UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
OSHRC DOCKET NO. 77–2553
POWER PLANT DIVISION, BROWN & ROOT, INC.,
July 27, 1982
Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
BY THE COMMISSION:
A decision of Review Commission Judge Dee C. Blythe is before the Commission for review under section 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 principal issue in this case is whether the perimeter guarding standard for construction work at 29 C.F.R. § 1926.500(d)(1) is applicable to the working conditions in question. In particular, we must determine whether the judge correctly held that a flat surface inside a large air duct that was being constructed was an ‘open-sided floor’ within the meaning of the standard. We conclude that the Secretary of Labor (‘the Secretary’) established that the cited standard is applicable here and we affirm the administrative law judge’s finding of a violation.
At the time of the Secretary’s inspection, Respondent, Power Plant Division, Brown & Root, Inc., was engaged in the construction of a power plant in Thompson, Texas. In the course of construction, Respondent installed a large inverted-U-shaped air duct. The duct was fabricated on the ground in sections, which were then raised into position by crane and welded together into a configuration that created an elevated flat surface inside the crook of the inverted ‘U’, approximately 6 to 8 feet below the flattened top of the duct. This elevated flat surface, which was approximately 12 feet long and 12 feet wide, separated two parallel vertical shafts, each with an opening that was also approximately 12 feet square. The other two sides of the flat surface were connected to the bulkhead created by the interior of the air duct.
During the assembly process, it had been necessary for employees to be inside the duct on the elevated flat surface in order to guide the sections into position. Accordingly, at the time of the inspection, the remains of some scaffolding, apparently used by those employees, still were welded to the surface in question. In addition, a doubled wire rope was strung parallel to and above one edge of the surface. This edge was adjacent to the opening into one of the vertical shafts and approximately 43 feet above the base of that shaft. The record indicates that Respondent had installed the wire in anticipation of workers’ entering the duct as part of final clean-up activity which, at the time of the inspection, was still to come. It is undisputed that this wire, which was 38–½ inches above the elevated flat surface, did not constitute a standard guardrail.
Approximately 1–½ months after the duct was installed, Respondent’s supervisors located a ‘pin-hole’ in the duct’s metal plate as a result of a defective weld. The ‘pin-hole’ was in the bulkhead, some 3 feet from the edge of the flat surface where the wire rope has been installed. After they had inspected the ‘pin-hole’ from the vantage point of the elevated surface inside the duct, the supervisors assigned two welders to patch the weld. Although the record indicates that the welding could have been done on the outside, one of the welders entered the duct alone through an existing temporary access hole cut in the bulkhead, apparently in order to see the light shining through the defective weld. But for the temporary access hold cut in the bulkhead, there was no source of light in the duct. The welder was later found dead at the bottom of the duct shaft that was adjacent to the edge of the surface where the wire rope had been strung.
On review, Respondent charges that Judge Blythe erroneously determined that the elevated flat surface at issue was a ‘floor’ within the meaning of the cited standard. As in its post-hearing arguments, Respondent cites an unreviewed judge’s decision regarding a standard pertaining to steel erection as sole authority for its contention that there is a difference in the degree of employee protection required for temporary flooring as opposed to that required for permanent flooring and that section 1926.500(d)(1) applies only to the latter. Because the surface in question was not a permanent floor, it continues, the judge erred in concluding that the cited standard was applicable. Instead, the judge should have accepted Respondent’s contentions that the conditions were governed by 29 C.F.R. § 1926.28(a) and that it was not in violation of that standard because the deceased employee’s failure to use personal protective equipment was the result of his own unpreventable misconduct. Respondent summarizes its position as follows: it evaluated the hazard presented and selected a ‘mode of compliance’—safety belts and lifelines. The Secretary, in hindsight, determined that another means of compliance was better, while admitting that Respondent’s chosen means would have eliminated the hazard. Accordingly, in Respondent’s view, the citation should be vacated.
It is well settled that the burden of proving that a particular standard applies to the cited working conditions is on the Secretary. Howard Barthelmass Painting Company, Inc., 81 OSAHRC 84/E1, 9 BNA OSHC 2160, 1981 CCH OSHD ¶ 25,637 (No. 78–5450, 1981). Here, the cited standard is applicable to every open-sided floor or platform 6 feet above adjacent floor or ground level. It is not disputed that this elevated flat surface was more than 6 feet above adjacent floor or ground level; thus the sole remaining question is whether it was a ‘floor’ or ‘platform’ within the meaning of the standard.
In his decision, Judge Blythe noted the absence of a definition of ‘floor’ in the Secretary’s standards or in Commission decisions. Consequently, the judge resorted to the dictionary. He noted that Webster’s Third New International Dictionary contains numerous definitions of ‘floor,’ including: ‘the bottom or lower part of any room: the part of a room upon which one stands’; ‘the lower inside surface of any hollow structure . . .’; and ‘the surface or the platform of a structure on which to walk, work or travel . . ..’ The judge determined that it would be unrealistic to apply a restrictive definition of ‘floor’ to a structure such as the generating plant here. Therefore, he opted for a broad definition compatible with the remedial purpose of the Act. He concluded that, because work had been and remained to be done from and on this surface, it was a working-walking surface and, thus, a ‘floor’ within the meaning of the cited standard, which required that standard guarding be installed on its open sides.
