Docket No. 76-5125

CARPENTER RIGGING, INC.

OSHRC Docket No. 76-5125

Occupational Safety and Health Review Commission

December 29, 1982

[*1]

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

COUNSEL:

Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Dept. of Labor

Paul M. Sansoucy, for the employer

OPINION:

DECISION

BY THE COMMISSION:

The decision of the administrative law judge with respect to citation 1 is affirmed. The judge correctly found that the cited standard was preempted by a specifically applicable standard. See 29 C.F.R. § 1910.5(c)(1). Inasmuch as Carpenter Rigging was not alleged to have violated the specifically applicable standard, it is unnecessary to consider the judge's finding that Carpenter Rigging was in substantial compliance with that standard. Accordingly, the judge's decision is affirmed.

SO ORDERED.

DISSENTBY: COTTINE

DISSENT:

COTTINE, Commissioner, dissenting:

The administrative law judge vacated a citation alleging noncompliance with the construction standard published at 29 C.F.R. § 1926.500(d)(1) on the basis that the Respondent, Carpenter Rigging, Inc. ("Carpenter Rigging"), substantially complied with the more specifically applicable steel erection standard published at 29 C.F.R. § 1926.750(b)(1)(iii). The Judge's rulings are in error both on the applicability issue and [*2] the merits of the citation. My colleagues summarily affirm the first erroneous ruling and avoid the second.

Carpenter Rigging was engaged in the installation of equipment in a corn elevator under construction. At the time of inspection steel erection was 80% completed. The cited area was on the second floor where Carpenter Rigging's employees allegedly were exposed to a 25 foot fall hazard because of the failure to comply with the following guarding requirements of § 1926.500(d)(1):

(d) Guarding of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(1)(i) of this section, on all open sides . . .

Paragraph (f)(1) of § 1926.500 describes a standard railing as consisting of (1) a top rail, approximately 42 inches from the upper surface of the top rail to the floor, (2) an intermediate rail, halfway between the top rail and the floor, and (3) a toeboard.

Carpenter Rigging's employees allegedly were exposed to a 51-inch-wide perimeter opening approximately 25 feet above ground. The opening was located [*3] on a stairwell landing, two to three feet from the top riser of the stairway. A steel beam extended across the opening at a height of 3 or 4 inches above the floor. A second beam extended across the opening at a height of 4 feet 5 inches above floor level. The compliance officer testified that an employee who stumbled at the top of the stairwell could fall through the opening. The further testified that a cord observed lying on the floor between the top of the stairs and the opening created a tripping hazard that could result in an employee falling through the opening. The compliance officer's testimony was not rebutted. In addition, it is undisputed that on the day of inspection at least one Carpenter Rigging employee used the stairwell to gain access to higher levels during the normal course of his duties.

Although employees of another employer were engaged in welding stairway handrails above the second level, no structural steel work was being performed in the area of the cited hazard. Furthermore, there is no dispute that the metal floor on the second level was already firmly bolted and secured, although the walls of the structure were not yet in place. Carpenter Rigging [*4] installed equipment in the structure before the walls were erected because of the large size of the equipment. However, the Respondent's project manager testified that equipment would not be brought in through the cited opening on the landing, but through an open wall on either side of the stairs. Therefore, the witness concluded that the passage of equipment would not prevent the installation of a rail at the cited location.

II.

The administrative law judge found that the structure was in the structural steel assembly stage, only temporary steel decking had been installed, and permanent concrete floors had not yet been installed. He concluded that the steel erection standard at 29 C.F.R. § 1926.750(b)(1)(iii) n1 was the more specifically applicable standard. Finding that "the 3-4 inch toeboard and horizontal structural steel member at the 53 inch height . . . was in substantial compliance with Section 1926.750(b)(1)(iii)," the judge vacated the citation.

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n1 Section 1926.750(b)(1)(iii) provides:

(b) Temporary flooring - skeleton steel construction in tiered buildings. (1)

* * *

(iii) 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.

[*5]

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On review the Secretary specifically excepts to the finding that the flooring was temporary, arguing that the record establishes that the flooring was permanent, thereby rendering the steel erection standard inapplicable.

Carpenter Rigging maintains that "[a]lthough steel floor had been bolted at the point where the open side existed (R.10), permanent floors had not been installed throughout the building (R. 68)." Respondent's Brief at 6. The Respondent further maintains that "[t]he fact that steel erection had been completed on the floor in question does not automatically trigger the standard at Section 1926.500(d)(1)." Respondent's Brief at 7. Accordingly, Carpenter Rigging concludes that "[w]here permanent floors have been partially completed, but structural steel assembly remains to be completed, Section 1926.750(b)(1)(iii) applies." Respondent's Brief at 8.

