Monitor Construction Company

Plain-English summary

Monitor Construction erected concrete formwork for a parking garage at a Cincinnati shopping mall. OSHA cited 16-inch-wide, 30-inch-deep beam troughs that were not covered or guarded and an open deck edge nearly 10 feet above the ground. The Commission held that the troughs qualified as floor openings even though they were not bottomless and rejected Monitor's notice and infeasibility arguments because the standard applied and Monitor did not show that covers or other protection were unavailable. It agreed that the floor-opening violation was serious but not repeated because an earlier citation involving a damaged manhole cover presented a different hazard and required different abatement. The Commission also affirmed the serious open-sided-floor item, finding that Monitor had not proved all alternative protection infeasible even if guardrails at an active leading edge were impractical. It assessed $300 for the floor-opening item and $960 for the open-sided-floor item, for a total of $1,260.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.500(b)(1) and 1926.500(d)(1).
• Outcome: Modified. Both fall-protection items were affirmed, but the floor-opening item was classified as serious rather than repeated; total penalties were $1,260.
• Key point: An infeasibility defense requires proof that alternative protection is unavailable, and a prior violation supports repeat classification only when the hazards are substantially similar.

Full text (OSHRC public release)

                                   UNITED   STATES OF AMERICA
       OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                    One Lafayette Centre
                              1120 20th Street, N.W. - 9th Floor
                                 Washington, DC 2003&3419


                                                                                           .
                                                                                         L%(202) 6o6-509
                                                                                         Frs(202) 606-so50

SECRETARY OF LABOR,

             Complainant,
                                                      ..
     v.                                               : OSHRC Docket No. 914807
                                                      0
                                                      .

MONITOR CONSTRUCTION CO., ..

             Respondent.



                                            DECISION

BEFORE? FOULKE, Chairman, and MONTOYA, Commissioner.
BY THE COMMISSION:
At the time of the inspection by representatives of the Occupational Safety and
, Health Administration (“OSHA”) in May 1991, Monitor Construction Company (“Monitor”)
sented as the subcontractor for the erection of the underlying formwork for a concrete
parking garage at a shopping mall in Cincinnati, Ohio. Following the inspection, the
Secretary of Labor issued a citation alleging numerous violations of the Occupational Safety
and Health Act of 1970, 29 U.S.C. 55 651-678 (“the Act”). The parties settled all but the
following two citation items: Repeat citation 2, item 1, in which the Secretary alleged a
repeated violation of 29 C.F.R. 0 1926.500(b)(l) for Monitor’s failure to guard or cover a
floor opening; and Serious citation 1, item 5, in which the Secretary alleged a serious
violation of 29 C.F.R. 0 1926SOO(d)( 1) for the company’s failure to guard an open-sided
floor. The judge affirmed both items, but reduced the characterization of the floor opening
item to serious. Both parties petitioned for review.
 2

                    FLOOR-OPENING              ITEM - Section 1926.500(b)(l)
                                     I. Merits of the Violation
   Under the concrete formwork system used in this case, called the garage beam system

(“GBS”) or Symons system, each section or bay consists of plywood decking laid between
two long steel beam forms (“beam troughs”), spaced 20 feet apart. The 570foot-long beam
troughs separating the decked bays are 16 inches wide and 30 inches deep. Another
contractor later places steel rebar in the troughs and another eventually pours concrete over
the entire surface of the formwork, four bays at a time. The Secretary cited Monitor under
the floor-opening standard, 29 C.F.R. $ 1926.500@)(l),’ for failing to guard or cover the
30-inch-deep beam troughs.
Judgse’sLkcisbn
The judge affirmed the item. He rejected Monitor’s argument that section
1926.500(b)(l) is preempted by sections 1926.700-706, which govern concrete formwork.
Relying on John Qthhn, t/a QubzkznEntep, 15 BNA OSHC 1780, 1992 CCH OSHD
ll 29,765 (No. 91-2131, 1992), the judge found that because the concrete and masonry
standards at sections 1926.700-706 did not address the hazardous conditions cited in this
case, they did not preempt section 1926.500(b)(l) Tom applying. He affirmed the section
1926.500@)( 1) citation. The judge implicitly rejected Monitor’s argument that a floor
opening must be bottomless for an employee to be able to “fall through” it as specified by
the standard, citing Nationa Indus. Con.stz,Inc., 10 BNA OSHC 1081, 1981 CCH OSHD
li 25,743 (No. 764507,198l) (“NIC”). The judge found the violation not to be “repeated”
because the previous violation (an inadequate manhole cover) was not, in his view,
substantially similar to the current violation. He recharacterized the violation as serious,

‘The standard provides:

      ($1926.500   Gus          hambails,   and awers.
      ....
      (b) Gumding of floor openings and floor holes. (1) Floor openings shall be guarded by a
      standard railing . . . or cover, as speciiied in paragraph (f) of this section.

“Floor opening” is defined at section 1926.502(b)
as “[a@ opening measuring 12 inches or more in its least
dimension in any floor, roof, or platform through which persons may fall.” Paragraph (f) sets forth standard
material specifkation~ for railings and covers.
 3

noted that the likelihood of an accident was remote, and reduced the penalty proposed by
the Secretary from $3,000 to $300.

