“Docket No. 87-0960 SECRETARY OF LABOR, Complainant, v. WILLIAMS ENTERPRISES, INC., RespondentDocket No. 87-0960ORDER This case is here at the direction of the United States Courtof Appeals for 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 CCHOSHD ? 28,255 (No. 87-960, 1988 ALJ) (unreviewed decision of Administrative Law Judge).In accordance with the D.C. Circuit’s decision and mandate, we hereby reinstate and affirmthe Secretary of Labor’s citation 1 alleging that Williams committed a serious violationof 29 C.F.R. ? 1926.750(b)(1)(iii) by failing to install perimeter cable along two sidesof a temporary metal-decked floor on the second tier of a building in Washington, D.C.Although the Administrative Law Judge determined that the citedfall hazard existed and that Williams’ employees were exposed to it, he vacated thecitation. The judge concluded that Williams’ employees were exposed to \”a greaterfall hazard\” when installing the perimeter cable to abate the violation than whenperforming their ordinary work and being exposed to the cited fall hazard.The Secretary filed a petition for discretionary review withthe Commission, but the case was not directed for review.The D.C. Circuit granted the Secretary’s Petition for reviewfiled pursuant to section 11(b) of the Occupational Safety and Health Act of 1970[\”the Act\”], 29 U.S.C. ? 660(b). Dole v. Williams Enterprises. Inc., supra,876 F.2d at 191. The court concluded that, even though the judge’s decision made noreference whatsoever to the greater hazard defense, the judge had in effect vacated thecitation on the ground that Williams had established that defense. The court concludedthat the judge’s decision was in error because Williams had not pleaded the greater hazarddefense in its answer (as required by the Commission’s Rule of Procedure at 29 C.F.R. ?2200.36(b)), nor proven the three requisite elements of the defense: hazard of compliancegreater than hazard of noncompliance; alternative means of protection unavailable; andvariance unavailable or inappropriate. 876 F.2d at 188-190. According to the court,\”[w]ithout a showing on these elements of the claim, it was patently improper for theCommission [judge] to vacate the Secretary’s citation on the ground that abatement posed amore serious hazard to Williams’ employees.\” (footnote omitted) 876 F.2d at 190.After acknowledging that \”[t]he record clearly reflects that Williams violated ?1926.750(b)(1)(iii),\” the court went on to determine that the violation was\”serious\” under section 17(k) of the Act, 29 U.S.C. ? 666(k), in that theSecretary had proven that serious physical harm could result from the 20- to 30-foot fallto which the employees were exposed. 876 F.2d at 191. According to the court, there was\”no other supportable conclusion from the record.\” Id. The court then remandedthe case 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 Secretary proposed a penalty of$630 for the violation. Section 17(j) of the Act, 29 U.S.C. ? 666(j), sets forth thecriteria to be used in assessing a penalty: size of employer, gravity of violation, goodfaith 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, 1990ANN McLAUGHLIN, SECRETARY OF LABOR, U.S. DEPARTMENT OF LABOR Complainant v. WILLIAMS ENTERPRISES, INCORPORATED RespondentDocket No. 87-0960APPEARANCES: Mark D. Swartz, Esquire U.S. Department of Labor Office of the SolicitorFor the ComplainantJames Brent Clarke, Jr., EsquireFor the RespondentDECISION AND ORDERTENNEY, Judge:I. IntroductionOn May 6 and 7, 1987, OSHA inspected a worksite of theRespondent, 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 rope railing around the perimeter of atemporary metal-decked floor and for a violation of 29 C.F.R. 1926.550(b)(2) alleging thatmonthly written inspection reports for a truck crane were not readily available.Respondent filed a timely notice of contest.