February 10, 1981


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


            A decision of Administrative Law Judge Dee C. Blythe is before the Commission for review pursuant to 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’).[1] The Respondent, Weatherby Engineering Co., was cited for, among other things, an alleged serious violation of the Act based on a failure to comply with the scaffolding standard at 29 C.F.R. § 1910.28(a)(3).[2] The judge vacated that item because the Commission had previously determined that the cited standard was invalidly promulgated and unenforceable. Specifically, Judge Blythe cited and followed the Commission’s decision in Kennecott Copper Corp., 76 OSAHRC 81/A2, 4 BNA OSHC 1400, 1976–77 CCH OSHD ¶ 20,860 (No. 5958, 1976), aff’d, 577 F.2d 1113 (10th Cir. 1977) (hereafter ‘Kennecott’). The secretary petitioned for review, urging the Commission to reverse its position. Chairman Cleary directed the case for review to consider whether the judge erred in vacating the item on the ground that 29 C.F.R. § 1910.28(a)(3) is unenforceable by reason of invalid promulgation.

            The only issue on review is essentially whether the Commission should reverse its decision in Kennecott. In Kennecott the Commission held that section 1910.28(a)(3)—the standard at issue in this case—was invalidly promulgated and unenforceable. Specifically, the Commission noted the Secretary’s substitution of the word ‘shall’, see note 2 supra, for ‘should’ when he purportedly adopted an American National Standards Institute (‘ANSI’) standard as a national consensus standard pursuant to section 6(a) of the Act, 29 U.S.C. § 655(a). As it now reads the standard is mandatory whereas the ANSI source standard was advisory. In Kennecott the Commission held that the word change was a substantive change requiring the Secretary to use section 6(b) notice and comment procedures. See generally section 6(b) of the Act, 29 U.S.C. § 655(b). Although the Secretary continues to disagree with the Kennecott holding, he offers no new arguments in support of his position.[3]

            In addition to disputing the reasoning of Kennecott, the Secretary argues that Respondent has merely asserted ‘alleged procedural defects’ in the promulgation process and that the Commission does not have jurisdiction to consider this type of challenge to a standard’s validity in enforcement proceedings. Thus, the Secretary argues that the Commission should not have entertained the procedural arguments of the employer in Kennecott, the Commission’s decision in that case was in error, and the Commission should not consider the procedural challenge in this case. For support the Secretary cites National Industrial Constructors, Inc. v. OSHRC & Marshall, 583 F.2d 1048 (8th Cir. 1978) (‘NIC’). The employer’s challenge in NIC, however, focused on procedural irregularities involved in the promulgation of the underlying established federal standard that was subsequently adopted by the Secretary pursuant to section 6(a) of the Act. The issue in Kennecott, on the other hand, concerned a change in language in the course of the section 6(a) ‘adoption.’ In Rockwell International Corp., 80 OSAHRC ——, 9 BNA OSHC 1092, 1980 CCH OSHD ¶ 24,979 (No. 12740, 1980), we recently reconsidered the issue of whether procedural challenges may be raised in Commission enforcement proceedings. We concluded that procedural challenges of the type now before us, where the language of a section 6(a) standard is altered from the language of the source standard purportedly adopted, may properly be raised in an enforcement proceeding before the Commission.[4]

            Accordingly, we leave the Kennecott decision intact, hold that the standard at 29 C.F.R. § 1910.28(a)(3) is unenforceable, and affirm the judge’s decision vacating the item of the citation that alleges a violation of the Act based on noncompliance with that standard.








DATED: FEB 10, 1981











OSHRC DOCKET NO. 77–4333 & 78-0611








October 3, 1978



Jane A. Matheson, Esq., of Dallas, Texas, for the complainant.

Edward M. Morris, of Corpus Christi, Texas, for the respondent.



