UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 77–314
NATIONAL INDUSTRIAL CONSTRUCTORS, INC.,
Respondent.

January 21, 1981

DECISION

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

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 John J. Morris is before the Commission for review under section 12(j) of the Act, 29 U.S.C. § 661(i). In his decision, Judge Morris concluded that Respondent. National Industrial Constructors, Inc., committed a serious violation of the Act by failing to comply with the standard at 29 C.F.R. § 1926.500(d)(1)[1] and assessed a penalty of $400. In response to a petition for discretionary review filed by Respondent, Commissioner Barnako directed review of the judge’s decision to determine if the judge erred in rejecting Respondent’s affirmative defenses that compliance with the cited standard would have rendered performance of work impossible or created a hazard greater than the hazard created by non-compliance. We conclude that Respondent failed to establish either of those affirmative defenses. We therefore affirm the judge’s determination that Respondent committed a serious violation.

On January 12, 1977, compliance officer Donald Higley of the Occupational Safety and Health Administration inspected Respondent’s worksite near Sutherland, Nebraska, where it was building a coal-fueled power plant. As a result of that inspection, Respondent was issued a citation charging it with a serious violation of the Act for failing to comply with section 1926.500(d)(1). Specifically, the citation alleged that Respondent permitted its employees to work on a platform that did not have guardrails on its north and west sides to prevent employees from accidentally falling. The Secretary ordered immediate abatement and proposed a penalty of $400.

The platform at issue measured approximately 4 feet by 16 feet. It was situated towards the southeast corner of the building’s fourth floor, 60 feet above the next lowest level and 200 feet above the ground. The platform consisted of bridging timbers with plywood decking, and it rested on steel I-beams running from the north edge to the south edge of the fourth floor. The steel beams were spaced 8 to 10 feet apart. The north and west sides of the platform were not guarded and led directly onto the open steel grid upon which the platform rested. A guardrail had been installed on the south side of the platform. The east side of the platform abutted a temporary walkway, which ran to the southeast corner of the floor. This walkway was bordered on the side opposite the platform by the eastern wall of the building, where siding and had already been installed.

On the date of the alleged violation, a rigging crew consisting of four employees of Respondent repeatedly crossed over the platform as they moved dismantled components of A-frame rigging from the northwest corner of the fourth floor to the southeast corner for reassembly. The rigging crew’s function was to disassemble, move, and then reassemble the A-frame rigging which was used to support the multi-stage scaffolding used by crews of ironworkers who were putting sheet metal siding onto the outside walls of the building. Some components of the A-frame rigging were I-beams which each measured 20 feet in length and four inches in height, and weighed about 550–586 pounds.

After dismantling A-frame rigging on the northwest corner of the floor, the rigging crew slid some of the components of the rigging diagonally across the steel girders to the wooden platform. These components were brought onto the platform from its west side. Other components were pulled east in the ‘through’ of the north girder and then pushed down to the platform. These components were brought onto the platform from its north side. From the platform, the A-frame rigging was moved by way of the walkway to the southeast corner of the floor for reassembly. One of the rigging crew members testified that he came ‘right up to the outside edge’ of the platform’s unguarded sides while crossing from a beam to the platform. Another rigging crew member testified that he had come within 12 inches of those unguarded sides while moving the rigging.

When asked at the hearing whether it would have been possible to move the rigging if guardrails had been set up on the west and north sides of the platform, Barry Bane, Respondent’s Project Safety Engineer, testified: ‘No, it would not. It would have been virtually impossible for any two individuals, I would think, standing on the phlange of a beam to virtually lift 500 pounds or better 42 inches in the air and hand them over a handrail.’ On cross-examination, Bane was asked whether the I-beams could have been moved onto the platform by sliding them between the rails of a guardrail. He responded:

If you were coming from the west it is very possible. If you were coming from the north it would be almost virtually impossible because your structure members, which [were] on eight foot centers, were running north and south and you would have had to turn the beam in horizontal position running it to north and south. And in all likelihood it would have gotten away and gone down through the steel also.

