GIL HAUGAN, d/b/a HAUGAN CONSTRUCTION CO.

OSHRC Docket Nos. 76-1512; 76-1513

Occupational Safety and Health Review Commission

December 20, 1979

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Henry Mahlman, Associate Regional Solicitor, U.S. Department of Labor

Vance R. Goldammer, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision by Administrative Law Judge John J. Morris, dated November 8, 1976, is before the Commission pursuant to section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). That decision covers two separate cases involving the same employer but different jobsites. The cases were heard on the same day and consolidated by the judge "for decisional purposes." We will treat each case separately.

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n1 29 U.S.C. 661(i).

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Docket Number 76-1512

On March 18, 1976, an authorized representative of the Secretary of Labor ("the Secretary") conducted an inspection of a construction site at 3512 Southwestern Avenue in Sioux Falls, South Dakota. As a result of that inspection, the Secretary issued two citations alleging violations [*2] of the Act for failure to comply with four occupational safety and health standards. Respondent filed a timely notice of contest and a hearing was held before Judge Morris on July 21, 1976. In his decision, Judge Morris affirmed the citations alleging failure to comply with all four standards. Respondent petitioned for review of the judge's decision as to three "scaffolding" violations.

Specifically, respondent takes exception to the judge's finding of a serious violation involving the standard at 29 C.F.R. 1926.451(a)(4) n2 and two nonserious violations involving the standards at sections 1926.451(a)(14) n3 and 1926.451(a)(13) respectively. n4 The judge found that respondent was the general contractor on the construction site and that, as general contractor, its duties included contracting with the necessary subcontractors and overseeing the work done on the project. He found that respondent was in charge of the actual construction and that the duties it assumed obligated respondent to insure that its employees and subcontractors complied with all applicable safety standards. Based on these facts, the judge concluded that respondent had sufficient control of the worksite [*3] to hold respondent liable for violations committed by its subcontractors if the violations were ones of which respondent knew or should have known. Accordingly, he affirmed the citations. We affirm the judge's decision.

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n2 The standard at section 1926.451(a)(4) provides as follows:

1926.451 Scaffolding

(a) General requirements.

* * *

(4) Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground or floor, except needle beam scaffolds and floats (see paragraphs (p) and (w) of this section). Scaffolds 4 feet to 10 feet in height, having a minimum horizontal dimension in either direction of less than 45 inches, shall have standard guardrails installed on all open sides and ends of the platform.

n3 The standard at section 1926.451(a)(14) provides as follows:

(14) Scaffold planks shall extend over their end supports not less than 6 inches nor more than 12 inches.

n4 The standard at section 1926.451(a)(13) provides as follows:

(13) An access ladder or equivalent safe access shall be provided.

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In its petition for review, respondent argued that there was no evidence to show that respondent was in charge of the construction site or responsible for its maintenance. Neither party filed a brief on review.

At the hearing, the compliance officer who conducted the inspection testified that, when he arrived at the site, there were two people working on a scaffold. The scaffold was 80 feet long and had two levels, six feet and twelve feet from the ground. The two workmen were on the upper level. The compliance officer testified that an individual who identified himself as Dave Mollberg, respondent's foreman, stated that the two workers on the scaffold were employed by respondent.

The compliance officer also testified that some of the planks on the scaffold extended two and a half to three feet beyond their end support, while others extended only two to three inches. He also testified that he observed no access ladder at the scaffold and that respondent's foreman told him that there was no access ladder to the scaffold. At the time of the inspection, there were no guardrails on the scaffold. The Secretary introduced into [*5] evidence photographs of the scaffold in question, taken at the time of the inspection, that confirm the compliance officer's testimony as to what he observed.

