Tricon Industries, Inc.

Plain-English summary

Tricon employees performed steel-deck layout and welding work on a 100-by-65-foot roof deck more than 15 feet above the ground. They were not tied off while working near the center, but the evidence showed that their assigned work kept them about 12 feet from an unguarded edge, with one employee coming within 6 to 7 feet to approach a welder. Tricon required fall protection within 6 feet of an edge and tied employees off while they entered and left the deck. OSHA argued that the entire unguarded deck was a zone of danger regardless of distance. The judge rejected that blanket interpretation because it came from a different construction subpart, lacked consistent application and notice, and would remove OSHA's burden to prove exposure. Because OSHA did not show that employees were actually or predictably within the danger zone, the citation and proposed $2,295 penalty were vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.760(a)(1)
• Outcome: Serious steel-erection fall-protection item and proposed $2,295 penalty vacated.
• Key point: OSHA must prove that steel-erection employees were actually or predictably in the fall-hazard zone; an unguarded deck is not automatically treated as entirely hazardous on every set of facts.

Full text (OSHRC public release)

                                     United States of America
           OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                721 Nineteenth Street, Suite 407
                                     Denver, CO 80202-2517

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC DOCKET NO. 11-1877
:
TRICON INDUSTRIES, INC. :
:
Respondent. :

APPEARANCES: Matthew B. Finnigan, Esq. Robert R. Miller, Esq.
Office of the Solicitor Stettner Miller, P.C.
U.S. Department of Labor 1050 17th Street
1999 Broadway, Suite 1600 Suite 1700
Denver, CO 80202 Denver, CO 80265-2077
For the Complainant For the Respondent

BEFORE: Hon. John H. Schumacher,
Administrative Law Judge

                                  DECISION AND ORDER

  This proceeding is before the Occupational Safety and Health Review Commission (“the

Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 651 et seq. (“the Act”).
FACTS
Tricon Industries, Inc. (“Respondent” or “Tricon”), is a Colorado corporation engaged in
steel erection, welding and construction. (Joint Stipulation #3). On May 5, 2011, Tricon was one
of several contractors in the process of constructing a new building for the Mike Ward Infiniti car
dealership at 1800 Lucent Court, Highlands Ranch, Colorado. (Joint Stipulation #4). Tricon was
a subcontractor, retained by Saunders Construction, Inc., to install metal decks on the new
building. (Joint Stipulation #5). Pursuant to a complaint that employees on the deck were not
using fall protection, the Occupational Safety and Health Administration (“OSHA”) sent OSHA
Compliance Safety and Health Officer Chad Vivian (the “CO”) to inspect the worksite. (Tr. 19-
20, Joint Stipulation #4). During the inspection, Mr. Vivian observed Tricon’s employees on the
deck of what was to become the car dealership’s service bay, more than 15 feet above the
ground. (Joint Stipulation #6). The deck had a parapet along its north, south, and east perimeters.
A three-foot gap in the deck existed along the length of the deck’s east and west perimeters.
(Joint Stipulation #7).
As a result of the inspection, the Secretary issued to Tricon a citation alleging a serious
violation of 29 C.F.R. §1926.760(a)(1), on the grounds that “employees were exposed to falls in
excess of 15 feet while performing decking work (welding) and other activities on a partially
decked roof without the use of a fall protection system.” The Secretary proposed a penalty of
$2,295 for the violation.
The parties stipulate that Respondent is engaged in a business affecting interstate commerce
and that the standard applies to Tricon’s activities at the worksite. (Joint Stipulations # 3, 8).

                                    Relevant Testimony
                                    Chad Daniel Vivian
The Secretary’s only witness was Chad Vivian. Mr. Vivian is an OSHA Compliance Safety