According to Bane, ‘it would definitely have been unsafe’ to try to lift the I-beams over handrails if they had been installed on the platform edges at issue. Furthermore, one of the rigging crew members testified that it would have been ‘difficult’ to put the I-beams on the platform if railings had been installed all around the platform because of the necessity of lifting the beams up over the railing.

Compliance officer Higley testified that, when he returned to the worksite the day after the inspection, he noticed that the platform at issue had been ‘barricaded . . . off’ by a toprail and midrail installed at the end of the walkway leading to the platform.

In his decision, Judge Morris affirmed the citation item alleging a serious violation due to noncompliance with section 1926.500(d)(1). While acknowledging the ‘paucity of evidence from both parties’ regarding this alleged violation, the judge concluded that the evidence of record proved that guardrails should have been placed on all outside edges of the platform, but not so as to prevent access to the bridge, or walkway. He dismissed as ‘moot’ Respondent’s contention that it would have been impossible or more hazardous to require employees to lift the I-beams over guardrails because ‘the workers are not required to lift the beams over the guardrails.’ The judge concluded that Respondent’s installation of a guardrail after the inspection disposed of its feasibility argument. The judge assessed the $400 penalty proposed by the Secretary.

Respondent argues on review that the judge erred in rejecting its defenses of impossibility of performance and greater hazard. In particular, it asserts that Judge Morris erred in rejecting Respondent’s impossibility of performance defense solely because guardrails had been installed subsequent to the inspection. Respondent notes that those ‘subsequent’ guardrails were not installed at the northern or western edges of the platform, which were the subject of the citation, but were instead placed at the end of the walkway, which was at the southeast side of the platform. Respondent contends that blocking access to the walkway after all the A-frame rigging had been moved to the southeast corner does not establish that, while the moving operation was still in progress, performance of work with guardrails on the northern and western sides of the platform would have been possible. According to Respondent, the Secretary offered no testimony that would refute Bane’s statement that it would have been ‘unsafe’ to lift the I-beams over the allegedly necessary guardrails.[2]

The Secretary contends on review that the evidence of record does not show that, with regard to the unguarded western edge of the platform, the installation of a guardrail would have rendered performance of the work impossible or would have posed a greater hazard than that resulting from the absence of a guardrail. The Secretary argues, on the basis of Bane’s uncontroverted testimony (quoted above), that compliance with the cited standard would not have required Respondent’s employees to lift the beams over a guardrail on the western edge of the platform because, if the beams were coming from the west, the beams could have been moved by sliding them between the rails of the guardrail. The Secretary notes that, even if it would have been impossible or unsafe to install guardrails on the northern edge of the platform, Respondent was still required to place guardrails along the western side, citing Constructora Maza, Inc., 77 OSAHRC 213/B9, 6 BNA OSHC 1208, 1977–78 CCH OSHD ¶ 22,421 (No. 12434, 1977). Affirmance of the citation item alleging noncompliance with section 1926. 500(d)(1) and the $400 penalty assessed is thus urged by the Secretary.

III

We conclude that Judge Morris erred in basing his rejection of Respondent’s impossibility of performance and greater hazard defenses on the compliance officer’s testimony that Respondent ‘had barricaded the work platform off’ some one or two days after the alleged violation by installing a toprail and midrail across the end of the walkway. We agree with Respondent’s contention that the installation of guardrails at the end of the walkway to render the walkway inaccessible has no bearing on the issue of how possible or safe performance of required work would have been if guardrails had been placed at the northern and western edges of the platform on the day of the alleged violation when the moving operation was underway. Accordingly, Respondent’s affirmative defenses are not ‘moot.’

In order to establish the affirmative defense of impossibility of performance, the cited employer must prove that: (1) compliance with the requirements of the cited standard would preclude performance of required work, and (2) alternative means of employee protection are unavailable. M. J. Lee Constr. Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD ¶23,330 (No. 15094, 1979). To prove the affirmative defense of greater hazard, the employer must show that (1) the hazards created by compliance with the requirements of the cited standard are greater than those resulting from noncompliance, (2) alternative means of protecting employees are unavailable, and (3) a variance application under section 6(d) of the Act would be inappropriate. M. J. Lee Constr. Co., supra.

