SECRETARY OF LABOR,

Complainant,

v.

CARDINAL INDUSTRIES, INC.,

Respondent.

OSHRC Docket No. 82-0427

DECISION

Before: BUCKLEY, Chairman, and AREY, Commissioner.

BY THE COMMISSION:

This case is before the Commission pursuant to an order of remand from the United States Court of Appeals for the Sixth Circuit. Brock v. Cardinal Industries, Inc., 828 F.2d 373 (6th Cir. 1987), rev'g, 12 BNA OSHC 115-85, 1984-85 CCH OSHD 27,446 (No. 82-0427, 1985). In its initial decision, the Commission vacated citations alleging that Cardinal Industries violated OSHA general industry standards published in Part 1910 of 29 CFR, finding that Cardinal's assembly line manufacture of modular housing units was construction work covered by the OSHA construction standards published in Part 1926 of 29 CFR. The Sixth Circuit determined that Cardinal's employees were not engaged in construction work and that Cardinal's workplace was governed by the general industry standards. It reversed the Commission's decision and remanded the case to the Commission for further proceedings. Accordingly, we must now address whether Cardinal violated the cited general industry standards.

At issue are three items alleging that Cardinal repeatedly violated the Act by failing to provide fall protection at two work stations on its assembly line. The administrative law judge affirmed all three items as repeated violations and assessed a penalty of $1,350. We vacate two of the items, affirm the remaining one, and assess a penalty of $450.

Item 2 (b): 1910.23(c)(1), felt rack platform
Item 3: 1910.132(a), roof of unit at felt rack platform

A.

The citations resulted from an OSHA inspection that was conducted after a fatal accident in which a Cardinal employee fell from the roof of a modular unit. Two of the citation items allege that Cardinal violated the standards by failing to provide adequate fall protection to employees working on the roofs of the units [item 3] and on an adjacent platform [item 2(b)]. Cardinal does not dispute that its operation failed to conform to the standards. It argues, however, that OSHA had previously approved the safety practices it now alleges violate the standards, and that the company therefore lacked notice of what the standards require. We agree with this argument as to item 3 and therefore vacate that item. We conclude that the argument lacks merit as to item 2(b) and that item.

The units that Cardinal produces are rectangular rooms 24 feet long by 12 feet wide. They have slanted roofs that slope from a height of 8 feet 10 inches at the lower or platform end up to 12 feet 4 inches at the peak. The units move along an assembly line. At the stations on that line the various components that make up the unit are installed. At the felt rack station, Cardinal's employees unroll 24-foot long sections of 12-foot wide felt onto the roof of the unit from a rack on the adjacent felt rack platform, trim it to size, and fasten it to the roof. The platform is nearly flush with but slightly wider than the lower end of the roof. The rack itself sits back approximately 2 , feet from the platform's edge. The sides of the platform between that rack and the edge of the unit were unguarded, exposing employees working approximately three feet from the edge of the platform to a fall of 8 feet 10 inches. The Secretary issued a citation alleging, in item 2(b), that Cardinal's failure to provide guarding on the felt rack platform was a repeated violation of 29 C.F.R. 1910.23(c)(l). [[1/]]

Compliance officer Perry also testified that, as each unit passed through the felt rack station, employees were exposed to fall hazards along the sides of that unit's roof as they unrolled the felt along its 24-foot length. The potential fall distance from the sides ranged from 8 feet 10 inches at the platform end of the roof to 12 feet 4 inches at the peak. The Secretary initially alleged, in item 3, that exposure to this fall hazard from the sides of each unit was a violation of section 1910.23(c)(1). However, in recognition of the infeasibility of installing guardrails on the roofs of each modular housing unit, the Secretary later amended the citation to allege that Cardinal violated 29 C.F.R. 1910.132(a)[[2/]] by not providing safety belts and lanyards and requiring employees to wear them. The platform and peak ends of the roof did not pose fall hazards and were not included in the citation's description of the alleged violation. At the platform, end, the felt rack itself formed a barrier; at the peak, a guardrail suspended from the ceiling had been installed.

B.

Cardinal's fall protection practices in the felt rack area had been inspected by OSHA on two earlier occasions. As a result of a March 1981 inspection conducted by compliance officer Edward Mershon, Cardinal was cited for failing to comply with section 1910.23(c)(1) at the felt rack area and two other locations. The citation alleged that on open-sided platforms:

a) Located at the F-4 [felt rack] area; Employees installing felt and roofing shingles were not protected from falls of up to 12 and one half feet onto the concrete floor below.

b) Located on the ceiling department elevated catwalk; The 3' and 1-1" wide elevated catwalks on either side of the ceiling roller conveyor was not provided with guard railings or the equivalent on the inner sides to protect employees from a 7' 2" fall to the floor below.

c) Located at the elevated roofing shingle storage platform; Standard railings were not provided on all open sides to prevent accidental falls by employees to the concrete floor below.

At the hearing in this case, Mershon testified that this earlier citation alleging exposure to fall hazards at the felt rack area had been directed only at the roof of the unit. Mershon did not consider the felt rack platform to be encompassed by the citation.[[3/]] Mershon testified that during the March 1981 inspection he proposed that Cardinal abate the fall hazards in the felt rack area by installing some form of guardrail to the rear of the peak of the roof. He also recalled discussing the possibility of abutting the units together to provide fall protection on the sides of the roofs.

Cardinal did not contest the citations. In April of 1981, Thomas Alexander, Cardinal's plant engineer, sent a letter to OSHA's area director describing the steps Cardinal had taken to address each part of the citation as follows:

a) Safety railing suspended from plant ceiling to protect from falls in this area.

b) Per conversation with Mr. Mershon, we have agreed to assure that the ceiling finishing area be kept full at all times to preclude the possibility of a fall.

c) Standard railings with chain gates were installed on the shingle storage platform.

This letter informed OSHA of Cardinal's belief that it had abated the violation in the felt rack area by suspending a safety railing from the plant ceiling to protect against falls from the highest edge of each unit's roof.

In May of 1981, after receiving the letter, Mershon conducted a follow-up inspection of Cardinal's plant. At the felt rack area, he observed a railing in place behind the modular units, i.e., the railing described in Alexander's letter. Mershon did not recall seeing any guarding on the sides of the roofs, but he testified that "[i]t seems as though there was some discussion. . . of abatement there by abutting the units together." Mershon wrote "OK railing installed," next to item a), the felt rack item, on his copy of the 1981 citation. He wrote nothing about the abutment of units. At the hearing, Mershon testified that the unguarded sides constituted a fall hazard but, at the time of the reinspection, he did not express these views to Cardinal and he did not recommend to the area director that a failure- to-abate notification or a new citation be issued.

Alexander testified that Cardinal had never abutted the units at the felt rack platform area because workers installed sheets of gypsum on the sides of the units there. He stated that the automation of the assembly line after Mershon's follow-up inspection had no effect on Cardinal's continuing practice of not abutting the units.

C.

The Secretary now alleges, and Cardinal does not dispute, that Cardinal should use safety belts and lanyards to protect its employees from falling from the sides of the modular housing units.[[4/]] Cardinal contends, however, that the circumstances of the earlier OSHA inspections deprived it of fair notice of this requirement at the time of the alleged violation.

As a general principle, an employer cannot be found in violation of the Act for failing to comply with a requirement of which it lacked fair notice. Diebold, Inc. v. Marshall, 585 F.2d 1327, 1335-1339 (6th Cir. 1978). The Act contemplates that employers will be attentive to the safety and health of their employees, and will read OSHA standards with their protective purpose in mind. But the Act does not require employers to read standards in a manner that strains the plain and natural meaning of the words used, nor does it require employers to assume that standards are drafted to create risk-free workplaces. See Industrial Union Department, AFL-CIO v. American Petroleum Institute, 484 U.S. 607, 641-42 (1980).

In this case, Cardinal's employees were exposed to falls from the sides of the roofs of the modular housing units. But at the time of the alleged violation, it was far from clear that any OSHA standard addressed that particular fall hazard. The Secretary, who is intimately familiar with the requirements of the OSHA standards, originally alleged that Cardinal violated section 1910.23(c)(1) by failing to install guardrails along the perimeter of the units. Shortly thereafter, however, the Secretary decided that guardrails were not the solution,[[5/]] and amended the citation to allege that Cardinal should have used safety belts and lanyards under section 1910.132(a). However, at the time of the alleged violation, there was a substantial question as to whether the language of section 1910.132(a) could be read to require the use of safety belts and lanyards for fall protection. A divided Commission has since held that it can be so read, but in the same case the Commission declined to hold the cited employer in violation of the standard because the language of the standard, the practice in the industry, and the weight of earlier decisions by Commission administrative law judges had acted to deprive the employer of fair notice of the requirement.[[6/]] Bethlehem Steel Corp., 82 OSHRC 9/C8, 10 BNA OSHC 1470, 1982 CCH OSHD 25,982 (No. 79-310, 1982). Similarly, the alleged violation in this case occurred before Bethlehem gave employers notice that section 1910.132(a) can be read to require the use of safety belts and lanyards.

