“Docket No. 87-1238 SECRETARY OF LABOR,Complainant,v.WHITING-TURNER CONTRACTING COMPANY,Respondent.OSHRC Docket No. 87-1238DECISIONBefore: BUCKLEY, Chairman, and AREY, Commissioner. BY THE COMMISSION:The Secretary of Labor cited Whiting-Turner Contracting Companyfor violating various occupational safety and health standards, including 29 C.F.R. ?1926.500(d)(1). [[1\/]] The administrative law judge who heard the case found a violation,but he held that it was de minimis. Review was directed on whether the judge properlycharacterized the violation as de minimis. We find that the judge erred and hold that theviolation was serious, as alleged in the citation.Whiting-Turner was construction manager of a constructionproject at the Washington Hospital Center in Washington, D.C., when an OSHA complianceofficer inspected the worksite. Two four-story towers were being built, and the complianceofficer observed that the perimeters of the floors were not properly guarded in the mannerrequired by the standard. [[2\/]] He observed two areas where there was no protection atall, and the remainder was guarded only by a single strand of wire rope, which sagged inseveral places.Whiting-Turner’s project manager testified that the company hadonly three employees on the site, all of whom were graduate engineers. The complianceofficer testified that he saw one of these Whiting-Turner employees nearimproperly-guarded perimeters on the second and third floors of the east tower. A foremanfor the mechanical contractor on the site testified that, at different times, he had seeneach of the three Whiting-Turner employees near improperly-guarded floor perimeters onboth towers. In addition, Whiting-Turner’s superintendent told the compliance officer thatall three Whiting-Turner employees at the site had to be on several floors every day toinspect the construction work done by the contractors.On this evidence, the judge found that Whiting-Turner’semployees were exposed to the unguarded or inadequately guarded perimeters of the floors.He therefore found that Whiting-Turner had violated section 1926.500(d)(1). We agree withand adopt that finding.The judge further found, however, that the violation was deminimis. He noted that the standards in Part 1926 of 29 C.F.R. were not developed bythe Department of Labor as OSHA standards. Instead, the standards were originallypromulgated under section 107 of the Contract Work Hours Safety Standards Act (\”theConstruction Safety Act\”), 40 U.S.C. ? 333, and later incorporated by reference asOSHA standards. The judge observed that the standards issued under the Construction SafetyAct were intended to protect laborers and mechanics, whose tasks would be different fromthose of professional engineers. The judge concluded that the different nature of the workbeing done might result in different risks depending on the kinds of employees exposed. Heinferred from the record that the inspection activities being performed byWhiting-Turner’s engineers would result in only a brief exposure to the hazard. For thatreason, the judge found the violation to be de minimis.We disagree. Section 9(a) of the Occupational Safety aridHealth Act of 1970, 29 U.S.C. ? 658(a), indicates that violations are de minimis whenthey \”have no direct or immediate relationship to safety or health.\” A violationshould be classified as de minimis when there is technical noncompliance with a standardbut the violation has such a negligible relationship to the safety or health of employeesthat it is not appropriate to order abatement or assess a penalty. ClevelandConsolidated, Inc., 87 OSAHRC 8\/A3, 13 BNA OSHC 1114, 1118, 1986-87 CCH OSHD ?27,829, p. 36,429 (No. 84-696, 1987). We cannot agree that the conditions to whichWhiting-Turner’s three engineers were exposed had a negligible relationship to safety. Therisk of falling to which Whiting-Turner’s engineers were exposed may not have been asgreat as the risk to which the other workers were exposed, but it was neverthelesssignificant; and the consequences of a fall could well have been fatal. We therefore findthat the Judge erred in classifying the violation as de minimis. [[3\/]]We find, in fact, that the violation was serious within the meaning of section 17(k) ofthe Occupational Safety and Health Act, 29 U.S.C. ? 666(k). Under section 17(k), aviolation is deemed to be serious \”if there is a substantial probability that deathor serious physical harm could result\” from the violative condition. The Commissionhas held that, in determining whether a violation is serious, the issue is not whether anaccident is likely to occur; it is, rather, whether the result would likely be death orserious harm if an accident should occur. Vanco Construction, Inc., 82 OSAHRC71\/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 second floor of eachbuilding was twelve feet above the ground. A fall from even that modest height, couldresult in a serious injury, especially a fall onto the sort of debris typically foundaround a construction site. A fall from the third or fourth floor would be correspondinglymore likely to result in serious injury.[[4\/]] We therefore find that this violation wasserious.Under section 17(j) of the OSH Act, 29 U.S.C. ? 