    Monitor claims that the cited standard, section 1926.500(b)(l), is not relevant to and

does not apply to the beam troughs in this case, but maintains that this is not a question of
“preemption.” The company does not argue that sections 1926.700-706 are the exclusive
source of regulation of concrete formwork. Monitor argues instead that it lacked fair notice
that section 1926500(b)(l) applied. It claims that a standard must give employers fair
warning of the conduct which it prohibits or requires. See, e.g., General Electric Co. v.
OSHRC, 583 F.2d 61,67 (2d Cir. 1978) (not every elevated surface is a platform) and Race
Indus., Inc., 8 BNA OSHC 1227, 1980 CCH OSHD 1 24,376 (No. 15350, 1980) (same);
Liibon Contrac., Inc., 11 BNA OSHC 1971,1984-85 CCH OSHD lI 26,924 (No. 80,97,1984)
(a backhoe is not a crane); Lmger Roofing& Sheet Metal, Inc. v. Secretaryof Labor, 524 F.2d
1337 (7th Cir. 1975) (a roof is not a floor). Monitor argues,, similarly, that concrete
formwork is not a floor and the beam troughs are not floor openings.
Monitor contends that the standard is ambiguous and, without citing precedent, urges
the Commission to look to industry custom and practice to determine what the standard
requires. Monitor’s witnesses, including Jaines Vaughan, a consultant who was formerly an
OSHA area director, testified that it was not industrvfl Dractice
A
to wguard or cover beam
troughs. Vaughan also stated that as a compliance officer, he had never cited beam troughs
i ’

as floor openings. Monitor also claims that OSHA’s stated intention to “clarify” the fall
protection rules in 1986 reveals OSHA’s own awareness of problems with sections 1926.500-

502. Finally, acknowledging that the judge was bound to follow Commission precedent,
     Monitor urges the Commission nevertheless to reconsider and reverse its decision in AK
     (opening need not be bottomless to pose a “fall through” hazard). The company adds that
     the Secretary’s interpretation -- that openings at least knee-deep, such as the 25.inch-deep
     cylinders in NIC or the 304nch deep beam trough in this case, constitute a hazard -- is
     inconsistent with his position that an open-sided floor does not constitute a hazard until it
     is 6 feet above the ground.
      4

     Monitor also asserts that installing guardrails along both sides of the trough would
     

     have been infeasl’ble.

     The Secretary casts Monitor’s position that section 1926.500(b)(l)                 is “not relevant”
     

     as a claim that sections 1926.700-706 preempt sections 1926.500-502. The Secretary
     concludes that since sections 1926.700-706 say nothing2 about falls from formwork and the
     company does not claim otherwise, the Quinh case, relied on by the judge, requires that
     where, as here, the more specifically applicable standard makes no provision for the
     particular hazard at issue, there is no preemption of a standard that does. The Secretary
     maintains that the 1986 proposed amendments relied on by Monitor establish that sections
     1926.700-706 were not among those sections designated as preempting sections 1926.500-502,
     and moreover, that an acknowledgement that greater clarity is desirable does not constitute
     a concession that the present standard is unenforceable. See Power Sys. Lliv., United Tech.
     Cop., 9 BNA OSHC 1813,1816,1981 CCH OSHD 125,350, p. 31,467 (No. 7901552,198l).
     With respect to Monitor’s charge that the standard is ambiguous, the Secretary
     counters that Monitor is confusing breadth with ambiguity. He points out that the standard
     makes no distinctions among types or sizes of openings (other than the one size requirement
     that the opening be at least 12 inches in its least dimension),3 and that it was appropriate
     in issuing the standard to use a general term without attempting to produce an encyclopedic
     listing of every possl%le kind of opening, including beam troughs. Because the definition of
     floor opening, while broad, is not ambiguous, industry practice is irrelevant, he argues. See,
     e.g., Ed TaylorCOUP. Co. v. OSHRC, 938 F.2d 1265, 1272 (11th Cir. 1991); State Sheet Metal
     Co., 16 BNA OSHC 1155,1159, 1993 CC-H OSHD V 30,042, p. 41,225 (No. 90-1620, 1993)
     (consolidated cases).

?he only till hazard addressed in sections 1926.700-706is a fall while placing or tying reinforcing steel higher
than 6 feet above the ground. Section 1926.701(f)(2).

%is means that if the M-inch-wide beam troughs had been a few inches narrower, the standard would not
have applied
 5

      The Scope and Application       subsection of the’concrete         formwork standards, section

1926.700(a), provides that “[i]n addition to the requirements in [this subpart], other reZevant
provisions in parts 1910 and 1926 apply to concrete and masonry construction operations”
(emphasis added). According to Monitor, the floor opening standard at section
1926.500@)( 1) is “not relevant” in this case. It is not claiming, however, that sections
1926.700-706 are the exclusive source of regulation of concrete formwork operations or that
they preempt sections 1926.500-502. Nor is Monitor arguing that some other standard is
more specifically applicable, or even, as the Secretary suggests the company might be, that
the concrete and masonry construction standards deliberately left the hazards in this case
unregulated. Regardless of the nomenclature, Monitor’s contentions still amount to a
“preemption” argument. As the judge pointed out, the Quit&m case4 reaffirmed that where
general standards provide meaningful protection to employees beyond the protection
afforded by the specific steel (or as here, concrete) construction standards, the specific
standards do not preempt the general ones. Id. at 1782 (citing Bratton Cop., 14 BNA
OSHC 1893, 1987-90 CCH OSHD Tl29,152 (No. 83-132, 1990)). Since the general fall
protection standard cited here does provide meaningful protection to employees beyond the
protection afforded by the specific construction standards, we conclude that it is not
preempted by the more specific concrete construction standards.
2. Notice
At the heart of Monitor’s argument is lack of notice. The cases Monitor cites all
stand for the proposition that an employer lacking fair notice of a standard cannot be found
in violation of the Act for failure to comply with that standard. Monitor claims that it had
no notice that section 1926.500(b)(l) would apply to the beam troughs because they were
not floor openings. Although this argument has a certain appeal, the definition of floor