Cardinal's claim that the earlier OSHA inspections deprived it of fair notice that its ongoing practices violated the Act must be read against this backdrop. When Cardinal was first cited for fall hazards on the roofs of its modular units, the standards themselves did not clearly delineate Cardinal's duties. Cardinal therefore relied on the representations of OSHA's representatives to establish its abatement duties upon receipt of the 1981 citation. When Mershon conducted the follow-up inspection, which he did for the sole purpose of determining whether Cardinal had abated the cited violations, it was reasonable for Cardinal to assume that Mershon would inform it of any deficiencies in the abatement measures it had taken. Mershon was trained to detect safety violations and had closely examined the felt rack area in his follow-up inspection. Cardinal, however, did not receive any indication that OSHA considered the fall protection for its employees working on the roofs of the units at the felt rack area to be inadequate. The Secretary did not issue a citation or a failure to abate notification. Mershon did not tell Cardinal of any reservations he had about the adequacy of fall protection at the felt rack area. Indeed, the notation "O.K. railings installed" Mershon made next to item a) on his own copy of the 1981 citation and his failure to note any remaining problems on that copy strongly indicate that he was satisfied with the steps taken by Cardinal. In addition, although neither the Act nor the Commission require the Secretary to reply to letters like the one that Cardinal sent to the area director, the Secretary's failure to respond to that letter certainly contributed to Cardinal's decision to take no further action in response to the earlier citation. Thus, we conclude that Cardinal lacked fair notice of what the Act required on the sides of the roofs of the units at the felt rack platform. See Hamilton Die Cast, Inc., 84 OSHRC 35/A2, 11 BNA OSHC 2169, 1983 CCH OSHD 26,983 (No. 79-1686, 1984).

Accordingly, that part of the judge's decision affirming item 3 of citation 2 is reversed and the item is vacated.[[7/]]

We next address Cardinal's claim that it lacked fair notice of what the Act requires at the felt rack platform itself. Cardinal makes the same notice argument that it made with regard to the roofs of the units, but the evidence suggests that neither of Mershon's inspections of the felt rack area involved the platform. Mershon testified that part a) of the section 1910.23(c)(1) citation issued after the March 1981 inspection of the felt rack area concerned only the roofs of the units. See note 3 supra. His abatement proposals during the March 1981 inspection never extended to the felt rack platform itself. Nor was there any reference to the platform on Mershon's copy of the 1981 citation. Alexander's testimony on this point is equivocal at best. He stated both that the conditions cited at the platform in 1982 were not encompassed by the 1981 citation and that the same conditions would have to have been a part of the 1981 citation because they were in the same physical area.

The evidence also fails to establish that Cardinal took any action at the platform in reliance on Mershon's actions or "approval" regarding the platform. Alexander testified that his letter to the Secretary "respond(ed) to abatement of [the platform] as well," but this assertion does not stand up well under scrutiny. If Cardinal had believed that the fall hazards at the sides of the felt rack platform were covered by the 1981 citation, it is difficult to understand why it would have done nothing to the felt rack platform to comply with section 1910.23(c)(1). There is no evidence that abating the violative condition on the platform was difficult or infeasible like the measures proposed for the modular housing units, nor is there any substantial doubt that the standard applies to that platform. In fact, Cardinal installed standard guard rails and chain gates on the shingle storage platform which was a similar structure in close proximity to the felt rack platform; the shingle storage platform had been specifically included in the 1981 citation.

Having found that Mershon did not "approve" conditions on the felt rack platform, we also note that the mere fact of Mershon twice inspecting this area and not detecting violations does not exculpate Cardinal. The Secretary's failure to issue a citation for a violation of a standard does not immunize an employer from future enforcement of that standard. See Columbian Art Works. Inc., 81 OSHRC 96/F5, 10 BNA OSHC 1132, 1981 CCH OSHD 25,737 (No. 78-29, 1981); Lukens Steel Co., 81 OSHRC 96/A2, 10 BNA OSHC 1115, 1981 CCH OSHD 25,742 (No. 76-1053, 1981).

We conclude that Cardinal was not deprived of fair notice that the conditions at the edges of the felt rack platform violated the Act.

We turn now to the merits of the alleged violation at the felt rack platform. Section 1910.23(c)(1) requires standard railings or the equivalent when employees are exposed to a fall hazard of 4 feet or more from an open-sided platform. The evidence establishes that Cardinal's employees worked near the unguarded edges of the felt rack platform 8 feet 10 inches above the plant floor and that Cardinal knew of the noncomplying conditions. This is sufficient to establish that Cardinal violated section 1910.23(c)(1).

The Secretary alleged that this violation was repeated within the meaning of section 17(a) of the Act. Under Commission precedent, [a] violation is repeated ... if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation.

Potlatch Corp., 79 OSHRC 6/A2, 7 BNA OSHC 1061, 1063, 1979 CCH OSHD 23,294, p. 28,171 (No. 16183, 1979). To establish that the violation was repeated, the Secretary relies on item c) of the 1981 citation. That item, which alleged a failure to comply with section 1910.23(c)(1) at the shingle storage platform, was not contested by Cardinal and has become a Commission final order. As we stated above, the felt rack platform and the shingle storage platform are very similar structures located in close proximity to each other. Since the evidence shows that the citations involved the same standard applied to substantially similar conditions, the Secretary's allegation that the violation was repeated has been established under Potlatch.[[8/]]

Cardinal argues that it cannot be found in repeated violation because it lacked knowledge of the presence of a violation. Cardinal claims that, in order to establish a violation of the Act, the Secretary must show that the employer knew that a cited condition violated the Act. This is a misstatement of the Secretary's burden of proof. The Secretary need only show that the cited employer knew or could have known of the condition with the exercise of reasonable diligence. Astra Pharmaceutical Products, Inc., 81 OSHRC 79/D9, 9 BNA OSHC 2126, 2129, 1981 CCH OSHD 25,578, p. 31,900 (No. 78-6247, 1981), aff'd in pertinent part, 681 F.2d 69 (1st Cir. 1982). She has no obligation to also show that the employer knew that the condition violated the Act. The employer has a duty to comply with the Act regardless of whether it was previously informed that a condition violated the Act. Simplex Time Recorder Co., 85 OSHRC 50/A3, 12 BNA OSHC 1591, 1596, 1985 CCH OSHD 27,546, p. 35,572 (No. 82-12, 1985).

In affirming three items as repeated, the judge assessed a combined penalty of $1,350, which is equivalent to $450 per violation. Taking into consideration the penalty factors set out at 29 U.S.C. 666(j), we conclude that a penalty of $450 is appropriate for item 2(b).

Item 2(c): 1910.23(c)(1), scissors lift

At another location on the assembly line at Cardinal's facility, employees stood on a hydraulically-powered scissors lift between the units and attached the roof to the unit. The lift, which is bolted to the floor, can be lowered to allow the units to pass over it or raised to a height of 6 feet 5 inches. Although one side of the lift is flush against the side of the module, Perry, the compliance officer, testified that there was a space on the other side of the lift that was large enough for a person to fall the 6 feet 5 inches to the concrete floor below. The Secretary issued a repeated citation alleging that Cardinal failed to equip the lift with standard guardrails or the equivalent as required by section 1910.23(c)(1).

The scissors lift had also been examined by Mershon during his March 1981 inspection. He testified that he had recommended the issuance of a citation alleging a failure to comply with section 1910.23(c)(1). However, after a conference with his supervisor and the area director, it had been determined that a different standard, the scaffolding standard at 29 C.F.R. 1910.28,[[9/]] applied to the scissors lift. Mershon testified that he had told Alexander over the telephone that the scissors lift was a scaffold and that it would not be cited because the scaffolding standard required guarding only at the 10-foot level and above.

Cardinal argues that, having relied on the area office's decision that the scissors lift was a scaffold, it could not have known that the unguarded scissors lift violated the Act as the Secretary alleges.

The Secretary contends that the scissors lift is not a scaffold within the meaning of section 1910.28. The Secretary points to the definition of scaffold published at 29 C.F.R. 1910.21(f)(27):

Any temporary elevated platform and its supporting structure used for supporting workmen or materials or both.

Relying on Fleetwood Homes of Texas. Inc., 80 OSHRC 97/C4, 8 BNA OSHC 2125, 1980 CCH OSHD 24,873 (No. 76-2332, 1980), she notes that the Commission has held that whether a working surface is temporary and covered by the scaffold standard or permanent and covered by the platform standard depends on the structural rather than the functional attributes of the device. Because the scissors lift is permanently bolted to the floor, she contends that t is a platform within the meaning of section 1910.23(c)(1).

The Secretary maintains that Cardinal's reliance on the erroneous advice of the compliance officer that the lift was a scaffold does not negate the violation. She claims that it is Cardinal's knowledge that the scissors lift posed a hazard to its employees rather than its knowledge of the requirements that is critical.