and Health Officer and has worked for OSHA since July 2007. (Tr. 16). During that period, he
has inspected approximately six worksites that included steel erection. (Tr. 19). Mr. Vivian
testified that he was sent to the Mike Ward Infiniti car dealership in Highlands Ranch, Colorado,
pursuant to a complaint. (Tr. 19-20). The complaint involved fall hazards, which constitute the
most prevalent source of injuries in the construction industry and, therefore, are included within
the local emphasis program. (Tr. 20, 22).
The CO arrived at the site on May 5, 2011 and parked across the street, about 200 yards
away. (Tr. 21) He observed the site and began videotaping. (Tr. 21, Ex. GX-1). From his vantage
point, the CO observed at least three employees walking back and forth on the deck. (Tr. 23).
There were parapets on the north and south sides of the deck, but they did not appear to meet the
criteria of a standard guardrail because they only came up to knee level. (Tr. 23). The CO
estimated that the parapets were one-to-two feet high (Tr. 34), except for the parapet on the east
side which appeared to be three feet tall. (Tr. 43). If a parapet is to qualify as fall protection, it
needs to come up to waist level. (Tr. 27). There were three-foot wide openings in the parapet
walls on the east and west sides of the deck. (Tr. 43). Based on the drawing he reviewed, the CO
testified that the top of the parapet was twenty-two feet above the ground. Assuming the parapet
was three-to-four feet high, he estimated that the deck was approximately eighteen-to-nineteen
feet above the ground. (Tr. 35).
One of the employees walked over to a welder, apparently to either turn it on/off or to adjust
its settings.1 (Tr. 23-24, Ex. GX-1). The welder was about 3.5 feet high. It was located in the
northwest corner of the deck, about six-to-seven feet from the north side edge of the deck. (Tr.
31, 34, 44, 66, 84; Ex. CX-2).
Mr. Vivian testified that he viewed the deck from inside a scissors lift. He did not get out of
the lift because he did not feel comfortable getting on the deck without a fall arrest or guardrail
system. (Tr. 38, 44). Nonetheless, there was nothing obstructing his vision and he had a clear
view of the deck. (Tr. 39, 47). There was a slight slope to the deck. (Tr. 40-41, 118). A steel
cable that was described by him as part of a fall arrest system spanned the opening on the east
side. (Tr. 40-41). The CO testified that, normally, the cable would be elevated by stanchions to
keep it off the deck. Elevating the cable reduces the fall distance to an employee hooked up to a
fall arrest system. The CO testified that a fall arrest system should limit a fall to six feet. This
cable would not permit that fall limit to be exceeded because it was at foot level. (Tr. 41). The
CO noted that the placement of the cable was a concern because, where the employees were
working, they had nothing with which to tie-off. (Tr. 42). Also, the CO was concerned that the
cable was just looped around the joists, and then went off in another direction at a 90-degree
angle. (Tr. 45). In his view, the attachment did not appear to be very secure. (Tr. 46). There also
was a cable placed along the south wall. No workers were tied-off to that cable.2 (Tr. 42).
According to the CO, the employees accessed the deck via a ladder that was located next to
an opening in the parapet. (Tr. 35-36). He was concerned that employees were not protected
when getting off the ladder. (Tr. 66). His concern was that the ladder could shift or an employee
could lose his footing. (Tr. 67). Therefore, employees need to tie-off immediately before getting
off the ladder. (Tr. 44, 67). On cross-examination, he admitted that he did not actually see an