As noted by the Secretary on review, Respondent’s Project Safety Engineer Bane testified, without contradiction, that a guardrail on the west edge of the platform would not have prevented employees from moving an I-beam onto the platform through its west side because sliding it between the rails could have been accomplished. Although Bane stated that moving an I-beam onto the platform through the north side would have been ‘almost virtually impossible’ if a guardrail had been in place, he did not testify, nor does any evidence of record establish, that the rigging components moved onto the platform through the north side could not have been moved instead through the west side.

Moreover, the record contains no indication that guardrails on the north side of the platform would have interfered with Respondent’s work if all of the rigging components had been moved onto the platform from the west side. Under the Act, an employer may be required to change its operation methods in order to achieve compliance with a standard. See F. H. Lawson Co., 80 OSAHRC 19/A13, 8 BNA OSHC 1063, 1980 CCH OSHD ¶24,277 (No. 12883, 1980), appeal docketed, No. 80–3277 (6th Cir. April 21, 1980). Because Respondent has not proven that it could not have changed its operating procedure so as to transport all of the component I-beams through a guarded west side of the platform, Respondent has failed to establish that installation of guardrails on the platform’s northern and western edges would have precluded performance of the required work. Moreover, Respondent has not proven that those guardrails would have created a hazard greater than the falling hazard resulting from the failure to guard the edges of the platform. Under the operating procedure described above, it would not have been necessary to lift the I-beams over the guardrails. The ‘greater hazard’ suggested in Bane’s testimony therefore would not have been created.[3]

For the reasons given above, we affirm the judge’s conclusion that Respondent committed a serious violation of the Act by failing to comply with the standard at section 1926.500(d)(1), as well as the judge’s assessment of a $400 penalty for the violation.

IT IS SO ORDERED.

FOR THE COMMISSION:

RAY H. DARLING, JR.,

EXECUTIVE SECRETARY

DATED: JAN 21 1981

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 77–314
NATIONAL INDUSTRIAL CONSTRUCTORS, INC.,
Respondent.

January 9, 1978

APPEARANCES:

Thomas E. Korson, Esq., Office of Henry C. Mahlman, Associate Regional Solicitor, U. S. Department of Labor, Denver, Colorado, and Jamison Ann Poindexter, Esq., Office of T. A. Housh, Jr., Regional Solicitor, U. S. Department of Labor, Kansas City, Missouri, for the Complainant,

H. Lane Dennard, Jr., Esq., Greenville, South Carolina, and J. Taylor Greer, Esq., Lincoln, Nebraska, for the Respondent.

DECISION AND ORDER

John J. Morris, Judge:

Respondent was charged with using a lanyard to tow an I-beam and with failing to guard an open-sided platform thereby violating regulations promulgated under Section 654(a)(2), the specific duty clause, of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.)

Respondent contends the Act is unconstitutional and the construction standards[4] invalidly promulgated. Further NIC argues the safety belt standard is vague. On the evidence adduced at trial respondent asserts the safety belt standard is not applicable. In addition, respondent urges the use of the safety lanyard by its employee was conduct performed without respondent’s knowledge, in conflict with company rules, and an isolated incident. Respondent further states it took all reasonable steps to protect its workers.

In connection with item 2 respondent asserts the installation of a guardrail, as complainant suggests, would be impractical and create a greater hazard.

Respondent’s first contentions, threshold constitutional issues, assert the Act authorizes an unlawful search and also authorizes criminal proceedings conducted by an administrative process. These issues are not matters for adjudication by the Commission. Georgia Electric Company, OSHRC Docket No. 9339. However, this is the proper forum to raise such matters.

Nevertheless it is noted, concerning unlawful search, that respondent did not deny permission to the inspector to enter the worksite (Tr. 59–61). Generally, a party must interject the search issue at the time of the inspection. Lake Butler Apparel Company v. Secretary of Labor, 519 F.2d 85 (C.A. 7, 1975).

