GLOBE INDUSTRIES, INC.  

OSHRC Docket No. 77-4313

Occupational Safety and Health Review Commission

April 30, 1982

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

COUNSEL:

Office of the Solicitor, USDOL

William S. Kloepfer, Associate Regional Solicitor, USDOL

John T. Landwehr, for the employer

OPINION:

DECISION

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   A decision of Administrative Law Judge George O. Taylor, Jr., is before the Commission for review under section 12(j) of the Act, 29 U.S.C. §   661(i).   In his decision, Judge Taylor affirmed a citation issued by the Secretary of Labor ("the Secretary") alleging a serious violation of the Act for failure to comply with the standard at 29 C.F.R. §   1910.23(c)(1) n1 in that guardrails were not installed along the open side on the top of each of two conveyor belts. Former Commissioner Barnako directed review of this case on the issues raised in the petition for discretionary review filed by Respondent, Globe Industries, Inc., including the determinative issue of whether the judge erred in concluding that the tops of the conveyors were "platforms" within the meaning of the cited standard.

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n1 The standard provides in pertinent part:

Subpart D -- Walking-Working Surfaces

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§   1910.23 Guarding floor and wall openings and holes.

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(c) Protection of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides except where there is entrance to a ramp, stairway, or fixed ladder.

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For the reasons stated below, we conclude that section 1910.23(c)(1) does not apply to the cited conditions because the tops of the conveyors are not "platforms" within the meaning of that standard.   Therefore, we reverse the judge and vacate the citation. n2

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n2 In its petition for discretionary review, Respondent also raises these other issues: (1) whether the judge erred in concluding that §   1910.23(c)(1) is not unenforceably vague as applied in this case; (2) whether he erred in concluding that Respondent had actual or constructive knowledge of the violation; (3) whether he applied an improper test to determine if the violation was "serious" when he considered whether an employee could, rather than would, experience serious physical harm or death; and (4) whether, applying what Respondent argues is the proper test for seriousness, the evidence establishes a substantial probability that an employee falling from the conveyor would suffer serious physical harm or death.   In light of our conclusion that the standard does not apply to the cited conditions, we need not reach these other directed issues.

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I

In November 1977, Christine Besozzi, Safety Specialist with the Occupational Safety and Health Administration, conducted an inspection of Respondent's plant in Oregon, Ohio, where Respondent was manufacturing automotive sound-deadening material used in floor boards and trunks.   As a result of the inspection, the Secretary issued a citation alleging that Respondent had committed a serious violation of the Act in not complying with 29 C.F.R. §   1910.23(c)(1) by failing to guard the tops of two of its conveyor belts. The Secretary proposed a penalty of $210.

The two cited conveyor belts are used in the process of manufacturing Respondent's product.   According to Brian Meeker, Respondent's plant manager, the two stainless steel conveyor belts at automotive production lines 1 and 2 are "the backbone of the process for the most part." After the acoustical material is "coated out in a hot form," in the shape of a flat sheet, it is cooled on the conveyor belt, which has cold water sprays underneath it.   As it moves along the conveyor belt, the material passes under a guide roller that keeps it from lifting [*4]   so far off the belt that it cannot be cooled properly.

Asphalt that builds up on the rollers is cleaned off by one of Respondent's employees -- usually once a week on Saturdays, when the manufacturing operation is shut down and the conveyor belts are locked out.   Other than to clean the rollers, Respondent's employees are not required to be on top of the conveyors. Cleaning the roller on each conveyor takes about 15 minutes.   The photograph identified as Exhibit R-1 shows an employee cleaning one of the rollers in the usual manner while in a crouching position midway across the flat surface of the line 2 conveyor. As demonstrated in the film comprising Exhibit R-2, an employee assigned to clean the roller reaches that position by climbing the three-step ladder on the right side of the conveyor, stepping onto the grated platform, stepping onto the conveyor, and moving diagonally a short distance across the conveyor to the roller. When the roller has been cleaned, the employee reverses his or her path to descend from the conveyor. While bending over, kneeling, or crouching, the employee uses a hand scraper to clean the asphalt, which is soft, from the roller. Sometimes the employee [*5]   washes down the roller with a solvent.   The distance between the top of the machine and the concrete floor is 5 feet 3 inches, with several components of the machine projecting outward from the side of the machine to the right side of the employee.   As noted in the citation, the Secretary alleged that on the top of that side of each machine, next to the ladder and grated platform, was an open space through which employees could fall to the concrete floor. Each machine was 8 feet 9 inches wide, with a conveyor belt 7 feet 8 inches wide, upon which rode the manufactured material, which was approximately 6 feet 1 inch wide.   Respondent instructed its employees to work from the center of the conveyor belt when cleaning the rollers. When following these instructions, an employees cleaning the roller would be no closer than 2 to 3 feet from the edge of the machine.