The record clearly establishes that the surface at issue was a working-walking surface. The evidence indicates that, weeks before the fatal accident, Respondent had used the surface during the process of assembling the air duct and had erected the line in the duct in anticipation of its employees’ performing clean-up activities, such as removing the remains of the scaffold erected on the surface. Respondent’s supervisors entered the duct on the morning of the accident to inspect the defective weld. They then directed the deceased to patch the hole and he, too, tread upon the surface in order to perform that assignment. We conclude, therefore, that Respondent’s employees used the surface at issue in the performance of their work and were entitled to the fall protection which the cited standard is intended to provide. Commissioner Cleary agrees with the judge’s conclusion that the working surface was a floor. Commissioner Cottine finds that the surface was a platform under the definition in 29 C.F.R. § 1926.502(e) and thus finds it unnecessary to determine whether it also was a floor.
Respondent also asserts in effect that the Secretary acted arbitrarily in concluding that the working conditions were governed by the cited standard rather than 29 C.F.R. § 1926.28(a). However, the standard at section 1926.500(d)(1) is more specific than that at section 1926.28(a), and therefore takes precedence. See Tri–State Roofing and Sheet Metal Co., 77 OSAHRC 208/A2, 6 BNA OSHC 1152, 1 77–78 CCH OSHD ¶22,409 (No. 16121, 1977) (lead opin.). Therefore, the citation properly alleged noncompliance with section 1926.500(d)(1). Respondent further asserts that its mode of compliance—safety belts and lifelines—would have eliminated the hazard, but for the isolated incident of employee misconduct by the deceased, who failed to use his safety belt. We also reject this contention. The Commission has held that safety belts are not ‘equivalent protection’ to guardrails within the meaning of section 1926.500(d)(1). Warnel Corp., 76 OSAHRC 41/C5, 4 BNA OSHC 1034, 1975–76 CCH OSHD ¶20,576 (No. 4537, 1976). Moreover, Respondent’s argument that its employee’s failure to tie off his safety belt was unpreventable employee misconduct does not establish a defense to a citation where, as here, the violation alleged is the lack of a standard guardrail around an open-sided floor. See Wander Iron Works, Inc., 80 OSAHRC 40/A2, 8 BNA OSHC 1354, 1980 CCH OSHD ¶24,457 (No. 76–3105, 1980).
Accordingly, we affirm the citation and, in light of the penalty criteria specified in section 17(j) of the Act, 29 U.S.C. § 666(i), and the parties’ stipulation, we assess a penalty of $300.
FOR THE COMMISSION:
Ray H. Darling, Jr.
DATED: JUL 27, 1982
ROWLAND, Chairman, Dissenting:
I dissent from the majority’s conclusion that the standard cited in this case, 29 C.F.R. § 1926.500(d)(1), was shown to be applicable to the working conditions in question. Since I would also find that Respondent did not know nor reasonably could have known that the deceased employee would fail to use the required safety belt, I would conclude that Respondent did not violate the personal protective equipment standard at 29 C.F.R. § 1926.28(a). Accordingly, I would vacate the citation.
At the outset, I find it instructive that the majority in this case is divided on the proper characterization of the surface at issue. Although both Commission members rely on the use of the surface for the performance of work, each draws a different conclusion from that fact. Commissioner Cottine finds the surface to be a ‘platform’ because that term is expressly defined as ‘a working space for persons.’ Commissioner Cleary expresses agreement with the judge’s conclusion that the surface is a ‘floor’ within the dictionary definition of a floor as a surface on which work is performed. The fact that members of this Commission, who must interpret the Secretary’s standards, disagree on the proper terminology and definitions to be applied in determining Respondent’s obligation is a strong indication that the language of the standard in question is imprecise.
Indeed, the Commission has previously recognized that a similar guardrail standard, section 1910.23(c)(1), must be interpreted in a reasonable manner in order to afford an employer fair notice of its obligations under the standard. In a case substantially similar to this, Globe Industries, Inc., 82 OSAHRC ___, 10 BNA OSHC 1596, 1982 CCH OSHD ¶26,048 (No. 77–4313, 1982), the Commission considered whether under section 1910.23(c)(1) guardrails were required along the open sides of the tops of two conveyor belts. In concluding that these surfaces did not come within the definition of a platform as ‘a working space for persons,’ the Commission relied on the fact that the conveyor tops were used as a work surface only during a maintenance operation, when the normal manufacturing process was not in operation. It therefore held that to consider the conveyor belts ‘platforms’ would exceed the plain meaning of that term and conflict with the common understanding of what constitutes a ‘platform.’ In so holding, the Commission expressly adopted the reasoning of the court in General Electric Co. v. OSHRC, 583 F.2d 61, 64 (2d Cir. 1978):
We do not read this definition [of ‘platform’] to apply to every flat surface . . . upon which employees may someday 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.
Under this precedent, applicability of these standards to surfaces on which employees work depends upon a number of factors, including the nature of the surface in question and the frequency and regularity with which employees go onto the surface in the performance of their assigned duties. It is not sufficient to find section 1926.500(d)(1) applicable, as the majority does in this case, solely on the basis that Respondent’s employees used the surface in question in the performance of their work without regard to the regularity or predictability of such use.
The record demonstrates that the surface in question, which formed an interior portion of a large prefabricated section of ductwork, was neither designed nor intended to function as a working surface for employees. Although employees ultimately did perform some work from the interior surface once the ductwork had been elevated by crane into a vertical position, it is quite clear that such work was only for completion of the ductwork installation. Upon completion, the opening in the ductwork which permitted access to the interior surface was to have been sealed. As Commissioner Cottine correctly observes in note 5 of the majority opinion, the performance of work by Respondent’s employees from within the duct was neither recurrent nor predictable. It is undisputed that during the one and one-half to two-month period which elapsed between installation of the ductwork and detection of the hole by Respondent’s supervisors, no employee had entered the ductwork for any purpose. Indeed, the work operation which resulted in the employee’s death and eventually in the citation at issue would not have been performed at all were it not for the incidental discovery of an improper weld.