The judge found that the scissors lift was a platform and affirmed a violation of section 1910.23(c)(1) because it was not equipped with guardrails. He concluded that the lift was not a scaffold because it was not "temporary" within the meaning of section 1910.21(f)(27) but rather was bolted to the floor. The judge rejected Cardinal's argument that it lacked fair notice that section 1910.21(c)(1) applied to the scissors lift; he also rejected Cardinal's notice arguments. He did not discuss Mershon's communication of the area director's determination the area director's determination to Cardinal.

In determining that the scissors lift was a platform, the judge correctly focussed on the key issue of whether the structure was temporary or permanent. However, we find that he erred in concluding that the lift was permanent and not temporary like scaffold within the meaning of section 1910.21(f)(27). Although the scissors lift does have some permanent aspects, focussing on the base that is attached to floor ignores the nature of the working surface itself. The working surface of the lift is raised and lowered again and again to allow the workers standing on it to attach the roofs to the units as they move down assembly line. The procedure on the mobile home assembly line in Fleetwood Homes was nearly identical. In Fleetwood, fourteen-foot long planks called spanners were laid between the lateral work decks that parallel the mobile homes. They allowed Fleetwood's employees to work on the ends of the mobile homes, but they had to be removed and repositioned every two hours when the mobile homes on the production line were advanced. In Fleetwood, the Commission found that the spanners were scaffolds because they could be and were moved to fit the needs of the job. The working surface of the scissors lift in this case is continually repositioned just like the spanners in Fleetwood. Accordingly, in both situations the existence of an "elevated platform" is only "temporary" within the meaning of section 1910.21(f)(27). We therefore conclude, as the OSHA area director did in 1981, that scissors lift is a scaffold and that it is not covered by section 1910.23(c)(1). We vacate the citation on this basis.

Even if we were to conclude that section 1910.23(c)(1) is the applicable standard, we would vacate the item on the basis that Cardinal lacked fair notice that the standard applied to its scissors lift. In 1981, the OSHA area director determined that the scissors lift was a scaffold rather than a platform, and therefore decided not to cite Cardinal for failing to equip the lift with guardrails. Compliance officer Mershon explained to Cardinal's plant engineer, Alexander, why Cardinal would not be cited for violating section 1910.23(c)(1). Cardinal was surely entitled to rely on this information. It would be unfair to now find that Cardinal violated the standard when it reasonably relied on advice from OSHA that the standard did not apply. See Diebold; Hamilton Die Cast, Inc.

The Secretary argues that the discussions that took place before Mershon told Alexander that section 1910.23(c)(1) did not apply to the lift gave Cardinal notice that the unguarded edges of the lift posed a hazard. However, the two standards under discussion do not require guarding because a hazard is present. Section 1910.23(c)(1) requires guarding when employees work on "open-sided floor[s] or platforms 4 feet or more above adjacent floor or ground level." Section 1910.28(a)(3) required that "[guardrails and toeboards shall be installed on all open sides and ends of platforms [scaffolds] more than 10 feet above the ground or floor." Thus, where as here the working surface is between 4 feet and 10 feet above the ground, guardrails are only required if the surface is a platform and not a scaffold.

Accordingly, that part of the judge's decision affirming item 2 of citation 2 is reversed, and the item is vacated.

Thus, item 2 (b) of Citation 2 is affirmed as a repeated violation, and a penalty of $450 is assessed. Items 2(c) and 3 of Citation 2 are vacated.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: April 20, 1989


SECRETARY OF LABOR

Complainant,

v.

CARDINAL INDUSTRIES, INC.,

Respondent.

OSHRC Docket No. 82-0427

DECISION

Before: BUCKLEY, Chairman; RADER and WALL, Comissioners.

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. 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).

Administrative Law Judge Edwin G. Salyers affirmed two items of a citation issued by the Secretary to Cardinal Industries, Inc. Items 2b and 2c of citation 2 alleged that, contrary to 29 C.F.R. 1910.23(c)(1), Cardinal had not installed guardrails on two platforms. Item 3 of that citation alleged that, contrary to 29 C.F.R. 1910.132(a), Cardinals employees had not worn safety belts. Cardinal contends that these general industry standards do not apply to its workplace. Cardinal claim that bemuse its employees are engaged in construction work, the construction standards apply. We agree with Cardinal that its employees are engaged in construction work. We also conclude that the general industry standards are preempted by specifically applicable construction standards. Inasmuch as the Secretary did not allege and the parties did not try violations of those construction standards, we vacate the items.

I

Cardinal operates a facility in Columbus, Ohio at which modular housing units are constructed. Completed units are removed from the facility and assembled elsewhere to form residences or other buildings. Judge Salyers described the operations at Cardinal's facility as follows:

The production line moves through approximately 25 work stations. Each unit is mechanically propelled on a track from each station to the other. The first operation is the placing of the floor. Once this is accomplished, the unit begins to move through the various work stations where front walls, side walls, rear walls, ceiling, roof, gypsum, roofing felt, shingles, trim and other items are subsequently applied...The entire operation is performed in an enclosed facility which encompasses three city blocks.

The various parts of a unit are joined by Cardinal's employees, who are represented by the United Brotherhood of Carpenters and Joiners. The parts are joined in the same manner as at a building site. For example, after the floor is set in place, Cardinal's employees erect the walls, attach insulation, gypsum board and siding. When the roof is in place, the employees unroll felt, cut it to the size of the roof and nail it to the roof. They then put down shingles and nail them to the roof. Cardinal's employees also, install plumbing and electrical wiring.

Cardinal contends that its operation involves "construction work" within the meaning of 29 C.F.R. 1910.12.[[1]] It argues that but for its "unique operation," the units it produces would be constructed an a building site. Cardinal points out that the units all have the roofs, sides, interior walls, flooring, and electrical wiring typical of any house or building. It notes that the carpentry and plumbing skills required to build the units are those generally associated with construction.

The Secretary claims that the indoor assembly line and permanent work stations at Cardinal's plant are hallmarks of a classic assembly-line manufacturing operation to which the general industry standards in 29 C.F.R. Part 1910 apply. He relies on Office of Management and Budget, Standard Industrial Classification Manual 47, 94 (1972), which lists the production of "Prefabricated Wood Buildings and Components" under manufacturing, but classifies the fabrication of buildings on a construction site as construction. He also cites Fleetwood Homes of Texas, Inc., 80 OSHRC 97/C4, 8 BNA OSHC 2125, 1980 CCH OSHD 24,937 (No. 76-2332, 1980), and Prowler Travel Trailers of New York, Inc., 77 OSHRC 207/A2, 6 BNA OSHC 1134, 1977-78 CCH OSHD 22,397 (No. 15636, 1977), decisions in which the Commission applied general industry standards to the assembly line production of mobile homes. The Secretary also argues, relying an Royal Logging Co., 79 OSHRC 84/A2, 7 BNA OSHC 1744, 1979 CCH OSHD 23,914 (No. 15169, 1979), aff'd, 645 F.2d 822 (9th Cir. 1981), that the nature of the overall operation rather than use of construction skills or equipment determines whether an employer is involved in construction.

The judge found that the construction industry standards do not apply. He found that although "the end product of [Cardinal's] operations is a finished housing unit, the nature of the operation was "more akin to manufacturing than . . . to construction." He reached this conclusion primarily because the units, which "move along a line much like any other manufactured product," were produced an an assembly line entirely within Cardinal's facility.

II

The applicability provisions in 29 C.F.R. Part 1910 control the resolution of this question. Section 1910.5(a) states that the occupational safety and health standards in Part 1910 "apply with respect to employments performed in a workplace in" the United States. Section 1910.12, which adopts the construction standards in Part 1926 as occupational safety and health standards, states that they "shall apply . . . to every employment and place of employment of every employee engaged in construction work." Section 1910.5(c) provides a rule for choosing between these standards. Subsection (c)(1) states that "[i]f a particular standard is specifically applicable to a condition . . . [or] operation . . , it shall prevail over any different general standard which might otherwise be applicable to the same condition . . . [or] operation . . ." "On the other hand," states section 1910.5(c)(2) "any standard shall apply . . . to any employment and place of employment in any industry, even though particular standards are also prescribed for the industry. . . ." The question here, therefore, is whether there are specifically applicable Part 1926 standards. To answer that question, it is first necessary to determine whether Part 1926 is applicable at all, i.e., whether Cardinal's employees are engaged in "construction work" within the meaning of section 1910.12. We find that Cardinal's employees were engaged in construction work. We also find that there are specifically applicable construction standards.

