H.S. HOLTZE CONSTRUCTION CO.

OSHRC Docket No. 16059

Occupational Safety and Health Review Commission

September 26, 1979

[*1]

Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

I. John Rossi, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge John A. Carlson, dated October 21, 1976, is before the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). In his decision, Judge Carlson affirmed one nonserious citation and one subitem of a serious citation. He vacated six other subitems of the serious citation. On review, the Secretary takes exception to the judge's vacation of serious subitem 1(a). Respondent asks the Commission to reverse the judge's affirmance of serious subitem 1(b). In addition, respondent contends that former Commissioner Moran's direction for review of November 12 was untimely, in that the Commission appeared to allow more than thirty days from the date of a judge's decision for a direction for review to be filed, in violation of section 12(j) n1 of the Act. Finally, respondent argues that the Commission did not comply with Rule 90(b)(1) n2 of the Commission's [*2] Rules of Procedure in that the Executive Secretary sent respondent no notice as to the date the judge's decision was docketed. For the reasons that follow, we reject respondent's contentions. We reverse the judge's vacation of Citation 2, subitem 1(a). We affirm the remainder of his decision to the extent it is consistent with this decision. n3

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n1 Section 12(j) of the Act, 29 U.S.C. 661(i), reads, in pertinent part:

The report of the hearing examiner shall become the final order of the Commission within thirty days after such report by the hearing examiner, unless within such period any Commission member has directed that such report shall be reviewed by the Commission.

n2 Commission Rule 90(b)(1), 29 CFR 2200.90(b)(1), states:

Promptly upon receipt of the Judge's report, the Executive Secretary shall docket the case and notify all parties of that fact. The date of docketing shall be the date that the Judge's report is made for purposes of section 12(j) of the Act (29 U.S.C. 661).

n3 The parties have not taken issue with those parts of the decision in which the judge affirmed nonserious Citation 1 and vacated subitems 1(c), (d), (e), (f), and (g) of serious Citation 2. In addition, there is no compelling public interest warranting Commission consideration of those citations. Accordingly, the Commission will not review those dispositions. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976); Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976). Such unreviewed dispositions are not precedent binding on the Commission. Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976).

[*3]

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Respondent contends that a direction for review is untimely if filed more than thirty days from the date of a judge's decision. Judge Carlson's decision in this case was dated October 21, 1976, the date it was docketed as received by the Commission. On October 1, 1976, the judge had sent his decision to the Commission, where it was received by the Central Review Section and retained there until October 21, when the decision was docketed and made available to the Commission members for their consideration. The issue raised by respondent was addressed by the Commission in Robert W. Setterlin & Sons Company, 76 OSAHRC 53/D8, 4 BNA OSHC 1214, 1975-76 CCH OSHD P20,682 (No. 7377, 1976). In that case, the Commission held that the practice of docketing a judge's decision and beginning the thirty-day review period twenty days after the case is certified to the Commission is fully consistent with the Congressional purpose of allowing a full thirty-day review period to Commission members. We adhere to our holding in Setterlin for the reasons stated in that opinion. In the present case, the judge's [*4] report was docketed on October 21, 1976. The direction for review on November 12, 1976, was timely because the direction was issued within thirty days of the docketing date.

Respondent also argues that Commission Rule 90(b)(1) n4 was not complied with because the Executive Secretary did not notify respondent as to the date the case was docketed. Respondent in its brief on review admits having received a notice, dated October 1, 1976, from the judge that his decision would be filed with the Commission on October 21, 1976, and would become a final order on November 22, 1976, unless directed for review. A copy of the judge's decision was enclosed with the notice. The judge also advised respondent that it would not receive any further communication from the Commission unless the case was directed for review. On the basis of these facts, it is clear that the notice of October 1, 1976, provided respondent with the information contemplated by the terms of Commission Rule 90(b)(1). Thus, the essence of respondent's position is that Commission Rule 90(b)(1) was not complied with because notice was provided by the judge rather than the Executive Secretary, and because notice was given [*5] before the time specified in the rule.

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n4 See footnote 2, supra.

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It is well established that generally a departure from a procedural rule that does not result in prejudice to a party will not form a basis for dismissal of a citation. As the Commission stated in Setterlin,

[t]he apparent departure from strict compliance with Rules 90 and 91 does not in any significant way affect the rights of any parties, nor does it require any additional action or inaction by them . . . .

