SECRETARY OF LABOR,

Complainant,

v.

DUN-PAR ENGINEERED
FORM COMPANY

Respondent.

OSHRC DOCKET NO. 79-2553

DECISION

Before:  BUCKLEY, Chairman, and AREY, Commissioner.

AREY, Commissioner:

This case is before the Commission for the second time, pursuant to a court of appeals remand order.  Brock v. Dun-Par Engineered Form Co., 843 F.2d 1135 (8th Cir. 1988), rev'g, 12 BNA OSHC 1949, 1986-87 CCH OSHD 27,650 (No. 79-2553, 1986).   In its first decision, the Commission vacated an OSHA citation alleging that Dun-Par violated the guardrail standard at 29 C.F.R. 1926.500(d)(1)[[1/]].  It found that erection of guardrails was infeasible and that the Secretary had failed to meet her burden of proving that an alternative means of protection was feasible.

The U. S. Court of Appeals for the Eighth Circuit held that the Commission had improperly placed on the Secretary the burden of proving the feasibility of alternative protection.  The court held that an employer who demonstrates that literal compliance with an OSHA standard is infeasible must also show that other means of protecting its employees were unavailable.  843 F.2d at 1136.   The Commission must therefore determine whether Dun-Par made that showing.[[2/]]

The citation was based on Dun-Par's failure to protect its employees from perimeter fall hazards on the fifth and sixth floors of an 11-story building under construction in Excelsior Springs, Missouri.  Dun-Par was the subcontractor at the worksite responsible for constructing, and later tearing down, the wooden forms into which concrete was poured to create the floors ("decks") of the building.  Construction had reached the sixth floor at the time of OSHA's inspection.

Employees were exposed to falling hazards when erecting forms at the perimeter, and later when stripping them after the concrete deck had cured.  No fall protection devices were provided for these employees.  The Secretary did not challenge before the court of appeals the Commission's finding that guardrails would not have been feasible.  Therefore, that finding will be followed in this proceeding as the "law of the case."  See, e.g., In re Progressive Farmers Ass'n, note 2 supra.

The principal unresolved issue in this case is whether Dun-Par could have taken alternative measures to protect its employees from the falling hazards.  Several possible alternatives to guardrails were discussed at the hearing, including perimeter cables, safety belts, catch platforms, and safety nets.   Dun-Par argues that all those suggested alternatives were infeasible  and thus unavailable.  It also argues that it cannot be found in violation for failure to use catch platforms or safety nets, because those methods had not been in issue in the case.   However, the feasibility of catch platforms and safety nets was in issue, and the Commission now concludes that Dun-Par has failed to sustain its burden of proving that these methods would have been infeasible.[[3/]]

The factors that made guardrails and safety belts infeasible have no bearing in determining whether catch platforms or safety nets would have been feasible.  In essence, the need to perform work at the edges of the floors and on the surfaces of the floors made guardrails infeasible, while the need for employee mobility made safety belts infeasible.  However, there is no indication that catch platforms or safety nets would have affected Dun-Par's ability to perform its work.

The evidence specifically directed to the feasibility of catch platforms or safety nets may be summarized as follows.  In response to a question by Dun-Par's counsel, the OSHA inspector testified that a catch platform or a safety net could have protected its employees if guardrails could not have been used.  He repeated that testimony in response to a specific question by OSHA's counsel about how Dun-Par could have protected the perimeter of the fifth floor.  When asked by Dun-Par's counsel how the employer could have provided a safety net, the witness testified that Dun-Par could have "[p]ut outriggers out with a shore-up and [hung] nets on it. . . . You could do it from the fifth floor or the fourth floor . . . . It's not uncommon."  The record shows that, at the time of the alleged violation, there already were outrigger steel beams extending several feet out from the fifth floor perimeter.

Dun-Par presented no evidence that safety nets would have been infeasible or unavailable.  Its president was asked whether safety nets could have been erected on the building, and responded that he did not know.  He had never seen outrigger nets.

Dun-Par also did not prove that employee catch platforms would have been infeasible or unavailable.  Prior to the inspection, the company had erected a materials catch platform that extended out from the fifth-floor perimeter.  The platform was three or four feet wide, and about two to three times as long.  It was connected to a permanent part of the structure.  Its purpose was to catch materials as they were stripped and to prevent them from falling to the ground and endangering employees who were working at ground level.  The existing materials catch platform covered only a small part of the perimeter.  It was not designed to provide fall protection to employees on the fifth and sixth floors, and it was inadequate for that purpose.  However, its presence suggests that catch platforms specifically designed to prevent employees from falling to the ground would have been feasible.

On this record, Dun-Par has not demonstrated the infeasibility or unavailability of safety nets and catch platforms, and therefore has not established the defense of infeasibility of compliance.  It should be emphasized that this conclusion is limited to this record and is based on Dun-Par's failure to meet the burden of proof imposed on it by the appellate court.  See supra note 2.  No opinion is intimated as to whether catch platforms and perimeter safety nets are feasible means of fall protection in building construction generally.  Also, I leave for another day the question of whether current Commission precedent is correct, or whether the Eighth Circuit's position should be adopted.  Commission precedent still places the burden on the Secretary of showing a feasible alternative means of protection when literal compliance with a standard is infeasible.

Although the Eighth Circuit has reversed the Commission on the burden of proof issue, there is no need to reopen the evidentiary record.  Contrary to Dun-Par's assertions, the feasibility of alternative means of protection was an issue that was tried at the hearing in this case.

The evidence discussed above shows that Dun-Par recognized that the use of safety nets and catch platforms are alternative means of protection was at issue at the  hearing.  The OSHA inspector testified about all of the alternative fall protection devices discussed in this decision, in response to questions by both Dun-Par's counsel and the Secretary's counsel.  For example, Dun-Par's counsel asked specific questions about how a safety net could have been provided.  At the time of the hearing in this case, Commission precedent placed the burden on the employer to show the unavailability of alternative protection.  Dun-Par acknowledged its awareness of that burden in its post-hearing brief to the judge.  The court's decision does not place a greater burden of proof on Dun-Par than it had at the time of the court's decision had been issued before the case was tried.

In sum, Dun-Par unsuccessfully attempted to rebut testimony that was clearly submitted by the Secretary for the purpose of establishing that safety nets and employee catch platforms were feasible and useful alternatives to guardrails.  Dun-Par had adequate notice that the feasibility of those protective devices was at issue.  Cf., Lewis & Lambert Metal Contractors, Inc., 84 OSAHRC 45/A2, 12 BNA OSHC 1026, 1031 1984-85 CCH OSHD 27,073, p. 34,900 (No. 80-5295-S, 1984) (employer may not be found in violation for failure to use alternative means of protection not discussed at hearing).

Dun-Par raised a second affirmative defense, which was not addressed in the Commission's prior decision.  Dun-Par argues that it should not be found in violation because the general contractor was responsible for erection of guardrails under an agreement between the two employers.  The Commission has permitted a limited defense for some subcontractors on multiple employer worksites in situations where the cited subcontractor neither created nor controlled the hazardous condition.  See Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD 20,690 (No. 3694, 1976); Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD 20,691 (No. 12775, 1976).   However, this defense is not available to Dun-Par in this case.  As in a previous case, "Dun-Par itself created the hazard by participating in the erection of the opensided floor and leaving its edges unguarded."  Dun-Par Engineered Form Co., 80 OSAHRC 14/E6, 8 BNA OSHC 1044, 1049, 1980 CCH OSHD 24,238, p. 29,492 (No. 16062, 1980), aff'd, 676 F.2d 1333, 1336 (10th Cir. 1982).  Thus, Dun-Par was responsible for compliance with the standard "[r]egardless of who had the contractual responsibility for providing guardrails[.]" IdSee Lauhoff Grain Co., 13 BNA OSHC 1084, 1089, 1986-87 CCH OSHD 27,814, p. 36,398 (No. 81-984, 1987) (employer that creates hazard to which its own employees are exposed may not prevail under Anning-Johnson defense).  See also Bratton Corp. v. OSHRC, 590 F.2d 273 (8th Cir. 1979); Marshall v. Knutson Construction Co., 566 F.2d 596, 599 (8th Cir. 1977) (approving principles of multi-employer worksite defense generally.)

The Secretary has established all the other elements necessary to prove a violation of section 1926.500(d)(1).  As noted in the previous Commission decision, it is undisputed that the standard applies to the perimeter form work and that Dun-Par did not comply with its terms.  Also, there is no question that Dun-Par's employees had access to the fall hazards and that Dun-Par knew about the conditions.  12 BNA OSHC at 1952, 1986-87 CCH OSHD at p. 36,019.  The remaining issues are the classification of the violation and an appropriate penalty.

The violation was serious, as the judge found.[[4/]]  The fall distance was about 38-46 feet.  The judge assessed the maximum penalty for a serious violation -- $1000.  The basis for the judge's assessment was as follows:

[R]espondent is of moderate size, has an excellent history, and has an on-going safety program involving both its supervisory and hourly workers, and maintains an experienced work force of carpenters.  However mitigating these circumstances are, it is also clearly demonstrated that respondent has a stated reluctance to establish guardrails and a stated history of exposing its employees to unguarded perimeters.  Therefore, it is felt that respondent's posture regarding guardrails for its employees erecting or stripping out shores overcomes any consideration of mitigation. . . .

The judge's reasoning, and his decision to impose the maximum penalty, are not justified by the record.  The evidence does not show stubborn resistance by Dun-Par to the use of guardrails or other fall protection devices.  Its reluctance to build guardrails was linked to its brief that they were infeasible and also the fact that contractual responsibility for guardrails were shown to be infeasible during the phases of construction when Dun-Par's employees worked at the perimeter.  As noted above (n. 3), safety belts also were infeasible, and there was substantial evidence that another common alternative, perimeter cables, was infeasible.  The failure to provide catch platforms or safety nets was due, at least in part, to a lack of familiarity with these safety devices.  Dun-Par had an extensive safety program, and up to that time (over ten years in business) had not experienced any serious perimeter falls.

The Secretary argues that Dun-Par's failure to provide fall protection here was obdurate in light of the previous case where the Commission found that Dun-Par repeatedly had violated the same standard cited here on upper floors in concrete construction. Dun-Par (No. 16062), 8 BNA OSHC at 1050-51, 1980 CCH OSHD at pp. 29,492-94.  However, guardrails were not shown to be infeasible in those situations.  The specific and substantial feasibility problems here were not addressed there.  No inference of stubborn refusal to protect employees based on that case is appropriate.

Penalties are to be assessed in consideration of the gravity of the violation, the employer's size, good faith and history of violations. 29 U.S.C. 666(j).  In light of these factors (noted above), a penalty of $160 is appropriate.

Thus, the citation for violation of 1926.500(d)(1) is affirmed, the violation is classified as serious, and a penalty of $160 is assessed.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED:  April 12, 1988

(actual final order date: April 12, 1989--above date incorrectly published in all other media)

BUCKLEY, Chairman, concurring:

I concur with Commissioner Arey's disposition of this case, given the mandate imposed on the Commission by the Eighth Circuit Court of Appeals in Brock v. Dun-Par Engineered Form Co., 843 F.2d 1135 (8th Cir. 1988).  But I am impelled to point out what I consider to be a misunderstanding by the court of the history of the "impossibility/infeasibility" defense as it was created by the Review Commission.  Quoting Brock v. Chicago Zoological Society, 820 F.2d 909, 912 (7th Cir. 1987), the court said, "[T]he Commission's reinterpretation of the impossibility defense is owed no special deference, because 'it is the Secretary, not the Commission, who exercises policymaking and prosecutorial authority under the Act.'"   843 F.2d at 1137.  But it was the Commission rather than the Secretary who created the defense in the first place.

Adjudication under the Act had hardly begun when cited employers began presenting to our judges various claims of practical impossibility (infeasibility, in essence).  These claims all tended toward one of two arguments:   that it would be impossible/infeasible to perform work once the requirements of the standard were met, or that it would be impossible/infeasible even to do what the standard required.  See M.J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1144, 1979 CCH OSHD 23,330, p. 28,227 (No. 15094, 1979).  But this practical defense was nowhere prescribed by the Secretary; on the contrary, in the early cases the Secretary opposed the employers' claims, asserting, among other things, that the employers were impermissibly questioning the wisdom of the Secretary's standards, and that the employers should instead either have challenged the standards in pre-enforcement review proceedings, or have applied to the Secretary for variances.  The Commission, however, increasingly questioned the reasonableness of the Secretary's positions and increasingly recognized the practical justification of the employers' claims.  See, e.g., W.C. Sivers Co., 74 OSAHRC 30/B5, 1 BNA OSHC 1074, 1973-74 CCH OSHD 17,792 (No. 239, 1972); Universal Sheet Metal Corp., 74 OSAHRC 44/D7, 2 BNA OSHC 1061, 1973-74 CCH OSHD 18,163 (No. 657, 1974); Dic-Underhill, A Joint Venture, 75 OSAHRC 35/F10, 2 BNA OSHC 1651, 1974-75 CCH OSHD 19,328 (No. 2232, 1975); Warnel Corp., 76 OSAHRC 41/C5, 4 BNA OSHC 1034, 1975-76 CCH OSHD 20,576 (No. 4537, 1976); Rob't W. Setterlin & Sons Co., 76 OSAHRC 53/D8, 4 BNA OSHC 1214, 1975-76 CCH OSHD 20,682 (No. 7377, 1976).  And, increasingly, the courts of appeals that addressed these claims of impossibility/infeasibility tended to accept the defense and tended to view it in terms of practical compliance rather than technical or physical "impossibility."  See, e.g., Dorey Electric Co. v. OSHRC, 553 F.2d 357, 358-59 (4th Cir. 1977); Ace Sheeting and Repair Co. v. OSHRC, 555 F.2d 439, 441-42 (5th Cir. 1977); Greyhound Lines-West v. Marshall, 575 F.2d 759, 762 (9th Cir. 1978); A.E. Burgess Leather Co. v. OSHRC, 576 F.2d 948, 951-52 (1st Cir. 1978); Diebold, Inc. v. Marshall, 585 F.2d 1327, 1339 (6th Cir. 1978); Southern Colorado Prestress Co. v. OSHRC, 586 F.2d 1342, 1351 (10th Cir. 1978).