Section 1910.12(b) defines "construction work" as "work for construction, alteration, and/or repair, including painting and decorating." In determining whether an operation constitutes "work for construction," the Commission has held that Part 1926 applies only to employers who are actually engaged in construction work or who are engaged in operations that are an integral and necessary part of construction work. United Geophysical Corp., 81 OSHRC 77/D6, 9 BNA OSHC 2117, 2121, 1981 CCH OSHD 25,579, p. 31,906 (No. 78-6265, 1981), aff'd without published opinion, 683 F.2d 415 (5th Cir. 1982). Although Cardinal's employees construct homing units in a factory setting, the carpentry, plumbing, roofing and electrical work they perform is identical to that performed at a construction site, and identical to the kind of work that OSHA specifically intended Part 1926 to cover. See sections 1910.17(b)(2) and 1926.1051(b)(2) (applying Part 1926 to "light residential construction").[[2]] That Cardinal's employees work in a building rather than outdoors at the site of final assembly cannot be controlling, for under sect 1910.12, it is the nature of the work rather than its location that controls. Indeed, section 1910.12's references to alteration and repair make this clear, for such work frequently takes place within pre-existing structures. Finally, the construction activities performed by Cardinal's employees are not ancillary to or in aid of a nonconstruction purpose. See Royal Logging, 7 BNA OSHC at 1750, 1979 CCH OSHD at p. 28,996. They are directed at Cardinal's primary function--construction.[[3]]

We now add whether there are construction standards specifically applicable to the cited conditions. See Daniel Construction Co., 82 OSHARC 23/A2, 10 BNA OSHC 1549 1554-5, 1982 CCH OSHD 26,027, p. 32,675 (No. 16265, 1982). We find that there are. Two of the items allege that guardrails were not provided to prevent falls from platform. As the Secretary's brief implicitly concedes, however, there is a construction industry standard, section 1926.500(d)(1), that requires guardrails on "open-sided floors, platforms, and runways." The third item alleges a failure to require the use of safety belts an an unguarded roof edge. The construction industry standard on personal protective equipment, section 1926.28(a), "requir[es] the ring of appropriate personal protective equipment and cross-references 29 C.F.R. Part 1926, Subpart E, which contains a standard, section 1926.104, on safety belts.[[4]] Those standards govern the cited conditions.

Under Rule 15(b) of the Federal Rules of Civil Procedure, pleadings my be amended to conform to the evidence when an issue not raised by the pleadings has been tried by express or implied consent of the parties. Commissioner Wall would not amend, sua sponte, in the absence of an opportunity for Cardinal to argue whether amendment is appropriate, and whether it would be prejudiced. Chairman Buckley would not amend here because there was no express consent to try whether the applicable construction standards had been violated. He would not find implied consent because he does not find that Cardinal squarely recognized that violations of the construction standards were in issue,much less that it consented to try these issues. See McWilliams Forge Co., 84 OSARC ________, 11 BNA OSHC 2128, 2129-30, 1984 CCH OSHD 26,979, p. 34,669 (No. 80-5868, 1984). We will not therefore, amend the pleadings to allege violations of the construction standards in Part 1926.

Accordingly, item 2b, 2c, and 3 of citation 2 are vacated.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: December 6, 1985


RADER, Commissioner, dissenting:

I respectfully dissent from the majority's decision to vacate the citation items on the ground that, Cardinal is not subject to the general industry standards set forth at Part 1910 of Title 29. In my view, the judge properly determined that Cardinal is engaged in a manufacturing process rather than a construction operation.

In finding the construction standards applicable to Cardinal, the majority relies primarily on the type of work activities performed by Cardinal's employees, concluding that such activities as carpentry, plumbing, roofing and electrical work are characteristic of the work normally performed at construction sites. The majority also reasons that these work duties are integrally related to Cardinal's primary "function," which the majority regards as construction work because Cardinal manufactures parts of housing and motel units. Thus, the majority's decision is based on two related but distinct concepts--the employees' specific work duties or the skills they represent on the one hand and the overall purpose or objective of their employment on the other. Neither concept, however, supports the majority's conclusion that Cardinal is engaged in construction work as that term is defined and used in the Secretary's standards.

The Commission has previously recognized that under the Secretary's standards the differentiation between general industry and construction cannot be based solely on the nature of the specific work duties or types of work activities in which employees are engaged. In B.J. Hughes, Inc., 82 OSHRC 17/D5, 10 BNA OSHC, 1545, 1982 CCH OSHD 25,977 (No. 76-2165, 1982), the Commission rejected the Secretary's argument that cementing the casing of an oil well during drilling constitutes construction work because the employees worked with pumps, derricks, concrete pouring equipment, and material handling equipment of the sort normally used in construction work. The Commission reasoned that equipment of this type is frequently used in nonconstruction work as well, and noted that many of the construction standards regulating particular types of equipment have counterparts in the general industry standards governing the same equipment. In the present case, the specific types of Cardinal's work activities that the majority characterize as "construction" are in fact addressed by general industry as well as construction standards. Thus, 29 C.F.R. 1910.213, a general industry standard entitled "Woodworking machinery requirements," imposes requirements for various types of saws and other woodworking machinery, and is applicable generally to all types of woodworking operations. Noblecraft Industries, Inc.v. Secretary of Labor, 614 F.2d 199 (9th Cir. 1980). Similarly, section 1910.241, "Hand and Portable Powered Tools and Other Hand-Held Equipment," governs many types of portable tools, both powered and non-powered. Section 1910.252 applies to "Welding, cutting, and brazing," mid extensive regulations for working with electrical conductors and related apparatus appear in section 1910.137, "Electrical protective devices," and Subpart S, "Electrical," 29 C.F.R. 1910.301-308, 1910.399.[[1]] These are all general industry standards that apply to the techniques, tools, and equipment used in Cardinal's operation.[[2]] Thus, the fact that Cardinal's employees perform carpentry, plumbing, and electrical work does not in itself mean that Cardinal's operation is controlled by the construction standards in Part 1926.[[3]]

Since the specific work duties conducted by Cardinal's employees are not dispositive of the question whether Cardinal is engaged in construction work under Part 1926, it is appropriate to consider, as does the majority, whether the construction standards govern the type of business in which Cardinal is engaged. See B.J. Hughes, supra, 10 BNA OSHC at 1547, 1982 CCH OSHD at p. 32,579. As the majority indicates, Cardinal fabricates housing units in a factory setting away from, and having no direct connection with, the actual site where the component units will be placed and finally assembled into a complete dwelling and then occupied. The majority concludes that such work constitutes construction because the type of work performed is the dispositive factor.[[4]] However, in my view the physical conditions under which Cardinal's employees perform this work are controlling.

The stated purpose of the Act is to assure "safe and healthful working conditions" by, among other things, "authorizing the Secretary of Labor to set mandatory occupational safety and health standards." Section 2(b), 29 U.S.C. 651(b). Since standards are a basic mechanism by which the purpose of the Act is to be achieved, it is appropriate in determining the scope of a particular set of standards to consider the nature of the working conditions sought to be regulated.

The physical configuration of Cardinal's facility is very much different from that normally encountered on the site or location of a building or structure. The use of an assembly line comprised of fixed work stations, the overall factory setting, and the generally controlled environment thereby provided, are obvious characteristics of a manufacturing rather than an on-site construction operation.[[5]] The basic environment in which Cardinal's employees perform their work is indeed exemplified by the citation item at issue dealing with unguarded platforms. Both the "felt rack platform" (an elevated work surface attached to the structure of Cardinal's building and containing a roller used to dispense roofing felt to the modules as they pass by) and the "scissors lift" (a hoisting device bolted to the floor and used to raise and lower employees to and from the roof areas) are devices typical of the machinery or equipment normally encountered in a manufacturing plant. They reflect working conditions of a manufacturing rather than construction nature, regardless of the fact that the construction standards as well as the general industry standards contain provisions generally regulating the hazard of a fall from elevated work surfaces. See Southern Pacific Transportation Co. v. Usery, 539 F.2d 386 (5th Cir. 1976), cert. denied, 434 U.S. 874 (1977); Southern Railway v. OSHRC, 539 F.2d 335 (4th Cir.), cert. denied, 429 U.S. 999 (1976) (the nature of an employer's working conditions depends not only on the particular hazard presented at a certain work location but also on the overall "surroundings" in which the employees customarily perform their assigned tasks).

The fact that the modules or units Cardinal produces are manufactured in a factory setting is more significant than the fact that they will eventually be occupied as dwellings or residences. The construction standards as a whole indicate that regardless of the type of building or structure involved the performance of construction work necessarily implies some direct and tangible connection or relationship with the physical site or location of the structure. Thus, the construction standards contain a number of provisions, which have no counterpart of building sites and the assembly or completion of structures or structural components on site.[[6]] In addition, section 1926.13(c), a regulation promulgated under and interpreting section 107 of the Contract Work Hours and Safety Standards Act ("Construction Safety Act"), 40 U.S.C. 333, which authorizes the Secretary to establish safety and health standards applicable to federal construction contracts, recognizes a clear differentiation between the fabrication or assembly of construction materials and the performance of construction work at the site. In pertinent part this regulation provides:

A person who undertakes to perform a portion of a contract involving furnishing of supplies or materials will be considered a "subcontractor"...if the work in question...is to be performed: (1) Directly on or near the construction site, or (2) by the employer for the specific project on a customized basis. Thus, a supplier of materials which will become an integral part of the construction is a "subcontractor" if the supplier fabricates or assembles the goods or materials in question specifically for the construction project...If the goods or materials in question are ordinarily sold to other customers from regular inventory, the supplier is not a "subcontractor." Generally, the furnishing of prestressed concrete beams and prestressed structural steel would be considered manufacturing; therefore a supplier of such materials would not be considered a "subcontractor." An example of materials supplied "for the specific project on a customized basis" as that phrase is used in this section would be ventilating ducts, fabricated in a shop away from the construction job site and specifically cut for the project according to design specifications. On the other hand, if a contractor buys standardsize nails from a foundry, the foundry would not be a covered "subcontractor."

