February 13, 1986

Mr. Steve Bloemker
Chief Safety Officer
Hawkins Construction Company
Post Office Box 9008
Station C
Omaha, Nebraska 68109

Dear Mr. Bloemker:

This is an update to our interim response of January 22 to your letter of December 31, 1985, concerning an October 1985 Occupational Safety and Health Administration (OSHA) inspection at one of your job sites. We have received a report from our Kansas City Regional Office on this subject.

We have reviewed the subject inspection with our Kansas City Regional Office and concur with their position of enforcing 29 CFR 1926.500(d)(1) rather than 29 CFR 1926.750(b)(1)(iii) at your job site. In situations where the employer has completed the structural steel assembly and is in the process of pouring concrete on the metal decking and other trades are working on the floor area, the floor guarding system must comply with 29 CFR 1926.500(d)(1).

Compliance with 29 CFR 1926.750(b)(1)(iii) does not provide protection equivalent to compliance with 29 CFR 1926.500(d)(1), and cannot qualify for a variance in these circumstances.

OSHA is taking every step possible to eliminate an adversarial relationship between the Agency and employers, within the guidelines of the Act. Our efforts involve a variety of approaches which have established new lines of communication between the business community and OSHA. We encourage you to contact our Omaha Area Office regarding any other questions or concerns you may have.

We hope this letter is of help to you. Please do not hesitate to contact us if we can be of further assistance in this or any other matter related to employee safety and health.

Sincerely,


John B. Miles, Jr., Director
[Directorate of Construction]

[Correction 6/20/2005. See OSHA Directive CPL 02-01-034 "Inspection policy and procedures for OSHA's steel erection standards for construction" published on 3/22/2002 for the current policy on OSHA's steel erection standards (1926 Subpart R) for construction.]

December 31, 1985

Assistant Secretary
Occupational Safety & Health
U.S. Department of Labor
Washington, D.C. 20210

Dear Sir:

In October of 1985, one of Hawkins Construction Company's job sites was inspected by OSHA, and was cited under Section 1926.500 (d) (1). Although we have found it difficult to keep nylon rope from sagging, we believe that wire rope, when properly in place is adequate and in compliance with both the letter, and the intent of all applicable OSHA standards.

The situation in question concerns the steel erection phase of construction of a tiered building. After columns and beams are in place, the metal decking is installed promptly in order to comply with 1926.750 (b) (1) (ii) concerning limiting fall distance. This decking must be installed on all floors, thus it is installed on every floor immediately to limit the fall distance to 8' to 12'- rather than 25' required by the standard.

During the interim after metal deck is laid, and before permanent concrete floor is poured, we believe edge protection falls under Section 1926.750 (b) (1) (iii). Several reasons are cited as follows:

1. 1. The metal decking, although it is not removed after pouring of concrete, does not constitute a permanent flooring system. It is merely a concrete form which would be removed if it were cost effective to reuse. Furthermore, it is an incomplete stage of construction only used as a temporary work surface, due to strength limitations. The rigidity of the building is derived from reinforced concrete which is poured over the metal decking. Also, our interpretation of Section 1926.750 (b) (1) (iii), which we made in good faith, understands the mention of temporary metal decked floors to be a direct reference to our situation. Under no circumstances does the metal deck constitute a permanent floor.
2. 2. The construction project in question was a Federally funded Veterans Administration Hospital Addition, with VA Safety Engineers on staff. The VA Engineers believed our edge protection to be adequate, and at the time of installation met the safety goals of the project. Further, during the course of an informal conference, the VA Engineers indicated that during their experiences, all other VA construction projects had been similarly barricaded. This point was further supported by the Associated General Contractors, who considered a single wire rope, 42" high, to be the industry's standard ever since the Federal Government and Private Industry have taken a more active interest in employee safety.
3. 3. During installation of any safety system or device, the crew performing the installation is exposed to the very hazard the crew is attempting to eliminate. It is our belief that installing a second rail for added protection does not justify the added exposure to install the second rail.
4. 4. The fourth reason is compliance. It is most difficult for The Safety Officers of Hawkins Construction, and OSHA Inspectors, even while working as a team, to enforce OSHA standards and promote employee participation in safety conscious attitudes.

   During the aforementioned stage of construction, there is much material being staged onto the metal deck by high-reach forklifts from below. A single wire rope can be installed with rings and snaps in such a manner as not to adversely affect its strength, yet allow sections between columns to be lowered and raised quickly and efficiently for staging of material, without compromising OSHA Standards.
   
   If the standard guardrail is adopted for this stage of construction, the guardrail must be dismantled in the areas of staging, the posts removed for side clearance, and probably not be reinstalled until floor pouring is complete - at which point the permanent walls will go in anyway. It would be very difficult to enforce the reconstruction of a standard guardrail between each forklift load.

It should be noted that we have addressed and solved the sagging problem, earlier mentioned, by replacing 5/8" nylon rope with 1/2" wire rope. Although nylon rope is less expensive to purchase and install, wire rope does, however, appear to provide better fall protection, which is the primary purpose of its existence.

Finally, it is not the intent of Hawkins Construction, or any of its employees, to circumvent any governmental regulations, be it regarding safety or environment. I believe our safety record, and the excellent relationship with the local OSHA representatives, is excellent evidence of our ongoing commitment to an attitude of "safe operations."

Furthermore, we believe the participation of our Field Personnel, and the interest expressed in safety by all Hawkins Construction employees is unsurpassed.

I, and the entire company are constantly learning new ways to conduct operations in a safer manner. If the OSHA representatives contacted me, the Hawkins Safety Officer, directly, and indicated a problem or a better system, a mutually acceptable solution would have been reached and implemented in a matter of minutes, thus allowing all the time spent on formal negotiations to be utilized in the field, where doubtless, other potential hazards exist. We learn from each other. I, the Chief Safety Officer for Hawkins Construction, whose job it is to promote awareness and participation on the part of all employees, have found the current penalty system extremely negative and unproductive. While informing the Superintendent and the on-the-job Safety Committee of our cooperative relationship with the OSHA Agency, I am then forced to turn around and debit the Superintendent's Job Account, which was budgeted for safety, to pay a fine, in spite of a "good faith effort" on the part of the Superintendent. The Superintendent then tends to assume that fine paying is inevitable, and, therefore, compliance and participation are insignificant.

A safer job site could be acquired through better communication and cooperation, and less meting out of punishments, which only serve to make a Superintendent's job more difficult. It is Hawkins Construction Company's firm desire to cooperate and communicate at all times. Top safety conditions can only be achieved when all parties are on the same team, and work together.

In as much as Hawkins Construction has several metal tiered buildings under varied stages of construction, and VA and AGC safety personnel are involved in the outcome, your prompt ruling or variance on this matter would be highly appreciated.

Respectfully,

HAWKINS CONSTRUCTION COMPANY



Steve Bloemker
Chief Safety Officer
Hawkins Construction Company