II

In his decision, Judge Taylor rejected Respondent's contention that the conveyor belts in question are not "platforms" within the meaning of that term as set forth in the Commission's decision in Allis-Chalmers Corp., 76 OSAHRC 50/F8, 4 BNA OSHC 1227, 1975-76 CCH OSHD P20,666 (No. 5210, 1976). n3 The judge noted that [*6]   in Weyerhaeuser Co., 77 OSAHRC 9/A2, 4 BNA OSHC 1972, 1976-77 CCH OSHD P21,465 (Nos. 1231 & 1758, 1977), aff'd in pertinent part, 614 F.2d 199 (9th Cir. 1980), a decision issued over eight months after Allis-Chalmers, the Commission held that section 1910.23(c)(1) required the employer to install guardrails on the top of a dryer.   Relying on Weyerhaeuser, Judge Taylor concluded that the tops of Respondent's conveyors were "platforms" as defined in 29 C.F.R. §   1910.21(a)(4) n4 in that they were "'elevated' more than 5 feet 'above the surrounding floor'" and "respondents employees regularly perform work atop the conveyors by cleaning the rollers"; therefore, the judge continued, "the conveyors are 'working space[s]' while this cleaning is being done." The judge went on to hold that Respondent failed to comply with section 1910.23(c)(1) and that the violation was serious.   He assessed a penalty of $1.

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n3 On review, Respondent abandons both its reliance on Allis-Chalmers Corp. and its underlying factual assertion that its employees were working on the surface of a product that was being manufactured.   Accordingly, we need not reach the question of whether the judge properly rejected Respondent's post-hearing contention.

n4 The term "platform" is defined in §   1910.21(a)(4) as follows:

Subpart D -- Walking-Working Surfaces

§   1910.21 Definitions.

(a) As used in §   1910.23, unless the context requires otherwise, floor and wall opening, railing and toe board terms shall have the meanings ascribed in this paragraph.

* * *

(4) Platform. A working space for persons, elevated above the surrounding floor or ground; such as a balcony or platform for the operation of machinery and equipment.

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III

Respondent contends on review that, based on General Electric Co. v. OSHRC, 583 F.2d 61 (2d Cir. 1978) ("G.E. v. OSHRC"), rev'g, 77 OSAHRC 88/A2, 5 BNA OSHC 1448, 1977-78 CCH OSHD P21,853 (No. 11344, 1977), Judge Taylor erred in concluding that the tops of Respondent's conveyors were "platforms." Respondent notes that in G.E. v. OSHRC the court set forth a lengthy analysis of section 1910.23(c)(1) and held that the top of an industrial oven upon which employees occasionally stood to perform maintenance work on two circulation and exhaust motors was not a "platform." Respondent asserts that, based on footnote 9 in the court's decision, n5 a surface is a "platform" only if the work performed on it is "central to the processes of the employer." Noting that Judge Taylor gave no consideration to the nature of the work performed on the conveyors but instead looked solely to the fact that employees occasionally performed work on them, Respondent contends that the work done on the conveyors when the production line is shut down and locked out, like the work done on the ovens in G.E. v.   [*8]    OSHRC, is "infrequent, incidental maintenance work rather than work central to the process of the employer."

