NATIONAL INDUSTRIAL CONSTRUCTORS, INC.  

OSHRC Docket No. 76-4507

Occupational Safety and Health Review Commission

October 22, 1981

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Before: CLEARY and COTTINE, Commissioners. *

* Chairman Rowland took no part in the decision of this case.   Although a new Commissioner possesses the legal authority to participate in pending cases, participation is discretionary and is not required for the agency to take official action.   Perini Corp., 78 OSAHRC 43/C5, 6 BNA OSHC 1609, 1611, 1978 CCH OSHD P22,772 at p. 27,494 (No. 13029, 1978) (Commissioner Cottine's separate opinion).   See §   12(f) of the Act, 29 U.S.C. §   551(e).   Commissioners Cleary and Cottine reached agreement on the disposition of this case prior to the assumption of office by Chairman Rowland.   Participation by Chairman Rowland would therefore have no effect on the outcome of the case and would delay the issuance of the decision.   Accordingly, in the interest of efficient decision-making, Chairman Rowland elects not to participate in this case.

COUNSEL:

Office of the Solicitor, USDOL

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

Martha C. Perin, for the employer

J. Taylor Greer, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge John J. Morris is before the Commission for review under section [*2]   12(j), 29 U.S.C. §   661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   The Secretary of Labor ("the Secretary") issued to Respondent, National Industrial Constructors, Inc. ("NIC"), four citations for serious violations of the Act and one citation for other than serious violations.   NIC contested these citations and the judge ruled on the items in contest.   Both the Secretary and NIC filed petitions for discretionary review of differing aspects of the judge's decision.   Commissioner Cleary directed review on all of the issues raised by those petitions.   Issues raised by the Secretary's petition include:

1) Whether the judge erred in vacating the citations alleging serious violations of the Act for failure to comply with the standards at 29 CFR § §   1926.105(a) (or in the alternative 1926.750(b)(1)(ii)), 1926.500(b)(1), and 1926.750(b)(1)(iii)?

2) Whether the judge erred in vacating the citations alleging nonserious violations of the Act for failure to comply with the standards at 29 CFR § §   1926.303(b) and 1926.500(f)(1)(iv)?

3) Whether the judge erred in affirming Citation 5, items 10a and b, alleging a failure to comply with the standard [*3]   at 29 CFR §   1926.500(b)(1), as a de minimis violation?

NIC's petition raised the following issues:

1) Whether the judge erred in affirming the citations alleging serious violations of the Act for failure to comply with the standards at 29 CFR § §   1926.104(b), 1926.450(a)(1), 1926.500(b)(2), 1926.500(d)(2), and 1926.652(b)?

2) Whether the judge erred in affirming the citations alleging nonserious violations of the Act for failure to comply with the standards at 29 CFR § §   1926.451(e)(4), 1926.500(b)(1), 1926.303(b), 1926.404(b), 1926.450(a)(5), 1926.550(a)(14)(i), and 1926.602(a)(9)(i)?

In addition to its challenges on the merits, NIC also asked the Commission to determine whether the judge erred in refusing to dismiss the citations and complaint for the Secretary's alleged failure to issue them with "reasonable promptness? as required by section 9(a) of the Act, 29 U.S.C. §   658(a). n1

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n1 In addition, NIC contends that the judge erred in failing to find that (1) the Act is unconstitutional, and (2) the construction standards at 29 C.F.R Part 1926 were invalidly promulgated.   We reject these arguments.   NIC contends that §   8(a) of the Act, 29 U.S.C. §   657(a), is unconstitutional.   Although the United States Supreme Court's decision in Marshall v. Barlow's, Inc., 436 U.S. 307 (1978), held that §   8(a) violates the fourth amendment insofar as that provision of the Act authorizes warrantless inspections without employer consent, we concluded in Meadows Industries, Inc., 79 OSAHRC 74/F2, 7 BNA OSHC 1709, 1979 CCH OSHD P23,847 (No. 76-1463, 1979), that noncompliance with the principles announced in Barlow's is without retroactive remedy.   Because the inspection in this case occurred prior to the Barlow's decision, NIC is not entitled to any relief from any fourth amendment violation that may have occurred.   NIC also argues that the proceedings and penalties assessed under the Act are unconstitutional because they are criminal rather than civil in nature.   In Atlas Roofing Co. v. OSHRC, 518 F.2d 990 (5th Cir. 1975), cert. denied on this issue, 424 U.S. 964 (1976), and Beall Constr. Co. v. OSHRC, 507 F.2d 1041 (8th Cir. 1974), the courts held that the proceedings and penalties under the Act are civil rather than criminal.   NIC also contends that the Act is unconstitutional because it does not provide for trial by jury.   In Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977), the United States Supreme Court upheld the Act's provision for imposition of civil penalties without fact finding by a jury.   NIC further asserts that the standards comprising 29 C.F.R. Part 1926, including the specific standards cited here, were invalidly promulgated under the Construction Safety Act, 40 U.S.C. §   333, and were therefore not validly promulgated under §   6(a) of the Act, 29 U.S.C. §   655(a).   The Commission rejected that argument in Daniel Constr. Co., 81 OSAHRC 41/A2, 9 BNA OSHC 1854, 1981 CCH OSHD P25,385 (No. 12525, 1981), and we reject it here for the same reasons.

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I

Reasonable Promptness

Occupational Safety and Health Administration ("OSHA") compliance officer Douglas Mark Pechman inspected NIC's power-plant construction site near Sutherland, Nebraska, on thirteen days during the period from June 21 to July 28, 1976.   The OSHA area director received Pechman's inspection report on September 10, 1976.   The Secretary issued to NIC the citations in question on October 13, 1976, seventy-seven days after the compliance officer completed the inspection.

At the opening of the hearing, NIC moved to dismiss the Secretary's citations and complaint for failure to issue the citations with "reasonable promptness" as required under section 9(a) of the Act, 29 U.S.C. §   658(a). n2 Noting that an employer must show "some prejudice" to support such a motion, the judge said that he would "make a determination of prejudice" after hearing all of the evidence.

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n2 Section 9(a) of the Act, as codified at 29 U.S.C. §   658(a), provides in pertinent part as follows:

If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of Section 654 of this title, of any standard, rule or order promulgated pursuant to section 655 of this title, or of any regulations prescribed pursuant to this chapter, he shall with reasonable promptness issue a citation to the employer.

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During the hearing, compliance officer Pechman testified that the delay was primarily the result of his work on other investigations and the moving of his personal residence.   Furthermore, the OSHA area director emphasized the transition to new office procedures in his explanation of the delay from September 20 until he issued the citations on October 13, 1976.

NIC's project manager, Edward N. Scoville testified that, when he received the citations on October 14, many of the cited conditions no longer existed because the project had shifted from a "civil job to a mechanical and electrical job." As a result, Scoville testified, several witnesses were "no longer employed by the company, no longer available." For example, John Dailey, an employee who accompanied the compliance officer during later phases of the inspection, was unavailable.   Another potential witness, civil superintendent Bill Butters, was still will NIC but was "unavailable for immediate consultation." Finally, Scoville testified, the stiff leg derrick operator died several months after the inspection. On cross-examination, Scoville admitted [*6]   that he had made no attempt to locate prospective witnesses.   He also knew of no efforts by the company to locate them.

In denying NIC's motion to dismiss, Judge Morris found that, despite the Secretary's delay, NIC could not sustain its allegation of prejudice because it had not attempted to locate the missing witnesses.   Moreover, he observed that NIC representatives who were available at the hearing had accompanied the compliance officer at all times during the inspection. The judge specifically found that the absence of the stiff leg derrick operator did not prejudice NIC because its safety director was fully conversant with the violation in question: citation 5, subitem 18d, alleging an other than serious violation for improper fire extinguisher placement.   In view of the availability of witnesses to present NIC's case, the judge concluded that NIC failed to show prejudice to its defense from the asserted delay.

On review, NIC emphasizes its view that the Secretary's delay resulted from trivial "bureaucratic and internal complications," not "exceptional circumstances" as defined in former Commissioner Moran's opinion in Jack Conie & Sons Corp., 76 OSAHRC 70/A2, 4 BNA OSHC [*7]   1378, 1976-77 CCH OSHD P20,849 (No. 6794, 1976).   It argues that the Secretary's "unconscionable delay" in itself requires vacating of the citations under Jack Conie. In addition, NIC charges that the judge "disregarded not only the obvious cumulative effect of the delay on Respondent's investigation and preparation, but also the specific instances of demonstrated prejudice." NIC specifically excepts to three of the judge's findings.   First, NIC asserts that its failure to search for former employees is irrelevant because their locations were unknown as a result of the Secretary's inexcusable delay.   Second, NIC argues that the absence of the stiff leg derrick operator was prejudicial because the machine operator, not the safety director, would have been most familiar with the circumstances of the machine's use.   Finally, NIC charges that the judge incorrectly rejected its argument that changed circumstances during the time lapse led to the unavailability of witnesses.