1
A welding unit is basically an electrode with a rod. It runs on A/C power and is used for deck welding. (Tr. 32).
2
The Secretary has not charged Tricon with any violation based on an alleged deficiency in the fall arrest system.
access ladder, but was told that there was one in place. (Tr. 82). He also testified that he had no
direct evidence that employees were not wearing a harness when climbing the ladder. (Tr. 103).
Other than when climbing the ladder, Mr. Vivian had no direct evidence that any employee
would approach any closer to the edge than the welder. (Tr. 85).
Employees had been working on the deck for a couple of hours. (Tr. 69). The shift started at
7 a.m., and the CO arrived at the site around 9:45 a.m. (Tr. 69). According to Mr. Vivian, the
entire deck constituted a hazardous area because it was elevated and had no protection around
the east and west openings and along the parapet wall on the north and south side. (Tr. 44-45).
Mr. Vivian was also concerned that the deck itself presented a tripping hazard because it was not
smooth, but rather had ridges. In his opinion, an employee could get his shoe or boot stuck in the
ridges. (Tr. 46).
Foreman Lonnie Moore explained to the CO that work on the deck was almost done. They
had to finish up some welding work. Although Mr. Vivian did not see any welding taking place,
it was his understanding that an employee performed welding on the deck that day. (Tr. 48). Mr.
Moore also explained to the CO that Tricon had a fall protection policy that required 100% tie-
off. (Tr. 49, 59). Although the CO could not remember what Mr. Moore meant, he testified that a
100% tie-off policy means that employees are required to be tied-off 100% of the time,
regardless where on the deck they were working. (Tr. 49). At least one employee admitted to the
CO that he was not tied off while working in the center area of the deck. (Tr. 49). However, Mr.
Moore told the CO that he thought that it was acceptable not to wear fall restraints because they
were working in the middle of the deck, away from the edges. (Tr. 58).
The CO testified that, based on his knowledge and experience, an employee is exposed to a
fall hazard anytime he is on an elevated surface that has unprotected edges or sides. (Tr. 61, 83,
110). He explained that a number of things can happen. For example, noting that there was no
warning line on the deck, he testified that people tend to travel around and if no measures are
taken to keep them restrained or in a controlled area, they can come close to an edge or
unprotected wall. Walking back and forth around the deck to get tools can pose a hazard.
Weather could be a factor with high winds or rain that creates a slick surface. He also opined that
a potential piece of unsecured decking could be loose. (Tr. 64-65). Furthermore, he observed that
at least one person was wearing a welding helmet that could have obstructed his vision.
However, he did not see any welding occur. (Tr. 48). Welding helmets are only down when
welding and they don’t obscure vision when the visor is in the up position. (Tr. 96-97).
The CO noted that, at least a year before the steel erection standards were promulgated,
OSHA received an inquiry about the general fall protection standards of Subpart M. The inquiry
asked for the criteria to be used in determining when employees were working close enough to
an unguarded edge to require fall protection. In a Letter of Interpretation in reply to the inquiry,
the Secretary stated that there was no safe distance where fall protection was not required. (Tr.
62, Ex. GX-6).
Mr.Vivian testified that the citation was issued because the work met the definition of steel
erection, the deck was both a walking and working surface and there was no guardrail or safety
net system in place. (Tr. 51-53). Although there was a fall arrest system, including a horizontal
lifeline, it was not complete because employees were not wearing a full body harness and
lanyard attached to a life line. (Tr. 54). At least two employees did not have a harness. (Tr. 54).
At least one of those employees was captured on the video. (Tr. 85, Ex. GX-1)
The CO testified that Tricon did not have a work rule that effectively prohibited employees
from getting close to the deck’s edges. (Tr. 66). Although he believed that the potential was there,
he had no knowledge of actual employee exposure to the edge of the deck. (Tr. 103). He knew
that, at some point, there was going to be work at the edge, so at some point they would have to
approach it. (Tr. 104)
Mr. Vivian testified that Tricon Foreman Lonnie Moore had knowledge of the violation. He
was on the deck, observing the work and was aware that at least one person was not tied-off. (Tr.
67-68). The CO explained that the exposed employees were Dave Kahtava, Shawn Dolos and
Mr. Moore, all of whom were working on the deck.
Considering the height of the deck and the hard concrete surface below, he classified the
violation as serious because, if an employee fell from the deck, the results would be death or
serious injury. (Tr. 69). According to Mr. Vivian, it would not have been difficult to install a fall
arrest system. Only a few additional attachments were needed and installation would have taken,
at most, a couple of hours. (Tr. 71). However, the CO testified that he was not aware of any
stanchion system that could be used on joists similar to those being used at the site. (Tr. 79).
A penalty of $2,295 was proposed. The CO considered that, while there was a serious
probability of death or serious physical injury in the event of an accident, the probability of an
accident was lesser, based on the duration of exposure and the number of employees exposed.
Also, a 40% credit was given because, with nine employees, Tricon was a small employer. (Tr.
71-72). It has been inspected several times, but never received any citations. Therefore, a 10%
credit was given for its good safety history. Finally, credit was given for good faith because
Respondent had a written safety program in place. The CO opined that Tricon appeared to be a
safe employer. (Tr. 73).
Steven S. Pierce
Steven S. Pierce is president and CEO of Tricon Industries, a steel erection company he
founded in 1995. (Tr. 121). On this job, Tricon was contracted to put up the steel frame, install
bar joists, bridge and deck the frame, put in wind screens,3 handrails and stairs. The job was
expected to take four to five weeks. (Tr. 142). Although the roof sloped slightly at ¼ inch per
foot, the slope was so slight that you would not realize it if you were walking uphill or downhill.
(Tr. 143, 168). According to Mr. Pierce, Tricon requires 100% fall protection whenever
employees come within six feet of an unguarded edge that exposes them to a fall of 15 feet. (Tr.
125, 127-128, 143). They are trained in that policy and it is enforced. (Tr. 128). To his
understanding, employees on May 5th followed the company policy and no unprotected
employee was exposed to being within six feet of an unprotected side or edge more than fifteen
feet above the ground. (Tr. 144).
Mr. Pierce testified that Tricon employed Miller Safety, which essentially is the SESAC,4
(the Steel Erectors Safety Association of Colorado) to help them write and administer their safety
policy and to help them ensure that they were doing everything in compliance with OSHA
regulations. (Tr. 122). The SESAC is a group of steel erectors that have been trained in cutting-
edge fall protection matters, and it conducts safety inspections of its members. (Tr. 123). Tricon
is a member of the SESAC. (Tr. 123). It has been subject to unannounced inspections by the
organization four to five times a year and has never been found to have any safety violations. (Tr.
123, 160). Respondent has also been inspected by general contractors and insurance companies.
(Tr. 132). OSHA previously inspected Tricon, but never issued any citations. (Tr. 134).
Tricon’s safety policy was put in place shortly after the company was formed and it has
been modified over the years. Mr. Pierce testified that his employees are trained in the safety