Furthermore, the Commission's later-announced element of the defense--requiring the employer to establish either that alternative protective measures had been taken or that they were infeasible or unavailable--departed from the Commission's earlier decisions without explanation.  Those decisions had not made alternative measures an element; the Commission instead required the Secretary to allege other standards which would put at issue particular alternative methods of protection.  See, e.g., Warnel Corp., supraRob't W. Setterlin & Sons Co., supra.  In Taylor Building Associates, 77 OSAHRC 27/A10, 5 BNA OSHC 1083, 1085 & n. 8, 1977-78 CCH OSHD 21, 592, p. 25,910 & n. 8 (No. 3735, 1977), the Commission specifically disclaimed that it was determining whether these earlier decisions should be reevaluated to add an alternative protection element to the impossibility defense.  Shortly thereafter, however, the Commission cited Taylor for the proposition that the employer had to establish the unavailability of alternative protection to establish the defense.  Julius Nasso Concrete Corp., 77 OSAHRC 208/F2, 6 BNA OSHC 1171, 1977-78 CCH OSHD 22,401 (No. 16012, 1977).  Thus, until its decision in this case, the Commission never examined whether alternative protection should be an element of the impossibility/infeasibility defense or where the burden of proof should lie.

Three recognized defenses now contain an alternative measures element:  (1) infeasibility (of compliance or of work performance); (2) greater hazard (while complying or thereafter while working); and (3) the multi-employer worksite defense (that the cited employer on a multi-employer worksite neither created nor controlled the violative condition).  The same element is implicit in the case of a violation of the general duty clause.  29 U.S.C. 654(a)(1).  Certainly, as discussed in the Commission's earlier decision in this case, Dun-Par Engineered Form Co., 12 BNA OSHC 1949, 1957-58, 1986-87 CCH OSHD 27,650, pp. 36,025-26 (No. 79-2553, 1986), the obligation of carrying the burden of proof should be the same in all of these.  In general duty clause cases, the courts and Commission have uniformly imposed upon the Secretary the burden of proving the feasibility of methods by which to abate the recognized hazard.  See, e.g., National Realty & Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973); Phillips Petroleum Co., 84 OSAHRC 2/E7, 11 BNA OSHC 1776, 1983-4 CCH OSHC 26,783 (No. 78-1816, 1984), aff'd, No. 84-1425 (10th Cir. Sept. 10, 1985); see also, Royal Logging Co., 79 OSAHRC 84/A2, 7 BNA OSHC 1744, 79 CCH OSHD 23,914 (No. 15169, 1979), aff'd, 645 F.2d 822 (9th Cir. 1981).  For greater hazard defenses, the Commission has generally required the employer to show only the unavailability of alternative methods of protection proposed by the Secretary.  See, e.g., Industrial Steel Erectors, Inc., 74 OSAHRC 2/E5, 1 BNA OSHC 1497, 1973-4 CCH OSHD 17,136 (No. 703, 1974); H.E. Wiese, Inc., 82 OSAHRC 18/A2, 10 BNA OSHC 1499, 1982 CCH OSHD 25, 985 (No. 78-204, 1982), aff'd No. 82-4202 (5th Cir. 1983).  And as to the multi-employer defense, the Commission has recently held (on the authority of Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD 20,691 (No. 12775, 1976)) that an employer is not required to defend against alternative methods of protection not raised at the hearing.  Lewis & Lambert Metal Contractors, Inc., 84 OSAHRC 45/A2, 12 BNA OSHC 1026, 1031, 1984-85 CCH OSHD 27,073, p. 34,900 (No. 80-5295-S, 1984).  In all of these the burden of proposing feasible alternative methods of protection was on the Secretary.  The Commission's earlier decision in the instant case was, therefore, merely an effort to return consistency and uniformity to its adjudicatory processes, and at the same time to restructure a departure by the Commission from its prior precedents dealing with the impossibility/infeasibility defense.  Accordingly, it is with reluctance that I follow the Eighth Circuit's decision so summarily declining to defer to the Commission on a defense which the Commission created and just lately restructured to provide that uniformity


SECRETARY OF LABOR,

Complainant,

v.

DUN-PAR ENGINEERED FORM CO.,

Respondent.

OSHRC Docket No. 79-2553

DECISION
Before:  BUCKLEY, Chairman; RADER and WALL, Commissioners.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651- 678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA").  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. 659(c).

As a result of an employee complaint against the general contractor, an OSHA compliance officer inspected a construction worksite in Excelsior Springs, Missouri.  At the worksite, several different employers were working on an eleven-story building.  Among the subcontractors was Dun-Par Engineered Form Company ("Dun-Par"), which was responsible for the concrete formwork at the site. When the compliance officer arrived at the worksite, the building was partially constructed to the sixth floor.  The second, third and fourth floors of the building had guardrails around the perimeter.  However, the fifth and sixth floors did not.  The compliance officer observed eight Dun-Par employees tearing down formwork on the fifth floor.  Although he did not see anyone on the sixth floor, the compliance officer was told later that Dun-Par employees also had been working on the sixth floor.  The Secretary cited Dun-Par under 29 C.F.R. 1926.500(d)(1)[[1]] for failing to provide guardrails on the fifth and sixth floors.  The Secretary later amended his citation to allege, in the alternative, that Dun-Par should have protected its employees against perimeter falls by providing them with safety belts under the personal protection equipment standard at 29 C.F.R. 1926.28(a).[[2]]

Judge Dixon affirmed the citation and rejected Dun-Par's defense that guardrails were "impossible" to erect at the worksite.   The judge found that Dun-Par could have installed guardrails and also found that "cables, catch platforms, outriggers and nets, and safety belts" would have been feasible.  We reverse Judge Dixon's findings and hold that Dun-Par established that guardrails and safety belts were infeasible at the Excelsior Springs worksite.[[3]]

At the worksite, Dun-Par erected the wooden formwork into which concrete was poured to form the structural framework of the building.  This formwork was erected on each floor of the building.  The formwork for one floor could not be erected until the concrete on the previous floor had hardened.

First, the vertical forms, or shores, were built by connecting two 4x4 wooden beams together with the aid of an "ellis clamp."   Then, 4x6 horizontal forms, or ledgers, were attached to the vertical shores and the vertical and horizontal forms were raised.  Every sixteen feet along the floor, this same process of combining and then raising vertical and horizontal forms was repeated.  The formwork along the perimeter of the floor was angled out in such a way that the shores would be able to support an overhead walkway that would be built around the floor above.

Additional 4x4 horizontal wooden forms, called runners, were attached to join the shores and ledgers together.  This vertical and horizontal formwork was braced by additional 4x4 and 4x6 wooden beams.  A horizontal gridwork form was placed down on top of this infrastructure and plywood was nailed down onto the gridwork form.  Concrete was then poured onto the completed formwork.   When the concrete hardened, the wooden formwork was torn down by Dun-Par employees standing in the center of the floor and pulling the wooden forms away from the hardened concrete.  This left a concrete floor, which Dun-Par employees used as a base at some later time to erect vertical and horizontal formwork for the next floor.

Dun-Par argued to the judge that it could not have erected guardrails and still performed its work at the Excelsior Springs worksite. Specifically, Dun-Par argued "the functional impossibility/impracticality of perimeter guarding."  At the hearing, Dun-Par presented the testimony of two Dun-Par construction workers and John Dunn, the president of Dun-Par.  All three witnesses had extensive experience in concrete formwork; all three gave several specific reasons why guardrails were not feasible at any stage during Dun-Par's work.  The three Dun-Par witnesses testified that before the plywood forms had been laid on top of the vertical shores and horizontal ledgers and gridwork there was no place to erect guardrails.

The compliance officer conceded that guardrails could not be erected until the plywood forms were put down, but contended that guardrails were feasible on the fifth and sixth floors of the Excelsior Springs project.   However, the Dun-Par witnesses demonstrated that guardrails would also be infeasible on the fifth and sixth floors.  Dunn explained that the vertical shoring on one floor was used to support the floor above and a walkway surrounding the overhead floor.  Here, the vertical shoring of the fifth, or "base" floor was used to support the sixth floor and walkway surrounding the sixth floor.  Thus, the vertical shoring on the fifth floor had to be angled out so that it supported the overhead walkway which was beyond the perimeter of the building.  The way in which the vertical shoring was angled out, according to Dunn, made it impossible to erect a guardrail on the fifth floor while the formwork was being erected on top of the concrete base floor.  Any guardrail would interfere with this essential vertical shoring and would have had to be removed when Dun-Par erected the vertical perimeter shores.  One Dun-Par employee explained that any cable or guardrail around the perimeter of the building would actually force Dun-Par workers to perform some of their duties outside the perimeter guarding.

Dun-Par's witnesses also testified that guardrails were not feasible on the sixth floor during the time between the laying of the plywood cover and the erection of the vertical shores to support the next level.   First, the Dun-Par witnesses testified that when the plywood was placed down and guardrails could be erected, the guardrails would perform no safety function for the Dun-Par employees.  After the plywood forms were in place, Dun-Par's work on the floor was completed and the other building trades would come on to the floor and perform their duties.  As Dunn explained, after plywood forms were in place, Dun-Par employees were "down the building and other trades are moving in."

Dunn stated that a single Dun-Par employee oversaw the pouring of concrete over the wooden forms to check for any unusual weaknesses in the formwork.  However, this employee, according to Dunn, would not go to the perimeter of the building unless there was a particular problem.

Finally, the Dun-Par witnesses explained that the guardrails would be destroyed when Dun-Par employees returned to remove the shoring after the concrete was poured.  The wooden shores were wedged into place and were removed by pulling them out. According to Dun-Par witnesses, any guardrails in place would be destroyed when the shoring was ripped down.  Therefore, guardrails would not be feasible during the tearing down of the formwork.

Dun-Par also argued that "a safety belt/life line system of protection is neither feasible nor of likely utility."  The Secretary presented only the general opinion of the compliance officer -- who had no experience in concrete formwork -- that such protection could have been provided.  On the other hand, Dun-Par presented specific testimony as to why safety belts would not have been feasible. When asked whether Dun-Par employees could wear safety belts and still perform their duties, Dunn explained that Dun-Par employees needed to move around freely in the work area in order to do their job.  He added, "We're going up and down ladders. Safety belts would just be impossible to do the job, do the work."

II
To prove a violation of an OSHA standard, such as sections 1926.500(d)(1) or 1926.28(a), the Secretary must establish (1) the applicability of the cited standard, (2) the existence of noncomplying conditions, (3) employee exposure or access, and (4) that employer knew or with the exercise of reasonable diligence could have known of the violative condition.  See Belger Cartage Service Inc., 79 OSAHRC 16/B4, 7 BNA OSHC 1233, 1235, 1979 CCH OSHD 23,440, p. 28,373 (No. 76-1480, 1979); Harvey Workover, Inc., 79 OSAHRC 72/D5, 7 BNA OSHC 1687, 1688-90, 1979 CCH OSHD 23,830, pp. 28,908-10 (No. 76-1408, 1979).  Here, there is no dispute about either the applicability of the standards or that there were no guardrails or safety belts being used at the worksite.  Neither is there any question that Dun-Par employees had access to the unguarded perimeter or that Dun-Par knew about the condition.  The question in this case is whether, as the direction for review suggests, the erection of guardrails and use of safety belts were feasible at the Excelsior Springs worksite.

The Commission has long held that employers may defend against a citation that alleges a violation of an OSHA standard requiring a particular means of abatement,--in this case, section 1926.500(d)(1), which requires the installation of guardrails--by proving the affirmative defense of "impossibility."  E.g., Julius Nasso Concrete Corp., 77 OSAHRC 208/F2, 6 BNA OSHC 1171, 1977-78 CCH OSHD 22,401 (No. 16012, 1977).  This defense has two elements:  (1) impossibility and (2) proof of alternative protection. Under this defense the employer must first demonstrate that compliance with the standard's literal requirements was not possible or would preclude performance of the employer's work.  E.g., Braxton Furniture Manufacturing Co., 83 OSAHRC 30/A2, 11 BNA OSHC 1433, 1435, 1983-84 CCH OSHD 26,538, p. 33,858 (No. 81-799, 1983).   Secondly, the employer must show that he took alternative means of protection not specified in the standard, or that alternative means of protection were unavailable.   IdSee also American Luggage Works, Inc., 82 OSAHRC 30/C7, 10 BNA OSHC 1678, 1683, 1982 CCH OSHD 26,072, p. 32,797 (No. 77- 893, 1982).

The Secretary argues that Judge Dixon was correct in finding that Dun-Par failed to establish the elements of the impossibility defense.  According to the Secretary, Dun-Par failed to show that the erection of guardrails or the use of safety belts would have prevented Dun-Par from doing its work.  The Secretary also argues that Dun-Par failed to show that other ways of protecting the workers were not available.

On review, Dun-Par does not argue that the erection of guardrails was absolutely impossible but that the guardrails "were not a feasible means to protect Dun-Par employees due to the circumstances and nature of Dun- Par's work."  Dun-Par further argues that the guardrails were not "practical" and that their use at the workplace was "contrary to common sense and the purpose of the Act."  Similarly, Dun-Par argues that the record establishes that safety belts were "neither feasible nor of likely utility."   Dun-Par argues that the Commission should follow the rationale of the United States Court of Appeals for the Eighth Circuit in H.S. Holtze Construction Co. v. OSAHRC, 627 F.2d 149 (8th Cir. 1980), and adopt a more practical and reasonable approach to the defense of "impossibility."

Dun-Par's arguments on review are not couched in the traditional terms of the impossibility defense.  Dun-Par does not claim that the erection of guardrails or the use of safety belts was "impossible" but only that these means of protection did not make sense given the manner in which Dun-Par performed its work.  Neither does Dun-Par make any claim that it took available, alternative measures, as required under the second element of the "impossibility" defense.   Essentially, Dun-Par questions the "impossibility" defense as it has been developed by the Commission.

A.
Heretofore, the initial requirement of the impossibility defense was that the employer was required to show that it is "impossible" to comply with a standard.   Although Commission decisions have consistently spoken of "impossibility," several courts of appeals have instead inquired whether compliance was "infeasible."[[4]]  It is to this distinction between "impossibility" and "infeasibility" that we now turn.

Section 5(a)(2) of the Act, 29 U.S.C. 654(a)(2), states simply that employers "shall comply with occupational safety and health standards promulgated under this Act."  However, it soon became apparent to the Commission that this provision of the Act could not reasonably be applied in a literal manner and that some sort of impossibility or infeasibility defense was necessary.

The Commission's use of the word "impossibility" began in W.C. Sivers, 74 OSAHRC 30/B5, 1 BNA OSHC 1074, 1973-74 CCH OSHD 17,792 (No. 239, 1972).  There, the employer had suggested that compliance with a standard would have prevented work from being performed.  The Commission remanded to give the employer an opportunity to prove this but reserved decision on whether the allegation was a defense.  The Commission stated simply that:

It may well be that [the employer], by this allegation, intended to raise (albeit inartfully) impossibility of compliance as an affirmative defense.  We would give [the employer] the opportunity to present the defense without venturing any opinion at this time concerning the question of the completeness of the defense, if established under the Act.
1 BNA OSHC at 1076, 1973-74 CCH OSHD at p. 22,165.