The appellate courts also consider the civil penalty portions of the Act to be civil, rather than criminal, in nature. Atlas Roofing Company, Inc. v. OSHRC et al., 518 F.2d 900 (C.A. 5, 1975) cert. granted on jury issue; affirmed 97 S.Ct. 1261; Beall Construction Company v. OSHRC, 507 F.2d 1041 (C.A. 8, 1974).

Concerning the promulgation of the construction standards, the Commission considered and denied the same exact arguments respondent now raises in Daniel Construction Company, OSHRC Docket No. 7734, 7662 (February, 1977). Respondent’s motions are denied.

Respondent’s remaining contentions require a review of the evidence.

CITATION 1, ITEM 1[5]

This citation alleges the use of a lanyard to tow an I-beam thereby violating 29 CFR 1926.104(a).

I find from the evidence, which is essentially uncontroverted, that a four-man NIC team dismantles and sets up, as needed, rigging for siding crews. The rigging gear consists mainly of A-frames, picks, and I-beams.

Cobb, an acting leadman, fell to his death on January 11, 1977. He and Luddington, an apprentice, had already positioned four A-frames. They would complete their task upon setting the last 20-foot I-beam across the top of the A-frames (Tr. 13–21, 45, Exhibit C–1).

A 20-foot I-beam weighs between 550 and 586 pounds. Cobb told Luddington where to stand, and the two men proceeded to slide the beam to the corner of the structure. Cobb directed Luddington to guide the beam while he pulled. During the sliding effort, Cobb removed his lanyard from his belt and hooked it in a small hole in the end of the I-beam. The beam came to rest across the 10-foot structural span and on top of a 10-inch I-beam or in a 10-inch deep C-trough.[6] Cobb was going to turn his end and slide the I-beam. Luddington was in the process of undoing his belt and crossing over the I-beam to retie his lifeline, when the beam slipped off the structural beam at Luddington’s end. The beam, with lanyard attached, pulled Cobb 60 feet to his death (Tr. 11–13, 21, 31, 45, Exhibits C–2, C–3, C–4).

Luddington considered Cobb to be his supervisor. Cobb received the foreman’s orders and daily work schedules. Luddington and co-worker Searle had never seen Cobb, nor anyone else in this crew, use a lanyard as Cobb did on this occasion. Everyone would recognize such use as improper.

Cobb’s immediate foreman had never observed anyone use a lanyard for a tow rope. The foreman had seen counterweights slid across a solid deck, but he thought such weights were pulled with ropes.

Cobb, a competent worker, and acting leadman, or pusher, was not a part of management nor did he have supervisory authority. He could not hire, fire, or discipline. He gave no instructions on his own but relied on the foreman’s orders. Cobb would tell the crew to go to certain locations, and the crew would then plan what to do. A leadman is paid more than other crew members, but an acting leadman does not receive any additional pay. The siding crew foreman also served as foreman for the four riggers. He would see Cobb two or three times a day (Tr. 110–118, 122–127).

NIC safety meetings, including those every Monday morning, encompass the proper use of safety belts. Company policy requires the tying off of lanyards. The wearing of safety belts is mandatory for workers outside of the permanent decking. In January, 1976 company policy required the discharge of workers not tied off. In June, 1976 the company policy was altered, and it permitted workers to be without belts if they were in the confines of the building. Suspension for first instance violations and termination for second instance violations were penalties for not complying with NIC safety belt regulations.

Each newly hired employee receives specialized safety orientation and a safety handbook. The orientation includes instructions not to use personal protective equipment as a tagline or towline. A safety inspector continually inspects all phases of the work (Tr. 43–45, 49, 54–56, 67, 74–76, 79–81, 95, 108–118, Exhibits A, C–12).

Respondent’s initial contention asserts § 1926.104(a) is too vague to provide adequate notice to an employer.