3
A windscreen is put up around a mechanical HVAC unit. It serves to buffer the unit so it can provide air intake, as
well as soften the look of the building for people that might live in the area and have to look at the unit on the
building. (Tr. 166).
4
Mr. Pierce opined that Mr. Miller, of Miller Safety is the director and owner of the SESAC. (Tr. 159-160).
policy by Mr. Moore, Ned Jensen and himself. (Tr. 124). Employees also receive outside training
from Miller Safety, with whom they have a continuing relationship. (Tr. 124). Nobody has ever
expressed problems with Tricon’s safety protection program. (Tr. 133). Training starts when
someone is hired. Employees are required to fully understand the company safety policy. They
do not have to take the policy home and study it, but they have to agree to comply with the
policy. The most important thing they teach is the six-foot rule. (Tr. 165). An employee can be
discharged for any reason when it comes to the safety policy. (Tr. 164). If an employee is seen
violating the rule, he is usually warned one time. If he is caught violating the rule again, he is
terminated. (Tr. 166). Since its founding, the company suffered two injuries. One of the injuries
involved Mr. Pierce himself when he fell off the outside edge of a building. His fall protection
arrested the fall. (Tr. 129). The other accident involved a college student who suffered a four
foot fall when he tripped on a bar joist. (Tr. 133).
Mr. Pierce testified that Tricon’s six foot rule was derived from the OSHA steel erection
standards of Subpart R and from working with Miller Safety. (Tr. 161). He has used this
definition for sixteen years. Although he never looked to see if the definition of exposure was
consistent with anything in the OSHA regulations, it is his understanding that the regulations
require fall protection when employees are within six feet of a leading edge that could result in a
fall hazard of fifteen feet or more. (Tr. 162-163). He explained that employees would know
when they are within six feet of the edge because they are working on deck sheets that are either
two or three feet wide. The employee simply counts the number of sheets and, knowing whether
the sheets are two or three feet wide, determines if they are within six feet of the edge. (Tr. 163).
Mr. Pierce stated that training and common sense prevent employees from crossing over into the
six-foot zone. (Tr. 163). He stressed that employees undergo daily training daily from himself,
Lonnie Moore, or Ned Jensen. (Tr. 163). When asked if the six-foot rule made allowance for
human error, Mr. Pierce replied that “human error is everywhere.” (Tr. 175)
Mr. Pierce testified that he had no problem with the way the cable was looped on the
deck, and has used that system on other jobs. (Tr.132). According to Mr. Pierce, the first thing
that they do when they get a job is to prepare a hazard analysis. (Tr. 135). As the company safety
officer, he prepares the assessment.(Tr. 136, Ex. RX-2). The hazard analysis is presented to the
general contractor and, sometimes, revisions are requested. (Tr. 137). Tricon holds safety
meetings, including weekly written meetings. They also have contractors meetings where they
meet with everyone on the site. (Tr. 138) Ultimately, it is the foreman who determines if
employees are exposed to a fall hazard of fifteen feet or more. (Tr. 171). Mr. Pierce testified that
he has the power to hire, fire and discipline employees for the company. (Tr. 172).
Mr. Pierce was onsite all morning. This crew had been together for five or six years and
performed work similar to this job every day. (Tr. 155). This crew has never had any accidents or
injuries. (Tr. 156). Although not every employee was wearing a safety harness, they all carried
them, and their personal protective equipment, into the building when they arrived at work. (Tr.
145, 153-154). Mr. Pierce testified that a full set of tools is carried in the harness. (Tr. 154). The
harnesses contain a minimum of two spud wrenches, a sleever bar, four clamps, tape measures,
chalk box, and a welding pouch with a welding rod. Mr. Pierce requires employees to carry a
fully loaded harness when they go up on the roof. He explained that he did not want them
spending time going up and down the ladder to get these tools. (Tr. 167). A typical harness
equipped with tools weighs between 40 and 60 pounds. In contrast, an empty harness weighs
only three to four pounds. (Tr. 154-155). Mr. Pierce testified that there is no company policy
authorizing employees to remove their belts when they are on a roof. (Tr. 172).
The deck was approximately 100 feet by 65 feet. (Tr. 147, Ex. RX-3). Employees
accessed the deck from the ground by an access ladder. The ladder from the ground to the deck
was tied off. (Tr. 149). Mr. Pierce explained that, to access the deck from the ladder, an employee
climbs the ladder until he is chest high on the ladder. Maintaining three-point contact with the
ladder, he swings around and latches the lanyard onto the safety cable. The employee then goes
up to the top of the deck. (Tr. 153). Employees wore two lanyards so that when moving from the
ladder onto the deck, they could keep one lanyard attached while connecting the second lanyard.
(Tr. 175). Although he was onsite, Mr. Pierce was not on the deck on the morning of May 5th,
and did not have personal knowledge if the employees tied off when they accessed the roof. (Tr.
171). Similarly, not being on the deck, he had no personal knowledge if the employees were
wearing their tools. (Tr. 175). However, he worked with the crew earlier that day and they were
all wearing harnesses and lanyards and were carrying full sets of tools. (Tr. 176).
Problems with masonry on the deck prevented the deck from being completed. (Tr. 149).
There were three-foot openings at the far ends of the north wall. The openings existed because
the masons had to put plates in the wall so they could weld perimeter angle to the plates. Then,
they would put in the deck and weld the decking to the perimeter angle. (Tr. 150). Until the
masons did this work, there was no work in the three-foot section that Tricon employees could
do. (Tr. 150, 158). While waiting for the masons, the Tricon employees were working on the
layout on the roof screens. (Tr. 150, 154). This required the employees to use a tape measure, a
square, and a black marker to lay out the holes. (Tr. 167). They also did some welding on the
roof frame. (Tr. 154) Both the screen layout work and the welding took place toward the center
of the deck. (Tr. 156). The closest any of the crew would come to any unguarded deck edge was
twelve feet. (Tr. 156). Mr. Pierce acknowledged that the Secretary’s video tape showed an
employee approaching the welder. (Tr. 157, Ex. RX-1). He estimated that the welder was six to
seven feet from the unguarded edge. (Tr. 157). However, he reiterated that it was not reasonably
predictable that any employee would have been working within six feet of the exposed edge. (Tr.
158). It was his opinion that no employee was exposed to a fall in excess of fifteen feet. (Tr.
159).
