“Docket No. 84-0452 SECRETARY OF LABOR, Complainant, v.HEATON ERECTING, INC. Respondent.OSHRC Docket No. 84-0452DECISION Before:\u00a0 BUCKLEY, Chairman; RADER and WALL, Commissioners. BY THE COMMISSION:This case is before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(j), section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 TheCommission is an adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration.\u00a0 It was established to resolvedisputes arising out of enforcement actions brought by the Secretary of Labor under theAct and has no regulatory functions.\u00a0 See section 10(c) of the Act, 29 U.S.C.? 659(c).The issue before the Commission is whetherAdministrative Law Judge Joe D. Sparks erred in vacating a citation item alleging aviolation of 29 C.F.R. ? 1926.451(e)(10).\u00a0 The standard states in part: ? 1926.451 Scaffolding(e) Manually propelled mobile scaffolds.(10) Guardrails made of lumber, not less than 2 x 4 inches (or other materialproviding equivalent protection), approximately 42 inches high, with a midrail, of 1 x 6inch lumber (or other material providing equivalent protection), and toeboards, shall beinstalled at all open sides and ends on all scaffold more than 10 feet above the ground orfloor.* * *The Secretary maintained that the standard was violated because the distance from theunguarded scaffold to the ground was over 40 feet.\u00a0 Based on the Commission’sdecision in Schwarz-Jordan, Inc., 11 OSAHRC 37\/A2, 11 BNA OSHC 2145, 1984 CCH OSHD? 26,989, rev’d, 777 F.2d 195 (5th Cir. 1985),[[1]] the judge vacated the item,noting that the scaffold stood only 50-70 inches above its base and that the standardrequires guardrails only when the scaffold stands more than 10 feet above its base.Because the judge held the standard to have beeninapplicable, he did not make findings on a dispute over the infeasibility of guardrailsthat was litigated by the parties.\u00a0 Since the judge issued his decision, theCommission has substantially altered the requirements of the former defense ofimpossibility.\u00a0 In Dun-Par Engineered Form Co., No. 79-2553 (July 30, 1986),the Commission changed the primary element of the defense to \”infeasibility\” andshifted the burden of persuasion to the Secretary on the issue of feasible alternativeprotective measures.We believe that the resolution of the factual disputeover the feasibility of guardrails would substantially facilitate our review of thiscase.\u00a0 We note, however, that disposition of this issue may require credibilitydeterminations, which should be resolved by the judge.\u00a0 Moreover, because the partieswere not aware of their respective burdens of proof at the time of the hearing, theyshould have the opportunity to adduce additional evidence and argument on theinfeasibility defense.\u00a0 We therefore remand this case to Judge Sparks for the takingof evidence and argument on the infeasibility defense.\u00a0 The judge shall also enterfindings of fact and conclusions of law consistent with our decision in Dun-Par on theissue.\u00a0 The Commission shall retain jurisdiction of the case pending receipt of theseadditions to the record.Accordingly, the case is remanded to the judge forfurther proceedings consistent with this decision.[[2]]FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED:\u00a0 JUL 31, 1986The Administrative Law Judge decision in this matter is unavailable in this format. Toobtain a copy of this document, please request one from our Public Information Office bye-mail ( [email protected] ), telephone(202-606-5398), fax (202-606-5050), or TTY (202-606-5386).FOOTNOTES: [[1]] The Commission’s decision in Schwarz-Jordanwas subsequently overruled by the Fifth Circuit in Brock v. Schwarz-Jordan, Inc.,777 F.2d 195 (5th Cir. 1985).[[2]] Commissioner Rader agrees with the majoritythat this case should be remanded for a determination whether guardrails wereinfeasible.\u00a0 If the Secretary seeks to allege and prove that Heaton should have usedalternative protective measures in accordance with the Commission decision in Dun-ParEngineered Form Co., No. 82-928, then Commissioner Rader would limit the alternativemeasures sought to be imposed consistent with his separate opinion in Dun-Par.”