L. R. Willson & Sons, Inc.

Plain-English summary

L. R. Willson erected structural steel for an Army medical center and used a strict 100 percent tie-off policy. An employee disregarded that policy and a direct instruction, climbed a column without being tied off, and died after falling about 80 feet. OSHA cited the company for failing to maintain a tightly planked floor within two stories or 30 feet below the steel work. Judge Nancy J. Spies held that the steel-erection standard applied even though Willson voluntarily used a more protective tie-off program. The employee-misconduct defense failed because the company's tie-off rule did not address the separate temporary-floor requirement. The serious violation was affirmed, but the penalty was reduced to $500 because Willson had an above-average safety program and acted in good faith.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.750(b)(2)(i).
• Outcome: Serious temporary-floor violation affirmed, with a $500 penalty.
• Key point: Voluntary compliance with a different fall-protection method did not authorize an employer to omit the temporary flooring specifically required for steel erection.

Full text (OSHRC public release)

))))))))))))))))))))))))))))))))))))))))))))),
Secretary of Labor, *
Complainant, *
*
v. * OSHRC Docket No. 97-0593
*
L. R. Willson & Sons, Inc., *
Respondent. *
)))))))))))))))))))))))))))))))))))))))))))))-

Appearances:

                 Ann G. Paschall, Esquire                                 Frank L. Kollman, Esquire
                         Office of the Solicitor                                  Kollman & Sheehan, PA
                         U. S. Department of Labor                                Baltimore, Maryland
                         Atlanta, Georgia                                                 For Respondent
                                  For Complainant

Before: Administrative Law Judge Nancy J. Spies

                                                          DECISION AND ORDER
                 L. R. Willson & Sons, Inc. (Willson), contests a citation issued by the Secretary alleging a

serious violation of § 1926.750(b)(2)(i) for failure to maintain a “tightly planked and substantial
floor” within two stories or 30 feet below a portion of a tier of beams on which steel erection
work was being performed. Willson was the steel erection subcontractor on the Womack Army
Medical Center, a large medical facility being constructed in Fort Bragg, North Carolina. On
November 11, 1996, a Willson employee fell approximately 80 feet to his death from a steel
column which he was climbing.
The Occupational Safety and Health Administration (OSHA) investigated the accident
from November 12, 1996, to February 4, 1997. On April 15, 1997, the Secretary issued the
citation to Willson. The Secretary also issued similar citations to the U. S. Army Corps of
Engineers and to Centex, the general contractor on the project.
Willson acknowledges jurisdiction and coverage. A hearing was held in this matter on
January 28, 1998. The parties have submitted post-hearing briefs. Willson asserts the affirmative
defense of unpreventable employee misconduct. Willson also argues that the cited standard does
not apply.

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For the reasons set out below, the court finds that Willson violated § 1926.750(b)(92)(i).
Background
The parties submitted the following stipulations of fact, which establish the background of
the case:
1. Willson is a steel erection company.
2. Beginning in September, 1995, Willson was contracted to erect the structural steel
for the new Womack Army Medical Center in Ft. Bragg, North Carolina (the
“Project”).
3. In connection with its work on the Project, Willson chose to comply with the
general fall protection standards of Subpart M as the means of providing fall
protection for its employees.
4. Willson established a 100% tie-off policy. All ironworkers had belts and double
lanyards and were required to tie-off 100% of the time that they were more than
six feet off the ground.
5. All Willson employees were instructed regarding compliance with the 100% tie-off
policy through a written safety program that the inspecting compliance officer
described as “a good comprehensive written safety and health program.” The
compliance officer rated the program as “above average” in his written evaluation.
6. The safety program included the imposition of fines for violations of safety rules.
The largest fine was for violation of the tie-off policy.
7. Willson’s employees were further instructed on fall protection at the Project
through an initial orientation conducted by the general contractor and through
weekly safety meetings conducted by Willson. Fall protection was discussed in at
least four weekly safety meetings during the period from May 1996 through
October 1996.
8. According to the compliance officer, Willson’s employees felt that they had clear
responsibilities for compliance with safety and health rules at the Project and
believed that the employer’s disciplinary program for non-compliance was fairly
and evenly applied to most situations.

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9. According to the compliance officer, Willson’s employees told the inspecting
compliance officer that they believed in the 100% tie-off policy and practiced strict
compliance with it because their safety was at stake when working at heights
above ground level.