The masons did not schedule the work for May 5, 2011. Therefore, the mason had his
employees doing odd jobs, such as cleaning up around the scaffolding. (Tr. 150). Decking and
edge angles were stored on the deck. This decking was laid perpendicular to the decking already
installed and screwed down. (Tr. 151). A safety cable was laid along the perimeter and attached
on the second joist. (Tr. 152, Ex. RX-3). Mr. Pierce explained that the cable is always put on the
second joist so employees do not have to go out beyond the six foot exposure limit. (Tr. 153).
The hazard analysis talks about the deck falling or blowing off. (Tr. 168, Ex. RX-2). Mr. Pierce
explained that if a wind gust comes up, you want to make sure that everything on the roof is
secured and that there is no possibility of wind or anything else knocking the deck down. (Tr.
169). An average piece of decking is 3 feet by 25-to-30 feet and weighs 180 pounds. (Tr. 170).
He has seen occasions where employees were hit by flying sheets of decking and required 40 to
50 stitches. (Tr. 169). Decking can be pulled up by a 25 mph wind. (Tr. 170). This was a windy
location. (Tr. 169). There were six pieces of uninstalled decking on the roof and all were
secured. (Tr. 170).
Lonnie Moore
Lonne Moore is a foreman for Tricon. He has worked for the company for seventeen
years and was working at the Infiniti job site at the time of the inspection. He worked with the
same crew for five or six years. (Tr. 178). They were on the job for three to four weeks. (Tr.
181).
 On the day of the inspection he, with two other crew members, started in the detail and
delivery bay by putting in bracers and kickers on the screen and site screen. When they finished
that, they went to do some layout. (Tr. 179). He testified that the crew accessed the deck by
climbing the access ladder while maintaining three-point contact. Mr. Moore explained that to
maintain three-point contact, the ladder is secured at the top and bottom. When you get to the
top, you take your hook and clip it onto the line that runs left to right, without being on the roof.
(Tr. 181, Ex. R-3). Once you are standing on the deck, you take the second lanyard and, while
still hooked on the first line, hook the second lanyard to the other line that runs east to west. Mr.
Moore estimated that you hook onto the second line when approximately ten feet from the wall.
(Tr. 182). Once you are a far enough distance from exposure, you unhook and walk straight to
the center. (Tr. 183). When on the deck, the only time the crew hooked up was when they were
getting off and were exposed to the unguarded edge. (Tr. 184). To leave the roof, the process is
reversed. (Tr. 186).
Mr. Moore also testified that employees know when they are within six feet of the edge
by looking down and counting the number of three-foot-wide deck sheets between themselves
and the edge. (Tr. 192). He indicated that he trained himself to do that, but would not say
whether employees were explicitly trained in this method. (Tr. 192). Company policy is that you
do not go near a six-foot zone without proper equipment. Employees know where the six-foot
zone begins by using common sense and by reading the sheets of decking. (Tr. 194-195). Also
weld marks on joists are often close to the six-foot mark. (Tr. 195). Mr. Moore also noted that to
provide fall protection, a parapet wall should be about waist high, or a minimum of 39 inches.
(Tr. 197-198).
Mr. Moore testified that there was nothing on the roof to obstruct the crew’s vision. (Tr.
184). Also, there were perimeter angles stacked in the middle of the roof that could present a
tripping hazard. (Tr. 184-185). These angles, which were awaiting installation, were made of ¼
inch thick steel, were 20 feet x 3 ¾ inches and each weighed about 100 lbs. (Tr. 185, 188).
According to Mr. Moore, they are not a wind catch and it would take hurricane force winds to
move them. (Tr. 188). There also was a welder on the decking that could not be installed. (Tr.
186).
Mr. Moore did not believe that the corrugated flutes or ridges of the decking constituted
a tripping hazard. He stated that to trip on them, “You’d have to really be not paying attention.”
(Tr. 188-189). These flutes were 1.5 inches wide and half an inch deep. (Tr. 189). He never
caught his foot on one on a flat roof, which he considered this deck to be. (Tr. 189).
No member of his crew was ever out of his sight. (Tr. 186). Nobody approached closer
than six feet to the edge unless they were tied off for ladder access. (Tr. 186). He emphasized that
there was no work that would have placed them within six feet of an unguarded edge. (Tr. 186).
Mr. Moore identified the employee who approached the welder as Shawn Dolos. He went to start
the welder so they would have power. (Tr. 189). Based on the three-foot wide sheet of decking
next to the welder, he estimated that the machine was 9-to-10 feet from the edge. (Tr. 190). If the
welder was not working, power was available from the general contractor’s power below the
deck. (Tr. 190). If they had to diagnose the problem with the welder, he would put on a
retractable lanyard that hooks onto his harness. Such a lanyard was available. (Tr. 191). Mr.
Moore estimated that, on a small project like this, the welder would have to be moved more than
twice. (Tr. 193).
Mr. Moore further explained that the cable has to be attached to something capable of
holding 5000 pounds. You cannot attach to masonry. Therefore the only thing they had available
were trusses, which is where they attached the cables. (Tr. 183-184).
Mr. Moore testified that a typical work belt and harness consists of a spud holder which
can carry up to three spuds, a sleever bar holder, up to three bolt bags, a double lanyard, and
tools. (Tr. 179-180). He also carried a sledgehammer, chalk box, markers, tape measure, welding
rod pouch with rods, hooks, shop pack, and double lanyard which, by itself, weighs three
pounds. (Tr. 193). He estimated that a loaded harness weighs 35-to-40 pounds. (Tr. 193).
All crew members had their harnesses with them. At some point, however, they were removed.
(Tr. 192). He explained that although this was not the usual practice, it was done here because
they are heavy and there was no exposure to a fall when doing layout. (Tr. 192). The harnesses
were placed in the center of the deck, near where they were working. (Tr. 194). The harness did
not present a tripping hazard because they knew where they were and they were placed in an area
away from where they were working. (Tr. 194).
 DISCUSSION
Jurisdiction
The parties stipulated that jurisdiction of this action is conferred upon the Occupational
Safety and Health Review Commission pursuant to Section 10(c) of the Act. The parties also
stipulated that at all times relevant to this action, Tricon was an employer in a business affecting
interstate commerce. It is undisputed that Tricon was the employer of the three employees
working on the deck. Accordingly, I find that Tricon was an employer engaged in a business
affecting commerce within the meaning of Section 3(3) and 3(5) of the Act, 29 U.S.C. §§652(3)
& (5).