Since the Construction Safety Act has a similar purpose in providing safe and healthful working conditions for employees engaged in construction work, the scope of its coverage is relevant in resolving an analogous question of coverage under the Occupational Safety and Health Act. See Rutherford Food Corp. v. McComb, 331 U.S. 722 (1947); Griffin & Brand of McAllen, Inc., 78 OSHRC 48/C13, 6 BNA OSHC 1702, 1978 CCH OSHD 22,829 No. 14801, 1978). Indeed, the scope of the Construction Safety Act is particularly persuasive here because the substantive safety and health standards promulgated under that statute and set forth in 29 C.F.R. Part 1926 are the source for the occupational safety and health standards applicable to all employers engaged in construction work under the Occupational. Safety and Health Act. 29 C.F.R. 1910.12(a). See 29 U.S.C. 653(b)(2) (standards issued pursuant to 40 U.S.C. 333 are deemed occupational safety and health standards under the Act.) When he adopted and extended the Construction Safety Act standards as OSHA standards applicable to all construction work, the Secretary defined "work for construction" by explicitly referring to the "discussion of these terms in 1926.13 of this title." [[7]] Section 1926.13 is therefore pertinent to the extent that it differentiates between manufacturing and construction and explains the particular circumstances under which a manufacturing or fabrication operation could be considered construction work.[[8]]

The record indicates that no single modular unit can by itself constitute a habitable dwelling. It may require as many as 20 units to form a complete structure at the building site, where the Units are taken by truck and placed on a pre-existing foundation. The record does not snow, nor does Cardinal contend, that its employees either transport modules to the site where they are to be installed or perform any final assembly or installation on the site. Cardinal's plant manager testified that Cardinal produces units for three basic types of occupancy--apartments, houses, and motels--in a fixed and prescribed production sequence as summarized in Judge Salyers' decision. It does not appear, nor is there any contention, that Cardinal produces units on a customized basis for particular projects. Applying the criteria set forth in section 1926.13(c), I conclude that the type of work in which Cardinal is engaged does not constitute construction within the meaning of section 1910.12(b). Cf. Dravo Corp., 82 OSHRC 30/A2, 10 BNA OSHC 1651, 1657, 1982 CCH OSHD 26,076, p. 32,814 (No. 14818, 1982) (a pipe shop associated with a shipyard which fabricates components such as ladders, nozzles, and sewage holding tanks is a manufacturing operation not subject to the Secretary's shipbuilding standards).

Finally, while I would not necessarily regard the Standard Industrial Classification Manual as controlling, I believe that the majority errs in dismissing the manual as having no relevance whatever. The manual assigns industry codes on the basis of "primary activity," determined by the "principal product or group of products produced or distributed, or services rendered." Id. at 12. It therefore directly addresses the question presented in this case, namely, the proper characterization of an employer engaged in the production of prefabricated housing units. Furthermore, the Secretary relies on the codes assigned in the manual to distinguish construction from manufacturing employers for the purpose of determining inspection priorities.[[9]] See OSHA Instruction CPL 2.25F, Scheduling System for Programmed Inspections. Appendix B, 2 BNA Ref. File 21:9295, :9305-07, 3 CCH ESHG 8671, pp. 8301-02. The manual is also widely used by other government agencies and by private industry for classification, compilation of statistics and insurance purposes. I therefore believe it is relevant and does provide guidance in classifying Cardinal's business activities.

For these reasons, I respectfully dissent from the majority's decision.



SECRETARY OF LABOR,

Complainant,

v.

CARDINAL INDUSTRIES, INC.,

Respondent.

OSHRC Docket No. 82-0427

APPEARANCES:

Andrew W. Hoffmann, Esquire,
Office of the Solicitor,
U. S. Department of Labor, Cleveland, Ohio,
on behalf of

complainant

Robert D. Weisman, Esquire,
Columbus, Ohio,
on behalf of

respondent

DECISION AND ORDER

SALYERS, Judge:     Respondent is engaged in Columbus, Ohio, in the manufacturing of modular housing units. The production line moves through approximately 25 work stations (Tr. 220). Each unit is mechanically propelled on a track from each station to the other. The first operation is the placing of the floor. Once this is accomplished, the unit begins to move through the various work stations where front walls, side walls, rear walls, ceiling, roof, gypsum, roofing felt, shingles, trim and other items are subsequently applied. The units have slanted roots. On the high side of the unit, the distance from the roof to the ground is 12 feet 4 inches. On the low side the height is 8 feet 10 inches. That unit is 24 feet long and 12 feet wide. The entire operation is performed in an enclosed facility which encompasses three city blocks.

In March 1981 Compliance Officer Edward L. Mershon conducted an inspection of respondents facilities to determine compliance with the provisions of the Occupational Safety and Health Act (29 U.S.C. 651, et seq.). During the course of this inspection, Compliance Officer Mershon observed, among other things, employees installing felt on the roof of a unit in the area designated in the record as the F-4 area and working on the shingle storage platform who were unprotected from a falling hazard. He concluded this constituted a violation of the guardrail standard found at 29 C.F.R. 1910.23(c)(1)[[1/]] and so advised respondent's officials. A citation was thereafter issued which went uncontested by respondent. By letter dated April 23, 1981 (Ex. R-2), respondent advised these conditions had been abated by the installation of proper guardrails. In a follow-up inspection conducted in May 1981, Compliance Officer Mershon verified that proper guarding had been installed in the felt installation area (F-4 area) and on the shingle storage platform (Ex. R-1).

The record is unclear as to just how Compliance Officer Mershon determined respondent had abated the condition with regard to employees working on unit roofs in the F-4 area. Apparently, respondent had suspended guardrails from the plant roof to protect employees from falls off the ends of the units. At that time the units were moved manually down the line, and the sides of the units while in the production line were flush, leaving no opening through which employees could fall. Thus, no fall hazard existed along the sides of the units as long as they were flushed tight together.

As a result of a fatal accident occurring in the F-4 area, Compliance Officer Charles B. Perry inspected respondent's facility in March 1982. At that time respondent's method of moving the units along the line had changed from manual to mechanical, and it was no longer possible to flush-up the sides of the units. Since the units were separated by spacer bars, openings existed between the sides of the units moving along the line. These openings were of sufficient size to create a falling hazard to employees working on the sides of the unit roofs. Among other things, Compliance Officer Perry noted employees installing felt on the units in the F-4 area and employees working on the felt rack platform without fall protection. No guardrails were in place along the sides of the units nor were employees wearing safety belts with lanyards. He further noted an unguarded scissor lift platform in the roof setting area and an unguarded staging platform in the siding area. Following his inspection, a citation was issued characterizing these alleged violations as repeated.[[2/]]

The repeated citation, as originally drafted, charged respondent with a failure to use guardrails as follows:

29 CFR 1910.23(c)(1): Open sided floor(s) or platform(s) 4 feet or more above the adjacent floor or ground level were not guarded by standard railings (or the equivalent as specified in 29 CFR 1910.23(e)(3)(i) through (v), on all open sides, as follows:

a) The Felt Rack Area, there was no guard railing or its equivalent (safety belts rind lanyards) provided to protect employees from falls while rolling out and cutting the felt paper, on the roof of the cubes.

b) The Felt Rack Area, there was no guard railing provided on the felt rack platform to prevent employees from falling to a lower level.

c) The Roof Setting Area, there were no guard rails provided on the Scissor lift platform to prevent employees from falling to a lower level when platform is elevated above the four (4) foot level.

d) The Siding Area, there was no guard railing provided on the metal staging platform suspended between two cubes.