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n5 Footnote 9 of the court's decision, 583 F.2d at 66-67, reads in pertinent part as follows:

The cases discussed in the text are, in our opinion, only the more important cases on point; there are others, all of which demonstrate not only the confusion generated by the term "platform" but also the single thread of continuity that we have been able to discover -- whenever a "platform" has been found to exist, workers have been assigned to do work on that surface with some regularity and the nature of the work assigned has been central to the processes of the employer.   We have found no case where a worker's presence on a flat surface merely for the performance of infrequent maintenance functions has been used as a basis for holding such a surface to be a "platform."

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The Secretary did not submit a brief on review; instead, he filed a letter stating his reliance on the judge's decision and the record below.   [*9]  

IV

We find the following reasoning of the United States Court of Appeals for the Second Circuit in G.E. v. OSHRC to be especially applicable to the case now before us:

We do not read this definition [of "platform"] to apply to every flat surface over four feet high upon which employees may some day stand while performing some task related to their employment and the operations of their employer.   An elevated flat surface does not automatically become a "working space" and a "platform" merely because employees occasionally set foot on it while working.

583 F.2d at 64. See also, Rexco Industries, Inc., 80 OSAHRC 32/A2, 8 BNA OSHC 1227, 1229, 1980 CCH OSHD P24,376 at p. 29,708 (No. 15350, 1980).   The Commission has a "responsibility to be 'reasonable' in interpreting the standards cited in cases before it".   G.E. v. OSHRC, 583 F.2d at 67. See Donovan v. Anheuser-Busch, Inc., 666 F.2d 315 at 327 (8th Cir. 1981), pet. for reh. den. (8th Cir. January 20, 1982) (standards should be "given a reasonable and commonsense interpretation").   The court in G.E. v. OSHRC concluded that, in light of the definition at section 1910.21(a)(4), application of section [*10]   1910.23(c)(1) to G.E.'s oven top, instead of being reasonable, "would go too far -- it would be inconsistent with the working of the standard and it would create considerable doubt that the standard provides to employers fair warning of the conduct which it prohibits or requires." 583 F.2d at 67-68. Furthermore, the court noted the lack of any Commission decision holding a flat surface upon which "infrequent maintenance functions" were performed to be a "platform." n6 See note 5 supra. In General Electric Co., 81 OSAHRC 97/D6, 10 BNA OSHC 1144, 1146, 1981 CCH OSHD P25,736 at p.32,100 (No. 76-2879, 1981), our most recent decision interpreting section 1910.21(a)(4) so as to determine the applicability of section 1910.23(c)(1), the Commission exercised "its responsibility to be 'reasonable'" and concluded that, "[a]lthough employees working on the cited surfaces could be exposed to a fall hazard, it would be incongruous to characterize a narrow ledge less than two feet wide on a turbine shell as a 'platform' requiring guardrails." Having determined that the cited joints of the turbine shells were not "platforms," we held that the cited standard at section 1910.23(c)(1) did not [*11]   apply.

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n6 In Donovan v. Anheuser-Busch, Inc., 666 F.2d at 328, the United States Court of Appeals for the Eighth Circuit concluded that the cited surfaces were "platforms" and noted that the facts in that case "differ materially" from those in G.E. v. OSHRC, in which only "occasional maintenance" work was done.   We consider the facts in the case now before us to be far closer to those in G.E. v. OSHRC than to those in Donovan v. Anheuser-Busch, Inc. Accordingly, it is the Second Circuit case rather than the Eight Circuit case that provides guidance in resolving the issue in the case now before us.

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Applying the principles above to the facts in the instant case, we conclude that it would not be reasonable to characterize the tops of Respondent's two cited conveyor belts as "platforms" within the meaning of the definition at section 1910.21(a)(4).   The employees walked across or stood on the conveyors only during the weekly cleaning of the guide rollers, when the manufacturing process was shut down.    [*12]   See G.E. v. OSHRC, supra. We note that the conveyors were "the backbone" of Respondent's production process; they were designed and used primarily to transport and cool acoustical material.   The film introduced by Respondent clearly demonstrates that the cited conveyor belts were simply "conveyors" not "platforms" as those terms are commonly understood.   In view of the totality of the facts in this case, acceptance of the Secretary's position that this work transformed the conveyor belts into "platforms" would stretch that term beyond its plain meaning and lead to results that conflict with the common understanding of what a platform is. n7 We therefore reverse the judge n8 and conclude that the cited standard at section 1910.23(c)(1) does not apply to the tops of the conveyors. Accordingly, we vacate the citation alleging a serious violation of the Act based on noncompliance with section 1910.23(c)(1), as well as the penalty proposed therefor.

