“SECRETARY OF LABOR,Complainant,v.WHITING-TURNER CONTRACTING COMPANY,Respondent.OSHRC Docket No. 87-1238_DECISION_Before: BUCKLEY, Chairman, and AREY, Commissioner.BY THE COMMISSION:The Secretary of Labor cited Whiting-Turner Contracting Company forviolating various occupational safety and health standards, including 29C.F.R. ? 1926.500(d)(1). [[1\/]] The administrative law judge who heardthe case found a violation, but he held that it was de minimis. Reviewwas directed on whether the judge properly characterized the violationas de minimis. We find that the judge erred and hold that the violationwas serious, as alleged in the citation.Whiting-Turner was construction manager of a construction project at theWashington Hospital Center in Washington, D.C., when an OSHA complianceofficer inspected the worksite. Two four-story towers were being built,and the compliance officer observed that the perimeters of the floorswere not properly guarded in the manner required by the standard. [[2\/]]He observed two areas where there was no protection at all, and theremainder was guarded only by a single strand of wire rope, which saggedin several places.Whiting-Turner’s project manager testified that the company had onlythree employees on the site, all of whom were graduate engineers. Thecompliance officer testified that he saw one of these Whiting-Turneremployees near improperly-guarded perimeters on the second and thirdfloors of the east tower. A foreman for the mechanical contractor on thesite testified that, at different times, he had seen each of the threeWhiting-Turner employees near improperly-guarded floor perimeters onboth towers. In addition, Whiting-Turner’s superintendent told thecompliance officer that all three Whiting-Turner employees at the sitehad to be on several floors every day to inspect the construction workdone by the contractors.On this evidence, the judge found that Whiting-Turner’s employees wereexposed to the unguarded or inadequately guarded perimeters of thefloors. He therefore found that Whiting-Turner had violated section1926.500(d)(1). We agree with and adopt that finding.The judge further found, however, that the violation was _de minimis._He noted that the standards in Part 1926 of 29 C.F.R. were not developedby the Department of Labor as OSHA standards. Instead, the standardswere originally promulgated under section 107 of the Contract Work HoursSafety Standards Act (\”the Construction Safety Act\”), 40 U.S.C. ? 333,and later incorporated by reference as OSHA standards. The judgeobserved that the standards issued under the Construction Safety Actwere intended to protect laborers and mechanics, whose tasks would bedifferent from those of professional engineers. The judge concluded thatthe different nature of the work being done might result in differentrisks depending on the kinds of employees exposed. He inferred from therecord that the inspection activities being performed byWhiting-Turner’s engineers would result in only a brief exposure to thehazard. For that reason, the judge found the violation to be _de minimis._We disagree. Section 9(a) of the Occupational Safety arid Health Act of1970, 29 U.S.C. ? 658(a), indicates that violations are _de minimis_when they \”have no direct or immediate relationship to safety orhealth.\” A violation should be classified as de minimis when there istechnical noncompliance with a standard but the violation has such anegligible relationship to the safety or health of employees that it isnot appropriate to order abatement or assess a penalty. _ClevelandConsolidated, Inc.,_ 87 OSAHRC 8\/A3, 13 BNA OSHC 1114, 1118, 1986-87 CCHOSHD ? 27,829, p. 36,429 (No. 84-696, 1987). We cannot agree that theconditions to which Whiting-Turner’s three engineers were exposed had anegligible relationship to safety. The risk of falling to whichWhiting-Turner’s engineers were exposed may not have been as great asthe risk to which the other workers were exposed, but it wasnevertheless significant; and the consequences of a fall could well havebeen fatal. We therefore find that the Judge erred in classifying theviolation as _de minimis. _[[3\/]]We find, in fact, that the violation was serious within the meaning ofsection 17(k) of the Occupational Safety and Health Act, 29 U.S.C. ?666(k). Under section 17(k), a violation is deemed to be serious \”ifthere is a substantial probability that death or serious physical harmcould result\” from the violative condition. The Commission has heldthat, in determining whether a violation is serious, the issue is notwhether an accident is likely to occur; it is, rather, whether theresult would likely be death or serious harm if an accident shouldoccur. _Vanco Construction, Inc.,_ 82 OSAHRC 71\/A2, 11 BNA OSHC 1058,1061, 1983 CCH OSHD ? 26,372, p. 33,454 (No. 79-4945, 1982), _aff’d,_723 F.2d 410 (5th Cir. 1984). Here, there was testimony that the secondfloor of each building was twelve feet above the ground. A fall fromeven that modest height, could result in a serious injury, especially afall onto the sort of debris typically found around a construction site.A fall from the third or fourth floor would be correspondingly morelikely to result in serious injury.[[4\/]] We therefore find that thisviolation was serious.Under section 17(j) of the OSH Act, 29 U.S.C. ? 