Citation 1, item 1
Citation 1, item 1 alleges a serious violation of 29 C.F.R. §1926.760(a)(1) and proposes a
penalty of $2,295. The cited standard provides:
§ 1926.760 Fall protection.
(a) General requirements. (1) Except as provided by paragraph
(a)(3) of this section, each employee engaged in a steel erection
activity who is on a walking/working surface with an unprotected
side or edge more than 15 feet (4.6 m) above a lower level shall be
protected from fall hazards by guardrail systems, safety net
systems, personal fall arrest systems, positioning device systems or
fall restraint systems.

Applicable Law
To establish a violation of an OSHA standard, the Secretary must establish that: (1) the
standard applies to the facts; (2) the employer failed to comply with the terms of that standard;
(3) employees had access to the hazard covered by the standard, and (4) the employer knew or
could have known of the existence of the hazard with the exercise of reasonable diligence.
Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994)
Tricon does not dispute that the standard applies. It also does not dispute that the edges of
the deck were unguarded and that a fall from the deck would result in a fall of 15 feet or more.
However, Tricon vigorously disputes the assertion that its employees were exposed to a hazard.
It points out that the evidence establishes that one employee came no closer than six-to-seven
feet from the edge when approaching a welder machine. Other than that one instance, the
evidence demonstrates that the employees’ work assignment required them to work in the middle
of the deck, which was 100 by 65 feet. In the course of that work, they approached no closer than
twelve feet from the edge. Moreover, employees were tied off when getting on or off the deck
from the access ladder. Tricon contends that the evidence fails to establish that employees were
either actually exposed to the unprotected deck edge or that any such exposure was reasonably
predictable.
The Secretary asserts that, when working on an unguarded deck, there is no safe distance
from an unprotected edge. Rather, the entire deck constitutes a zone of danger. Therefore, it did
not matter where on the deck employees were working. As long as the edge of the deck was
unguarded, employees were within the zone of danger and were required to be tied-off.

Discussion

   To establish employee exposure to a violative condition, the Secretary must prove that it

was reasonably predictable that either while in the course of their assigned working duties, their
personal comfort activities while on the job, or their normal means of ingress-egress to their
assigned workplaces, will be, are, or have been in a zone of danger employees. Fabricated
Metal Products, 18 BNA OSHC 1072, 1073-1074 (No. 93-1853, 1997); Gilles & Cotting, Inc., 3
BNA OSHC 2002, 2003 (No. 504, 1976).

   Definition of Zone of Danger
The central issue here is whether the Secretary can decree that the mere presence of an

