“SECRETARY OF LABOR,Complainant,v.THE CECO CORPORATION,andMcDEVITT & STREET COMPANY,Respondents.OSHRC Docket Nos. 89-2514 and 89-2588 (Consolidated)_ORDER_The Ceco Corporation (\”Ceco\”), a concrete forming subcontractor, andMcDevitt & Street Company (\”McDevitt\”) a general contractor, were eachissued a citation in which one item alleged a serious violation of 29C.F.R. ? 1926.500(b)(5), which provides:_Subpart M–Floor and Wall Openings, and stairways_? 1926.500 Guardrails, handrails, and covers.(b) _Guarding of floor openings and floor holes._(5) Pits and trap-door floor openings shall be guarded by floor openingcovers of standard strength and construction. While the cover is not inplace, the pit or trap openings shall be protected on all exposed sidesby removable standard railings.Prior to the hearing, Administrative Law Judge Edwin G. Salyers grantedthe motion of the attorney representing both Ceco and McDevitt toconsolidate the two cases.In his decision, Judge Salyers vacated each 1926.500(b)(5) item on thebasis that employees could not fall completely through the 20-3\/4-inchdeep cavity at issue on the sixth-floor forming deck. The judge reliedon the general scope provision at 29 C.F.R. ? 1926.500 (a), which reads:_General provision._ This subpart shall apply to temporary or emergencyconditions where there is danger of employees or materials fallingthrough floor, roof, or wall openings or from stairways or runways ….Having reviewed the record and the arguments of the parties, we vacatethe decision of Judge Salyers and remand the cases to him forappropriate findings and entry of a new decision and order consistentwith applicable Commission precedent and our instructions below.Accordingly, we direct the judge to resolve the following issues, whichwere not addressed or disposed of in his decision:(1) whether the cited cavity is a \”pit,\” within the meaning of the citedstandard, section 1926.500(b)(5);(2) the effect of the Commission’s decision in _National IndustrialConstructors, Inc.,_ 10 BNA OSHC 1081, 1095-96, 1981 CCH OSHD ? 25,743,pp. 32,136-37 (No. 76-4507, 1981), on the argument of Ceco and McDevittthat the standard does not apply because an employee cannot \”fallthrough\” the cavity at issue;(3) whether the Secretary proved that Ceco and McDevitt failed to complywith the standard, that they had knowledge of the cited condition, andthat their employees had access to the cited condition; and(4) if the violations were proven, whether they are serious, as alleged.We therefore remand these cases to Judge Salyers for furtherproceedings, which may include reopening the record or requestingadditional briefs from the parties.Edwin G. Foulke, Jr.,ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: September 4, 1991————————————————————————SECRETARY OF LABOR,Complainant,v.THE CECO CORPORATION,andMcDEVITT & STREET COMPANY,Respondents.OSHRC Docket Nos. 89-251489-2588(Consolidated)APPEARANCES:Donald R. McCoy, Esquire, Associate Regional Solicitor, U. S. Departmentof Labor, Fort Lauderdale, Florida, on behalf of complainantMichael F. Swick, Esquire, Drew, Eckl, and Farnham, Atlanta, Georgia, onbehalf of respondent._DECISION AND ORDER_SALYERS, Judge: On July 13, 1989, Occupational Safety and HealthAdministration (\”OSHA\”) Compliance Officer Joseph DiMartino inspected aconstruction site located at 200 East Las Olas Boulevard in FortLauderdale, Florida. On July 25, 1989, the Secretary of Labor issued onecitation each to McDevitt and Street Company (\”McDevitt\”), the generalcontractor of the project under construction, and to The CecoCorporation (\”Ceco\”), the concrete forming subcontractor. The citationswere identical (except for the penalties proposed) and alleged thefollowing:129 CFR 1926.500 (b)(5): Pits or trap-door openings were not guarded bycovers of standard strength and Construction or removable standard railings:a) On or about July 18, 1989, employees were exposed to fall hazard of 3feet into open pit area of 10 feet X 12 feet on the forming deck.229 CFR 1926.500 (d) (1): Open-sided floors or platforms, 6 feet or moreabove adjacent floor or ground level, were not guarded by a standardrailing or the equivalent on all open sides:a) On or about July 18, 1989, employees were exposed to fall