‘?he Commission explained in Q&Ian that “[a]n analysis of which of two standards is more specifically
applicable appropriately begins with 29 C.F.R. 3 1910.5(c), a regulation which codifies the principle that when
more than one provision governs a particular hazard, the more specifically applicable provision prevails.”
@nlan at 1781.
 6

opening at section 1926502(b) clearly encompasses the beam troughs. It is true that the
troughs were an integral part of the prefabricated garage beam system and that they would
have to be open, uncovered and unguarded when they were fitted with rebar and filled with
concrete. At the time of the inspection, however, Monitor’s crew had not reached that stage
of construction. The walking-working surface was the plywood decking alone, and the
troughs presented openings in that surface.
Monitor urges the Commission to overrule the precedent established in the 1981 NC
case that a floor opening need not be bottomless to pose a “fall through” hazard. Monitor
offers no legal or factual basis on which the Commission might base such a reversal.
Moreover, the Commission recently reaffirmed the validity of that interpretation in Ceco
Cop. and McDevitt & Street Co., 1991 CCH OSHD li 29,455 (No. 89-2514, 1991)
(consolidated cases). In that case, the floor opening was a 10 x 12.foot pit, approximately
20 inches deep. In response to the employer’s argument, accepted by the judge, that an
employee could not “fall through” the cavity in question as required by the standard, the
Commission remanded to the judge with instructions to take into account the effect of the
NIC decision.
Monitor correctly notes that the Secretary alleges that floor openings only knee-deep
pose a hazard while section 1926.500(d) requires guarding of open-sided floors only when
they are 6 feet above the ground. However, the truth of this observation does not negate
the requirements of section 1926.500(b)(l). As a practical matter, it is hardly unreasonable
for the OSHA standards to reflect the likelihood that employees might have a heightened
awareness, and thus be more careful, when they approach the very edge of an open-sided
floor as compared to when they are moving forward from one spot to their destination in
sight, on flat ground.
Monitor mentions, at the very end of its discussion of this citation, that if the
company were to erect guardrails on both sides of the beam troughs, employees would be
forced to “climb under or around” the guardrails to get back and forth. According to
Monitor, this confirms that the standard was never meant to apply to the situation presented.
 7

As described by Monitor, this particular arrangement does sound infeasible? Even if
Monitor proved that one method of compliance, Le., installing two sets of guardrails the
entire length of the troughs, was infeasible, however, it has said nothing about covering the
troughs instead of erecting guardrails, the alternative specified in the standard. Nor is there
evidence that other alternative measures were explored.
We therefore affirm the judge’s decision finding a violation.
II. Characterization ad Penalty
We now consider whether the violation was “repeated” under section 17(a) of the
Act, 29 U.S.C. 6 666(a)? The Secretary alleged that the violation was repeated and
proposed a penalty of $3,000.

    The judge declined to characterize the violation as repeated because he found that

the previous citation and the current citation were not substantially similar violations, as
required under Potlatch Cop., 7 BNA OSHC 1061,1979 CCH OSHD li 23,294 (No. 16183,
1979). Although the judge did not reveal in his decision precisely what factors he took into
account in reaching this determination, he mentioned that the previous violation was “at a
different site” and that the citation “dealt with Monitor’s failure to provide an adequate
temporary cover for a manhole,” Le., “involv[ed] a weakened manhole cover,” whereas the
present citation involved Monitor’s “failure to cover beam troughs in its formwork.”

‘Monitor never actually avers at the pleading stage that it is infeasible to comply with the guarding
requirement of either section 1926.500@)(l) or 1926.500(d)(l). However, the Secretary does not object that
the defense was not properly pleaded, and Monitor did raise in its brief an infeasibility defense, at least to the
section 1!326SOO(d)( 1) open-sided flmr violation. The judge found in connection with that item that Monitor
failed to prove the alternative protection element of the defense, see infka. Monitor’s infeasibility argument
here fails for the same reason.

%at section provides in part that “(a) Any employer who willfullyor tepecrtedty violates the requirements of
section 5 of this Act, any standard, rule, or order. . . or regulations . . gmay be assessed a civil penalty of not
more than $70,000 for each violation, but not less than $S,ooOfor each willful violation” (emphasis added).
 8

    Monitor     contends     that the judge properly       refused   to characterize     the section

1926.500(b)(l) violation as repeated because the previous citation and the current citation
were not substantially similar violations, as required under Potlatch. The previous citation
was for a violation of 29 C.F.R. 1926.500(f)(5)(ii).’ Monitor emphasizes that the previous
citation was not for an absolute failure to guard or cover, but for failure to have securely in
place a sufficiently strong manhole cover, and that the placement or strength of any cover
for the beam troughs in this case is not an issue because there were no beam trough covers.
The Secretary responds that in the law of repeated violations, any distinction between
an inadequate cover and an absent cover is a distinction without a difference. The hazard
addressed by both citations is stepping into an opening in a walking/working surface, and it
is the similarity of the hazards that is important, so differences in the location and other
circumstances are immaterial. See, e.g,, Kent Nowlin Corm. Co., 9 BNA OSHC 1306, 1308,
1981 CCH OSHD li 25,206, p. 31,129 (No. 76191, 1981) (consolidated cases); Hamilton
Fixture, 16 BNA OSHC 1073,1096-97, 1993 CCH OSHD ll30,034, p. 41,190 (No. 88-1720,
1993), appealfiled, No. 93-3615 (6th Cir. June 7,1993). The Secretary contends that the two
citations, though not for violations of the identical standard, are for violations of interrelated
standards. He argues that Monitor’s previous citation for ineffectively guarding a floor
opening apprised it of the guarding standard, providing heightened notice of the need to

‘That standard provides:

    1926.500 GtumbUs,      handrails, and covers.

    &mdard       speci$iCazims.

    $ *Floor opening covers shall be of any material that meets the following strength
    requirements:

    @ %he floor opening cover shall be capable of supporting the maximum intended load and
    so installed as to prevent accidental displacement.

After citing the standard, the previous citation stated:‘

    Employees walking or working near a manhole in the area between the general contractors
    and plasterer’s trailers, adjacent to parked cars, were exposed to the potential hazud of
    stepping on a split/partially broken plywood manhole cover, which was not secured in place.

