Williams Enterprises, Inc.

Plain-English summary

Williams Enterprises was the steel-erection contractor for a multistory building in Virginia. OSHA cited perimeter fall protection, an improperly positioned and unsecured ladder, an unbarricaded crane swing radius, missing perimeter railings, and gaps in temporary flooring. The judge vacated the perimeter-net item because the standards and OSHA's enforcement practices did not give steel erectors fair notice in 1980 that exterior nets were required. He affirmed the remaining four items and assessed $2,300 in penalties. On review, the Commission declined to decide the old fair-notice issue because later court decisions and OSHA policy had changed its practical setting and the project was complete. The Commission vacated the direction for review, leaving the judge's mixed disposition as the final order.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.105(a); 29 C.F.R. § 1926.105(c)(1); 29 C.F.R. § 1926.450(a)(9); 29 C.F.R. § 1926.450(a)(10); 29 C.F.R. § 1926.550(a)(9); 29 C.F.R. § 1926.750(b)(1)(iii); 29 C.F.R. § 1926.750(b)(2)(i)
• Outcome: Perimeter-net item vacated; four other citation items affirmed and $2,300 assessed.
• Key point: The Commission left the judge's mixed ruling in place because later legal and enforcement developments made review of the 1980 fair-notice dispute no longer useful.

Full text (OSHRC public release)

Docket No. 81-0381

SECRETARY OF LABOR,

Complainant,

v.

WILLIAMS ENTERPRISES, INC.,

Respondent.

OSHRC Docket No. 81-0381

ORDER VACATING DIRECTION FOR REVIEW

Before: BUCKLEY, Chairman; WALL, Commissioner.

BY THE COMMISSION:

On January 20, 1982, Administrative Law Judge George O. Taylor
vacated one item of a citation that alleged that Williams Enterprises failed to provide
adequate fall protection for its employees engaged in structural steel erection on a
project in Vienna, Virginia. The judge also affirmed other items that alleged violations
of other construction industry standards.

The central issue on review is whether, at the time of the
inspection in 1980, Williams had fair notice that it was obligated to provide perimeter
nets under the general construction industry standard at 29 C.F.R. � 1926.105. Williams
contends that it lacked such notice because the construction standards specifically
applicable to steel erection under Subpart R of Part 1926 do not require such protection,
and because the Secretary generally was not issuing citations to steel erection employers
for lack of perimeter nets.

The Fourth Circuit, where this case arose, has held that Subpart R does not preempt the
general standard requiring personal protective equipment to guard against hazards which
are not covered by that subpart. Bristol Steel & Iron Works, Inc. v. OSHRC, 601 F.2d
717 (4th Cir. 1979). Bristol did not, however, address whether the fall protection
requirements in the steel erection standards preempt any obligation of steel erectors to
provide perimeter nets under section 1926.105. After the issuance of the citation here,
there have been several decisions in other circuits that have elaborated upon the
reasoning in Bristol and specifically concluded that steel erection standards do not
preempt any requirement in section 1926.105 to use perimeter nets in circumstances similar
to those here. [[1]] The Secretary has also issued an instruction explicitly stating that
during structural steel erection, perimeter fall protection, including perimeter nets, is
required under section 1926.105. The document directs OSHA field personnel to issue
citations accordingly. OSHA Instruction STD 3-3.1 (July 18, 1983), reprinted in 1 BNA OSH
Rep. Ref. File � 21:9118 and in 1982-83 CCH Employ. S. & H. Guide New Developments �
12,855.

In view of these developments in the case law and in the
Secretary's enforcement policy, the issue of whether a steel erection employer in the
Fourth Circuit has fair notice of an obligation to provide perimeter nets for fall
protection is in a completely different posture row than it was in 1980. A decision on
whether Williams had notice of such a requirement when this case arose would not establish
whether Williams, or other steel erection employers, have notice of a need for perimeter
nets under the current state of the law. Since Williams' construction project has been
completed, abatement of the alleged perimeter fall hazard and other cited conditions is
not in controversy. Under these circumstances, we conclude that review is no longer
provident. See Paschen /Morrison-Knudsen/ Kenny, a Joint Venture, 86 OSAHRC 12 BNA OSHC
1827, 1986 CCH OSHD � 27,571 (No. 80-6448, 1986); P & Z Co., 82 OSAHRC 8/C8, 10 BNA
OSHC 1427, 1982 CCH OSHD � 25,937 (No. 76-431, 1982); A. C. & S., Inc., 76 OSAHRC
93/A2, 4 BNA OSHC 1529, 1976-77 CCH OSHD � 20,955 (No. 2229, 1976).

Accordingly, the direction for review is vacated; the judge's
decision is the final order of the Commission.