Absent a showing of substantial prejudice, it is within the discretion of an administrative agency to relax or modify a procedural rule adopted for the orderly transaction of business (citation omitted).

supra at 53/D16, 4 BNA at 1217, CCH at p. 24,773. The Commission's method of implementing the notice provisions of Rule 90(b)(1) satisfies the purpose of the rule. Here, respondent has failed to allege or show any prejudice resulting from the Commission's procedure. Accordingly, we hold that the administrative practice of having [*6] the judge notify the parties of the filing date of his decision is a proper procedure for meeting the notice requirements of Commission Rule 90(b)(1). n5

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n5 Respondent also argues that the notice of review sent by the Executive Secretary of the Commission to the parties on November 23, 1976, was untimely in that it was not sent within the 30-day review period. Respondent misreads the Act and the Commission's Rules of Procedure. Neither the Act nor the Rules sets a time limit for the Commission to notify the parties that a case has been directed for review. Because a Commissioner has until the end of the 30th day in which to direct review, and in order to allow the Commissioners the full statutory period in which to act, the Executive Secretary notifies the parties after the 30-day period has run. Here, the 30th day fell on a Saturday, thus the three Commissioners each could have directed review until the end of business on Monday, November 22, 1976. Therefore, respondent's argument is rejected.

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Citation 2, subitem [*7] 1(a), alleges a serious violation of the Act for failure to comply with the standard published at 29 CFR 1926.500(d)(1). n6 Respondent was engaged in the construction of an apartment complex in North Platte, Nebraska. At the time of the inspection, three of respondent's employees were working on the third floor of a building measuring 171 feet by 48 feet. The third floor was 19 and one-half feet above ground and did not have perimeter guarding. The employees were assembling exterior and interior wall sections from pre-cut lumber, using pneumatic hammers. Celotex and plywood sheeting were stapled to studding to form exterior wall sections, leaving only window and patio door openings. The exterior wall sections then were pushed to the edge of the floor, raised into place, and nailed down. Two by four studs, angled from the exterior wall sections to the interior of the floor, were used to temporarily brace the walls until enough interior walls were erected to permanently secure the exterior wall sections. When using the "stick-built" construction technique employed here, it was respondent's practice to fully enclose each floor with exterior walls, secured by enough interior [*8] walls for adequate bracing, before doing any further interior work.

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n6 The standard provides as follows:

1926.500 Guardrails, handrails, and covers.

* * *

(d) Guarding of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(1)(i) of this section, on all open sides, . . .

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The employees worked at the unguarded edge when they raised the exterior walls, and at least one of the men sometimes worked within four feet of the perimeter during the assembly process. The employees also worked near the edge when unloading pre-cut lumber that had been raised to the third floor with a forklift. Based on these facts, the judge found that respondent's employees were exposed to the hazard of falling.

Respondent asserts that it was not in violation of the Act on three grounds. First, respondent contends that installing a guardrail system would have created [*9] a greater hazard than working without one. Second, respondent argues that guardrails would have made the unloading of materials and the installation of the walls impossible. Third, respondent asserts that the wall sections were an "equivalent" means of protection once they were raised and that it was under no obligation to comply with the standard during the process of abatement. We reject respondent's arguments.

With respect to its first defense, respondent offered testimony that its three employees could assemble and raise walls along 171 feet of the open floor edge in two hours and that it would take the employees two and one-half to four hours to assemble and raise guardrails and another one and one-half hours to take them down. n7 Based on these facts, respondent argued, and the judge found, that compliance with the cited standard would have exposed respondent's employees to a greater hazard than noncompliance because they would be required to spend more time at the edge of the floor putting up guardrails than they would raising walls.

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n7 Respondent introduced no evidence concerning the aggregate amount of time its employees spent at the edge of the floor unloading materials from the forklift.

[*10]

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The Commission has held that to establish a greater hazard defense, a respondent must prove that (1) compliance with the cited standard will diminish rather than enhance employee safety, (2) alternative means of protecting the employees are unavailable, or if available, are used, and (3) a variance application under 29 U.S.C. 655(d) is inappropriate. M.J. Lee Construction Company,    OSAHRC   , 7 BNA OSHC 1140, 1979 CCH OSHD P23,330 (No. 15094, 1979); Hughes Brothers, Inc., 78 OSAHRC 65/A2, 6 BNA OSHC 1830, 1978 CCH OSHD P22,909 (No. 12523, 1978).