BLYTHE, Judge:

            These consolidated proceedings were 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 three citations issued by the complainant, the Secretary of Labor (‘the Secretary’), to the respondent, Weatherby Engineering Co. (‘Weatherby’), under authority vested in the Secretary by § 9(a) of the Act.

            As the result of an inspection conducted on September 15, 1977, and November 4, 1977, of a workplace at Corpus Christi, Texas, where Weatherby was fabricating modules for offshore oil drilling platforms, three citations were issued to it, two on November 23, 1977, and the third on January 24, 1978, alleging that it violated § 5(a)(2) of the Act in that it failed to comply with certain safety standards promulgated by the Secretary. Weatherby gave timely notice of contest of the first two citations on December 10, 1977, and of the third citation on February 3, 1978, and thereafter a complaint and an answer were filed with the Commission in each case. The two cases were consolidated for hearing and decision.

            A hearing was convened at Corpus Christi, Texas, on June 1, 1978. No affected employee or representative of affected employees participated in this proceeding. Both of the parties have submitted post-hearing briefs.

            At the hearing, Weatherby stipulated that it was an employer subject to the Act (Tr. 10). The issues to be determined are:

            1. Whether Weatherby’s defense was prejudiced by complainant’s failure to supply it with documents and photographs requested under the Freedom of Information Act.

            2. Whether the complaint should be dismissed on the ground that a search warrant should have been obtained by the Secretary after Weatherby informed the compliance officer that ‘any information or materials gathered would be considered illegal.’

            3. Whether Weatherby seriously violated 29 CFR 1910.23(c)(2).

            4. Whether Weatherby seriously violated 29 CFR 1910.28(a)(3).

            5. Whether Weatherby repeatedly violated 29 CFR 1910.23(a)(7).

            6. The appropriate penalties for any violations found.


            The inspection here involved originated from an anonymous complaint and a referral from another compliance officer to Mark S. Wilson, an OSHA industrial hygienist, who was concerned primarily with whether spray painters were exposed to an impermissible amount of disphenol-A. Wilson did not detect enough disphenol-A for issuance of a citation, but while at Weatherby’s workplace he observed other conditions for which citations were issued.

            Weatherby was building modules which were destined to be installed on offshore oil drilling platforms. The one here involved, called a utility module, was in effect a two-story structure and housed an office, living quarters, and equipment for pumping natural gas. It has a permanent runway around its exterior at the second-floor level, and all but one of the citations involve this runway.

            First, however, it will be necessary to deal with issues not directly concerning merits of the alleged violations which Weatherby has raised.

            The Freedom of Information Act issue.

            Weatherby’s post-hearing brief (pp. 1–2) contends that the Secretary should have supplied documents and photographs requested ‘pursuant to the Freedom of Information Act[5] and applicable legal rights,’ by letter dated May 10, 1978, addressed to the assistant regional solicitor representing the Secretary. It contends that ‘[t]he Respondent’s rights in this litigation have been sorely tried’ by the Secretary’s failure to provide the requested items but does not say in what respect, if any, its defense was prejudiced thereby. Neither does it say what relief it now desires from the Commission.

            By letter dated May 25, 1978, the OSHA Area Director denied Weatherby’s request (except for the citation, notice of proposed penalty and notice of contest), claiming that exemption (7) of 5 U.S.C. § 552(b) applied to the other items requested, which were:

            1. Copies of each photo taken during the inspections.

            2. Copy of the order assigning Mr. Wilson to conduct said inspections.

            3. Copy of Mr. Wilson’s hand written notes taken during the inspection.

            4. Any additional notes, correspondence to manufacturers, etc., taken by, originated by or received by Mr. Wilson or the Area or District OSHA office with regards to either of these two cases, with specific reference to contact with the Solicitor’s Office prior to issuing the Repeat Citation and correspondence with the Manufacturers of the Quincy and Chicago Pneumatic Air Compressors cited.

