SECRETARY OF LABOR,
Complainant,

v.

AUSTIN BRIDGE COMPANY,
Respondent.

OSHRC Docket No. 81-1049


DECISION

Before:  BUCKLEY, Chairman, and CLEARY, Commissioner.
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).

The issue on review is whether Austin Bridge Company violated the guardrail specifications standard at 29 C.F.R. § 1926.500(f)(1)(vi)(b).[[1]] Administrative Law Judge E. Carter Botkin affirmed the alleged violation, characterized it as serious, and assessed a penalty of $50. For the reasons stated below, we reverse the judge's decision and vacate the citation item.

The citation resulted from an inspection of a construction site in San Antonio, Texas. Austin Bridge was engaged in building an exit ramp [also referred to as a bridge between an elevated interstate highway and a groundlevel city street. Much of the structure's surface had been covered with rebar, and Austin Bridge had begun the process of pouring and finishing concrete. This involved the use of a "screed," a large machine that moves slowly along the prepared surface and "basically takes concrete that's been poured onto the bridge platform and finishes it out to a smooth surface for a roadway."

Along both sides of the ramp, Austin Bridge had placed steel pipe guardrail posts in 6-inch-deep "cups" at 8-foot intervals. Continuous 1/4-inch steel cables had been strung between the posts throughout the 125-foot length of the ramp. Because the screed was approximately 6 feet wider than the ramp, it was necessary for employees to remove and then replace guardrail posts as the screed progressed slowly along the length of the ramp. However, it was only necessary to do this on one side, called by the parties the "wild end" side. On the opposite side, which we will refer to as "the operator's side" because the screed operator was located on that side, the machine moved along inside the guardrail.

The citation item on review alleges that the steel cable top rails on both sides of the bridge or ramp did not meet the specification requirement of section 1926.500(f)(1)(vi)(b) because a force of less than 200 pounds applied on the top rails caused more than a "minimum of deflection" in them. The judge found, on the basis of the compliance officer's testimony, that the cables on both sides of the bridge deflected 6 to 8 inches when less than 200 pounds of pressure was applied. He further found, in rejecting Austin Bridge's arguments, that the amount of deflection was more than the minimum amount needed to allow for removal and replacement of the guardrail posts as the screed moved along the ramp. He concluded that the Secretary had sustained his charge by showing an amount of deflection that was "substantial" rather than minimal.

We disagree. In National Industrial Constructors Inc., 81 OSAHRC 94/A2, 10 BNA OSHC 1081, 1096, 1981 CCH OSHD ¶ 25,743, p. 32,137 (No. 76-4507, 1981), the Commission considered the term "minimum of deflection" as used in section 1926.500(f)(1)(iv) in the context of a metal railing. In concluding that a displacement of 3 to 4 inches exceeded the permissible deflection, the Commission stated that "movement from 3 to 4 inches of a metal railing, as opposed to a cable is not a minimal deflection under the standard in view of the ordinary meaning of minimal -- 'smallest degree, possible.'" 10 BNA OSHC at 1096, 1981 CCH OSHD at p. 32,137 (emphasis added). That conclusion clearly reflects a recognition that the term "minimum," as used in the standard, is relative rather than absolute, and depends on a number of factors, including the material of the guardrail. Under an absolute interpretation, a minimum of deflection would be zero deflection. The Secretary also recognizes that the standard permits some degree of deflection. For example, he concedes in his review brief that there are physical factors such as "the inherent limitations of commonly used materials, and fastening methods" that make it impossible for an employer to eliminate deflection in a cable. This conclusion, and the implication that the term is intended to be construed relatively, is also stated in an OSHA program directive that instructs compliance personnel not to cite violations of a similar standard where there are deflections of 3 inches or less. See OSHA Instruction STD 3-10.3, 1977 CCH ESHG Developments ¶ 10,800.

We conclude that in the context of the standard the amount of deflection permitted must be based on the totality of the facts in each case. We cannot find that greater tautness was achievable in the top rails at this site under the circumstances that existed at the time of the inspection.[[2]]

With regard to the "wild end" side of the ramp, the compliance officer testified, and the judge found, that he measured deflections ranging from 6 to 8 inches at different points along that side. However, the testimony of the project superintendent establishes that it was necessary to maintain at least 6 inches of slack in the cable due to the movement of the screed along the ramp. Specifically, Austin Bridge had to remove and replace guardrail posts that were installed in 6-inch-deep cups and therefore obviously had to lift the posts at least 6 inches. Accordingly, a deflection exceeding 6 inches was the "smallest degree possible" on these facts. Accepting the compliance officer's measurements, we cannot conclude that the deflection in the cable on the "wild end" side exceeded the ''smallest degree possible" such that a violation of the standard was shown.

With respect to the operator's side, the record evidence is uncertain. We are unable to determine what amount of deflection 200 pounds of pressure or less would cause in the top rail on this side of the ramp. Austin contends that no more than 3 to 6 inches of slack existed in the rail on the operator's side, but took no measurements. The compliance officer testified only that he "checked" the operator's side and that the "same problem" existed. He did not testify that he took measurements on that side. If any measurements were taken, they are unknown. Given the ambiguity in the compliance officer's testimony, we cannot find that more than 3 to 6 inches in fact existed. Whether this amount of deflection exceeded the "smallest degree possible" on the operator's side is problematical, but we are satisfied that the flex in the railing was not so severe that it would not serve the purpose of physically restraining an employee from falling.

We therefore conclude that a violation of 29 C.F.R. § 1926.500(f)(1)(vi)(b) has not been established. We reverse the judge's decision and vacate item 2 of citation 1.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED: JAN 22 1985