“Docket No. 89-2514_89-2588 SECRETARY OF LABOR,Complainant,v.THE CECO CORPORATION,andMcDEVITT & STREET COMPANY,Respondents.OSHRC Docket Nos. 89-2514 and 89-2588 (Consolidated)ORDERThe Ceco Corporation (\”Ceco\”), a concrete formingsubcontractor, and McDevitt & Street Company (\”McDevitt\”) a generalcontractor, were each issued a citation in which one item alleged a serious violation of29 C.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 flooropening covers of standard strength and construction. While the cover is not in place, thepit or trap openings shall be protected on all exposed sides by removable standardrailings.Prior to the hearing, Administrative Law Judge Edwin G. Salyersgranted the motion of the attorney representing both Ceco and McDevitt to consolidate thetwo cases.In his decision, Judge Salyers vacated each 1926.500(b)(5) item on the basis thatemployees could not fall completely through the 20-3\/4-inch deep cavity at issue on thesixth-floor forming deck. The judge relied on the general scope provision at 29 C.F.R. ?1926.500 (a), which reads:General provision. This subpart shall apply to temporaryor emergency conditions where there is danger of employees or materials falling throughfloor, roof, or wall openings or from stairways or runways ….Having reviewed the record and the arguments of the parties, wevacate the decision of Judge Salyers and remand the cases to him for appropriate findingsand entry of a new decision and order consistent with applicable Commission precedent andour instructions below. Accordingly, we direct the judge to resolve the following issues,which were not addressed or disposed of in his decision:(1) whether the cited cavity is a \”pit,\” within themeaning of the cited standard, section 1926.500(b)(5); (2) the effect of the Commission’s decision in NationalIndustrial Constructors, 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 McDevitt that the standard doesnot apply because an employee cannot \”fall through\” the cavity at issue;(3) whether the Secretary proved that Ceco and McDevitt failedto comply with the standard, that they had knowledge of the cited condition, and thattheir employees had access to the cited condition; and (4) if the violations were proven, whether they are serious, asalleged.We therefore remand these cases to Judge Salyers for furtherproceedings, which may include reopening the record or requesting additional briefs fromthe parties.Edwin G. Foulke, Jr.,ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: September 4, 1991SECRETARY 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. Department of Labor, FortLauderdale, Florida, on behalf of complainantMichael F. Swick, Esquire, Drew, Eckl, and Farnham, Atlanta, Georgia, on behalf ofrespondent.DECISION AND ORDERSALYERS, Judge: On July 13, 1989, Occupational Safety andHealth Administration (\”OSHA\”) Compliance Officer Joseph DiMartino inspected aconstruction site located at 200 East Las Olas Boulevard in Fort Lauderdale, Florida. OnJuly 25, 1989, the Secretary of Labor issued one citation each to McDevitt and StreetCompany (\”McDevitt\”), the general contractor of the project under construction,and to The Ceco Corporation (\”Ceco\”), the concrete forming subcontractor. Thecitations were identical (except for the penalties proposed) and alleged the following:129 CFR 1926.500 (b)(5): Pits or trap-door openings were not guarded by covers of standardstrength and Construction or removable standard railings:a) On or about July 18, 1989, employees were exposed to fall hazard of 3 feet into openpit 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 more above adjacentfloor or ground level, were not guarded by a standard railing or the equivalent on allopen sides:a) On or about July 18, 1989, employees were exposed to fallhazard of 30 feet at the East and S. East area of forming deck where the top rail heightwas reduced to about 20 inches above the raised decking perimeters. (Reference 1926.500(f))McDevitt’s case, Docket No. 89-2588, and Ceco’s case, DocketNo. 89-2514, were consolidated for hearing. The respondent companies were represented bythe same attorney and rely on the same evidence.FACTS DiMartino testified that he arrived at the construction sitebetween 9:00 and 9:30 on the morning of July 18, 1989. He was assigned to conduct aroutine inspection of the site. When he arrived, a project and safety meeting was inprogress.Ten to fourteen Subcontractors were in the meeting room. DiMartino took the opportunity tohold an opening conference (Tr.11-13).After the opening conference, DiMartino commenced to inspect the project site. He wasaccompanied by Mr. Jaynes, the project manager for McDevitt, Mr. Simergran, thesuperintendent, and Charles McEachern, the safety manager for Ceco (Tr. 14). Theyproceeded to the forming deck at the top of the building, which at that time was the sixthfloor (Tr. 15).DiMartino observed a floor opening, which he described as a\”pit,\” at the northwest area of the floor. He estimated that the opening was 20to 24 inches deep. [[1]] The opening contained gang boxes for tools and materials. It wasapproximately 10 feet wide and 12 feet long. There was no covering over the opening norwas their guarding around the perimeter of the opening (Ex. C-2; Tr. 20, 27). Debris wasscattered around the