The evidence does not establish that erecting guardrails in this instance would be less safe than working without them. First, in comparing the relative amounts of time its employees would spend at the unguarded edge in erecting guardrails or working without them, respondent ignored the exposure period prior to the wall assembly. Second, the employees did not necessarily have to be exposed to a fall during the placement of the guardrails.

Respondent introduced no evidence that guardrails could not have been erected while the employees either [*11] were working from scaffolds or were wearing safety belts that were tied off. The compliance officer testified that he assumed the employees could have used lifelines while working near the edge of the floor. This testimony was unrebutted, and although it was given during cross-examination as to possible means of protection while raising walls, there is nothing in the record to indicate that it would not apply equally to other work at the edge, such as erecting guardrails. Respondent's area representative testified at one point that a lifeline system would be "very impractical." He explained that if the lifelines were secured to a single stanchion on the roof, employees working far from that point might not be protected. This is because, if the employee is further from the stanchion than he is from the ground, he might fall to the ground in an arc without being stopped by the lifeline. This witness also said that such a system would require employees to spend too much time adjusting the length of the lifelines. He later admitted that stanchions probably could have been used at various points along the roof close enough to the workers to protect them at all times from falling to [*12] the ground. Thus, respondent has not shown that a lifeline system could not have been used or that it would necessarily involve inordinate amounts of time making adjustments. Accordingly, the record does not establish that erecting guardrails would have diminished employee safety simply because the employees would have spent additional time at the edge of the floor. There is also no evidence that alternative means of protection were unavailable, or that an application for a variance would have been inappropriate. Accordingly, respondent has not met its burden of proof as to this affirmative defense.

Respondent's second contention is that guardrails would have made the unloading of lumber and the erection of walls impossible. With respect to the claim that guardrails would have made impossible the unloading of the forklift because of the varying sizes of lumber, respondent offered no explanation as to why the entire edge had to remain unguarded instead of just the area near the forklift. In addition, respondent's witnesses admitted that either a barricade or an adjustable guardrail could have been used during the unloading. Respondent's area representative testified that respondent [*13] could not have raised the walls with guardrails in place because the rails had to be strengthened by bracing from the interior of the floor in order to withstand the amount of pressure from the walls against them. Such bracing, therefore, would have had to be removed before the walls could be lifted into place. The compliance officer suggested that guardrail supports could be secured to the outside walls of the second story of the building, so as not to interfere with the raising of the third floor walls. Respondent's representative, however, testified that respondent had tried that method of abatement and that the force exerted by walls popped the nails out of the guardrail supports as soon as a wall was raised against the guardrail.

Even assuming that guardrails without braces would "pop out" when the walls were raised, the rails still would have protected the employees during the construction of the walls when employees came within four feet of the edge. Furthermore, the Commission has held that to establish the defense of impossibility, whether of compliance or of performance, an employer must prove that compliance with the requirements of the cited standard was either functionally [*14] impossible or would preclude performance of required work, and that alternative means of employee protection were unavailable, or if available, were used. M.J. Lee Construction Co., supra; Hughes Brothers, Inc., supra. Again, respondent has not shown that it could not have used alternative means, such as safety belts and lifelines, to protect its employees during both the building of the walls and the unloading of materials on the third floor. The affirmative defense has not been met.

Respondent argues, and the judge found, that the walls, once erected, provided protection equivalent to guardrails. This, however, is not an adequate defense to the citation, which covers the period prior to the raising of the walls when no perimeter protection was provided.

