OTIS ELEVATOR COMPANY
OSHRC Docket No. 13140
Occupational Safety and Health Review Commission
May 11, 1977
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Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Ronald M. Gaswirth, Regional Solicitor
Bennett W. Cervin, for the employer
OPINIONBY: MORAN
OPINION:
DECISION
MORAN, Commissioner: A December 10, 1975, decision of Review Commission Judge Erwin L. Stuller is before this Commission for review pursuant to 29 U.S.C. § 661(i). That decision vacated a citation which alleged that respondent was in repeated violation of 29 U.S.C. § 654(a) (2) by failing to comply with the occupational safety standard codified at 29 C.F.R. § 1926.500(d)(1). For the reasons that follow, the Judge's decision is affirmed.
The above-cited standard provides in pertinent part that:
"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 . . . ."
The citation and complaint aver that the standard was violated in that there was no standard railing on top of an elevator from which employees were working. Complainant contends that the tops of elevators are floors or platforms and, therefore, required to be guarded pursuant to 29 C.F.R. § 1926.500(d)(1). We reject that contention. [*2]
Respondent manufacturers, installs, and services elevator cars. The top surface of the cars contain numerous items necessary for their proper operation. Respondent's employees periodically perform various tasks while standing on top of the cars, such as installation, testing, and maintenance. At the time of the alleged violation in this case, two of respondent's employees were standing atop an elevator car while painting counterweight rails as a final phase of installation.
Although the term open-sided floor is not defined in the Secretary of Labor's regulations, it is clear that it does not include the top of an elevator car. In Diamond Roofing Co. v. OSAHRC, 528 F.2d 645 (5th Cir. 1976), the Circuit Court held that section 1926.500(d)(1) does not apply to flat roofs, and that holding was adopted by the Commission in Secretary v. Central City Roofing Company, Inc., OSAHRC Docket No. 8173, June 4, 1976. Considering the normal usage of words, it is apparent that the surface on which respondent's employees were working was the "roof" of the elevator car. See Langer Roofing & Sheet Metal, Inc. v. Secretary of Labor, 524 F.2d 1337 (7th Cir. 1975). Therefore, the [*3] Commission precedent in Central City Roofing is applicable in this case.
Since the aforementioned cases pertain to roofs on buildings, it is appropriate to address complainant's contention that the top of the elevator car was a platform and, therefore, subject to the requirements of section 1926.500(d)(1). A "platform" is defined at 29 C.F.R. § 1926.502(e) as:
"A working space for persons, elevated above the surrounding floor or ground, such as a balcony or platform for the operation of machinery and equipment."
A literal reading of this definition clearly excludes the incidental use of the top of the elevator found in this case. As stated in Secretary v. Allis-Chalmers Corporation, OSAHRC Docket No. 5210, April 30, 1976:
"The definition also indicates that the words 'work space' refer to such things as a balcony or platform 'for the operation of machinery or equipment.' . . . . this specific language restricts the definition of 'platform' to a structure that is erected to accomplish work that is being performed." n1
Since the top of the elevator was not made for the purpose of performing work therefrom, it is not a platform as defined in section 1926.502(e).
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n1 Although Allis-Chalmers involved a standard different from the one here in issue, the question was substantially the same as here, and the definitions of "platform" in both regulations are identical.
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Moreover, the conclusion that the top of an elevator is not a platform is supported by the Secretary of Labor's adoption of American National Standards Institute (ANSI) standard A17.1-1965 for "[p]ermanent elevator under the care and custody of the employer and used by employees for work covered by [the] Act." 29 C.F.R. § 1926.552(d). Rule 204.1g of A17.1-1965 provides the following:
"Equipment Prohibited on Top of Cars. A working platform or equipment which is not required for the operation of the elevator or its appliances, except where specifically provided herein, shall not be located above the top of an elevator car." (Emphasis added.)
Irrespective of whether this provision prohibits the utilization of the protective equipment advocated by complainant in this case, the clear distinction made in [*5] Rule 204.1g between a working platform and an elevator top indicates that the terms are mutually exclusive.
Another reason for vacating the citation is that compliance with the standard would prevent respondent's employees from performing their assigned work. The complainant elicited testimony from his inspector which established this affirmative defense. The inspector testified "that since guard rails, toe boards, and mid-rails . . . would really make the job inoperable, we thought that possibly personal protective equipment could be utilized at this point." The portion of the testimony pertaining to improbability was not rebutted or otherwise contradicted. In fact, the respondent, in apparent agreement and reliance thereon, presented no evidence on this issue but merely presented evidence proving that personal protective equipment could not be used as an alternative, since its use would create a greater hazard that its nonuse. n2 Since respondent's employees could not have performed their work with a standard guardrail in place, the citation cannot be affirmed. Secretary v. Warnel Corporation, OSAHRC Docket No. 4537, March 31, 1976; Secretary v. Rob't. W. Setterlin & [*6] Sons Company, OSAHRC Docket No. 7377, May 11, 1976; Secretary v. Universal Sheet Metal Corp., 9 OSAHRC 742 (1974); Secretary v. W.B. Meredith II, Inc., 9 OSAHRC 245 (1974).