10. During interviews with the compliance officer, employees stated that they had
    attended several safety meetings where the use of fall protection and the 100% tie-
    off rule was stressed and that James Willson, Vice President of Operations and
    Project Superintendent, had always told them to work carefully as their safety was
    the company’s utmost concern.
11. Willson enforced its 100% tie-off policy by issuing discipline for violations,
    including fines, written reprimands, and discharge.
12. On November 11, 1996, Willson had two 2-man ironworker connector teams
    working on the north and east sides of the structure. One of the teams consisted
    of ironworker Bobby Anderson and his partner, Wallace Pittman.
13. Anderson was an experienced ironworker and had been a good employee since he
    started working at the Project. Anderson had worked as an ironworker and as a
    foreman for four years before being hired by Willson in May 1996. Anderson had
    worked for Willson for six months at the time of the accident.
14. Willson’s records show that Anderson had not received any written reprimands or
    warnings and had attended the safety orientation training mandated and offered by
    the general contractor. Anderson also signed documents attesting to the fact that
    he had been instructed how to wear and maintain safety gear issued to him (i.e.,
    vest type full body harness, lanyard, pin cable, safety glasses, gloves, and hard hat),
    and he agreed to abide by all the rules, policies, terms, and conditions outlined in
    Willson’s employee handbook. The handbook outlined several employee benefits
    and made reference to policies such as safety rules, hazard communication, and the
    safety violation fine program.

15. At approximately 3:15 p.m. on November 11, 1997, Anderson and Pittman were
    working on the fifth floor level and had finished bolting and connecting a vertical

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    column for the sixth floor. Then they tried to use a remote release mechanism to
    remove the metal pin that had been inserted in the lifting clip at the top of the
    column. Normally, a quick tug on a rope while standing at the bottom of the
    newly-inserted column would cause the pin to release, thus separating the crane
    hoisting cable from the column. This time, the lifting pin would not pop out.
    16. Anderson then tried to climb the column to release the pin manually. Anderson
    was tied-off with one of his lanyards during this climb.
    17. According to witnesses, Anderson found it difficult to climb the column because
    his pin cable would catch on column protrusions, and he returned to his position at
    the base of the cable.
    18. After this attempt to release the lifting pin failed, Anderson asked the crane
    operator if he should climb the column and try to pop the pin out.
    19. The crane operator was a Willson employee. The crane operators were in charge
    of the lifting of steel columns, and Anderson had been trained to listen to the
    instructions of the crane operator during a lift.
    20. The crane operator directly and clearly told Anderson not to try to climb the
    column again, but rather that they would try something different instead.
    21. Nevertheless, when the crane operator turned away to use the two-way radio
    mounted in the crane cab to call his superiors, Anderson unhooked his lanyard
    from his belt, leaving the lanyard attached to the pin cable, and began climbing the
    column without the crane operator’s concurrence or permission.
    22. Although the crane operator could have tried to contact Anderson with a two-way
    radio, he feared that he would distract Anderson in the middle of the climb.
    23. Anderson climbed to within five or six feet of the top of the column and then
    started to slide down the column. Anderson then fell off the column to the first
    floor and eventually died from his injuries.
    24. When Anderson unhooked his lanyard from his belt, Anderson was in direct
    conflict with both his employer’s and the general contractor’s safety rule on fall
    protection at the Project requiring the employees involved in steel erection

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    activities to tie-off using their fall arrest systems when working at heights above
    six feet.
    25. Anderson not only disregarded this 100% tie-off rule, but he also ignored the
    direct instruction of Willson’s crane operator, who expressly told Anderson not to
    climb the column.
    26. No Willson supervisor knew on November 11, 1996, that Anderson unhooked his
    lanyard while he was on the iron, or that he attempted to climb a column to free a
    lifting cable while he was not tied off, in direct disobedience of the instruction of a
    crane operator.
    27. OSHA began in inspection of the worksite on November 12, 1996. During this
    inspection, CSHO Banner observed that Willson had not maintained a tightly
    planked and substantial floor within 30 feet below Willson’s ironworkers.
    Nevertheless, Banner did not inform Willson of any potential violations of the
    OSHA standards during the closing conference held on February 4, 1997.
    28. During the two months following this closing conference, Banner reconsidered his
    position. He spoke with 5 to 10 other OSHA compliance officers and decided that
    Willson’s failure to maintain a tightly planked and substantial floor within 30 feet
    was a violation of Subpart R of the Occupational Safety and Health standards,
    even if the employees who would be protected by this floor were securely tied off
    with belts and six-foot double lanyards.
    29. On April 14, 1996, Banner conducted a second closing conference with Willson by
    telephone, during which Banner advised Willson that he was recommending that a
    citation be issued for violation of Subpart R. After the citation was issued, Willson
    filed a notice of contest, and this action followed.
    30. On November 11, 1996, respondent’s employees Bobby G. Anderson and Wallace
    Pittman were working at heights greater than 30 feet above ground level.
    31. Respondent was aware that there was no tightly planked floor within two stories
    or 30 feet above floor or ground level below where its employees were working on
    November 11, 1996.