On these facts, a reasonable employer would not conclude that the interior surface of a large metal structure which forms part of a building’s ventilation system is a ‘working space’ requiring the provision of guardrails simply because employees worked from that surface while installing the ductwork. This conclusion is consistent with the design and configuration of the duct surface as well as the fact that its use as a work surface is neither regular nor predictable. Although the majority characterizes the surface as flat, its open sides are curved, thus forming a gradual roll or drop-off. The cited standard requires that the employer provide ‘a standard railing, or the equivalent,’ which is defined at section 1926.502(k) as a ‘vertical barrier erected along exposed edges . . ..’ The standards, however, give no guidance by which an employer can determine where the ‘edge’ exists on a sloped or curved surface. The compliance officer himself testified that he had never seen similar ductwork equipped with guardrails. Accordingly, in view of the infrequency and irregularity of use, the evident unsuitability of the curved surface for the installation of guardrails, and the absence of evidence to show that guardrails are customarily used by the industry in such circumstances, Respondent cannot be said to have fair notice that the cited standard is applicable to it in this case. See Faultless Division, Bliss & Laughlin Industries, Inc. v. Secretary of Labor, 674 F.2d 1177, 1192–93 (7th Cir. 1982) (dissenting opinion), citing B&B Insulation, Inc. v. OSHRC, 583 F.2d 1364 (5th Cir. 1978); Burton, Inc., 82 OSAHRC 17/E13, 10 BNA OSHC 1462, 1982 CCH OSHD ¶25,983 (No. 77–2115, 1982) (dissenting opinion). Indeed, the language of the Commission decision in Globe Industries, supra, is equally appropriate here: ‘In view of the totality of the facts . . . acceptance of the Secretary’s position . . . would stretch that term [‘platform’] beyond its plain meaning and lead to results that conflict with the common understanding of what a ‘platform’ is.’ 10 BNA OSHC at 1598–99, 1982 CCH OSHD ¶26,048 to 32,719.
The same conclusion applies even if we consider the issue before us, as Commissioner Cleary states, to be whether the surface in question constitutes a ‘floor.’ Under the Commission precedent I have discussed, the application of the standard depends not on the incidental selection of terminology but on the reality of the nature of the surface in question and the extent to which it is used by the employer. Clearly, it no more reasonable to construe the interior surface of Respondent’s ductwork as a ‘floor’ based on irregular or infrequent use by employees than it is to consider the surface a ‘platform’ on the same basis. Cf. Arkansas Rice Growers Cooperative Association, 82 OSAHRC ___, 10 BNA OSHC 1616, 1620 n.6, 1982 CCH OSHD ¶26,049 at 32,724 n.6 (No. 77–3974, 1982) (cases holding that the roof of a building is not a ‘floor’ under section 1926.500(d)(1) necessarily imply that it is not a ‘platform’ as well).
As the judge properly observed, Respondent had a work rule requiring that employees use safety belts when working at heights. The judge, concluding that Respondent had tried by consent the issue of a violation of the general protective equipment standard at 29 C.F.R. § 1926.28(a), held that nevertheless Respondent’s safety program with respect to the use of safety belts was inadequate. Because Respondent does not except to the judge’s ruling regarding trial by consent, the issue of whether Respondent violated section 1926.28(a) is before us at this time. For the reason that follow, I do not agree with the judge’s conclusions on this issue.
In a case such as this, where an employee commits an act contrary to a workrule established by the employer, the Secretary must establish that the employer either knew or with reasonable diligence could have known of the violation. Capital Electric Line Builders of Kansas, Inc. v. Marshall, No. 80–1711 (10th Cir. May 12, 1982); Marson Corp., 82 OSAHRC ___, 10 BNA OSHC 1660 (No. 78–3491, 1982) (dissenting opinion). The Secretary presented no evidence to show that Respondent had actual knowledge that the deceased employee was not wearing a belt when the work commenced. On the other hand, both of Respondent’s two supervisors who assigned the work stated that Respondent’s employees including the deceased customarily wore belts when required.
The record, furthermore, demonstrates that Respondent’s employees were informed that violation of Respondent’s work rule was cause for termination, that supervisors regularly inspected the job for compliance with safety rules, and that employees have in fact been terminated for failure to follow safety instructions including the failure to tie off where required. The deceased employee was regarded as an experienced and competent worker, and he never had had to be reprimanded for a safety belt infraction. Finally, Respondent maintained a program of installing lifelines, to which employees could tie off, both automatically as the work progressed and on request from any supervisor. Therefore, even assuming, without deciding, that an employer is required to enforce as well as communicate safety instructions to employees, Respondent could not have foreseen that the deceased employee would violate its safety rule, and it cannot be held in violation of 29 C.F.R. § 1926.28(a).
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
OSHRC DOCKET NO. 77–2553
POWER PLANT DIVISION, BROWN & ROOT, INC.,
February 15, 1978
DECISION AND ORDER
James F. Gruben, Esq., of Dallas, Texas, for the complainant.
William L. Bedman, Esq., of Houston, Texas, for the respondent.
STATEMENT OF THE CASE
This is a proceeding brought before the Occupational Safety and Health Review Commission (‘the Commission’) pursuant to § 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651, et seq. (‘the Act’), contesting one citation issued by the complainant, the Secretary of Labor (‘the Secretary’), to the respondent, Power Plant Division, Brown & Root, Inc., under authority vested in the Secretary by § 9(a) of the Act.