Respondent also urges that employees engaged in the process of complying with the standard could not be in violation of it. This argument is rejected. The Commission has held that the terms of a standard must be met, where possible, during the abatement process. Floyd S. Pike Electrical Contractors, Inc., 77 OSAHRC 26/B11, 5 BNA OSHC 1088, 1977-78 CCH OSHD P21,584 (No. 12398, 1977), aff'd, 576 F.2d [*15] 72 (5th Cir. 1978). The record here establishes that abatement could have been accomplished while other means of fall protection, such as belts and lifelines, were used. To the extent possible, the same protection that would be afforded by strict compliance with the standard must be afforded by the alternative means of protection. Cf. S & H Riggers and Erectors, Inc.,    OSAHRC   , 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979), appeal docketed, No. 79-2358 (5th Cir. June 7, 1979) (using an unguarded platform to protect against a fall hazard is not an adequate method of fall protection). Any other interpretation would be inconsistent with the overall purpose of the Act. n8 We are not suggesting that safety belts are the "equivalent" of a standard railing within the meaning of 1926.500(d)(1). We already have held that they are not. Warnel Corporation, 76 OSAHRC 41/C5, 4 BNA OSHC 1034, 1975-76 CCH OSHD P20,576 (No. 4537, 1976). The issue here is not whether belts are equivalent to guardrails, but whether belts offer a means of protecting employees in the process of complying with the standard when the terms of the standard itself cannot be met. [*16] Cf. Kelly Construction Services, Inc., 76 OSAHRC 89/F3, 4 BNA OSHC 1491, 1976-77 CCH OSHD P20,925 (No. 7102, 1976) (an employer must provide such protection as is reasonable even if it is impossible to comply with all of the requirements of a standard). We hold that an employer must use available means of protection to safeguard its employees during an abatement process. Respondent has failed to do so.

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n8 Section 2(b) of the Act, 29 U.S.C. 651(b).

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Citation 2, subitem 1(b) alleges noncompliance with the same standard for failure to guard adequately four rectangular stairwell openings, each of which was cut out of the perimeter of the third floor. Respondent had installed a top rail around each opening, but there were midrails on only one of the three sides of each opening, and no toeboards. At the time of the inspection, the railings were being replaced by interior wall sections consisting of open 2 X 4-inch studding with 16-inch centers. The judge found that the employees were exposed to a fall hazard of [*17] 19 and one-half feet in that the guardrails did not meet the requirements of the standard and the wall sections did not afford protection equivalent to a standard railing.

Respondent makes several arguments with respect to this finding. Respondent first notes that the cited standard, as it appeared in the Code of Federal Regulations at the time of the inspection, contained an incorrect reference to 29 CFR 1926.500(f)(i) rather than (f)(1), which defines a standard railing. n9 Respondent asserts that the typographical error n10 rendered the standard so ambiguous that respondent did not know how to comply. n11 In support of its contention, respondent notes that there are five subsections in 1926.500(f) that include a paragraph lettered (i). Respondent apparently is asserting that because of the confusion and ambiguity created by the typographical error, it did not know what a standard railing was. An employer engaged in construction and covered by the Act is responsible for knowing and observing the requirements of every standard in 29 CFR Part 1926 applicable to the type of construction activity in which the employer is engaged. n12 Accordingly, respondent in this case was [*18] accountable for being familiar with the requirements of Subpart M of Part 1926, n13 and therefore should have known what the specifications of a standard railing are as described in 1926.500(f)(1). n14

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n9 Respondent has noted this typographical error throughout these proceedings, making several assertions in its post-trial brief that are not repeated specifically in its brief on review. Respondent's review brief is vague as to the significance of the misprint. In order to give meaning to its argument on review, we have referred to respondent's post-trial brief in discussing this issue.

n10 Respondent acknowledges in its post-trial brief that the error was recognized by the Secretary and corrected by publication in the Federal Register on June 3, 1974. The correction was not made in the 1974 and 1975 Code of Federal Regulations, however. We conclude, infra, that respondent should have known of the specifications for a standard guardrail from reading all of the guarding requirements in 1926.500. For that reason, we do not reach the issue of whether respondent had constructive notice of the June 3, 1974, amendment to 1926.500(d)(1) notwithstanding the subsequent publication in the 1975 Code of Federal Regulations of the uncorrected standard.

It is noted that the 1976 and 1977 Code of Federal Regulations contain a different error in that the standard at 1926.500(d)(1) now contains a reference to "paragraph (f)(1)(i)" rather than "paragraph (f)(1)" as the June 3, 1974, correction reads.

n11 Respondent raises this argument only as to subitem 1(b) of Citation 2, although subitem 1(a), discussed supra, also was issued for an alleged violation of 1926.500(d)(1).

n12 See section 5(a)(2) of the Act, 29 U.S.C. 654(a)(2).

n13 Subpart M concerns floor and wall openings and stairways.

n14 The standard provides, in pertinent part:

1926.500 Guardrails, handrails, and covers.

* * *

(f) Standard specifications. (1) A standard railing shall consist of top rail, intermediate rail, toeboard, and posts, . . . .