666(j), we must consider four factors indetermining an appropriate penalty: the size of the employer, the gravity of theviolation, the good faith of the employer, and the employer’s history of prior violations.We find that the likelihood of an accident was low and that, therefore, the gravity of theviolation was low. See Niagara Mohawk Power Corp., 79 OSAHRC 36\/A2, 7 BNA OSHC1447, 1450, 1979 CCH OSHD ? 23,670, p. 28,703 (No. 76-2414, 1979). As the judge stated,the three Whiting-Turner employees on the site were all professional engineers whose dutywas to inspect the work of others. Their duties required only very brief exposure to theunguarded or inadequately-guarded floor edges. Although Whiting-Turner’s engineers areentitled under the OSH Act to the protection required by the standard, the danger to themis much less than it would be to a worker whose duties involved spending considerable timenear the floor perimeter and whose attention might be diverted from the danger presentedby the floor’s inadequately guarded perimeter. Having considered all the statutoryfactors, we deem a penalty of $50 to be appropriate.We affirm the Secretary’s citation alleging a serious violationof 29 C.F.R. ? 1926.500(d)(1), and we assess a penalty of $50.FOR THE COMMISSIONRay H. Darling, Jr.Executive Secretary DATED: April 20, 1989 ANN MCLAUGHLIN, SECRETARY OF LABORU. S. DEPARTMENT OF LABOR Complainant v.WHITING-TURNER CONTRACTING COMPANY RespondentDocket No. 87-1238APPEARANCES: JAMES E. CULP, ESQUIRE U.S. Department of Labor Office of the SolicitorFor the ComplainantL.E. THORPEWhiting-Turner Contracting CompanyFor the Respondent DECISION AND ORDERTENNEY, JUDGE:1. Upon the filing of a timely notice of contest byWhiting-Turner Contracting Company, the Secretary of Labor filed a formal complaintpursuant to 29 C.F.R. 2200.35 restating the allegations of several citation items,including violation of 29 C.F.R. 1926.500 (d)(i). The employer filed a letter datedDecember 4, 1987, that controverted the Secretary’s allegation with respect to 29 C.F.R.1926.500(d)(1). The letter 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 the notice of contest, because of the employer’s failure toconform to the procedural requirements of Commission Rule 200.36 concerning therequirements of an answer. The motion was granted to the extent that the employer wasfound to have admitted the jurisdictional allegations of the complaint and those relatingto Citation No. 1, except those in paragraph VI, subparagraph (d), alleging that theemployers and employees were exposed or had access to an alleged violation. The employerwas also considered to have denied the Secretary’s penalty allegations specified inparagraph (g) of the complaint. Further, the allegations concerning Citation No. 2 forwhich no penalty was proposed were deemed admitted. It was also noted that the contestletter itself was unclear that Citation No. 2 was initially controverted. The merits onthe matter in issue were heard on February 26, 1988, in Washington, D.C. Each party hasfiled arguments in support of its position.3. Whiting-Turner Contracting Company, is a corporation withits principal office and place of business in Baltimore, Maryland. The Company is engagedin general construction. It employs about 300 employees. The company uses tools andequipment that come from locations outside Maryland. The employer is engaged in a businessaffecting interstate commerce. (Pleadings)4. Under the order granting in part on the Secretary’s motion,employer was deemed to have admitted the application of 29 C.F.R. 1936.500(d)(1) on June26, 1987, to the second, third, and fourth floors of the east and west towers of aconstruction project at 106 Irving Street, N.W. in Washington, D.C. Section 1926.500(d)(1)requires, among other things, that every open-sided floor be guarded by standard railing,or the equivalent, on all open sides except where there is an entrance to a ramp,stairway, or fixed ladder. A \”standard railing\” is separately defined inparagraph (f) of the section to consist of a top rail, intermediate rail, toe board, andposts and to have a vertical height of about 42 inches.5. In some areas, there were no protective rails. (Testimony ofMr. Wiseman, Tr. 10, Exhibit C-2). In one area a single cable was strung on the edge of afloor. (Testimony of Mr. Wiseman, Tr. 16; Exhibit C-3). The employer knew of theseconditions. (Pleadings)6. Whiting-Turner was the construction manager for the owner,and had the responsibility of getting a job built. With the exception of Mr. AlexanderLawrence, the assistant superintendent, the employees of Whiting-Turner on the job weregraduate engineers who were assigned various phases of the work to watch. (Testimony ofMr. Bohrman, Tr. 36, 38, 39). It was Mr. Lawrence who elected the single cable. (Testimonyof Mr. Wiseman, Tr. 19). The professional employees had many duties in inspecting thebuilding such as checking sheet rock, checking the progress of the pipe installation andother installations in the building. In performing these tasks, they sometimes approachedclose to the edge of a floor. Some of the sheet metal that was inspected was about a footor 