ALLIS-CHALMERS CORPORATION
OSHRC Docket No. 5210
Occupational Safety and Health Review Commission
April 30, 1976
[*1]
Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Herman Grant, Regional Solicitor, U.S. Department of Labor Office, of the Solicitor
Nicholas T. Jordan, Allis Chalmers Corporation, for the employer
OPINIONBY: MORAN
OPINION:
DECISION
MORAN, Commissioner: A May 10, 1974, decision of Review Commission Judge Ben D. Worcester is before this Commission for review pursuant to 29 U.S.C. § 661(i). That decision vacated item 5(f) of a citation which alleged that respondent violated 29 U.S.C. § 654(a)(2) by failing to comply with the occupational safety standard codified at 29 C.F.R. § 1910.23(c)(1). For the reasons that follow, the Judge's vacation of this item of the citation is affirmed, but his vacation of the proposed penalty for item 5 in its entirety is reversed.
The above-cited standard provides in pertinent part that:
"Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing. . . ."
Item 5(f) of the citation avers that this standard was violated in that there was "no standard railing for power transformer platform[s]." At issue is the validity of complainant's contention that the tops of power transformers manufactured [*2] and tested by respondent are platforms and, therefore, required to be guarded as required by 29 C.F.R. § 1910.23(c). We reject that contention.
Respondent's Power Transformer Division assembles and tests power transformers of various sizes ranging from 10 to 14 feet high. The top surface of the transformers consists of a prefabricated cover which is placed on top of the tank and clamped to the sides thereof. Respondent's employees perform various assembly and testing operations while standing on the tops of the transformers.
A "platform" is defined in 29 C.F.R. § 1910.21(a)(4) as:
"A working space for persons, elevated above the surrounding floor or ground; such as a balcony or platform for the operation of machinery or equipment."
Although the evidence established that respondent's employees used the transformer tops as "working space[s]," we conclude that the mere use of a structure as such does not establish that it is a platform. 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." In my opinion, this specific language restricts the definition of "platform" to a structure [*3] that is erected to accomplish work that is being performed. This construction is especially pertinent in those instances where, as here, the structure upon whose surface work is being performed is in the process of being assembled or tested. Work atop transformers while constructing and testing them cannot be considered to be the erection of a structure "for operation of machinery or equipment."
To construe § 1910.23(c)(1) to require that guardrails be erected on the surface of all manufactured products could produce absurd results. For example, such a broad construction of the standard would require the erection of guardrails on the wings and tail assemblies of large aircraft being manufactured. We conclude, therefore, that the surface of a product while it is being manufactured, assembled, and tested is not a platform as defined in § 1910.21(a)(4). Therefore, a violation of 29 U.S.C. § 1910.23(c)(1) cannot be affirmed.
Item 5 of the citation contains six subitems which are designated as "a" through "f." The complainant proposed a total penalty of $30 for item 5 without indicating any breakdown as to the subitems. The respondent only contested subitem "f" of item 5, and the [*4] parties agreed in a stipulation of facts that the penalty proposed for item 5 was appropriate. Under these circumstances, we interpret the stipulation to mean that the penalty proposal was appropriate even if subitem "f" was vacated.
Accordingly, subitem "f" of item 5 of the citation is vacated, and a $30 penalty is assessed for the remaining subitems thereof.
CONCURBY: BARNAKO
CONCUR:
BARNAKO, Chairman, Concurring:
While I concur with my colleague's conclusion that the surface of a product being manufactured is not a "platform" within the meaning of the cited standard, I do not join in his restrictive definition of that term. In my view, it is sufficient that guardrails need not be erected on the transformer surfaces in order to protect Respondent's employees; the appropriate standard is 29 C.F.R. § 1910.28(a)(1) which would require Respondent's employees to be furnished with scaffolds from which to perform work which could not otherwise be done safely. Complainant proceeded under this scaffold standard in similar circumstances in a companion case involving this same Respondent n1 and he should also have done so here.
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n1 Allis-Chalmers Corp., No. 5599, BNA 3 OSHC 1629, CCH OSHD para. 20,065 (Oct. 17, 1975), petition for review docketed, No. 75-2125 (7th Cir., Dec. 12, 1975).
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DISSENTBY: CLEARY
DISSENT:
CLEARY, Commissioner, DISSENTING:
I disagree with the lead opinion's restrictive construction of the definition of "platform" appearing at 29 CFR § 1910.21(a)(4). Commissioner Moran's reading is contrary to both common sense and Commission precedent.