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n2 The inspector's opinion concerning alternative protection was thoroughly discredited. Respondent's witnesses, all of whom were experienced in the elevator industry, including there with 25 years or more of such experience, testified that work from the top of a completed elevator car would be less safe using safety belts since the lanyards and lifelines could easily get caught in the machinery and imperil the employees. This is further supported by the fact that both Otis and Westinghouse, two of the largest manufacturers and installers of elevators, do not use safety belts or lanyards for work on top of a completed car although the use of these items is required for other phases of elevator installation. Moreover, the Inspectors' Manual, American National Standard Practice for the Inspection of Elevators, Escalators and Moving Walks, ANSI A17.2-1973, published by the American Society of Mechanical Engineers, and approved by ANSI, does not include the use of safety belts and lanyards in its safety precautions for inspections made from the top of elevator cars. Inspectors' Manual, Id. at 18 and 19.
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Accordingly, the Judge's decision is affirmed.
CONCURBY: BARNAKO
CONCUR:
BARNAKO, Chairman, concurring:
I concur in vacating the citation. I do not, however, decide whether 29 C.F.R. 1926.500(d)(1) applies to the top of an elevator under the circumstances of this case. In my opinion, even assuming the standard applies, a violation has not been proven.
The compliance officer's testimony establishes that the work in which Respondent's employees were engaged could not have been performed with a guardrail in place. Thus, a violation cannot be predicated on Respondent's failure to use a guardrail. Robert W. Setterlin & Sons Co. 76 OSAHRC 53/D8, 4 OSHC 1214, 1975-76 OSHD para. 20,682 (1976); Universal Sheet Metal Corp., 9 OSAHRC 742, 2 OSHC 1061, 1973-74 OSHD para. 18,163 (1974). Complainant argues on review, however, that a violation should be found because safety belts and lanyards were not used. n1 In my view, when literal compliance with a standard is not possible, an employer should use reasonable alternative means to protect its employees. [*8] 1977-78 OSHD para. 21,592 (March 3, 1977) (concurring opinion). Thus, if the record shows that the use of safety belts and lanyards was practical, I would conclude that Respondent violated the standard even though guardrails could not have been used.
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n1 In his brief on review, Complainant notes that 1926.500(d)(1) speaks of "a standard railing or the equivalent," and suggests that protection by safety belts and lanyards is the equivalent of a standard railing. We have held, however, that the equivalent protection to which the standard refers is equivalent structural protection, and does not include the use of safety belts and lanyards. Warnel Corp., 76 OSAHRC 41/C5, 4 OSHC 1034, 1975-76 OSHD para. 20,576 (1976). Alternatively, the Secretary argues that a violation of the personal protective equipment standard, 1926.28(a), was tried by consent. In light of my conclusion that the record shows the impracticality of using safety belts, I would not find a violation of 1926.28(a) even if it could be said that such a violation was tried by consent. See Frank Briscoe Co., 76 OSAHRC 129/A2, 4 OSHC 1729, 1976-77 OSHD para. 21,162 (1976).
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The evidence of record, however, establishes that the use of safety belts and lanyards was not practical because the lanyards could get caught in moving parts on the top of the elevator and pull an employee into the machinery. No fewer than six witnesses for Respondent testified to this effect, and their testimony was unrebutted. n2 No other reasonable means of protection suggests itself. n3 Under the circumstances, a violation cannot be found.
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n2 In claiming that a violation of 1926.28(a) was tried by consent, Complainant does not comment on this evidence.
n3 Although safety nets are sometimes used for fall protection, it would appear that the presence of cables in the elevator shaft would preclude the use of a safety net in this case.
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DISSENTBY: CLEARY
DISSENT:
CLEARY, Commissioner, DISSENTING:
Before considering the application of section 1926.500(d)(1) or section 1926.28(a), I would ask for supplementary briefs on the issue of whether the Administrative [*10] Law Judge erred in sustaining respondent's objection to the Secretary's questioning regarding the size, location, and positioning of the elevator counterweight. The parties should address the issue of whether there was adequate notice of an allegation that employees who working on top of the elevator were exposed to an opening measuring 22" by 8' while working throughout the shaft and not just the seventh floor.