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n7 Chairman Rowland would follow the analysis set forth by former Commissioner Moran in Allis-Chalmers Corp., 76 OSAHRC 50/F8, 4 BNA OSHC 1227, 1975-76 CCH OSHD P20,666 (No. 5210, 1976).   Consistent with former Commissioner Moran's reasoning, Chairman Rowland notes that the use of the word "balcony" and the phrase "for the operation of machinery and equipment" in section 1910.21(a)(4) suggests that an elevated surface is not a "platform" unless it is erected and designed for use by employees while operating "machinery and equipment." In this case, the cleaning process did not involve the "operation of machiner" or mechanical equipment; rather, a small hand scraper was used to remove the asphalt from the rollers.

n8 With regard to Judge Taylor's reliance on Weyerhaeuser Co., supra, in his decision, Commissioner Cleary notes that that case is distinguishable from the instant one based on its facts.

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IT IS SO ORDERED.  

DISSENTBY: COTTINE

DISSENT:

COTTINE, Commissioner, dissenting:

The issues in this case were correctly decided by Judge Taylor and the reversal of his decision represents an unwarranted departure from Commission precedent.

I

In Weyerhaeuser Co., 77 OSAHRC 9/A2, 4 BNA OSHC 1972, 1976-77 CCH OSHD P21,465 (Nos. 1231 & 1758, 1977), aff'd in pertinent part, 614 F.2d 199 (9th Cir. 1980), the Commission concluded that the top of a dryer 14 feet high on which an employee regularly performed work constituted a "platform" within the meaning of section 1910.21(a)(4). n1 Furthermore, in General Electric Co., 75 OSAHRC 50/A2, 3 BNA OSHC 1031, 1974-75 CCH OSHD P19,567 (No. 2739, 1975), rev'd on other grounds, 540 F.2d 67 (2d Cir. 1976) ("General Electric I"), the Commission held that horizontal stator frames (component parts of turbine generators) on which two employees performed welding more than 15 feet above the surrounding surface were platforms, stating that the protective purpose of the Act is "best served by a broad construction of the word 'platform' in the standard." 3 OSHC at 1043, 1974-75 [*14]   CCH OSHD at p. 23,369. And, in California Rotogravure Co., 75 OSAHRC 31/A2, 2 BNA OSHC 1515, 1974-75 CCH OSHD P19,240 (No. 668, 1975), petition denied on other grounds, No. 75-1743 (9th Cir. Jan. 25, 1977), the Commission concluded that a flat roof over an office was a platform because employees occasionally performed work on the surface. Thus, under longstanding Commission precedent a surface on which employees actually work that is raised above the surrounding floor or ground generally constitutes a platform. See Rexco Industries, Inc., 80 OSAHRC 32/A2, 8 BNA OSHC 1227, 1980 CCH OSHD P24,376 (No. 15350, 1980) (dissenting opinion).   In this case, there are no sufficient grounds for concluding that the raised working surfaces used regularly by the employees for cleaning the conveyor rollers are not platforms.

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n1 Subpart D -- Walking-Working Surfaces

§   1910.21 Definitions.

(a) As used in §   1910.23, unless the context requires otherwise, floor and wall opening, railing and toe board terms shall have the meanings ascribed in this paragraph.

* * *

(4) Platform. A working space for persons, elevated above the surrounding floor or ground; such as a balcony or platform for the operation of machinery and equipment.

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The judge properly decided this issue by relying on Weyerhaeuser Co., supra, as controlling Commission precedent and the majority fails to distinguish or discuss this case in any meaningful manner. n2 In Weyerhaeuser a dryer tender went onto the surface once or twice a week to conduct a routine inspection, which took approximately 10 minutes.   In addition, once a month the same employee worked on the surface for about an hour blowing off accumulated dust.   In this case an employee went onto each of the conveyor tops once a week to perform a cleaning operation that took approximately 15 minutes.   Also, in both cases the employees' assigned dutes were performed away from the unguarded edge of the surface. Thus, the primary exposure to a fall hazard occurred in both cases when the employee ascended to or decended from the surface. Accordingly, there is no significant difference between the two cases either in terms of the type of work that was performed or in terms of the frequency and duration of the work.   Furthermore, in Weyerhaeuser the relevant surface was 14 feet wide. In this case [*16]   the two surfaces at issue are each 8 feet 9 inches wide.