9

abate hazards associated with entirety unguarded floor openings like the one in this case.
See Dun-Par En@. Fom Co. v. Marshall, 676 F.2d 1333,1337 (10th Cir. 1982). Any doubts,
argues the Secretary, should be resolved in favor of employee safety. FZiwr Coam V.
OSHRC, 861 F.2d 936, 942 (6th Cir. 1988) (if in doubt as to the nature of a requirement,
employers should take the safer position, or at least make appropriate inquiries).
Discussion
The Secretary may establish substantial similarity in several ways. He may establish
a prima facie case of similarity by showing that the prior and present violations are for
failure to comply with the Sallte standard, at which point the burden shifts to the employer
to rebut that showing. Potlatch, 7 BNA OSHC at 1063, 1979 CCH OSHD ll at 28,171. The
citations at issue in this case both fall within Subpart M, “Floor and Wall Openings,” but the
current one is for a violation of one paragraph, section 1926.500@)(l), specifying how and
when floor openings must be guarded or covered, whereas the other was for a violation of
another paragraph, section 1926.500(f)(5)@), specifying the strength and manner of
installation for covers. The Secretary never explicitly argues that the two are “the same
standard,” and the compliance officer admits that the previous violation was for “a different
standard.” The Secretary does note, however, that “Monitor is in no way aided by the fact
that 0 1926.500@)(l) was cited in the instant case while § 1926.500(f)(5)(ii) was cited
previously. The two provisions are interrelated. Section 1926.500(b)(l) expressly requires
that protection be afforded in accordance with the specifications of paragraph (f).” See
supra note 1.
The two standards, while “interrelated” on their face, cannot in this case be
characterized as being “the same standard.” When, as here, the current and previous
violations are of different standards, the burden remains the Secretary’s to show substantial
similarity. 1d It is true, as the Secretary points out, that the courts do not limit the concept
of repeated violations to factually identical occurrences. See, e.g., J.L. Foti Constr. v.
OSHRC, 687 F.2d 853, 856 (6th Cir. 1982). Furthermore, “under Potlatch, circumstances
such as the geographical proximity of the violations, the commonality of supervisory control
 10

over the violative condition, and the time lapse between the violations bear only on the size
of the penalty to be assessed, not on the ‘repeated’ character of the Infractions.” Id at 857.
Evidence on whether the two violations involve similar hazards, on the other hand,
is relevant to a determination of substantial similarity. Potlatch,7 BNA OSHC at 1063,1979
CCH OSHD at p. 28,172. In this case, it is the disparity of the hazards and the means of
abatement required that leads us to find that the present violation was not repeated. The
hazard posed by the earlier violation (the danger of falling into a manhole when its cover
breaks or shifts) is different from the hazard posed by this violation (the danger of stumbling
into a beam trough). The first hazard is hidden. The actual hazardous area is so small that
it could easily be overlooked, and the employee would expect the manhole cover to offer
the same support as the ground. The second hazard is in plain view, a familiar aspect of the
formwork design occurring at regular intervals, and obvious enough to test the very
applicability of the floor opening standard. The actual hazardous area is so large, length-
wise, that it is difficult to ignore, and so small, widthwise, that it is difficult to step into, the
natural reaction being to step over the gap. We find that the two openings at issue, the
hazards they pose, and the means of abatement they require are distinct -- the covering of
one opening so common a safety precaution on a construction site as to be elementary, the
covering of the other not routine at all, but technically required by the standard. This
difference in the hazards underscores the fact that “unless the employer has previously been
made aware that his safety precautions are inadequate, there is no basis for concluding that
a subsequent violation indicates the employer requires a greater than normal incentive to
comply with the Act.” George Hyman Corm Co., 582 F.2d 834,841 (4th Cir. 1978). Accord
J.L. Foti, 687 F.2d at 857 (citing “adequate notice” considerations set out in Hyman).
Accordingly, we find that the Secretary failed to establish that this violation was repeated
with the meaning of section 17(a) of the Act.
Serhsness
The judge, who found that the violation was not repeated, nevertheless found the
violation to be serious based on the compliance officer’s uncontradicted testimony that a slip
or fall approximately 30 inches into a beam channel could result in broken bones. Monitor
claims that any violation found should be characterized as “other than serious” instead of
 11

“serious” as alleged. We agree with the judge. The evidence establishes that should an
accident have occurred, the likely result would be serious physical harm within the meaning
of section 17(k) of the Act, 29 U.S.C. 0 666(k).
Although he found that the result of any accident that did occur would probably be
serious, the judge found that the likelihood of an accident was remote because the
employees were well aware of the presence of the beam troughs at their worksite. He
reduced the Secretary’s proposed penalty of $3,000, for a repeated violation., to $300, for a
serious violation. We concur with the judge’s determination that the violation was of low
gravity in light of how unlikely it would be for a tripping or falling accident to happen.8 In
view of Monitor’s size, history of violations, good faith and the low gravity of this violation,
we find that a penalty of $300 is appropriate.
OPEN-SIDED FLOOR ITEM - Section 1926.500(d)(l)
The construction plan used at the site in this case calls for plywood decking to be laid
between two 57.foot-long steel beam troughs spaced 20 feet apart. Concrete is poured over
the entire surface of the formwork, four bays at a time. Employees then erect capital forms
and other structures at what the parties call the “leading edge” of the decking, place the
next beam trough in the series, and continue to extend the plywood decking to form the next
bay. As the name implies, the leading edge is considered a continually moving boundary
only when employees are actively placing decking beyond that edge toward the next beam.
At the time of the inspection, although there was some activity at the edge of the ramp, it
was disputed whether employees were actively extending the ramp or were instead involved
in completing the decked area upon which employees were walking and working. The next
beam trough in the series had not yet been laid, nor had any plywood decking been installed
as part of the next bay.

%e only accident any of the witnesses could recall occurred on another project when an employee worldng
down in a beam trough setting decking bruised his knee as he was getting out The absence of a history of
accidents involving trips or falls into the beam troughs, while irrelevant to whether a violation exists, may be
considered in detem g gravity. Brennm v. Smoke-CraF, Ihc, 532 E2d 843 (9th Cir. 1976). Accord Allis-
Chukka Cop. v. OSHRC, 542 E2d 27 (7th Cir. 1976) (while not determinative, an employer’s accident-free
record may be considered).
 12

    The hazard at issue here is that of falling off the open-sided floor at the north end

of the deck to the ground nearly 10 feet below. Monitor was charged with a serious
violation of 29 C.F.R. fj 1926.500(d)(l)g for failing to erect a standard guardrail to protect
the open-sided edge of the deck.