Respondent’s argument is not persuasive. The first case relied on by respondent, Connally v. General Construction Company, 269 U.S. 385 (1926), held a penal statute vague because it failed to define essential terms of ‘current rate’ and ‘locality’. The regulation here is clear, simple, and concise. Respondent’s second cited case, G.E. Drywall, Inc., OSHRC Docket 2825 involves an issue of whether § 1926.104(a) or § 1926.451(i)(8) applied to the facts in that case. Judge John J. Larkin ruled the more specific regulation applicable. The thrust of complainant’s case here involves the use of a lifeline other than for employee safeguarding.

Respondent’s second contention urges § 1926.104(a) does not specify when the safety equipment is to be used. Respondent argues complainant logically should have cited it in conjunction with a standard requiring a more detailed specific use of safety belt equipment such as § 1926.28(a), § 1926.451(i)(8), or § 1926.105(a).

Respondent’s brief[7] answers its own argument. It states: ‘[i]t is obvious from merely reading the standard that .104(a) was drafted to insure that safety devices such as lanyards and safety belts would be used for no other purpose other than fall protection because of the likelihood that they might be damaged or weakened if used for any other purposes.’

This is a correct evaluation of the intent of the standard. It follows that use of the safety devices such as complainant asserts here would constitute a violation of the regulation. The standards respondent suggests illustrate situations requiring proper use of personal protective equipment.

Respondent’s reliance on Underhill Construction Corp., OSHRC Docket No. 8096 and G. E. Drywall, supra, is misplaced. In Underhill the Commission clearly observed there was no evidence that respondent used the equipment for other than employee safeguarding. G.E. Drywall, as noted above, does not support respondent.

Respondent’s final contention is that Cobb’s actions were without the company’s knowledge; an isolated incident, and further, NIC argues it took all reasonable precautionary steps to protect its employees from reasonably foreseeable dangers.

Complainant counters contending Cobb’s actions are imputable to NIC. Complainant argues Cobb was essentially a foreman and the company representative for the other three workers of the rigging crew.

The Commission generally looks to the substance of the delegation of authority over other employees. Iowa Southern Utilities Company, OSHRC Docket No. 9295 (March, 1977). I find from the evidence that Cobb, an acting leadman or pusher, gave working instructions and relayed the foreman’s orders to the crew for dismantling and rigging the gear. The crew would plan what they would do after receiving the foreman’s orders. Luddington considered Cobb a superior. The person designed by NIC as foreman for the crew would only see Cobb two or three times a day. The distance the crew moved the rigging gear is not reflected in the record, but it was apparently substantial since four or five hours a day were spent in physically moving the gear (Tr. 23, 118, 123–125). I find the foregoing facts establish Cobb was in charge of activities involving some discretion. In view of this work he necessarily served in a supervisory capacity. His actions are imputed to NIC notwithstanding that he had no authority to hire, fire, or discipline other workers.

The Commission, however, does not impose strict liability on an employer if it did not know of the violation, constructively or otherwise, and took all necessary precautions to prevent the occurrence. Horne Plumbing and Heating Company v. OSHRC, 528 F.2d 564 (C.A. 5, 1976); and Ocean Electric Corp., OSHRC Docket No. 5811 (1975).

On the facts I find NIC did not have actual knowledge of Cobb’s bizarre use of his lanyard as a tow rope. No member of the crew nor any supervisory personnel previously observed such action by Cobb, or by anyone else.

Concerning constructive knowledge

Concerning constructive knowledge value in the testimony of witness Searle to the effect that workers used their lanyards to pull counterweights over solid decking (Tr. 55–57). His testimony on this issue is contradictory. It also unrelated in time to Cobb’s use. Further, it is not shown to have been known to NIC supervisory personnel. The record shows NIC discharged a worker in May, 1976 for using a safety belt as a towline, but no credible evidence supports the proposition that NIC had constructive knowledge of this violation (Exhibit R-F).