In the first Commission decision that actually upheld the defense, the Commission vacated a citation for a violation of standards requiring guardrails on the ground that the work would have been "impossible" with the railings in place.  W.B. Meredith, II, Inc., 74 OSAHRC 39/A2, 1 BNA OSHC 1782, 1973-74 CCH OSHD 18,003 (No. 810, 1974); see also Garrison & Associates, Inc., 75 OSAHRC 51/D5, 3 BNA OSHC 1110, 1974-75 CCH OSHD 19,550 (No. 4235, 1975).  The Commission did not, however, make clear why a showing of "impossibility" was necessary, as opposed to a showing of "infeasibility."  Possibly early members of the Commission saw no sharp distinction between the two, because thereafter, in K & T Steel Corp., 76 OSAHRC 31/A2, 3 BNA OSHC 2026, 2028, 1975-76 CCH OSHD 20,445, p. 24,415 (No. 5769, 1976), the Commission held that the "impossibility" defense had not been proven because the evidence showed the "feasibility" of using a guarding method required by a standard.  See also Central Steel & Tank Co., 75 OSAHRC 9/A2, 3 BNA OSHC 1711, 1712, 1975-76 CCH OSHD 20,172, p. 24,017 (No. 2346, 1975) (employer failed to establish that no "practical" means of guarding exists; "impossibility" defense not proved); and Universal Sheet Metal Corp., 74 OSAHRC 44/D7, 2 BNA OSHC 1061, 1973-74 CCH OSHD 18,163 (No. 657, 1974) (compliance with standard would render performance of work "very difficult if not impossible.")   When finally in C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1300, 1977-78 CCH OSHD 22,481, p. 27,101 (No. 14249, 1978), and Hughes Brothers, Inc., 78 OSAHRC 65/A2, 6 BNA OSHC 1830, 1835, 1978 CCH OSHD 22,909, p. 27,719 (No. 12523, 1978), the Commission drew a sharp distinction between the terms "impossibility" and "infeasibility," it did not explain why it did so.   See also StanBest, Inc., 83 OSAHRC 10/D6, 11 BNA OSHC 1222, 1231, 1983-84 CCH OSHD 26,455, p. 33,624 (No. 76-4335, 1983).

We think that the early members of the Commission correctly appreciated that literal compliance with the standards was not always possible.   However, we do not believe the so-called impossibility defense, as presently framed, adequately reflects the obligations of employers under the Act.  The standards adopted in the earliest days of the Act were national consensus standards and established federal standards, which Congress had required the Secretary to adopt quickly without additional rulemaking.  See sections 3(9), 3(10) and 6(a) of Act, 29 U.S.C. 652(9), 652(10) and 655(a).  The national consensus standards, which were the source of the "overwhelming majority of safety standards,"[[5]] were often out-of-date by the time OSHA adopted them.[[6]]  They had been drafted by committees of industry representatives under the auspices of private standard-setting organizations, particularly the American National Standards Institute (ANSI) and the National Fire Protection Association (NFPA), and were not intended to be used as mandatory, inflexible legal requirements.  A managing director of ANSI, for example, commented that "[i]n the days before OSHA, when standards were developed as advisories, not laws, the committees sometimes tended to incorporate some lofty goals, knowing they would never be held accountable if [employers] didn't achieve them."[[7]]  As one observer noted:

... [P]rivate standards were often written as goals to be attained rather than as rules intended to be enforced.
... Many combine arbitrary levels, values, or other requirements with an either explicit or implicit understanding that these requirements are not to be applied by rote to every situation which they might literally cover.[[8]]
Both OSHA officials and early members of the Commission recognized that the voluntary consensus standards were not designed to be rigidly enforced.[[9]] This view was reaffirmed by the Third Circuit in A.F.L.-C.I.O. v. Brennan, 530 F.3d 109, 112 (3d Cir. 1975).  That case involved a machine guarding standard that was derived from an ANSI standard.  The court observed that "[w]hen it promulgated the no hands in dies standard, the [ANSI] B 11 standards committee did not anticipate that its code would ... become a mandatory federal standard rather than a precatory guideline for the affected industries."

This lack of expectation of rigid enforcement also lay behind the established federal standards adopted en masse in 1971.  Many were taken from standards adopted under the Walsh-Healey Public Contracts Act, 41 U.S.C. 35-45.  Yet, the Walsh-Healey standards were only interpretive rules, designed to establish a benchmark for employee safety and health but not to finally determine the government contractor's duty.  Thus, Labor Department regulations permitted the contractor to challenge the "legality, fairness or propriety" of the Labor Department's reliance on a standard to show a violation of the statutory prohibition against "unsanitary or hazardous or dangerous working conditions."  41 C.F.R. 50-204.1.  See generally American Can Co., 82 OSAHRC 5/A2, 10 BNA OSHC 1305, 1311, 1982 CCH OSHD 25,899, p. 32,414 (No. 76-5162 1982).

The same is true of the Construction Safety Act standards in 29 C.F.R. Part 1926, which were originally adopted under and interpreted the Contract Work Hours and Safety Standards Act, 40 U.S.C. 327 et seq.   (commonly known as the "Construction Safety Act").  According to 29 C.F.R. 1926.10 (first designated 29 C.F.R. 1518.10), the Construction Safety Act standards were specifically intended to interpret and apply section 107 of the Construction Safety Act, 30 U.S.C. 333, which prohibits "unsanitary, hazardous, or dangerous" working conditions in government construction work.  However, the procedures for enforcement were to be those under the Service Contract Act, 41 U.S.C. 351 et seq.  29 C.F.R. 1926.4 (first designated 29 C.F.R. 1518.4), adopted at 36 Fed. Reg. 7340, 7341 (1971).  The version of the pertinent Service Contract Act regulation that was in effect when the Construction Safety Act standards were adopted prescribed a system like that in the Walsh-Healey Act: Labor Department investigators and other officers were instructed to "assume that failure to comply with...the safety and health measures provided in [the Service Contract Act standards] results in working conditions which are 'unsanitary or hazardous or dangerous....'"  In "formal enforcement proceedings," however, contractors would "be permitted to demonstrate by reliable, substantial, probative evidence, that their failure to comply with [the Service Contract Act standards] did not result in working conditions unsanitary or hazardous or dangerous...." Section 1516.1(b) and (c), adopted at 32 Fed. Reg. 21036-21037 (1967). Thus, the Construction Safety Act standards were originally intended to be only interpretive regulations; failure to follow a standard was not per se violation.

Moreover, many, if not most, of the interpretive standards adopted under the Walsh-Healey Act and the Construction Safety Act were themselves derived from private, voluntary standards, which, as we have noted, were not drafted as inflexible, legal commands.[[10]]

The Commission's experience in interpreting and applying the OSHA standards adopted under section 6(a) has been consistent with the above account of their history--that they could not possibly have been written with literal application in mind; rather the standards were designed not for all cases but for the normal case.[[11]]  As the Eighth Circuit pointed out in H.S. Holtze Construction Co. v. Marshall, 627 F.2d at 151-52, "some modicum of reasonableness and common sense is implied."[[12]]

Strict application of an "impossibility" defense does not accommodate considerations of reasonableness or common sense, or reflect the strong sense of the practical implicit in the standards adopted under section 6(a).  Feasibility, on the other hand, is consistent with the requirements of the Act and with earlier Commission decisions.  This view is buttressed by the legislative history of the Act and by the language of some standards.  Thus, section 6(b)(5), by which means Congress intended the Secretary to adopt the health standards that would replace OSHA "interim" standards, speaks expressly of "feasibility."  One court has inferred from section 6(b)(5) that all OSHA standards are implicitly constrained by the feasibility requirement.  See A.F.L.-C.I.O. v. Brennan, 530 F.2d 109, 121 (3d Cir. 1975); Atlantic & Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541, 555 (3d Cir. 1976).  The Secretary's own standards--particularly the new health standards--consistently use the word "feasible" to qualify the employer's obligation.[[13]]  The general duty imposed by section 5(a)(1) of the Act, 29 U.S.C. 654(a)(1), which applies when no standard is applicable, is also implicitly qualified by the concept of "feasibility."  See National Realty & Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973).  Finally, when a standard is so unclear that it would otherwise be held unconstitutionally vague, the Commission and several courts of appeals have held that the standard applies only to the extent the duty imposed on the employer is "feasible."  See Granite City Terminals Corp., 86 OSAHRC ____, 12 BNA OSHC 1741, 1746 & n.10., 1986 CCH OSHD 27,547, pp. 35,774-75 & n.10 (No. 83-882-S, 1986); Frank Briscoe Co., Inc., 76 OSAHRC 129/A2, 4 BNA OSHC 1729, 1976-77 CCH OSHD 21,162 (No. 7792, 1976); L. R. Willson & Sons, Inc. v. OSHRC, 698 F.2d 507 (D.C. Cir. 1983); Modern Drop Forge Co. v. Secretary of Labor, 683 F.2d 1105 (7th Cir. 1982); Voegele Co. v. OSHRC, 625 F.2d 1075 (3rd Cir. 1980); Ray Evers Welding v. OSHRC, 625 F.2d 726 (6th Cir. 1980); Bristol Steel & Iron Works, Inc. v. OSHRC, 601 F.2d 717 (4th Cir. 1979); General Electric Co. v. OSHRC, 540 F.2d 67 (2d Cir. 1976).

We agree with several courts of appeals that "rather than 'impossibility,' the question is more properly thought of in terms of [in]feasibility.  A.E. Burgess Leather Co. v. OSHRC, 576 F.2d 948, 950 & n.1 (1st Cir. 1978).[[14]]  We therefore modify the defense by changing the inquiry in the first element from "impossibility" to "infeasibility."  We overrule Commission precedent that requires employers to prove that compliance with a standard is "impossible" rather than "infeasible."

B.
Under the second element of the impossibility defense, an employer who established the impossibility of the cited standard was also required to persuade the trier of fact by a preponderance of the evidence that alternative protective measures had been taken or were unavailable.  M. J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1146, 1979 CCH OSHD 23,330, p. 28,229 (No. 15094, 1979).  Although section 5(a)(2) of the Act does not expressly impose a requirement to use available alternative protective measures, the Commission has reasoned that an employer should do something to protect its employees if literal compliance with a standard is impossible.  See id.

However, none of the Commission cases that discussed the impossibility defense and that allocated the burden of persuasion to the employer to establish that compliance with a standard was "impossible," ever analyzed why the employer should also have the burden of persuasion to establish that alternative means of protection were "unavailable" or why "unavailability" should be the test for determining the employer's duty.  Similarly, although the courts of appeals upheld the Commission's allocation of the burden of persuasion to the employer to establish that compliance with the cited standard was "infeasible" or "impossible," Cleveland Consolidated v. OSHRC, 649 F.2d 1160 (5th Cir. 1981); Southern Colorado Prestress Co. v. OSHRC, 586 F.2d 1342 (10th Cir. 1978); Diebold Inc. v. Marshall, 585 F.2d 1327 (6th Cir. 1978); A.E. Burgess Leather Co. v. OSHRC, 576 F.2d 948 (1st Cir. 1978); Ace Sheeting & Repair Co. v. OSHRC, 555 F.2d 439 (5th Cir. 1977), none of the courts discussed the allocation of the burden of persuasion on the alternative measures element.

The allocation to the employer of the burden of persuasion on the alternative measures issue posed almost insoluble litigating problems for the employer:  He would have to prove the negative of a proposition and he could never know when he had proven the unavailability of all the alternative measures that could possibly exist.  To prepare for a hearing in which the impossibility of abatement would be in issue, the employer would have to conceive of all possible alternative measures, including those that might be suggested by the Secretary or his witnesses, and prepare evidence to establish that all those measures were "unavailable."  Still, the employer could never know for certain that he had prepared his defense adequately, that he had addressed all possible alternative measures.  Others might occur to the Secretary, the judge or the Commission that the employer might not have anticipated no matter how diligent or imaginative his preparation for the hearing.

We conclude that the burden of proposing alternative means of protection and persuading the trier of fact that the employer failed to use them more fairly rests with the Secretary.

It should be noted that there are "no hard-and-fast standards governing the allocation of the burden of proof in every situation." Keyes v. School District No.1, Denver, Colo., 413 U.S. 189, 209 (1973).  Where the burden of persuasion falls will ultimately rest "upon broad reasons of experience and fairness."  J. Wigmore, Evidence 2486 at 292 (J. Chadbourn ed., 1981).

The courts have considered a host of factors when deciding whether to place the burden of persuasion with one party or another.[[15]]  See McCormick, Laws of Evidence 337 at 788-789 (2d ed. 1972).  One factor that is carefully considered is whether the facts with regard to an issue are within the knowledge of a particular party; if they are, that party is more likely to be allocated the burden of establishing those facts.  McCormick at 787; Advanced Micro Devices v. C.A.B, 742 F.2d 1520 (D.C. Cir. 1984).  See also Louisiana-Pacific Corp., 77 OSAHRC 63/E14, 5 BNA OSHC 1572, 1977 CCH OSHD 21,977 (No. 6277, 1977) (concurring opinion).  One court used this reasoning in holding that the burden of persuasion should be on the employer to establish that compliance with the cited standard was infeasible.  The Fifth Circuit in Ace Sheeting observed:

Here, the regulation stated specific ways for the employer to eliminate the hazard.  If the employer put up guard rails or covered the skylights, the safety standard would have been met.  If for any reason guard rails or covers are not feasible, the employer knows this better than anyone else, and it is reasonable to require him to come forward with the evidence to prove it. . . . We therefore hold that where a specific duty standard contains the method by which the work hazard is to be abated, the burden of proof is on the employer to demonstrate that the remedy contained in the regulation is infeasible under the particular circumstances.
Ace Sheeting, 555 F.2d at 441.

On the other hand, determining whether alternative feasible means of protection could have been used in a particular situation requires safety expertise and a broad knowledge of available abatement methods.[[16]]  An employer is not always aware of the many alternative means of protection, particularly if the alternative means of protection are not commonly used in the employer's industry.  Knowledge of the various alternative means of protection is more likely to reside with the compliance officer and other employees of the Occupational Safety and Health Administration.  The employer does not on balance have any peculiar knowledge concerning alternative means of protection and may indeed have less knowledge than OSHA of such matters.

The allocation to the Secretary of the burden of alleging and establishing alternative means of protection is more consistent with holdings in closely analogous areas of occupational safety and health law.  Where a statute or standard specifies a means of abatement or states specific performance criteria, an employer is informed of his duty; if he raises an infeasibility defense, he will know what measures he must prove are "infeasible."  If the standard or statute (for example, the general duty clause) is not so specific, however, the Commission and the courts have imposed on the Secretary the duty to specify and prove the feasibility of a means of abatement.  Compare National Realty & Construction Co., Inc. v. OSHRC, 489 F.2d 1257, 1268 (D.C. Cir. 1973) (general duty clause), and Granite City Terminals Corp., 86 OSAHRC ____, 12 BNA OSHC 1741, 1746, 1986 CCH OSHD 27,547, p. 35,775 (No. 83-882-S, 1986) (general standards), with Anoplate Corp., 86 OSAHRC ____, 12 BNA OSHC 1678, 1684, 1986 CCH OSHD 27,519, p. 35,682 (No. 80-4109, 1986) (no burden of proving feasibility where standard is specific). Here, once the employer has proven the infeasibility of the specific means of abatement imposed by or described by a standard, the situation is similar to one in which a standard or statute prescribes none at all.   Here too then, we think it appropriate to impose on the Secretary the duty to formulate his own theory of what the employer should have done, to allege that theory and to support it with evidence at the hearing.