As the result of an inspection conducted on July 15, 1977, of a workplace at W. A. Parrish Generating Station, Thompsons, Texas, where respondent was constructing a steam power plant, one citation was issued to respondent on August 4, 1977, alleging that it violated § 5(a)(2) of the Act in that it failed to comply with a safety standard promulgated by the Secretary, codified at 29 CFR 1926.500(d)(1). Respondent gave timely notice of contest August 8, 1977, and thereafter a complaint and an answer were filed with the Commission.
A hearing was convened at Houston, Texas, on November 15, 1977. No affected employee or representative of affected employees participated in this proceeding. Both of the parties have submitted post-hearing briefs.
Respondent admitted the jurisdictional allegations of the complaint and stipulated (Tr. 5) that, if it should be found in violation, the proposed penalty of $300 is appropriate. The only issue remaining to be determined is whether respondent was in violation of 29 CFR 1926.500(d)(1). This subsumes the issue of whether a flat surface inside a large air duct was a floor or platform within the meaning of the cited standard.
The inspection which resulted in the citation here involved was triggered by a fatal accident in which Billy Parrish, a welder employed by respondent, fell 43 feet inside a large air duct which, at that point, was in the shape of a flattened, inverted U. Parrish apparently had gone inside the duct to inspect a crack which he and another welder had been instructed to repair. The crack was located on a bulkhead about 1 1/2 feet above a 12 x 12 flat steel surface and about the same distance from the rounded-off edge of this surface.
A doubled wire rope was strung between the bulkheads (Tr. 64) about 38 1/2 inches above the edge of the flat surface (Tr. 19).
There was no midrail at the time of the accident but by the time of the inspection, the next day, the doubled-back portion of the top rail had been strung through newly-installed pad eyes 17 1/2 inches off the deck (Tr. 46).
The citation and complaint allege only that the open side was guarded by a ‘single rail’. Paragraph (f)(1) of § 1926.500 requires that a standard railing, as used in paragraph (d)(1), shall have a top rail approximately 42 inches above the floor or platform and an intermediate rail halfway between the top rail and the floor or platform. Paragraph (f)(1) also contains rather detailed specifications which need not be repeated here except that the supports must be no more than 8 feet apart and where, as here, wire rope is used the top rail must be able to withstand a pressure of 200 pounds ‘with a minimum of deflection.’ Here the supports were 12 feet apart and there is some evidence (to be discussed later) that the top rail was not taut.
The duct was fabricated in sections on the ground, then the sections were hoisted into position and welded together. This welding was accomplished from the outside, but it was necessary for employees to go inside the duct to guide the sections into position (Tr. 105). This phase of the construction was completed about 1 1/2 or 2 months before the accident (Tr. 73). Thereafter there were few occasions for employees to enter that portion of the duct, though Foreman Minor said work had been done there before (Tr. 92) and that he had been there several times (Tr. 106) and had made many trips in and out of the duct (Tr. 103). Aside from the task in which Parrish was engaged when he was killed, all that remained to be done on the 12 x 12 surface was ‘clean-out’, including removal of steel scaffolding which was welded to it (Tr. 69, 81).
Access to the 12 x 12 surface was gained through a 2 x 3 hole cut in the bulkhead (Tr. 68). This hole was temporary and was to be closed permanently after the scaffolding was removed and the duct’s interior had been cleaned out (Tr. 52). There was no artificial lighting in the duct, and the only light came through the access hole (Tr. 78). Compliance Officer Donovan S. Donnelly testified that the interior was so dark it took time for one’s eyes to accommodate to it (Tr. 29), but Foreman Godwin testified he could see the ‘lifeline’ about 3 feet to the left when he stuck his head inside (Tr. 53, 63).
After Foreman Minor located the crack (actually a gap in the welding of a seam), he and Foreman Godwin looked at it together from the inside of the duct and then told Parrish and another welder, Dennis Kowalik, to weld it (Tr. 88). The procedure to be used was left up to the welders (Tr. 66). They could have welded it from the inside (Tr. 66), but it was more logical that they would do it from the outside where the original welding was done (Tr. 75). Although the crack could be seen from the outside, it was more visible from the inside since the inside was dark and the outside was light (Tr. 78). Parrish may have decided to inspect the crack from the inside to see whether it ran under some flanges (Tr. 100). Kowalik did not go into the duct with him; nobody saw Parrish fall to his death. When found at the bottom of the duct, his body had on no safety belt (Tr. 79).
Respondent’s contentions are: (1) That the surface from which Parrish fell was not a ‘floor or platform’ so as to make applicable the guardrail provisions of 29 CFR 1926.500(d)(1); (2) that the applicable standard is 29 CFR 1926.28(a), under which Parrish should have been protected by a safety belt and lanyard tied off to a lifeline; and (3) that Parrish’s failure to wear a safety belt was an isolated act of employee misconduct.
The applicability of § 1926.500(d)(1) depends upon whether the 12 x 12 surface from which Parrish fell was an ‘opensided floor or platform’ within the meaning of that standard.
‘Floor’ is not defined by the standards, but ‘platform’ is defined by § 1926.502(e) as
A working space for persons, elevated above the surrounding floor or ground, such as a balcony or platform for the operation of machinery.
From the foregoing summary of the facts, it might appear that the 12 x 12 surface was a ‘working space for persons’ and therefore a ‘platform.’ Certainly work had been and remained to be done therefrom. However, the Commission has construed the definition of ‘platform’ as being restricted to a structure that is erected for the purpose of performing work therefrom. Otis Elevator Co., 77 OSAHRC 80/A2, 5 BNA OSHC 1429, 1977–78 CCH OSHD ¶21,821. Thus it seems clear that the surface here involved was not a ‘platform,’ since it was not erected for the purpose of performing work therefrom but was an integral part of the power plant structure.