We conclude that the judge properly refused to dismiss the Secretary's citation and complaint.   Unless an employer establishes prejudice in the preparation or presentation of its defenses, a citation will not be [*8]   vacated for the Secretary's alleged failure to issue it with reasonable promptness.   Stearns-Roger, Inc., 80 OSAHRC 103/A2, 8 BNA OSHC 2180, 1980 CCH OSHD P24,870 (No. 78-819, 1980).   In Stearns-Roger, Inc., the Commission specifically rejected the "unconscionable delay" test of Jack Conie & Sons Corp., supra. Consequently, the appropriate consideration for determining whether to vacate a citation for the Secretary's noncompliance with section 9(a) of the Act is prejudice to the employer from the delay rather than justifiability of the delay.

We agree with the judge that NICdid not establish prejudice resulting from the delay.   An employer's unsupported general allegations do not establish prejudice.   Here, NIC failed to demonstrate specifically the nature of the prejudice allegedly suffered.   For example, NIC did not indicate areas where it believed evidence was insufficient because of the absence of particular witnesses or where missing witnesses could have presented testimony different from that in the record. n3 Indeed, the record shows that witnesses for NIC offered testimony on virtually every cited item.   Furthermore, although John Dailey was unavailable, other [*9]   NIC employees who accompanied the compliance officer did testify for NIC.   In addition, the judge correctly found that the absence of the dead stiff leg derrick operator did not prejudice NIC.   NIC's safety director testified knowledgeably on the relevant subitem, which did not involve any matters uniquely within the knowledge or expertise of the deceased operator.

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n3 NIC's assertion that the locations of potential witnesses were unknown is not supported by Scoville's testimony.   Scoville merely indicated that they were "no longer available" and that no effort was made by NIC to locate them.

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II

Citation 1, Item 1a: Section 1926.105 or 1926.750

At its construction site, NIC was building a large, skeletal steel structure to house a boiler. Basically, the "open bay" boiler structure consisted of two towers that were erected on opposite sides of a large cavity for the boiler. The towers extended upward with heavy members trussed over the top of the cavity to support the boiler. The building had no regular floors,   [*10]   only floor sections at the boiler floor and burner floor elevations and catwalks at each subfloor to provide access throughout the plant.   Photographs of the structure reveal that the catwalk arrangement created multiple levels in the two towers, while the boiler area was relatively open.

In item 1a of citation 1, the Secretary alleges that NIC failed to comply with 29 C.F.R. §   1926.105(a) n4 because none of the safety devices specified in the standard was used at thirteen boiler structure locations more than twenty-five feet above the ground.   Before the hearing, the Secretary amended his complaint to allege, in the alternative, failure to comply with the steel erection standard at 29 C.F.R. §   1926.750(b)(1)(ii). n5

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n4 This general construction industry safety standard provides:

§   1926.105 Safety Nets.

(a) Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.

n5 This steek erection standard provides:

§   1926.750 Flooring Requirements.

* * *

(b) Temporary flooring -- skeleton steel construction in tiered buildings. (1)

* * *

(ii) On buildings or structures not adaptable to temporary floors, and where scaffolds are not used, safety nets shall be installed and maintained whenever the potential fall distance exceeds two stories or 25 feet. The nets shall be hung with sufficient clearance to prevent contact with the surface of structures below.

In a written prehearing motion, the Secretary sought to allege noncompliance with this standard in the alternative.   The judge granted the motion before the hearing began.   On review, NIC submits arguments on the merits of this alleged violation "without waiving its objection to the appropriateness and validity of the amendment itself."

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Compliance officer Pechman testified that employees at each of the cited locations were exposed to falls.   The fall distances varied from 28 to 261 feet. In each instance, the employees were not tied off with safety belts and NIC provided no safety nets or other protective devices.

The judge vacated both of the alternative allegations under this item.   Relying on Daniel Construction Co., 77 OSAHRC 21/A2, 5 BNA OSHC 1005, 1976-77 CCH OSHD P21,521 (No. 7734 & 7672, 1977) ("Daniel I"), and McKee-Wellman Power Gas, 77 OSAHRC 133/A2, 5 BNA OSHC 1592, 1977-78 CCH OSHD P21,972 (No. 12618, 1977), the judge concluded that the boiler structure, "with virtually no floor arrangement," was not a "tiered building" within the meaning of the steel erection standard at section 1926.750(b)(1)(ii).   Furthermore, relying on Brennan v. OSHRC (Ron M. Feigan, Inc.), 513 F.2d 713 (8th Cir. 1975), the judge found that NIC had complied with section 1926.105(a) because, even though their safety belts were not tied off, NIC's employees were provided with safety belts and safety lines, alternative safety devices [*12]   contemplated by section 1926.105(a).

On review, the Secretary asserts that the judge erred in vacating the section 1926.750(b)(1)(ii) charge because the term "tiered building," as used in the standard, "includes any structure in which structural members are stacked one on top of another." According to the Secretary, the boiler structure is also properly considered tiered because it was "multi-levelled, although the floors concededly did not extend the entire length of the structure."

We reverse the judge's conclusion that the steel erection standard does not apply to the boiler structure. n6 In Daniel Construction Co., 81 OSAHRC 41/A2, 9 BNA OSHC 1854, 1858, 1981 CCH OSHD P25,385 at p. 31,625 (No. 12525, 1981) ("Daniel II"), the Commission overruled Daniel I, supra, and held "that the term 'tiered building' is not limited to multi-floored structures but includes any building or structure in which a skeleton steel framework is erected in vertically stacked steel columns." The Commission found that a power plant boiler building with interior columns, beams and cross-braces was "tiered," even though it lacked regular floor arrangements, because it had been "erected   [*13]   in vertically stacked steel columns." Daniel II is dispositive of the issue before us.   We conclude that section 1926.750(b)(1)(ii) applies to the cited conditions.

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n6 On review, NIC preserves its objection to the Secretary's amendment of citation 1, item 1a, to allege in the alternative noncompliance with §   1926.750(b)(1)(ii).   The Commission has consistently approved prehearing amendments where there is no showing by the party objecting to the amendment that it would be prejudiced in the preparation or presentation of its case.   E.g., P.A.F. Equipment Co., 79 OSAHRC 18/A2, 7 BNA OSHC 1209, 1979 CCH OSHD P23,421 (No. 14315, 1979), aff'd, 637 F.2d 741 (10th Cir. 1980). On this record, NIC has not shown any prejudice as a result of this amendment.

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The compliance officer's unrebutted testimony and the photographic evidence show that employees worked at the specified locations at heights over 25 feet without safety nets, temporary floors, or scaffolds.   Thus, the Secretary's evidence establishes NIC's [*14]   noncompliance with the standard. n7 In view of the fall distances, from 28 to 261 feet, we find that, if an accident had occurred, there was a substantial probability that it would have resulted in serious physical harm or death.   Therefore, we conclude that the violation was serious.   For these reasons, we vacate the judge's decision on this item and affirm the serious violation. n8

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n7 Under §   1926.750(b)(1)(ii), safety belts are not an alternativ means of protection.   Thus, to the extent NIC relies on employee wearing of belts, we find its arguments without merit.   Moreover, the record establishes that none of the employees referred to in the citation was wearing a safety belt that was tied off.

n8 Both standards in question, the construction industry standard at §   1926.105(a) and the steel erection standard at §   1926.750(b)(1)(ii), require fall protection for employees.   When specific safety standards apply to the facts of a case, they supersede general safety regulations and control.   29 C.F.R. §   1910.5(c)(1).   Thus, in view of our finding that NIC was engaged in steel erection on a "tiered building," the more specific requirements of §   1926.750(b)(1)(ii) apply and resolution of the issues raised concerning the alternative allegation under §   1926.105(a) is unnecessary.

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Citation 1, Item 1b: Section 1926.104(b) n9

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n9 Section 1926.104(b) provides that "[l]ifelines shall be secured above the point of operation to an anchorage or structural member capable of supporting a minimum dead weight of 5,400 pounds."

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The Secretary cited NIC for a serious violation of the Act for noncompliance with 29 C.F.R. §   1926.104(b) because, in three instances, lifelines allegedly were secured improperly to structural members.   First, one of two cable clamps was reversed on the end of a wire rope used as a lifeline by four tied-off workers.   Second, two end connections of another lifeline were made improperly with a single cable clamp.   Third, an undoubled wire rope lifeline was poked through a bolt hole to a column.   According to compliance officer Pechman, if the lifelines at these locations failed, employees could fall either 261 feet or 185 feet. On cross-examination, Pechman admitted that he made no measurements or [*16]   calculations concerning the weight either the structural members or the lifelines could support.   OSHA area director Sidney Levalds also observed these conditions.   Based on his experience, Levalds stated his opinion that the lifelines in question were not properly secured or anchored and that they would not support a person hooked to them. n10 The judge found that the testimony of the Secretary's expert and supporting evidence established a serious violation of the Act.   He assessed an $800 penalty.