[[1]] After the filing of the Complaint andAnswer, the parties proceeded through discovery. A hearing was held on February 11, 1988.II. Findings of Fact1. On May 6 and 7, 1987, Williams Enterprises, Incorporated, acorporation engaged in structural steel erection, had a workplace at the Intelstat projectat 4000 Connecticut Avenue, N.W., Washington, D.C. Williams is an employer within themeaning of the Occupational Safety and Health Act. (Pleadings)2. Respondent’s employees were welding on the second tier ofthe 90 feet by 90 feet octagonally shaped section of the Intelstat project designated asPOD L. (Testimony of Wilfred Epps, Tr. 36; that of Darrell Moore, Tr. 78-79; that ofJoseph Graham, Tr. 120-121; Joint Ex. 1, Gov. Ex. 3-A.)3. The metal decking on the second tier was substantiallycomplete. Both Mr. 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 the south and east sidesof the second tier, decking was complete to the perimeter except for small triangularsections. (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 ofthe floor when pulling up welding leads and when using a ladder to enter and exit thesecond tier. (Testimony of Mr. Epps, Tr. 30, 31, 38, 39, 66; that of Mr. Moore, Tr. 80-83;that of Mr. Graham, Tr. 126-127, 130, 157-158; Gov. Exs. 4A and 4B.) Pulling up weldinglead required approximately 10 minutes a day. Using the ladder involved one to fiveminutes for each use. (Testimony of Mr. Moore, Tr. 81, 83.)5. There was no perimeter cable at the edges of the south andeast sides of 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 from the south side of the secondtier was 20 feet to the mechanical room roof. From the east side, the fall distance was 30feet to the ground. (Testimony of Mr. Epps, Tr. 36, 37.)6. Respondent’s employees were exposed to a fall hazard whenpulling up welding lead and using the ladder. (Findings of Fact Nos. 4, 5, 6)7. Respondent’s employees were exposed to a fall hazard whenthey installed cable on the south and east perimeters. (Testimony of Mr. Epps, Tr. 62.)Installing the cable on the south and east perimeters took three of Respondent’s employeeshalf an hour. In order to install the cable on the three undecked triangular corners,employees had to crawl or \”coon\” across four-to eight-inch wide steel beams,carrying cable that could weigh 150 pounds. (Testimony of Mr. Graham, Tr. 139-143.)8. Respondent’s employees received a longer exposure to thefall hazard during installation of the guardrails than during the work that made theguardrails necessary. That part of the installation requiring Respondent’s employees to\”coon\” across four- to eight-inch wide steel beams, exposed Respondent’semployees to a more serious fall hazard than pulling 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 theIntelstat workplace. (Stipulation, Tr. 98-99) On the dates of the inspection, May 6-7,1987, there were no monthly inspection records available for the crane. (Testimony of Mr.Epps, Tr. 99-100.)10. Respondent knew that the records were not available on thefirst day of the inspection but was not able to produce the records on the second day.(Testimony of Mr. Epps, Tr. 100; that of Charles Swann, Tr. 170-171.)III. Discussion1926.750(b)(1)(iii) The cited standard reads as follows:Section 1926.750 Flooring requirements\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *(b) Temporary flooring skeleton steel construction in tiered buildings(1)(iii) Floor periphery–safety railing. A safety railing of1\/2-inch wire rope or equal shall be installed, approximately 42 inches high, around theperiphery of all temporary-planked or temporary metal-decked floors of tier buildings andother Multi-floored structures during structural steel assembly.It is not disputed that for approximately 10 minutes each dayRespondent’s employees came within one foot of an unguarded perimeter edge while pullingup welding leads.[[2]] The Secretary alleges that this condition violates 29 C.F.R.1926.750(b)(1)(iii). Respondent contends that the standard does not apply because themetal-decked floor was not fully laid. The Secretary argues that the standard does notrequire that metal decking completely cover the floor before it applies. She relies on TheAshton Company, Inc., 76 OSAHRC 76\/B11, 3 BNA OSHC 1968, 1975-76 CCH OSHD ? 