    After rejecting Monitor’s applicability and preemption            arguments, see supm, the judge

considered Monitor’s defense, that it was infeasrble to install guardrails at the leading edge
of construction. Never explicitly ruling that the north end constituted the leading edge at
the time of the inspection, the judge found as a general principle that it is infeasible to
install guardrails at the leading edge of construction, citing Dun-Par Erzgd.Fom Co., 12 BNA
OSHC 1949, 1959, 1986 CCH OSHD ll 27,650, p. 36,027 (“Dun-Par I-A”), r&d on other
grounds, 843 F.2d 1135 (8th Cir. 1988) (“[rlequiring an employer constantly to erect and tear
down guardrails or to have its employees work outside the guardrails in order to complete
their work is not a feasible method of complying with section 1926.500(d)(l)“). He further
found, however, that Monitor failed to prove the second prong of the infeasibility defense:
that alternative protective measures were used or were unavailable. See Seibel Mod Mfg.
& Welt@ Cop., 15 BNA OSHC 1218, 1991 CCH OSHD 128,507 (No. 88-821, 1991).
Monitor’s evidence of industry practice -- giving employees no protection at all -- alone was
found to be insufficient proof that alternative protection was unavailable.
The judge affirmed the violation as serious, but reduced the penalty from $1,200 to
$960 to reflect a restoration of a good-faith adjustment.”

%e standard provides:

    jj 1926.500 Guardmils,   handrails, and covers.
    ...
    (d)             of open-w                     and nmways. (1) Every open-sided floor or
    platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard
    railing. . . on all open sides. . . .

9he cnmplian ce officer testified that he withheld a good-faith adjustment to the penalty for ttris citation
because the other citation was classified as “repeated,” negating any entitlement to a good-faith adjustment
to anypenalty leveled against Monitor for any citation issued as a result of this inspection. Having found that
the other citation was improperly classi&d as repeated, the judge determined that Monitor’s good faith
warranted a reduction in penalty.
 13

    Monitor argues that the judge erred and that Monitor did establish the infeasibility

defense. Citing an excerpt from OSHA’s notice of proposed rulemaking for fall protection,
Monitor claims that the Secretary has already conceded that guardrails, nets, and safety lines
are infeasible at the leading edge. See 51 Fed. Reg. 42721 (Nov. 25, 1986).
The Secretary does not deny that guardrails generally can be infeasible at the leading
edge,” and seems to accept Monitor’s showing that neither safety belts nor nets were
practical at this site in particular. The Secretary argues, however, that Monitor fell short of
proving that there was “rto feasible alternative measure,” Seibe, 15 BNA OSHC at 1228,
1991 CCH OSHD at p. 39,685 (emphasis added), because all forms of protection must be
considered and shown to be unavailable. See State Sheet Metal Co., 16 BNA OSHC at 1161,
1993 CCH OSHD at p. 41,227, and Brock v. Dun-Par Engd Fom Co., 843 F.2d at 1138-39.
The Secretary suggests at least two compliance options -- safety monitoring systems and
rolling scaffolds -- as unexplored alternatives.
Dikmhn
The parties dispute whether the unguarded, north end of the ramp was actively
serving as the leading edge at the time of the inspection in this case. Resolving that factual
issue is not necessary to determine the outcome here, however. Taking the facts in the light
most favorable to Monitor, we assume that the north end HIQSin fact the leading edge, Le.,
that employees were at the edge actively enlarging the deck, and assume further that the
constant building and dismantling of guardrails would interfere with installation of the
decking, rendering guardrails infeasible.
The Secretary essentially admits that guardrails, nets and lifelines are not feasible at
the leading edge of the structure in this case, but maintains that even if Monitor has shown
the infeasibility of certain abatement methods, it has failed to show “that there was IZO
feasible alternative measure.” See Seibel, 15 BNA OSHC at 1228, 1991 CCH OSHD at p.
39,685 (emphasis added). We agree. The Secretary suggested a number of other methods

“The Secretary, for h& part, agrees that in this case guardrails are infeasible at the leading edge, but only
when work is actually in progress to extend the decking.
 14
of fall protection which are mentioned in other construction standards of which Monitor
should have been aware.
We therefore affirm the judge’s finding that Monitor failed to establish the affirmative
defense of infea&ility because it failed to show that alternative means of protection were
in use or unavailable.
The judge found the violation to be serious, noting the compliance officer’s testimony
that a fall from approximately 10 feet would, in all probability, result in broken bones. We
agree with the judge. The evidence establishes that if an accident occurred the likely result
would be serious physical harm within the meaning of section 17(k) of the Act, 29 U.S.C.
8 M(k).
In view of Monitor’s size, history of violations, good faith and the gravity of this
violation, we find that the judge’s penalty assessment of $960 is appropriate.
ORDER
Accordingly, we iind as follows:
(1) The judge’s decision af%ming the floor-opening item, Repeat citation 2,
item 1, as serious but not repeated is af!lirmed and a penalty of $300 is
assessed.

    (2) The judge’s decision a&ning     the open-sided floor item, Serious citation
    1, item 5, is afIirmed and a penalty of $960 is assessed.

The total assessed penalty, attributable to the items on review, is $1,260.

                                                          Edwin G. Foulke, Jr.
                                                          Chairman



                                                          Velma Montoya
                                                          Commissioner

Date& February 8, 1994
,- UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

 PHONE
 COM(202)606-6100
 Frs(202)6ocbs100




                                                     ..

    SECRETARY           OF LABOR,                     ..
                                                     .
                       Complainant,                  ..
                                                     ..
                v.                                   ..      Docket No. 914807
                                                     .

   MONITOR CONSTRUCTION                              ;
   COMPANY,                                          ..

                       Respondent.




                                      NOTICE OF COMMISSION DECISION

   The attached decision by the Occupational Safety and Health Review Commission was issued on
   Februarv 8.1994. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISHES
   TO OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE
   APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE OF THIS
   DECISION. See Section 11 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 5 660.