There remains the question of whether this surface was a ‘floor’ within the meaning of § 1926.500(d)(1). It definitely was not in the sense that it was to be a permanent floor in the finished structure; in fact, the temporary hatch providing access to it was to be closed permanently during construction.
No case quite in point has been cited by the parties. Respondent cites the unreviewed decision of Judge Burchmore in San Jose Crane & Rigging, Inc., 3 OSAHRC 760, 1971–73 CCH OSHD ¶15,791 (No. 1740, 1973), Secretary’s appeal dismissed January 3, 1974 (No. 73–2662, 9th Cir.); Langer Roofing & Sheet Metal, Inc., v. Secretary of Labor and OSHRC, 524 F. 2d 1337 (7th Cir., 1975); and Diamond Roofing Co., Inc., v. OSHRC, 528 F. 2d 645 (5th Cir. 1976).
In San Jose, as respondent points out, Judge Burchmore held that § 1926.500(d)(1) applied only to ‘open sided, permanent floors.’ However, the problem in that case was when a temporary floor installed under a steel erection standard, § 1926.700(b)(1)(iii)—which requires only a single wire rope safety railing—became permanent enough to come under the more stringent requirements of § 1926.500(d)(1), requiring top rail, intermediate rail and toeboards. The quoted language from this decision is taken out of context and has no relevance here.
Langer and Diamond, though followed by the Commission majority in Central City Roofing, Inc., 76 OSAHRC 61/A2, 4 BNA OSHC 1286, 1976–77 CCH OSHD ¶20,761 (No. 8173, 1976), in holding that a flat roof is not a ‘floor,’ as the latter term is used in § 1926.500(d)(1), likewise are of little assistance, since their rationale was founded on the existence of other standards dealing with safeguarding employees on roofs, leading to the conclusion that flat roofs were not intended to be covered by the guardrail standards. There is no such parallel here. It is a non sequitur to say that since a flat roof is not a floor neither is a surface such as is here involved.
In the absence of a definition of ‘floor’ in the standards or in Commission decisions, resort may be had to the dictionary. Webster’s Third New International Dictionary contains numerous definitions of ‘floor,’ including:
1: the bottom or lower part of any room: the part of a room upon which one stands
2a: the lower inside surface of any hollow structure . . .
4: the surface or the platform of a structure on which to walk, work or travel . . .
It should be kept in mind that the structure here involved was not a conventional building but a large generating plant. To apply a restrictive definition of ‘floor’ to such a structure would be unrealistic and defeat the remedial purpose of the Act. The broader dictionary definition is more compatible with this purpose. The surface involved was, at the time of the fatal accident and of the inspection, a working-walking surface. Work remained to be done from and on this surface. Respondent recognized the fall hazard by erecting a single wire rope at the approximate height of a standard toprail (which it now insists was a ‘lifeline’ for attaching safety belts and lanyards). I find that at the pertinent times the surface involved was a ‘floor’ and that its open side should have been guarded by a standard guardrail under § 1926.500(d)(1).
Respondent does not contend that a standard guardrail was provided. There was no midrail, the top rail was 5 1/2 inches lower than standard, and the supports were further apart than required. The Compliance Officer, on the basis of a photograph which showed a kink in the top rail on the day of the inspection, opined that it was not taut (Tr. 46). He had not tested it to see whether it met the requirement of § 1926.500(f)(1)(iv) that it
. . . 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.
In view of Foreman Godwin’s testimony (Tr. 74) that this rail was taut, it must be concluded that the Secretary has not met his burden of proof on this point.
If I should be held in error in holding that § 1926.500(d)(1) is applicable to the facts of this case, it will be necessary to determine whether, as respondent contends, § 1926.28(a) is applicable and, if so, whether it complied therewith. Since the matter was raised by respondent and full litigated without objection, amendment of the citation and complaint to conform to the evidence, to allege a violation of 28(a), would be proper under Rule 15(b), F.R.C.P. Warnel Corporation, 76 OSAHRC 41/C5, 4 BNA OSHD 1034, 1975–76 CCH OSHD ¶20,576 (No. 4537, 1976).
In contending that § 1926.28(a) is the applicable standard, respondent does not rely on the provision of § 1926.500(d)(1) that the ‘equivalent’ of a standard railing may be substituted therefor, and it is well established that safety belts are not such an equivalent. Warnel Corporation, supra. Instead, respondent maintains that safety belts were superior to guardrails in the situation presented. This ignores the well-known tendency of employees (here well illustrated) not to wear or use safety belts, as well as the injuries that an employee using a tied-off safety belt might sustain in a 6-foot fall to the end of his lanyard, as the compliance officer testified (Tr. 34, 39). A standard guardrail, which does not depend on human behavior or employee compliance for its effectiveness, offers fall protection superior to that afforded by safety belts in the open-sided floor situation here presented. Incidentally, Welding Foreman Minor admitted that Parrish probably would not have fallen if the open side had been guarded by a standard railing (Tr. 101).
Assuming that § 1926.28(a) is applicable, there remains the question of whether respondent complied with it. As stated, the deceased employee, Parrish, did not have on a safety belt when his body was found. Respondent claims this was an isolated act of employee misconduct in disobeying its work rule requiring the use of safety belts by employees working at heights.