hazard of30 feet at the East and S. East area of forming deck where the top railheight was reduced to about 20 inches above the raised deckingperimeters. (Reference 1926.500 (f))McDevitt’s case, Docket No. 89-2588, and Ceco’s case, Docket No.89-2514, were consolidated for hearing. The respondent companies wererepresented by the same attorney and rely on the same evidence._FACTS _DiMartino testified that he arrived at the construction site between9:00 and 9:30 on the morning of July 18, 1989. He was assigned toconduct a routine inspection of the site. When he arrived, a project andsafety meeting was in progress.Ten to fourteen Subcontractors were in the meeting room. DiMartino tookthe opportunity to hold an opening conference (Tr.11-13).After the opening conference, DiMartino commenced to inspect the projectsite. He was accompanied by Mr. Jaynes, the project manager forMcDevitt, Mr. Simergran, the superintendent, and Charles McEachern, thesafety manager for Ceco (Tr. 14). They proceeded to the forming deck atthe top of the building, which at that time was the sixth floor (Tr. 15).DiMartino observed a floor opening, which he described as a \”pit,\” atthe northwest area of the floor. He estimated that the opening was 20 to24 inches deep. [[1]] The opening contained gang boxes for tools andmaterials. It was approximately 10 feet wide and 12 feet long. There wasno covering over the opening nor was their guarding around the perimeterof the opening (Ex. C-2; Tr. 20, 27). Debris was scattered around theopening, including empty soda cartons, pieces of lumber, and loose wireand metal material (Tr. 30, 31).DiMartino proceeded to the building perimeter, where he observed severalemployees working along the northeast and southeast ends (Tr. 36).Guardrails were constructed around the perimeter of the building. Theguardrail system was irregular and parallel to the raised deck. Theentire perimeter was guarded with standard guardrails (Ex. C-3; Tr. 38-39)._29 C.F.R. ? 1926.500(b)(5) _Section 1926.500(b)(5) of 29 C.F.R. provides:Pits and trap-door floor openings shall be guarded by floor openingcovers of standard strength and construction. While the cover is not inplace, the pit or trap openings shall be protected on all exposed sidesby removable standard railings.To prove a violation of this standard, the Secretary must establish by apreponderance of the evidence that \”(1) the cited standard applies, (2)there was a failure to comply with the cited standard, (3) employees hadaccess to the violative condition; and (4) the cited employer eitherknew or could have known of the condition with the exercise ofreasonable diligence.\”_Astra Pharmaceutical Products, Inc.,_ 81 OSAHRC79\/D9, 9 BNA OSHC 2126, 2129, 1981 CCH OSHD ? 25,578 (No. 78-6247, 1981).McDevitt and Ceco argue that the Secretary failed to prove the firstelement of the above-quoted test: that the standard applies. Section1926.500 (a) of 29 C.F.R. provides:This subpart shall apply to temporary or emergency conditions wherethere is danger of employees or materials _falling through_ floor, roof,or wall openings, or from stairways or runways. (Emphasis added.)The floor opening in question was 20-3\/4 inches deep and its bottom wasdecked solid with plywood (Tr. 90). DiMartino testified that there wasno way an employee could fall through the opening (Tr. 23).McDevitt and Ceco also argue that the standard does not apply, becausethe floor opening in question was not a \”pit\” or a trap-door flooropening within the meaning of ? 1926.500(b)(5). It was undisputed thatthe opening was for a stairwell (Tr. 86). It was not a trap-door flooropening. DiMartino characterized the opening as a \”Pit,\” and hissubjective interpretation that \”pit\” was an opening with a depth of atleast 12 inches. He acknowledged that this distance was not found in thestandards but was only his own opinion (Tr. 56-57).The Secretary cites _Daniel Construction Co. of Alabama,_ 81 OSAHRC71\/A2, 9 BNA OSHC 2002, 1981 CCH OSHD ? 25,553 (No. 13874, 1981), insupport of its argument that the stairwell opening was a pit. In thatdecision, the Review Commission noted that both ? 