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n2 In footnote 8 of the lead opinion Commissioner Cleary states that the Weyerhaeuser Co. case "is distinguishable from the instant one based on its facts." Significantly, he fails to point to a single factual distinction between the two cases.

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Both cases are distinguishable from General Electric Co., 81 OSAHRC 97/D6, 10 BNA OSHC 1144, 1981 CCH OSHD P25,736 (No. 76-2879, 1981) ("General Electric III"), which is the only Commission precedent cited by the majority in support of its decision in this case.   In General Electric III employees worked atop 2-foot-wide horizontal ledges on turbine shells. The Commission considered the ledges to be inappropriate working surfaces and potentially dangerous.   Scaffolding and mobile ladder stands were present and the Commission stated that "[t]o require compliance with the scaffolding standard, 29 C.F.R. §   1910.28(a)(1), or the standard governing mobile ladder stands, 29 C.F.R. §   1910.29, would be more appropriate [*17]   and would protect employees." 10 OSHC at 1146, 1981 CCH OSHD at p. 32,100 (footnote omitted).   The Commission also noted that "it would be incongruous to characterize a narrow ledge less than two feet wide on a turbine shell as a 'platform' requiring guardrails." Id. The Commission's ruling in that case with respect to the potentially dangerous, undersignated work surface, where guardrails were not an appropriate means of abatement and other means of abatement were apparent, cannot be extended to this case where the work surface was used regularly at the company's direction and guardrails would constitute appropriate abatement.

The court of appeals cases relied on by the majority do not support its position.   In General Electric Co. v. OSHRC, 583 F.2d 61 (2d, Cir. 1978) ("General Electric II"), the Second Circuit interpreted the cited standard to apply "only to elevated working spaces, 4 feet or [more] above ground level, which are designed primarily for the operation of machinery and equipment and which require employee presence on a predictable and regular basis; and not to spaces where only occasional maintenance or repair work is performed." Id. at 65. Here the [*18]   working surface was 5 feet 3 inches above ground level, was designed for the operation of machinery and requires employee presence on a predictable and regular basis -- approximately weekly.   This is not the infrequent or unscheduled "occasional maintenance or repair work" referred to by the Second Circuit.

In Donovan v. Anheuser-Busch, Inc., 666 F.2d 315 (8th Cir. 1981), reh'g denied, No. 80-1743 (Jan. 20, 1982), the Eighth Circuit affirmed a violation because the tops of can-line pasteurizers about 6 feet high, 25-30 feet wide and about 100 feet long in a brewery were unguarded. Employees walked on the pasteurizer tops for a bi-weekly inspection of machinery, periodic repairs of machinery, periodic cleaning of the pasteurizer and regular work tasks and inspections during each shift.   The court found that employees were required to go on the pasteurizer tops on a predictable and regular basis and that a violation existed even under the restrictive Second Circuit test in General Electric II. n3

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n3 The Eighth Circuit criticized the test in General Electric II by pointing out that the phrase "such as a balcony or platform for the operation of machinery and equipment" in §   1910.21(a)(4) does not restrict the definition of "platform" to areas "designed primarily for the operation of machinery and equipment." It also noted that the phrase includes balconies and platforms as examples and does not restrict the kinds of surfaces covered "when given a reasonable and commonsense interpretation." 666 F.2d at 326-27. For this reason, I reject Chairman Rowland's restrictive interpretation of that phrase, slip. op. at n.7.