666(j), we must considerfour factors in determining an appropriate penalty: the size of theemployer, the gravity of the violation, the good faith of the employer,and the employer’s history of prior violations. We find that thelikelihood of an accident was low and that, therefore, the gravity ofthe violation was low. _See Niagara Mohawk Power Corp.,_ 79 OSAHRC36\/A2, 7 BNA OSHC 1447, 1450, 1979 CCH OSHD ? 23,670, p. 28,703 (No.76-2414, 1979). As the judge stated, the three Whiting-Turner employeeson the site were all professional engineers whose duty was to inspectthe work of others. Their duties required only very brief exposure tothe unguarded or inadequately-guarded floor edges. AlthoughWhiting-Turner’s engineers are entitled under the OSH Act to theprotection required by the standard, the danger to them is much lessthan it would be to a worker whose duties involved spending considerabletime near the floor perimeter and whose attention might be diverted fromthe danger presented by the floor’s inadequately guarded perimeter.Having considered all the statutory factors, we deem a penalty of $50 tobe appropriate.We affirm the Secretary’s citation alleging a serious violation of 29C.F.R. ? 1926.500(d)(1), and we assess a penalty of $50.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: April 20, 1989————————————————————————ANN MCLAUGHLIN, SECRETARY OFLABORU. S. DEPARTMENT OF LABORComplainantv.WHITING-TURNER CONTRACTINGCOMPANYRespondentDocket No. 87-1238APPEARANCES:JAMES E. CULP, ESQUIREU.S. Department of LaborOffice of the SolicitorFor the ComplainantL.E. THORPEWhiting-Turner Contracting CompanyFor the Respondent_DECISION AND ORDER_TENNEY, JUDGE:1. Upon the filing of a timely notice of contest by Whiting-TurnerContracting Company, the Secretary of Labor filed a formal complaintpursuant to 29 C.F.R. 2200.35 restating the allegations of severalcitation items, including violation of 29 C.F.R. 1926.500 (d)(i). Theemployer filed a letter dated December 4, 1987, that controverted theSecretary’s allegation with respect to 29 C.F.R. 1926.500(d)(1). Theletter put the Secretary to his proof that any employee ofWhiting-Turner was exposed to the alleged hazard.2. The Secretary filed a a motion to strike the \”answer\” and dismiss thenotice of contest, because of the employer’s failure to conform to theprocedural requirements of Commission Rule 200.36 concerning therequirements of an answer. The motion was granted to the extent that theemployer was found to have admitted the jurisdictional allegations ofthe complaint and those relating to Citation No. 1, except those inparagraph VI, subparagraph (d), alleging that the employers andemployees were exposed or had access to an alleged violation. Theemployer was also considered to have denied the Secretary’s penaltyallegations specified in paragraph (g) of the complaint. Further, theallegations concerning Citation No. 2 for which no penalty was proposedwere deemed admitted. It was also noted that the contest letter itselfwas unclear that Citation No. 2 was initially controverted. The meritson the matter in issue were heard on February 26, 1988, in Washington,D.C. Each party has filed arguments in support of its position.3. Whiting-Turner Contracting Company, is a corporation with itsprincipal office and place of business in Baltimore, Maryland. TheCompany is engaged in general construction. It employs about 300employees. The company uses tools and equipment that come from locationsoutside Maryland. The employer is engaged in a business affectinginterstate commerce. (Pleadings)4. Under the order granting in part on the Secretary’s motion, employerwas deemed to have admitted the application of 29 C.F.R. 1936.500(d)(1)on June 26, 1987, to the second, third, and fourth floors of the eastand west towers of a construction project at 106 Irving Street, N.W. inWashington, D.C. Section 1926.500(d)(1) requires, among other things,that every open-sided floor be guarded by standard railing, or theequivalent, on all open sides except where there is an entrance to aramp, stairway, or fixed ladder. A \”standard railing\” is separatelydefined in paragraph (f) of the section to consist of a top rail,intermediate rail, toe board, and posts and to have a vertical height ofabout 42 inches.5. In some areas, there were no protective rails. (Testimony of Mr.Wiseman, Tr. 10, Exhibit C-2). In one area a single cable was strung onthe edge of a floor. (Testimony of Mr. Wiseman, Tr. 16; Exhibit C-3).The employer knew of these conditions. (Pleadings)6. Whiting-Turner was the construction manager for the owner, and hadthe responsibility of getting a job built. With the exception of Mr.Alexander Lawrence, the assistant superintendent, the employees ofWhiting-Turner on the job were graduate engineers who were assignedvarious phases of the work to watch. (Testimony of Mr. Bohrman, Tr. 36,38, 39). It was Mr. Lawrence who elected the single cable. (Testimony ofMr. Wiseman, Tr. 19). The professional employees had many duties ininspecting the building such as checking sheet rock, checking theprogress of the pipe installation and other installations in thebuilding. In performing these tasks, they sometimes approached close tothe edge of a floor. Some of the sheet metal that was inspected wasabout a foot or so from the edge. (Testimony of Mr. Wiseman, Tr. 12;that of Mr. Mountjsoy, Tr. 32, 34).7. As to the frequency of exposure, the compliance officer saw theemployees on the floor several times, and was informed byWhiting-Turner’s superintendent that the employees were \”up