            At the hearing on June 1, 1978, Weatherby filed a motion to dismiss this proceeding, one of the grounds being, ‘The Secretary had failed to comply with the Respondent’s request for pertinent investigative materials pertinent to these cases.’ This motion was denied (Tr. 7–8) on the ground that Weatherby’s request was directed to the Secretary of Labor, not the Commission, and if directed to the Commission would entitle it only to information in the Commission’s files.[6]

            In its post-hearing brief, Weatherby concedes that, ‘through procedural ignorance,’ it may have erred in making its request under the FOIA but points out that it is represented by a non-lawyer and claims that the information would have been supplied had the request been made by an attorney. Further, it points out that, as quoted above, it made the request under ‘applicable legal rights’ as well as the FOIA and contends that this phrase includes any discovery rights it may have under the Commission’s Rules of Procedure.

            The fallacies in Weatherby’s contentions are obvious:

            1. Its request was directed to the Secretary’s counsel and not to the Commission or its Judge, and under the FOIA it would have to pursue its remedy before the Department of Labor and the Courts.

            2. The language ‘and applicable legal rights’ refers to the FOIA, as stated in the forepart of the sentence and is not specific enough to invoke the Commission’s Rules of Procedure. Even if this language may be construed as Weatherby contends, the Commission’s Rules do not entitle a party to such discovery as a matter of right but are discretionary. KLI, Inc., 77 OSAHRC, 202/A2, 6 BNA OSHC 1097, 1977–78 CCH OSHD ¶22,350 (No. 13490, 1977).

            3. It has been the experience of this Judge that the Secretary uniformly resists requests of this type for sweeping discovery from its investagatorial files, regardless of whether the respondent is represented by an attorney. See, e.g., T. V. Tower, Inc. v. Marshall, 44 F. Supp. 1233 (D.C.D.C., 1978).

            4. Weatherby has not shown in what respect, if any, its defense was prejudiced by the Secretary’s refusal to supply the requested items.

            5. Its motion to dismiss, made at the opening of the hearing on the merits, requested no continuance, and Weatherby’s representative announced that he was ready to proceed (Tr. 3). This negates any claim of prejudice to the defense from its failure to secure the requested items from the Secretary’s file.

            Weatherby’s claim of prejudice against non-attorney representatives apparently is directed at the Secretary rather than the Commission or its Judge. However, it might be noted that for this very reason (or the reverse thereof, actually) Weatherby was given a second chance to respond to requests for admission which the Secretary sought to have deemed to be admitted for failure to answer responsively. The order thereon, after holding some of Weatherby’s answers (denying requests for lack of knowledge) contained no showing of reasonable inquiry to determine the truth or falsity thereof, stated: ‘Nevertheless, since [respondent] is represented by nonattorney counsel, it will be afforded a further opportunity [to make a showing of reasonable inquiry].’

            Even though it might be argued that a representative-for-hire who is not an attorney should be held to the same standards of proficiency as a lawyer, such a rationale has not been followed in this case.

            The inspection warrant issue.

            Weatherby’s oral motion to dismiss, argued at the opening of the hearing, and later filed in writing, stated as its first ground that the Supreme Court in Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S. Ct. 1816 (1978), ‘ruled that warrantless inspections, conducted by OSHA, are in violation of the Employer’s Constitutional Rights and are rendered invalid,’ and that the compliance officer in this case had no warrant. The Secretary opposed the motion on the ground that the inspection was consensual. In view of the factual issue thus presented, this motion was taken under advisement pending the introduction of evidence (Tr. 9).

            Compliance Officer Mark S. Wilson testified that when he made the first inspection on September 15, 1977, no representative of Weatherby demanded to be shown a warrant or requested him to leave the premises (Tr. 14); that Production Manager Charles Bradley, Jr., asked him if the Barlow’s case had been decided (Tr. 60); that he told Bradley that it had not been decided but that Bradley had every right to not allow him to enter (Tr. 60); that when he returned to complete the investigation on November 4, 1977, Bradley never asked him if he had a warrant or told him he could not continue the inspection without one (Tr. 151); and that only at the end of the November 4, 1977, inspection, did Bradley tell him that he did not want Wilson to take photographs of the premises (Tr. 57).