opening, including empty soda cartons, pieces of lumber, and loosewire and metal material (Tr. 30, 31).DiMartino proceeded to the building perimeter, where heobserved several employees working along the northeast and southeast ends (Tr. 36).Guardrails were constructed around the perimeter of the building. The guardrail system wasirregular and parallel to the raised deck. The entire perimeter was guarded with standardguardrails (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 flooropening covers of standard strength and construction. While the cover is not in place, thepit or trap openings shall be protected on all exposed sides by removable standardrailings.To prove a violation of this standard, the Secretary mustestablish by a preponderance of the evidence that \”(1) the cited standard applies,(2) there was a failure to comply with the cited standard, (3) employees had access to theviolative condition; and (4) the cited employer either knew or could have known of thecondition with the exercise of reasonable diligence.\” Astra PharmaceuticalProducts, Inc., 81 OSAHRC 79\/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 thefirst element of the above-quoted test: that the standard applies. Section 1926.500 (a) of29 C.F.R. provides:This subpart shall apply to temporary or emergency conditionswhere there is danger of employees or materials falling through floor, roof, orwall openings, or from stairways or runways. (Emphasis added.)The floor opening in question was 20-3\/4 inches deep and its bottom was decked solid withplywood (Tr. 90). DiMartino testified that there was no way an employee could fall throughthe opening (Tr. 23).McDevitt and Ceco also argue that the standard does not apply,because the floor opening in question was not a \”pit\” or a trap-door flooropening within the meaning of ? 1926.500(b)(5). It was undisputed that the opening wasfor a stairwell (Tr. 86). It was not a trap-door floor opening. DiMartino characterizedthe opening as a \”Pit,\” and his subjective interpretation that \”pit\”was an opening with a depth of at least 12 inches. He acknowledged that this distance wasnot found in the standards but was only his own opinion (Tr. 56-57).The Secretary cites Daniel Construction Co. of Alabama,81 OSAHRC 71\/A2, 9 BNA OSHC 2002, 1981 CCH OSHD ? 25,553 (No. 13874, 1981), in support ofits argument that the stairwell opening was a pit. In that decision, the Review Commissionnoted that both ? 1926.500(b)(5) and ? 1926.600(t) used the word \”Pit,\” andthat \”both standards are intended to protect against the same hazard, i.e., fallinginto open cavities. The important distinguishing feature between the standards is thatsection 1926.500(b)(5) is limited in applicability to interior cavities.\” Id.,1981 CCH OSHD at p. 31,864. Daniel involved an interior cavity approximately 12feet long, 12 feet wide, and 12 feet deep. The Secretary argues that because ?1926.500(b)(5) would have applied if that opening had been in the interior of a building,rather than outside, the standard applies to the 20-3\/4-inch opening in the present case.It is a welI-established principle of statutory Constructionthat where the language of a statute is clear and unambiguous, that language should begiven its plain and ordinary meaning. Section 1926.500(a) provides that subpart M shallapply where there is a danger of employees falling through floor openings.\”Through\” means \”[i]n one side and out the opposite or another sideof.\” American Heritage Dictionary, 1266 (2nd Ed. 1981). \”Through flooropenings\” means starting at, one side of a floor (the top side) and ending tip on theother side of the floor, i.e., below the floor. There is no way that a person ofaverage 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 openingcreated a tripping and falling hazard. Perhaps it did, but the standard at issue containsno language regarding debris and is not violated simply because debris was present. JoseSanchez, the Area Director for the Fort Lauderdale OSHA office, visited the work site andobserved the opening approximately a month after DiMartino’s inspection. At that time, thedebris and boxes had been removed and\u00a0 the opening was clean. When asked if he wouldhave considered the opening to be a violation had he been conducting an inspection,Sanchez replied, \”Probably not\” (Tr. 75).The Secretary has failed to prove that ? 1926.500(b)(5)applies to the floor opening in question. The opening could not be fallen through, andtherefore required no covering or guarding. McDevitt and Ceco were not in 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 aboveadjacent floor or ground level shall be guarded by a standard railing, or the equivalent,as specified in paragraph (f)(1)(i) of this section, on all open sides, except where thereis entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with astandard toeboard wherever, beneath the open sides, persons can pass, or there is movingmachinery, 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 pertinentpart:A standard railing shall consist of top rail, intermediaterail, toeboard, and posts, and shall have a vertical height of approximately 42 inchesfrom upper surface of top rail to floor, platform, runway, or ramp level.It is undisputed that the rail around the floor’s perimeter wasa standard