[*19]

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We also reject respondent's specific assertion that it could not have known how to guard the stairwell openings because there are five "(i)" subsections in 1926.500(f). Of the five subsections, three clearly are inapplicable to the cited condition in that they refer to handrails mounted on a wall, floor opening covers, and wall opening protection. n15 The two remaining subsections, both of which respondent was required to observe in guarding the cited stairwell openings, detail the specifications for a toprail, intermediate rail, and toeboard. n16

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n15 29 CFR 1926.500(f)(4)(i), (f)(5)(i), and (f)(7)(i), respectively.

n16 29 CFR 1926.500(f)(1)(i) and (f)(3)(i), respectively.

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Respondent also cites the particularity requirement of section 9(a) of the Act n17 in support of an apparent argument that the alleged ambiguity created by the misprint in the standard renders the citation void. We have held that the purpose of the particularity [*20] requirement is to put the cited employer on notice as to the nature of the alleged violation. Gannett Corporation, 4 BNA OSHC 1383, 1976-77 CCH OSHD P20,915 (No. 6352, 1976). The citation, taken as a whole, was sufficient to give respondent such notice in that it contained specific language that the four stairwell openings lacked midrails and toeboards. Midrails and toeboards also are listed as essential parts of a standard railing as defined in 1926.500(f). In addition, respondent does not assert that it was prejudiced in defending its case before the Commission, and the record does not support a finding of prejudice. We therefore affirm the judge's denial of respondent's motion to dismiss this item.

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n17 29 U.S.C. 658(a).

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Respondent also argues that after the erection of the wall section frames there was no open-sided floor and therefore no fall hazard. We do not reach this issue. The citation covers the time before the raising of the walls as well as the later period, and the evidence supports the [*21] judge's finding that the requirements of the standard were not met by the existing railing during the period before the wall section frames were raised.

Finally, n18 respondent asserts that 1926.500(d)(1) does not apply to stairwell openings, analogizing to the decisions of several Courts of Appeal and the Commission holding that the standard does not apply to flat roofs. E.g., Diamond Roofing Co., Inc. v. OSHRC and Usery, 528 F.2d 645 (5th Cir. 1976); Central City Roofing Co., Inc., 76 OSAHRC 61/A2, 4 BNA OSHC 1286, 1976-77 CCH OSHD P20,761 (No. 8173, 1976). We reject respondent's argument. The Court in Diamond rested its decision principally on two grounds. First, the Court reasoned that a standard must give an employer fair warning of the conduct it requires, and that a regulation should be construed to give effect to the plain meaning of its words. To interpret the word "stairway" as not including a "stairwell" before the stairs are constructed and an "entrance" is established would result in a distortion of the plain meaning of the word. Second, the Court applied the statutory rule of construction that where a term is carefully employed in one place and [*22] excluded in another, it should not be implied where excluded. Both standards at 1926.500(b)(1) and (d)(1) specifically mention stairways in exempting stairway entrances from the guarding requirement. Thus, we are not violating any rule of construction in holding that the cited standard covers stairwells.

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n18 Respondent argued before the judge that the citation should be dismissed because two other standards, 29 CFR 1926.500(b)(1) and (e)(1), are more specific than the cited standard. This argument has apparently been abandoned on review. Even so, we note that when there is a general standard and a specific standard applicable to the same condition, the specific standard prevails. John's Roofing & Sheet Metal Co., 78 OSAHRC 57/E8, 6 BNA OSHC 1792, 1978 CCH OSHD P22,857 (No. 76-1140, 1978). In this case, however, there is no more specific standard. We find as to 1926.500(b)(1) that the stairwells under the circumstances could fairly be described as presenting either open-sided floors or floor openings. Thus, although 1926.500(b)(1) may be as appropriate as the cited standard, it is not more appropriate and need not have been cited in lieu of 1926.500(d)(1). Both standards address the same hazard and both prescribe the same abatement method, although a cover can be used instead of a guardrail under 1926.500(b)(1). The judge noted correctly that 1926.500(e)(1) applies only to railings on stairs themselves and not to floor edges.