            Bradley testified that Weatherby had been inspected by OSHA 10 or 11 times since 1976, and that on every occasion the compliance officer was asked if he had a search warrant to come into Weatherby’s place of business and answered in the negative (Tr. 110). Then Bradley said,

They asked if we wanted them to leave and we said that would not be necessary, but any information or materials that they gathered we would consider them illegal [emphasis added].

            It is on the basis of the emphasized testimony that Weatherby contends the inspection was not consensual, citing a digest of an opinion of the State of Iowa Occupational Safety and Health Review Commission in Commissioner of Labor, Allen J. Meier v. Mitchell Cleaners (No. 689, 1978), 1978 CCH OSHD ¶ 22,835, where the compliance officer was admitted after saying that the search warrant requirement ‘doesn’t apply to us’ and the Iowa Commission held the inspection not to be consensual.

            Here the situation is considerably different. Production Manager Bradley (testifying generally about 10 or 11 inspections), said, ‘They [the compliance officers] asked if we wanted them to leave and we said that would not be necessary . . .’ (Tr. 110). This is compatible with Compliance Officer Wilson’s testimony that he told Bradley the latter had every right to deny him entry but that Bradley did not do so or even ask to be shown a warrant. Bradley’s inquiry about the status of Barlow’s case and his statement that ‘any information or material that they gathered we would consider them illegal’ do not make the inspection non-consensual. Since the latter statement was made about all the 10 or 11 inspections in general, and not about this inspection in particular, it has little probative value. But even if it was made to Wilson it would hardly countermand the clear consent already given.

            Respondent’s motion to dismiss, which was taken under advisement at the conclusion of the hearing (Tr. 153), should be denied.

            The ‘promulgation of standards’ issue.

            Weatherby’s brief contends that three of the standards here involved were invalidly promulgated in that permissive language contained in the ‘national consensus’ source[7] standards was changed by OSHA to mandatory language without following the necessary rule-making procedure. This contention applies to the following citations and standards:

Item 1 of citation 1, involving 29 CFR 1910.23(c)(2), the source of which is American National Standards Institute (ANSI) A12.1–1967, Safety Requirements for Floor and Wall Openings, Railings, and Toeboards, § 5.2.


Item 2 of citation 1, involving 29 CFR 1910.28(a)(3), the source of which is ANSI A10.8–1969, Safety Requirements for Scaffolding.


Item 1 of citation 2, involving 29 CFR 1910.23(a)(7), the source of which is ANSI A12.1–1967, supra, § 4.4.


            Weatherby is correct regarding § 1910.28(a)(3) but not the other two standards.

            The Commission majority, affirmed recently by the 10th Circuit, has held § 1910.28(a)(3)[8] unenforceable for the reason stated. Kennecott Copper Corp., 76 OSAHRC 81/A2, 4 BNA OSHC 1400, 1976–77 CCH OSHD ¶20,860 (No. 5958, 1976), aff’d, —— F. 2d —— (10th Cir., 1977). Therefore, item 2 of citation 1, which alleges that a scaffold on the second-floor runway of a utility module had no guardrails, must be vacated.

            The contention that the other two standards[9], §§ 1910.23(a)(7) and (c)(2) were invalidly promulgated is totally without merit. The language of the source standards is mandatory and not permissive, as Weatherby asserts.

            The alleged violation of 29 CFR 1910.23(c)(2).

            Item 1 of citation 1, for which a penalty of $270 is proposed, alleges a serious violation of 29 CFR 1910.23(c)(2)[10] in that a standard railing or the equivalent was not provided on a portion of the second-floor runway of the utility module, exposing employees to a fall of 21 feet 5 inches.