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n10 In testifying on the cited lifelines, Levalds explained that h had read several books on rigging and he had seen "in practice" improper usage of clamps.   He also had experience with wire rope in rigging crane loads.

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On review, NIC argues that the Secretary failed to prove it had not complied with section 1926.104(b) because the Secretary's evidence "went only to clamp rigging methods and not to the standard alleged to have been violated." (Emphasis original).   In NIC's view, the Secretary must prove that the [*17]   anchorage or structural member in question, as opposed to the clamps or lifelines, cannot support a minimum dead weight of 5400 pounds.   NIC also notes the compliance officer's failure to make measurements or calculations to support the alleged violation.   It charges that the Secretary submitted only "speculation" about the lifelines -- not the anchorages and structural members -- and Levalds' "unsubstantiated opinion" that the lifelines could not support employees.

We agree with the judge that the standard applies.   Under section 1926.104(b), "[l]ifelines shall be secured above the point of operation to an anchorage or structural member capable or supporting a minimum dead weight of 5,400 pounds." (Emphasis added).   Consequently, one purpose and requirement of the standard is to assure that lifelines are safely secured.   Indeed, if a lifeline is not secured, employees are endangered regardless of the capacity of the anchorage or structural member.   In this case, the Secretary's unrebutted evidence established that the lifelines in question were improperly connected, that these defects rendered each of the lifelines incapable of supporting even a single person, and that NIC employees [*18]   were exposed to this condition.   Moreover, the judge properly credited the unrebutted testimony of area director Levalds in finding a violation. n11 In view of employee exposure to falls of 261 feet and 185 feet, the violation is properly characterized as serious.   Consequently, we affirm this serious violation.

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n11 In view of his experience with rigging techniques, Levalds' testimony regarding this citation is probative.   See, e.g., M.J. Lee Constr. Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD P23,330 (No. 15094, 1979) (judge properly relied on a compliance officer's opinion testimony in view of the inspector's experience).

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Citation 2: Section 1926.450(a)(1) n12

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n12 Section 1926.450(a)(1) provides:

§   1926.450 Ladders.

(a) General Requirements. (1) Except where either permanent or temporary stairways or suitable ramps or runways are provided, ladders described in this subpart shall be used to give safe access to all elevations.

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Compliance officer Pechman saw and photographed two employees as they slid down a diagonal column from one elevation to another.   The employees were not tied off and NIC provided no safety net or other fall protection at that location.   Pechman also observed and photographed a worker sliding down a vertical column to a level about 145 feet above the ground.   Again, this employee was not tied off and there was no safety net or other fall protection.

The judge rejected NIC's contention that the Secretary "presented absolutely no evidence as to this item . . ." and he found that the Secretary's evidence established a serious violation of the Act based on noncompliance with 29 C.F.R. §   1926.450(a)(1).   He assessed an $800 penalty.

NIC argues on review that section 1926.450(a)(1) is not directed to the cited activity: employees sliding down columns.   In NIC's view, the issue is whether it (1) provided permanent or temporary stairways or suitable ramps or runways for safe employee access, or (2) used ladders for safe access to all elevations.   NIC maintains that the Secretary failed to carry his burden of [*20]   proof here because he introduced no evidence on the availability or absence of stairways, ramps, runways or ladders in the areas in question.   Indeed, NIC notes, the record contains numerous references to its provision of stairs, ramps, runways, ladders and elevators.   Furthermore, according to NIC, the Secretary has shown only instances of isolated employee misconduct.

We agree with the judge that the standard applies here.   The Secretary's unrebutted evidence establishes that employees at the cited locations slid down beams without fall protection.   Accordingly, the Secretary established that ladders were not used as access between different elevations.   Furthermore, contrary to NIC's argument, the employer must prove that it falls within the exception to the standard's requirement that "ladders . . . shall be used" once the Secretary demonstrates noncompliance with that requirement.   See, e.g., Steel Erectors, Inc., 81 OSAHRC 18/F1, 9 BNA OSHC 1399, 1981 CCH OSHD P25,228 (No. 77-1118, 1981).   Here, despite evidence of ramps, stairs, ladders and elevators on the site generally, NIC presented no evidence that it provided any of these means of access to the cited locations.   [*21]   Accordingly, we conclude that the Secretary's evidence establishes noncompliance with the standard.   See, e.g., National Industrial Constructors, Inc. v. OSHRC, 583 F.2d 1048 (8th Cir. 1978). NIC's assertion that the two incidents at issue were merely isolated examples of employee misconduct is not supported by any record evidence and therefore we reject that asserted defense. n13 The fall distance in each instance was more than 100 feet. For these reasons, we affirm this citation for a serious violation.

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n13 The Commission will sustain the unpreventable employee misconduct defense only if the employer demonstrates that an employee's conduct was a departure from a uniformly and effectively enforced work rule.   E.g., B-G Maintenance Management, Inc., 76 OSAHRC 60/A2, 4 BNA OSHC 1282, 1976-77 CCH OSHD P20,744 (No. 4713, 1976).   Respondent presented no evidence of a work rule governing these facts and, accordingly, it failed to establish the unpreventable employee misconduct defense.

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Citation   [*22]    3, Subitem 1a: Section 1926.500(b)(1) n14

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n14 The standard provides:

§   1926.500 Guardails, handrails, and covers.

* * *

(b) Guarding of floor openings and floor holes. (1) Floor openings shall be guarded by a standard railing and toeboards or cover, as specified in paragraph (f) of this section.   In general, the railing shall be provided on all exposed sides, except at entrances to stairways.

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The Secretary cited NIC for a serious violation for noncompliance with 29 C.F.R. §   1926.500(b)(1) because NIC allegedly failed to guard an elevator shaft opening, 64 feet above the ground, with guardrails and toeboards as required by the standard.   NIC electricians used the opening as a hoistway for materials.   Three sides of the unguarded opening were accessible to employees.   At the time of the inspection, two NIC employees were working near the opening. One employee was tied off with a safety belt, but NIC's electrical manager, Bill Enlow, was not tied off as he stood near the edge of the opening.

NIC's safety [*23]   negineer, Barry Bane, explained that the area was open to permit employees to get material onto the decking at that level.   In Bane's view, the sequence of construction required that materials be moved through the hoistway before the erection of guardrails and toeboards.

In vacating this subitem, the judge concluded, in effect, that NIC had established an impossibility of performance defense.   The judge accepted NIC's argument that its sequence of construction prevented the use of handrails around the hoistway opening. He found that "the first priority is to get material in the building" and then "handrails can be installed." He observed that noncompliance with a safety standard is justified when necessary to permit required work.

On review, the Secretary urges that NIC failed to show impossibility because it did not prove that it could not comply with the standard and perform the work.   The Secretary contends that the only evidence of impossibility, the safety engineers' testimony, is equivocal and at best demonstrates only the inconvenience, not the impossibility, of installing rails.

To establish an impossibility defense, the employer must prove that (1) compliance with the [*24]   requirements of the cited standard would be functionally impossible or would preclude performance of required work, and (2) alternative means of employee protection are unavailable.   M.J. Lee Construction Co., supra note 11, 7 BNA OSHC at 1144, 1979 CCH OSHD at p. 28,227. The defense will not be sustained if an employer shows merely that compliance would be difficult, inconvenient, or expensive.   See, e.g., Lee Way Motor Freight, Inc., 74 OSAHRC 22/D12, 1 BNA OSHC 1689, 1973-74 CCH OSHD P17,693 (No. 1105, 1974), aff'd, 511 F.2d 864 (10th Cir. 1975).

We conclude that the judge erred in finding that NIC established its defense.   Although hoisting around required guardrails may have been inconvenient, the testimony proferred by NIC is insufficient to demonstrate that such work would have been impossible. n15 In addition, NIC failed to show that alternative means of protection were unavailable. n16

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n15 Indeed, Bane testified only, with no further elaboration, that the hoistway was unguarded so that employees could "get the material out onto the decking at that level."

n16 On review, NIC asserts that it met the alternative protection test because employees in the cited area had been provided safety belts and instructed in their use.   However, to establish the impossibility defense, an employer must show that available alternative means of protection are used.   See Morgan & Culpepper, Inc., 81 OSAHRC 26/A2, 9 BNA OSHC 1533, 1981 CCH OSHD P25,293 (No. 9850, 1981), appeal docketed, No. 81-4203 (5th Cir. May 29, 1981).   Here, NIC failed to demonstrate that available means of protection were used.   Indeed, one employee was not tied off even though he could have been tied off at the time of the inspection.