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

DATED: APR 16, 1987

SECRETARY OF LABOR,

Complainant,

v.

WILLIAMS ENTERPRISES, INC.,

Respondent.

OSHRC Docket No. 81-0381

APPEARANCES

Michael S. Berger, Esq.,

for the complainant.

James Brent Clarke, Jr., Esq. and

David R. Clarke, Esq.,

for the respondent.

DECISION AND ORDER

Taylor, Judge:

Statement of the Case

The respondent was the steel erection contractor for a three-story building with a
penthouse in Vienna, Virginia. (Tr. 167, 366; Exhs. C-20, C-21.) Following an inspection
of that worksite on December 2, 1980, the respondent was issued a citation for serious
violations that alleges that the respondent violated seven occupational safety standards.

The respondent duly contested all of the charges. The
respondent admitted in its answer to the complaint that jurisdiction over this case is
vested in the Commission. The respondent's counsel also confirmed at the trial that there
were no jurisdictional problems in the case. (Tr. 7.)

Item 1

Item 1 alleges that the respondent violated paragraphs (a) and
(c)(1) of 29 � 1926.105 in the following particulars:

(a) Penthouse, North Side - Employees were connecting steel at
edge of structure and not protected from falling approximately sixty-one feet to the
ground ....

(b) Third Floor, East Side - Employees were connecting steel at edge of structure and not
protected from falling approximately forty-five feet to the ground ....

A penalty of $900 is proposed for this item.

The complainant's inspector observed four of the complainant's
employees connecting steel on the north side of the building from positions atop the
penthouse. Only two of the connectors were working at the edge of the structure. (Tr.
175-176, 288; Exhs. C-22 through C-25.) The inspector also observed two of the
complainant's employees connecting steel on the edge of the east side of the building at
the roof level. (Tr. 186-194, 288; Exhs. C-26 through C-28.) A temporary floor located on
the third floor beneath the connectors was within two stories and 30 feet of the
connectors at both levels. [[1/]] (Tr. 257; Exhs. C-22 through C-28.) However, the
connectors were not otherwise protected from falls. (Tr. 186, 194.) At the exterior of the
building, the fall distance to the ground below was 61 feet from the top of the penthouse
and 45 feet from the roof. (Tr. 182, 184- 185, 194, 409.)

The section of the standards here in issue, 29 C.F.R. � 1926.105, is entitled
"Safety Nets" and is located in Subpart E of the complainant's construction
standards. That subpart is entitled "Personal Protective and Life Saving
Equipment." Paragraph (a) of 29 C.F.R. � 1926.105 provides that:

Safety nets shall be provided when workplaces fire 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.

Paragraph (c)(1) of � 1926.105 provides that:

Nets shall extend 8 feet beyond the edge of the work surface
where employees are exposed and shall be installed as close under the work surface as
practical but in no case more than 25 feet below such work surface. Nets shall be hung
with sufficient clearance to prevent user's contact with the surfaces or structures below.
Such clearances shall be determined by impact load testing.

At the outset of the trial, the complainant's counsel explained
that the gravamen of the charge was the complainant's failure to provide safety nets on
the building's exterior. (Tr. 22-23.) The complainant was not going "to show ... that
safety belts or anything else besides nets should have been used.[[2/]] (Tr. 23.) The
complainant's position is that the respondent's failure to provide exterior nets
constitutes a violation of � 1926.105(a) and that � 1926.105(c) tells employers how the
nets are supposed to be extended beyond a building's perimeter. [[3/]] (Tr. 22-23.)

The paramount thing that rings true in the record in this ease
is that there is a wide divergence of opinion among the complainant's key enforcement
personnel as to whether the standards in issue require steel erectors to provide exterior
safety nets. This is succinctly illustrated by following statements in a September 26,
1980, memorandum from the Associate Solicitor for Occupational Safety and Health to the
Deputy Assistant Secretary for Occupational Safety and Health, on the need for clarifying
policy as to fall protection in structural steel erection:

The confusion in judicial opinions as to a steel erector's
obligations is paralleled by a lack of consistency in OSHA enforcement of its regulations.
Many compliance officers require no more than compliance with subpart R (decking every two
floors and eventual erection of a parimeter [sic] cable).

The greatest divergence in enforcement, however, lies in the enforcement of 29 C.F.R.
1926.105(e)(1), which mandates the use of perimeter nets for employees exposed to a fall
of greater than 25 feet. A survey of a number of OSHA area and regional offices indicates
that this requirement is now being enforced only by the Hartford, Connecticut Area Office,
and recently by some compliance officers in the Washington, D.C. Area Office. Throughout
the rest of the country ironworkers walk the perimeter beams without any fall protection.
(Exh. R-3.)