Respondent's construction coordinator testified that Haugan Construction Company was the general contractor on the site and that the scaffolding in question had been brought onto the site by a subcontractor of Haugan Construction. He testified that he was not at the site on the morning of the inspection, but was there later that day, after the inspection. He was told by Haugan employees that employees of the subcontractor had been on the site at the time of the inspection. From a photograph, he identified one of the workmen on the scaffold as an employee of the subcontractor. On cross examination, he testified that Haugan Construction was in charge of the actual physical construction of the building and that the duties of the general contractor were to hire the subcontractor and to oversee the completion of the project.

Gil Haugan, owner of the construction company, also testified that Haugan Construction Company was the general contractor on the jobsite and that the scaffolding belonged to a subcontractor. Mr. Haugan [*6] denied that his foreman had control over the employees of the subcontractor but stated in response to a question by the judge that, under the construction industry's general practice, the general contractor exercised "a limited right" to direct the employees of a subcontractor. Mr. Haugan testified that there was a written contract between Haugan Construction and its subcontractor. The contract was not introduced into evidence, however, and there is no testimony in the record as to any contractual provisions allocating responsibility for safety on the site and compliance with OSHA regulations. Respondent's construction coordinator testified that he did not know whether there was a written contract.

In his decision, the judge found that the testimony by respondent's two witnesses that the workmen on the scaffold were not respondent's employees outweighed the hearsay testimony of the compliance officer that the foreman told him they were respondent's employees. He therefore found that the workmen on the scaffold were employees of the subcontractor, not of Haugan Construction Company. He found, however, that the evidence proved the existence of the violative conditions on the scaffolding [*7] and held that, as general contractor, respondent had sufficient control over its subcontractors to render respondent responsible for those violations committed by a subcontractor that respondent could reasonably be expected to discover. The judge found that the violations were readily apparent to a casual inspection and that respondent should have known of them and taken steps to correct them. For these reasons, he affirmed the citations alleging three scaffolding violations.

After reviewing the entire record in this case, we find that the evidence supports the judge's factual findings that violations of the scaffolding standards existed. We also hold that the judge was correct in holding respondent responsible for the violations. His conclusion is consistent with Commission precedent and decisions of several courts of appeals.

The Commission has held that, on multi-employer construction sites, the general contractor is responsible for violations of its subcontractors that the general contractor could reasonably be expected to prevent or to detect and abate by reasons of its supervisory capacity over the entire worksite, even though none of its own employees is exposed to the [*8] hazard. Sierra Construction Corp., 78 OSAHRC 2/E6, 6 BNA OSHC 1278, 1978 CCH OSHD P22,506 (No. 13638, 1978); Gelco Builders, Inc., 77 OSAHRC 203/B14, 6 BNA OSHC 1104, 1977-78 CCH OSHD P22,353 (No. 14505, 1977); Knutson Construction Co., 76 OSAHRC 131/F3, 4 BAN OSHC 1759, 1976-77 CCH OSHD P21,185 (No. 765, 1976) aff'd Marshall v. Knutson Construction Co., 566 F.2d 596 (8th Cir. 1977); Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD P20,691 (No. 12775, 1976); Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD P20,690 (Nos. 3694 & 4409, 1976); see also Anning-Johnson Co. v. OSHRC, 516 F.2d 1081 at 1091, n.21 (7th Cir. 1975). The holding in those cases is predicated on the presumption that, by virtue of its supervisory capacity over the entire worksite, the general contractor on the site has sufficient control over its subcontractors to require them to comply with occupational safety and health standards and to abate violations. The burden of rebutting this presumption is on the general contractor.

On the record in this case, we find that the presumption has not been rebutted by the respondent. [*9] Moreover, we find sufficient evidence in the record to support the judge's finding that respondent had sufficient control over its subcontractor to require abatement of the cited conditions.

The judge assessed no penalty for the violation of section 1926.451(a)(14) and penalties of $40 and $400 for the violations of sections 1926.451(a)(13) and (a)(4) respectively. We have considered the factors set forth in section 17(j) of the Act, 29 U.S.C. 666(i), governing the assessment of penalties and deem the penalties assessed by the judge to be appropriate. Accordingly, we find no error in the judge's decision with respect to Docket Number 76-1512 and affirm his disposition of that case.