                                                            FOR THE COMMISSION


   February 8, 1994                                                                  l




   Date
                                                            Executive Secretary

Docket No. 91-1807

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. h&k, Esq.
Counsel for Regional Trial Litigation ,
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

William S. Kloepfer, Esq.
Associate Regional Solicitor
Office of the Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199

Roger L. Sabo, Esq.
Schottenstein, 20x & Dunn
41 South High Street, Suite 2600
Huntington Center
Columbus, OH 43216

Benjamin R. Loye
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 250
1244 North Speer Boulevard
Denver, CO 80204-3582
 .-
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
7825 K STREET NW
4Tt-i FLOOR
WASHINGTON, DC 20006-1246

                                                                                          FAX
                                                                                          COM (202)6344GC8
                                                                                          FTS (202)634-4008

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 91-1807
MONITOR CONSTRUClION CO.
Respondent.

                         NOTICE OF DOCKETING
                  OF ADMINISmTIVE   LAW JUDGE’S DECISION
 The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on November 16, 1992. The decision of the Judge
will become a final order of the Commission on December 16, 1992 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PEmON FOR DISCRETIONARY REVIEW.
Any such petition should be received by the Executive Secretary on or before
December 6 1992 in order to ermit sufficient time for its review. See
Commission’Rule 91, 29 C.F.If: 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1825 K St. N.W., Room 401
Washington, D.C. 20006-1246
Petitioning parties shall also mail a copy to:

                          Daniel J. Mick, Esq.
                          Counsel for Regional Trial Liti ation
                          Office of the Solicitor, U.S. DOf
                          Room S4004
                          200 Constitution Avenue, N.W.
                          Washington, D.C. 20210

If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 634-7950.

                                               FOR THE COMMISSION

Date: November 16, 1992
DOCKET NO. 91-1807
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOgL
Room S4004
200 Constitution Ave., N.W.
Washington., D.C. 20210

William S. Kloepfer
Assoc. Re ‘onal Solicitor
Office of tK:e Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199

Rober L. Sabo, Esq.
Schottenstein, 20x & Dunn
Huntin on Center
41 Sou $ Hi Street
Columbus, 8 H 43215

Benjamin R. Lo e
Administrative L w Jud e
Occupational Safety an B Health
Review Commissron
Room 250
1244 North S eer Boulevard
Denver, CO tf0204 3582

00103273447 : 05
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1244 N. SPEER BOULEVARD
ROOM 250
DENVER, COLORADO 80204-3582

PHONE
COM (3031 844-2281
FTS (303) 844-2281

SECRETARY OF LABOR,

                                          Complainant,

       v.                                                                      OSHRC DOCKET
                                                                               NO. 914807

MONITOR CONSTRUCI’ION COMPANY,

                                          Respondent.


       APPEARANCES:

                          For the Complainant:
                                  Kenneth Walton, Esq., Office of the Solicitor
                                  U. S. Department of Lab&, Cleveland, OH

                          For the Respondent:
                                  Roger L Sabo, Esq., Columbus, OH




                                                  DECISION AND ORDER

Loye Judge:
This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C.,
Section 651, et. sea, hereafter referred to as the Act).
Respondent, Monitor Construction Company (Monitor), at all times relevant to this action
maintained a worksite and place of business at 615 Elsinore, Cincinnati, Ohio where it was
engaged in form work construction (Answer ll3). Monitor does not dispute Complainant’s
contention that it is an employer engaged in a business affecting commerce and is subject to the
requirements of the Act (Answer fl4).
 a by M 1991 an hpational Safety and Health Administration (OSHA) ChmpGmce
officer (co) conducted 811itwpection of Monitor’s Elsinore worksite (Tr. 23). Following the
inspection, Monitor was issw .. citations alleging violations of the Act together with proposed
penalties. Monitor filed ti tknely notice of contest, bringing this proceeding before the Occupa-
tional Safety and Health Review Commission (Commission).
On July 14, 1992 a hearing was held in Cincinnati, Ohio. At the hearing the parties
stipulated to the settlement of all items but Citation 1, item 5, alleging a “serious” violation of 29
C.F.R. ~1926SOO(d)( l), and Citation 2, item 1, alleging a “repeat” violation of $1926.5OO(b)(1)
(Tr. 6-7). The parties have filed briefs on the items remaining at issue and this matter is now
ready for disposition.
Alleged Violations
Serious citation 1, item 5 states:
29 CFR 1926500(d)(l): Open-sided floors or platforms, 6 feet or more above adjacent floor or
ground level, were not guarded by a standard railing or the equivalent on alI open sides.

    (a) Along the second level northside of the parking garage form work pl&&~            there was
    an approximate 57” long open end which was not protected by standard                  guardrails
    exposing employee(s) working in the area to a fall potential of 9’1OZ

    The cited standard provides:

    (d) Guarding of open-sided jloors, phtjiom.~, 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)(l)(i) of this section, on all
    open sides, except where there is entrance to a ramp, stairway, or fixed ladder.. . .

    Repeat citation 2, item 1 alleges:

29 CFRl926.500@)(1): Floor openings were not guarded by standard railings and toeboards or
covers as specified in paragraph (f) of this section:

    (a) On the 2nd level of the parking garage structure employees(s) (sic) were observed
    working beside or walking over approximately five 16” x 57’floor openings which were not
    protected by standard guardrails or secured covers.

    The Monitor Construction Co. was previously cited for a violation of this Occupational
    Safety and Health standard or its equivalent standard 29 CFR 1926.500(b)(l): which was

contained in OSHA inspection number 101319440, citation number 01, item number ~1,
issued on 11/08/88.

  The cited standard states:

  Guuniing of floor opmings and floor holes. (1) Floor openings shall be guarded by a
  standard railing and toeboards or cover, as specified in paragraph (f) of this section. In
  general, the railing shall be provided on all exposed sides, except at entrances to stairways.