As a result of the above memorandum, a meeting was held on
October 16, and 17, 1980, at the direction of Stephen D. Cooper, then a special assistant
to the Assistant Secretary for Occupational Safety and Health, to "determine the
needed clarification." (Tr. 550-551, 554, 558, 561-562; Exh. R-3.) The meeting was
attended by officials from the Solicitor of Labor's office, the Occupational Safety and
Health Administration (OSHA), and the International Association of lronworkers. (Tr. 479,
555-556; Exh. R-4.) Among other things, the applicability of 29 C.F.R. � 1926.105(a) and
(c)(1) to steel connectors and the content of the steel erection standards in 29 C.F.R. �
1926.750 were considered at the meeting. (Tr. 481, 559-560.) Cooper testified that the
meeting did not result in any consensus as to what � 1926.105(a) and (c)(1) meant or on
whether steel connectors should or could be protected by exterior safety nets. (Tr.
562-563, 567, 570-572.) Arthur J. Amchan, an attorney in Solicitor of Labor's office and
one of the attendees at the meeting, testified that there was general agreement at the
meeting that steel connectors "can and should be protected by perimeter nets or some
other means, if some other means exists, at least when they are on the second floor or
above." (Tr. 473, 483.) Amchan did not testify as to whether there was a consensus
regarding the meaning of 29 C.F.R. � 1926.105(a) and (c)(1). I consider the testimony of
Cooper to he more credible than that of Amchan because Amchan's memory was quite hazy as
to what transpired at the meeting. (Tr. 481, 484-485, 488.)

After the meeting, Amchan prepared a "draft program
directive" that provided the following in regard to protecting employees engaged in
the initial connection of steel columns and beams:

If an employer has not protected such employees, or employees
performing other operations, above the second floor (above 25 feet) from perimeter falls
with safety belts or other protective devices, the employer must protect such employees by
erecting safety nets at the building perimeter, at a level below such employees.

(Tr. 502-505; Exh. R-7.) However, at the time of the trial of
this case, Amchan's draft proposal had not been officially adopted by OSHA. (Tr. 507,
579.)

Pursuant to Cooper's request in about March 1980, the National Institute for
Occupational Safety and Health contracted with the Western Institute for Research and
Education, Incorporated, for a "Pilot Program to Determine the Effectiveness of OSHA
Construction Standards at the Point of Operation." (Tr. 580; Exh. R-8.) Among other
things, the contract requires Western to verify the applicability of 29 C.F.R. � 1926.105
to point of erection operations.  (Exh. R- 8.) The last Cooper heard, Western
expected to complete their study by October 1991. (Tr. 581.)

Most steel erectors do not use exterior nets. (Tr. 117, 163-164, 374, 425, 486.) However,
a few steel erectors in Washington, D.C., and Connecticut have used perimeter safety nets
to protect steel workers. (Tr. 73, 112.) The evidence at the trial indicates that OSHA's
enforcement personnel only in Texas, Connecticut and Washington, D.C., enforce a
requirement for exterior safety nets under 29 C.F.R. � 1926.105 in steel erection. [[4/]]
(Tr. 131-132, 490-491, 529-534, 575-577; Exh. R-3.)

Cooper testified that the meaning of 29 C.F.R. � 1926.105(a)
and (c)(1) "is ambiguous and not clear." (Tr. 561.) He construes 29 C.F.R. �
1926.750(b)(l)(ii) [[5/]] as meaning that safety nets are not required if a steel erector
complies with flooring requirements in 29 C.F.R. � 1926.750(b)(2)(i). [[6/]] (Tr. 594.)

Charles T. Greene, a safety consultant in steel construction
(Tr. 597). agreed with Cooper. Mr. Greene has a long and distinguished career in
industrial safety. (Tr. 598- 602.) This includes serving as the Director of Industrial
Safety in the District of Columbia from 1963 until 1980. (Tr. 598-599.) He initially
joined that office in 1957, first serving as an inspector and later as a supervisor of the
field staff. (Tr. 600.) From 1973 to 1975, his office enforced OSHA safety standards under
29 U.S.C. � 656(c)(l). (Tr. 599, 619.)

Greene testified that 29 C.F.R. � 1926.105(a) and (c)(l) did
not apply to steel connection if temporary floors are provided at the proper distance
below the connectors. (Tr. 603, 606, 627.) He pointed out that the steel erection
standards in Subpart R of the construction standards make no reference to � 1926.105(a)
or (c) and requires safety nets only if its "impractical" to put in a floor.
[[7/]] (Tr. 606-607.)