Docket Number 76-1513

This case resulted from a March 16, 1976, inspection of a construction site at 2119 East Tenth Street in Sioux Falls. Respondent was cited for two repeated violations and three nonserious violations, all of which were affirmed by the judge. Respondent has petitioned for review of the judge's decision as to one nonserious violation for failure to comply with the standard at 29 C.F.R. 1926.550(a)(1) n5 for failure to have documented load limitations assigned by a qualified [*10] engineer for a tractor with a shop-built boom.

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n5 Standard 1926.550(a)(1) provides, in pertinent part,

The employer shall comply with the manufacturer's specifications and limitations applicable to the operation of any and all cranes and derricks. Where manufacturer's specifications are not available, the limitations assigned to the equipment shall be based on the determinations of a qualified engineer competent in this field and such determinations will be appropriately documented and recorded. Attachments used with cranes shall not exceed the capacity, rating, or scope recommended by the manufacturer.

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Respondent's employees were using a farm tractor equipped with a forklift attachment on the front. Attached to the forklift were two metal bars connected to form a cross. One end of the longer bar was attached at the base of the forklift. The shorter bar was connected to the two tines (prongs) of the forklift and supported the longer bar, which was being used to lift bar joists to a height of about ten feet and [*11] place them across steel beams where they would be incorporated into the structure.

The standard at 29 C.F.R. 1926.550 is captioned "Cranes and derricks," and respondent argued before the judge that the standard did not apply because the machine in question was not a crane. The judge rejected that argument. He held that the function of the machine determined whether the standard applied and found that the machine was used to perform the work of a crane. Therefore, he ruled, the standard applies, and respondent was in violation. We agree with Judge Morris' factual and legal analysis.

Respondent's argument would lead to the incongruous result that machinery designed and manufactured specifically to perform a given function should be held to more stringent requirements than shop-built equipment improvised to perform the same function. In our view, improvised or altered equipment is less likely to be adequate for the job than equipment specifically designed for the task. The load limitations of the homemade equipment must be determined by someone competent to determine its fitness, which is what section 1926.550(a)(1) requires.

We hold that 29 C.F.R. 1926.550 applies to machines [*12] used to perform lifting functions usually performed by cranes or derricks, whether the machines were originally designed for that purpose or not. In making this determination, we look to the purposes of the Act and of the standard. The stated purpose of Congress in enacting the Occupational Safety and Health Act, was "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions . . ." 29 U.S.C. 651(b), so the Act and standards enacted pursuant to it must be liberally interpreted in light of the Act's remedial purpose. See Southern Railway Co. v. OSHRC, 539 F.2d 335, 338 (4th Cir. 1976).

The standard's purpose is to minimize the potential hazards of operating lifting machines with loads exceeding their limitations. By making the maximum load limits of the machines known to their operators, the standard is intended to reduce the hazard that the machines will be overloaded. We believe that this is particularly important when the machine is used for a purpose for which it was not designed or when it has been modified, as here. Respondent's tractor was a multi-purpose machine. Whether we call it a crane, a derrick, or a [*13] tractor, when it was used to perform the operations witnessed by the compliance officer, it posed the same potential hazards a crane or derrick would have posed if one had been used to lift the bar joists.

Given the purpose of the Act, any ambiguity in the standard should be resolved in favor of eliminating the hazard to which the standard is addressed. In our view, whenever a piece of machinery performs lifting functions normally performed by a crane or derrick, it must comply with those safety standards that apply to cranes and derricks. We believe that this interpretation affords employees the greatest protection from the dangers of improvised equipment that may be inadequate for the task to which it is put.