1926.500(b)(5) and ?1926.600(t) used the word \”Pit,\” and that \”both standards are intendedto protect against the same hazard, i.e., falling into open cavities.The important distinguishing feature between the standards is thatsection 1926.500(b)(5) is limited in applicability to interiorcavities.\” _Id.,_ 1981 CCH OSHD at p. 31,864. _Daniel_ involved aninterior cavity approximately 12 feet long, 12 feet wide, and 12 feetdeep. The Secretary argues that because ? 1926.500(b)(5) would haveapplied if that opening had been in the interior of a building, ratherthan outside, the standard applies to the 20-3\/4-inch opening in thepresent case.It is a welI-established principle of statutory Construction that wherethe language of a statute is clear and unambiguous, that language shouldbe given its plain and ordinary meaning. Section 1926.500(a) providesthat subpart M shall apply where there is a danger of employees fallingthrough floor openings. \”Through\” means \”[i]n one side and out theopposite or another side of.\” _American Heritage Dictionary, _1266 (2ndEd. 1981). \”Through floor openings\” means starting at, one side of afloor (the top side) and ending tip on the other side of the floor,_i.e._, below the floor. There is no way that a person of average height(or even of below-average height) could fall through an opening that isless than two feet deep.The Secretary argues that the debris in and around the opening created atripping and falling hazard. Perhaps it did, but the standard at issuecontains no language regarding debris and is not violated simply becausedebris was present. Jose Sanchez, the Area Director for the FortLauderdale OSHA office, visited the work site and observed the openingapproximately a month after DiMartino’s inspection. At that time, thedebris and boxes had been removed and the opening was clean. When askedif he would have considered the opening to be a violation had he beenconducting an inspection, Sanchez replied, \”Probably not\” (Tr. 75).The Secretary has failed to prove that ? 1926.500(b)(5) applies to thefloor opening in question. The opening could not be fallen through, andtherefore required no covering or guarding. McDevitt and Ceco were notin violation of ? 1926.500(b)(5)._29 C.F.R. ? 1926.500(d)(1)_Section 1926.500(d)(1) of 29 C.F.R. provides:Every open-sided floor or platform 6 feet or more above adjacent flooror ground level shall be guarded by a standard railing, or theequivalent, as specified in paragraph (f)(1)(i) of this section, on allopen sides, except where there is entrance to a ramp, stairway, or fixedladder. The railing 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 falling materials could create a hazard.Section 1926.500(f)(1)(i) of 29 C.F.R. provides in pertinent part:A standard railing shall consist of top rail, intermediate rail,toeboard, and posts, and shall have a vertical height of approximately42 inches from upper surface of top rail to floor, platform, runway, orramp level.It is undisputed that the rail around the floor’s perimeter was astandard manufactured 42-inch rail (Tr. 65). At the time of theinspection, the forming deck was partly completed and was supported byaluminum trusses that rested on the completed floor. The forming deckwas 20-3\/4 inches higher than the floor (Ex. C-3; Tr. 166). Thus, theguardrail was 21-1\/4 inches higher than the raised forming deck.DiMartino observed several employees working on the raised deck (Tr.36). These employees were never identified as McDevitt’s or Ceco’semployees (Tr. 139-140).The distance between the raised deck and the guarded perimeter varied.At some points, there was as much as five feet between the deck and therailing. In other areas, the space narrowed down to about the width of aman’s foot (Tr. 39). This irregularity was due to the interior featuresof the building which offset the trusses (Tr. 155).DiMartino testified that the railing was adequate where there was agreater amount of space between the deck and the railing, as shown inthe lower part of Exhibit C-3. Where the space between the deck and therailing narrowed; however, DiMartino believed the railing was inadequateto comply with the standard.Charles McEachern is the manager of safety and labor relations for thesouthern United States for Ceco. He accompanied DiMartino on hisinspection (Tr. 125-126). He stated that the lateral distance betweenthe raised deck