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    32. Installation of flooring within two stories or 30 feet of where Anderson and
    Pittman were working on November 11, 1996, was not impossible.
    33. Installation of flooring within two stories or 30 feet of where Anderson and
    Pittman were working on November 11, 1996, was not infeasible.
    34. Installation of flooring within two stories or 30 feet of where Anderson and
    Pittman were working on November 11, 1996, would not have interfered with the
    work being performed.
    35. Willson’s safety program and/or work rules in effect on or about November 11,
    1996, did not contain any provisions requiring the installation of flooring or
    decking within two stories or 30 feet of where its employees were working.
    Alleged Serious Violation of § 1926.750(b)(2)(i)
    The Secretary charged Willson with a serious violation of § 1926.750(b)(2)(i). That
    section provides in pertinent part:
    Where skeleton steel erection is being done, a tightly planked and
    substantial floor shall be maintained within two stories or 30 feet,
    whichever is less, below and directly under that portion of each tier
    of beams on which any work is being performed, except when
    gathering and stacking temporary floor planks on a lower floor, in
    preparation for transferring such planks for use on an upper floor.

    The Secretary has the burden of proving her case by a preponderance of the evidence.
    In order to establish a violation of an occupational safety or health
    standard, the Secretary has the burden of proving: (a) the
    applicability of the cited standard, (b) the employer’s
    noncompliance with the standard’s terms, (c) employee access to
    the violative conditions, and (d) the employer’s actual or
    constructive knowledge of the violation (i.e., the employer either
    knew or, with the exercise of reasonable diligence could have
    known, of the violative conditions).

Atlantic Battery Co., 16 BNA OSHA 2131, 2138 (No. 90-1747, 1994).
Willson’s stipulations establish three-fourths of the Secretary’s case. Willson agrees that
no tightly planked floor existed within two stories or 30 feet above floor or ground level below
where its employees were working, in noncompliance with § 1926.750(b)(2)(i). Willson’s

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employees had access to this violative condition and Willson knew that there was no tightly
planked floor as required by the standard. Willson raises the issue of applicability of §
1926.750(b)(2)(i).
Applicability
At the outset, it is noted that § 1926.750(b)(2)(i) is part of Subpart R of 29 C.F.R. Part
1926, which specifically applies to steel erection. Willson argues, however, that the fall
protection standards of Subpart M should govern Willson’s activities in the present case.
Before it was revised in 1994, Subpart M was entitled, “Floor and Wall Openings and
Stairways.” On November 25, 1986, however, OSHA proposed to revise virtually all the fall
protection provisions of the construction industry standards and to consolidate those
requirements, except where specifically provided otherwise, in Subpart M. See 51 Fed. Reg.
42718 (November 25, 1986). The “floor and wall openings and stairways” provisions were to be
moved to other subparts.
As originally proposed in 1986, Subpart M did not exclude steel erection activities from
coverage. OSHA initially proposed to require all construction workers, including steel erectors,
to use fall protection of guardrails, belts and lanyards, or nets where working at heights above six
feet. With regard to steel erection, the only exception was for ironworkers performing initial
connections of structural steel. See 51 Fed. Reg. 42736-38 (proposed Subpart M, 29 C.F.R. §§
1926.500(a)(2) and 1926.501). See also 53 Fed. Reg. 2052 (January 26, 1988). This proposal
represented a substantial change for the steel erection industry, which was obligated at that time
only to provide fall protection that complied with Subpart R and 29 C.F.R. § 1926.105.
The steel erection industry objected. There was no disagreement between OSHA and the
steel erectors that tying off provided greater fall protection than that which existed under Subpart
R. Nevertheless, the steel erection industry complained that because of the nature of the steel
erection process (e.g., moving from point to point), it was too difficult for steel erectors to
comply with the more stringent tie-off/guardrail/net requirements.
After extending the comment period, receiving oral testimony regarding fall protection in
the steel erection industry, and reopening the comment period for additional information from the
industry, OSHA decided that a separate fall protection rule should be developed for the steel