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In Rexco Industries, supra, the majority failed to explain adequately its departure from Commission precedent regarding the meaning of "platform." In this case the majority also provides no explanation as to why it is reasonable to characterize the surfaces in Weyerhaeuser, General Electric I and California Rotogravure as platforms, yet unreasonable to characterize the top of these conveyors as "platforms." This omission conflicts with the Commission's duty to provide uniformity and consistency in the application of the Act and its standards.   As the court observed in Brennan v. Gilles & Cotting, Inc., "[w]hile administrative agencies can change previously announced policies, . . . and can fashion exceptions and qualifications, they must explain departures from agency policies or rules apparently dispositive of a case." 504 F.2d 1255, 1264 (4th Cir. 1974).

For the reasons set forth above, I would affirm the judge's conclusion that this conveyor was a platform.

II

The remaining contentions on review concern the alleged vagueness of the standard, Respondent's requisite knowledge,   [*20]   and the characterization of the violation as serious.   I would affirm the judge's conclusions.

Judge Taylor rejected Respondent's contention that section 1910.23(c)(1) is unenforceably vague as applied to these conveyors noting that "[i]t requires no imagination whatsoever to conclude that a working space is a space where an employee is located while performing work." He further observed that it was obvious both that the conveyors were more than 4 feet above the floor and that substantial portions of the conveyors were unguarded on the sides where the employee gained access to them.   The judge correctly decided this issue.   See General Electric I, supra; See also George C. Christopher & Sons, Inc., 10 BNA OSHC 1436, 1982 CCH OSHD P25,956 (No. 76-647, 1982).

Respondent also challenges the conclusion that it had knowledge of the violation.   "Knowledge" in this context is knowledge of the conditions constituting the violation, not knowledge that a standard was violated.   George C. Christopher & Sons, Inc., supra. I would affirm the judge's conclusion for the reasons stated in his decision.

Respondent also argues that the judge erred in finding the violation [*21]   to be serious. n6 Respondent asserts that Judge Taylor applied an improper test when he considered whether an employee could, rather than would, experience serious physical harm or death.   It then argues that the evidence does not establish a substantial probability that an employee falling from the conveyor would suffer serious physical harm or death.

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n6 A "serious" violation is defined at section 17(k) of the Act, 29 U.S.C. §   666(j), as follows:

For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

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After stating that "[t]he testimony that serious injuries were not likely to result [*22]   from a fall is incredible," Judge Taylor concluded that "[i]t is substantially probable that a falling employee could strike his head, arm, shoulder, or knee on the concrete floor below the conveyor and that death from a head injury or serious physical harm, such as broken bones, could result." (Emphasis in original.) The judge applied the proper test for determining whether a violation is serious, i.e., whether there was a substantial probability that an employee who fell off the unguarded side of one of the conveyor tops could suffer serious injury or death.   Anaconda Aluminum Co., 81 OSAHRC 27/A2, 9 BNA OSHC 1460, 1476, 1981 CCH OSHD P25,300 at p. 31,349 (No. 13102, 1981).   See also Hermitage Concrete Pipe Co., 82 OSAHRC    , 10 BNA OSHC 1517, 1982 CCH OSHD P25,975 (No. 4678, 1982).   In applying this test, the judge correctly held that the Secretary sustained his burden of proving a substantial probability that serious injury or death could result if an employee fell from the tops of the conveyors onto the concrete floor. n7

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n7 The Respondent points out that the Secretary's Field Operations Manual defines "other-than-serious violations" as follows:

This type of citation shall be issued in situations where an accident or occupational illness resulting from violation of a standard would probably not cause death or serious physical harm, but which [sic] would have a direct or immediate relationship to the safety or health of employees.   An example of "other" violation is the lack of guardrail at a height from which a fall would more probably result in only a mild sprain or cut and abrasions; i.e., something less than serious physica harm.

Occupational Safety and Health Administration, U.S. Dept. of Labor, Field Operations Manual ch. VIII, P B.2.a. (1974, as amended).   However, the Field Operations Manual is merely directory and serves only as an internal administrative guide for OSHA.   It does not have the force of law and thus is not binding on the Secretary or the Commission.   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, No. 79-1398 (10th Cir. Dec. 2, 1980).

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Accordingly, I would affirm Judge Taylor's decision finding Respondent

Accordingly, I would affirm Judge Taylor's decision finding Respondent in serious violation of the Act based on its noncompliance with section 1910.23(c)(1).