“SECRETARY OF LABOR,Complainant,v.WILLIAMS ENTERPRISES, INC.,RespondentDocket No. 87-0960_ORDER_This case is here at the direction of the United States Court of Appealsfor the D.C. Circuit. _Dole v. William Enterprises, Inc_., 876 F.2d 186(D.C. Cir. 1989)._rev’g William & Enterprises Inc._, 13 BNA OSHC 1868,1988 CCH OSHD ? 28,255 (No. 87-960, 1988 ALJ) (unreviewed decision ofAdministrative Law Judge). In accordance with the D.C. Circuit’sdecision and mandate, we hereby reinstate and affirm the Secretary ofLabor’s citation 1 alleging that Williams committed a serious violationof 29 C.F.R. ? 1926.750(b)(1)(iii) by failing to install perimeter cablealong two sides of a temporary metal-decked floor on the second tier ofa building in Washington, D.C.Although the Administrative Law Judge determined that the cited fallhazard existed and that Williams’ employees were exposed to it, hevacated the citation. The judge concluded that Williams’ employees wereexposed to \”a greater fall hazard\” when installing the perimeter cableto abate the violation than when performing their ordinary work andbeing exposed to the cited fall hazard.The Secretary filed a petition for discretionary review with theCommission, but the case was not directed for review.The D.C. Circuit granted the Secretary’s Petition for review filedpursuant to section 11(b) of the Occupational Safety and Health Act of1970 [\”the Act\”], 29 U.S.C. ? 660(b). _Dole v. Williams Enterprises.Inc._, _supra_, 876 F.2d at 191. The court concluded that, even thoughthe judge’s decision made no reference whatsoever to the greater hazarddefense, the judge had in effect vacated the citation on the ground thatWilliams had established that defense. The court concluded that thejudge’s decision was in error because Williams had not pleaded thegreater hazard defense in its answer (as required by the Commission’sRule of Procedure at 29 C.F.R. ? 2200.36(b)), nor proven the threerequisite elements of the defense: hazard of compliance greater thanhazard of noncompliance; alternative means of protection unavailable;and variance unavailable or inappropriate. 876 F.2d at 188-190.According to the court, \”[w]ithout a showing on these elements of theclaim, it was patently improper for the Commission [judge] to vacate theSecretary’s citation on the ground that abatement posed a more serioushazard to Williams’ employees.\” (footnote omitted) 876 F.2d at 190.After acknowledging that \”[t]he record clearly reflects that Williamsviolated ? 1926.750(b)(1)(iii),\” the court went on to determine that theviolation was \”serious\” under section 17(k) of the Act, 29 U.S.C. ?666(k), in that the Secretary had proven that serious physical harmcould result from the 20- to 30-foot fall to which the employees wereexposed. 876 F.2d at 191. According to the court, there was \”no othersupportable conclusion from the record.\” Id. The court then remanded thecase to the Commission \”with directions that [the citation at issue] bereinstated.\” Id.Having reinstated the citation pursuant to the D.C. Circuit’sinstructions, we must consider what penalty to assess. The Secretaryproposed a penalty of $630 for the violation. Section 17(j) of the Act,29 U.S.C. ? 666(j), sets forth the criteria to be used in assessing apenalty: size of employer, gravity of violation, good faith of employer,and previous violations by employer. Based on those criteria, a penaltyof $630 is assessed for the citation.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: May 24, 1990————————————————————————ANN McLAUGHLIN, SECRETARY OFLABOR,U.S. DEPARTMENT OF LABORComplainantv.WILLIAMS ENTERPRISES,INCORPORATEDRespondentDocket No. 87-0960APPEARANCES:Mark D. Swartz, EsquireU.S. Department of LaborOffice of the SolicitorFor the ComplainantJames Brent Clarke, Jr., EsquireFor the Respondent_DECISION AND ORDER_TENNEY, Judge:I. _Introduction_On May 6 and 7, 1987, OSHA inspected a worksite of the Respondent,Williams Enterprises, in Washington, D.C. As a result of that inspectionRespondent was cited for a \”serious\” violation of 29 C.F.R.1926.750(b)(1)(iii) alleging that it had failed to install wire roperailing around the perimeter of a temporary metal-decked floor and for aviolation of 29 C.F.R. 1926.550(b)(2) alleging that monthly writteninspection reports for a truck crane were not readily available.Respondent filed a timely notice of contest.