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erection industry, and that steel erection would be excluded from revised Subpart M. See 59 Fed.
Reg. 40672 (August 9, 1994), 60 Fed. Reg. 5131 (January 26, 1995), and 60 Fed. Reg. 39254
(August 2, 1995). OSHA’s agreement to proceed in this way was a concession resulting from the
protest generated by the initial proposal.
Willson argues that, given the history of the fall protection standards in the steel erection
industry, it should have the option of complying with the more stringent safety requirements of
Subpart M in lieu of Subpart R. It questions why OSHA should pursue a case where the
employer chose not to avail itself of, an industry-won concession while fully complying with
another of the Act’s fall protection standards.
Unfortunately for Willson’s position, the scope section of Subpart M itself rejects
Willson’s approach: “Requirements relating to fall protection for employees performing steel
erection work are provided in § 1926.105 and in Subpart R of this part.” Section
1926.500(a)(2)(iii). In the final analysis, the case must be decided in terms of the cited standard.
Willson’s point that compliance with the requirements of Subpart M provide greater safety
than does compliance with the requirements of Subpart R is well-taken. However, the
construction schedule could have required that the flooring be installed earlier in the work
sequence, thus providing the temporary flooring required by the standard. Complying with
Subpart R would have resulted in a fall distance of 20 feet (two stories) to the flooring below.
Willson’s efforts to use safety belts is commendable, but nothing prevented Willson from
providing both the voluntary and the mandatory fall protection. Willson was not at liberty to
substitute its judgment for that of the standard, and the undersigned cannot ignore the
requirements of a clearly applicable standard. “Such alterations to OSHA’s safety standards
cannot, however, be obtained in adjudicatory proceedings before the Commission, which only
concerns itself with the employer’s alleged violation of the existing standard. In these
proceedings, employers cannot question a standard’s wisdom.” Carabetta Enterprises, Inc., 15
BNA OSHC 1429, 1432 (No. 98-2007, 1991).
Willson also argues that any violation of the Act arose from Anderson’s unpreventable
employee misconduct. The affirmative defense of unpreventable employee misconduct requires
the employer to have a work rule in place designed to prevent the violative behavior. Willson had

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no work rule requiring its employees to install temporary flooring in compliance with
§ 1926.750(b)(2)(i). A work rule requiring an employee to tie off is not a defense to an allegation
regarding the failure to install temporary flooring. Power Plant Division, Brown & Root, Inc.,
10 BNA OSHC 1837 (No. 77-2253, 1983). There is, therefore, no reason to examine the defense
in terms of compliance with other fall protection standards. Willson’s affirmative defense is
rejected.
Penalty Determination
The Commission is the final arbiter of penalties in all contested cases. Under § 17(j) of the
Act, in determining the appropriate penalty, the Commission is required to find and give “due
consideration” to (1) the size of the employer’s business, (2) the gravity of the violation, (3) the
good faith of the employer, and (4) the history of previous violations. The gravity of the violation
is the principal factor to be considered.
Willson employed approximately 250 employees at the time of the OSHA inspection
(Tr. 84). It had been cited for OSHA violations within the three years prior to the citation at issue
(Tr. 45). The gravity of the violation is high. Had temporary flooring been in place at the time of
Anderson’s accident, he would have fallen 20 feet instead of 80 feet, perhaps improving his
chances for survival.
The factor of Willson’s good faith weighs heavily in this penalty determination. Willson
had a good safety program, one which an OSHA compliance officer considered “above average.”
Willson’s violation of the cited standard did not result from its indifference to safety. Rather,
Willson instituted what it considered a better form of fall protection. Willson believed that a fall
of up to 30 feet was not acceptable. Its 100% tie off rule, if followed, would allow for falls of no
more than 6 feet (the length of a lanyard). This action deserves consideration in assessing an
appropriate penalty. The Secretary proposed a penalty of $5,000.00. Given Willson’s
demonstrated safety efforts to provide an effective form of fall protection, the proposed penalty is
deemed excessive. A penalty of $500.00 is assessed.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Federal Rule of Civil Procedure 52(a).

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ORDER
Based upon the foregoing decision, it is hereby ORDERED:
1. Item 1 of Citation No. 1, alleging a serious violation of § 1926.750(b)(2)(i), is
affirmed and a penalty of $500.00 is assessed.

                                                  NANCY J. SPIES
                                                  Judge

Date: January 19, 1999

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