The essential elements of the isolated incident defense are set forth in Weatherhead Co., 76 OSAHRC 61/E7, 4 BNA OSHC 1226, 1976–77 CCH OSHD ¶20, 784 (No. 8862, 1976), where the Commission majority said at p. 24,922 of CCH:
The existence of an ‘isolated incident,’ or perhaps more accurately an unpreventable occurrence, is an affirmative defense wherein the employer bears the burden of proving that the actions constituting non-compliance with the standard were: (a) unknown to the employer and (b) contrary to both the employer’s instructions and a company work rule which the employer had uniformly enforced. [Citations omitted]
‘Work rule’ was further defined in J. K. Butler Builders, Inc., 77 OSAHRC 26/A2, 5 BNA OSHC 1075, 1977–78 CCH OSHD ¶21,585 (No. 12354, 1977), as
. . . an employer directive that requires or proscribes certain conduct, and that is communicated to employees in such a manner that its mandatory nature is made explicit and its scope clearly understood.
Additionally, the work rule must be the equivalent of the standard the respondent is accused of violating. Kansas Power & Light Co., 77 OSAHRC 39/A2, 5 BNA OSHC 1202, 1977–78 CCH OSHD ¶21,696 (No. 11015, 1977). Rod T. Seals, respondent’s safety supervisor, testified that each new employee was told to wear safety belts and to tie off ‘any time he is off the ground on a structure,’ or face a penalty of immediate termination (Tr. 113, 114). There is no direct evidence that this work rule was communicated to Parrish, but Welding Foreman Godwin testified that it was ‘customary’ to wear safety belts on the job and he never saw Parrish without one (Tr. 79). Welding Foreman Minor testified that Parrish was good about wearing his safety belt but couldn’t say whether Parrish had one on when he directed him and another welder to weld the crack in the duct (Tr. 88, 90). Minor said welders usually wore their safety belts under their loose-fitting shirts with the shirttails out to avoid providing a pocket that might catch sparks or molten metal (Tr. 89). Minor also testified that it was ‘left up to you to use your own discretion’ when to tie off one’s safety belt (Tr. 107).
Seals testified that 39 employees had been terminated for infractions of safety rules in a one-year period (Tr. 114) but did not say whether any of these terminations involved non-use of safety belts.
It is apparent from the foregoing summary of the evidence that the requirements of Weatherhead, J. K. Butler and Kansas Power & Light have not been met. The claimed work rule was to some extent discretionary in its application, and it was not the equivalent of § 1926.28(a). The two welding foremen, in the exercise of reasonable diligence, should have known that Parrish did not have on his safety belt when they sent him aloft to weld the duct. Respondent has not sustained its burden of proving this affirmative defense.
FINDINGS OF FACT
On the basis of the stipulations and the credible evidence of record, the following findings of fact are made:
1. The respondent, Power Plant Divison, Brown & Root, Inc., is an employer engaged in a business affecting commerce who has employees.
2. On July 14, 1977, respondent was engaged in the construction of a large power plant, known as W. A. Parrish Generating Station, at Thompsons, Texas. A large air duct, which at the point here involved was in the shape of an inverted U, had an interior horizontal metal surface, measuring approximately 12 x 12 with rounded edges on two sides, on the bottom of the inside top of the inverted U. A temporary hatch measuring about 2 x 3 had been cut in the side of the duct to provide access. A doubled wire tope, fastened to pad eyes 12 feet apart at a height of about 38 1/2 inches, was on the left side as one entered the duct through the temporary hatch. There was no midrail or toeboard, but no toeboard was necessary since no employees were working below. The next level was 43 feet below the 12 x 12 surface where the duct made a 90 degree bend. The duct’s interior was not artificially lighted, and the only illumination was dim light coming from the open hatch.
3. The duct had been fabricated in sections on the ground, and the sections had been hoisted into position and welded together. During this process it was necessary for employees to work on and from the 12 x 12 surface to align the sections for welding. At the time of the inspection, the only work remaining to be done on the 12 x 12 surface was clean-up work, including removal of steel scaffolding welded thereto.
4. On July 14, 1977, Welding Foreman Minor, inspecting the interior of the duct for leaks, found a gap in a welded seam and showed it to his superior, Welding Foreman Godwin. Minor instructed two welders, Parrish and Kowalik, to repair same. The gap in the weld was in the side of the duct about 15 inches above the 12 x 12 surface and about the same distance from the rounded edge. About 38 1/2 inches above this edge was a doubled wire rope strung between pad eyes welded to the bulkheads, which were 12 feet apart.
5. The welding procedures were left to the discretion of Parrish and Kowalik. It was logical that the welding be done from the outside, since the original seam was welded in that manner. However, it was also logical, and not contrary to instructions, for Parrish to enter the duct to inspect the gap from the inside preparatory to the welding. Parrish entered the duct alone through the temporary hatch opening onto the 12 x 12 surface. He was not wearing a safety belt. He fell from the rounded edge above which the wire rope was strung and was fatally injured.
6. The 12 x 12 surface in the duct, while not destined to become a permanent floor in the power plant structure, was on July 14, 1977, a floor on and from which respondent’s employees were required to perform various tasks, including inspection, clean-out, and removal of scaffolding welded thereto.
7. Said floor had an open side which was not protected by a standard guardrail, since there was no midrail, the single rail was 5 1/2 inches lower than standard, and the supports were more than 8 feet apart. At least 3 of respondent’s employees were exposed to or had access to this hazard.
CONCLUSIONS OF LAW
On the basis of the foregoing findings of fact, as amplified in the opinion, it is concluded that:
1. The Commission has jurisdiction of the parties and of the subject matter of this proceeding.
2. On July 14, 1977, respondent was in serious violation of § 5(a)(2) of the Act and 29 CFR 1926.500(d)(1).
On the basis of the foregoing findings of fact and conclusions of law, it is ORDERED that:
1. Item 1 of citation 1 for serious violation of 29 CFR 1926.500(d)(1) be and it hereby is affirmed and that a penalty of $300 be and it hereby is assessed.