20,351(No. 5111, 1976).Section 29 C.F.R. 1926.750(b)(1)(iii) was designed to preventpersons from falling when working on otherwise unguarded floor perimeters. The Commissionhas interpreted it to apply to temporary floors that were about three-fourths decked. TheAshton Company. See Adams Steel Erection, 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 OSAHRC 14\/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) andsome provisions of ANSI A10.13, Safety Requirements for Steel Erection, point to aninterpretation that the standard applies only when temporary decking is fully laid, isrejected. Respondent failed to establish any persuasive inference of a nexus between thecited standard and the ANSI standard. The cited standard is an \”established Federalstandard\” adopted from rules issued under the Construction Safety Act. See 29 C.F.R.1910.11 and 1910.12. Moreover, the Commission’s interpretation is more consistent with theAct’s essential purpose of assuring safe and healthful working conditions for employees.Although the standard applies to Respondent’s workplace, entry of an abatement orderrequiring the installation of perimeter cable would not provide Respondent’s employeeswith \”appropriate\” relief. 29 U.S.C. ? 659(c). There is no persuasive evidencethat work was being done on the portion of the floor that was completed and was proximateto the edge, except for pulling up the welding leads, which occurred without regard to theprogress in decking. Also, abatement would present Respondent with a \”Catch 22\”dilemma. See U.S. Steel v. OSHRC, 537 F.2d 780, 783, 4 BNA OSHC 1424, 1425-26 (3rdCir. 1976). When installing the perimeter guarding, Respondent’s employees received alonger exposure to the fall hazard than pulling up welding lead had required. See H. S.Holtze Construction v. Marshall, 627 F.2d 149, 151-152, 8 BNA OSHC 1785, 1788 (8thCir. 1980). The employees also were exposed to a greater fall hazard than they ordinarilyencounter, that of falling from a four- to eight-inch wide steel beam.In any future situations that may arise, the Secretary may wishto consider applying a requirement for personal protective equipment in order to affordemployees fall protection.1926.550(b)(2)The cited standard, 29 C.F.R. ? 1926.550(b)(2) reads asfollows: 1926.550 Cranes and derricks\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *(b) Crawler, locomotive and truck cranes \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *(2) All crawler, truck, or locomotive cranes in use shall meet the applicable requirementsfor design, inspection, construction, testing, maintenance and operation as prescribed inthe ANSI B30.5-1968 Safety Code for Crawler, Locomotive and Truck Cranes.Section 5-2.1.5 of ANSI B30.5 provides: 5-2.1.5 Inspection RecordsWritten dated and signed inspection reports and records shallbe made monthly on critical items in use such as brakes, crane hooks, and ropes. Recordsshall be kept where readily available.The evidence establishes that the records were not readilyavailable. The compliance officer requested the records from Respondent’s crane operatorand one of Respondent’s safety representatives on May 6, 1987, the first day of theinspection, but they did not produce them. The compliance officer gave Respondent anopportunity to produce the records on the next day, but they were not made available.Conclusions of Law1. Section 29 C.F.R. 1926.750(b)(1)(iii) applies to temporaryfloors in steel erection that are not fully decked.2. The Secretary of Labor has failed to demonstrate that entryof an abatement order requiring the installation of wire rope around the perimeter of thesecond level at POD L of Respondent’s worksite would be appropriate.3. Citation 1, item 1, which alleged a serious violation of 29C.F.R. and proposed a penalty of $630, is vacated.4. The Secretary has sustained the burden of proving that theRespondent failed 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 ANSI830.5-1968, Safety Code for Crawler, Locomotive and Truck Cranes as adopted by 29 C.F.R.1926.550(b)(2). No penalty for the violation was proposed, and none is assessed.SO ORDEREDPAUL A. TENNEYJudge, OSHRCMAY 31 1988Dated: Washington, D.C.FOOTNOTES:[[1]] Williams withdrew its notice of contest to two otheritems.[[2]] Because exposures to unguarded perimeters that occur whenemployees use steps, ramps or ladders are not the type of exposure for which guarding isgenerally required, see 29 C.F.R. 1926.500(d)(1), the exposures involving the ladder wouldnot require guarding.”