            Weatherby contends (1) that the guardrail opening was necessary to bring materials to the second floor and that this comes within the exception granted by the third sentence of the cited standard, (2) that the two employees the compliance officer said were exposed to the hazard were ironworkers and under § 1926.750 need not be given protection unless they were 25 feet or more above ground, and (3) that the falling hazard was minimal since only two employees were exposed.

            The compliance officer’s uncontradicted testimony establishes that a section of the guardrail was missing (Tr. 16), that two welders and a painter foreman were exposed to a fall of 21 feet 5 inches to a ground surface littered with metal scraps and pipe ends (Tr. 20–21, 24), and that serious injuries probably would result from such a fall (Tr. 21).

            With regard to Weatherby’s claim of an exception under § 1910.23(c)(2), it relies on the third sentence,

Runways used exclusively for special purposes (such as oiling, shafting, or filling tank cars) may have the railing on one side omitted where operating conditions necessitate such omissions . . .


It points to testimony of Plant Manager Fred Sanchez that the railings were down so that ‘siding people’ and ‘wall hangers’ could take up paneling and other materials (Tr. 128–129). This does not come within the quoted exception, for the runway was used for many purposes, none of which was exclusively for bringing up building materials. The Commission has recognized that in some cases it may be necessary to remove guardrails to bring in or remove materials, but this is an ‘impossibility’ defense of which the respondent has the burden of proof. Constructora Maza, Inc., 77 OSAHRC 213/B9, 6 BNA OSHC 1208, 1977–78 CCH OSHD ¶ 22,421 (No. 12434, 1977). Weatherby has not proved such a defense. It should be noted also that the guardrails were down at least 8 hours (Tr. 22), and it seems unlikely that bringing in materials could have taken that long.

            Weatherby’s attempt to bring the two welders within the steel erection standard, § 1926.750, is misdirected. There is no indication that the welders were engaged in steel erection, and the mere fact that they were welders does not make § 1926.750 applicable. Also, a painter foreman also was exposed.

            The contention that the number of employees exposed was minimal goes only to the penalty issue.

            I find this item proved.

            The alleged repeated violation of 29 CFR 1910.23(a)(7).

            Item 1 of citation 2, for which a penalty of $540 is proposed, alleges repeated violations of 29 CFR 1910.23(a)(7)[11] in that the second floor runway had two temporary openings which were not properly guarded with standard railings and had nobody in constant attendance: (a) Where a floor grating had been removed and (b) one side of a ladderway in which the ladder was not yet in place.

            Weatherby contends that (1) only one of its employees was in the area involved and he was no closer than 20 feet to the openings and (2) the openings were guarded by a lower scaffold which was less than 6 feet below them. Its brief concedes the existence of the floor openings, through which the compliance officer said and employee could fall 20 feet to a steel grating (Tr. 30).

            The compliance officer testified that two Weatherby employees were within 5 feet of the grate opening and that he saw its painter foreman, Herrada, in the stairwell and walking up and down the runway (Tr. 28). He later identified the two employees as Rudy Medina and Rene Ortiz, who told him they were Weatherby employees and received their checks from Weatherby (Tr. 65), but he did not check respondent’s payroll to verify employment. Plant Manager Sanchez remembered identifying Medina to the compliance officer as a Weatherby employee (Tr. 131). He said that about a third of the 100 peaople on the job were employed by subcontractors (Tr. 128). However, it is clear that at least 2 of the 3 employees exposed to the floor opening hazards were Weatherby’s.

            After looking at a photograph Sanchez recalled that there was a scaffold beneath the floor holes (Tr. 128), but the exact distance it was below them was not established. In any event, a scaffold 6 feet below the openings would not have satisfied the standard’s requirement of a standard railing (or someone in constant attendance). I find this item proved.