The ultimate question here is whether respondent took reasonable precautions to prevent this occurrence. I find when NIC hires a worker its safety director conducts a personal safety indoctrination with him. Included are instructions not to use lanyards as a tagline or tow rope. He also receives personal protective equipment, a safety handbook, and, as Cobb, he participates at weekly safety meetings. Proper methods of tying off are discussed at every Monday morning meeting between supervisors and workers. Management and supervisory safety meetings occur regularly.

A weekly punch list of infractions develops from daily safety inspections. If a safety hazard is deemed dangerous, immediate corrective measures are taken.

Disciplinary action, including termination, results for infraction of company safety rules (Tr. 43, 76, 77, 79, 80, 82, 108, 109–112, Exhibit B).

Complainant argues that no written policy prohibits the use of lanyards in the manner used by Cobb (Tr. 48).

This argument is not persuasive. There may well be a millennium of ways in which a lanyard can be improperly used. To require an employer to anticipate every such use with written instructions would be tantamount to the imposition of strict liability, an element not contemplated by the Commission, the Courts, or the Congress. Horne Plumbing and Heating Co., supra; Brennan v. Butler Lime and Cement Company, 520 F.2d 1001 (C.A. 7, 1975). The oral instruction to a new worker not to use a lanyard as a towline or tagline is sufficient, although an employer should also strive for written as well as oral directives.

Complainant urges respondent’s disciplinary policy was inconsistently applied and lacks credibility. He bases this argument on the fact that in January, 1976 respondent’s written directive requiring safety belts provided for ‘immediate discharge’, but in June, 1976 NIC mollified its rule without repeating the ‘immediate discharge’ feature. Further, in July, 1976 respondent changed its rules by mandating a 7-day suspension for first instance violation and termination for a second offense.

Contrary to complainant’s views, I interpret the NIC directives as genuine efforts seeking cooperation and compliance by its employees with the safety regulations (Exhibits C–12, D–1, D–2).

The ultimate question is whether the NIC safety policy was, in fact, effectively enforced. The uncontroverted evidence shows some disciplining of employees for not using safety belts. Worker terminations in 1976 for safety belt violations included six in February (Exhibits E–11, E–12, E–13, E–24); three in May (E–3, E–5, R-F); one in July (Exhibit E–6); three in August (Exhibits E–2, E–4, E–22); two in September (Exhibits E–7, E–25); and one in October (Exhibit E–9). In August, September and October, in addition to the above terminations, there were six suspensions for as long as seven days for violating safety belt regulations (Exhibits E–8, E–10, E–17 thru E–20). The records seem to reflect an employee is terminated even after the suspension directive if he refuses to comply with the regulations. NIC records reflect additional terminations for reasons not related to the use of safety belts and some of the records fail to indicate the specific reasons involved for the disciplinary action (Exhibit E–1, E–14, E–27).

I conclude respondent effectively enforced its safety policy and therefore established a defense under Commission precedent. Cf. Packerland Packing Co. of Texas, OSHRC No. 13315, November 17, 1977. Having reached this result, it is not necessary to consider the isolated incident doctrine. I vacate item 1 of citation 1 and any proposed penalty therefor.

CITATION 1, ITEM 2

This citation alleges respondent failed to guard an open-sided platform thereby violating 29 CFR 1926.500(d)(1).[8]

Respondent argues it would be virtually impossible as well as hazardous to require employees to lift a 550 pound I-beam 42 inches and hand them over a railing. Respondent further contends complainant failed to prove what respondent should have done to avoid the citation, and it argues it provided alternative protection to its workers.

The evidence is uncontroverted: Workers moving beams and A-frames come within twelve inches of the one unguarded side of the 4 by 16 foot crossover platform. A worker could fall sixty feet from the bridging timbers (Tr. 33–40, 51, 52, 62–63, Complainant’s Exhibits 5, 7, 8).

There is a paucity of evidence from both parties concerning this citation. NIC argues complainant requires a guardrail on all four sides of the crossover platform, but this view misconstrues the evidence. Guardrails on four sides would preclude the use of the passageway bridge.