[*23]

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A $550 total penalty was proposed for all seven subitems of serious Citation 2. Taking into account the total lack of protection on the third floor perimeter, the length of exposure, the injury that could be received from a fall of 19 and one-half feet, and the number of employees exposed, the gravity of the violation at Citation 2, subitem 1(a) is high. Having considered that factor and the other penalty assessment criteria set forth at section 17(j) of the Act, n19 we conclude that a $250 penalty is appropriate. With respect to the stairwell citation, Judge Carlson assessed a $100 penalty, finding that the gravity of the violation was relatively low because of the partial protection afforded by the toprails. We affirm the judge's assessment of a $100 penalty.

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n19 29 U.S.C. 666(i).

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Accordingly, it is ORDERED that subitems 1(a) and 1(b) of the serious citation for failure to comply with the standard at 29 CFR 1926.500(d)(1) are [*24] affirmed, and that penalties in the amounts of $250 and $100, respectively, are assessed.

DISSENTBY: BARNAKO (In Part)

DISSENT:

BARNAKO, Commissioner, dissenting in part:

In this case the majority requires the H.S. Holtze Construction Company to build a guardrail along the 171-foot edge of the third floor of an apartment building under construction to protect from fall hazards three employees erecting an exterior wall, despite the following factors: 1) The wall will take less time to build than the time required to construct and take down the guardrail, and, when erected, will be equivalent to a guardrail; 2) the employees who put up and disassemble the guardrail also will be exposed to fall hazards from which they, in turn, must be protected either by wearing safety belts for which tie-off points must be devised or by working from scaffolds that will have to be erected and equipped with guardrails; 3) finally, once erected, the guardrail along the floor edge will provide meager protection, since it cannot be braced from the third floor interior without preventing construction of the wall and, lacking such bracing, will be able to withstand little outward force. I find the result reached by the majority [*25] entirely unreasonable and I decline to follow it. n1

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n1 My dissent concerns only the disposition of the violation alleged in citation 2, subitem 1(a). I concur in my colleagues' disposition of the issues not encompassed in this subitem.

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Holtze was cited for violating 29 C.F.R. 1926.500(d)(1), n2 by failing to provide a guardrail along the edge of the open-sided floor 19 1/2 feet above the adjacent ground. The only work Holtze's three employees were performing on that floor at the time was building the exterior wall and certain portions of interior walls which would support the exterior. Holtze had just completed construction of the third floor decking the previous day. Holtze's policy was then to construct the outside walls before going on to complete other work on the floor.

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n2 The text of this standard is set out in footnote 6 of the majority opinion.

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Construction of the outside wall was very rapid because of the "stick-built" construction method Holtze employed. Lumber and sheeting were pre-cut and pre-marked on the ground and sent to the third floor on a fork lift. Employees on the floor unloaded the fork lift, laid out the materials and assembled a section of the wall on its side, using pneumatic "nailers." During this process they came no closer than four feet to the floor edge except when unloading materials from the fork lift. Once assembled, a wall section was slid to the floor edge and lifted into place, where it was nailed down and braced. This process continued, section by section, until the entire outside wall was erected.

At trial Holtze defended against the citation by showing, in essence, the futility of providing the guardrail sought by the Secretary. Its officials testified that the guardrail would have to be dismantled before the exterior wall could be put in place because the guardrail would occupy the location where the wall was to go. In response to the compliance officer's testimony that the guardrail could be constructed outside the floor edge by securing it only to the exterior of the second [*27] story wall, one of Holtze's officials testified that Holtze had tested this method of guardrail construction and found it inadequate; unless the guardrail was braced to the third floor interior, it could not bear much outward force and would give way when struck. n3 However, if such bracing were provided, it would block erection of the wall.

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n3 The majority states that as soon as a wall was raised against the guardrail, it caused the nails to "pop out" of the guardrail supports. The testimony offered by Holtze, however, was that the guardrail could not withstand any force, not just the pressure of the adjacent wall.

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Holtze's officials also testified that employees would be exposed to the fall hazard while building and dismantling the guardrail and this task would take at least as long as construction of the wall itself. While the entire wall could be constructed in only two hours, it was estimated that it would take at least two-and-a-half hours to put up the guardrail and another hour and a half to remove it. [*28] Holtze's officials contended, and Judge Carlson found, that the exterior wall sections were the equivalent of a standard guardrail.