By written motion filed shortly before the hearing, the Secretary moved to delete item 2(a) of repeat Citation No. 2 and substitute therefore a charge of
failure to use protective equipment as required by 29 C.F.R. 1910.132(a).[[3/]] It being represented to the Court that this amendment would in no way change the operative facts which gave rise to the alleged violation (Tr. 8). the motion was granted [[4/]] with the understanding that motions would be entertained from counsel for respondent for appropriate relief upon a showing of surprise or prejudice to respondent's case. [[5/]]

The facts are undisputed that at the time of Compliance Officer Perry's inspection, employees working in the F-4 area applying felt to the unit roofs were not wearing safety belts with lanyards. This fact is graphically illustrated by photographs taken by the compliance officer on the date of inspection. (See Ex. C-3, C-4, C-5, C-6, C-74.) These photos also show employees working at the very edge of the roof clearly exposing them to a failing hazard. The serious consequences of a fall from a height of 8 to 12 feet onto a concrete floor cannot be questioned and is, unfortunately, confirmed by the resulting fatality of an employee who was engaged in this same operation at the time of his death. It is concluded that failure to provide any kind of fall protection (in this case safety belts and lanyards) to employees engaged in this operation constituted a violation of the cited standard.

The only real question for determination is whether or not this violation is properly characterized as repeated. In the 1981 investigation and ensuing citation, respondent was charged with a failure to install and utilize guardrails in the F-4 area contrary to 29 C.F.R. 1910.23(c)(1). Since respondent now stands charged with violations of a different (but related) standard found at 29 C.F.R. 1910.132(a), respondent argues the violation cannot be characterized as repeated. The controlling case in point is Potlatch Corporation, 79 OSHRC 6/A2 7 BNA OSHC 1061, 1979 CCH OSHD 23,294 (No. 16183), wherein the Review Commission set forth its definition of a repeated violation as follows:

A violation is repeated under section 17(a) of the Act if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation.

The Secretary may establish substantial similarity in several ways. In cases arising under section 5(a)(2) of the Act, which states that each employer shall comply with occupational safety and health standards, the Secretary may establish a prima facie case of similarity by showing that the prior and present violations are for failure to comply with the same standard.
* * *
In the absence of evidence that the antecedent and present violations concern noncompliance with the same standard, the Secretary must present other evidence that the violations are substantially similar in nature. In this regard, we think that evidence that the violations involve similar hazards would be relevant ....

Under the circumstances of this case, it is clear that the Secretary has satisfied the requirement for showing a "substantially similar violation." Respondent was put on notice that employees working on unit roofs in the F-4 area were exposed to a serious fall hazard. Respondent abated the condition by installing guardrails at each end of the units and keeping the sides of the units flush to negate a falling hazard. At the time of the 1982 inspection, respondent's operation had changed from manual to mechanical movement of the units and the unit sides could no longer be flushed together. Under these circumstances, it should have been obvious to respondent that employees working on the sides of the units were exposed to a falling hazard and should be afforded protection. [[6/]] The Secretary has shown not only that the hazard was "substantially similar" but, indeed, was the very same hazard.

Respondent has also been charged with a repeated violation of 29 C.F.R. 1910.23(c)(1) for its failure to provide guardrails around the felt rack platform located at an elevation of 8 feet 10 inches above the concrete floor. This platform is regularly used by employees working in the F-4 area (Ex. C-8, C-9). This particular platform was not addressed in the 1981 inspection or ensuing citation. However, a similar platform, the roofing shingle storage platform, had been cited and abated in that inspection. This hazard is "substantially similar" to the hazard previously cited and involves the same standard.

The Secretary also charges respondent with repeated violation of the guardrail standards for failure to guard a scissor lift platform in the roof setting area and a metal staging platform in the siding area. The scissor lift (as depicted in Ex. C-10) is a platform which can be raised or lowered as needed in performing the roof attachment operation. When lowered, it is flush with the floor to allow the units to move over it. When elevated, it is 6 feet 5 inches above the floor. It is permanently bolted to the floor (Tr. 71). The metal staging platform (as depicted in Ex. C-11) rests on a tubular shaped bracket and is suspended from either the top of the unit or the ceiling of the plant. The elevation above floor level is 6 feet 3 inches (Tr. 92). Neither of these platforms was fitted with guardrails.

Respondent strongly urges that the Secretary cited these alleged violations under the wrong standard. Credence is given to this position since it appears disagreements existed within the OSHA area office on the point (Tr. 209-210). It is asserted that these are not platforms but scaffolds and, if so considered, do not require guardrails since they are elevated less than 10 feet above the floor.[[7/]]

The record provides little assistance in resolving this problem since the nature and use of these items were not fully explored. The term "scaffold" is defined at 29 C.F.R. 1910.21(f)(27) and 29 C.F.R. 1926.452 as follows:

Any temporary elevated platform and its supporting structure used for supporting workmen or materials or both.

The key word in this definition is "temporary." The scissor lift quite obviously does not fit this definition since the lift is permanently bolted to the floor and is used each and every time a roof is affixed to the units. The metal staging platform presents a more difficult problem. Respondent's foreman indicates in his testimony that the platform is "temporary" (Tr. 222) and explains:

Q. And why do you say that the scaffolding there between the two units which has been described in Serious Citation Two, Item 2(d) is temporary?

A. Well, it needs to be taken in and placed in position only on those units where they do siding operations. It's taken in and installed by one or two people for each particular time they need to apply siding to a unit.

Q. And when those units reach the end of the line, what happens to that scaffolding?

A. The scaffold's taken out before the unit passes beyond the siding station, let alone before it gets to the end of the line.

This statement, taken alone, would not establish the platform is temporary. However, it appears Compliance Officer Perry, after further deliberation following the issuance of the citation, agrees that the scaffolding standard is the proper standard to apply in this case (Tr. 168-169). Under them circumstances and on a record that leaves this question up to speculation, it is concluded that the metal staging platform is more properly classified as a scaffold and respondent did not violate the requirements under this standard.

Respondent argues as a collateral defense that the Secretary has charged it under the wrong set of standards. Since the units are built from the floor up in much the same fashion as would be used in an outdoor construction project, respondent urges that the construction standard should be applied rather than the general industry standards, as was done in this case. Even though the end product of respondent's operations is a finished housing unit, the nature of respondent's operations is more akin to manufacturing than it is to construction. The units are produced entirely within respondent's enclosed facility and move along a line much like any other manufactured product. It is concluded that the Secretary has properly used the general industry standards and that respondent's argument is without merit.

Equally without merit is respondent's argument that it lacked knowledge of the hazard. The hazard was specifically called to the attention of company officials in the previous inspection. When the line was mechanized and the unit sides were separated by spacer bars, any reasonably prudent employer would realize this change in circumstances required a re-evaluation of safety procedures. It is difficult to understand how respondent would recognize the hazard at the ends of the unit and install fall protection at these locations but fail to recognize a hazard when a change in production method created the same circumstance along the unit sides.

Finally, respondent argues Compliance Officer Mershon's approval of abatement following the 1981 inspection and his failure to cite conditions existing at that time, which became the basis for citations in the subsequent investigation, estops the Secretary from asserting violations. As noted above, the change in plant procedures created a new hazard not considered previously and nullified the abatement approved following the 1981 inspection. It is also clear that the Secretary's failure to issue a citation following an inspection does not grant an employer immunity from enforcement of applicable occupational safety and health standards in subsequent inspections. Columbian Art Works, Inc., 81 OSHRC 96/F5, 10 BNA OSHC 1132. 1981 CCH OSHD 25,737 (No. 78-29).

The Secretary proposes a penalty in this case in the amount of $1,800.00. Since it now appears that the Secretary has established only three of the four repeated violations originally cited, the proposed penalty will be reduced by one-fourth of the original amount.

The Secretary charges respondent with an "other" than serious violation of the recordkeeping provisions found at 29 C.F.R. 1904.4 [[8/]] for its failure to provide upon request a supplementary record (OSHA No. 101). The record is not clear whether such forms were maintained by respondent. At the opening conference, Compliance Officer Perry requested the supplementary record (Tr. 118) but was given an accident report (Tr. 122; Ex. C-12).

Respondent's plant engineer testified the company maintains records which contain all of the information required by the regulations (Tr. 236) and would have provided these records if the compliance officer had made it clear what he was seeking. At the hearing respondent produced certain records received as Exhibit R-3 which appear to contain all the information required by the standard. It is concluded respondent has maintained the required records, and failure to produce them was a result of a breakdown in communication between company officials and the compliance officer.

FINDINGS OF FACT

1. The respondent, Cardinal Industries, Inc., is a corporation engaged in the manufacturing of modular housing units. These units move along a production line in an enclosed facility encompassing some three city blocks. Respondent has employees who handle or otherwise work on goods that are produced for commerce.

2. Respondent was investigated in March 1981 by a compliance officer from the Occupational Safety and Health Administration. The compliance officer noted employees working on unit roofs in the F-4 area and on a shingle storage platform in the same area who were exposed to a falling hazard without appropriate protection.

3. These conditions were the subject of a citation charging violations of 29 C.F.R. 1910.23(c)(1) which went uncontested by respondent. At the time of this inspection, the modular units were moved manually down the line with the sides of each unit flush to the next unit. Thus, employees working on the sides of the roofs were not exposed to a falling hazard. A follow-up inspection disclosed respondent had abated the conditions in the F-4 area by installing guardrails at the ends of the units and guardrails around the shingle storage platform.