In Felton Construction Co., 76 OSAHRC 136/C14, 4 BNA OSHC 1817, 1976-77 CCH OSHD P21,258 (No. 6759, 1976), appeal withdrawn, a divided Commission held that the use of a backhoe to lower pipe into a ditch did not convert it from an excavating machine to a crane. Upon reexamination, we concluded that Felton Construction was wrongly decided and reject the principle enunciated there. We cannot subscribe to an interpretation of the standards that would place [*14] less stringent requirements upon equipment that is potentially as hazardous as the equipment clearly governed by the standard, when both pieces of equipment perform the same function. A failure to find that respondent's shop-built boom is regulated by the standard at 29 C.F.R. 1926.550 would frustrate the remedial purpose of the Act. 29 U.S.C. 651(b), supra. For these reasons, the holding in Felton Construction is overruled and the decision by Judge Morris in this case is affirmed.

The judge assessed a penalty of $75 for this violation. We have considered the factors set forth in section 17(j) of the Act and find that penalty to be appropriate.

This case was directed for review by former Commissioner Moran. The direction specified no issues to be addressed, but simply stated that the case "shall be reviewed for error." The parties have not taken issue with the judge's disposition of the remaining items covered by these citations. We find no compelling public interest requiring that those items be reviewed, so we have not reviewed the judge's dispositions. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. [*15] 4136, 1976); Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976). The unreviewed portions of the judge's decision do not constitute precedent binding upon the Commission. Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976.)

Accordingly, we affirm the judge's decision with regard to both Docket Number 76-1512 and Number 76-1513. We affirm a serious violation of the Act for failure to comply with the standard at 29 C.F.R. 1926.451(a)(4) and nonserious violations for noncompliance with sections 1926.451(a)(13), 1926.451(a)(14), and 1926.550(a)(1). We assess a total penalty of $515.

CONCURBY: BARNAKO (In Part)

DISSENTBY: BARNAKO (In Part)

DISSENT:

BARNAKO, Commissioner, Concurring in Part and Dissenting in Part:

For the reasons given by the majority, I agree that the judge acted properly in finding Respondent in violation of the scaffolding standards at issue in Docket No. 76-1512. However, I dissent from the majority's conclusion that the judge properly affirmed the citation item at issue in Docket No. 76-1513, which alleged that Respondent had violated 29 C.F.R. 1926.550(a)(1). I would vacate this citation [*16] item because Respondent's tractor is not a crane and cannot reasonably be considered subject to standards that by their plain wording apply only to cranes and derricks.

In concluding that the standard does apply, my colleagues agree with the judge, who reasoned that the determination of whether the standard applies depends entirely on whether Respondent's equipment is performing the function of a crane. They conclude, as did the judge, that because Respondent's tractor was used to lift bar joists, a function they consider characteristic of a crane, it is subject to the standards at 29 C.F.R. 1926.550. I do not agree.

Before the judge both parties argued that various dictionary definitions of the word "crane" support their respective positions. However, in concluding that a "crane" for purposes of the standards in issue may be defined simply as any machine that performs a lifting function, neither my colleagues nor the judge cite any particular definition. In my view, my colleagues and the judge therefore err, for the word "crane" has a commonly understood meaning that does not encompass a tractor of the type at issue in this case.

The standard in question was originally promulgated [*17] by the Secretary of Labor under the Contract Work Hours and Safety Standards Act, 40 U.S.C. 327-333, as 29 C.F.R. 1518.550(a)(1). n1 It was then a subsection of 1518.550, entitled "Cranes and derricks," which in turn was contained within Subpart N of Part 1518, captioned "Cranes, Derricks, Hoists, Elevators, and Conveyors." Standards existing under the Contract Work Hours and Safety Standards Act were thereafter adopted by the Secretary under the Occupational Safety and Health Act. n2

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n1 36 Fed. Reg. 7340, 7383 (1971).

n2 36 Fed. Reg. 10466, 10469 (1971). Former Part 1518 of Title 29, C.F.R. was subsequently redesignated as Part 1926. 36 Fed. Reg. 25232 (1971). As the majority note, the cited standard is within 29 C.F.R. 1926.550, "Cranes and derricks," Similarly, Subpart N and its title appears now in Part 1926.