  [*25]  

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The Secretary's evidence on NIC's failure to guard the opening supports the alleged violation.   In view of the 64-foot fall hazard, if an accident occurred, there was a substantial probability of death or serious physical harm.   Thus, we reverse the judge's decision on this subitem and affirm a serious violation.

Citation 3, Subitem 1b(b): Section 1926.500(b)(2) n17

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n17 Section 1926.500(b)(2) provides, inpertinent part, as follows:

(b) Guarding of floor openings and floor holes.

* * *

(2) Ladderway floor openings or platforms shall be guarded by standard railings with standard toeboards on all exposed sides, except at entrance to opening. . . .

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At the time of the inspection, NIC was constructing a series of ladderway platforms to provide employee access to the top of the boiler structure.   A ladderway platform on the second ladder landing, about 30 feet above the adjacent ground level, was unguarded for 8 or 9 feet on both [*26]   its east and west sides.   Employees were using the platform at the time of the inspection.

NIC's safety director Bane testified that handrails were not in place because workers were in the process of providing access to the top of the boiler structure.   Again Bane noted that, under NIC's sequence of construction, materials were moved in and higher level platforms were erected before guardrails and toeboards were installed. n18 Bane also testified that the employees at this location had safety belts and were instructed in their use.

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n18 Bane's testimony is to the effect that guardrails could not be installed on the ladderway platform until all of the materials for additional platforms at higher elevations had been moved to the platform in question.   This stage in the construction process had just been reached at the time of the inspection, according to Bane.

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In affirming the serious violation, the judge rejected NIC's proffered impossibility of performance defense because he found that the cited landing platform was [*27]   not shown to be a platform used for receiving materials.   He assessed $400 penalty.

Relying on Bane's sequence of construction testimony, NIC reasserts before us its impossibility of performance defense.   NIC also maintains that the judge erred in ignoring the provision of safety belts for employees.

We conclude that the Secretary's evidence of employees working on an unguarded platform establishes noncompliance with the standard.   Furthermore, we agree with the judge's rejection of NIC's impossibility of performance argument. n19 NIC failed to establish that: performance of required work would have been rendered impossible by installation of the guardrails, and (2) the rails could not have been installed at an earlier stage in the construction In addition, NIC's provision of safety belts to employees establishes that alternative means of protection were available.   See M.J. Lee Construction Co., supra note 11.   Yet NIC did not demonstrate that these or other alternative means of protection were used.   In view of the 30-foot height of the platform, the serious characterization of the violation is appropriate.   Thus, we affirm this subitem.

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n19 We reject NIC's arguments based on the judge's vacating of a subitem regarding a second ladderway platform. Because review has not been directed on the issue, the judge's vacating of this subitem has the weight of an unreviewed judge's decision and thus is not controlling.   In addition, NIC did not show that the two situations were identical.

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Citation 3, Subitem 1c: Section 1926.500(d)(2) n20

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n20 29 C.F.R. §   1926.500(d)(2) provides, in pertinent part, that "[r]unways shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f) of this section, on all open sides, 4 feet or more above floor or ground level."

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Compliance officer Pechman testified that a runway leading to a stiff leg derrick was unguarded on both sides.   He saw an employee on the unguarded runway, 261 feet above the ground.   NIC's safety director suggested that workers may have [*29]   been merely "passing through" this area.

In affirming this serious violation, the judge rejected NIC's argument that the compliance officer failed to identify the worker as an NIC employee.   He assessed a $400 penalty.

On review, NIC renews its contention that the Secretary failed to identify the exposed worker as an NIC employee.   NIC also argues that (1) the absence of guardrails was necessary to perform required work; n21 (2) the condition was not hazardous, and (3) no employee was exposed to the hazard. To show exposure, NIC urges, the Secretary must prove more than employee presence "in the area" of the hazard.

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n21 Although NIC raises the impossibility defense in its brief, it did not mention this defense in its petition for review.   Therefore, the issue is not before us on review.

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The Secretary's unrebutted evidence proves noncompliance with this standard.   The presence of an employee on the unguarded runway clearly establishes employee access to the violative conditions, and this showing meets the Commission's [*30]   test for establishing employee exposure.   See Otis Elevator Co., 78 OSAHRC 88/E5, 6 BNA OSHC 2048, 1978 CCH OSHD P23,135 (No. 16057, 1978).   In addition, NIC representatives informed the compliance officer that all employees at the worksite were NIC employees.   Indeed, even if the exposed workers here were employees of another firm, NIC had a duty, as the general contractor, to protect all employees engaged at its worksite from these conditions.   See Marshall v. Knutson Construction Co., 566 F.2d 596 (8th Cir. 1977). Finally, the serious characterization of the violation is appropriate in view of the 261-foot fall distance.   Therefore, we affirm this subitem.

Citation 3, Subitem 1d: Section 1926.750(b)(1)(iii) n22

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n22 Section 1926.750(b)(1)(iii) provides:

§   1926.750 Flooring requirements.

(b) Temporary flooring -- skeleton steel construction in tiered buildings. (1)

* * *

(iii) Floor periphery -- safety railing. A safety railing of 1/2-inch wire rope or equal shall be installed, approximately 42 inches high, around the periphery of all temporary-planked or temporary metal-decked floors of tier buildings and other multifloored structures during structural steel assembly.

  [*31]  

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On the north and east sides of a temporary floor on the first elevator landing, 64 feet above the ground, a 1/2-inch cable sagged to a height of only 18 to 20 inches above the floor. The cited standard requires that such cables be installed at a height of 42 inches.   According to the compliance officer, employees were exposed to a hazard of falling from the inadequately guarded sides of the floor. A photograph, taken by the compliance officer during the inspection, shows an employee within 4 or 5 feet of the floor's north edge while walking toward a tool crib, 8 to 10 feet from the east edge.   NIC's safety director, Bane, testified that the cable was initially installed at the required 42-inch height and that NIC became aware that the cable had sagged only during the inspection. When Bane found the cable had slackened, he instructed employees it adjust it.

The judge found that the cable was only 18 to 20 inches high and that a hazard existed because the cable would not prevent an employee from failing.   However, he vacated this subitem on finding the cited steel erection standard inapplicable because [*32]   the structure was not a "tiered building."

On review, the Secretary contends that the steel erection standard at 29 C.F.R. §   1926.750(b)(1)(iii) does apply to the cited condition and that his evidence establishes a serious violation.

NIC argues that the judge properly found the steel erection standard in question inapplicable.   Alternatively, it maintains that the Secretary failed to prove noncompliance with the standard.   It relies on safety engineer Bane's testimony that the cables had been installed at 42 inches and that, when he found they had slackened, he gave instructions to have them corrected.   To rebut employee access, NIC emphasizes that only a solitary employee was in the area and the compliance officer "had no idea whether employees had occasion to be in the area."

We conclude that the judge erred in vacating this item.   The steel erection standard at section 1926.750(b)(1)(iii) applicable to the "tiered building" here for the reasons we indicated in the discussion above of citation 1, subitem 1a.   Moreover, the record establishes noncompliance with the standard, employee exposure, and NIC's constructive knowledge of the violation.   Unrebutted evidence demonstrates [*33]   that the cited cable sagged to a height of only 18 to 20 inches.   Further, contrary to NIC's contentions, because the violation was in plain view, we conclude that NIC could have known of the presence of the violative condition if it had exercised reasonable diligence.   See Prestressed Systems, Inc., 81 OSHRC 43/D5, 9 BNA OSHC 1864, 1981 CCH OSHD P25,358 (No. 16147, 1981).   We also reject NIC's access contentions.   The compliance officer's testimony and photograph of an employee 4 to 5 feet from one edge and the testimony that he would necessarily come within 8 to 10 feet of the other edge establishes access to the violative condition.   See Otis Elevator Co., supra. In view of the 64-foot fall distance, if an accident had occurred, there was a substantial probability of death or serious injury.   For these reasons, we vacate the judge's determination on this subitem and affirm a serious violation of the Act.

Citation 4: Section 1926.652(b) n23

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n23 Section 1926.652(b) provides:

Sides of trenches in unstable or soft material, 5 feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them.   See Tables P-1, P2 (following paragraph (g) of this section).