                                           FACT’S

  The facts regarding the alleged violations are undisputed.
  On the dates of the OSHA inspection, Monitor was engaged in the construction of concrete

form work for a “GBS” (garage beam system) parking garage ramp at the Forest Fair Mall (Tr.
25, 187; Ex. R-4). In GBS construction, a 57’ long steel beam form is placed every 20’ along the
path of the ramp; high density plywood is placed between the beam forms and secured; steel Mar
is placed within the hollow beam forms and across the plywood; concrete is then poured into the
resulting form work (Tr. 26, 49, 6869, 126).
A Monitor employee is required to work inside the beam channel when ins-g the
plywood deck behind him, which takes a half hour to 45 minutes (Tr. 129-130, 170, 202, 250).
Work then continues on the deck while the next beam form is being positioned: capital forms are
aligned at the beam and nailed off (Tr. 128, 159); edgeforms are installed along the sides of the
deck to restrain the concrete (Tr. 145, 169, 225); bulkheads are constructed across the width of
the ramp approximately every four bays (Tr. 145, 233, 243). As the work on the deck is
completed, the next beam form is being set in place (Tr. 249). Setting the beam takes --
approximately an hour (Tr. 247, 249).
Guard rails are installed on the outside edges of the ramp “within hours” of its completion
(Tr. 196, 232), but no guarding is placed on the leading edge of the ramp while the work is in
progress (Tr. 77, 233).
Monitor was the subcontractor only for the erection of the underlying formwork; the rebar
and concrete work was performed by other subcontractors (Tr. 4647,71, 188). Between the time
the plywood deck was completed and the rebar subcontractor began its work, the deck was used
by Monitor employees as a walkway to transport materials to the work area and to descend from

                                              3

the work area fur breaks (Tr. 53, 143). Employeesusingthe deckas a walkway were required to
step Over the 1C gaps between the plywood created by the beam channels (Tr. 28, 35-36, 4).
The beam channels were 30-31”deep (Tr. 36,73). The beam channels were not guarded in any
way (Tr. 55).
At the time of the inspection, Monitor was five sections ahead of the rebar work (Tr. 50).
The CO estimated that the ramp would remain open and available for use as a wallcway for up
to a “couple of days” (Tr. 50). Galbraith testified that it took three days for the rebar
subcontractor to complete rebarring in a single pour area, the same amount of time it took
Monitor to deck one floor (Tr. 123, 141); at the Forest Fair job, the pours were four ‘bays’: or
beams wide (Tr. 137) .
At the time of the inspection, the GBS ramp had been completed about half way up the
second level (Tr. 25). The edge of the ramp was 9’10” above the surface below (Tr. 39). There
was no beam ready to receive the next decking sheet (Tr. 245). Employees were working on the
deck, and one employee, Lester Kunkle, knelt on the unguarded front edge of the ramp while he
worked on the capital column form (Tr. 33, 39, 124, 159; Ex. C-3).
Monitor claims that guarding the leading edge of the parking ramp is infeaslible. James
Vaughn, a safety and health consultant (Tr. 257), testified that the employer would constantly be
putting up railings and taking them down, interfering with completion of the work (Tr. 279). Giles
Galbraith, Monitor’s superintendent of field construction (Tr. 121), testified that as soon as Kunkle
was finished, they would begin setting the next form (Tr. 132). Galbraith knew of no other
contractors using guardrails on the advancing edge in GBS construction (Tr. 136). Vaughn
testified that guardrails are generally installed only when work is stopped for a long period (Tr.
274) .
The investigating CO, Steven Medlock, admitted that OSHA does not necessarily require
fall protection when construction is proceeding outward from a leading edge (Tr. 103), but noted
that the employee he photographed was not engaged in extending the leading edge at the time
of the inspection (Tr. 114).

                                                  4

Alleged Violation of 61926.5OO~d)(l~
&tion 192630(d)(1) requires that open sided floors be guarded by a standard railing.
Monitor admits that such guardrails were provided along the leading edge of the GBS ramp.
Rather, Monitor raises the affirmative defenses of preemption and of infeasibility.
Reemption
Monitor argues that concrete form work is governed by Subpart Q, Concrete and Masonry
standards at $1926.700 et seq., and that the guardrail requirements of ~1926.500 et seq. are
preempted by the more specific standards set forth in that section (Tr. 26445).
However, in a recent case, John Quinkan,t/a Quinlan Entepises, 15 BNA OSHC 1780
1992 CCH OSHD 129,765 (No. 91-2131, MU), the Commission recognized that general construc-
tion standards are applicable to specifically regulated industries to the extent that no specific
standard applies to the condition or practice cited. Specifically, the Commission held that general
construction guardrail standards at $1926.500 were applicable to steel erection where the general
standards provided meaningful employee protection fkom specifically descriid hazards, i.e. open
sided floors, which were not addressed by the industry specific standards. Id.
The undersigned finds Quinlun controlling here. Subsection Q does not address the hazard
presented by open sided floors or work platforms, or by unguarded floor openings; fj1926.500 et
seq. is thus applicable where those conditions are present.
Monitor maintains that the GBS ramp is not a floor or platform; however, the undersigned
finds this argument disingenuous. It is clear that the GBS ramp is used as both a walking and
working surface, and that Monitor recognized the applicability of $1926.500 et seq., when it erected
guard rails on the outside edges of the ramp (Tr. 196, 232).’

1 Monitor’s reliance on an unreviewed AU’s decision, Ceco Cotp., 14 BNA OSHC 1287, 1989 CCH
OSHD lI28,633 (No. 88-6%, 1989), is misplaced. In that case workers routinely walked on and worked
from existing concrete or completed plywood decking, but were cited because employees occasionally
stepped onto incomplete open formwork The ALJ in that case held that such occasional use did not
convert the fomwork into scaffolding: a “temporary elevated platform and its supporting stnrcture used
for supporting workmen or materials or both.” The ALJ went on to note, however, that plywood decking
“constituted a formwork surface or floor.” Id. at 1288.

                                                  5

.