In order to decide whether the cited conditions did not comply with section 1910.23(c)(1), it need only be determined whether the elevated top of a transformer upon which employees regularly perform various assembly and test operations is a "working space for persons, elevated above the surrounding floor or ground. . . ." n2 This determination must be made in light of the remedial purpose of the Act. Indeed, as the Commission stated in General Electric Co., 1974.75 CCH OSHD para. 19,567, BNA 3 OSHC 1031 (No. 2739, 1975):
. . . [T]he purpose of the Act is to protect the helath and safety of workers. This purpose is not well served by reading standard in a matter [*6] that detracts therefrom. Here, this purpose is best served by a broad construction of the word "platform" in the standard (citation omitted). n3
Consequently, in this case, once a hazard to respondent's employees was shown it was incumbent upon the Judge and the majority to construe broadly section 1910.21(a)(4) so as to protect the safety of respondent's employees.
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n2 See 29 CFR § 1910.21(a)(4) as set out in the lead opinion.
n3 Although the standard referred to in this quote was 29 CFR § 1910.252(e)(1)(i), the meaning of the term "platform" in that standard was gleaned through reference to the difinition of "platform" at 29 CFR § 1910.21(a)(4).
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The parties stipulated that the perimeters of the rectangular transformer tops measure between 6 feet-by-10 feet and 10 feet-by-20 feet. Moreover, testimony at the hearing revealed various "slipping" and "tripping" hazards that existed on the transformer tops. When the small size of the tops is Considered in conjunction with unrebutted testimony as to "slipping" and [*7] "tripping" hazards on the working surface, the hazard to respondent's employees, namely a 10-foot fall to the floor from an unguarded perimeter, is evident.
The lead opinion, however, glosses over the fact that a transformer top was clearly shown to be a "working space for persons, elevated above the surrounding floor or ground. . . ." Rather, Commissioner Moran narrowly construes section 1910.21(a)(4) by focusing upon an example of a platform given in the definition and concluding that ". . . this specific language restricts the definition of "platform" to a structure that is erected to accomplish work that is being performed." n4 This is error.
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n4 It is important to note that the restrictive definition announced in the lead opinion is joined in neither by the Chairman nor myself.
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It defies common sense to read a phrase preceded by the words "such as" as words of limitation. This is especially true when one considers that the single example given in the definition is preceded by an extremely broad definition. [*8] I, therefore, dissociate myself from any reading of the standard that would limit the meaning of the term "platform" to structures erected specially for the purpose of accomplishing work to be performed. In my opinion, in light of the remedial purpose of the Act, such a requirement should not be implied from the wording of section 1910.21(a)(4).
The open-sided transformer tops were regular working surfaces for respondent's employees. This is the crucial fact. See the appended copy of Stipulation Exhibit D. Standard railings on the transformer tops would have eliminated a significant "falling hazard" to respondent's employees. Under these circumstances, I would hold that the transformer tops were "platforms" within the meaning of section 1910.21(a)(4) and section 1910.23(c)(1).
In his concurring opinion, the Chairman concludes that the appropriate standard for the cited hazardous condition is section 1910.28(a)(1). According to the Chairman, this standard would require respondent's employees to be furnished with scaffolds from which to perform their duties. This conclusion is reached by reference to another case involving this same respondent. The Chairman concludes that [*9] the circumstances in the instant case are similar enough to the other case to warrant a determination that complainant should have cited respondent's transformer tops under section 1910.28(a)(1) rather than section 1910.23(c)(1). I do not believe this conclusion can be reached on the record before us.
Although the working conditions in the two cases involving this respondent are arguably similar insofar as both involve large elevated structures upon which employees perform various operations, I note the following difference. The case relied upon by the Chairman involved the protection to be afforded employees while they were working on large open-ended cylindrical structures while the structures were resting on their sides. n5 I do not believe that the conditions in the two cases are similar enough to justify the Chairman's conclusion. Also, complainant has not had an opportunity to explain why the two conditions were cited under different standards. n6
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n5 See Allis-Chalmers Corp., 1975-76 CCH OSHD para. 20,265, BNA 3 OSHC 1629 (No. 5599, October 17, 1975), petition for review docketed, No. 75-2125, 7th Cir., December 12, 1975.
n6 The citations at issue in the two cases were issued following inspections of two operations of respondent conducted within two weeks of each other. Both citations were issued by the same area director. I submit that these factors suggest a deliberate decision by complainant to cite the conditions under different standards. Complainant must be allowed to explain this decision before any determination can fairly be made as to whether the conditions at issue in this case were properly cited.
[*10]
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Consequently, I dissociate myself from the opinions of both my colleagues. I would hold that the transformer tops were "platforms" within the meaning of the cited standard and affirm the citation.