“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 Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”). It wasestablished to resolve disputes arising out of enforcement actionsbrought by the Secretary of Labor under the Act and has no regulatoryfunctions. See section 10(c) of the Act, 29 U.S.C. ? 659(c).The issue on review is whether Austin Bridge Company violated theguardrail specifications standard at 29 C.F.R. ?1926.500(f)(1)(vi)(b).[[1]] Administrative Law Judge E. Carter Botkinaffirmed the alleged violation, characterized it as serious, andassessed a penalty of $50. For the reasons stated below, we reverse thejudge’s decision and vacate the citation item.The citation resulted from an inspection of a construction site in SanAntonio, Texas. Austin Bridge was engaged in building an exit ramp [alsoreferred to as a bridge between an elevated interstate highway and agroundlevel city street. Much of the structure’s surface had beencovered with rebar, and Austin Bridge had begun the process of pouringand finishing concrete. This involved the use of a \”screed,\” a largemachine that moves slowly along the prepared surface and \”basicallytakes concrete that’s been poured onto the bridge platform and finishesit out to a smooth surface for a roadway.\”Along both sides of the ramp, Austin Bridge had placed steel pipeguardrail posts in 6-inch-deep \”cups\” at 8-foot intervals. Continuous1\/4-inch steel cables had been strung between the posts throughout the125-foot length of the ramp. Because the screed was approximately 6 feetwider than the ramp, it was necessary for employees to remove and thenreplace guardrail posts as the screed progressed slowly along the lengthof 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, whichwe will refer to as \”the operator’s side\” because the screed operatorwas located on that side, the machine moved along inside the guardrail.The citation item on review alleges that the steel cable top rails onboth sides of the bridge or ramp did not meet the specificationrequirement of section 1926.500(f)(1)(vi)(b) because a force of lessthan 200 pounds applied on the top rails caused more than a \”minimum ofdeflection\” in them. The judge found, on the basis of the complianceofficer’s testimony, that the cables on both sides of the bridgedeflected 6 to 8 inches when less than 200 pounds of pressure wasapplied. He further found, in rejecting Austin Bridge’s arguments, thatthe amount of deflection was more than the minimum amount needed toallow for removal and replacement of the guardrail posts as the screedmoved along the ramp. He concluded that the Secretary had sustained hischarge by showing an amount of deflection that was \”substantial\” ratherthan 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\” asused in section 1926.500(f)(1)(iv) in the context of a metal railing. Inconcluding that a displacement of 3 to 4 inches exceeded the permissibledeflection, the Commission stated that \”movement from 3 to 4 inches of ametal railing, as opposed to a cable is not a minimal deflection underthe standard in view of the ordinary meaning of minimal — ‘smallestdegree, possible.’\” 10 BNA OSHC at 1096, 1981 CCH OSHD at p. 32,137(emphasis added). That conclusion clearly reflects a recognition thatthe term \”minimum,\” as used in the standard, is relative rather thanabsolute, and depends on a number of factors, including the material ofthe guardrail. Under an absolute interpretation, a minimum of deflectionwould be zero deflection. The Secretary also recognizes that thestandard permits some degree of deflection. For example, he concedes inhis review brief that there are physical factors such as \”the inherentlimitations of commonly used materials, and fastening methods\” that makeit impossible for an employer to eliminate deflection in a cable. Thisconclusion, and the implication that the term is intended to beconstrued relatively, is also stated in an OSHA program directive thatinstructs compliance personnel not to cite violations of a similarstandard where there are deflections of 3 inches or less. See OSHAInstruction STD 3-10.3, 1977 CCH ESHG Developments ? 10,800.We conclude that in the context of the standard the amount of deflectionpermitted must be based on the totality of the facts in each case. Wecannot find that greater tautness was achievable in the top rails atthis site under the circumstances that existed at the time of theinspection.[[2]]With regard to the \”wild end\” side of the ramp, the compliance officertestified, and the judge found, that he measured deflections rangingfrom 6 to 8 inches at different points along that side. However, thetestimony of the project superintendent establishes that it wasnecessary to maintain at least 6 inches of slack in the cable due to themovement of the screed along the ramp. Specifically, Austin Bridge hadto remove and replace guardrail posts that were installed in 6-inch-deepcups and therefore obviously had to lift the posts at least 6 inches.Accordingly, a deflection exceeding 6 inches was the \”smallest degreepossible\” on these facts. Accepting the compliance officer’smeasurements, we cannot conclude that the deflection in the cable on the\”wild end\” side exceeded the ”smallest degree possible\” such that aviolation 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 ofpressure 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 therail on the operator’s side, but took no measurements. The complianceofficer testified only that he \”checked\” the operator’s side and thatthe \”same problem\” existed. He did not testify that he took measurementson that side. If any measurements were taken, they are unknown. Giventhe ambiguity in the compliance officer’s testimony, we cannot find thatmore than 3 to 6 inches in fact existed. Whether this amount ofdeflection exceeded the \”smallest degree possible\” on the operator’sside is problematical, but we are satisfied that the flex in the railingwas not so severe that it would not serve the purpose of physicallyrestraining 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’sdecision and vacate item 2 of citation 1.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: JAN 22 1985————————————————————————FOOTNOTES:[[1]]The cited standard provides, as follows:?1926.500 Guardrails, handrails, and covers.* * *(f) Standard specifications. (1) A standard railing shall . . . have avertical height of approximately 42 inches from upper surface of toprail to floor. . . . Minimum requirements for standard railings undervarious types of construction are specified in the following paragraphs:* * *(vi) Other types, sizes, and arrangements of railing construction areacceptable, provided they meet the following conditions:* * *(b) A strength to withstand at least the minimum requirement of 200pounds top rail pressure with a minimum of deflection;[[2]]In view of the disposition of this case applying existingCommission precedent, Chairman Buckley has no reason to consider AustinBridge’s challenge to the correctness of the interpretation in NationalIndustrial Constructors of the phrase \”minimum of deflection\” or to theenforceability of the standard.”