manufactured 42-inch rail (Tr. 65). At the time of the inspection, the formingdeck was partly completed and was supported by aluminum trusses that rested on thecompleted floor. The forming deck was 20-3\/4 inches higher than the floor (Ex. C-3; Tr.166). Thus, the guardrail was 21-1\/4 inches higher than the raised forming deck. DiMartinoobserved several employees working on the raised deck (Tr. 36). These employees were neveridentified as McDevitt’s or Ceco’s employees (Tr. 139-140).The distance between the raised deck and the guarded perimetervaried. At some points, there was as much as five feet between the deck and the railing.In other areas, the space narrowed down to about the width of a man’s foot (Tr. 39). Thisirregularity was due to the interior features of the building which offset the trusses(Tr. 155).DiMartino testified that the railing was adequate where therewas a greater amount of space between the deck and the railing, as shown in the lower partof Exhibit C-3. Where the space between the deck and the railing narrowed; however,DiMartino believed the railing was inadequate to comply with the standard.Charles McEachern is the manager of safety and labor relationsfor the southern United States for Ceco. He accompanied DiMartino on his inspection (Tr.125-126). He stated that the lateral distance between the raised deck and the guardrailswas two feet except for places where it jogged narrower due to interior construction (Tr.141-142, 154). It was 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 employees were six feet ormore from the railing (Tr. 127).Sanchez testified regarding his observations of the work site amonth after DiMartino’s inspection. He stated that the railing system was \”totallyunacceptable and a hazardous condition\” (Tr. 72). His testimony regarding thisalleged violation must be discounted. He stated that what he observed on August 16, 1989,was not similar to what is depicted in Exhibit C-3 (Tr. 72) Sanchez stated that he was notmaking an inspection, he did not take measurements, and he was not sure if he was on thesame floor as was cited pursuant to DiMartino’s inspection (Tr. 72, 80). Sanchez’stestimony is irrelevant on this issue.Thomas Graham is the Director of Safety for Ceco (Tr. 160). Hetestified that Exhibit R-2, the shoring layout plans for the project, specified a minimumdistance of two feet from the raised deck to the perimeter edge (Ex. R-2; Tr. 168). Grahamtestified that, if a person’s center of gravity is within a 45 angle of the top of therailing, the railing will provide fall protection. As a person gets further away from therailing, the 45 angle increases in height. As long as the person’s center of gravity stayswithin the 45 cone, he is protected (Ex. R-5; Tr. 165). Graham stated that subtracting thedeck height of 20-3\/4 inches from the railing height of 42 inches is meaningless unlessthe lateral distance between the two is taken into account (Tr. 178).Graham’s argument is persuasive and was not rebutted by the Secretary. Based on therecord, it must be concluded that the Secretary failed to prove the essential element ofemployee exposure. DiMartino took no measurements of the site. He failed to identify theemployees present as belonging to either McDevitt or Ceco. The one employee in Exhibit C-3(on which the Secretary relies for her case), who is next to the railing, is tied off. Theother employees are six feet or more away from the railing.The Secretary has failed to establish that either McDevitt orCeco were in violation of 29 C.F.R. ? 1926.500(d)(1).FINDINGS OF FACT1. McDevitt was the general contractor of a constructionproject located at 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 storieshigh. A forming deck was being completed on the top floor.3. The northwest area of the floor contained a floor openingwhich was to be a stairwell opening. The opening was 10 feet wide, 12 feet long, and20-3\/4 inches deep. There was no covering over the opening and no guarding around it.4. The perimeter of the building was guarded with standard 42-inch railing. The railingsystem was irregular and parallel to a raised deck. The raised deck was 20-3\/4 incheshigh.CONCLUSlONS OF LAW 1 McDevitt and Ceco, at all times material to this proceeding,were engaged in a business affecting commerce within the meaning of section 3(5) of theoccupational Safety and Health Act of 1970 (\”Act\”).2. McDevitt and Ceco, at all times material to this proceeding,were subject to the requirements of the Act and the standards promulgated thereunder. TheCommission has jurisdiction of the parties and the subject 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 is hereby ORDERED:1. Item 1 of the citation in Docket No. 89-2514 is vacated andno penalty is assessed.2. Item 2 of the citation in Docket No. 89-2514 is vacated andno penalty is assessed.3. Item 1of the citation in Docket No. 89-2588 is vacated and no penalty is assessed.4. Item 2 of the citation in Docket No. 89-2588 is vacated andno penalty is assessed.Dated this 23rd day of July, 1990.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 EDWIN G. SALYERSJudgeFOOTNOTES: [[1]] Item one of the citations alleges the hazard of a fall of three feet into theopening. At the hearing, the Secretary stipulated that the opening was 20-3\/4 inches deep(Tr. 88).”