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At no time during his rulemaking procedures under either statute did the Secretary provide an interpretation or definition of the term "crane," nor did he expressly promulgate any definitions [*18] as part of Subpart N. However, another standard within that Subpart, 1926.550(b)(2), requires that "[a]ll crawler, truck, or locomotive cranes in use shall meet the applicable requirements for design, inspection, construction, testing, maintenance and operation as prescribed in the ANSI B30.5-1968, Safety Code for Crawler, Locomotive and Truck Cranes." According to the membership list appearing in this code, representatives of the construction industry, including specifically general contractors and iron and steel constructors, served on the ANSI committee which drafted this code. Since this code therefore represents a consensus of the views of those who use cranes and similar equipment in construction operations of the type being performed by Respondent, its provisions may be used to impart meaning that does not otherwise appear in the Secretary's standards. Wray Electric Contracting, Inc., 78 OSAHRC 78/A2, p. 14, 6 BNA OSHC 1981, 1985-86, 1978 CCH OSHD P23,031 at 27,836 (No. 76-119, 1978) (dissenting opinion), petition for review docketed, No. 78-3597 (6th Cir. Nov. 6, 1978); Clasten Vaughn, d/b/a Vaughn Roofing Co., 75 OSAHRC 40/A2, 2 BNA OSHC 1683, 1974-75 CCH [*19] OSHD P19,441 (No. 2183, 1975).

Section 5-0.2 of ANSI B30.5-1968 is entitled "Definitions." Subsection 5-0.2.1, captioned "Types of Equipment," sets forth definitions of four types of cranes: crawler, locomotive, truck, and wheel mounted. All of the definitions contain the phrase, "[i]ts function is to hoist and swing loads at various radii." (emphasis added). Each of these definitions also states that a crane is equipped among other things with a rotating superstructure and a boom, and subsection 5-0.2.2.12 in turn defines a "boom" as "[a] member hinged to the front of the rotating superstructure with the outer end supported by ropes leading to a gantry or 'A' frame and used for supporting the hoisting tackle." Plainly under these definitions a "crane" is more than simply a lifting mechanism. Rather, it is a lifting device with the additional capability of moving a load laterally through the use of a rotating superstructure. Moreover, such lateral movement may be performed at varying distances (radii) by means of a hinged boom.

It is obvious from the record in this case that Respondent's tractor neither was being used nor had the capability of being used as a crane. According [*20] to the compliance officer, it was being used to lift bar joists in a vertical direction. The photographs in evidence clearly show that the tractor is equipped only with lifting forks; it has neither a rotating superstructure nor a hinged boom, n3 and thus could not have been used to move loads in a horizontal as well as vertical direction. Therefore, Respondent's tractor is not a "crane" within the commonly-understood definition of that term. Since, as discussed above, I would interpret the cited standard in the light of the ordinary meaning that its terminology conveys to those who are subject to its provisions, I would find the cited standard inapplicable in the circumstances of this case and vacate the citation item. n4

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n3 The compliance officer himself conceded that he had never seem a crane that was not equipped with cables. He further testified that he would not have considered the tractor a crane if Respondent had not modified the lifting forks by installing the long bar, which he characterized as a "boom." Respondent's modification, however, did not alter the operation of the tractor and, in particular, did not confer the capability to move a load laterally at different distances.

n4 Accordingly, I do not join in my colleagues' overruling of our prior decision in Felton Constr. Co., 76 OSAHRC 136/C14, 4 BNA OSHC 1817, 1976-77 CCH OSHD P21,258 (No. 6759, 1976). In that case by a divided vote the Commission expressly adopted the judge's conclusion that incidental use of an excavation machine -- a backhoe -- to lower pipe into a trench did not convert it into a crane within the meaning of 29 C.F.R. 1926.550. As I have stated supra, the performance of a lifting function alone is not a sufficient basis on which to apply the standards governing cranes to equipment otherwise not subject to those standards. Therefore, in my view Felton was properly decided.