Infetzsib;ritv
Monitor’s principal defense is rather that installation of guardrails was infeasible. Monitor
maintains that the leading edge of the formwork platform was continuously advancing as work
proges@, a& he erection and tearing down of guardrails would unduly hamper completion of
Monitor’s work.
The Commission examined an almost identical scenario in Dun-Par Engineered Form Co.,
12 BNA OSHC 1949, 1986-87 CCH OSHD 127,650 (No. 79-2553, 1986) rev’d in puq 843 F.2d
1135 (8th Cir. 1988). The Commission agreed in that case that the repeated installation and
removal of guardrails on advancing concrete form work was an infeasr”blemethod of complying
with ~1926SOO(d)(1). Id at 1959-60. The Commission did not vacate the cited violation, however,
but remanded the case to provide the Secretary with an opportunity to shown the feasibility of
alternative protective measures. iii. at 1960-61.
The recent Commission case, Seibel M&em Mfg. & Welding Cop, 15 BNA OSHC 1218,
1991 CCH OSHD W&507 (No. 88-821, 1991), specifically overrules that portion of the Dun-Ptar
holding which places the burden of proof on the Secretary to show the existence of feasr’ble
alternative protection. Id at 1228. The Commission there stated that:
[Ajny employer seeking to be excused from implementing a cited standard’s abatement
measure on the basis of its infeasibility has the burden of establishing either that an
alternative protective measure was used or that there was no feasr’blealternative measure.

    Although Monitor demonstrated      that guardrails are an infeasible method of complying with

$1926.500(d)(l), it did not show that it provided alternative protection for employees working at
the unguarded leading edge of the ramp. Nor did Monitor introduce any evidence that alternative
protection was unavailable or impractical. The evidence in the record, i.e. that no contractor using
the GBS system utilizes guardrails, is clearly insufficient to meet Monitor’s burden of proof.
Monitor has failed to make out its affirmative defense and the cited violation must be
affirmed.
Penalty
The Secretary has proposed a penalty of $1,200.00.
Monitor is a medium size employer with 45 workers total (Tr. 61). Only six employees
were on the Forest Fair site (Tr. 24). Monitor has received other serious OSHA citations within

                                                6

the past three v (Tr. 62). The record contains no other evidence of bad faith; the OSHA CO
testified that Monitor did have a written safety program, together with weekly safety meetings and
was cooperative in fl respects during his inspection (Tr. 74,105). The Secretary did not, however,
allow credit for good faithbased on its issuance of a “repeat” citation for violation of #1926.500
(b)( 1) (Tr. 105-106).
The cited violation was properly cited as “serious.” A fall from 9’10” would, in all
probability, result in broken bones (Tr. 43). One employee was exposed to the hazard at the
leading edge while aligning the capital column (Tr. 118). Taking into consideration the relevant
factors, the undersigned finds the proposed penalty excessive. Monitor did not receive credit for
good faith based solely on the “repeat” citation it received as a result of this inspection. As
discussed below, however, the cited violation was improperly classified as repeated. Monitor is,
therefore, entitled to a further reduction for good faith. A penalty of $960.00 will be assessed.
Alleged Violation of 81926SOO(b)(1)
§1926SOO(b)(l) requires that floor openings be guarded by standard railings and toeboards
or covers. It is admitted that the GBS beam troughs were unguarded. Monitor disputes only the
applicability of the standard.
For the reasons discussed above, the undersigned finds that the GBS formwork constitutes
a “floor,” to which the cited standard is applicable.
In addition, the Commission has held that ~1926SOO(b)(l) applies to openings into which
an employee can fall to the level of the knee. National Indurnicll Constructors,Inc., 10 BNA
OSHC 1081, 1981 CCH OSHD 825,743 (No. 76-4507, 1981).
The cited standard is, therefore, applicable to the GBS beam troughs.
Penalty
The Secretary proposed a penalty of $3,000.00 for the cited violation.
Monitor was charged with a “repeat” violation based on a 1988 citation for violation of
~1926SOO(f)(S)(ii) (Tr. 58). The 1988 citation, however, dealt with Monitor’s failure to provide
an adequate temporary cover for a manhole at a different site (Tr. 80-83, 217; Ex. C-12).
The Commission has held that “[a] violation is repeated under section 17(a) of the Act if,
at the time of the alleged repeated violation, there was a final order against the same employer
.

for a subs-tidy similar violation.”Potlatch Copomtion, 7 BNA OSHC 1061, 1063, 1979 Cm
OSHD 123,294 (16183, 1979).
me undersignedfinds that the current violation, involvingMonitor’s failure to cover beam
troughs in its form work is not substantially similar to the 1988 violation involving a weakened
manhole cover.
The violation will rather be classified as “serious,” based on the CO’s uncontradicted
testimony that a slip or fall 30-31” into the beam channel could result in broken bones (Tr. 60).
The likelihoodof an accident occurring, however,is deemed remote. Monitor maintains that only
one accident has ever been reported in connection with the beam channels, an accident which
occurred when a Monitor employee was attempting to climb out of the channel he had been
working in, which resulted in bruising (Tr. 84, 133, 173). Although all the Monitor employees
were exposed to the hazard, they were well aware of the presence of the beam channels,w&h
form an integral part of the GBS forznwork structure.
Taking into consideration these factors, and those discussed above, the proposedpenalty
is deemed excessive. A penalty of $300.00 will be assessed.
Findings of Fact and Conclusions of Law
All findings of fact and conclusions of law relevant and necessary to a determination of the
contested issues have been found specially and appear in the decision above. See Rule 52(a) of
the Federal Rules of Civil Procedure. Proposed Findings of Fact or Conclusions of Law that are
inconsistent with this decision are denied.
Order .
Serious citation 1, item 1, alleging violation of 51926. 500(d)(l) is AFFIRMED and a
penalty of $960.00 is assessed.
Repeat citation 2, item 1, is AFFIRMED as a “serious” violation and a penalty of $300.00
is assessed.

                           Ju’dge, OSHRC

Dated: November 6, 1992