I find the evidence here that guardrails should be placed on the outside edges of the bridging platform. No guardrails are to be placed in such a manner as to prevent worker access to the bridge.

Respondent’s initial contention is moot: the workers are not required to lift the beams over the guardrails. The action of respondent in installing a guardrail after the citation was issued disposes of the feasibility argument. The final argument that NIC provided alternative forms of protection lacks merit. Respondent did not show its workers used personal protective equipment on the bridge. In any event the use of one does not necessarily exclude the other. Item 2 of the citation must be affirmed.

Considering the criteria in 29 U.S.C. 666(i), the proposed civil penalty of $400 is appropriate and it must be affirmed.

EVIDENTIARY RULING

Complainant’s post-trial brief renews his objection to the admission of respondent’s Exhibit C. Complainant’s general objection (Tr. 94) carries little weight. McCormick on Evidence, 2nd Edition succinctly states the rule at Section 52 (page 115): ‘If the Judge overrules a general objection, the objecting party may not ordinarily complain of the ruling on appeal by urging a valid ground not mentioned when the objection was made.’ This case does not fall within any of the three exceptions to that rule. The exhibit was generally admissible. For example, Exhibit C contains properly identified diagrams and photographs showing the work area including where Cobb was standing and the point to which he fell. Also it includes safety reports kept in the course of business (Tr. 87–91, Exhibits C–6, C–7, C–8, C–9, C–10). Complainant’s objection is again overruled.

JURISDICTION

Respondent’s answer concedes jurisdiction and for the above stated reasons I enter the following:

ORDER

1. Citation 1, item 1 and all penalties therefor are vacated.

2. Citation 1, item 2 and the proposed civil penalty of $400 are affirmed.

SO ORDERED:

John J. Morris

Judge, OSHRC

Dated: January 9, 1978

[1] The standard provides:

Subpart M—Floor and Wall Openings, and Stairways

§ 1926.500 Guardrails, handrails, and covers.

(d) Guarding of open-sided floors, platforms, and runways.

(1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(1)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.

[2] Respondent also presents on review several arguments concerning issues that are not before us pursuant to the limited direction for review. We note the following with respect to those arguments. Respondent contends that section 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 section 8(a) violated 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 ¶ 23,847 (No. 76–1463, 1979), that noncompliance with the principles announced in Barlow’s is without retroactive remedy. Respondent 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. Respondent further asserts that the standards comprising 29 C.F.R. Part 1926, including the specific standard cited here, were invalidly promulgated under the Construction Safety Act, 40 U.S.C. § 333, and were therefore not validly promulgated under section 6(a) of the Act, 29 U.S.C. § 655(a). The Commission rejected that argument in Daniel Constr. Co., 77 OSAHRC 21/A2, 5 BNA OSHC 1005, 1976–77 CCH OSHD ¶ 21,521 (Nos. 7672 and 7734, 1977).

[3] Respondent also failed to prove that alternative forms of employee protection were unavailable. We note that at trial, Respondent established that it had a well-enforced work rule which required that employees use safety lines while on the steel grid. But Respondent did not prove that it enforced its safety line rule for employees working on the adjacent platform. Also, as Judge Morris concluded, the evidence discloses that the employees did not actually use safety lines or other forms of fall protection while on the platform. Accordingly, Respondent did not establish the second element of both of its affirmative defenses, i.e., the unavailability of alternative protection.

[4] 29 CFR Part 1926.

[5] § 1926.104 Safety belts, lifelines, and lanyards.

(a) Lifelines, safety belts, and lanyards shall be used only for employee safeguarding. Any lifeline, safety belt, or lanyard actually subjected to in-service loading, as distinguished from static load testing, shall be immediately removed from service and shall not be used again for employee safeguarding.

[6] I find from Exhibit C–2 and the supporting testimony that the I-beam necessarily came to rest on a structural beam before it fell.

[7] NIC post-trial brief, page 11.

[8] § 1926.500 Guardrail, handrails, and covers.

(d) Guarding of open-sided floors, platforms, and runways.

(1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(1) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.