2. This proceeding be and it hereby is terminated.
DEE C. BLYTHE
Administrative Law Judge
Date: February 15, 1978
 29 C.F.R. § 1926.500(d)(1) provides:
§ 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.
 In San Jose Crane & Rigging, Inc., 73 OSAHRC 26/D1, 1 BNA OSHC 3069, 1971–73 CCH OSHD ¶15,791 (No. 1740, 1973), appeal dismissed, No. 73–2662 (9th Cir. 1974), the judge noted that there was no provision in the regulations relating to steel erection work specifying the time or stage of construction when a standard railing, pursuant to 29 C.F.R. § 1926.500(d)(1), is required rather than a single wire rope railing, pursuant to 29 C.F.R. § 1926.750(b)(1)(iii). He also noted that § 1926.750(b)(1)(iii), a more specific standard with respect to temporary-planked floors than the broad provision in § 1926.500(d)(1), specifically approves a single wire rope ‘around the periphery of all temporary-planked floors’ such as that in the case before him. Therefore, he concluded that § 1926.500(d)(1) only applies to open-sided, permanent floors. In the case before us, the evidence clearly indicates that the surface in question was a permanent, and not a temporary, surface within the meaning of San Jose Crane. Moreover, there is no contention that Respondent was engaged in steel erection here. Accordingly, the cases are distinguishable.
 29 C.F.R. § 1926.28(a) provides:
§ 1926.28 Personal protective equipment.
(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.
 Commissioner Cleary does not agree with the dissenting opinion that his position in this case is inconsistent with the positions he took in Globe Industries, Inc., 82 OSAHRC ——, 10 BNA OSHC 1596, 1982 CCH OSHD ¶26, 048 (No. 77–4313, 1982), and in Arkansas Rice Growers Cooperative Association, 82 OSAHRC ——, 10 BNA OSHC 1616, 1982 CCH OSHD ¶26,049 (No. 77–3974, 1982) (dissenting opinion). In his opinion, he had followed a consistent policy of broadly construing the Secretary’s standards on falling hazards so as to effectuate their clear remedial purpose, so long as the application of the standards would not deprive employers of their right to adequate notice of the proscribed conduct. The ultimate question in each case is whether, in light of these two factors, the Secretary’s enforcement action is reasonable. See Globe Industries, Inc., supra.
In the case now before the Commission, the public interest in applying the standard is strong, while any problems of adequate notice are minimal. This was equally true in Arkansas Rice Growers. Accordingly, in both cases Commissioner Cleary concluded that the citation should be affirmed. In both cases, the Secretary’s enforcement action effectuated the intent of the cited standard and the purposes of the Act. Here employees were exposed to a 43-foot fall from a surface that can only be described as hazardous. In Arkansas Rice Growers, employees were exposed to the hazard of falling 83 feet 9 inches through an opening in a surface that was used by employees as a walking and working surface. Moreover, in neither case did the application of the standard create a significant notice problem. Here a construction standard is being applied to an employer engaged in construction work. In this context, Commissioner Cleary sees no notice problem in characterizing a surface as a floor because it was in fact used and it was intended to be used as a floor during the construction process. In Arkansas Rice Growers, a general industry standard was applied to an employer engaged in a production operation. It was therefore appropriate to look to the function the surface was designed and intended to serve on a permanent basis. Because the record established that the surface was designed and intended to be used for two purposes on a permanent basis, and one of those uses was as a floor, Commissioner Cleary saw no notice problem in classifying the surface as a floor.
On the other hand Commissioner Cleary joined in vacating the citation in Globe Industries. It is distinguishable from Arkansas Rice Growers and the case on review. In Globe Industries, the Secretary’s enforcement action contributed little to the objective of improving employee safety. The surface was a broad, flat surface only 5 feet 3 inches off the ground. A safe means of access was provided, and the single employee who went onto the surface for brief periods of time performed his functions from the center of the surface. Application of the standard would have created significant notice problems because it would have stretched the terms of the standard beyond their plain meaning and the common understanding of their meaning. The employer could not have anticipated that the surface, which was used and intended to be used only as a conveyor, would be classified as a ‘platform’ because incidental maintenance work was performed on it on an infrequent basis to enable its continuing operation as a conveyor.
 In Globe Industries, Inc., 82 OSAHRC ——, 10 BNA OSHC 1596, 1599, 1982 CCH OSHD ¶26,048, p. 32,719 (No. 77–4313, 1982) (dissenting opinion), Commissioner Cottine noted the long-standing Commission precedent defining a ‘platform’ to generally include surfaces on which employees actually work that are raised above the surrounding floor or ground. The definition of ‘platform’ applicable to this citation is ‘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.’ 29 C.F.R. § 1926.502(e). The same definition applies under the general industry standard at 29 C.F.R. § 1910.21(a)(4), which was involved in Globe Industries, Inc., supra.
Here, the open-sided working surface was raised above the surrounding ground approximately 43 feet. In addition to its use as a working surface by the deceased employee, a welding foreman testified that it had been used by Brown & Root’s employees previously and had a partial guard in the form of a wire rope strung along one side. The general welding foreman testified that he used the surface to determine what welding needed to be performed and that the welding could have been performed from this surface. Thus, the surface was actually used on several occasions as a working surface by Brown & Root’s employees with its foremen’s knowledge. Though this was a construction site and the employees were not on the surface on a regular and predictable basis, in Commissioner Cottine’s view the surface meets the definition of a platform under the construction standard at § 1926.502(e).