            There remains the issue of whether the violation was ‘repeated’ under § 17(a) of the Act,[12] on the basis of one prior violation of the same standard June 7, 1976 (exhibit C–1). The Commission has refused to make such a determination where, as here, the proposed penalty is below the $1,000 maximum for a serious or nonserious violation. Williams Construction Co., 77 OSAHRC 201/A2, 6 BNA OSHC 1093, 1977–78 CCH OSHD ¶22,325 (No. 11526, 1977).

            Since the violation was not alleged to be ‘serious’ as well as ‘repeated’, only a nonserious violation can be found if it is not held to be ‘repeated.’ Todd Shipyards Corp., 77 OSAHRC 74/F14, 5 BNA OSHC 1012, 1976–77 CCH OSHD ¶ 21,509 (No. 8500, 1977). Therefore, a nonserious violation is found here.

            The alleged violation of 29 CFR 1910.134(d)(2)(ii).

            Item 1 of citation 3, for which no penalty is proposed, alleges two nonserious violations of 29 CFR 1910.134(d)(2)(ii)[13] in that two oil-lubricated compressors used to supply breathing air were equipped only with high-temperature alarms and were not tested frequently for carbon monoxide (CO).

            Since it is conceded that the compressors had only high-temperature alarms (and did not have CO alarms), the central question is whether they were ‘frequently’ tested for CO. Weatherby contends that it tested the air supplied by these compressors for CO once a week and that this is frequent enough to satisfy the standard. The Secretary contends that such tests were not made during the month before the inspection and that this is not ‘frequent.’

            Compliance Officer Mark S. Wilson testified that Weatherby’s production manager, Charles Bradley, Jr., said that no testing for CO had been done since Ed Mycock, a safety engineer, had left Weatherby’s employ approximately a month earlier (Tr. 38). Bradley, who was called as a witness by Weatherby, was not asked specifically whether he had so informed Wilson, but he testified that the compressors were tested for CO at least once a week (Tr. 111, 116) and that this is frequent enough (Tr. 121). Wilson, on the other hand, testified that CO Tests should be made twice a day—an hour or so after start-up and an hour or so after the lunch break (Tr. 42, 50).

            ‘Frequently’ is not defined by the standards, so the ‘reasonable man’ test must be applied to determine its meaning in the context in which it is here employed. Ryder Truck Lines v. Brennan, 497 F. 2d 230 (5th Cir. 1974), aff’g Ryder Truck Lines, 73 OSAHRC 36/E9, 1 BNA OSHC 1290, 1973–74, CCH OSHD ¶ 16,451, (No. 391, 1973); McLean Trucking Co. v. OSHRC, 503 F. 2d 8 (4th Cir., 1974), aff’g McLean Trucking Co., 73 OSAHRC 49/F14, 1 BNA OSHC 214, 1973–74 CCH OSHD ¶ 16,697 (No. 2847, 1973).

            Nothing short of continuous monitoring for CO (for which equipment is available; Tr. 42) would completely protect employees against the insidious hazard of this odorless, tasteless gas. One of the two compressors here involved was powered by an electric motor, but both were oil-lubricated. When a compressor becomes overheated, lubricating oil of the type used by Weatherby can break down, and CO is a product of this decomposition (TR. 39–41; exhibit C–5). A high-temperature alarm or cut-off will not give complete protection due to the possibility of malfunction (Tr. 43), and, in any event, the standard requires redundant Protection because of the hazard involved. Testimony that Weatherby had never had such a mishap (Tr. 111) is unavailing, in view of these requirements, which are obviously intended to prevent a first accident.

             ‘Frequently’ cannot be defined precisely. What is ‘frequent’ depends on the circumstances, and it is easier to say what it is not rather than what it is. Since frequent CO tests are the alternative to a CO alarm which would give continuous, protection, it is apparent that ‘frequently’ must mean more often than the once-a-week testing Weatherby claims and certainly more often than once-a-month testing as the Secretary contends.