For much the same reason, the Secretary will be required to show that the alternative means of protection is "feasible" and not merely "available."  This accords with the reasoning of the District of Columbia Circuit in National Realty that we mentioned above, and, as discussed in Part II.A of this decision, with the language, structure and purpose of the Act.  The Secretary must therefore show that the alternative means is a practical and realistic method, given the circumstances at the workplace, to protect the employer's workers, and that the employer did not use it.

The employer may, of course, rebut the Secretary's showing that the employer did not use a feasible alternative method of protection.  He may, among other things, show that he had used another alternative protective method that was reasonably designed to mitigate the hazard.  The alternative method actually used by the employer need not, however, be as protective as the method proposed by the Secretary; it need only provide as much protection as the method required by the standard or, in the case of a general standard, by the method of protection proven to be a feasible method of complying with the standard.

We believe the reallocation of the burden of persuasion described in this decision will be fairer to the parties.  It will give the employer sufficient notice of what alternative means of protection will be the subject of the litigation.  We also believe this reallocation of the burden of persuasion will "sharpen the inquiry" and "frame the factual question" to the essential question concerning alternative means of protection:  what could the employer have done to bring himself into compliance with the cited standard?  See Texas District of Community Affairs v. Burdine, 450 U.S. 248, 255 (1981).  This will result in the creation of a fuller record concerning the important issues of the case and therefore better decision making.

In placing on the Secretary the burden to show the feasibility of specific alternative measures, we do not hold that when employers are faced with the infeasibility of the specific abatement method identified in applicable standards, they are free to do nothing until told what to do by the Secretary in an adjudicatory proceeding.  Just as employers have a duty to make reasonable efforts to comply with the general duty clause and standards that state only a general duty, employers who find identified forms of abatement infeasible continue to have a duty to make reasonable efforts to utilize other means of abating the hazard of which the standard gives them notice.

The concurring opinion argues that due process problems will arise because the employer may be held in violation of the Act for not taking measures that are not required by standards promulgated under section 5(a)(2) or under the general duty clause of the Act. We believe that there are not such due process problems.

We do not agree with the concurrence that the Secretary's alternative measure must be derived from the most specifically applicable standard or through independent proof of a recognized hazard under section 5(a)(1).  In large measure the concurrence, by permitting an alternative measure to be rebutted on grounds of inapplicability or preemption, would preclude the Secretary from rebutting an infeasibility defense since most standards are hazard specific.  The Secretary need not offer independent proof of recognition of the hazard since the standard which he first cited gives the employer notice of the hazard.  Nor, where a cited standard would require abatement of other than serious hazards, would it be necessary for the Secretary to show the hazard to be likely to cause death or serious injury.  It having been established in rulemaking that the hazard warrants precautionary measures, the remaining issue, where the employer has raised infeasibility of compliance as a defense, is simply the feasibility and likely utility of means of abatement not specified in the standard.  We would reiterate, however, that the Secretary has the same burden to show feasibility of the alternative measure as under the general duty clause.

That the exact measures the employer should have taken are not spelled out in a standard is no different from when an employer is cited under the general duty clause or a performance standard.  There, an employer is not apprised of specific measures he must take to comply with the general duty clause or a performance standard, but rather only with the general nature of the hazard.  Just as the Commission and the courts have found no due process problems with the lack of specific abatement methods in the general duty clause or general performance standards,[[17]] we perceive no violation of due process because an employer is not notified in a standard of the specific alternative means of abatement he could take to protect his employees.  In both cases, the employer has a duty to think for himself and determine what feasibly can be done.

III.
Applying the infeasibility defense here, the question is whether Dun-Par established that guardrails could not have been installed or would have disrupted the work to such a degree that there was no feasible way to use guardrails to protect Dun-Par's employees. Dun-Par's work in erecting the concrete formwork occurred in several distinct stages.

In the first stage, Dun-Par employees constructed and then raised vertical and horizontal forms every 16 feet along the floor.  Both parties agreed that at this stage, before the plywood was laid on top of the vertical and horizontal forms, there was simply no place to put guardrails.  Therefore, at this stage in Dun-Par's work, guardrails were infeasible.

In the next stage of Dun-Par's work, Dun-Par's employees attached plywood to the vertical and horizontal forms so that concrete could be poured onto the wooden forms.  The parties disagreed whether guardrails could be used at this stage of Dun-Par's work. Dun-Par argued that guardrails could not be used because of the way in which the vertical shores along the perimeter of the building had to be angled out.  Dun-Par's witnesses explained that the vertical shores along the perimeter of the building were used to support the overhead floor and a walkway surrounding the floor above.  According to Dun-Par's witnesses, the way in which vertical shores were angled would leave no room for guardrails along the perimeter.

From the evidence at the hearing, it appears that it was theoretically possible to erect guardrails once the plywood was put down. However, just because there was some conceivable way to erect guardrails does not mean that guardrails were feasible.  As the Dun-Par witnesses explained, guardrails would interfere with the vertical shoring along the perimeter of the floor.  Any guardrail along the perimeter would have to be removed so as not to interfere with this shoring.   Thus, guardrails could have been placed somewhere on the floor though not along the perimeter.  Dun-Par witnesses testified, however, that any perimeter guarding would force Dun-Par employees to work outside the perimeter guards.  We therefore find that guardrails were infeasible at this stage of Dun-Par's operation.  Requiring an employer constantly to erect and tear down the guardrails or to have its employees work outside the guardrails in order to complete their work is not a feasible method of complying with section 1926.500(d)(1).

The next stage of work was the pouring of concrete.  This began after the vertical and horizontal forms were erected and the plywood was laid down.  By this time, almost all of the Dun-Par employees had left the work area.  Only one Dun-Par employee generally remained to oversee the pouring of concrete over the wooden forms and to check for any sagging or slippage in the forms. The employee would have no occasion to approach the perimeter of the floor unless there was an unexpected problem with the shores at the perimeter of the building during the concrete pour.

We are unconvinced by the Secretary's evidence of employee access at this stage.  The Secretary must prove that it is reasonably predictable that "employees either while in the course of their assigned duties, their personal comfort activities while on the job, or their normal means of ingress-egress to their assigned workplaces, will be, are or have been in a zone of danger."  Carpenter Contracting Corp., 84 OSAHRC _____ , 11 BNA OSHC 2027, 2029, 1984 CCH OSHD 26,950, p. 34,563 (No. 81-838, 1984); Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 2003, 1975-76 CCH OSHD 20,448, p. 24,425 (No. 504, 1976).  Here, the evidence consists of no more than speculation that an employee might go to the edge of the building if an unusual event occurred.   Although it may have been physically possible to erect perimeter guardrails at this stage, it would have made no practical sense for Dun-Par to have done so.  Dun-Par undoubtedly would have had to engage other employees in the erection of guardrails along the entire perimeter of the fifth floor, thereby inevitably exposing them to a fall hazard.  This would have been done to protect one employee in the event of an unusual occurrence during the concrete pour -- that an employee would go to the floor perimeter to check for sagging or slippage of the wooden forms.  We find that guardrails would not have been a feasible way to protect that single Dun-Par employee during the concrete pour.

After the poured concrete hardened, Dun-Par employees returned to the work area to remove the wooden forms.  Dun-Par employees would stand away from the perimeter of the floor and pull the wooden forms with the aid of a rope or board toward the center of the floor.  Uncontradicted testimony by Dun-Par's witnesses established that any guardrails would have been destroyed by this procedure.  At this point, guardrails may have been theoretically possible but they would have served no practical purpose in protecting the employees.  Under the circumstances, we find that guardrails at this stage of Dun-Par's work were infeasible.

As we stated previously, feasibility must reflect the strong sense of the practical implicit in the OSHA standards.  The question of whether a means of protection is infeasible must be answered in light of the practical realities of the particular workplace.  Looking at the evidence presented concerning each stage of Dun-Par's operations, we find that Dun-Par established by a preponderance of the evidence that there was no feasible way to comply with section 1926.500(d)(1).  Therefore, we uphold Dun-Par's affirmative defense that guardrails were infeasible.

The Secretary alternatively charged that safety belts could be used at the workplace.  Dun-Par maintained that because its employees needed to move about the worksite freely, safety belts would not be feasible.  In Granite City Terminals Corp., 86 OSAHRC , 12 BNA OSHC 1741, 1746 & n.10, 1986 CCH OSHD 27,547, p. 35,775 (No. 83-882-S), the Commission held that when an employer is cited under a general standard, such as section 1926.28(a), which does not specify a particular method of compliance, the Secretary must prove that there is a feasible means of complying with the standard.[[18]]  The Secretary, then, has the burden of proving that safety belts were feasible at the Excelsior Springs worksite.

After weighing the testimony presented at the hearing and considering the practical realities of the workplace, we find that the Secretary failed to establish that safety belts were feasible.  The Secretary presented no evidence concerning how the safety belts would actually be used at the workplace beyond the compliance officer's bare claim that safety belts were feasible.   On the other hand, Dun-Par presented specific testimony which established that safety belts were infeasible.  Mr. Dunn, who had much more experience with concrete formwork than the compliance officer, explained the need for Dun-Par workers to move freely about the work area, often moving up and down ladders.

Although we uphold Dun-Par's infeasibility defense with respect to guardrails and find that the Secretary failed to establish the feasibility of safety belts, we do not yet vacate the citation.  As we discussed at some length above, when an employer argues that compliance with a cited standard is infeasible, the Secretary has the burden of persuasion to establish that a feasible alternative means of protection existed and the employer did not use it.  The Secretary, of course, was not on notice that he had the burden of establishing a feasible alternative means of protection and so produced very little evidence concerning any alternative methods. Similarly, the Secretary was not then on notice that he bore a burden of proving the feasibility of safety belts.  The Secretary will therefore be granted an opportunity to adduce additional evidence on the feasibility of safety belts and to amend his pleadings to allege that Dun-Par failed to use feasible alternative means of protection.

Accordingly, the citation is vacated unless the Secretary, within ten days from the issuance of this decision, moves that this case be remanded to permit him to adduce additional evidence on the feasibility of safety belts, or to amend his pleadings to allege that Dun-Par failed to use specific feasible alternative means of protection, and to adduce additional evidence concerning those matters.

FOR THE COMMISSION
Executive Secretary
Dated:  July 30, 1986

RADER, Commissioner, concurring in part and dissenting in part:

I join with the majority in holding that the so-called "impossibility" defense is more properly cast in terms of "infeasibility."  I also agree that when an employer raises the infeasibility defense it is the Secretary's burden to plead and prove the alternative means of protection that the employer should have utilized.  Since we have substantially altered the respective burdens of persuasion and going forward with the evidence where infeasibility is raised as a defense, I would add a brief explanation of how the defense will work from a procedural standpoint.

In a typical case the Secretary will allege in his complaint that the employer has violated a certain standard.  The employer will then raise the affirmative defense of infeasibility in his answer.  At that point the Secretary is on notice that he may have to prove there were alternative measures the employer could and should have used.  Since, as we have noted, the Secretary has peculiar knowledge of the available alternative means of protection, and especially those upon which he may offer evidence at trial, he should amend his complaint to allege those alternative measures the employer should have taken if, in fact, compliance with the cited standard is infeasible.  In this manner, then, both parties will have fair notice of the claims and defenses of the other prior to trial.

In the present case we unanimously vacate the citation under section 1926.500(d)(1) because Dun-Par demonstrated that guardrails were simply infeasible.  Since the Secretary did not know it was his burden to allege and prove alternative means of protection, we agree that the Secretary should be afforded the opportunity to do so now.  It is at this point, however, that I part company with the majority.  I differ with the majority as to what alternative measures the Secretary may propose.  Under the majority view, once the infeasibility defense is raised the Secretary may advocate any feasible alternative means of protection, even if those alternative measures are contained in inapplicable standards, or standards that are preempted under 29 C.F.R. 1910.5(c) by more specific but uncited standards, or are not specified in any standard at all.

Our holding that the burden of pleading and proving alternative measures properly rests on the Secretary is founded on the due process concept that the employer should have fair notice of exactly what the Secretary alleges the employer should have done.  It is manifestly unfair to require the employer to be prepared to prove the unavailability of all possible alternative measures that could be suggested by the Secretary's witnesses at trial.  It seems to me that if due process principles of notice and fairness preclude the imposition of ad hoc alternative measures at trial, those same principles preclude the imposition of ad hoc alternative measures--i.e., measures not required by a standard or recognized under the general duty clause--at any time.  That the majority will now require the Secretary to apprise the employer of these ad hoc alternative measures in advance of trial does not change the fact that the employer may still be held in violation of the Act for not taking measures that are not called for in the standards promulgated under section 5(a)(2) or under the general duty clause, section 5(a)(1).

It goes without saying that the Secretary is solely responsible for writing standards and regulations to establish an employer's compliance duties.  In adopting these standards, the Secretary is required to follow the rulemaking provisions set forth in section 6 of the Act, 29 U.S.C. 655.  These standards primarily define the employer's duty under section 5(a) of the Act, for it is only when no standards apply that any employer is required to comply with the Act's general duty clause, which requires steps against "recognized hazards that are causing or are likely to cause death or serious physical harm . . . . " Section 5(a)(1), 29 U.S.C. 654(a)(1).  See generally 29 C.F.R. 1910.5(f); Brisk Waterproofing Co., 73 OSAHRC 30/E1, BNA OSHC 1263, 1973-74 CCH OSHD 16,345 (No. 1046, 1973).