Kenneth Higdon, the assistant chief inspector of Maryland's
Industrial Safety Division, agreed with Cooper and Greene. Higdon's agency has enforced
the complainant's construction standards in Maryland since 1973. (Tr. 462.) Higdon
testified that his agency cited steel erectors for a lack of exterior safety nets under 29
C.F.R. � 1926.105 where they had installed interior nets under 29 C.F.R. � 1926.750, but
that it did not do so when temporary floors had been installed instead of interior nets.
(Tr. 465-470.)

In two cases where the evidence is substantially the same as in
the instant case, Review Commission Judge Joseph L. Chalk has held that the complainant's
construction standards do not afford steel erectors with fair warning that they are
required to install exterior safety nets. [[8/]] I agree with Judge Chalk's conclusion and
his rationale therefor.

Unquestionably, steel erection is a hazardous business. (Tr.
383-385.) However, as the Fifth Circuit has recently indicated, "due process requires
not only that employers be aware of it hazard but also that they have notice of what is
required of them under the regulations in response to that hazard." [[9/]] In my
opinion, no reasonable person could conclude that the complainant's standards provide
steel erectors with fair notice that they must use exterior safety nets.

In recognition that steel erection is a unique industry, the complainant has
promulgated specific standards in Subpart R of its construction standards that are
applicable only to steel erection. Such specific standards "'prevail over any
different general standard which might otherwise be applicable,' including ... the general
fall protection standard at 29 C.F.R. � 1926.105(a)."[10/] Under Subpart R a steel
erector is required to maintain a floor "within two stories or 30 feet, whichever is
less, below and directly under that portion of each tier of beams on which any work is
being performed."[[11/]] If he does not and the potential fall distance exceeds two
stories or 25 feet, then Subpart R requires him to install safety nets.[[12/]] In 29
C.F.R. � 1926.105, paragraph (c) provides notice that exterior safety nets are generally
required. However, the specific steel erection standards make no mention of exterior
safety nets and do not even cite steel erectors to � 1926.105. The only logical
conclusion that can be drawn from this is that a steel erector is not required to install
perimeter nets even when interior nets are used under 29 C.F.R. � 1926.750(b)(1)(ii),
much less when he uses flooring in accordance with 29 C.F.R. � 1926.750(b)(2)(i).[[13/]]

The complainant knows that it is not the practice of the
structural steel erection industry to use exterior nets and that there is a wide
divergence of opinion among his key enforcement personnel as to whether his construction
standards require steel erectors to use exterior safety nets. Yet, the complainant has not
amended Subpart R or issued any general notice to steel erectors that he interprets his
standards to require them to use exterior safety nets.

The complainant argues in his post-trial brief that the respondent had actual knowledge
that exterior nets were required because it "was cited for a violation of 1926.105
a[t] the Dirksen Office Building in 1978" and because two other steel erectors on
that job, who subsequently settled their cases, were cited for exterior safety net
violations. (Tr. 113-116.) It is unclear from the testimony at this trial [[14/]] (Tr.
115-116) and the judge's decision in the respondent's prior case [[14/]] that the
complainant was proceeding in that case on a theory that exterior safety nets were
required under � 1926.105. The charge there related to the protection of deckers and was
vacated by the judge. At best, the citations issued to steel erectors constructing the
Dirksen Office Building merely shows that the respondent was "aware that the
Secretary would like to require" exterior safety nets and falls far short of
establishing that the respondent had actual knowledge that they were required under the
standards. [[15/]]

Item 2

Item 2 contains two subitems. Subitem 2a alleges a violation of
29 C.F.R. � 1926.450(a)(9) [[16/]] in that a wooden ladder was resting about one foot
below a landing on the north side or the building. Subitem 2b alleges that the ladder was
20 feet long and was not secured to prevent displacement as required by 29 C.F.R. �
1926.450(a)(10). [[17/]] The proposed penalty for item 2 is $400.

The evidence conclusively establishes that a ladder conforming to the descriptions
contained in the two charges was positioned in an upright position on the north side of
the building, with the top of the ladder resting about one foot below the landing to the
second floor. (Tr. 204, 212, 356; Exhs. C-29, C-30.) The ladder was equipped with safety
shoes,[[18/]] but it was neither tied nor blocked. (Tr. 208, 356.) The fall distance from
the second floor to the ground below was about 16 feet. (Tr. 184.)

The ladder was put in place by Fred B. Lamb, one of the
respondent's welders. (Tr. 352, 356, 426.) Lamb testified that he did not use the ladder
to gain access to the second floor. (Tr. 356, 359.) According to Lamb he used the ladder
only for welding and to gain access to a welding chair positioned beside the ladder. (Tr.
353, 355-356, 359, 364.) Lamb did not see anyone using the ladder to get to the second
floor. (Tr. 360, 363.) Arthur Ward, the respondent's superintendent, testified that he did
not see any of the respondent's employees use the ladder to gain access to the second
floor. (Tr. 407, 426, 429.)