  [*34]  

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On July 15, 1976, compliance officer Pechman inspected an excavation for installation of a spillway about 3/4-mile from the boiler structure.   During the inspection, three NIC employees were removing foreign material from the ditch to prepare it for backfilling.   According to Pechman, the excavation was slightly more than 12 feet deep, about 5 feet wide, and 50 to 60 feet long.   A 12-foot high concrete foundation wall formed one side of the ditch and the opposite wall was dirt.   The dirt wall was vertical to a height of about 9 feet, then sloped back at a 45 degrees angle.   Pechman saw no shoring.   He described the soil powdered sand with clay.   On cross-examination, Pechman explained that he had made no soil analysis, compaction test, or soil borings.

NIC employee Kelly Martin Seachord, a rod buster helper, described a cave-in at the cited ditch on July 1, 1976, two weeks before Pechman's inspection. According to Seachord, an area about 7 feet wide, 7 feet high and 3 to 4 feet thick collapsed.   Although a wooden form separated Seachord from that area, two other employees were only 2 to 3 feet from [*35]   the collapsed section.   At that time, the ditch lacked trench boxes and was shored only in part.   Like the compliance officer, Seachord described the soil as sandy clay.   Seachord testified that the trench wall faces were generally cracked and that sand fell from the walls every day along the length of the ditch, sometimes in clods that were 12 inches in diameter.

A second employee, Steven Infante, described the condition of the excavation during the inspection on July 15.   Infante said that clods of dirt fell from the trench face about five times in 4 to 6 hours on that day.   While clearing the trench, Infante further explained, about a half-bucket of dirt fell each time a bucket hit the trench wall.   Vertical cracks in the wall face ran from the ditch bottom to a height of 4 or 5 feet. Like the compliance officer and Seachord, Infante described the soil as sandy clay.

Sidney Snapp, Respondent's civil superintendent, testified that, although carpenters had shored the ditch, the shoring had been removed by the time of the inspection to allow the installation of frames.   Snapp considered shoring unnecessary because, in his opinion, the soil was hard and "compacted." He described [*36]   the soil as white clay with sand that became hard and stable with rain.   The soil was so hard, Snapp explained, that clods of it could be broken only with a jackhammer, not a pick.   Snapp also testified that, to his knowledge, no cave-in or slough-off had occurred.   Snapp further testified that he made soil boring tests of the trench that disclosed "nothing radical" that might create problems such as quicksand or gravel.   He explained that the borings were made to assess "design purposes of the structure" and that he did not "ask for specifics" on the results of the borings.   Snapp conceded that stability of the soil in question is affected by sun and rain.   For example, he noted that the soil cracked with it expanded with rain or shrank with sun.

In affirming this alleged serious violation for noncompliance with 29 C.F.R. §   1926.652(b), the judge found that the testimony of employees Seachord and Infante established instability of the soil. n24 He noted that, on similar facts, soil has been held to be soft and unstable.

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n24 The judge specifically relied on testimony that (1) cracks wer observed in the ditch; (2) slough-off occurred 25 yards from the cave-in; (3) sand fell from the trench wall; and (4) sandy clay was removed from the trench floor.

  [*37]  

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On review, NIC argues that the judge erred because the Secretary failed to carry his burden of showing that (1) the trench was dug in unstable or soft material and (2) employees working in the trench were exposed to a hazard. NIC emphasizes that Snapp, its civil superintendent with 36 years of construction experience, testified that the dirt was hard and stable, excess dirt could be broken only with a jackhammer, and there were no cracks in the soil at the time of the inspection. NIC also notes that it made soil borings while compliance officer Pechman made no soil tests.   Furthermore, NIC stresses that Pechman's only training in soil analysis was a one-day seminar.

Sections 1926.652(b) and (c) generally inform employees that some protection is required in trenches 5 feet or deeper in soil. Connecticut Natural Gas Co., 78 OSAHRC 60/B3, 6 BNA OSHC 1796, 1978 CCH OSHD P22,874 (No. 13964, 1978).   If the walls of a trench contain a significant amount of soft or unstable material, the soil as a whole is considered soft or unstable and the trench is governed by the more restrictive requirements of   [*38]   section 1926.652(b).   CCI, Inc., 80 OSAHRC 127/D4, 9 BNA OSHC 1169, 1980 CCH OSHD P25,091 (No. 76-1228, 1980), appeal filed, No. 81-1218 (10th Cir. Feb. 25, 1981).

To establish noncompliance with section 1926.652(b), the Secretary must show that (1) the trench at issue is at least 5 feet deep, (2) the trench is neither shored nor sloped appropriately, and (3) a significant portion of the trench wall is composed of soft or unstable soil. We conclude that the judge correctly decided that NIC failed to comply with this standard.   At the time of the inspection, the trench in question was 50 to 600 feet long and over 12 feet deep.   Uncontroverted evidence establishes that the trench was unshored at that time.   The dirt wall of the trench was vertical for 9 feet and only then sloped at a 45 degrees angle. n25

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n25 An unshored trench may have a 90 degrees angle of sloping only if dug in solid rock, shale, or cemented sand and gravels.   29 C.F.R. §   1926.652 (Table P-1).   If the trench is excavated in hard compact soil, it may have partially vertical walls, but only to a height of 5 feet. 29 C.F.R. §   1926.652(c).

  [*39]  

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Although evidence conflicted on the precise nature of the soil, the judge's finding of soil instability is supported by the testimony of the compliance officer and two employees.   We find no error in the judge's crediting of the testimony of the Secretary's witnesses over the testimony of Snapp.   The trier of fact ultimately determines what, if any, weight to give that testimony.   United States Steel Corp. v. OSHRC, 537 F.2d 780 (3d Cir. 1976). Here the record does not indicate that Respondent's witness was a soils expert.   In addition, Snapp tested the soil merely for design, not safety.   Furthermore, Snapp's testimony on several factual issues was controverted; for example, by Infante's testimony that the trench wall was cracked and dirt fell from it on the day of the inspection. Thus, the judge was not bound to accept Snapp's testimony.   The lay testimony relied on by the judge is admissible here and supports his disposition.   See Connecticut Natural Gas Co., supra. In addition, the compliance officer's testimony is also creditable because scientific analysis is not a prerequisite [*40]   for determining the stability of soil to establish noncompliance with the trenching requirements.   Duane Meyer d/b/a D.T. Construction Co., 79 OSAHRC 57/D4, 7 BNA OSHC 1560, 1979 CCH OSHD P23,742 (No. 16029, 1979).

Accordingly, the Secretary established noncompliance with the standard at section 1926.652(b). n26 We conclude that the record shows a substantial probability of death or serious injury if an accident were to occur.   For these reasons, we affirm this citation for a serious violation.

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n26 Contrary to NIC's argument that the citation must be vacated because the Secretary failed to establish a hazard to employees, the standard in question presumes a hazard if its terms are not met.   Thus, the Secretary is not required to present specific proof of a hazard. Rather, he need show only that the standard applies to the cited condition.   See Joseph J. Stolar Constr. Co., 81 OSAHRC    , 9 BNA OSHC 2020, 1981 CCH OSHD P25,488 (No. 78-2528, 1981), appeal filed, No. 81-4146 (2d Cir. July 21, 1981).

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Citation 5, Item 3: Section 1926.303(b) n27

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n27 Section 1926.303(b) provides that "[g]rinding machines shall be equipped with safety guards in conformance with the requirements of American National Standards Institute, B7.1-1970, Safety Code for the Use, Care and Protection of Abrasive Wheels, and paragraph (d) of this section."

The compliance officer testified that the cited grinders were not guarded in compliance with the exposure adjustment provision at section 4.4, ANSI B7.1-1970.   Under section 4.4, safety guards "shall be constructed so that the peripheral protecting member can be adjusted to the constantly decreasing diameter of the wheel." The provision indicates maximum angular exposure and maximum "distance between the wheel periphery and the adjustable tongue or end of the peripheral member at the top. . . ."

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The Secretary alleged an other than serious violation of the Act for failure to guard four grinders in accordance with 29 C.F.R. §   1926.303(b).   Three grinders, described in subitems 3a, b, and [*42]   d, lacked adjustable tongues, which are required to protect employees from wheel breakage.   The two tongues of the remaining grinder, described in subitem 3c, were improperly adjusted.   An employee was using this grinder at the time of the inspection. The other grinders were not in use but were plugged in.   No barriers were installed to prevent employee use of any of the machines.

NIC's safety director Bane testified that employees used the machine described in subitem 3d to grind large hammer handles.   Bane explained that an adjustable tongue would interfere with this work, making operation of the machine impossible.   Bane indicated, however, that the grinder was not the best equipment for grinding the handles: "Had it been me, I would have been using a larger grinder. As a matter of fact, I would not have used a grinder."

In affirming the first three subitems, the judge simply found that the evidence supported "these violations" and he assessed a $40 penalty.   However, the judge accepted NIC's impossibility of performance defense and vacated subitem 3d based on Bane's testimony that an adjustable tongue would interfere with the grinding of large wooden handles.