While the judge vacated the item of the citation concerning the guardrail, the majority reverses and affirms the item. In rejecting Holtze's defenses, the majority would require Holtze to first have its employees assemble scaffolds or erect stanchions and construct a guardrail along the third floor edge while standing on the scaffolds or while wearing safety belts tied off to the stanchions. n4 The majority would have the guardrail itself be fastened only to the exterior second story wall so as not to block construction of the third floor wall. With the guardrail in place the majority would then permit the employees to go ahead and build the third floor wall. When the wall is completed, the guardrail would have to be dismantled -- presumably by employees working from scaffolds, since it appears that the exterior wall would prevent the guardrail from being reached by employees on the third floor.

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n4 The majority states that stanchions could be situated at various locations on the roof. However, both the testimony and the photographic exhibits make clear that at the time the alleged violation occurred, construction of the building's roof had not even begun and no roof existed.

[*29]

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I do not agree with the majority that Holtze must engage in these activities. I agree that an employer who is in the process of bringing its workplace into compliance with a standard may not needlessly expose its employees to the very hazard against which the standard is intended to protect. Floyd S. Pike Electrical Contractor, Inc., 77 OSAHRC 26/B11, 5 BNA OSHC 1088, 1977-78 CCH OSHD P21,584 (No. 12398, 1977), aff'd, 576 F.2d 72 (5th Cir. 1978). However, the objectives of the Act must be reasonably interpreted and some demarcation must be drawn between that which is genuinely aimed at the promotion of safety and health and that which, while directed at such aims, is so imprudent as to be unreasonable.

In holding that Holtze must erect a guardrail on the third level, the majority is requiring the employer to do, in effect, the same work twice. Two structures must be erected, each of which will serve the purpose of protecting employees against falls. Moreover, the first of these structures to be erected, a guardrail, will only serve to protect employees while they build the second structure, [*30] a wall. n5 Once the wall is completed, the guardrail will not be needed since the wall will protect employees engaged in further work on the third level against falls. The requirement that an employee build one guardrail to protect employees who are themselves engaged in building a structure which will protect against falls is not reasonable, particularly when viewed in light of the following considerations.

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n5 The majority states that guardrails will also protect Holtze's employees who were working on the third level prior to wall assembly. However, prior to assembling the wall, Holtze was engaged in building the floor for the third level. The standard it is charged with violating, 29 C.F.R. 1926.500(d)(1), only requires guarding of open-sided floors, and the Secretary did not allege nor attempt to establish that during construction of the floor a guardrail should have been utilized. Indeed, even assuming the standard applies before a floor is in place, there is no evidence from which it can be determined that it is possible to erect a guardrail in such a situation.

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The proposed means of providing temporary protection -- the guardrail fastened to the second floor exterior wall -- would be relatively difficult and time consuming to install; it would take at least as long to install as the activity for which it is intended to afford protection -- construction of the wall. Moreover, the wall construction itself takes a relatively short period of time; thus, employee exposure to the fall hazard is for a relatively brief period.

In addition, the employees who erect the guardrail also will be exposed to a fall hazard. For this purpose the majority would have Holtze's employees use safety belts and lifelines or work from scaffolds. However, it would be necessary to assemble the scaffolds or erect stanchions to which the safety belts may be tied. Performance of these activities, in turn, would expose employees to further fall hazards, for which further protection, such as safety nets, logically is necessary. Since each abatement activity necessitates the further furnishing of protective devices, an endless spiral of tasks results. Thus, providing the temporary means of protection [*32] becomes a task quite disproportionate to the work activity it is ultimately intended to protect.

Finally, the proposed protection itself -- the guardrail fastened to the second story wall -- would not be an effective means of guarding employees from the fall hazard, since it is likely to give way when struck with much force. Indeed, the presence of the guardrail may well lull the employees into a false sense of security, as it may appear to be a more effective barrier than it actually is.

Based on the relatively brief period of exposure of the employees who are erecting the wall, the disproportionate amount of time it would take to provide the temporary protection, the fact that other means would have to be devised and provided to protect the employees installing the temporary protection, and the ineffectiveness of the guardrail in providing substantial protection for the employees, I would find that Holtze did not violate 29 C.F.R. 1926.500(d)(1) by failing to provide a guardrail to protect its employees who were in the process of erecting a wall that was the equivalent of a guardrail. On this basis, I would affirm the decision of Judge Carlson and vacate this item of the citation.