The complainant's inspector testified that she saw Lamb use the
ladder once to gain access to the second floor. (Tr. 207, 301, 304-305.) Although she did
not see any other employee of the respondent on the ladder, she did see employees of other
contractors use the ladder to gain access to the second floor. (Tr. 207, 210-212, 309.)

Both Lamb and Ward could not testify that employees of other contractors did not use the
ladder to gain access to the second floor because they were not always present at the
ladder's location when it was in the upright position. (Tr. 363, 429.) On the basis of the
inspector's unrebutted testimony, I find that employees of other contractors on the
worksite used the ladder to gain access to the second floor.[[19/]]

The purpose of the requirement in 29 C.F.R. � 1926.450(a)(9)
for side rails to extend at least 36 inches above a landing is to provide a secure grip
for an employee when mounting or dismounting a ladder on a landing. Accordingly, if a
ladder is used only for fall protection, the standard does riot apply.[[20/]] I know of no
good reason for similarly limiting the applicability of 29 C.F.R. � 1926.450(a)(10) on
the basis of ladder usage and have found no authority for doing so. [[21/]]

Since both violative conditions were in plain view, the
respondent would have known of them if it had exercised reasonable diligence. Therefore, I
find that the respondent possessed constructive knowledge of the violations. The
violations are serious because there is a substantial probability that fractures or
lacerations could result if an employee fell from the ladder. (Tr. 213, 439.)

Item 3

Item 3 alleges that the respondent violated 29 C.F.R. �
1926.550(a)(9) in that the swing radius of a 90-ton BLH Lima Truck Crane, Model 900-T,
located on the north side of the building, was not barricaded as required by 29 C.F.R. �
1926.550(a)(9). [[22/]] A penalty of $400 is proposed for this item.

It is undisputed that the cited crane was not barricaded. (Tr.
214-215, 222; Exh. C-31.) The crane, which was the property of the respondent, was being
used to lift steel to "the top floors." (Tr. 217-218.) While the crane was being
used for this purpose, employees passed within "very close proximity" to both
sides of the crane. [[23/]] (Tr. 214, 216-217, 312.) At least three of these employees
were employed by the respondent. (Tr. 216-217.) Although there is no evidence that any
employee came close enough to the crane to be struck by the rotating superstructure or had
reason to come that close to the crane (Tr. 313-214), it is clear that the employees had
access to the danger area. [[24/]]

The violative condition was in plain view. The respondent would
have known of that condition if it had exercised reasonable diligence. Thus, the
respondent possessed constructive knowledge of the violative condition. The violation is
serious, there being a substantial probability that an employee would be killed or receive
serious injuries if crushed against the crane by the rotating superstructure. (Tr. 313,
439-440.)

Item 4

Item 4 alleges that the respondent failed to comply with the
safety railing requirement of 29 C.F.R. � 1926.750(b)(1)(iii)[[25/]] on the north and
east sides of the second and third floors in that:

Employees were carrying materials, placing metal decking and
walking along edges of floors, exposed to a fall of approximately 16 to 31 feet ....

The proposed penalty for this item is $700

No wire rope or equivalent protection was installed where the
respondent's employees were working on the north side of the second and third floors and
on the east side of those floors. (Tr. 229.)

Lamb, the respondent's welder, walked along the north side of
the second floor at the edge of the unguarded perimeter. (Tr. 230, 233; Exh. C-32, C-33.)
  Complainant's Exhibit 34 also shows that another one of the respondent's employees,
either Howard Beam or Jeffrey Coleman, was walking along the east side of the second
floor.[[26/]] (Tr. 229-230, 239, 241; Exh. C-34.) He was about 2 feet from the unguarded
perimeter of the building. (Tr. 238--239.) While carrying decking materials, Beam and
Coleman were also within about 2 feet of the unprotected perimeter of the second floor on
the north side of the building. (Tr. 236.) In addition, the unrebutted testimony of the
complainant's inspector indicates that she saw employees of the respondent performing
various functions at the edge of the unprotected perimeter on both the second and third
floors. (Tr. 321.) Accordingly, I find that the respondent's employees were actually
exposed to the violative condition as alleged.

The second and third floors were not completely decked. Five
bays on the second floor and four bays on the third floor were not decked with temporary
flooring. (Tr. 325-326.) On both floors, there were also several openings for welding that
were approximately 4 feet square and openings for an elevator shaft that were not decked.
(Tr. 243--244, 323.) However, the laying of temporary metal-decking had been completed as
far as the respondent planned to go in the areas where the respondent's employees were
working near the perimeters of the two floors. (Tr. 239, 320, 323-324, 327.)