On review, NIC [*43]   asserts that the Secretary failed to prove the first three alleged violations by a preponderance of the evidence.   However, we conclude that the Secretary's evidence establishes that the first three grinders were not guarded as required by the standard.   We find that employees had access to the grinders because they were available for use.   Therefore, proof that the grinders were actually used is unnecessary.   See Bechtel Power Co., 79 OSAHRC 34/A2, 7 BNA OSHC 1361, 1979 CCH OSHD P23,575 (No. 13832, 1979) We accordingly affirm the first three subitems.

In challenging the judge's vacating of subitem 3d, the Secretary contends that NIC failed to establish an impossibility defense.   He relies on the suggestion of NIC's safety director that other methods of performing the operation were available.

In contrast, NIC argues that it demonstrated impossibility. It notes Bane's testimony that the tongue was too large for the grinder and that "it takes the complete exposed surface" to grind the large handles because "very little" of the abrasive wheel surface was exposed. In addition, NIC contends that the goggles it supplied to employees were alternative safety equipment.   It further [*44]   argues that the Secretary attempts an improper expansion of the citation by suggesting that NIC could have used other equipment.

We reverse the judge's vacating of subitem 3d.   The Secretary's unrebutted evidence establishes that this grinder was not properly guarded and Respondent admits that it was used.   Furthermore, we conclude that NIC failed to establish an impossibility of performance defense.   Indeed, the safety director's testimony establishes that other methods of grinding the wooden handles should have been used.   In analogous cases, the Commission has declined to sustain an impossibility defense where the employer could redesign machinery to bring it into compliance with the Act.   See, e.g., F.H. Lawson Co., 80 OSAHRC 19/A14, 8 BNA OSHC 1063, 1980 CCH OSHD P24,277 (No. 12883, 1980), appeal dismissed, No. 80-3277 (6th Cir. 1981).   We conclude that a similar disposition, i.e., rejecting the defense where the employer can alter its method of operation to avoid the violative condition, is appropriate here.   In addition, contrary to NIC's contentions, goggles are not a recognized alternative means of protection.   Injuries other than eye damage are possible [*45]   if an employee is operating an unguarded grinder. For these reasons, we affirm this subitem.

Citation 5, Item 6: Section 1926.404(b) n28

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n28 In general, under 29 C.F.R. §   1926.400(a), "[a]ll electrica work, installation, and wire capacities" must conform with pertinent provisions of the National Electrical Code, NFPA 70-1971; ANSI C1-1971 (Rev. of C1-1968), unless otherwise provided.   The electrical standards "apply only to electrical installations used on the jobsite, born temporary and permanent." Section 1926.400(b).

Section 1926.404(b) provides that:

All components and utilization equipment used in a hazardous location shall be chosen from among those listed by a nationally recognized testing laboratory, such as Underwriters' Laboratories, Inc., or Factory Mutual Engineering Corp., except custom-made components and utilization equipment.

Here, the Secretary cited Respondent for noncompliance with 29 C.F.R. §   1926.404(b) because, according to the citation, the cited equipment was not approved for use in hazardous locations as described in §   1926.404(a) and Article 511 of the NEC.   In §   1926.404(a)(1), Class I hazardous locations are described as "those in which flammable gases or vapors are or may be present in quantities sufficient to produce explosive or ignitable mixtures." Section 1926.404(a)(4) refers the reader to the NEC "for further definition of divisions 1 and 2 for each class."

Article 511 of the Code provides in pertinent part as follows:

ARTICLE 511 -- COMMERCIAL GARAGES, REPAIR AND STORAGE

511-1.   Scope.   These occupancies shall include locations used for service and repair operations in connection with self-propelled vehicles (including passenger automobiles, buses, crucks, tractors, etc.) in which violatile flammable liquids or flammable gases are used for fuel or power, and locations in which more than 3 such vehicles are or may be stored at one time.

For further information regarding classification of garages, refer to the NFPA Standard for Garages (No. 88-1968).

511-2.   Hazardous Areas.   Classification under Article 500.

(a) For each floor at or above grade, the entire area up to a leave 18 inches above the floor shall be considered to be a Class I, Division 2 location.

(b) For each floor below grade, the entire area up to a level 18 inches above the bottom of outside doors or other openings which are at or above grade level shall be considered to be Class I, Division 2 location.   Where adequate positive-pressure ventilation is provided, the authority having jurisdiction may judge that the hazardous location extends up to a level of only 18 inches above each such floor.

(c) Any pit or depression below floor level shall be considered to be a Class I, Division 2 location which shall extend up to said floor level, except that any unventilated pit or depression may be judged by the authority having jurisdiction to be a Class I, Division 1 location.

  [*46]  

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In subitem 6a, the Secretary alleged that two portable "trouble lights" -- one in a mechanic shop and one in the front end pit of the garages -- failed to meet National Electrical Code ("NEC") standards for these Class I, Division 2 hazardous locations because they had metal guards, switches and outlets.   NIC serviced ten vehicles in the cited area.   Compliance officer Pechman testified that the lamps were used within 18 inches of the ground, which created a hazard because, as Pechman testified, vapors from gasoline, diesel fuel and cleaning solvents "hang low to the ground." He specifically noted a danger of ignition from sparks that could ignite the flammable "liquids." Pechman did not see any employees use the lights, but he noted that one of the lights was plugged into a wall and available for use.   He testified that ventilation in the shop was "satisfactory."

Subitem 6b describes three noncompliant duplex receptable outlets that were located in this same hazardous area, 12 to 16 inches from the floor. Pechman noted that employees were using these unapproved outlets.

The judge rejected NIC's argument [*47]   that the Secretary failed to prove the mechanic's shop was a hazardous location contemplated by the standard.   The judge observed that the scope note of Article 511 of the National Electrical Code refers top repair and storage areas as well as commercial garages.   He found that the cited area "was unquestionably a vehicle repair shop" under Article 511-1, NEC, because "more than 3 . . . vehicles are or may be stored at one time." In addition, the judge rejected NIC's contention that the Secretary failed to prove the presence of "explosible or ignitable mixtures" on the ground that the standard's requirement is not premised on such proof.   He accordingly affirmed the other than serious violation and assessed no penalty.   On review, NIC argues only that the Secretary failed to establish the violations by a preponderance of the evidence.

We conclude that the judge properly affirmed these two subitems. We agree with the judge that the cited standard at section 1926.404(b), which requires the use of particular approved equipment in hazardous locations, is not premised on proof of explosive or ignitable mixtures.   Instead, under National Electrical Code Article 511-2 and 29 C.F.R. §   1926.404(a)(4),   [*48]   the area within 18 inches of the floor of NIC's shop was a Class I, Division 2 hazardous location regardless of whether the Secretary independently proved dangerous concentrations of flammable vapors. n29 In addition, under section 1926.404(a)(1), Class I hazardous locations are "those in which flammable gases or vapors are or may be present in quantities sufficient to produce explosive or ignitable mixtures." (Emphasis added).   Here, the compliance officer indicated that vapors and gases created a fire hazard in the cited areas.   Even without precise measurements of the concentration of vapors, this testimony establishes that the cited locations are Class I hazardous locations under section 1926.404(a) because of the possible presence of explosive or ignitable mixtures.

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n29 The judge properly rejected NIC's argument that Article 511 does not apply because the section heading refers to commercial garages.   The plain meaning of the text of a provision cannot be "undone" or limited by its section headings.   Wray Electric Contracting, Inc., 78 OSAHRC 78/A2, 6 BNA OSHC 1981, 1978 CCH OSHD P23,031 (No. 76-119, 1978), aff'd, No. 78-3597 (6th Cir. Sept. 15, 1980).

  [*49]  

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NIC's failure to use approved equipment in the cited locations within 18 inches of the ground, combined with employee access to the violative conditions, establishes noncompliance with section 1926.404(b).   Accordingly, we affirm this item.

Citation 5, Item 7: Section 1926.450(a)(5) n30

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n30 29 C.F.R. §   1926.450(a)(5) provides that "[f]ixed ladders shall be in accordance with the provisions of the American National Standards Institute, A 14.3-1956, Safety Code for Fixed Ladders."

Section 5.4 of the ANSI standard reads:

5.4.   The distance from the center line of rungs, cleats, or steps to the nearest permanent object in back of the ladder shall be not less than 7 inches (Fig. 5), except that when unavoidable obstructions are encountered, minimum clearance as shown in Fig. 6 shall be provided.

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Compliance officer Pechman testified that an employee in NIC's batch plant was exposed to a fall hazard when he climbed a fixed ladder with [*50]   fourteen metal rungs that were only 3-1/2 inches from the wall, rather than the required 7 inches from the nearest permanent object.   The rungs provided inadequate footing because of the close distance, Pechman explained.   NIC's safety director Bane responded that another employer had built the batch plant and that the employer had reduced the distance from the ladder to the wall during its "winterization" of the facility.   The judge rejected NIC's impossibility of compliance defense and affirmed the violation.