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 sawthe employees on the floor several times, and was informed by Whiting-Turner’ssuperintendent that the employees were \”up and down on the floors\” checking thework on the job everyday. (Testimony of Mr. Wiseman, (Tr. 17). The frequency of exposurewas estimated to be between 10 to 20 times a month. (Testimony of Mr. Mountjoy, Tr. 32).8. If an employee were to fall from the second floor, which wasabout 12 feet from the ground, there was a substantial probability of serious injury inthe form of broken bones. From the higher floors the risk of more serious injury wouldexist. (Testimony of Mr. Wiseman, Tr. 18). Mr. Wiseman also testified that the likelihoodof an accident was very probable. However, the narrative suggests that the witness wasactually addressing the probability of serious injury if a fall were to occur rather thanthe incidence of a fall. (See Tr. 18, Lines 20-25.) Also, there is no direct evidence onthe duration of the several exposures of the professional engineers to fall hazards. Itmay, how ever, be inferred from the evidence that professional engineers were up and downon the floors doing their daily checking work that their individual inspections were briefrather than prolonged.9. It is noted that the standards published in Part 1926 ofTitle 29 of the Code of Federal Regulations were adopted under section 107 of the ContractWork Hours Safety Standards Act (40 U.S.C. section 333) for the protection of laborers andmechanics employed on contract work subject to the Act’s terms. It is by virtue of theOccupational Safety and Health Act itself and 29 C.F.R. 1910.12(a) adopted pursuantthereunder that Part 1926 is extended to every employment of every employee engaged in\”construction work\”. While it is accepted that professional engineers may beengaged in \”construction work\” it is important that Part 1926 as a whole andsection 1926.500 in particular were initially intended to protect laborers and mechanicswhose construction tasks may be different from those of professional engineers. The plainpurpose of section 1926.500(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 cases are legion that the distance from the edge of the working service issignificant. The frequency and duration of exposure are also important in ascertaining ifthe exposure offers a realistic hazard. Fredcon, Inc. 1987 CCH OSHD 22,805 (adm.law judge). Here, the inspections by a professional engineer were close to the edge of thefloors, and the frequency of the activity was significant. But there is no indication ofany significant length of exposure in the performance of the inspecting tasks which asdescribed in the evidence suggest brief rather than long duration.11. Under these circumstances, the exposure is found to be onlymarginally realistic. Fredcon, Inc. supra. The employer is found to haveviolated 29 C.F.R. 1926.500(d)(1). However the violation is characterized as de minimisrequiring no penalty assessment or abatement order.PAUL A. TENNEY Judge, 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) Every open-sidedfloor or platform 6 feet or more above adjacent floor or ground level shall be guarded bya standard railing, or the equivalent, as specified in paragraph (f)(1)(1) of thissection, on all open sides, except where there is entrance to a ramp, stairway or fixedladder. The railing shall be provided with a standard toeboard wherever, beneath the opensides, persons can pass, or there is moving machinery, or there is equipment with whichfalling materials could create a hazard.[[2\/]] A standard guardrail required by 29 C.F.R. ?1926.500(d)(1) must meet 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 railingshall consist of top rail, intermediate rail, toeboard, and posts, and shall have avertical height of approximately 41 2 inches from upper surface to top rail to floor,platform., runway, or ramp level. The top rail shall be smooth-surfaced throughout thelength of the railing. The intermediate rail shall be halfway between the top rail and thefloor, platform, runway, or ramp. [[3\/]] It appears from the record that Whiting-Turner wasprobably the employer that \”created\” and \”controlled\” the citedviolation within the meaning of Commission precedent. If so, it would have beenappropriate under that precedent to hold Whiting-Turner responsible for the violation evenif the only exposed workers had been the employees of other contractors. See, e.g.,Lee Roy Westbrook Constr. Co., 13 BNA OSHC 2104, 1989 CCH OSHD ? 28,465 (No.85-601, 1989). These employees were clearly exposed to a serious falling hazard. We neednot address this issue, however, because we reach the same result even if we limit ouranalysis to the three Whiting-Turner employees discussed in the judge’s decision. We notethat both parties have focused solely on those three employees in their pleadings and intheir briefs on review. We therefore decide only the narrow issue argued by the parties.[[4\/]] Although the record does not reveal the distances between the upper floors, ourexperience indicates that it would be approximately 10 feet, meaning that a fall from thefourth floor would be about 32 feet.”