PROWLER TRAVEL TRAILERS OF NEW YORK, INC.
OSHRC Docket No. 15636
Occupational Safety and Health Review Commission
November 29, 1977
[*1]
Before CLEARY, Chairman; BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Francis V. LaRuffa, Reg. Sol., USDOL
Carter H. Strickland, for the employer
OPINION:
DECISION
BY THE COMMISSION:
This case present the question of whether Administrative Law Judge Seymour Fier erred in vacating a citation alleging that Respondent violated 29 C.F.R. § 1910.23(c)(1) n1 by failing to equip the open sides of two portable metal work platforms with standard guardrails. The Commission members are divided on this question. However, in light of the absence of a third member since April 28, 1977, and the statutory purpose of expeditious adjudication, the present members agree to resolve their impasse by affirming the Judge's order and according the Judge's decision the precedential value of an unreviewed Judge's decision. Life Science Products Co., No. 14910 (November 11, 1977). The facts of the case and the individual views of the members follow.
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n1 In pertinent part, the standard provides as follows:
Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing . . . on all open sides. . . .
[*2]
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Respondent manufactures travel trailers at its facility in Rome, New York. As a part of finishing each trailer, Respondent's employees install metal molding and trim, an aluminum crown, roof, and rear lights. To do this, the employees must stand on elevated work surfaces around the trailer. The trailer is pulled into position between two permanently-installed, parallel catwalks, which are approximately 65 feet long. Thereafter, the employees lay "spanners" from catwalk to catwalk, a distance of 8 feet, at the front and rear of the trailer. The spanners are removed and repositioned for each job along the catwalks. Respondent had installed guardrails on the catwalks, but not on the spanners, which were 53 inches above the floor.
Complainant alleged that, by failing to equip the spanners with guardrails, Respondent violated 29 C.F.R. § 1910.23(c)(1), which requires guardrails along the open sides of platforms which are more than 4 feet above the floor. Respondent asserts that the cited standard does not apply to the facts. Emphasizing that the spanners are temporarily placed on the catwalks to [*3] create a work space, and are removed and repositioned after each job, Respondent contends that the spanners are scaffolds within the meaning of the definition published at 29 C.F.R. § 1910.21(f)(27) n2 and that scaffolding standards, which require guardrails only when the height exceeds ten feet, therefore apply. n3 Respondent also argues that, because a "scaffold" is defined as a specific type of "platform," (see n. 2, supra), the guardrail requirement for scaffolds is more specifically applicable to the facts than is 29 C.F.R. 1910.23(c)(1).
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n2 Therein a scaffold is defined as "(a)ny temporary elevated platform and its supporting structure used for supporting workmen or materials or both."
n3 29 C.F.R. § 1910.28 and § 1910.29. 29 C.F.R. § 1910.28(a)(3) requires that "(g)uardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground or floor. . . ." (emphasis added).
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Complainant contends that, because the spanners rest on a permanent supporting structure, [*4] the catwalks, and because employees must use the spanners to perform an operation that is a permanent part of the assembly of trailers, the spanners are platforms within the meaning of 29 C.F.R. § 1910.21(a)(4) n4 rather than scaffolds. Complainant argues that, to be a scaffold, a working surface must be entirely temporary, both in construction and in use.
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n4 Therein a platform is defined 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."
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Judge Fier essentially agreed with Respondent's contentions and, accordingly, he vacated the citation. Commissioner Barnako agrees that the citation should be vacated because the cited standard pertaining to platforms in general does not apply. The facts showing that the spanners are portable and are moved according to the needs of the job establish that the spanners are scaffolds within the meaning of the definition at 29 C.F.R. § 1910.21(f)(27). See Ringland-Johnson, [*5] Inc., 76 OSAHRC 63/A2, 4 BNA OSHC 1343, 1976-77 CCH OSHD para. 20,801 (No. 3028, 1976), aff'd, 551 F.2d 1117 (8th Cir. 1977). Since there is a scaffelding standard containing a guardrail requirement, the more general platform standard under which Respondent was cited does not apply. General Supply Company, 77 OSAHRC 16/A2, 4 BNA OSHC 2039, 1976-77 CCH OSHD para. 21,503 (No. 11752, 1977).
Chairman Cleary would reverse the judge and find that Respondent violated the cited standard. In his view, the spanner was a platform within the meaning of 29 C.F.R. § 1910.21(a)(4) and the cited standard because Respondent's employees regularly used the spanners as a working space to do work that was a constant part of the assembly of trailers. See General Electric Company, 75 OSAHRC 50/A2, 3 BNA OSHC 1031, 1974-75 CCH OSHD para. 19,567 (No. 2739, 1975), rev'd in part on other grounds, 540 F.2d 67 (2nd Cir. 1976); Whirlpool [*6] Corporation, 77 OSAHRC 36/11, 5 BNA OSHC 1173, 1977-78 CCH OSHD para. 21,659 (No. 9224, 1977).
Accordingly, the judge's decision is affirmed.