The normal procedure in steel erection is to completely deck a
floor before starting another floor. (Tr. 321-322.) This was also the respondent's normal
procedure. (Tr. 421.) On this jobsite, however, it was necessary to stagger the decking
because an insufficient amount of decking was on hand. (Tr. 242, 419-421.) Therefore, the
respondent moved the decking from one location to another on the floor in order to protect
the connectors working above the floor as required by 29 C.F.R. � 1926.750(b)(2)(i)
[[27/]] (Tr. 242, 327-328, 330, 420-421)

The respondent argues. that 29 C.F.R. � 1926.750(b)(l)(iii)
does not require the installation (if a safety railing until a floor is completely decked.
There is some testimony that tends to support the respondent's position. (Tr. 152,
319-320, 613-614.) There is also some testimony to the contrary. (Tr. 320-324, 327-330,
437.)

Section 1926.750(b)(l)(iii) does not specify how much temporary
flooring must be in place before the safety railing must be installed. I reject the
respondent's argument and conclude that the respondent violated the standard by not
installing safety railings on the north and east sides of the two floors.

Government regulations and standards must be interpreted in a reasonable manner.[[28/]]
Pointing out that the purpose of the standard is to protect employees from falls at the
perimeter of steel buildings, the complainant contends that � 1926.750(b)(1)(iii)
requires the installation of safety railings "at the latest after deck is laid around
the periphery."[[29]] In my opinion, the complainant's interpretation is for more
reasonable than that of the respondent,[[30/]] particularly when viewed in light of the
Occupational Safety and Health Act's purpose of assuring employee safety so far as
possible. [[31/]]  Moreover, Ward conceded that he usually installed safety railings
while the temporary flooring was being put down. (Tr. 415-416.) Of course, there would
probably be no violation of the standard if employees did not work near an unguarded
perimeter and were not likely to be near it In the performance of job-related
activities,[[32/]] but that is not the case here.

Since this violative condition was also in plain view, the
respondent would have known of that condition if it had exercised reasonable diligence.
Therefore, the respondent possessed constructive knowledge of the violative condition.

The fall distances from the second and third floors were 16 and
a feet, respectively. (Tr. 184, 235.) If an employee did not suffer death from falling
those distances, there is clearly a substantial probability that he would incur serious
physical harm in the form of fractures or lacerations. (Tr. 213.)

Item 5

Item 5 alleges that the respondent failed to maintain the
flooring required by 29 C.F.R. � 1926.750(b)(2)(i)[[33/]] in the following particulars:

North Side of Building, Second and Third Floors - Elevator
shaft, 8 feet by 10 feet and 4 foot openings in metal decking. Employees walking and
working above openings and exposed to a fall of approximately sixty-one feet . .

A penalty of $800 is proposed for this item.

Three of the respondent's employees, while connecting steel
atop the penthouse on the north side of the building, were working above at least two
series of openings in the temporary floors on the second and third floors through which
they could have fallen 61 feet to the first floor. (Tr. 184, 246-251, 334, 341- 342; Exhs.
C-35 through C-37.) The openings were "approximately three to four-foot" in
size. (Tr. 249.) An elevator shaft was located on the third floor near the northeast
corner of the building. (Tr. 252-256; Exhs. C-38, C-39.) Another shaft was located
directly below it on the second floor. (Tr. 254-255.) The dimensions of these openings
were about 8 by 10 feet. (Tr. 253.) At the roof level, two of the respondent's connectors
walked on beams that were directly above the elevator shaft openings. (Tr. 253-254, 338.)
The fall distance from the roof through the openings to the first floor was 45 feet. (Tr.
184, 255.) Therefore, the evidence[[34/]] establishes that the respondent failed to
maintain "a tightly planked and substantial floor ... within two stories or 30 feet
... below and directly under" tiers of beams on which its employees were working as
required by 29 C.F.R. � 1926.750(b)(2)(i).

The violative conditions again begin in plain view, the
respondent would have known of them if it had exercised reasonable diligence. Accordingly,
the respondent's constructive knowledge of the violative conditions is established.

Because of the absence of tightly planked and substantial floors, the respondent's
employees were actually exposed to falls varying from 45 to 61 feet. Obviously, there is a
substantial probability that a fall of such a distance could result in death or serious
physical harm. (Tr. 213, 254-255.)