Section 5(a) reflects a scheme of regulation intended to define and limit the duties of employers.  In adopting subsection 5(a)(2), Congress rejected the Walsh-Healey Act's general criterion of "unsanitary or hazardous or dangerous" and made standards the primary focus of an employer's duty.  American Can Co., 82 OSAHRC 5/A2, 10 BNA OSHC 1305, 1312, 1982 CCH OSHD 25,899, p. 32,415 (No. 76-5162, 1982).  Although Congress stated a general duty in subsection 5(a)(1), it intended that that provision operate only when a standard did not.   Congress also made the general duty clause more limited than the Walsh-Healey Act's general criterion, for it limited the employer's duty to avoiding only "recognized" hazards that are "causing or likely to cause death or serious physical harm," and to taking feasible steps against them.[[19]]

The majority's "available alternative protective measures" doctrine is out of step with this scheme.  The measures it requires need not be those described in the standard found to have been violated, and could well be measures that are only specified in inapplicable or pre-empted standards, or not required by the standards at all.  This effectively expands the compliance duties imposed on employers; they are required to comply with standards that do not apply or do not exist, or, stated differently, with requirements that have not been imposed beforehand by the Secretary, whose authority it is to establish or modify standards.  See, e.g., Lisbon Contractors, 84 OSAHRC 19/A2, 11 BNA OSHC 1971, 1974, 1984 CCH OSHD 26,924, p. 34,500 (No. 80-97, 1984); Schwarz-Jordant Inc., 84 OSAHRC ____, 11 BNA OSHD 2145, 2147, 1984 CCH OSHD 26,989, p. 34,714 (No. 81-2738, 1984), rev'd on other grounds, 777 F.2d 195 (5th Cir. 1985).  The majority's view is based on the idea that if the employer cannot feasibly comply with the applicable standard he must do "something."  The problem with this is that the Secretary's view of what alternative measures the employer should take may be different from the employer's.   The employer therefore cannot know whether the "something" he does is sufficient to comply with the Act until after he has been cited and the citation litigated.

The majority's holding here still leaves a significant notice problem for employers.  To comport with the due process clause of the Fifth Amendment to the Constitution, standards must provide employers with fair notice of their compliance responsibilities.  See Dravo Corp. v. OSHRC, 613 F.2d 1227, 1232 (3d Cir. 1980), and cases cited therein; Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974).  To assure that employers receive such notice, standards must not be interpreted to impose duties that their plain meaning does not support.  See Diamond Roofing Co. v. OSHRC, 528 F.2d 645 (5th Cir. 1976).  Under the majority's view the duties imposed ad hoc by the alternative measures doctrine may bear no relationship to the plain words of any cited standard.  The employer thus has no fair notice of what it is he must do to be in compliance with the Act until after he is cited for violations.

For these reasons, I would not allow the Secretary to impose alternative measures that are not required by any standard or are beyond the scope of the general duty clause.


SECRETARY OF LABOR,

Complainant

v.

DUN-PAR ENGINEERED FORM CO.,

Respondent

OSHRC DOCKET 79-2553
(REMAND)

CORRECTED ORDER ON REMAND

Pursuant to the Review Commission's Remand Order of April 27, 1984, the penalty assessment made in the Decision of this Administrative Law Judge November 19, 1980, is corrected and amended to $1,000.

A total penalty of $1,000 is assessed for serious violation of 29 CFR 1926.500(d)(1) and serious violation of 29 CFR 1926.28(a).

DATE:  May 30, 1984
Paul E. Dixon, Judge, OSHRC


SECRETARY OF LABOR,

Complainant,

v.

DUN-PAR ENGINEERED FORM CO.,

Respondent.

OSHRC DOCKET NO. 79-2553

DECISION
Before:  ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.
BY THE COMMISSION:

This case is before the Commission for review on the issue of whether the Administrative Law Judge erred in assessing a penalty of $1620 for a serious violation of 29 C.F.R. 1926.500(d)(1) and 29 C.F.R. 1926.28(a), alleged in the alternative.  The Respondent, Dun-Par Engineered Form Co., was originally cited by the Secretary of Labor for an alleged repeated violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678.  The Secretary proposed a penalty of $1620.  The judge declined to find the violation repeated, affirming instead a serious violation of the Act.  Section 17(b) of the Act, 29 U.S.C. 666(b), provides for a maximum civil penalty of $1000 for each serious violation of the Act.[[1/]]  Dun-Par correctly maintains, and the Secretary concedes, that the assessed penalty in this case should not have exceeded $1000.  Accordingly, that portion of the judge's order assessing a penalty of $1620 for the serious violation affirmed in Citation No. 1 is vacated. The case is remanded to the Administrative Law Judge for the assessment of an appropriate penalty for this violation.

FOR THE COMMISSION
EXECUTIVE SECRETARY
Dated:  April 27, 1984

ROWLAND, Chairman, Dissenting:

While I agree with the majority that the judge erred as a matter of law in assessing a penalty in excess of that permitted under the Act for a serious violation, I dissent from its decision to remand this matter to the judge for a penalty assessment.  In my view, the majority errs in failing to consider Respondent's arguments that it did not violate the Act in the first instance.

Respondent was alleged to have violated 29 C.F.R. 1926.500(d)(1) for failure to provide perimeter guardrail protection for employees working on open-sided floors at heights of approximately 38 and 46 feet or alternatively section 1926.28(a) for allowing these employees to work without safety belts, lifelines, and lanyards.[[1]]  The record, in brief, shows that Respondent was a subcontractor engaged solely in installing and removing formwork for concrete flooring on the worksite in question.  The record further shows that Respondent could not have used guardrails during a substantial portion of its work because such guardrails would obstruct the formwork.  There is also evidence tending to show that safety belts and some of the other means of protecting employees suggested by the Secretary's inspector also could not have been used or would have been ineffective to protect employees.  Respondent took steps to minimize the exposure of its employees by structuring the work such that employees spent as little time as possible at the perimeter and worked from the perimeter toward the inside of the building.  Finally, Respondent requested that the general contractor install guardrails as soon as conditions would permit, normally when the formwork for a particular floor had been completed.

On these facts, the judge affirmed the citation, finding essentially that there was some exposure of Respondent's employees to the unguarded floor perimeters and that some measures could have been taken for their protection.  Respondent filed a petition for review, contending that the judge's decision is not supported by the facts and is contrary to relevant case law regarding the duty of a subcontractor to protect against hazardous conditions which it did not create or control as well as contrary to case law regarding the requirements of section 1926.28(a) and the duty of the employer when compliance with the specific terms of a standard is not possible.  Respondent also disputed the judge's penalty assessment.

Former Commissioner Barnako filed a direction for review of the judge's decision, stating as the only issue for review the propriety of the judge's penalty assessment.  Despite the fact that Respondent filed a brief on review renewing all of its exceptions to the judge's decision, the majority only considers the penalty issue.  I would not limit review to the penalty assessment.

The circumstances of this case plainly demonstrate that a penalty assessment cannot logically be separated from, and considered without regard to, the merits of the underlying citation.  A penalty assessment necessarily implies that a violation has occurred, yet no such determination has been made by the Commission, despite Respondent's forceful arguments that it did not violate the Act. Moreover, it is well settled that a penalty assessment is based upon the size of the business of the cited employer, the gravity of the violation, the employer's good faith, and the history of previous violations.  J.L. Foti Construction Co., 80 OSAHRC 36/C10, 8 BNA OSHC 1281, 1980 CCH OSHD 24,421 (Nos. 76-4429 and 76-5049, 1980).  Under these criteria, circumstances such as limited duration of employee exposure and the efforts made to protect employees are to be taken into account in assessing an appropriate penalty.  E.g., Connecticut Natural Gas Corp., 78 OSAHRC 60/B3, 6 BNA OSHC 1796, 1978 CCH OSHD 22,874 (No. 13964, 1978); National Steel and Shipbuilding Co., 78 OSAHRC 48/A2, 6 BNA OSHC 1680, 1978 CCH OSHD 22,808 (Nos. 11011 and 11769, 1978), aff'd, 607 F.2d 311 (9th Cir. 1979).  In this case, however, Respondent also defends against the citation itself by referring to its efforts to limit employee exposure and otherwise to protect its employees.  It argues that such matters are relevant to determining the scope of the employer's duty.  Thus, application of the penalty assessment criteria here necessarily will require consideration of factual matters and contentions integrally related to the merits of the citation itself.

By refusing to include the merits within the scope of its review, the majority in effect fragments this case despite the fact that modern judicial practice encourages the prompt disposition of all claims presented.   Thus, the Federal Rules of Civil Procedure warrant the broadest possible scope of action consistent with fairness to the parties; joinder of claims and remedies is strongly encouraged.  United Mine Workers v. Gibbs, 383 U.S. 715, 724 (1966).  The tribunal having jurisdiction over the parties should dispose in one proceeding of all related grievances between the parties.  Price v. Williams, 393 F.2d 348 (D.C. Cir. 1968); Rolls-Royce, Ltd. v. United States, 364 F.2d 415 (Ct. Cl. 1966).

In this regard, I note that although section 10 of the Act, 29 U.S.C. 659, allows an employer to contest either a citation or notification of proposed penalty,[[2]] Commission precedent is that a notice of contest filed by an employer limited to the penalty will nevertheless be construed to include a contest of the citation as well if the employer subsequently indicates that its intent was also to challenge the citation.  State Home Improvement Co., 77 OSAHRC 216/A2, 6 BNA OSHC 1249, 1977-78 CCH OSHD 22,435 (No. 14098, 1977); Turnbull Millwork Co., 75 OSAHRC 16/A13, 3 BNA OSHC 1781, 1975-76 CCH OSHD 20,221 (No. 7413, 1975).  This precedent implicitly recognizes that normally it is inappropriate to limit consideration only to the amount of a penalty assessment when a challenge to the underlying citation itself is properly brought before the Commission.  In view of the close relationship between penalty assessment and determination of a violation here, the majority errs in denying Respondent the right to be heard on all of its exceptions to the judge's decision.


SECRETARY OF LABOR,

Complainant

v.

DUN-PAR ENGINEERED FORM CO.,

Respondent

OSHRC DOCKET 79-2553

APPEARING ON BEHALF OF COMPLAINANT:
ROCHELLE G. STERN, ESQ., and EUGENE F. DeSHAZO, ESQ., U. S. Department of Labor, Office of the Solicitor

APPEARING ON BEHALF Of RESPONDENT:
WILLIAM E. SIMMONS, ESQ.
THOMAS M. MOORE, ESQ.

Hearing held March 20, 1980, U. S. Court of Appeals Courtroom, Kansas City, Missouri, Judge Paul E. Dixon presiding.

STATEMENT OF THE CASE
This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970, contesting a citation issued by the complainant against the respondent under the authority vested in the complainant by section 9(a) of the Act.  The citation alleged that an inspection of a workplace under the operation and control of the respondent revealed existence of conditions that violated section 5(a)(2) of the Act, for the reason that these conditions failed to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to section 6 thereof.

A citation for repeat violation, consisting of one item, and a citation for other violation, consisting of one item, were issued on May 10, 1979, as a result of an inspection made on May 3, 1979, of respondent's worksite at Kansas City and St. Louis Avenues, Excelsior Springs, Missouri, where respondent was engaged in work as a subcontractor, erecting and tearing down concrete forms.
Respondent duly contested the citation and proposed penalty, and upon filing of the complaint and answer by the respondent the cause was at issue.

CITATION 1
Alleged Repeat Violation
Item 1
"29 CFR 1926.500(d)(1):  Open-sided floors or platforms, 6 feet or more above adjacent floor or ground level, were not guarded by a standard railing or the equivalent on all open sides:
a) 5th and 6th floors of building, 38 feet
3 inches and 46 feet 9 inches, respectively -
No perimeter protection provided."

An abatement date of May 15, 1979, was established, along with a proposed penalty of $1,620.

The Standard
"1926.500--Guardrails, Handrails, and Covers
(d) Guarding of open-sided floors, platforms, and runways
(1) Every opensided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder.  The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard."

CITATION 2
Alleged Other Violation
Item 1
"29 CFR 1926.450(a)(9):  The side rails of ladder(s) did not extend more than 36 inches above landing(s):
a) Access ladder to 6th floor - Eight (8) foot step ladder even with 6th floor level."

An abatement date of May 15, 1979, was established, with a proposed penalty of $0.

The Standard
"1926.450--Ladders
(a) General requirements
(9) The side rails shall extend not less than 36 inches above the landing.  When this is not practical, grab rails, which provide a secure grip for an employee moving to or from the point of access, shall be installed."

The complainant, through its complaint, alleged in the alternative that respondent was in violation of the standard published at 29 CFR 1926.28(a) and plead the violation to assert it as a serious violation.

"1926.28--Personal Protective Equipment
(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees."

At the commencement of the proceeding, complainant moved to add an allegation to his complaint alleging violation of 29 CFR 1926.450(a)(9), which had been originally charged in the citation and which complainant omitted from its complaint based on the belief that respondent had failed to deny the allegation in its notice of contest.

Respondent argued against the addition of the allegation to complainant's complaint.  The Judge reserved ruling on the basis of the file record, wherein be found that the notice of contest and answer contained an apparent general denial as to all allegations made by the complainant.  The Judge now rules that the amendment was appropriate, in that respondent was put on notice by the original citation 2 issued by the complainant, and that the complainant's failure to include the charge in its complaint was based on either a misunderstanding of respondent's position or carelessness in preparation, and that respondent did not demonstrate any substantial or material prejudice by the complainant's failure to plead the allegation in his original complaint.

THE EVIDENCE
Dun-Par is a corporation that has its principal office and place of business located at 9808 East 87th Street, Raytown, Missouri.  On May 3, 1979, Dun-Par maintained a construction jobsite on a high-rise building at Kansas City and St. Louis Avenues in Excelsior Springs, Missouri.  On that construction project, Dun-Par was one of five or six different employers working on the jobsite on May 3, 1979, the date the compliance officer inspected the project.

Dun-Par is a specialty subcontractor, which erects the forms for reinforced concrete decks.  The two principals of the company have sixty years of construction experience between them, with the last 22 years in this specialized forming business.  Since its inception and up until the time of May 3, 1979, Dun-Par had successfully formed 25 million square feet of reinforced concrete service and completed over 500 projects in Missouri, Kansas, Colorado, Iowa, Wyoming, Oklahoma, Texas and Louisiana.

Respondent's method of forming for concrete pours consisted of using 16-foot dimension timber to form for the concrete decks of the high-rise building.  The vertical shores were 4 by 4's with ellis clamps holding two 4 by 4's together.  The forms were erected on a horizontal 4 by 6 ledger tacked on top of a 4 by 4, which was raised with another 4 by 4, then being slipped under the other end of the 4 by 6 ledger.

Sixteen feet over from the two 4 by 4's supporting the 4 by 6 ledger, two additional shores supporting a ledger were raised and a horizontal 4 by 4 runner was intact between the two ledgers to tie all the shores and ledgers together.  Intermediate 4 by 6's and 4 by 4's were then raised and affixed to the framework with X-bracing as a stabilizer being nailed to the vertical supports.

When completed, a gridwork form was erected for plywood to be nailed on the top so that the concrete could be poured for the next floor.   The forming process for one floor, such as the seventh floor, could not be begun by Dun-Par until the concrete for the floor below, the sixth floor, was completely cured, and then the forms on the sixth floor stripped or wrecked out.  The form work was started at one end of the building, and employees worked across the building bringing two perimeters of the floor down the building at the same time.

The job in question consisted of a proposed construction of a building 11 stories high, plus the roof.