and down onthe floors\” checking the work on the job everyday. (Testimony of Mr.Wiseman, (Tr. 17). The frequency of exposure was estimated to be between10 to 20 times a month. (Testimony of Mr. Mountjoy, Tr. 32).8. If an employee were to fall from the second floor, which was about 12feet from the ground, there was a substantial probability of seriousinjury in the form of broken bones. From the higher floors the risk ofmore serious injury would exist. (Testimony of Mr. Wiseman, Tr. 18). Mr.Wiseman also testified that the likelihood of an accident was veryprobable. However, the narrative suggests that the witness was actuallyaddressing the probability of serious injury if a fall were to occurrather than the incidence of a fall. (See Tr. 18, Lines 20-25.) Also,there is no direct evidence on the duration of the several exposures ofthe professional engineers to fall hazards. It may, how ever, beinferred from the evidence that professional engineers were up and downon the floors doing their daily checking work that their individualinspections were brief rather than prolonged.9. It is noted that the standards published in Part 1926 of Title 29 ofthe Code of Federal Regulations were adopted under section 107 of theContract Work Hours Safety Standards Act (40 U.S.C. section 333) for theprotection of laborers and mechanics employed on contract work subjectto the Act’s terms. It is by virtue of the Occupational Safety andHealth Act itself and 29 C.F.R. 1910.12(a) adopted pursuant thereunderthat Part 1926 is extended to every employment of every employee engagedin \”construction work\”. While it is accepted that professional engineersmay be engaged in \”construction work\” it is important that Part 1926 asa whole and section 1926.500 in particular were initially intended toprotect laborers and mechanics whose construction tasks may be differentfrom those of professional engineers. The plain purpose of section1926.500(d) is to protect those using a floor as a working surface. Yetthe nature of that use may result in different risks from exposure.10. In considering exposure of an employee to a fall hazard, the casesare legion that the distance from the edge of the working service issignificant. The frequency and duration of exposure are also importantin ascertaining if the exposure offers a realistic hazard. _Fredcon,Inc._ 1987 CCH OSHD 22,805 (adm. law judge). Here, the inspections by aprofessional engineer were close to the edge of the floors, and thefrequency of the activity was significant. But there is no indication ofany significant length of exposure in the performance of the inspectingtasks which as described in the evidence suggest brief rather than longduration.11. Under these circumstances, the exposure is found to be onlymarginally realistic. _Fredcon, Inc._ _supra._ The employer is found tohave violated 29 C.F.R. 1926.500(d)(1). However the violation ischaracterized as de minimis requiring no penalty assessment or abatementorder.PAUL A. TENNEYJudge, OSHRCDATED: MAY-5 1988Washington, D.C.————————————————————————FOOTNOTES:[[1\/]] That standard provides:? 1926.500 _Guardrails, handrails, and covers._(d) _Guarding of open-sided floors, platforms, and runways._ (1) Everyopen-sided floor or platform 6 feet or more above adjacent floor orground level shall be guarded by a standard railing, or the equivalent,as specified in paragraph (f)(1)(1) of this section, on all open sides,except where there is entrance to a ramp, stairway or fixed ladder. Therailing shall be provided with a standard toeboard wherever, beneath theopen sides, persons can pass, or there is moving machinery, or there isequipment with which falling materials could create a hazard.[[2\/]] A standard guardrail required by 29 C.F.R. ? 1926.500(d)(1) mustmeet the specifications set out in 29 C.F.R. ? 1926.500 (f)(1), whichprovides in part:? 1926.500 _Guardrails, handrails, and covers._(f) _Standard specifications_. (1) A standard railing shall consist oftop rail, intermediate rail, toeboard, and posts, and shall have avertical height of approximately 41 2 inches from upper surface to toprail to floor, platform., runway, or ramp level. The top rail shall besmooth-surfaced throughout the length of the railing. The intermediaterail shall be halfway between the top rail and the floor, platform,runway, or ramp.[[3\/]] It appears from the record that Whiting-Turner was probably theemployer that \”created\” and \”controlled\” the cited violation within themeaning of Commission precedent. If so, it would have been appropriateunder that precedent to hold Whiting-Turner responsible for theviolation even if the only exposed workers had been the employees ofother contractors. _See, e.g.,_ _Lee Roy Westbrook Constr. Co.,_ 13 BNAOSHC 2104, 1989 CCH OSHD ? 28,465 (No. 85-601, 1989). These employeeswere clearly exposed to a serious falling hazard. We need not addressthis issue, however, because we reach the same result even if we limitour analysis to the three Whiting-Turner employees discussed in thejudge’s decision. We note that both parties have focused solely on thosethree employees in their pleadings and in their briefs on review. Wetherefore decide only the narrow issue argued by the parties.[[4\/]] Although the record does not reveal the distances between theupper floors, our experience indicates that it would be approximately 10feet, meaning that a fall from the fourth floor would be about 32 feet.”