Penalties

The respondent has about 50 full-time regular employees, but it
employs up to as many as 400 employees at times. (Tr. 386-387.) The respondent had about 6
to 12 employees at the worksite involved in this case. (Tr. 372.) There was no proof that
any prior citations issued to the respondent had become final orders of the Commission,
which is required to establish a history of prior violations. [[35/]] (Tr. 199-201.)
Ward's failure to cooperate with the complainant's inspector during the inspection
reflects unfavorably on the respondent. (Tr. 172, 176, 345-346.) However, the evidence
tends to indicate that the respondent does not have an unusually excessive injury rate for
its type of work. (Tr. 379- 382, 394-401.) Since October 1980, the respondent has been
striving to improve its safety program through a new safety director. (Tr. 393, 431-433.)
In my opinion, the proposed penalties for items 2 through 5 are appropriate, particularly
in view of the gravity of the violations.

Conclusions of Law

1. The Commission has jurisdiction over the case.

2. The respondent did not violate 29 U.S.C. � 654(a)(2) by
   failing to comply with 29 C.F.R. � 1926.105(a) or (c)(1).

3. The respondent violated 29 U.S.C. � 654(a)(2) by failing to
   comply with 29 C.F.R. �� 1926.450(a)(9), 1926.450(a)(10), 1926.550(a)(9),
   1926.750(b)(l)(iii), and 1926.750(b)(2)(i).

4. Considering the criteria contained in 29 U.S.C. � 666(i) in conjunction with the
   entire record, the penalties proposed for items 2 through 5 are appropriate.

Order

Item 1 of Citation Number 1 is vacated. Items 2 through 5 of
Citation Number 1 are affirmed. A total penalty of $2,300 is assessed.

GEORGE O. TAYLOR, Jr.

Judge, OSHRC

Dated: January 20, 1982

Hyattsville, Maryland

FOOTNOTES:

[[1]] See, e.g., Brock v. L.R. Willson & Sons, Inc., 773
F.2d 1377 (D.C. Cir. 1985); Donovan v. Adams Steel Erection Inc., 766 F2d 804 (3d Cir.
1985); Donovan v. Daniel Marr & Son Co., 763 F.2d 477 (1st Cir. 1985).

[[1/]] The steel erection standard fit 29 C.F.R. �
1926.750(b)(2)(i) requires that:

Where skeleton steel erection is being done, a tightly planked and substantial floor shall
be maintained within two stories or 30 feet, whichever is less, below and directly under
that portion of each tier of beams on which any work is being performed, except when
gathering and stacking temporary floor planks on a lower floor, in preparation for
transferring such planks for use on an upper floor. Where such a floor is not practicable,
paragraph (b)(l)(ii) of this section applies.

[[2/]] Apparently the complainant did not contend that safety
belts were required because the use of safety belts by steel connectors, rather then
enhancing their safety, usually exposes them to a more hazardous situation. (Tr. 104-105,
393- 384, 491, 493-4144, 570; Exh. R-1.)

[[3/]] It is unnecessary to examine the validity of this
contention. Since the citation alleges a violation of the two standards in the
conjunctive, I will consider whether the standards collectively required the respondent to
provide exterior safety nets. Obviously, if they do not collectively impose such a
requirement, neither one of them can do so individually.

[[4/]] In his post-trial brief, the complainant cites a number
of cases for the proposition that OSHA has a national policy of enforcing 29 C.F.R. �
1926.105 with respect to steel erection. The cases cited by the complainant clearly do not
establish a national policy of requiring the use of exterior safety nets to protect
connectors where an employer has complied with 29 C.F.R. � 1926.750(b)(2)(i), supra at
footnote 1, by installing temporary flooring within two stories or 30 feet below the
connectors. At best, the cases show that the complainant's enforcement is slightly broader
than the evidence at the trial reflected. Moreover, none of the cases address whether 29
C.F.R. � 1926.105 provides fair notice that exterior safety nets are required during
steel erection, which is the critical issue in this case.

[[5/]] This standard, which is contained in Subpart R of the
complainant's construction standards, provides that:

On buildings or structures not adaptable to temporary floors, and where scaffolds are not
used, safety nets shall be installed and maintained whenever the potential fall distance
exceeds two stories or 25 feet. The nets shall be hung with sufficient clearance to
prevent contacts with the surface of structures below. (Emphasis added.)

Subpart R is entitled "Steel Erection."

[[6/]] See footnote 1, supra.

[[7/]] See footnote 5, supra.

[[8/]] L.R. Willson & Sons, Inc., OSHRC Docket No. 80-5866
(November 16, 1981)(on review); Skyline Crane Service, Inc., OSHRC Docket No. 80-1622 (May
26, 1981) (on review).