On review, NIC argues that, because of the winterization of the batch plant by another employer, insufficient space made "it not only infeasible . . . but also impossible" to comply with the standard.   In addition, it notes that the applicable ANSI standard, section 5.4, A14.3-1956, Safety Code for Fixed Ladders, explicitly provides an exception for situations where "unavoidable obstructions are encountered." NIC urges that this situation is covered by that exception.

The Secretary's evidence of the noncompliant ladder and employee access to the ladder establishes noncompliance with the standard.   Despite the creation of the condition by another employer, NIC controlled the [*51]   worksite as the general contractor.   We therefore conclude that NIC was responsible for the noncompliance. See Marshall v. Knutson Construction Co., supra. We reject NIC's impossibility of compliance argument.   On this record, NIC failed to show that the cited ladder could not be adjusted in accordance with the terms of the standard.   In addition, NIC did not demonstrate that the "obstruction" was "unavoidable" under the cited ANSI provision.   For these reasons, we affirm this item.

Citation 5, Item 8: Section 1926.451(e)(4) n31

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n31 29 C.F.R. §   1926.451(e)(4) requires that, on manually propelled mobile scaffolds, "[p]latforms shall be tightly planked for the full with of the scaffold except for necessary entrance opening."

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Compliance officer Pechman observed employees working from a mobile single-stage scaffold.   An 18-1/2-inch gap between planks on the scaffold created a 5- to 6-foot fall hazard. Pechman stated his opinion that, if an employee inadvertently fell through the gap, the "most likely"   [*52]   injuries would require a doctor's treatment.   In affirming this item as an other than serious violation, the judge rejected NIC's argument that the violation was merely de minimis. NIC on review takes exception to the judge's classification of the violation.

The Secretary's uncontradicted evidence establishes noncompliance with the cited standard, which presumes a hazard where scaffolding is not tightly planked.   See Austin Bridge Co., 79 OSAHRC 81/A2, 7 BNA OSHC 1761, 1979 CCH OSHD P23,935 (No. 76-93, 1979).   We agree with the judge that the violation was other than serious, not de minimis. Noncompliance with a standard is properly classified as de minimis when the hazard involved bears such a negligible relationship to employee safety as to render inappropriate imposition of a penalty or the entry of an abatement order.   Bethlehem Steel Corp., 81 OSAHRC    , 9 BNA OSHC 2177, 1981 CCH OSHD P25,645 (No. 77-617, 1981).   Here, the hazard of falling through the gap in the scaffold was substantial and the most likely result of such a fall would have been injuries requiring medical attention.   Accordingly, the hazard presented by NIC's noncompliance [*53]   with the standard was not negligible and the de minimis classification is inappropriate.   NIC emphasizes the absence of any accidents at the cited location.   The Secretary, however, need not establish a history of illnesses or injuries to show a relationship to safety or health.   See Arkansas-Best Freight Systems, Inc., v. OSHRC, 529 F.2d 649 (8th Cir. 1976). Moreover, the asserted likelihood of only minor injuries from the cited condition here is not sufficient to warrant de minimis characterization.   See Pratt & Whitney Aircraft, 81 OSAHRC 39/A2, 9 BNA OSHC 1653, 1658, 1981 CCH OSHD P25,359 at pp. 31,505-506 (No. 13401, 1981), appeal withdrawn, No. 81-4104 (2d Cir. Aug. 3, 1981).   Consequently, we affirm this item as an other than serious violation.

Citation 5, Item 10: Section 1926.500(b)(1) n32

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n32 29 C.F.R. §   1926.500(b)(1), in pertinent part, provides:

§   1926.500 Guardrails, handrails, and covers.

* * *

(b) Guarding of floor openings and floor holes. (1) Floor openings shall be guarded by a standard railing and toeboards or cover, as specified in paragraph (f) of this section.   In general, the railing shall be provided on all exposed sides except at entrances to stairways.

  [*54]  

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Subitem 10a alleges that, on the turbine pedestal, twenty-one cylindrical floor openings called "ankle bolt sleeves," 16 inches in diameter and 25 inches doep, were unguarded. Employees were working in this area at the time of the inspection. A walkway, 8 or 9 feet from the floor opening, provided a path of travel for workers.   Compliance officer Pechman emphasized the "high" probability of employees tripping or stepping into the openings, although he conceded that a person could not fall "through" the openings.

Subitem 10b alleges that a 12-inch by 12-inch floor opening in a grated runway was also unguarded. This opening was within 1 inch of an electrical junction box in the corner of the batch plant's aggregate holding bin.   An NIC employee told Pechman that employees normally worked near the junction box once a week to grease chutes, and then only with lifelines. In addition, a walkway around the holding bin was available for use.   Again, in Pechman's view, the hazard was tripping or stepping into the opening. Pechman assigned a high probability to such mishaps.   Generally, he believed that   [*55]   the "most realistic type of injury" if an employee stepped into any of the cited openings would require hospitalization.   Bane, NIC's safety director, testified that employees could not fall through the 12-inch by 12-inch opening. Bane also said that the possibility of an employee tripping in the opening was "minimal" because it was in a corner next to a perimeter safety railing.

In affirming these subitems, the judge rejected NIC's argument that the standard does not apply to the cited conditions.   Specifically, NIC asserted that, although the hazard to be avoided under the cited standard is "falling through" openings, the inspector admitted that employees could not "fall through" the cited openings. In rejecting NIC's position, the judge relied on the definitions of "floor hole" and "floor opening" at 29 C.F.R. § §   1926.502(a) and (b). n33 He reasoned that, "[i]f a person were to be seen standing knee deep in an icecovered lake, an observer would say the person had 'fallen through' the ice." However, he affirmed both subitems only as de minimis violations.

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n33 The term "floor hole" is defined at §   1926.502(a) as follows:

An opening measuring less than 12 inches but more than 1 inch in its least dimension in any floor, roof, or platform through which materials but not persons may fall, such as a belt hold, pipe opening, or slot opening.

The term "floor opening" is defined at §   1926.502(b) as follows:

An opening measuring 12 inches or more in its least dimension in any floor, roof, or platform through which persons may fall.

  [*56]  

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On review, NIC renews its argument that the cited conditions are not covered by section 1926.500(b)(1), relying on testimony that neither "a substantial object" nor "a man" could fall completely through the openings. NIC specifically charges that the judge's reasoning concerning a fall through the ice "is clearly in error" because "an employee's leg could just as easily have passed through a 'floor hole' of 11 and 7/8 inches as it could through a floor opening of 12 inches." It argues that the essential distinction between floor holes and floor openings is whether an employee can fall completely through the opening. On review, the Secretary challenges the judge's reduction of the characterization of the violation from other than serious to de minimis.

We agree with the judge that the cited standard does apply to the facts.   Generally, section 1926.500(b) requires guarding or covering of all floor openings and those floor holes "into which persons can accidentally walk." 29 C.F.R. § §   1926.500(b)(1) and (b)(8).   Obviously, employees cannot fall completely through all floor openings because,   [*57]   by definition, a floor opening can be as narrow as 12 inches wide.   29 C.F.R. §   1926.502(b).   Accordingly, NIC's interpretation of the standards would lead to an unacceptable gap in their coverage.   For example, an employer could be required to guard or cover a floor hole 11 inches wide because employees could accidentally step into it, while a floor opening 13 inches wide and located right next to the first hole would be left unguarded because employees could not fall completely through it.   We adopt the judge's more reasonable conclusion that an opening into which an employee can fall up to the level of his knee is included within the category of floor openings covered by section 1926.500(b)(1).

The Secretary's evidence that employees worked in the vicinity of unguarded and uncovered floor openings establishes noncompliance with the standard.   In view of the compliance officer's testimony that there was a relatively high possibility of tripping accidents and that the probable injuries if an employee stepped into an opening would require hospitalization, we conclude that the hazard created by the violation at issue was not negligible.   Thus we modify the classification of the violation [*58]   from de minimis to other than serious and affirm both subitems as modified.

Citation 5, Item 14: Section 1926.500(f)(1)(iv) n34

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n34 29 C.F.R. §   1926.500(f)(1)(iv) provides:

The anchoring of posts and framing of members for railings of all type shall be of such construction that the completed structure shall be capable of withstanding a load of at least 200 pounds applied in any direction at any point on the top rail, with a minimum of deflection.