III

In concluding that the steel erection standards apply to the facts of this case, the judge found that only temporary steel decking had been installed and the permanent concrete flooring had not yet been poured. However, the record [*6] contains no evidence to support the finding that the flooring in the location cited was temporary. To the contrary, unrebutted evidence establishes that the metal flooring in the area cited was firmly bolted and secured, rendering the floor "permanent flooring" under the steel erection standards. See 29 C.F.R. § 1926.750(a)(2). Furthermore, there is no evidence that a concrete floor was to be poured at any time. It is obvious from the Respondent's arguments in this case that it does not consider the flooring at the cited location to be "temporary." Rather, it argues that, because permanent flooring had not been installed throughout the rest of the structure, the steel erection standard applies.

It is unnecessary to the disposition of this case to determine whether the steel erection standards are at all applicable to worksite areas where skeletal steel erection is no longer being performed because there are no steel erection standards applicable to the guarding of open-sided permanent floors. Accordingly, the judge erred and the Commission compounds that error by concluding that section 1926.750(b)(1)(iii), a standard that unambiguously applies exclusively to temporary floors, [*7] is specifically applicable to the facts of this case.

Both the cited standard and the steel erection standard applied by the judge require the presence of a safety barrier "approximately 42 inches high" to protect against fall hazards. In Dick Corp., 79 OSAHRC 101/E8, 7 BNA OSHC 1951, 1979 CCH OSHD P24,078 (No. 16193, 1979), the Commission held unanimously that employees working near the open end of a scaffold 23 feet above ground level were not adequately protected by a single horizontal bar located 4 to 6 feet above the scaffold platform. n2 The Commission stated that the bar "did not even provide protection equivalent to that provided by a top rail, which under the standard must be 'approximately 42 inches high.'" 7 BNA OSHC at 1954, 1979 CCH OSHD P24,078 at p. 29,250. The 53-inch-high steel bar in this case is no more equivalent to the protection required by the standard than was the 48 to 60-inch-high steel bar considered in Dick Corp. In addition, there is a total absence of the protection that would be provided by a midrail installed in accordance with the cited standard.

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n2 Dick Corp. involved an alleged violation of the scaffold guarding standard at 29 C.F.R. § 1926.451(d)(10). The scaffold standard contains the same 42-inch height requirement for guardrails contained in sections 1926.500(d)(1) and 1926.750(b)(1)(iii). The only relevant differences among these standards is that sections 1926.451(d)(10) and 1926.500(d)(1) require guardrails made of 2 X 4-inch lumber or equivalent, plus midrails and toeboards, whereas section 1926.750(b)(1)(iii) provides for the use of a single safety railing made of "1/2-inch wire rope or equal."

[*8]

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The judge's "substantial compliance" test is also inconsistent with Commission precedent. Well established precedent properly holds that "technical noncompliance" with a standard that results in only a negligible effect on employee safety and health is deemed a de minimis violation not warranting an abatement order or penalty assessment. E.g., Triple "A" South, A Div. of Triple "A" Machine Shop, Inc., 81 OSAHRC 29/B13, 9 BNA OSHC 1543, 1981 CCH OSHD P25,295 (Nos. 77-2922 & 77-3169, 1981); Continental Oil Co., 79 OSAHRC 42/C3, 7 BNA OSHC 1432, 1979 CCH OSHD P23,626 (No. 13750, 1979); Clifford B. Hannay & Son, Inc. 78 OSAHRC 12/A2, 6 BNA OSHC 1335, 1978 CCH OSHD P22,525 (No. 15983, 1978); Rust Engineering Co., 77 OSAHRC 37/C8, 5 BNA OSHC 1183, 1977-78 CCH OSHD P21,693 (No. 12200, 1977); National Rolling Mills Co., 76 OSAHRC 121/D7, 4 BNA OSHC 1719, 1976-77 CCH OSHD P21,114 (No. 7987, 1976); Van Raalte Co., Inc., 76 OSAHRC 49/B8, 4 BNA OSHC 1151, 1975-76 CCH OSHD P20,633 (No. 5007, 1976). However, the uncontradicted evidence in this case establishes that at least one [*9] of Carpenter Rigging's employees was exposed to a serious fall hazard of 25 feet, exacerbated by the presence of a tripping hazard in front of an opening that was not adequately guarded to prevent a fall. A de minimis violation could not be found on these facts.

Accordingly, for the reasons set forth above, the judge's decision should be reversed and the citation affirmed.