4. As a result of a fatal accident occurring in the F-4 area, respondent's facilities were again inspected in March 1982. At the time of this inspection, the units were no longer moved manually but rather were moved mechanically. This change in production method required the use of spacer bars between the sides of the units which created openings between the units and caused a falling hazard to employees working on the sides in the F-4 area. Employees working in this area were not provided with safety belts and lanyards.

5. Employees were also noted to be working on a felt rack platform at an elevation of 8 feet 10 inches above the floor who were not protected from falls by guardrails. The same condition existed with respect to employees working on a scissor lift platform at an elevation of 6 feet 5 inches above the floor.

6. The Secretary has charged respondent with a violation of 29 C.F.R. 1910.23(c)(1) for failure to guard a metal staging platform in the roof setting area. Since this platform is temporary, it is properly characterized as a scaffold. The Secretary has not shown a violation of the scaffolding standard since the scaffold is only 6 feet 3 inches above the floor.

7. The Secretary charges respondent with an "other" than serious violation of the recordkeeping provisions found at 29 C.F.R. 1904.4 for its failure to provide a supplementary record. The record establishes that respondent did maintain all the information required by this standard and failed to provide this information due to a breakdown in communication between the compliance officer and respondent's officials.

CONCLUSIONS OF LAW

1. Respondent is an employer who has employees engaged in work affecting commerce, and the Review Commission has jurisdiction in this cause.

2. Respondent has violated the provisions of 29 C.F.R. 1910.132(a) for its failure to provide employees working on the sides of roof units in the F-4 area with safety belts and lanyards. This violation is substantially similar to the violations charged in the previous investigation and, therefore, constitutes a repeated violation.

3. The respondent has violated the provisions of 29 C.F.R. 1910.23(c)(1) by failing to guard the felt rack platform and the scissor lift platform to prevent falling hazards. These violations are substantially similar to those violations cited in the previous investigation and are, therefore, repeated.

4. The Secretary has not established a violation with respect to the unguarded metal staging platform since this is a temporary platform properly characterized as a scaffold and is in compliance with that standard.

5. The respondent has not violated 29 C.F.R. 1904.4.

ORDER

1. Repeated Citation No. 2, items 2(b) and 2(c), are affirmed as repeated violations and a penalty of $900.00 is hereby assessed.

2. Repeated Citation No. 2, item 2(d), is vacated.

3. Repeated Citation No. 2, item 3, is affirmed and a penalty of $450.00 is hereby assessed.

4. "Other" than serious Citation No. 3, item 1 is vacated.

EDWIN.SALYERS
Judge

Date: March 21 1983


FOOTNOTES:

[[1/]] Section 1910.23(C)(1) states:

1910.23 Guarding floor and wall openings and holes.

(c) Protection of open-sided floors. platforms, and runways. (1) Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) 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 toeboard wherever, beneath the open sides,
(i) Persons can pass,
(ii) There is moving machinery, or
(iii) There, is equipment with which falling create a hazard

[[2/]] Section 1910.132(a) states that:

1910.132 General requirements.

(a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

[[3/]] Mershon testified consistently and repeatedly that his concern was directed to the lack of fall protection for employees working on the roofs of the units. There is no evidence that he was even aware of a fall hazard while employees worked on the adjacent felt rack platform.

[[4/]] Indeed, shortly after the fatality that led to this proceeding, Cardinal abated the hazard by requiring its employees to use safety belts and lanyards attached to cables in the ceiling of the plant.

[[5/]] Previous cases have held that the platform guarding standard at section 1910.23(c)(1) does not apply to a product being manufactured. General Electric Co., 81 OSHRC 97/D6, 10 BNA OSHC 1144, 1981 CCH OSHD 25,736 (No. 76-2879, 1981); Rexco Industries, Inc., 80 OSHRC 32/A2, 8 BNA OSHC 1227, 1980 CCH OSHD 24,376 (No. 15350, 1980) The case now before us illustrates the impracticality of placing guardrails on a manufactured unit during the production process.

[[6/]] Chairman Buckley notes that he is not convinced of the correctness of the Commission's decision in Bethlehem Steel. In his view, section 1910.132(a) was not intended to protect against falls. Nor can be read to require the use of safety belts and lanyards. See Bethlehem Steel (concurring opinion).

[[7/]] In Diebold, Inc. v. Marshall, supra, the U.S. Court of Appeals for the Sixth Circuit found that the employer was in violation of an OSHA standard that required point of operation guarding on its press brakes. However, the court also found that a combination of factors had deprived the employer "of a constitutionally sufficient warning" of the conduct that was required of it under the standard. 585 F.2d at 1336. Under these circumstances, the court concluded, it would be inappropriate to penalize the employer for its past noncompliance with the standard, but proper to require compliance with the standard in the future. As a general rule, Commissioner Arey agrees with the Sixth Circuit's "prospective enforcement" approach. Here, however, as indicated in note 4, supra, the violation had already been abated by the time of the hearing. There is therefore no need to enter an abatement order in this case. Accordingly, Commissioner Arey joins Chairman Buckley in vacating item 3 of citation 2.

[[8/]] Chairman Buckley agrees to apply Potlatch here and find that Cardinal "repeatedly" violated the Act. However, it is his view that the Potlatch test's interpretation of "repeatedly" to mean more than once appears to ignore the plain meaning of "repeatedly" and should be reexamined. John R. Jurgensen Co., 86 OSHRC 33/A3, 12 BNA OSHC 1889 (No. 83-1224, 1986) (concurring opinion); see New England Container Co., 84 OSHRC 55/A2, 12 BNA OSHC 1368, 1984-95 CCH OSHD 27,148 (No. 78-1539). He believes that Congress cannot have intended to give "repeatedly" an interpretation so different from its common meaning of often repeated or occurring again and again. Jurgensen, 12 BNA OSHC at 1896. Nevertheless, he will not reexamine Potlatch in this case because Cardinal has not asked for such a reexamination and because the Sixth Circuit, to which this case is appealable, has followed Potlatch. J.L. Foti Construction Co. v. OSHRC, 687 F.2d

[[9/]] At the time of the 1982 inspection, section 1910.28 provided, in pertinent part:

1910.29 Safety requirements for scaffolding.

(a) General requirements for all scaffolds.
* * *
(3) Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground ....

[[1]] Section 1910.12 provides in Part:

1910.12 Construction work.

(a) Standards. The standards prescribed in part 1926 of this chapter are adopted as occupational safety and health standards under section 6 of the Act and shall apply, according to the provisions thereof, to every employment and place of employment of every employee engaged in construction work.

(b) Definition. For purposes of this section, "construction work" means work for construction, alteration, and/or repair, including painting and decorating. See discussion of these terms in 1926.13 of this title.

[[2]] Paragraphs (b) of both regulations are nearly identical. Section 1926.1051(b) states:

1926.1051 Effective dates (specific).

(b)(1) To the extent that the standards in this part [1926] apply to light residential construction, their application is delayed until September 27, 1971, whereupon the standards shall apply to contracts subject to the Contract Work Hours and Safety Standards Act which are advertised on or after that date and to such contracts which may be negotiated when the negotiations commence on or after that date.

(2) For the purpose of this paragraph, the term "light residential construction" is limited to the construction" of homes and apartments which do not exceed three stories in height, and which do not have an elevator.

[[3]] We are unconvinced by the Secretary's other arguments. OMB's Standard Industrial Classification Manual was never intended to interpret sect 1910.12 "but was developed for use . . . for purposes of facilitating the collection, tabulation, presentation and analysis of data." Id. at p. 9. Although the Commission discussed whether violations of the general industry standards occurred in Fleetwood Homes and Prowler Travel Trailers, preemption by the construction industry standards was not raised in those cases.

[[4]]Our conclusion in consistent with those drawn by OSHA when it examined the question of what standards in Part 1910 are preempted by those in Part 1926. OSHA has published an "Identification of General Industry Safety and Health Standards (29 C.F.R. Part 1910) Applicable to Construction Work," 44 Fed. Reg. 8577 (1979), listing the standards in Part 1910 that apply to construction work. Although OSHA identified sections 1910.23(b)(5) and 1910.132(b) and (c) as applicable, it did not list sections 1910.23(c)(1) or 1910.132(a), the standards cited here. We intimate no opinion, of course, on whether OSHA's statements on the applicability of other general industry standards are correct.

[[1]]The Part 1926 counterparts of these standards are Subpart I, "Tools--Hand and Power," 29 C.F.R. 1926.300-05, including section 1926.304, "Woodworking tools"; Subpart J, "Welding and Cutting"; and Subpart K, "Electrical," specifically sections 1926.400, "General requirements," 1926.401, "Grounding and bonding," and 1926.402, "Equipment installation and maintenance."