and the guardrails was two feet except for places whereit jogged narrower due to interior construction (Tr. 141-142, 154). Itwas his observation at the time of the inspection that the man closestto the railing in Exhibit C-3 was tied off, and that the other employeeswere six feet or more from the railing (Tr. 127).Sanchez testified regarding his observations of the work site a monthafter DiMartino’s inspection. He stated that the railing system was\”totally unacceptable and a hazardous condition\” (Tr. 72). His testimonyregarding this alleged violation must be discounted. He stated that whathe observed on August 16, 1989, was not similar to what is depicted inExhibit C-3 (Tr. 72) Sanchez stated that he was not making aninspection, he did not take measurements, and he was not sure if he wason the same floor as was cited pursuant to DiMartino’s inspection (Tr.72, 80). Sanchez’s testimony is irrelevant on this issue.Thomas Graham is the Director of Safety for Ceco (Tr. 160). He testifiedthat Exhibit R-2, the shoring layout plans for the project, specified aminimum distance of two feet from the raised deck to the perimeter edge(Ex. R-2; Tr. 168). Graham testified that, if a person’s center ofgravity is within a 45 angle of the top of the railing, the railing willprovide fall protection. As a person gets further away from the railing,the 45 angle increases in height. As long as the person’s center ofgravity stays within the 45 cone, he is protected (Ex. R-5; Tr. 165).Graham stated that subtracting the deck height of 20-3\/4 inches from therailing height of 42 inches is meaningless unless the lateral distancebetween the two is taken into account (Tr. 178).Graham’s argument is persuasive and was not rebutted by the Secretary.Based on the record, it must be concluded that the Secretary failed toprove the essential element of employee exposure. DiMartino took nomeasurements of the site. He failed to identify the employees present asbelonging to either McDevitt or Ceco. The one employee in Exhibit C-3(on which the Secretary relies for her case), who is next to therailing, is tied off. The other employees are six feet or more away fromthe railing.The Secretary has failed to establish that either McDevitt or Ceco werein violation of 29 C.F.R. ? 1926.500(d)(1)._FINDINGS OF FACT_1. McDevitt was the general contractor of a construction project locatedat 200 East Las Olas Boulevard in Fort Lauderdale, Florida. Cecc was theconcrete forming subcontractor.2. At the time of the inspection, the building was six stories high. Aforming deck was being completed on the top floor.3. The northwest area of the floor contained a floor opening which wasto be a stairwell opening. The opening was 10 feet wide, 12 feet long,and 20-3\/4 inches deep. There was no covering over the opening and noguarding around it.4. The perimeter of the building was guarded with standard 42-inchrailing. The railing system was irregular and parallel to a raised deck.The raised deck was 20-3\/4 inches high._CONCLUSlONS OF LAW _1 McDevitt and Ceco, at all times material to this proceeding, wereengaged in a business affecting commerce within the meaning of section3(5) of the occupational Safety and Health Act of 1970 (\”Act\”).2. McDevitt and Ceco, at all times material to this proceeding, weresubject to the requirements of the Act and the standards promulgatedthereunder. The Commission has jurisdiction of the parties and thesubject matter.3. McDevitt. and Ceco were not in violation of 29 C.F.R. ? 1926.500(b)(5).4. McDevitt and Ceco were not in violation of 29 C.F.R. ? 1926.500(d)(1)._ORDER _Based upon the foregoing findings of fact and conclusions of law, it ishereby ORDERED:1. Item 1 of the citation in Docket No. 89-2514 is vacated and nopenalty is assessed.2. Item 2 of the citation in Docket No. 89-2514 is vacated and nopenalty is assessed.3. Item 1of the citation in Docket No. 89-2588 is vacated and no penaltyis assessed.4. Item 2 of the citation in Docket No. 89-2588 is vacated and nopenalty is assessed.Dated this 23rd day of July, 1990. EDWIN G. SALYERSJudgeFOOTNOTES:[[1]] Item one of the citations alleges the hazard of a fall of threefeet into the opening. At the hearing, the Secretary stipulated that theopening was 20-3\/4 inches deep (Tr. 88).”