[*21]

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My colleagues, however, conclude that their contrary interpretation is justified under the remedial purposes of the Act because Respondent's tractor presents the same hazards as a crane or derrick used to perform the same function. Furthermore, in my colleagues' view their result is necessary to avoid a perceived anomaly of subjecting improvised equipment such as the lifting mechanism on Respondent's tractor to less stringent standards than those which would apply to cranes manufactured expressly for a lifting function.

While I agree that in principle standards should be interpreted so as to achieve employee safety, n5 it is improper to hold an employer in violation of a regulatory requirement of which the employer does not have fair notice. The majority's interpretation of the term "crane" to include a forklift tractor is contrary to the plain meaning of the term "crane" and would require an employer to guess as to whether the language of 29 C.F.R. 1926.550 applies to a tractor equipped with a forklift mechanism. n6 Accordingly, the majority's interpretation of the cited standard does not give [*22] a diligent employer who in good faith attempts to comply with his obligations under the Act fair notice of what is required.

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n5 United States Steel Corp., 77 OSAHRC 64/C8, p. 19, 5 BNA OSHC 1289, 1296, 1977-78 CCH OSHD P21,795 at 26,225 (Nos. 10825 & 10849, 1977).

n6 My colleagues suggest but do not actually decide that the standard may be ambiguous. Since, as I have said, the term "crane" has a readily ascertainable and specific meaning, the standard cannot be considered ambiguous. Moreover, assuming that the cited standard even when read together with other provisions in Subpart N does not define what is meant by the term "crane," my colleagues err in adopting a non-obvious interpretation of that term without considering whether there are different standards which on their face are more appropriate to the conditions in issue. See the discussion infra.

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Furthermore, it is equally improper to adopt, as do my colleagues, a strained reading of plainly-worded standards in order to eliminate apparent incongruities. [*23] To the extent that the Secretary's choice of language does not effectuate what the Secretary may have intended, the remedy lies in further rulemaking by the Secretary rather than in the adoption by this Commission of an interpretation that is not supported by, and indeed is contrary to, the plain wording of the standard as promulgated. See Usery v. Kennecott Copper Corp., 577 F.2d 1113, 1119 (10th Cir. 1977); Wray Electric, supra, 78 OSAHRC 78/A2, p. 13, 6 BNA OSHC at 1985, 1978 CCH OSHD P23,031 at 27,836 (dissenting opinion).

Moreover, my colleagues erroneously assume that application of the standards in Subpart N is the only means by which Respondent's employees can be protected from the hazard of exceeding the capacity of the improvised lifting attachment on Respondent's tractor. My colleagues completely ignore Subpart O, which is entitled "Motor Vehicles, Mechanized Equipment, and Marine Operations," and contains a section, 1926.602, captioned "Material handling equipment." This section in turn includes a subsection (c) that applies expressly to "Lifting and hauling equipment (other than equipment covered under Subpart N of this part)." (emphasis added). [*24] 29 C.F.R. 1926.602(c)(1)(ii) requires as follows:

No modifications or additions which affect the capacity or safe operation of the equipment shall be made without the manufacturer's written approval. If such modifications or changes are made, the capacity, operation, and maintenance instruction plates, tags, or decals shall be changed accordingly. In no case shall the original safety factor of the equipment be reduced.

Because this standard by its plain terms applies to all lifting equipment other than cranes, derricks, hoists, elevators, and conveyors and has a provision directed specifically to modifications or additions to such equipment, it is specifically applicable to the circumstances at issue in this case. The Secretary should have brought his citation under this standard rather than under a standard directed to cranes which manifestly does not apply. However, he chose not to do so, and thus the applicable standard was neither litigated nor otherwise addressed by the parties. See McLean-Behm Steel Erectors, Inc., 78 OSAHRC 93/A9, 6 BNA OSHC 2081, 2086, 1978 CCH OSHD P23,139 at 27,961 (No. 15582, [*25] 1978) (dissenting opinion).