[[1]] After the filing ofthe Complaint and Answer, the parties proceeded through discovery. Ahearing was held on February 11, 1988.II. _Findings of Fact_1. On May 6 and 7, 1987, Williams Enterprises, Incorporated, acorporation engaged in structural steel erection, had a workplace at theIntelstat project at 4000 Connecticut Avenue, N.W., Washington, D.C.Williams is an employer within the meaning of the Occupational Safetyand Health Act. (Pleadings)2. Respondent’s employees were welding on the second tier of the 90 feetby 90 feet octagonally shaped section of the Intelstat projectdesignated as POD L. (Testimony of Wilfred Epps, Tr. 36; that of DarrellMoore, Tr. 78-79; that of Joseph Graham, Tr. 120-121; Joint Ex. 1, Gov.Ex. 3-A.)3. The metal decking on the second tier was substantially complete. BothMr. Epps and Mr. Moore testified that the tier was 90% decked, Tr. 69,93. Mr. Graham testified that decking was 75% complete, Tr. 117.) On thesouth and east sides of the second tier, decking was complete to theperimeter except for small triangular sections. (Testimony of Mr. Epps,Tr. 23, 24, 26; that of Mr. Moore, Tr. 93; that of Mr. Graham, Tr. 111,125, 127, 128, 131, 140, 141, 145; Joint Ex. 2, Gov. Exs. 3A, 3B, 4A and4B.)4. Respondent’s employees came within one foot of the edge of the floorwhen pulling up welding leads and when using a ladder to enter and exitthe second tier. (Testimony of Mr. Epps, Tr. 30, 31, 38, 39, 66; that ofMr. Moore, Tr. 80-83; that of Mr. Graham, Tr. 126-127, 130, 157-158;Gov. Exs. 4A and 4B.) Pulling up welding lead required approximately 10minutes a day. Using the ladder involved one to five minutes for eachuse. (Testimony of Mr. Moore, Tr. 81, 83.)5. There was no perimeter cable at the edges of the south and east sidesof the second tier. (Testimony of Mr. Epps, Tr. 27, 38; that of Mr.Moore, Tr. 86; that of Mr. Graham, Tr. 137-138.) The fall distance fromthe south side of the second tier was 20 feet to the mechanical roomroof. From the east side, the fall distance was 30 feet to the ground.(Testimony of Mr. Epps, Tr. 36, 37.)6. Respondent’s employees were exposed to a fall hazard when pulling upwelding lead and using the ladder. (Findings of Fact Nos. 4, 5, 6)7. Respondent’s employees were exposed to a fall hazard when theyinstalled cable on the south and east perimeters. (Testimony of Mr.Epps, Tr. 62.) Installing the cable on the south and east perimeterstook three of Respondent’s employees half an hour. In order to installthe cable on the three undecked triangular corners, employees had tocrawl or \”coon\” across four-to eight-inch wide steel beams, carryingcable that could weigh 150 pounds. (Testimony of Mr. Graham, Tr. 139-143.)8. Respondent’s employees received a longer exposure to the fall hazardduring installation of the guardrails than during the work that made theguardrails necessary. That part of the installation requiringRespondent’s employees to \”coon\” across four- to eight-inch wide steelbeams, exposed Respondent’s employees to a more serious fall hazard thanpulling up welding lead and using the ladder. (Findings of Fact Nos. 5,6 and 7)9. A truck crane operated by Respondent was in use at the Intelstatworkplace. (Stipulation, Tr. 98-99) On the dates of the inspection, May6-7, 1987, there were no monthly inspection records available for thecrane. (Testimony of Mr. Epps, Tr. 99-100.)10. Respondent knew that the records were not available on the first dayof the inspection but was not able to produce the records on the secondday. (Testimony of Mr. Epps, Tr. 100; that of Charles Swann, Tr. 170-171.)III. _Discussion__1926.750(b)(1)(iii) _The cited standard reads as follows:Section 1926.750 _Flooring requirements_ * * *(b) _Temporary flooring skeleton steel construction __in tiered buildings_(1)(iii) Floor periphery–safety railing. A safety railing of 1\/2-inchwire rope or equal shall be installed, approximately 42 inches high,around the periphery of all temporary-planked or temporary metal-deckedfloors of tier buildings and other Multi-floored structures duringstructural steel assembly.It is not disputed that for approximately 10 minutes each dayRespondent’s employees came within one foot of an unguarded perimeteredge while pulling up welding leads.[[2]] The Secretary alleges thatthis condition violates 29 C.F.R. 1926.750(b)(1)(iii). Respondentcontends that the standard does not apply because the metal-decked floorwas not fully laid. The Secretary argues that the standard does notrequire that metal decking completely cover the floor before it applies.She relies on _The Ashton Company, Inc_., 76 OSAHRC 76\/B11, 3 BNA OSHC1968, 1975-76 CCH OSHD ? 