The vertical shores on the perimeter of the building leaned outward at an angle, so that a 4-foot wide walkway around the floor above could be erected.

These vertical shores angled outward, extending beyond the perimeter edge of the building, and are called leaners.

The perimeter horizontal 4 by 6 ledger on top of the leaners was approximately 10 inches to 14 inches outside of the perimeter of the deck being worked from, as it was angled outward from the floor horizontally 1 foot for each 8 feet of vertical height.

It is respondent's contention that it was not possible for perimeter guardrails to be erected to protect the perimeter edge of the floor being worked from by respondent's employees because of the way the leaners angled outward.  The leaners could not have been erected if a perimeter guardrail was in place.

On top of the workform itself, it was not possible to erect a guardrail until the plywood was nailed onto the shoring, because there was nothing to which a guardrail could be attached until the plywood was nailed down.

After Dun-Par's employees had nailed the plywood to the top of the form work, respondent's employees' work on the floor to be formed ceased, and respondent's employees left the construction project, because there was no more work for respondent's employees until the concrete had been poured and cured and it was time to strip or wreck the preceding floor and set up forming for the next floor.

It was respondent's president's testimony that on the day of the inspection on the fifth floor respondent's employees were stripping the form work, which had been erected so that the concrete of the sixth floor level could be poured.  To strip the form work, a 16-foot square section in the middle of the floor was first stripped so that there would be an open area in which other material being stripped on the floor could be stacked.  When the material on the floor was dropped, employees first pulled it back to the middle 16-foot square section to disassemble the form work and then to stack it.

To strip the form work, the intermediate vertical shores supporting the horizontal ledgers were removed, leaving only the end 4 by 4 shores to support the ledgers.  One of the end 4 by 4's was then jerked out from underneath two 4 by 6 ledgers and an entire 16-foot section of form work was then dropped to the floor where employees pulled it to the center section, disassembled it and stacked it.  The vertical shores were only wedged in place, and were thus loose and reasonably easy to pull down in a controlled manner.

Instructions were given to respondent's employees that when stripping to work toward the interior of the floor, because the perimeter of the floor is dangerous, and to avoid working near the perimeter as much as possible.

Employees of respondent never worked toward the perimeter of the floor when in close proximity to it; instead, they always work towards the inside of the building by standing, as instructed, further away from the perimeters of the floor and the vertical floor being pulled out.

If guardrails were in place at the time of the stripping operation they would be broken when the forms were pulled out.

After the entire stripping operation on a floor is completed, respondent's employees are not on that floor again, as they either leave the area to go to another job or another area of the project to work.

It was the deposition testimony of respondent's witness engineer Don Marvin, with an extensive background in commercial and industrial construction, that it was not normal and customary in respondent's forming work for guardrails or other equivalent barriers to be in place on the floors from which respondent's employees, or employees of other specialty contractors doing identical work, were erecting their form work, because it is impossible for the leaners to be erected.  If perimeter guarding of any kind is present on those floors, it becomes necessary for employees to work outside the perimeter of guarding to strip the form work, and results in the perimeter guarding getting smashed by the forms being stripped.

Compliance officer Carl Kinney, with some 20 years experience in construction and related fields, conducted his inspection on May 3, 1978, of respondent's work activities at a jobsite located at Kansas City Street and St. Louis Street in Excelsior Springs, Missouri, where respondent was operating as a subcontractor for the general contractor V. C. DeCarlo.

At the time of the inspection, the fifth and sixth floors of a building were under construction, with no perimeter guardrails at the fifth and sixth floor level.  Kinney also noted that at the fifth floor level there was an 8-foot step ladder gaining access to the sixth floor from the fifth floor which did not extend above the floor level 36 inches.

Kinney, during the course of his inspection, was accompanied by respondent's foremen Parkin and from Parkin and interviews with three employees determined that there was a total of eight employees at the jobsite.

After observing respondent's employees working the fifth floor, Kinney went to the sixth floor where he did not observe any of respondent's employees performing work at the time of his inspection.

Kinney could not state with certainty whether respondent's work activity consisted of placing or wrecking out forms at the time of the inspection.

Kinney identified photograph C-3 an having been taken on the sixth floor, showing no perimeter guarding.  Exhibit C-4 was again on the sixth floor taken to the northeast, depicting no perimeter guarding.  Exhibit C-5 was identified as a view from the ground up on the east side of the building showing the fifth and sixth floors without perimeter guarding, with guardrails being built on the third and fourth floor level.  It also depicted a 4-foot outrigger platform that extended out from the fifth floor used to hoist materials raised by crane which did not have any guardrails.  The platform is connected to one of the permanent parts of the building and also serves as catch platform for material as it comes down.  Photograph C-6 was identified as depicting the same outrigger platform extending out from the fifth floor from a different angle.

Exhibit C-7 was described by Kinney as not relating to respondent, but rather showed that the general contractor had started putting up guardrails on the fourth floor level.

Photograph C-8 was described by Kinney as representing the ground level showing debris and 4 by 4's, things that people would fall on if they fell off the edge of the building.

Kinney made no measurements from the fifth to the sixth floor, but the distances he obtained were from the general contractor's blueprints.

Kinney determined that from the first to the second floor level was 12 feet, 6 1/2 inches, with the other floors as 8 feet, 6 1/2 inches, from floor to floor.

From the fifth floor level to the ground was 38 feet, 6 inches; from the sixth floor level to the ground was 46 feet, 3 inches.

Kinney observed forms set for the pouring of concrete, and also observed shores out on the platform in the course of his inspection.

He also observed employees on the fifth floor that would have access to the unguarded edge of the floor.

Kinney's inspection was prompted by a complaint that a cement finisher had slipped from the sixth floor, however, was able to catch a shore on his way down and was not injured.

During the course of Kinney's walkaround he had occasion to speak to respondent's foreman Parkin, its employees Ron Fisher, Rubin Sendejas and employee Wright.

Kinney was of the opinion that based upon his experience in construction, appropriate abatement would have been guardrails or perimeter guarding, and that it was feasible to construct them at the jobsite.

Kinney further testified as to his observation that no employees were wearing any other type of personal protective equipment.

Kinney was of the opinion that a fall from either 38 or 46 feet would result in multiple fractures and probable death.

Kinney further testified that he recommended that a repeated citation be issued respondent based upon a prior citation issued respondent for a violation of 29 CFR 1926.500(d)(1), involving two employees working at the edge of a floor (roof) above the fourth floor level where there were unguarded opensided floors with a drop of approximately 48 feet to ground level.

The citation was identified as Exhibit C-2, in which the proposed penalty had been paid.

Regarding the current citation, Kinney testified that taking into consideration the size, history and good faith of respondent he arrived at a proposed penalty of $1,620.

Kinney also testified as to his other-than-serious citation 2, based upon a stepladder which did not extend above the sixth floor level 36 inches, it being his observation that the stepladder was the only access to the sixth floor, and that there was evidence of forming work being performed on the sixth floor, although he did not observe any of respondent's employees utilizing the ladder.

It was Kinney's observation that because the sixth floor level had columns extending out of it with no roofing material and had stairwells extending up to the level that it was a floor and not a roof, along with the assertion of respondent's representative that the total construction was going to consist of 11 stories.

From Kinney's questioning of the foreman and the three employees about personal protective equipment consisting of safety belts, he was advised that their use was impractical.

While Kinney did not see any of respondent's employees working near the perimeter during the inspection, he was of the opinion that the employees had access to the perimeter of level five.  He was advised by respondent's foreman at the opening conference that there were employees of respondent working both fifth and sixth levels.  Kinney's personal observation was that there were shores and forming work on level six and evidence of respondent's employees wrecking out level five on the northeast corner.  It was Kinney's opinion that if it were impossible to erect guardrails, due to the respondent's allegation that there was nothing to attach guardrails to, that other alternative means could be used to protect respondent's employees, such as lanyards, outriggers with nets, catch platforms, or the use of a cable strung around the perimeter between the angled outermost vertical shores and the concrete or steel columns along the perimeter.

Generally, on respondent's work project, materials used in the forming operation are stacked on a platform extending out from the edge of the building (Exhibit C-5).  When respondent's employees check for shoring that might be slipping or forming that might be sagging, employees must work near the edge of the platform.

Respondent's president acknowledged that respondent's work is the most dangerous job on the construction project, and respondent has a twice a year review of its safety program with its foremen as to how things are performed, new regulations and individual conversations with the various foremen, who in turn have regular toolbox meetings on the jobsite, and hold discussions on safety.

In addition, respondent has a policy of not putting its new men on perimeter shores, but allowing them to gain experience working with older men, with the additional policy of having the foreman work up from the ranks with at least five years experience. Respondent estimates that 90 percent of its employees are regular employees.  Respondent maintains that it has had no deaths from falling from unguarded perimeters since 1958, nor any major injuries.

Respondent does not compute the guardrails in its bids on contracts, stating that it was industry practice that the general contractor provided guardrails.  In addition, respondent's president acknowledged it did not wish to erect guardrails because there were so many required throughout the whole depth of a job.

Respondent's president denied that erecting netting, as suggested by compliance officer Kinney, was possible, although he gave no reasons therefor.

Respondent employs a fulltime safety officer, who is a professionally registered engineer in Missouri, who inspects the jobs for conforming with regulations and setting up respondent's safety program, previously described, along with sending its employees to construction industry safety programs and its foreman to OSHA schools put on by the builder's association.  Respondent also maintains safety belts for use of its employees where practical.

Respondent's president Dunn testified with respect to the outer perimeter of vertical shores, which are installed on an angle, noting that at a height of approximately 3 1/2 feet from floor level there is a space of approximately 3 1/2 inches between the column and the shore.

It was Dunn's testimony that respondent could not string cable through the space, for the reason that it would prevent work activity and its employees would have to work outside of the cable.

Dunn reiterated that respondent could not put up a guardrail, even on the walkway that is erected following the completion of the shoring, as it would be the responsibility of the general contractor who would put the edge form around the building, and along with various other subcontractor work, such as the steel erectors placing reinforcing steel, mechanical people setting ducts and chases for mechanical work and electrical people.

Dunn denied ever having seen any outrigger nets, and would not know how they could be connected to permanent parts of the structure.

Dunn was of the opinion that the installation of a cable around the perimeter would make the job of erecting vertical shoring more hazardous to his employees.

Dunn was referenced to a fatality that happened after the current citation in Hutchinson, Kansas, where a man was killed falling from the perimeter of a job on which respondent was doing the forming.

After the OSHA investigation, guardrails were installed around the perimeter, but Dunn was not personally knowledgeable about the guardrails, although he subsequently testified that at the jobsite where the fatality occurred, in the interest of completing the job, respondent put the guardrails on the roof, which was the final floor.

By posthearing deposition, Don Marvin, a graduate civil engineer, testified on behalf of respondent.

With reference to the cited jobsite, namely the Colony Plaza apartment project, Marvin identified DeCarlo as the general contractor, with the arrangements at the time of the contract being that DeCarlo was required to construct the edge forms or spandrel beams and not the respondent.

The installation of handrails and guardrails were to be the general contractor's responsibility, as it was Marvin's opinion that they would only protect DeCarlo's carpenters, laborers, cement finishers, electricians, plumbers and rebar installers.

Marvin was also of the opinion that when the perimeter shores where kicked out they would destroy or knock out any guardrails that would have been erected.

Marvin characterized the Excelsior Springs job as a typical forming job done by respondent.  He verified that respondent had no cost for handrails or guardrails considered in its bid to DeCarlo.

It was his opinion that based on his work on 20 high-rise projects, it was not possible to erect handrails or guardrails around the perimeter, although he felt it was possible to string cable between the outer shores, but that the workmen would have to work outside of the cable, with respect to the perimeter vertical shores.

To his personal knowledge, he was not aware if DeCarlo ever did in fact erect guardrails on levels five and six of the Colony Plaza project.

He further supported respondent's position that respondent could not construct guardrails or handrails until the plywood forming was concluded, in that there was nothing to attach the guardrails to, and further that once the plywood was down the Dun-Par employees would be finished and would move on vacating the premises for the other trades.

Posthearing testimony of Rubin Sendejas, a carpenter who has been employed by respondent on different occasions, developed that Sendejas had been employed as a carpenter on the Excelsior Springs project at the time of the inspection, giving rise to the citation.

It was his recollection that he worked on both the fifth and sixth levels of the building under construction, and testified that whenever his duties required he had to work on the edge of the building.

There are times he would not work on the edge of the building, and at other times he might work on the edge of the building for maybe a half-an-hour or 15 minutes.

Sendejas explained that on every job for every company he had worked for his duties would require him to work near the edge of the perimeter in putting up the next level.  On the Excelsior Springs job, it was Sendejas' testimony that there were cables at times around the perimeter of the job, and on the day of the inspection the cables were probably laying on the ground.

Sendejas was interviewed by the compliance officer, who prepared a statement for him to sign, which was identified as Exhibit C-9.
On the day of the inspection, he wasn't given any particular instructions; however, when he started for respondent he was shown the type of work he was to do and how to do it, the instructions being given to him by his foreman.

Sendejas described his interview by the compliance officer as taking place on October 3, 1979, at which time questions were on a sheet which were asked of him and thereafter signed by Sendejas.

Sendejas was somewhat ambivalent about his statement on the one hand, stating that it was not completely and totally accurate, and on the other hand stating, "I wrote down the answers, I read them, and it was pretty much what I said so I signed the paper."

Following Sendejas' interview by compliance officer, he was then required to answer questions by his boss and superintendent.

Sendejas described the respondent's forming work as essentially the same as done by other companies that he has worked for. During his time of employment by respondent he never knew of anyone getting hurt.

It is respondent's practice to take a new and untrained or inexperienced employee and have him work with more experienced employees or an older person or journeyman to be trained.

Sendejas has never been denied use of a safety belt by respondent; however, Sendejas expressed the opinion that safety belts were too cumbersome for the type of work he does as a carpenter.  He noted that he carries approximately 25 pounds of tools, bags and nails, which along with the safety belt and having to climb up and down ladders results in the safety belt getting in the way, along with creating a tripping problem.

Sendejas described the vertical shores at the perimeter of the floor as "leaners", which are erected at an angle in order to afford an area for people on the upper level to walk upon to put the edge forms on that level.

It was Sendejas' opinion that it is not possible to work on the perimeter erecting shoring and to have a guardrail.  Further, that a cable is in the way of leaning something out past the edge or perimeter of the level.

Sendejas also ventured the opinion that until platforming is laid on the floor and before the concrete is poured there is nothing to attach a guardrail to, and that once the platform is laid the job is finished and the guardrail would be of no benefit to respondent's employee.

DISCUSSION
The instant case involving respondent strongly parallels in many respects the decision issued by the Review Commission approximately a month and a day preceding this hearing; Secretary v. Dun-Par Engineered Form Company, Docket 16062, February 21, 1980, CCH OSHD 21,069 (on appeal, May 1980, 10th Circuit, Court of Appeals, Docket 80-1401).

