“Docket No. 81-1049 SECRETARY OF LABOR,Complainant, v.AUSTIN BRIDGE COMPANY,Respondent.OSHRC Docket No. 81-1049DECISION Before:\u00a0 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 ofthe Department of Labor and the Occupational Safety and Health Administration(\”OSHA\”). It was established to resolve disputes arising out of enforcementactions 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 specificationsstandard at 29 C.F.R. ? 1926.500(f)(1)(vi)(b).[[1]] Administrative Law Judge E. CarterBotkin affirmed the alleged violation, characterized it as serious, and assessed a penaltyof $50. For the reasons stated below, we reverse the judge’s decision and vacate thecitation 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 betweenan elevated interstate highway and a groundlevel city street. Much of the structure’ssurface had been covered with rebar, and Austin Bridge had begun the process of pouringand finishing concrete. This involved the use of a \”screed,\” a large machinethat moves slowly along the prepared surface and \”basically takes concrete that’sbeen poured onto the bridge platform and finishes it out to a smooth surface for aroadway.\”Along both sides of the ramp, Austin Bridge had placed steel pipe guardrail posts in6-inch-deep \”cups\” at 8-foot intervals. Continuous 1\/4-inch steel cables hadbeen strung between the posts throughout the 125-foot length of the ramp. Because thescreed was approximately 6 feet wider than the ramp, it was necessary for employees toremove and then replace 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 partiesthe \”wild end\” side. On the opposite side, which we will refer to as \”theoperator’s side\” because the screed operator was located on that side, the machinemoved along inside the guardrail.The citation item on review alleges that the steel cable top rails on both sides of thebridge 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 complianceofficer’s testimony, that the cables on both sides of the bridge deflected 6 to 8 incheswhen less than 200 pounds of pressure was applied. He further found, in rejecting AustinBridge’s arguments, that the amount of deflection was more than the minimum amount neededto allow for removal and replacement of the guardrail posts as the screed moved along theramp. He concluded that the Secretary had sustained his charge by showing an amount ofdeflection 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 consideredthe term \”minimum of deflection\” as used in section 1926.500(f)(1)(iv) in thecontext of a metal railing. In concluding that a displacement of 3 to 4 inches exceededthe permissible deflection, the Commission stated that \”movement from 3 to 4 inchesof a metal railing, as opposed to a cable is not a minimal deflection under the standardin view of the ordinary meaning of minimal — ‘smallest degree, possible.’\” 10 BNAOSHC at 1096, 1981 CCH OSHD at p. 32,137 (emphasis added). That conclusion clearlyreflects a recognition that the term \”minimum,\” as used in the standard, isrelative rather than absolute, and depends on a number of factors, including the materialof the guardrail. Under an absolute interpretation, a minimum of deflection would be zerodeflection. The Secretary also recognizes that the standard permits some degree ofdeflection. For example, he concedes in his review brief that there are physical factorssuch as \”the inherent limitations of commonly used materials, and fasteningmethods\” 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 tocite violations of a similar standard where there are deflections of 3 inches or less. SeeOSHA 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 bebased on the totality of the facts in each case. We cannot find that greater tautness wasachievable in the top rails at this site under the circumstances that existed at the timeof the inspection.[[2]]With regard to the \”wild end\” side of the ramp, the compliance officertestified, and the judge found, that he measured deflections ranging from 6 to 8 inches atdifferent points along that side. However, the testimony of the project superintendentestablishes that it was necessary to maintain at least 6 inches of slack in the cable dueto the movement of the screed along the ramp. Specifically, Austin Bridge had to removeand replace guardrail posts that were installed in 6-inch-deep cups and thereforeobviously had to lift the posts at least 6 inches. Accordingly, a deflection exceeding 6inches was the \”smallest degree possible\” on these facts. Accepting thecompliance officer’s measurements, we cannot conclude that the deflection in the cable onthe \”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 todetermine what amount of deflection 200 pounds of pressure or less would cause in the toprail on this side of the ramp. Austin contends that no more than 3 to 6 inches of slackexisted in the rail on the operator’s side, but took no measurements. The complianceofficer testified only that he \”checked\” the operator’s side and that the\”same problem\” existed. He did not testify that he took measurements on thatside. If any measurements were taken, they are unknown. Given the ambiguity in thecompliance officer’s testimony, we cannot find that more than 3 to 6 inches in factexisted. Whether this amount of deflection exceeded the \”smallest degreepossible\” on the operator’s side is problematical, but we are satisfied that the flexin the railing was 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 beenestablished. We reverse the judge’s decision and vacate item 2 of citation 1.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: JAN 22 1985FOOTNOTES: [[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 ofapproximately 42 inches from upper surface of top rail to floor. . . . Minimumrequirements for standard railings under various types of construction are specified inthe following paragraphs:* * *(vi) Other types, sizes, and arrangements of railing construction are acceptable, providedthey meet the following conditions:* * *(b) A strength to withstand at least the minimum requirement of 200 pounds top railpressure with a minimum of deflection;[[2]]In view of the disposition of this case applying existing Commissionprecedent, Chairman Buckley has no reason to consider Austin Bridge’s challenge to thecorrectness of the interpretation in National Industrial Constructors of the phrase\”minimum of deflection\” or to the enforceability of the standard.”