SECRETARY OF LABOR,
Complainant,

v.

DANIEL CONSTRUCTION COMPANY,
Respondent.

OSHRC Docket No. 79-5821

DECISION

Before:  ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.

BY THE COMMISSION:

A decision of Administrative Law Judge Richard DeBenedetto is before the Commission under 29 U.S.C. § 661(i).  On review are two items of an amended citation issued to Daniel Construction Company, the prime contractor at a construction site in Rumford, Maine.  The first item alleged that Daniel violated the general duty clause, 29 U.S.C. § 654(a)(1), by failing to adequately support a 40-foot vertical pipeline of a pumpcrete system, which conveys concrete to upper construction levels.  The judge vacated this item because the pumpcrete system standard at 29 C.F.R. § 1926.700(d)(6) addresses the subject of pipe support, and thus preempts the general duty clause.   The second item alleged that Daniel violated the temporary flooring standard at 29 C.F.R. § 1926.752(i) by failing to secure the planks of a walkway that was 20 inches wide.  The judge vacated this item on the ground that the temporary flooring standard did not apply to a 20-inch wide walkway.  We have examined the entire record and find no prejudicial error in the judge's disposition of either item.  Accordingly, the judge's decision is affirmed.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  FEB 29 1984

CLEARY, Commissioner, dissenting in part:

I dissent from the majority's decision to vacate the second item.  In my view, the cited planks were "temporary flooring" within the meaning of 29 C.F.R. § 1926.752(i).  This standard specifies that "[p]rovisions shall be made to secure temporary flooring against displacement."  The walking surface in question was formed by pairs of planks laid end to end across a series of structural steel members.  The planks were overlapped at their ends but were not otherwise secured against displacement.  Indeed, employees of other employers who worked on similar planking had to tie it down before they used it.  In vacating this item, the judge held that "section 1926.752(i) applies only to a temporary or a working floor."   Relying on a related steel erection standard at section 1926.750(b)(1)(i), the judge found that "temporary flooring" is "solidly planked or decked over its entire surface except for access openings."  Because the cited walking surface was only two planks wide and used only as a "temporary passageway"--as opposed to "a work surface"--the judge concluded that it was not "temporary flooring" within the meaning of the section 1926.752(i).  I cannot agree.

In my view, the judge incorrectly defined "temporary flooring."  Section 1926.750(b)(1)(i), which forms the basis of judge's decision, states:

(b) Temporary flooring-skeleton steel construction in tiered building.   (1)(i).  The derrick or erection floor shall be solidly planked or decked over its entire surface except for access openings . . . .

(Emphasis supplied.)  Inasmuch as section 1926.750(b)(1)(i) addresses "temporary flooring" on the "derrick or erection floor," this provision cannot be used to define "temporary flooring" at all other locations.   I find no evidence that the planks in question were located on the "derrick or erection floor."  Moreover, the standard the judge refers to says the floor must be solidly planked or
decked over its entire surface.  But the walkway, whatever its dimensions, was the entire surface of this particular floor.  Section 1926.750(b)(1)(i) does not set dimensions for a surface.  Its import is only that there should be no apertures in the surface, whatever size the surface might be.

The hazard of plank displacement on unsecured temporary flooring is the same regardless of the area covered by such flowing. Under the judge's decision, an employer would never be required to secure flooring until it covered an "entire surface."  Thus, the protection afforded to employees who do the same work and who are exposed to the same hazards will vary according to the extent of the flooring they work on.   Such a result is neither logical nor mandated by the standard.

The judge's ruling on item two also is premised on a misunderstanding of the nature and purpose of "temporary flooring."  The judge determined that the cited planks were not "temporary flooring" because there was no evidence that they were used as a "work surface."  The judge's distinction finds no support in the steel erection standard.  Nowhere does this standard state that a surface must be used as a walking surface and a "work surface" before it is considered "temporary flooring."[[*]]  "Temporary floorings may serve as a walking or work surface, and as fall protection.  Cf. 29 C.F.R. § 1926.750(b)(2)(i)(requiring "temporary flooring" two stories or 30 feet below beams where work is being performed).  It does not lose its character as "temporary flooring" because it serves only one function.

In this case, the cited planking served as a walking surface--a common function of "temporary flooring".  The standard requires that such flooring be secured "against displacement" so that employees would not fall through or off dislodged planking and so that planking would not be dislodged and strike employees below.  Accordingly, I would find that the cited planks were "temporary flooring."  Inasmuch as the planking of the walkway was not secured against displacement, I would find that a violation of section 1926.752(i) was established.

The Administrative Law Judge decision in this matter is unavailable in this format.  To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[*]] Although it is not clear from his decision, it may be that the judge's conclusion that the cited standard applies only to "temporary flooring" used as a "work surface" is based on the heading of 29 C.F.R. § 1926.752, "Bolting, riveting, fitting up, and plumbing up."  Before the judge and on review, the employer argued that § 1926.752(i) was inapplicable to the walkway because
the Secretary presented no evidence that any of the activities listed in the heading of § 1926.752 were being performed.  I am not persuaded by this argument.  Sections (a) through (d) of § 1926.752 sets forth specific precautionary measures that are to be followed when employees are engaged in bolting, riveting and plumbing up.  The remainder of § 1926.752--sections (e) through (k)--contains several standards that generally address flooring and fall hazards.  I do not consider the heading of ¶ 1926.752 an exhaust listing of the type of activities that are governed by sections (e) through (k).  The scope of a standard is determined by the standard itself rather than its caption or heading Chesapeake Operating Co., 82 OSAHRC 36/C9, 10 BNA OSHC 1790, 1982 OCH OSHD ¶ 26,142 (No. 76-13531 1; see Wray Electric Contracting, Inc., 78 OSAHRC 78/A2, 6 BNA OSHC 1981, 1978 CCH OSHD ¶ 23,031 (No. 76-119, 1978), aff'd, 633 F.2d 220 (6th Cir. 1980).  Under the employer's interpretation, an employee who was bolting or riveting would be protected against unsafe flowing while an employee who was welding-- or, for that matter, performing any task not mentioned in the heading--would not.  I decline to construe the heading of § 1926.752 to produce such an odd result.