated that the company’s Safetyand Accident Prevention Manual was followed and \”[t]his included weekly safetyinspections conducted by himself.\” Also, on page two, Lathrop is advised \”[i]tmay also be beneficial to post signs, as well as note the violators during your weeklysafety inspections.\”The Secretary’s contention is bolstered by thetestimony of Compliance Officer James M. Denton, who holds a degree in EnvironmentalSafety and Management from Indiana University and has nine years’ experience inconstruction safety (Tr. 7-8). Mr. Denton’s testimony, based upon his experience, reflectsan industry practice of conducting safety inspections on a weekly basis (Tr. 26).The Secretary also calls attention to the numerouscitations, issued to the various subcontractors at the site and urges this tribunal todraw an inference that this circumstance reflects Lexcon’s safety inspection program wasinadequate and ineffective.Lexcon was represented at the hearing by its safetyengineer, James H. Newman, acting pro se. In support of his company’sposition, he offered into evidence Lexcon’s Safety and Accident Prevention Manual (Ex.R-1), various certificates reflecting his membership in safety societies and completion ofsafety training courses (Ex. R-2), and certain summaries showing names of personsattending safety meetings during the period September 19, 1987, through July 3, 1988 (Ex.R-3).[[4]]The safety manual (Ex. R-1) sets forth the company’sconcern for safety and accident prevention and places primary responsibility for thisprogram on the safety engineer. it specifically reflects the safety engineer (Ex. R-1,page 5):Performs compliance reviews on an unscheduled, yet planned, periodic basis to evaluate jobconditions and personnel compliance. Reviews results which concerned and involvedManagement and Supervisory Staff. Formulates plans to correct noted deficiencies. Refersto Managers all of those safety requirements and recommendations involving changes toCorporate policy.In his testimony, Mr. Newman outlines, in generalterms, the procedures he follows in making his inspections. This testimony reflects helooks only for obvious infractions (i.e., missing ground plugs or guardrails) and marksthem with tags to warn of hazards. If he considers a problem requires immediate attention,he will discuss it with project managers or 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 responsibility for safety, becausehis company \”takes a position that if all the subcontractors make me their safetyrepresentative, then we’ve taken on a large responsibility that we don’t want and can’thandle\” (Tr. 60).As previously noted, the issue for determination withrespect to Citation Number One, Item One, is whether the practice followed by respondentprior to and at the time of the Secretary’s inspection comports with the cited standard.No case law has been found which resolves this issue. Under this circumstance, deferenceshould be given to the Secretary’s interpretation of the standard. If the interpretationmade by the policymaking agency is reasonable, it should be given controlling weight. UnitedSteelworkers of America v. Schuylkill Metals Corp., 828 F.2d 314 at 319 (5th Cir.1987).In this case, respondent has undertaken by contractto conduct safety inspections in furtherance of an accident prevention program. TheSecretary’s interpretation that these inspections should be made on a weekly basis isreasonable and appears to accord with industry practice. The purpose of such inspectionsis to promote safety awareness among the various subcontractors and to reflect the concernof the general contractor in this regard. While this procedure does not shift the primaryresponsibility for the safety of subcontractors’ employees to Lexcon, it does impose anobligation to conduct regular and effective inspections in furtherance of Lexcon’saccident prevention policy and its overall responsibility as the generalcontractor\/construction manager to promote a safe workplace. In this case, the failure ofLexcon to conduct inspections on a weekly basis constitutes a violation of the citedstandard.GUARDING FLOOR OPENINGSThe Secretary charges Lexcon with a violation of 29C.F.R. ? 1926.500(b)(1) [[5]] for its alleged failure to guard or cover certain flooropenings on the ground floor in the east end of the mall. One of these openings wasroughly six feet by six feet and the other fifteen feet by sixteen feet. Both wereapproximately five inches deep (Ex. C-5–C-8; Tr. 44). The Secretary maintains theseopenings created a serious hazard to employees working in the area including employees ofrespondent who allegedly traversed the area in the performance of their duties. [[6]]Lexcon argues that this standard is directed at protection against employee falls throughthe openings and does not to the shallow openings here involved where the \”fall\”would be a maximum of five inches (Tr. 68-69).The general provisions of the cited standard providethat the standard applies to conditions \”where there in danger of employees ormaterials falling through the floor, roof or wall openings\” [1926.500(a)].(Emphasis added.) In similar fashion, the definition of \”floor opening\” found at1926.502(b) provides \”an opening measuring 12 inches or more in its least dimensionin any floor, roof, or platform through which persons may fall.\” (Emphasisadded.) It is concluded that the cited standard was intended to protect against fallswhich could result in serious consequences to employees At the very most, this conditionexposed employees to no more than a minor tripping hazard with minimal potential forserious injury (Tr. 47). This item will be vacated.The foregoing constitutes my findings of fact andconclusions of law.ORDER It is ORDERED:1. Serious Citation One, Item One, is affirmed and acivil penalty of $640.00 is assessed.2. Serious Citation One, Item Two, is vacated. Datedthis 23rd day of November, 1988.EDWIN G. SALYERS JudgeFOOTNOTES: [[1]] This item was withdrawn by counsel for theSecretary at the hearing and is no longer in contention.[[2]] The Secretary concedes that James H. Newman, respondent’s safety engineer whoconducted inspections, is a competent person as contemplated by the standard (Tr. 15; seealso Ex. R-2).[[3]] This individual is not identified in the recordbut is, apparently, a Lathrop supervisor.[[4]] The significance of this exhibit was not fullyexplained in the testimony of Newman. Apparently, Newman conducted periodic meetings withthe supervisor\/foremen of subcontractors during which safety topics were discussed (Tr.57). However, this evidence does not directly relate to the crucial issue, i.e, safetyinspections 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 openings shall be guardedby a standard railing and toe boards or cover, as specified in paragraph (f) of thissection. In general, the railing shall be provided on all exposed sides, except atentrances to stairways.[[6]] No proof was offered by the Secretary thatLexcon’s employees actually were exposed to the alleged hazard.”