[[2]]The performance of carpentry work demonstrated by the fact that Cardinal's employees cut lumber and other materials, which they use in assembling floors, walls, and roofs; the employees also install doors and windows. The only testimony pertaining to plumbing work is the compliance officer's mention of bathroom facilities and kitchens and the only actual reference to electrical wiring appears in a statement by Cardinal's counsel at the hearing that Cardinal installs electrical circuits in each modular unit. Since the units are intended for final assembly at the site where they will be used, it would appear that the units leave Cardinal's facility with all interior wiring and plumbing completed.

Part 1910 contains no standards expressly governing work on roofs. Compare section 1926.451(u)(3) (sloped roofs), section 1926.500(b) (roof openings) and section 1926.500(g) (low-pitched roofs). However, it is apparent on the record here that the assembly of the roof portion of the modules involves nothing more than basic carpentry and labor skills and, with the possible exception of felt and shingles, materials similar to those used in fabricating other portions of the module structure. Therefore, the fact that the modules include a finished roof surface is not in itself a distinction sufficient to justify applying the construction standards rather than general industry standards to Cardinal's operation.

[[3]]The majority correctly notes that jobs which in themselves do not constitute construction work may nevertheless justify application of the construction standards if they are directly and integrally related to the performance of construction work. See United Geophysical Corp., 81 OSHRC 77/D6, 9 BNA OSHC 2117, 2121, 1981 CCH OSHD 25,579, p. 31,905 (No. 78-6255, 1981), aff'd without published opinion, 683 F.2d 415 (5th. Cir. 1982). However, the converse is also true. Jobs that could be regarded as construction type work are not controlled by the construction standards when they are performed solely as part of a non-construction operation. Royal Logging Co., 79 OSHRC 84/A2, 7 BNA OSHC 1744, 1979 CCH OSHD 23,914 (No. 15169, 1979). aff'd, 645 F.2d 822 (9th Cir. 1981).

[[4]] The majority concludes that the type of work performed by Cardinal falls within the definition of "light residential construction" set forth in sections 1910.17(b) and 1926.1051(b). However, the two provisions pertaining to "light residential construction" on which the majority relies simply refer to "construction" without defining that term or otherwise giving an indication of its meaning in the context in which it is used. It is even questionable whether the modular units Cardinal produces can appropriately be characterized as "light residential" as the majority implies. Cardinal's plant engineer testified that the units it builds are primarily used in apartments and motels and occasionally houses. See the discussion in the text infra. Motels would not appear to constitute a "light residential" form of housing as that phrase is defined at sections 1910.17(b)(2) and 1926.1051(b)(2).

[[5]]The majority's reference to construction work performed within pre-existing structures is inapposite. The question in this case is not whether certain construction work may be performed indoors or inside a completed structure but rather whether a facility that merely assembles components of a housing unit without any connection to the site of their eventual erection and use is a construction workplace. Arguably, Cardinal would be engaged in construction work if it were to make some alteration or repair of its plant facility. See Rochester Prod. Div., General Motors Corp., 85 OSHRC ______, 12 BNA OSHC 1324, 1985 CCH OSHD 27,257 (No. 80-5439, 1985) (construction standards cited for trench dug in the floor of a manufacturing plant for the installation of a trough to collect oil from machinery). That, however, is not the issue before us here.

[[6]] For example, Subpart 0 (sections 1926.600-.606), entitled "Motor Vehicles, Mechanized Equipment, and Marine Operations," imposes requirements for vehicles and other equipment used in site preparation, such as dump trucks (section 1926.601), earthmoving and other excavation equipment (section 1926.602), and pile driving equipment (section 1926.603). Other standards involving site preparation include the provisions at section 1926-602(a)(3) pertaining to access roadways and grades; section 1926.604 governing site clearing; and Subpart P, entitled "Excavations, Trenching, and Shoring," which imposes requirements for sloping and shoring and protecting employees from other hazards present at trenches and excavations. The erection of structures on site is governed by such standards as those in Subpart Q, "Concrete, Concrete Forms, and Shoring"; Subpart R, "Steel Erection"; and Subpart S. "Tunnels and Shafts, Caissons, Cofferdams, and Compressed Air."

[[7]] See note 1 of the majority opinion. Although the Secretary did not adopt section 1926.13 under the OSH Act, he expressly referred to section 1926.13 for the definition of the term "construction," and plainly considered that regulation relevant for the purpose of determining what constitutes construction work under the OSH Act. The Secretary declined to adopt section 1926.13 and other rules interpreting the Construction Safety Act because they included a restriction on the class of employers subject to the Construction Safety Act. Since the OSH Act applies to all employees engaged in a business affecting interstate commerce, the Secretary concluded that the limitation of the Construction Safety Act to "contractors and subcontractors" would be inappropriate under the OSH Act. Thus, the Secretary stated that "the incorporation by reference of Part 1926 in 1910.12 is not intended to include references to interpretative rules having relevance to the application of the Construction Safety Act but having no relevance to the application of the Occupational Safety and Health Act." See New England Telephone & Telegraph Co.,4 BNA OSHC 1838, 1976-77 CCH OSHD 21,267 (No. 9627, 1976), rev'd on other grounds, 589 F.2d 81 (1st Cir. 1978); Bechtel Power Corp., 76 OSHRC 38/E2, 4 BNA OSHC 1005, 1975-76 CCH OSHD 20,503 (No. 5063, 1976), aff'd, 548 F.2d 249 (8th Cir. 1977).

[[8]] Other statutes relating to federally financed or assisted construction are also relevant to the issue before the Commission here. Section 1926.13(a) notes that the term "construction...used in section 107 of the [Construction Safety] Act [is] also used in section 1 of the Davis-Bacon Act (40 U.S.C. 276a), providing minimum wage protection on Federal construction contracts, and section 1 of the Miller Act (40 U.S.C 270a), providing performance and payment bond protection on Federal construction contracts." That section goes on to express the Secretary's determination that "[t]he use of the same or identical terms in these statutes which apply concurrently with section 107 of the [Construction Safety] Act have considerable precedential value in ascertaining the coverage of section 107."

Regulations for the implementation of labor standards under the Davis-Bacon Act and related statutes recognizes the same distinction between construction and manufacturing expressed in section 1926.13(c).Thus, 29 C.F.R. 5.2(i) defines the terms "building" and "work" to include "construction activity as distinguished from manufacturing, furnishing of materials, or servicing and maintenance work." Section 5.2(j) defines "construction" as work performed "on a particular building" or "at the site thereof, including "installation . . . on the site of the work of items fabricated off-site" and the "manufacturing or furnishing of materials,.articles, supplies or equipment on the site of the building or work. . . ." (emphasis added). Under section 5.2(1)(i) "site of the work" is expressly limited to "the physical place or places where the Construction called for in the contract will remain when work on it has been completed" and to "other adjacent or nearby property . . . which can reasonably be said to be included in the 'site.'" "Fabrication plants" in particular "are part of the 'site of the work' provided they are dedicated exclusively, or nearly so, to the performance of the contract or project, and are so located in proximity to the actual construction location that it would be reasonable to include them."

[[9]] Thus, employers in manufacturing industries as designated by their SIC codes are scheduled for inspection according to the injury rate for each industry having an injury rate greater than the national average. See Phoenix Forging Co., 85 OSHRC ________,12 BNA OSHC 1317, 1985 CCH OSHD 27,256 (No. 82-398, 1985). Employers in construction industries are distinguished from those in manufacturing because all construction industries have an injury rate in excess of the national average and thus qualify for inspection under the Secretary's program to concentrate inspections in the most hazardous industries.

[[1/]] The standard at 29 C.F.R. 1910.23(c)(1) states as follows:
(c) Protection of open-sided floors, platforms, and runways
(1) Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) 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 toeboard ....

[[2/]] Respondent was also issued one serious, one repeated and several "other" than serious citations which were not contested and have, therefore, became final orders of the Commission.

[[3/]] The reason for the Secretary's motion to change standards is not made clear in the record except for counsel's statement that the originally cited standard may not be "appropriate for the fact situation" (Tr. 7).

[[4/]] Hereafter, this item will be referred to as repeat Citation No. 2, item 3, as was used during the course of the hearing and in the briefs of the parties.

[[5/]] No motions were made in this regard during the hearing or thereafter.

[[6/]] Respondent took no steps to provide protection until after the fatal accident when safety cables, belts and lanyards were obtained and utilized (Tr. 226-227).

[[7/]] The scaffolding standard is found at 29 C.F.R. 1910.28(3) and provides as follows:
Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground or floor....

[[8/]] The standard at 29 C.F.R. 1904.4 provides:
In addition to the log and summary of occupational injuries and illnesses provided for under 1904.2, each employer shall have available for inspection at each establishment within 6 working days after receiving information that a recordable case has occurred, a supplementary record for each occupational injury or illness for that establishment. The record shall be completed in the detail prescribed in the instructions accompanying Occupational Safety and Health Administration form OSHA No. 101. Workmen's compensation, insurance, or other reports are acceptable alternative records if they contain the information required by Form OSHA No. 101. If no acceptable alternative record is maintained for other purposes. Form OSHA No. 101 shall be used or the necessary information shall be otherwise maintained.