MIDWEST STEEL ERECTION, INC. �

OSHRC Docket No. 76-3880

Occupational Safety and Health Review Commission

June 6, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners. �

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

Pieter van Horne, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge John J. Morris is before the Commission for review pursuant to section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. � � � 651-678 ("the Act"). � At issue is an item of a citation alleging that Respondent, Midwest Steel Erection, Inc., violated section 5(a)(2) of the Act, 29 U.S.C. � � 654(a)(2), by failing to comply with the safety standard at 29 C.F.R. � � 1926.105(a). n2 Judge Morris concluded that Respondent was in compliance with the standard. � We set aside his decision and remand for further proceedings.

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n1 29 U.S.C. � � 661(i).

n2 This standard provides:

� � 1926.105 Safety nets.

(a) Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.

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Respondent was erecting the structural steel framework for a new power generating plant. � At the time of the alleged violation, Respondent's employees were installing temporary floors of metal grating at various levels of the structure. � In the citation item at issue, the Secretary alleged that various employees engaged in installing the temporary floors were not protected against the hazard of falling by safety nets. � The record establishes that certain of Respondent's employees were working directly at the edges of sections of grating that had already been installed, while others were standing on the structural steel framework installing the initial sections of grating at their particular location. � All of the employees allegedly exposed to a fall hazard were thus located at the unprotected perimeter of various surfaces. They worked at distances of 30 to 80 feet above the ground. n3

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n3 Some of Respondent's employees engaged in installing the grating were protected by tied-off safety belts. However, it is undisputed that the employees allegedly exposed to a fall hazard in this item of the citation were not tied off.

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Judge Morris noted that section 1926.105(a) permits certain fall protection devices to be used as an alternative to safety nets. � He concluded that Respondent was in compliance with the standard because the metal gratings on which the employees were standing qualified as an acceptable alternative device. n4 The judge based his conclusion on the following court and Commission decisions holding that section 1926.105(a) is satisfied so long as one of the devices mentioned therein is used regardless of the degree of fall protection afforded to the employees: Brennan v. OSHRC (Ron M. Fiegen, Inc.), 513 F.2d 713 (8th Cir. 1975): Brennan v. OSHRC (Pearl Steel Erection Co.), 488 F.2d 337 (5th Cir. 1973); Carr Erectors, Inc., 76 OSAHRC 60/F12, 4 BNA OSHC 1269, 1976-77 CCH OSHD P20,773 (No. 7909, 1976); Robert W. Setterlin & Sons Co., 76 OSAHRC 53/D8, 4 BNA OSHC 1214, 1975-76 CCH OSHD P20,682 (No. 7377, 1976).

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n4 Judge Morris did not explicitly address whether this rationale also applied to those employees who were standing on the structural steel framework rather than the metal gratings.

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Since the judge issued his decision and the parties submitted their briefs on review, the Commission has rejected the interpretation of section 1926.105(a) advanced in the cases on which the judge relied. � We have held that section 1926.105(a) is not satisfied simply by the use of one of the devices listed therein without regard to whether such use provides adequate fall protection to employees. � Diamond Roofing Co., 80 OSAHRC    , 8 BNA OSHC 1080, 1980 CCH OSHD P24,274 (No. 76-3653, Feb. 29, 1980); S & H Riggers and Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979), appeal filed, No. 79-2358 (5th Cir. June 7, 1979); accord, Marshall v. Southwestern Industrial Contractors and Riggers, Inc., 576 F.2d 42 (5th Cir. 1978). In particular, we have held that an unguarded temporary floor cannot be considered to be compliance with the standard if employees are subject to a fall hazard when working at the perimeter of such a floor. Diamond Roofing Co., supra. Because this case is factually similar to Diamond Roofing, the judge's decision [*5] � must be set aside and reconsidered under current Commission precedent. � The Commission will remand the case to an administrative law judge for this purpose.

Accordingly, the case is remanded to the chief judge for assignment to an administrative law judge to issue a decision and order disposing of the citation item alleging noncompliance with 29 C.F.R. � � 1926.105(a). n5 SO ORDERED.

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n5 Judge Morris is presently an administrative law judge for the Mine Safety and Health Review Commission.

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