This matter will be treated in order of the defenses advanced by respondent in its brief.

Respondent alleges that it did not violate the standard published at 29 CFR 1926.500(d)(1), on the basis that there were no employees on the sixth floor.

Respondent relies heavily upon the compliance officer's lack of observation of employees performing work at the sixth floor level of the construction site.

The defense cannot stand on the basis of the record evidence; namely, evidence of work having been performed on the sixth floor level, admissions by respondent's foreman Parkin to the compliance officers that employees were working on the fifth and sixth levels and deposition testimony of respondent's employee Sendejas that he had worked not only the fifth and sixth floor levels, but he also worked at the perimeter.

The fact that there was no perimeter guarding is apparent by demonstrative evidence introduced by the compliance officer consisting of photographs, along with his personal observation of no perimeter guarding, and in particular, the testimony of respondent's managing officer that guardrails were not bid in his dealings with the general contractor, nor were they contemplated, and further that respondent did not wish to erect guardrails on this particular project.

Respondent relies heavily upon an argument of impossibility of compliance, drifting back and forth between work which has to be done within the perimeter and work which has to be done without the perimeter in the establishment of leaners to support a walking surface at the next level being erected.  In sequential fashion, respondent alleges it could not establish guardrails at the various levels until such time as plywood work was completed for the pouring of concrete, at which time guardrails would be of no benefit to its employees, that outriggers or nets could not be used without giving the reason therefor, and that cable was used at times with the necessity of employees to work outside of the cable.  No argument was raised as to the compliance officer's suggestion that it would be possible to establish catch platforms to afford the necessary protection.

From a viewing of the testimony and the actual demonstrative evidence, it must be concluded that little credibility can be accorded to this entire defense of impracticability of attachment of a guardrail.  Photographic evidence clearly demonstrates the existence of a sturdy outrigger, which according to the testimony and evidence of record is used to support the heavy weight of 16 by 4 by 4 shores, both in the establishment of forms and in the wrecking out of forms to a structural member of the building to serve as access to the work area.

It is concluded by this Writer that the construction industry is not so primitive a trade as to be able to erect a substantial outrigger appendage to a structural member of a floor being worked, and at the same time cannot erect a guardrail to the same building member.

Clearly the erection and maintenance of this outrigger for work activity within the perimeter is supportive of the compliance officer's testimony that outriggers could be established with netting or catch platform with guardrails to afford the exposed employees the protection in lieu of a guardrail.

The exposure of employees was clearly demonstrated by the testimony of Sendejas of the necessity of working the perimeter to set up the leaners and further testimony that it was necessary to be at the perimeter to check for sagging during the concrete pour.

The hazard was a serious one, in that a fall from the perimeter would be from a distance of 38 feet, 3 inches, from the fifth floor and 46 feet from the ninth floor, and would certainly result in multiple fractures or death.  Respondent's contention of impossibility of compliance is therefore rejected.

Respondent's third line of defense is the subcontractor defense, claiming that respondent is a noncreating noncontrolling subcontractor on a multi-employer jobsite who expended reasonable efforts and took realistic measures to protect its employees from a condition for which the general contractor was responsible.  Citing Secretary v. Anning-Johnson Co., Docket 3694/4409, 76 OSHRC 54/A2; BNA 4 OSHC 1193; CCH OSHD 20,690, and Secretary v. Grossman Steel & Aluminum Corporation, Docket 12775, 76 OSHRC 54/D9; BNA 4 OSHC 1185; CCH OSHD 20,691.

Having rejected respondent's contention of impossibility of performance, it is clearly demonstrated by the evidence of record that during the installation and stripping out of the shores that respondent's employees were exposed to and had access to the perimeter of the open-sided floors and the hazard of falling from 38 to 46 feet.  So too, as was found in the price case, respondent had the sole responsibility for constructing the form work, and its employees were exposed to the hazard.  Respondent, through its on-site foreman and its managing officer's policy, was aware there was no perimeter protection on the fifth and sixth floor levels.   Nor, did respondent demonstrate, other than its over-all safety program, which is meritorious, that it made any reasonable efforts to abate the violation.

It must be noted that respondent, through its previous citation introduced into the record and commentary in the decision of Secretary v. Dun-Par Engineered Form Company, supra., that it was the subject of perimeter guarding charges on prior occasions and evidenced through its testimony and knowledge of the requirements of perimeter guarding.

Therefore, the Anning-Johnson/Grossman, supra., defense is rejected.
Respondent's argument against the amendment of the citation by the alternative allegation of serious violation of 29 CFR 1926.28(a) is also rejected.

The pleading of the alternative violation of this particular standard is no more than buttressing another modality of protection for employees exposed to perimeter work, as described by the compliance officer.

The evidence is clear and unequivocal that the respondent's employees do not spend all of their time climbing ladders and performing duties within the framework of the forming.  In fact, it is quite specific that a lesser amount of time is performed on the perimeter work.  For those lesser periods of time that employees would be performing perimeter work the utilization of a safety belt would afford the necessary fall protection from either 38 feet or 46 feet.

With respect to respondent's argument as to the issue of "feasibility" and its extensive case citation, the Review Commission has clearly stated the complainant's requirements under an allegation of 29 CFR 1926.28(a); Secretary v. S & H Riggers & Erectors, Inc., Docket 15855, 79 OSHRC 23/A2; BNA 7 OSHC 1260; CCH OSHD 21,261, 23,480:

"Nonetheless, the standard in this case is written in broad terms.  Therefore, it is appropriate to place upon the Secretary the burden of establishing employee exposure to a hazardous condition requiring the use of personal protective equipment and identifying the appropriate form of personal protective equipment to eliminate the hazard.  To the extent that prior Commission decisions have broadened that burden and require the Secretary to also affirmatively establish the feasibility and likely utility of the recommended form of personal protective equipment, they are overruled."

Respondent's argument as to its nonviolation of 29 CFR 1926.450(a)(9), and its reasons given therefor, were also rejected.

The exceptions that respondent takes to complainant's pleading of the utilization of a stepladder for access from level five to level six referenced an entirely different portion of subpart (1) of 29 CFR 1926.450, wherein the alleged violative standard is contained in the general requirements, which include both metal and wooden ladders, and the distinction made by respondent is inapplicable.

The evidence as previously stated of the testimony of carpenter Sendejas and the foreman's admissions of work being performed on levels five and six, and with the stepladder being the only modality of access to the sixth level, a violation has been established in that the ladder did not extend 36 inches above the sixth level landing.

NATURE OF THE VIOLATION
Complainant alleges respondent in the repeated violation of 29 CFR 1926.500(d)(1), and in support of its charges relies upon the citation of July 21, 1975, which refers to, "Two employees working at the edge of the floor (roof) above the fourth floor level...", with some dichotomy taking place at the hearing regarding the sixth floor level of respondent's project in Excelsior Springs.  It is determined that under no form of semantical conjugation can respondent's work at the Excelsior Springs job constitute work on a roof level.  The uncontroverted evidence was that there were supporting columns at the level, stairwells and that the level was a level in progress of construction, as opposed to a completing level; this, in addition to the uncontroverted evidence that the project was to be an 11 or 12-story project in accordance with its plans and specifications.

Therefore, in order to establish a repeat violation, it is necessary for the complainant to show that at the time of the alleged repeat violation there is a Commission final order against the employer for a substantially similar violation.

While much detailed testimony was given as to the construction problems attendant to the erection of the fifth and sixth floor levels, no such testimony was adduced as to what, if anything, would be similar to the construction of the roof level, and it is not for the Judge to conjure and speculate as to what the required evidence might be.  It is felt that there was a complete lack of proof of establishment of the necessary element of a substantially similar violation, particularly with the long history of the various postures as to what constitutes a roof, and based upon such uncertainty this Writer would be reluctant to find a repeat violation on the evidence of this record.

PENALTY
Taking into account the statutory consideration for penalty, it is noted that respondent is of moderate size, has an excellent history, and has an on-going safety program involving both its supervisory and hourly workers, and maintains an experienced work force of carpenters.  However mitigating these circumstances are, it is also clearly demonstrated that respondent has a stated reluctance to establish guardrails and a stated history of exposing its employees to unguarded perimeters.  Therefore, it is felt that respondent's posture regarding guardrails for its employees erecting or stripping out shores overcomes any consideration of mitigation and that the proposed penalty of $1,620 should be affirmed.

FINDINGS OF FACT
Based upon the preponderance of the credible evidence, the following findings of fact are made:

1.  Respondent, Dun-Par Engineered Form Company, is a corporation with a principal office and place of business at 9808 East 87th Street, Raytown, Missouri; and, at all times mentioned was engaged in concrete form contracting.
2.  Respondent employed approximately eight employees at its construction site at Excelsior Springs, Missouri, as alleged by the complainant's complaint and admitted by respondent's answer.
3.  As the result of an inspection by an authorized representative of the complainant, respondent was issued a citation for repeated violation, together with a notification of proposed penalty and a citation for other-than-serious violation pursuant to section 9(a) of the Act.
4.  The citations and proposed penalty were received by respondent on May 11, 1979.   On May 16, 1979, the Area Director received from respondent a notice to contest the citation and proposed penalty pursuant to section 10(c) of the Act.  This notice was duly transmitted to the Occupational Safety and Health Review Commission.  The complainant alleged in his complaint that the citation alleging a violation of 29 CFR 1926.450(a)(9) had become a final order of the Commission since the notice of contest did not address that violation.  The respondent's answer denied the allegation, and the complainant moved to amend the complaint to include the violation of 29 CFR 1926.450(a)(9) at the hearing over respondent's objection, which was overruled.
5.  Evidence was received establishing the violation of 29 CFR 1926.450(a)(9).
6.  Respondent was issued a prior citation alleging a serious violation of 29 CFR 1926.500(d)(1) on July 21, 1975, with reference to work being performed at the edge of a roof with lack of guarding.
7.  Respondent did not contest the citation and notification of proposed penalty, and it became a final order of the Commission by operation of law.
8.  On the day of the current inspection, compliance officer Kinney observed respondent's employees working on the fifth floor of the building under construction.
9.  Compliance officer Kinney was advised by respondent's foreman that work had been performed on both the fifth and sixth floor levels of said building; that during the course of their work in placing shoring for concrete employees of respondent were required to perform some of their work near the edge of the fifth and sixth floor perimeters.
10.  The distance to the ground from the fifth floor level was approximately 38 feet, 3 inches, and from the sixth floor 46 feet, 9 inches.
11.  There was nothing between the fifth and sixth floors to prevent respondent's employees from falling to the ground level, except for an outrigger platform extending from the fifth floor level.
12.  In respondent's operations materials used on the forming work are stacked near the edge of the work platform or on an outrigger platform attached to a structural member of the building.
13.  Employees are required to work near the perimeter of the floor level in order to check for slipping or sagging forms.
14.  Guardrails, cables, catch platforms, outriggers and nets, and safety belts are feasible methods of protecting unguarded perimeters of floors in the shoring operations.
15.  Respondent's supervisory personnel was on the jobsite at the time of the inspection and was aware of the lack of perimeter guarding.
16.  Respondent's supervisory personnel was also aware that respondent's employees were working on the fifth and sixth floors without perimeter guards or other personal protective equipment.
17.  A fall from either perimeter at a height of 38 feet, 3 inches, or 46 feet, 9 inches, exposed respondent's employees to the hazard of serious injury or death.
18.  On the day of the inspection there was a wooden stepladder between the fifth and sixth floor levels, which was the only means of access from the fifth to the sixth floor level.
19.  The stepladder did not extend 3 feet above the adjoining level, and exposed respondent's employees to an approximate 8-foot fall, which did not constitute a serious hazard.

CONCLUSIONS OF LAW
1.  Respondent is an employer within the meaning of the Act.
2.  Jurisdiction over the parties and the subject matter herein is conferred upon the Occupational Safety and Health Review Commission by section 10(c) of the Act, and the citations were issued in accordance with section 9(a) of the Act.
3.  Respondent violated section 5(a)(2) of the Act by failing to comply with the Occupational Safety and Health Act of 1970, as alleged in the citations and complaint, being in violation of 29 CFR 1926.500(d)(1), violation of 29 CFR 1926.450(a)(9), and alternatively the violation of 29 CFR 1926.28(a).
4.  With respect to respondent's violation of 29 CFR 1926.500(d)(1), it is found that it is a serious violation and not a repeat violation for failure of proof.

ORDER
Based upon the above findings of fact and conclusions of law, it is hereby ORDERED that citation 1 is affirmed for serious violation of 29 CFR 1926.500(d)(1) and serious violation of 29 CFR 1926.28(a), and citation 2, other-than-serious violation of 29 CFR 1926.450(a)(9).

A total penalty of $1,620 is assessed for the serious violations.  No penalty is assessed for the other-than-serious violation of 29 CFR 1926.450(a)(9).

DATE:  November 19, 1980
Paul E. Dixon, Judge, OSHRC

FOOTNOTES:

[[1/]] That standard provides:

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, as specified in paragraph (f)(1)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder.  The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.

[[2/]] Because the court's ruling on this issue is the "law of the case," I express no views on the matters discussed in Chairman Buckley's separate opinion.  See, e.g., In re Progressive Farmers Ass'n, 829 F.2d 651, 655 (8th Cir. 1987), cert. denied sub nom. South Central Enterprises, Inc. v. Farrington, 108 S.Ct. 1574 (1988) ("law of the case" doctrine).

[[3/]] The Commission also concludes that Dun-Par has proven that safety belts were not a feasible or available alternative to guardrails.   In the Commission's prior decision, the Commission said:

After weighing the testimony presented at the hearing and considering the practical realities of the workplace, we find that the Secretary failed to establish that safety belts were feasible.  The Secretary presented no evidence concerning how the safety belts would actually be used at the workplace beyond the compliance officer's bare claim that safety belts were feasible.   On the other hand, Dun-Par presented specific testimony which established that safety belts were infeasible.  Mr. Dunn, who had much more experience with concrete formwork than the compliance officer, explained the need for Dun-Par workers to move freely about the work area, often moving up and down ladders.

12 BNA OSHC at 1960, 1986-87 CCH OSHD at p. 36,028.  Dunn testified that, as a result of this need for mobility, the form crews could not have stripped the forms while tied off with safety belts.  Also, a carpenter on Dun-Par's form crews on this project, Sendejas, testified that safety belts tied off by lines to secure points would have been cumbersome and would have interfered with the normal work.  He testified that they would have created tripping hazards for the wearer and other employees working in the area.

The evidence on safety belts has been re-evaluated in light of the court's burden of proof.  Dun-Par rebutted the suggestion that safety belts were feasible with specific and credible evidence that proved their infeasibility.  The essential evidence is that quoted above from the Commission's previous decision.  Secretary failed to prove a violation of 1926.28(a) under the court's criteria.  (The Secretary alleged the 1926.28(a) violation in the alternative, based on the failure to use safety belts.)

