SECRETARY OF LABOR,
Complainant,

v.

AUSTIN BRIDGE COMPANY,
Respondent.

OSHRC Docket No. 81-1049


_DECISION
_
Before:  BUCKLEY, Chairman, and CLEARY, Commissioner.
BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission
under 29 U.S.C. § 661(i), section 12(j) of the Occupational Safety and
Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act"). The Commission is
an adjudicatory agency, independent of the Department of Labor and the
Occupational Safety and Health Administration ("OSHA"). It was
established to resolve disputes arising out of enforcement actions
brought by the Secretary of Labor under the Act and has no regulatory
functions. See section 10(c) of the Act, 29 U.S.C. § 659(c).

The issue on review is whether Austin Bridge Company violated the
guardrail specifications standard at 29 C.F.R. §
1926.500(f)(1)(vi)(b).[[1]] Administrative Law Judge E. Carter Botkin
affirmed the alleged violation, characterized it as serious, and
assessed a penalty of $50. For the reasons stated below, we reverse the
judge's decision and vacate the citation item.

The citation resulted from an inspection of a construction site in San
Antonio, Texas. Austin Bridge was engaged in building an exit ramp [also
referred to as a bridge between an elevated interstate highway and a
groundlevel city street. Much of the structure's surface had been
covered with rebar, and Austin Bridge had begun the process of pouring
and finishing concrete. This involved the use of a "screed," a large
machine that moves slowly along the prepared surface and "basically
takes concrete that's been poured onto the bridge platform and finishes
it out to a smooth surface for a roadway."

Along both sides of the ramp, Austin Bridge had placed steel pipe
guardrail posts in 6-inch-deep "cups" at 8-foot intervals. Continuous
1/4-inch steel cables had been strung between the posts throughout the
125-foot length of the ramp. Because the screed was approximately 6 feet
wider than the ramp, it was necessary for employees to remove and then
replace guardrail posts as the screed progressed slowly along the length
of the ramp. However, it was only necessary to do this on one side,
called by the parties the "wild end" side. On the opposite side, which
we will refer to as "the operator's side" because the screed operator
was located on that side, the machine moved along inside the guardrail.

The citation item on review alleges that the steel cable top rails on
both sides of the bridge or ramp did not meet the specification
requirement of section 1926.500(f)(1)(vi)(b) because a force of less
than 200 pounds applied on the top rails caused more than a "minimum of
deflection" in them. The judge found, on the basis of the compliance
officer's testimony, that the cables on both sides of the bridge
deflected 6 to 8 inches when less than 200 pounds of pressure was
applied. He further found, in rejecting Austin Bridge's arguments, that
the amount of deflection was more than the minimum amount needed to
allow for removal and replacement of the guardrail posts as the screed
moved along the ramp. He concluded that the Secretary had sustained his
charge by showing an amount of deflection that was "substantial" rather
than minimal.

We disagree. In National Industrial Constructors Inc., 81 OSAHRC 94/A2,
10 BNA OSHC 1081, 1096, 1981 CCH OSHD ¶ 25,743, p. 32,137 (No. 76-4507,
1981), the Commission considered the term "minimum of deflection" as
used in section 1926.500(f)(1)(iv) in the context of a metal railing. In
concluding that a displacement of 3 to 4 inches exceeded the permissible
deflection, the Commission stated that "movement from 3 to 4 inches of a
metal railing, as opposed to a cable is not a minimal deflection under
the standard in view of the ordinary meaning of minimal -- 'smallest
degree, possible.'" 10 BNA OSHC at 1096, 1981 CCH OSHD at p. 32,137
(emphasis added). That conclusion clearly reflects a recognition that
the term "minimum," as used in the standard, is relative rather than
absolute, and depends on a number of factors, including the material of
the guardrail. Under an absolute interpretation, a minimum of deflection
would be zero deflection. The Secretary also recognizes that the
standard permits some degree of deflection. For example, he concedes in
his review brief that there are physical factors such as "the inherent
limitations of commonly used materials, and fastening methods" that make
it impossible for an employer to eliminate deflection in a cable. This
conclusion, and the implication that the term is intended to be
construed relatively, is also stated in an OSHA program directive that
instructs compliance personnel not to cite violations of a similar
standard where there are deflections of 3 inches or less. See OSHA
Instruction STD 3-10.3, 1977 CCH ESHG Developments ¶ 10,800.

We conclude that in the context of the standard the amount of deflection
permitted must be based on the totality of the facts in each case. We
cannot find that greater tautness was achievable in the top rails at
this site under the circumstances that existed at the time of the
inspection.[[2]]

With regard to the "wild end" side of the ramp, the compliance officer
testified, and the judge found, that he measured deflections ranging
from 6 to 8 inches at different points along that side. However, the
testimony of the project superintendent establishes that it was
necessary to maintain at least 6 inches of slack in the cable due to the
movement of the screed along the ramp. Specifically, Austin Bridge had
to remove and replace guardrail posts that were installed in 6-inch-deep
cups and therefore obviously had to lift the posts at least 6 inches.
Accordingly, a deflection exceeding 6 inches was the "smallest degree
possible" on these facts. Accepting the compliance officer's
measurements, we cannot conclude that the deflection in the cable on the
"wild end" side exceeded the ''smallest degree possible" such that a
violation of the standard was shown.

With respect to the operator's side, the record evidence is uncertain.
We are unable to determine what amount of deflection 200 pounds of
pressure or less would cause in the top rail on this side of the ramp.
Austin contends that no more than 3 to 6 inches of slack existed in the
rail on the operator's side, but took no measurements. The compliance
officer testified only that he "checked" the operator's side and that
the "same problem" existed. He did not testify that he took measurements
on that side. If any measurements were taken, they are unknown. Given
the ambiguity in the compliance officer's testimony, we cannot find that
more than 3 to 6 inches in fact existed. Whether this amount of
deflection exceeded the "smallest degree possible" on the operator's
side is problematical, but we are satisfied that the flex in the railing
was not so severe that it would not serve the purpose of physically
restraining an employee from falling.

We therefore conclude that a violation of 29 C.F.R. §
1926.500(f)(1)(vi)(b) has not been established. We reverse the judge's
decision and vacate item 2 of citation 1.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED: JAN 22 1985

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FOOTNOTES:

[[1]]The cited standard provides, as follows:

§1926.500 Guardrails, handrails, and covers.
* * *

(f) Standard specifications. (1) A standard railing shall . . . have a
vertical height of approximately 42 inches from upper surface of top
rail to floor. . . . Minimum requirements for standard railings under
various types of construction are specified in the following paragraphs:
* * *
(vi) Other types, sizes, and arrangements of railing construction are
acceptable, provided they meet the following conditions:
* * *
(b) A strength to withstand at least the minimum requirement of 200
pounds top rail pressure with a minimum of deflection;

[[2]]In view of the disposition of this case applying existing
Commission precedent, Chairman Buckley has no reason to consider Austin
Bridge's challenge to the correctness of the interpretation in National
Industrial Constructors of the phrase "minimum of deflection" or to the
enforceability of the standard.