employee on a deck with an unprotected edge establishes that the employee is within the “zone
of danger.”
The Secretary points out that a May 12, 2000 Letter of Interpretation evaluated an inquiry
from the SESAC regarding the use of control lines in place of certain forms of fall protection
under 29 C.F.R. §1926.500 of Subpart M. OSHA reiterated the preamble to Subpart M at 59
Fed. Reg. 40683 (August 9, 1994) that “OSHA determined in the rulemaking that there is no safe
distance from an unprotected side or edge of a walking/working surface that would render
protection unnecessary. (Ex. GX 6, p.2). Although the letter related to another standard, the
Secretary asserts that the same logic applied to Subpart M applies to the steel erection standards
of Subpart R.
Tricon argues that this interpretation is inapplicable to the steel erection standards of
Subpart R. It points out that, when promulgated, the Secretary stated that steel erection is
covered “exclusively” by Subpart R. 66 Fed.Reg. 5196, 5200 (January 18, 2001). Tricon further
notes that, as OSHA states at the beginning of every interpretive letter, Letters of Interpretation
cannot create additional employer obligations. Respondent argues that would be precisely the
effect of applying the letter to steel erection.
I recognize that the Commission must defer to the Secretary’s “reasonable” interpretation
of a standard. Martin v. OSHRC (CF&I), 499 U.S. 144, 150 (1991). Here, however, the
Secretary’s official interpretation does not apply to the cited standard but, rather, standards of
another Subpart.
Also, under Subpart M, the Secretary’s position that the entire working/walking surface
constitutes a “danger zone” has exceptions. In Seyforth Roofing Co., 16 BNA OSHC 2031 (No.
90-0086, 1994) the employer was cited for violating 29 C.F.R. §1926.500(g)(1),5 which then
required that employees performing roofing work on a low-pitched roof more than sixteen feet
above the ground or next level be provided with fall protection. As here, the Secretary took the
position that the entire walking/working surface constituted the “danger zone” and, therefore,
that employees were exposed to a fall hazard no matter how far from the unguarded edge they
might be. Rejecting the premise, the Commission noted that, under 29 C.F.R. §1926.500(g)(2),
the fall protection requirements of 29 C.F.R. §1926.500(g)(1) do not apply “where employees are
on the roof only to inspect, investigate, or estimate roof level conditions,” the type of work in
which employees in that case were involved. Seyforth is relevant because it demonstrates that,
under Subpart M, the Secretary’s blanket “zone of danger” rule had exceptions that depended on
the nature of the work being performed. Thus, the Secretary determined that the nature of the
work of employees who were on the roof only to “inspect, investigate, or estimate roof level
conditions” allowed for a more limited “zone of danger” than employees engaged in other
activities.
In this regard, the preamble to the steel erection standards of Subpart R, the Secretary
observed that “steel erection activities are different from other construction activities.” 66
Fed.Reg. 5243 (January 18, 2001). Under Subpart R, would employees on the deck “only to
inspect, investigate, or estimate” deck level conditions be exempt from the rule as they are under
Subpart M? On that basis alone, it would not be appropriate to consider either the preamble to
Subpart M, or the Letter of Interpretation of May 12, 2000, as binding on standards in Subpart

5
Subpart M has subsequently been amended.
R. Accordingly, I find no basis to defer to the Secretary’s interpretation of “zone of danger” for
the cited standard in Subpart R based on her interpretation of a fall protection standard
promulgated under Subpart M.
Finding that the Secretary’s interpretation of “zone of danger” set forth in Subpart M is
not binding upon Subpart R, it remains to be determined if the Secretary’s definition of “zone of
danger” in regards to the cited standard is entitled to CF&I deference. I find that no such
deference is required here.
Whether the Secretary has consistently applied her interpretation is a factor in
determining the reasonableness of the Secretary’s interpretation of a standard. CF&I at 157.
Particularly relevant is Fastrack Erectors, 21 BNA OSHC 1109 (No. 04-0780, 2004)(ALJ). That
case involved the same standard and similar facts as here. Employees were working on an
unguarded deck 3 feet by 22 feet. The deck was unguarded at its narrow end. The evidence
demonstrated that the employees never had occasion to be closer than six feet from the
unguarded edge. Finding that the evidence established that employees were “at least” six feet
from the edge, the Administrative Law Judge (ALJ) vacated the item. Importantly, the CO
conceded that the issuance of the citation “might have been affected” had he known that
employees would not come closer than six feet of the edge.6 Nowhere in that case did the
Secretary suggest that the entire deck constituted a “danger zone.” Clearly, there does not appear
to be any consistency in the Secretary’s definition of the “danger zone” as it applies to the cited
standard.
While the Secretary may announce her interpretation of a standard for the first time in a
citation, the decision to use a citation as the initial means for announcing a particular
interpretation may bear on the adequacy of notice to regulated parties (CF&I at 158). Unlike the
situation with Subpart M, the Secretary points to nothing in the preamble to Subpart R, nor to
any Letter of Interpretation or other official documentation, that indicates that she considers the
entire deck a zone of danger. Indeed, in Fastrack Erectors, the Secretary suggested that there
was no exposure unless an employee came within six feet of an unguarded edge. This suggests
that the steel erection industry has not received notice of the Secretary’s interpretation. As noted,

6
I recognize that the Secretary is not bound by the interpretations of its compliance officers. Field & Associates,
Inc., 19 BNA OSHC 1379, 1381 n.8 (No. 97-1585, 2001). Rather the relevance of the CO’s statement in Fastrack
Erectors is that it suggests an uncertainty and lack of consistency regarding the meaning of “zone of danger” as it
relates to the cited standard.
supra, Tricon’s Safety Policies and Procedures, prepared in conjunction with Miller Safety,
which for the most part, is the SESAC, states that:

            “Exposed” in accordance with SESAC and industry custom, policy and
   practice means working within six feet of any unprotected side or edge, including
   but not limited to , holes, leading edges, and floors, mezzanines, roofs , etc.