[[9/]] S & H Riggers & Erectors, Inc. v. OSHRC, No.
79-2358 (5th Cir., October 26, 1981).

[[10/]] Vicon Corp., OSHRC Docket No. 78-2923 (October
30,1981).

[[11/]] Sec footnote 1, supra.

[[12/]] See footnote 5, supra.

[[13/]] See Bethlehem Steel Corp., 81 OSAHRC 15/A2 (No.
76-3444,1981).

[[14/]] Williams Enterprises, Inc., OSHRC Docket No. 79-843
(February 14, 1980) (on review).

[[15/]] See S & H Riggers & Erectors, Inc., supra.

[[16/]] This ladder standard provides that:

The side rails shall extend not less than 36 inches above the landing. When this is not
practical, grab rails, which provide a secure grip for an employee moving to or from the
point of access, shall be installed.

[[17/]] This standard provides that:

Portable ladders in use shall be tied, blocked, or otherwise secured to prevent their
being displaced.

[[18/]] Safety shoes are component parts on ladders, with one
safety shoe being attached to each of the two feet on a ladder. (Tr. 634.) A safety shoe
is "a metal bracket . . . with a rubber pad underneath it " It provides "a
better foundation" and reduces the possibility of slipping. (Tr. 362.)

[[19/]] It is unnecessary for me to resolve the conflicting
evidence as to whether Lamb used the ladder to gain access to the second floor. Since the
respondent created the violative condition and had control over it, the respondent is
responsible for the violation even though only employees of other contractors used ladders
to gain access to the second floor. Anning-Johnson Co., 76 OSAHRC 54/A2 (No. 3694,1976).

[[20/]] Turner Welding & Erection Co., 80 OSAHRC 62/A2 (No.
16235,1980).

[[21/]] Greene testified that a ladder with safety shoes can be
"otherwise secured" within the meaning of � 1926.450(a)(10). (Tr. 617-618.)
However, he admitted that safety shoes, did not provide adequate protection for ladders
used to gain access to a floor. (Tr. 615-616, 618, 631-633.) In my opinion,
"otherwise secured" does not encompass a component part of a ladder and means
some external measure. Nevertheless, my finding that the ladder was to gain access to the
second floor makes the question moot.

[[22/]] This standard provides that:

Accessible areas within the swing radius of the rear of the rotating superstructure of the
crane, either permanently or temporarily mounted, shall be barricaded in such a manner as
to prevent an employee from being struck or crushed by the crane.

[[23/]] The testimony indicates that the employees were moving
towards a trailer owned by the respondent. (Tr. 214-215, 217, 312, 422.) However, their
reason for passing the crane is irrelevant, the dispositive question being whether the
employees had access to the swing radius of the rotating superstructure of the crane.

[[24/]] Access to the zone of danger is sufficient to establish
the requisite employee exposure. Gilles & Cotting, Inc. 76 OSAHRC 30/D9 (No. 504,
1976); Jensen Construction Co., 717 OSAHRC 201/C6 (No. 14300, 1977).

[[25/]] This standard provides as follows:

Floor periphery-safety railing. A safety railing of 1/2-inch wire rope or equal shall be
installed, approximately 42 inches high, around the periphery of all temporary-planked or
temporary metal-decked floors of tier buildings and other multifloored structures during
structural steel assembly.

[[26/]] The complainant's inspector testified that this
employee was on the third floor. (Tr. 238.) However, I conclude on the basis of the
photographic evidence he was on the second floor. Complainant's Exhibit 34 shows temporary
flooring on the floor on which the employee was walking and also on the floor above him.
Since there was no temporary flooring on the roof (Exhs. C-22 through C-28) it is clear
that the employee was on the second floor.

[[27/]] See footnote 1, supra.

[[28/]] B & B Insulation, Inc v. OSHRC, 583 F.2d 1364 (5th
Cir. 1978); Builders Steel Co. v. Marshall, 575 F.2d 663 (8th Cir. 1978).

[[29/]] The complainant also asserts that: "Preferably, it
could be placed before the deck is laid." It is unnecessary to address that
contention in this case in view of the factual situation.

[[30/]] A contrary conclusion in this case would allow steel
erectors to intentionally avoid compliance with � 1926.750(b)(1)(iii) simply by not
installing complete temporary decking on a floor.

[[31/]] 29 U.S.C. � 651(b).

[[32/]] Gilles & Cotting, Inc., supra.

[[33/]] For the contents of this standard, see footnote 1,
supra.

[[34/]] There is also evidence that employees other than
connectors walked on beams over the openings (Tr. 333--334, 341-342: Exh. C-26.)

[[35/]] General Steel Fabricators, Inc., 77 OSAHRC 173/F2 (No.
76-710,1977).