20,351 (No. 5111, 1976).Section 29 C.F.R. 1926.750(b)(1)(iii) was designed to prevent personsfrom falling when working on otherwise unguarded floor perimeters. TheCommission has interpreted it to apply to temporary floors that wereabout three-fourths decked. _The Ashton Company_. _See Adams SteelErection, Inc._, 87 OSAHRC \/ ,13 BNA OSHC 1073, 1080, 1986-87 CCH OSHD ?27,815, p. 36,406 (No. 77- 3804, 1987); _Carr Erectors, Inc._, 77 OSAHRC14\/C9, 4 BNA OSHC 2009, 1976-77 CCH OSHD ? 21,471 (No. 7247, 1977).Respondent’s contention that similarities in the text of 29 C.F.R.1926.750(b)(1)(iii) and some provisions of ANSI A10.13, _SafetyRequirements for Steel Erection_, point to an interpretation that thestandard applies only when temporary decking is fully laid, is rejected.Respondent failed to establish any persuasive inference of a nexusbetween the cited standard and the ANSI standard. The cited standard isan \”established Federal standard\” adopted from rules issued under theConstruction Safety Act. See 29 C.F.R. 1910.11 and 1910.12. Moreover,the Commission’s interpretation is more consistent with the Act’sessential purpose of assuring safe and healthful working conditions foremployees.Although the standard applies to Respondent’s workplace, entry of anabatement order requiring the installation of perimeter cable would notprovide Respondent’s employees with \”appropriate\” relief. 29 U.S.C. ?659(c). There is no persuasive evidence that work was being done on theportion of the floor that was completed and was proximate to the edge,except for pulling up the welding leads, which occurred without regardto the progress in decking. Also, abatement would present Respondentwith a \”Catch 22\” dilemma. _See U.S. Steel v. OSHRC_, 537 F.2d 780, 783,4 BNA OSHC 1424, 1425-26 (3rd Cir. 1976). When installing the perimeterguarding, Respondent’s employees received a longer exposure to the fallhazard than pulling up welding lead had required. _See H. S. HoltzeConstruction v. Marshall_, 627 F.2d 149, 151-152, 8 BNA OSHC 1785, 1788(8th Cir. 1980). The employees also were exposed to a greater fallhazard than they ordinarily encounter, that of falling from a four- toeight-inch wide steel beam.In any future situations that may arise, the Secretary may wish toconsider applying a requirement for personal protective equipment inorder to afford employees fall protection.1_926.550(b)(2)_The cited standard, 29 C.F.R. ? 1926.550(b)(2) reads as follows:1926.550 _Cranes and derricks_ * * *(b) _Crawler, locomotive and truck cranes_ * * *(2) All crawler, truck, or locomotive cranes in use shall meet theapplicable requirements for design, inspection, construction, testing,maintenance and operation as prescribed in the ANSI B30.5-1968 SafetyCode for Crawler, Locomotive and Truck Cranes.Section 5-2.1.5 of ANSI B30.5 provides:5-2.1.5 _Inspection Records_Written dated and signed inspection reports and records shall be mademonthly on critical items in use such as brakes, crane hooks, and ropes.Records shall be kept where readily available.The evidence establishes that the records were not readily available.The compliance officer requested the records from Respondent’s craneoperator and one of Respondent’s safety representatives on May 6, 1987,the first day of the inspection, but they did not produce them. Thecompliance officer gave Respondent an opportunity to produce the recordson the next day, but they were not made available._Conclusions of Law_1. Section 29 C.F.R. 1926.750(b)(1)(iii) applies to temporary floors insteel erection that are not fully decked.2. The Secretary of Labor has failed to demonstrate that entry of anabatement order requiring the installation of wire rope around theperimeter of the second level at POD L of Respondent’s worksite would beappropriate.3. Citation 1, item 1, which alleged a serious violation of 29 C.F.R.and proposed a penalty of $630, is vacated.4. The Secretary has sustained the burden of proving that the Respondentfailed to make crane inspection records readily available, and that theemployer knew the records were not readily available.5. The Respondent has violated section 5-2.1.5 of ANSI 830.5-1968,Safety Code for Crawler, Locomotive and Truck Cranes as adopted by 29C.F.R. 1926.550(b)(2). No penalty for the violation was proposed, andnone is assessed.SO ORDEREDPAUL A. TENNEYJudge, OSHRCMAY 31 1988Dated: Washington, D.C.————————————————————————FOOTNOTES:[[1]] Williams withdrew its notice of contest to two other items.[[2]] Because exposures to unguarded perimeters that occur whenemployees use steps, ramps or ladders are not the type of exposure forwhich guarding is generally required, see 29 C.F.R. 1926.500(d)(1), theexposures involving the ladder would not require guarding.”