(Ex. R-1 at p. 42).
Finally, I decline to conclude that the Secretary’s burden of proof is automatically
abrogated without considering the size and pitch of a given deck, the weather and other
physical conditions, and duration of the employee’s presence thereon. Indeed, under the
Secretary’s interpretation, an employee who steps on a deck for a few seconds to retrieve
a tool, 100 feet from the nearest unprotected edge, would be required to be tied-off. I do
not find that an interpretation that mandates such a result is reasonable, especially when it
makes its first appearance in this litigation.
Accordingly, I find it inappropriate to defer to the Secretary’s interpretation of “zone of
danger,” which is presented here for the first time, apparently, contradicts her previous position
on this matter, provided no notice to employers and is unreasonable as a blanket rule.

    Employee Exposure
        Having rejected the Secretary’s assertion that the entire deck constituted a “zone of

danger,” the question remains whether Respondent’s employees were in the “zone of danger.”
Respondent asserts that the “danger zone” is six feet from an unguarded edge. As noted, it
produces no authority to support this assertion. However, as noted, in Fastrack Erectors, the ALJ
threw out a citation for an alleged violation of the same standard because the evidence
established that employees had no reason to approach closer than six feet to the edge. Indeed, the
CO in Fastrack Erectors opined that had he realized this fact, he might not have issued the
citation.
The instant deck was 100 by 65 feet. The evidence establishes that the only task the
employees were performing was screen and layout work near the center of the deck. During the
course of their work, employees would approach no closer than twelve feet from an unguarded
edge. In one instance, an employee approached the welder which was no closer than six to seven
feet from the edge of the deck.7 There is no evidence to suggest that it was reasonably
predictable that employees had any reason or occasion to wander around the deck, or that in the
course of their assigned working duties or their personal comfort activities while on the job, they
would come any closer to the edge of the deck. Even if they were to perform other tasks later that
day, there is no evidence to suggest that they would have violated Tricon’s work rule and not
have worn appropriate fall protection. Moreover, the evidence establishes that employees were
be tied-off to a safety cable until they were either ten feet from the edge when accessing the deck
or ten feet of the edge when leaving the deck.8 Although it was windy, there is no evidence that
employees were carrying anything that could serve as a wind catch. Furthermore, there is no
evidence that it was or had been raining or that the deck was wet or slippery.9
The Secretary stresses that although it was expected that the crew knew that they were
within six feet of an edge by counting the number of three foot decking sheets between
themselves and the edge, Tricon failed to establish that it formally trained employee in this
method, or that employees were ever trained to determine when they were within six feet of an
unguarded edge. However, there is no evidence that employees ever violated the rule. Moreover,
nothing in the citation alleges a failure to adequately train employees.
The evidence establishes that whenever employees could be expected to approach six feet
of an unguarded edge they were required to wear fall protection. (Ex. R-1, p. 42). The only
reason this crew was not wearing such protection is that it was not reasonably predictable that
they would enter the “danger zone.” There is no evidence that they did not understand the deck
counting system used by Tricon. No crewmember was ever out of sight of Foreman Moore who
understood the six-foot rule, knew how far six feet was, and understood that the any employee
coming within two deck sheets of the edge had to be protected.

     I do not find it necessary to set forth a general premise establishing the distance from an

unguarded edge that constitutes a “zone of danger.” Rather, I find that the distance could vary
from the nature of the work and the physical and weather conditions on a deck. In that regard, I

7
Mr. Moore estimated that the welder was 9-to-10 feet from the edge. (Tr. 190).
8
Although the CO testified that employees were not tied off when using the ladder, this testimony was pure
speculation. He never saw any employee use the ladder, (Tr. 66, 82, 103), and the evidence establishes that
employees were tied off when accessing or leaving the deck. (Tr. 153, 181-184).
9
This is not to suggest that, on an appropriate set of facts, an entire deck of the dimensions here could not constitute
a danger zone. However, the burden would be on the Secretary to demonstrate that, even when approaching no
closer than 12 feet from an unguarded edge, employees could fall from the deck. Here, the Secretary has made no
such showing.
find that Respondent’s six-foot10 distance to be as arbitrary as the Secretary’s “entire deck”
theory. While it is hard to comprehend a situation where the “zone of danger” would be less than
six feet, under the proper circumstances, a six foot rule may not be sufficient. What does matter
is that it is the Secretary’s burden to establish that the Tricon employees, in the course of their
assigned working duties, their personal comfort activities while on the job, or their normal means
of ingress-egress to their assigned workplaces, were in a zone of danger. Fabricated Metal
Products; Gilles & Cotting, Inc., supra. Here, the Secretary has failed to make that showing and
the citation must be vacated.
ORDER
Based on my findings of fact and conclusions of law set forth in this decision, it is
ORDERED that:
Citation 1, item 1 for a violation of serious violation of 29 C.F.R. §1926.760(a)(1) and the
Notification of Proposed Penalty are VACATED.
SO ORDERED.

                                                             _/s/_____________________________
                                                              The Honorable John H. Schumacher
                                                                    U.S. OSHRC Judge

Dated: September 5, 2012
Denver, CO

10
I note that, contrary to Mr. Vivian’s testimony, the evidence does establish that Tricon has a work rule prohibiting
employees from coming within six feet of an unguarded edge. (Tr. 66).