Commissioner Cottine also notes that Judge Blythe incorrectly concluded that the Commission has limited the definition of ‘platform’ to structures erected for the purpose of performing work. The judge relied on the lead opinion in Otis Elevator Co., 77 OSAHRC 80/A2, 5 BNA OSHC 1429, 1977–78 CCH OSHD ¶21, 821 (No. 13140, 1977). However, that opinion reflected the views of only one Commissioner. The controlling Commission precedent is discussed in Globe Industries, Inc., supra.
 See note 12 infra.
 29 C.F.R. § 1910.23(c)(1), which applies to employers in general industry, is virtually identical to the standard at issue in this case, which imposes guarding requirements for employers engaged in construction work. See note 5 of the lead opinion.
 The ductwork was originally assembled on the ground in a horizontal configuration. At that time, the surface now claimed to be a working surface was vertical, so that in relation to Respondent’s employees it formed a side or wall of the duct.
 The surface was to be used primarily for inspection and final clean-up. Although some tack welding had also been performed from the surface, the record does not indicate that this welding was conducted either frequently or regularly.
 The Secretary’s standard which expressly provides for fall protection for employees on sloped surfaces, section 1926.451(u)(3), requires that employees use safety belts attached to a lifeline if they are not otherwise protected by a parapet or catch platform. This requirement is predicated on the Secretary’s conclusion that a sloping surface itself presents a fall hazard. Hamilton Roofing Co., 78 OSAHRC 57/C1, 6 BNA OSHC 1771, 1978 CCH OSHD ¶22,856 (No. 14968, 1978). As discussed infra, Respondent required its employees to use tied-off safety belts in the circumstances presented here.
 Because the facts indicate that the duct surface was not erected and designed for use by employees while operating machinery or equipment, I would also conclude that it cannot be considered a ‘platform’ for the reasons stated by former Commissioner Moran in Allis–Chalmers Corp., 76 OSAHRC 50/F8, 4 BNA OSHC 1227, 1975–76 CCH OSHD ¶20,666 (No. 5210, 1976). See Globe Indus., supra, 10 BNA OSHC at 1599 n.7, 1982 CCH OSHD ¶26,048 at 32,719 n.7; General Electric Co., 81 OSAHRC 97/D6, 10 BNA OSHC 1144, 1981 CCH OSHD ¶25, 736 (No. 76–2879, 1981).
 I do not mean to suggest that the terms ‘platform’ and ‘floor’ are synonymous. However, in the circumstances of this case it is unnecessary to consider whether these terms are intended to refer to different components of a building or structure, or whether they may be differentiated in any other way. In this regard, I note that the definitions on which the judge relied, which are quoted in the lead opinion, offer no guidance for distinguishing a ‘floor’ from a platform as the latter term appears in the Secretary’s standards. Indeed, one of three definitions of ‘floor’ quoted by the judge itself uses the term ‘platform.’
 In his dissenting opinion in Arkansas Rice Growers, supra, Commissioner Cleary concluded that the roof in question was a ‘floor’ under the standard because it was used by employees for the performance of work on a regular, recurring, and frequent basis. In this case, however, he concludes that a floor existed because some work was performed on the duct surface without regard to the infrequency and irregularity of that work.
 Although the judge concluded that Respondent’s foremen with the exercise of reasonable diligence should have known that the deceased employee was not wearing a safety belt at the time in question, his decision otherwise refers to the ‘affirmative defense’ of ‘employee misconduct.’ As explained in my dissenting opinion in Marson, supra, this ‘affirmative defense’ impermissibly avoids placing the burden on the Secretary to establish what is in reality an essential element of his case. Therefore, while arguably consistent with Commission precedent, the judge’s characterization of the issue before him under section 1926.28(a) is in my view erroneous.
 In finding Respondent’s safety program inadequate, the judge reasoned that Respondent’s safety rule was not sufficiently specific, and he further found that in any event whether to comply with the rule was left to the discretion of individual employees. As Respondent correctly points out in its brief before us, its safety rule is at least as specific as section 1926.28(a), which is a general protective equipment standard. The judge’s additional finding is premised on an evident misreading of the testimony of Respondent’s foreman, who stated that whether to discipline employees for infractions of safety rules is left to the discretion of the foreman. The foreman, however, also stated that his superiors would ‘make it hard on me’ if he consistently failed to terminate employees for violation of safety rules. In any event, even assuming the judge had correctly read the testimony, the fact that compliance with a safety rule is left to the judgment of an experienced employee is not necessarily indicative of a poor safety program. See Capital Electric, supra, slip op. at 8.
 29 CFR 1926.500(d)(1):
Every opensided 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)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder . . .
 The evidence is somewhat conflicting regarding the latter distance. Gary Godwin, respondent’s chief structural steel welding foreman, said it was about 3 feet (Tr. 63), while Cecil B. Minor, Jr., a foreman under him who actually found the crack, said it was 12 to 15 inches (Tr. 101). This distance is not critical, but I find Minor’s estimate the more convincing since it is borne out by a photograph, Exhibit C–2, and since he seemed more familiar with the site than Godwin.
 Respondent refers to this wire rope as a ‘lifeline’ and contends it was there for the purpose of permitting employees to attach their safety belts and lanyards.
 Respondent was not alleged to have violated the illumination standard, 29 CFR 1926.56(a).
 29 CFR 1926.28(a) provides:
The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or were this part indicates the need for using such equipment to reduce the hazards to the employees.
 Cf., B. C. Crocker dba Crocker Cedar Products, 76 OSAHRC 132/B6, 4 BNA OSHC 1775, 1976–77 CCH OSHD ¶21,179 (No. 4387, 1976).
 He was one of 3 field inspectors on the job at the time of the inspection but had never inspected the duct here involved.