            I find this item proved.

            The appropriate penalties.

            Section 17(j) of the Act requires the Commission, in assessing penalties, to consider the gravity of the violation and the employee’s size, good faith and history of previous violations. These factors need not be accorded equal weight, but the gravity is usually of greater significance than the others. Colonial Craft Reproductions, 72 OSAHRC 11/B10, 1 BNA OSHC 1063, 1971–73 CCH OSHD ¶15,277 (No. 881, 1972). Elements to be considered in determining gravity include the number of employees exposed to the risk of injury, duration of the exposure, precautions taken against injury, and the degree of probability of occurrence of an injury. National Realty & Construction Co., Inc., 72 OSAHRC 9/A2, 1 BNA OSHC 1049, 1971–73 CCH OSHD ¶15,188 (No. 85, 1972) rev’d on other grounds, 489 F.2d 1257 (D.C. Cir., 1973).

            Weatherby is a moderately large employer with some history of previous violations (which, however, was not developed in this proceeding). There was very little evidence of good faith on its part. The gravity of the violation was low in each instance.

            I find the following penalties appropriate:

            Item 1, citation 1–$200

            Item 1, citation 2–$200

            Item 1, citation 3–$0


            1. The Commission has jurisdiction of the parties and of the subject matter of this proceeding.

            2. On November 4, 1977, respondent was in serious violation of 29 CFR 1910.23(c)(2) as alleged in item 1 of citation 1.

            3. Item 2 of citation 1, alleging a serious violation of 29 CFR 1910.28(a)(3), should be vacated on the ground that the standard was invalidly promulgated.

            4. On November 4, 1977, respondent was in nonserious violation of 29 CFR 1910.23(a)(7), and item 1 of citation 2 should be amended to allege a nonserious rather than a repeated violation.

            5. On November 4, 1977, respondent was in nonserious violation of 29 CFR 1910.134(d)(2) as alleged in item 1 of citation 3.

            6. Respondent’s motion to dismiss the complaint should be denied.


            On the basis of the foregoing conclusions of law and the findings of fact contained in the discussion and opinion, it is ORDERED that:

            1. Item 1 of citation 1, for serious violation of 29 CFR 1910.23(c)(2), be and it hereby is AFFIRMED and that a penalty of $200 be and it hereby is ASSESSED.

            2. Item 2 of citation 1, for serious violation of 29 CFR 1910.28(a)(3), be and it hereby is VACATED.

            3. Item 1 of citation 2, alleging a repeated violation of 29 CFR 1910.23(a)(7), be and it hereby is amended to allege a nonserious violation and, as so amended, that it be and it hereby is AFFIRMED and that a penalty of $200 be and it hereby is ASSESSED.

            4. Item 1 of citation 3, alleging a nonserious violation of 29 CFR 1910.134(d)(2), be and it hereby is AFFIRMED.

            5. Respondent’s motion to dismiss the complaint be and it hereby is denied in all respects.



Administrative Law Judge

Date: October 3, 1978

[1] The case now before us was consolidated by the judge’s own motion with Docket No. 78–0611, pursuant to Rule 9 of the Commission’s Rules of Procedure, 29 C.F.R. § 2200.9. The two cases arose from the same inspection and involved the same Respondent. The judge held a unified hearing and issued a single decision. After the cases were directed for review, the Commission, noting that the only issue on review concerned Docket No. 77–4333, entered an order upon its own motion, severing the cases pursuant to Commission Rule 10, 29 C.F.R. § 2200.10. The Commission’s order affirmed the judge’s decision in Docket No. 78–0611, according it the precedential value of an unreviewed judge’s decision. Weatherby Engineering Co., 80 OSAHRC ——, 8 BNA OSHC 2013, 1980 CCH OSHD ¶ 24,701 (No. 78–0611, 1980).

[2] 29 C.F.R. § 1910.28(a)(3), in pertinent part, provides that:

Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground or floor . . . (emphasis added).