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Compliance officer Pechman testified that both the top rail and midrail of a "standard" metal pipe railing were loose and easily moved 3 or 4 inches with a "moderate push." Pechman pushed the top rail with his hand and the rail did not return to its original position.   The rails were attached to a metal pipe with wire.   The railing was located in an area, just a few feet from the second elevator landing at the 156-foot level, that was accessible and being used by employees.   The instability of the rail created a fall hazard, in Pechman's opinion, because the [*59]   rail would not remain in position if someone fell against it.   On cross-examination, Pechman conceded that he made no measurements or calculations to determine precisely how much pressure the handrail could withstand.

In vacating this item, the judge found that the Secretary's evidence failed to establish that the cited railing was incapable of withstanding a 200-pound load.   On review, the Secretary urges that the Commission should affirm this citation under either of two theories: (1) the evidence proves that a force of 200 pounds or less causes a deflection in the top rail that is more than minimal, or (2) the evidence dictates an unrebutted presumption that, if a force of 200 pounds had been applied to the top rail, it could not have withstood the force with a "minimum amount of deflection."

We conclude that the judge erred in vacating this item.   The Secretary's unrebutted evidence here establishes that, in an area accessible to employees, a loose top rail could be moved 3 or 4 inches with a "moderate" shove.   The Commission has found that an employer failed to comply with section 1926.500(f)(i)(iv) where a cable deflected from 22 to 29 inches.   D. Fortunato, Inc., 79 OSAHRC [*60]   69/B12, 7 BNA OSHC 1643, 1979 CCH OSHD {23,781} (No. 76-3103, 1979).   In this case, we find that movement from 3 to 4 inches of a metal railing, as opposed to a cable, is not minimal deflection under the standard in view of the ordinary meaning of minimal -- "smallest degree possible." n35 This interpretation best effectuates the Act's purpose of assuring employee safety.   Based on the Secretary's uncontroverted evidence, we conclude that the loose railing did not comply with the standard's requirement that a railing withstand "at least 200 pounds applied in any direction at any point on the top rail, with a minimum of deflection." (Emphasis added).   For these reasons, we affirm this subitem.

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n35 "Minimal" is defined as "having the character of a minimum: constituting the least possible in size, number or degree: extremely minute." Webster's Third New International Dictionary, 1438 (1971).

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Citation 5, Item 18: Section 1926.550(a)(14)(i) n36

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n36 The standard for cranes and derricks at 29 C.F.R. §   1926.550(a)(14)(i) provides as follows:

(a) General requirements.

* * *

(14) . . . .

(i) An accessible fire extinguisher of 5BC rating, or higher, shall be available at all operator stations or cabs of equipment.

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Compliance officer Pechman testified that there were no accessible fire extinguishers in satisfactory working order at four locations: on three cranes, subitems 18a, b, and c, and on a stiff leg derrick, subitem 18d.   At the time of the inspection, the gauges of the three cited crane fire extinguishers indicated that the extinguishers had been discharged.   In addition, there was no extinguisher at the stiff leg derrick. On cross-examination, Pechman admitted that he did not use the cited extinguishers to see if they worked and that he did not check inspection sheets on them.   Instead, he determined that the fire extinguishers needed recharging solely from their gauges.

NIC safety director Bane testified that two extinguishers were supplied to the crane described in subitem 18a and that a fire extinguisher [*62]   for the stiff leg derrick operater was provided about 10 to 12 feet from his station.   Bane admitted that, of the two extinguishers in the crane referred to in item 18a, the gauge of the extinguisher in the operator's cab indicated that it had been discharged.   Bane had not examined that device to see whether it operated properly.   Nevertheless, he stated generally that, if a gauge is broken, an extinguisher may still be functional even though the gauge indicates the extinguisher has been discharged.

In affirming these subitems as an other than serious violation, the judge found that NICs noncompliance with the standard was established because, as pleaded by the Secretary, the fire extinguishers "must be in satisfactory working condition" and, under the standard, they must be located "at the station or cab." Thus, he specifically rejected NIC's argument that fire extinguishers were available because they were 10 to 12 feet from the stiff leg derrick station.   He also rejected Respondent's contention that it lacked knowledge of the violation, concluding that "the discharged and missing fire extinguishers are so apparent that respondent should have known of the violations." He assessed [*63]   no penalty.

On review, NIC argues that, while under section 1926.550(a)(14)(i) equipment must be made available, there is no requirement that it be "in satisfactory working order." In NIC's view, it complied with the standard because "[a]ccessible fire extinguishers" were "available at the operating stations or cabs of all the equipment in question." In addition, NIC maintains that the record is void of any proof showing that it knew or should have known that the extinguishers were defective.   Indeed, it argues that its own inspection sheets indicated that the extinguishers were in proper working order at the time they were last checked by NIC, thus precluding a finding that it should have known of the alleged violation.

We conclude that the judge properly affirmed this other then serious violation. Absent any contrary evidence, the Secretary's evidence is sufficient to establish that the fire extinguishers in question were discharged or, with respect to subitem 18d, missing.   The requirement that a fire extinguisher be in proper working condition is implicit in the standard.   The purpose of the cited standard is to assure that fire extinguishers are available when and where they [*64]   are needed.   See M-CO Equipment Co., 75 OSAHRC 37/C3, 2 BNA OSHC 1660, 1974-75 CCH OSHD P19,394 (No. 3811, 1975).   To conclude that an employer can comply with its obligation under the standard by providing inoperable fire extinguishers would defeat the standard's purpose.   Moreover, the judge correctly concluded that an extinguisher 10 to 12 feet from the derrick operator's station did not meet the standard's specifications.   In addition, the judge correctly found that NIC had constructive knowledge of the violation because the missing and discharged extinguishers here were readily apparent. n37 Thus we affirm this other than serious violation.

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n37 We reject Respondent's lack of knowledge argument based on its inspection sheets.   While the record is incomplete on this issue, it appears that NIC's last inspection occurred on July 6, 1976.   The OSHA inspection of the cited conditions occurred several days later; specifically, on July 15 or 16, July 26 and July 27.   This time lapse undercuts NIC's argument that it could not have known of the violative conditions with the exercise of reasonable diligence.   More important, the record does not indicate the type of extinguisher inspection conducted by NIC.   Therefore, we cannot determine whether the devices were truly in proper operating condition at the time of NIC's inspection.

  [*65]  

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Citation 5, Item 20: Section 1926.602(a)(9)(i) n38

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n38 The standard provides:

§   1926.602 Material handling equipment.

(a) Earthmoving equipment; General.

* * *

(9) Audible alarms. (i) All bidirectional machines, such as rollers, compactors, front-end loaders, bulldozers, and similar equipment, shall be equipped with a horn, distinguishable from the surrounding noise level, which shall be operated as needed when the machine is moving in either direction.   The horn shall be maintained in an operative condition.

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At the time of the inspection, an employee was operating a bidirectional front-end uniloader near three other employees.   The machine lacked a horn.   On cross-examination, Pechman conceded that the operator of the front-end loader had "all-around visibility." In affirming this other than serious violation, the judge rejected NIC's contention that the lack of a horn presented no hazard to employees.   He found   [*66]   that (1) employees worked near the uniloader and (2) all-around visibility cannot be substituted for an audible alarm.   On review, NIC argues that the Secretary failed to establish this violation by a preponderance of the evidence.   Having reviewed the record, we reject NIC's argument.   The violation has been established by a preponderance of the evidence and we therefore affirm this item.

III

For the reasons stated, we affirm the following serious violations as affirmed by the judge: citation 1, item 1b; citation 2; citation 3, items 1b(b) and 1c; and citation 4.   We also affirm the following other than serious violations in citation 5, as affirmed by the judge: items 3a, b and c; 6, 7, 8, 18 and 20.   Furthermore, we reverse the judge's decision vacating the following serious violations and affirm these items: citation 1, item 1a; and citation 3, items 1a and 1d.   We also reverse the judge's decision vacating the following other than serious items and affirm these items from citation 5: items 3d and 14.   Finally, we modify the judge's de minimis characterization of citation 5, subitems 10a and b, and affirm other than serious violations.

After considering the penalty factors [*67]   at section 17(j) of the Act, n39 we group the affirmed serious violations as listed in citations 1, 2, 3 and 4 and assess an $800 penalty for each of these citations, thus totalling $3200. n40 Furthermore, we find the following penalty amounts appropriate for the affirmed other than serious violations noted in citation 5:

Item 3	$ 40
Item 6	0
Item 7	0
Item 8	$ 40
Item 10	0
Item 14	$140
Item 18	0
Item 20	0

 

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n39 Section 17(j) of the Act, 29 U.S.C. §   666(i), provides:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

n40 NIC did not directly dispute the propriety of the penalty figures determined by the judge.   Based on the §   17(j) factors, we conclude that the amounts assessed by the judge are appropriate for each item he affirmed.

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Consequently, we affirm the violations as described above and assess a total penalty of $3420.

SO ORDERED.