Perimeter cables would have been subject to many of the same feasibility constraints as complete guardrails.  However, there was some evidence that these problems could have been overcome.  In light of the Commission's conclusion that Dun-Par's defense fails on other grounds, it is unnecessary to decide whether safety cables would have been feasible.

[[4/]] It is unnecessary to consider whether this violation should be classified as repeated within the meaning of the Act.  OSHA originally classified this violation as repeated, and thus subject to enhanced penalties under 29 U.S.C. 666(a).  However, the judge rejected that classification and affirmed only the allegation that the violation was serious.  The proper classification of the violation was not included as an issue in the direction for review, and the Secretary does not ask for a repeated classification on review.

[[1]] The standard provides:

1926.500 Guardrails, handrails and covers.
* * *
(d) Guarding of open-sided floors, platforms, and runways.
(1) Every opensided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(1)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder.  The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.

[[2]] The standard provides:

1926.28 Personal protective equipment.
(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions and where this part indicates the need for using such equipment to reduce the hazards to the employees.

See L.E. Myers Co., 86 OSAHRC, 12 BNA OSHC 1609, 1986 CCH OSHD 27,476 (No. 82-1137, 1986), pet. for review filed, No. 86-3215 (6th Cir. March 14, 1986).

[[3]] A subsidiary question in this case is whether the Commission has jurisdiction to address the merits of the citation items.  After Judge Dixon's decision, Dun-Par petitioned for review on several issues.  However, former Commissioner Barnako directed review on the sole question of the penalty.  The Commission found the penalty assessment was in error and remanded the case to Judge Dixon.  Dun-Par Engineered Form Co., 84 OSAHRC, 11 BNA OSHC 1912, 1984 CCH OSHD 26,883 (No. 79-2553, 1984). On remand, the judge lowered the penalty.  Dun-Par again petitioned for review of several issues, not directed for review by former Commissioner Barnako, including the feasibility of guardrails and safety belts.  The Secretary argues that the Commission cannot review the merits of this citation because the citation items became final orders of the Commission in 1980, when Dun-Par petitioned for review of several issues, and only the question of the penalty was directed for review.

As the Commission noted in Hamilton Die Cast, Inc., 86 OSAHRC, 12 BNA OSHC 1797, 1986 CCH OSHD 27,576 (No. 83-308, 1986), when the Commission directs any portion of a case for review, the entire judge's report is before the Commission, unless a citation item is specifically severed and made a final order under Rule 54(b) of the Federal Rules of Civil Procedure. Therefore, when former Commissioner Barnako directed only the question of the penalty for review, the item alleging that Dun-Par violated sections 1926.500(d)(1) and 1926.28(a) did not become the final order of the Commission.  The issues of the feasibility of guardrails and safety belts could have been addressed in the Commission's previous decision and are now properly before the Commission on Dun-par's second petition for review.

[[4]] Donovan v. Williams Enterprises, 744 F.2d 170, 178 (D.C. Cir. 1984); Faultless Division, Bliss & Laughlin Industries Inc. v. Secretary of Labor, 674 F.2d 1177, 1189-90 (7th Cir. 1982); Southern Colorado Prestress Co. v. OSHRC, 586 F.2d 1342, 1351 (10th Cir. 1978); A.E. Burgess Leather Co. v. OSHRC, 576 F.2d 948, 951-2 (1st Cir. 1978).  See also United Steelworkers v. Marshall, 647 F.2d 1189, 1270, 1273 (D.C. Cir. 1980); Diebold, Inc. v. Marshall, 585 F.2d 1327, 1333 (6th Cir. 1978); Ace Sheeting & Repair Co. v. OSHRC, 555 F.2d 439, 440-1 (5th Cir. 1977).

Indeed, it has been noted that, "[t]o impose on an employer the burden of proving impossibility is to impose a burden that is unachievable," American Luggage Works, 10 BNA OSHC at 1686, 1982 CCH OSHD at p. 32,798 (Rowland, Chairman, dissenting).

[[5]] M. Rothstein, Occupational Safety and Health Law 125 (2d ed. 1983),

[[6]] S. Rep. No. 91-1282, 91st Cong., 2d Sess. 6 (1970), reprinted in Committee on Labor & Public Welfare, Legislative History of the Occupational Safety and Health Act of 1970, 146 (Comm. Print. 1971) ("However, as a recent Department of Labor study has shown, a large proportion of the voluntary standards are seriously out-of-date.")

[[7]] Remarks of D. Peyton, quoted in C. Musacchio, "The Power Press Flap:  Will it Reshape Standards Setting?,"   35 Occupational Hazards 107, 108 (Oct. 1973).  See generally R. Hamilton, "The Role of Nongovernmental Standards in the Development of Mandatory Federal Standards Affecting Safety or Health," 56 Texas L. Rev. 1329, 1346 n. 40, 1350 & n. 52, 1449 (1978) (hereinafter cited as "Hamilton").  See also M. Rothstein, "OSHA After Ten Years:  A Review and Some Proposed Reforms," 34 Vanderbilt L. Rev. 71, 73-74 (1981) ("Most of the difficulties with national consensus standards can be traced to the fact that they were privately adopted, optional measures.  Many ... were poorly drafted, [or] extremely general .... Other[s]. . were advisory, directory, or precatory and were never intended to be given binding effect.").

[[8]] R. Morey, "Mandatory Occupational Safety and Health Standards--Some Legal Problems," 38 Law & Contemp. Probs. 584, 588 (1974) (footnote omitted).  See also Hamilton at 1393 (erratic coverage of private standards because they "were often not written to be mandatory....").

[[9]] E.g., A. Reis, "Three Years of OSHA:  The View from Within," 98 Monthly Labor Rev. 35-36 (1975) ("The consensus standards were not written to have the force of law.... The problem faced by OSHA was to revise these standards in a manner that made them suitable for enforcement...."); R. Moran, "Occupational Safety and Health Standards as Federal Law:  The Hazards of Haste," 15 Wm. & Mary L. Rev. 777, 786 (1974) ("the voluntary nature of ANSI standards often resulted in their idealization."); and F. Barnako, "Enforcing Job Safety:  A Managerial View," 98 Monthly Labor Rev. 36, 37 (1975):

... [T]he [ANSI and NFPA] standards were drafted as recommendations for optimal workplace safety and health without any idea that they would or should become law.  And they were not drafted by industry consensus but frequently by representatives of selected industries for those industries. ... All of industry was not represented on all committees, nor did other industries object to the standards as published because such standards were of no concern to them.

[[10]] According to the then managing director of ANSI, "some 180 American National Standards were adopted in Walsh-Healey Public Contract Act Regulations issued by the Secretary of Labor in May 1969."  Occupational Safety and Health Act, 1970: Hearings on S.2193 and S.2788 Before the Subcomm. on Labor of the Senate Comm. on Labor and Public Welfare, 91st Cong., 1st & 2d Sess. 461 (1969-70) (statement of D. Peyton); see also id. at 150-52 (Department of Labor "adopted eight or nine [ANSI health] standards, under their Walsh-Healey Act," and the bulk of the Walsh-Healey health standards were from a non-consensus organization, the American Conference of Governmental Industrial Hygienists) (statement by M. Key, director of Bureau of Occupational Safety and Health, Department of Health, Education and Welfare).  See also Bureau of Labor Standards, Dept. of Labor, Status of Safety Standards, 4-5 (1968) (Department proposed adoption of consensus standards in 1968 under Walsh-Healey Act; adopted them in 1967 under Service Contract Act).  The Construction Safety Act standards that appear in the 1972 edition of the Code of Federal Regulations incorporated 33 ANSI and NFPA standards by reference, while other standards, including entire subparts, were lifted with only some change from ANSI standards.  For example, the standard cited in this case, section 1926.500(d)(1)--originally codified as section 1518.500(d)(1), see 36 Fed. Reg. 25232 (Dec. 30, 1971)--was derived with only minor changes from ANSI A.12.1--1967, Safety Requirements for Floor and Wall Openings, Railings, and Toeboards 5.1, p. 9. This and other derivations have been noted by the courts of appeals and the Commission.  See Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 650 & n. 12 (5th Cir. 1976) (nothing derivation of section 1926.500(d)(1)); L.R. Willson & Sons v. OSHRC, 698 F.2d 507, 515 (D.C. Cir. 1983) (derivation of section 1926.450(a)(5) from ANSI A14.13--1956).

[[11]] Indeed, the standard cited and applied in this case has often given rise to the protest by cited employers that necessary work cannot be done with the guardrails in place.  E.g., Robert W. Setterlin & Sons, Co., 76 OSAHRC 53/D8, 4 BNA OSHC 1214, 1217, 1975-76 CCH OSHD 20,682, p. 24,774 (No. 7377, 1976); Universal Sheet Metal Corp., 2 BNA OSHC at 1062, 1973-74 CCH OSHD at pp. 22,340-41.

[[12]] The Eighth Circuit's full discussion of the inflexible application of impossibility standard is as follows:

While we are mindful of the broad scope and remedial purposes of the Occupational Safety and Health Review Act, we are of the opinion that some modicum of reasonableness and common sense is implied.  There is a point at which impracticality of the requirement voids its effectiveness and that point has been reached when to erect an entire wall, a project said to take approximately two hours, petitioner must begin an endless spiral of tasks consisting of abatement activities which necessitate further protective devices, i.e., guardrail to erect wall, scaffold to erect guardrail, safety devices to erect scaffold, etc.  We agree with the dissent that some demarcation line must be drawn between that which is genuinely aimed at the promotion of safety and health and that which, while directed at such aims, is so imprudent as to be unreasonable.

[[13]] 29 C.F.R. 1910.20(e)(iii)(b) (access to employee exposure and medical records); 1910.134(a)(1) (respiratory protection); 1910.268(m)(11)(vi)(A) (telecommunications); 1910.1001(d)(1)(ii) (asbestos); 1910.1017(f)(1) (vinyl chloride); 1910.1018(g)(1)(i) (inorganic arsenic); 1910.1025(e)(1)(i) (lead); 1910.1029(f)(1)(i) (coke oven emissions); 1910.1043(e)(1) (cotton dust); 1910.1044(g)(1) (1, 2 dibromo-3-chloropropane); 1910.1045(g)(1)(i) (acrylonitrile); and 1910.1047(f)(1)(i) (ethylene oxide).

[[14]] See also note 4 supra.  In exploring the basis for the infeasibility defense and its predecessor, the impossibility defense, we have considered whether the availability of procedures for seeking permanent and temporary variances from the Secretary under sections 6(d) and 6(b)(6)(A) of the Act, 29 U.S.C. 655(d) and (b)(6)(A), should lead the Commission to hold that no defense is available at all.   Like our predecessors, we conclude that availability of a variance procedure is of no consequence.  It bears emphasis that infeasibility or even difficulty of compliance is irrelevant in a permanent variance proceeding.  According to section 6(d), the sole criterion is whether the means used by the employer "will provide employment ... as safe and healthful as those which would prevail if he complied with the standard."  The unstated premise of the permanent variance procedure is that the standard was intended to apply and operate literally and that some means of providing a safe and healthful workplace do exist.  The entire point of the infeasibility defense is, however, that sometimes this premise does not obtain--that the standard was not intended to literally apply or that means of compliance do not exist.  As we have said, however, the nature of the standards and the structure of the Act require that some means be available for addressing those concerns.  Finally, the temporary variance is not available once the effective date of the standard has passed.  See section 6(b)(6)(A)(i).  As the D.C. Circuit stated when it recognized the infeasibility defense for a section 6(b) standard, "[t]hese variances are therefore useless to the employer who claims that he can find no practical way of meeting the health and safety demands of an OSHA standard.... " United Steel-workers v. Marshall, 647 F.2d 1189, 1268 (D.C. Cir. 1980).

[[15]] Courts have allowed administrative agencies considerable discretion in placing burdens of persuasion.  See N.L.R.B. v. Transportation Management Corp., 462 U.S. 393 (1983); Zurn Industries v. N.L.R.B., 680 F.2d 683 (9th Cir. 1982) cert. denied, 459 U.S. 1198 (1983); N.L.R.B. v. Fixtures Manufacturing Corp., 669 F.2d 547 (8th Cir. 1982).

[[16]] Cf. National Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1266 (D.C. Cir. 1973).

[[17]] While the Fifth Circuit has expressed concern in this area, it has upheld general standards against challenges that they were unconstitutionally vague for failure to provide employees with reasonable notice of what is required.  See Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974), upholding 29 C.F.R. 1910.132(a), and B & B Insulation, Inc. v. OSHRC, 583 F.2d 1364 (5th Cir. 1978), upholding 29 C.F.R. 1926.28(a) ("We conclude ... that its requirements are not unforeseeable if the standard is read to require only those protective measures which the knowledge and experience of the employer's industry, which the employer is presumed to share, would clearly deem appropriate under the circumstances.")

[[18]] Several circuits of the Courts of Appeals have held that in order to satisfy due process the Secretary must prove that there is a feasible method of complying with the standard, if the standard does not specify a means of compliance.  See L.R. Willson & Sons, Inc. v. OSHRC, 698 F.2d 507 (D.C. Cir. 1983); Modern Drop Forge Co. v. Secretary of Labor, 683 F.2d 1105 (7th Cir. 1982); Voegele Co. v. OSHRC, 625 F.2d 1075 (3d Cir. 1980); Ray Evers Welding v. OSHRC, 625 F.2d 726 (6th Cir. 1980); Bristol Steel & Iron Works, Inc. v. OSHRC, 601 F.2d 717 (4th Cir. 1979); General Electric Co. v. OSHRC, 540 F.2d 67 (2d Cir. 1976).

[[19]] See generally M. Rothstein, Occupational Safety and Health Law 145 (2d ed. 1983).

The most distinctive and significant element of 5(a)(1) violations is that they are limited to "recognized hazards."   The "recognition" requirement serves to ensure that cited employers at least have constructive knowledge of the existence of specific hazardous conditions.  In this way, Congress sought to eliminate the unfairness of assessing first-instance civil penalties based on such a sweeping and broadly worded provision.

[[1/]] Section 17(b) states the following:

(b) Any employer who has received a citation for a serious violation of section 5 of the Act . . . shall be assessed a civil penalty of up to $1,000 for each such violation.

[[1]] 29 C.F.R. 1926.500(d)(1) requires, in pertinent part, that "[e]very open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing . . . on all open sides . . . ." Section 1926.28(a) requires that employees wear "appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part [Part 1926] indicates the need for using such equipment to reduce the hazards to the employees."

[[2]] 29 U.S.C. 659(c) provides that "[i]f an employer notifies the Secretary that he intends to contest a citation . . . or [penalty] notification . . . the Commission shall afford an opportunity for a hearing . . . . "