[3] Following the direction for review in this case, the Secretary, in lieu of filing a brief on review, submitted a copy of his brief to the United States Court of Appeals for the Ninth Circuit in Marshall v. Union Oil Co. of California & OSHRC, No. 78–2002. We note that the court rejected the Secretary’s arguments in its decision in that case. Marshall v. Union Oil Co. of California & OSHRC, 616 F.2d 1113 (9th Cir. 1980).

The essence of the Secretary’s position is that, because section 6(a) gave him authority to adopt non-binding national consensus standards as enforceable occupational safety and health standards under the Act, the distinction drawn by ANSI between mandatory and advisory ANSI standards is meaningless. Accordingly, the Secretary’s change from ‘should’ to ‘shall’ was pro forma and not a substantive change. We have held, however, that standards adopted under section 6(a) of the Act that are derived from advisory source standards are advisory and unenforceable under the Act. General Electric Company, OSHRC Docket No. 76–2982 (Dec. 30, 1980); Brown & Root, Power Plant Div., 80 OSAHRC ——, 9 BNA OSHC 1027, 1980 CCH OSHD ¶24,958 (No. 76–2938, 1980). It follows therefore that the language change at issue, which created a mandatory and enforceable duty, was a substantive change that could only be accomplished under section 6(b) of the Act.

[4] We also noted that the United States Courts of Appeals for the Fifth and Ninth Circuits have expressly upheld the Commission’s jurisdiction to review procedural challenges in enforcement proceedings. Rockwell Int’l Corp., supra, 9 BNA OSHC at 1094–5, 1980 CCH OSHD at p. 30,843.

[5] Public Law 93–502, 5 U.S.C. § 552, hereinafter called the FOIA.

[6] This portion of a three-part motion to dismiss was denied at the hearing, although the transcript (Tr. 8, 1. 6) says it would be ‘extended’ rather than ‘denied.’ In any event, it is now denied.

[7] The sources of these standards are listed in 29 CFR 1910.31.

[8] 29 CFR 1910.28(a)(3) provides in part:

Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground or floor .. .

[9] Set forth in footnotes 7 and 6, respectively.

[10] This standard provides:

Every runway shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides 4 feet or more above floor or ground level. Wherever tools, machine parts, or materials are likely to be used on the runway, a toeboard shall also be provided on each exposed side.

Runways used exclusively for special purposes (such as oiling, shafting, or filling tank cars) may have the railing on one side omitted where operating conditions necessitate such omission, providing the falling hazard is minimized by using a runway of not less than 18 inches wide. Where persons entering upon runways become thereby exposed to machinery, electrical equipment, or other danger not a falling hazard, additional guarding than is here specified may be essential for protection.

[11] This standard provides:

Every temporary floor opening shall have standard railings, or shall be constantly attended by someone.

[12] Sec. 17.

(a) Any employer who willfully or repeatedly violates the requirements of section 5 of this Act, any standard, rule, or order promulgated pursuant to section 6 of this Act, or regulations prescribed pursuant to this Act, may be assessed a civil penalty of not more than $10,000 for each violation.

[13] This standard provides:

§ 134(d)(2) Breathing air may be supplied to respirators from cylinders or air compressors.

(II) The compressor for supplying air shall be equipped with necessary safety and standby devices. A breathing air-type compressor shall be used. Compressors shall be constructed and situated so as to avoid entry of contaminated air into the system and suitable in-line air purifying sorbent beds and filters installed to further assure breathing air quality. A receiver of sufficient capacity to enable the respirator wearer to escape from a contaminated atmosphere in event of compressor failure, and alarms to indicate compressor failure and overheating shall be installed in the system. If only a high-temperature alarm is used, the air from the compressor shall be frequently tested for carbon monoxide to insure that it meets the specifications in subparagraph (1) of this paragraph. [Emphasis supplied.]