“\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 77?2553 \u00a0 POWER PLANT DIVISION, BROWN & ROOT, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 July 27, 1982DECISIONBefore: ROWLAND, Chairman; CLEARY and COTTINE,Commissioners.BY THE COMMISSION:??????????? Adecision of Review Commission Judge Dee C. Blythe is before the Commission forreview under section 12(j), 29 U.S.C. ? 661(i), of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651?678 (?the Act?). The principal issue inthis case is whether the perimeter guarding standard for construction work at29 C.F.R. ? 1926.500(d)(1) is applicable to the working conditions in question.[1] In particular, we mustdetermine whether the judge correctly held that a flat surface inside a largeair duct that was being constructed was an ?open-sided floor? within themeaning of the standard. We conclude that the Secretary of Labor (?the Secretary?)established that the cited standard is applicable here and we affirm theadministrative law judge?s finding of a violation.I??????????? Atthe 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 largeinverted-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 configurationthat 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 elevatedflat surface, which was approximately 12 feet long and 12 feet wide, separatedtwo parallel vertical shafts, each with an opening that was also approximately12 feet square. The other two sides of the flat surface were connected to thebulkhead created by the interior of the air duct.??????????? Duringthe assembly process, it had been necessary for employees to be inside the ducton 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 ofthe surface. This edge was adjacent to the opening into one of the verticalshafts and approximately 43 feet above the base of that shaft. The recordindicates 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 theinspection, was still to come. It is undisputed that this wire, which was 38??inches above the elevated flat surface, did not constitute a standardguardrail.??????????? Approximately1?? 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 surfacewhere 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 supervisorsassigned two welders to patch the weld. Although the record indicates that thewelding could have been done on the outside, one of the welders entered theduct alone through an existing temporary access hole cut in the bulkhead,apparently in order to see the light shining through the defective weld. Butfor the temporary access hold cut in the bulkhead, there was no source of lightin the duct. The welder was later found dead at the bottom of the duct shaftthat was adjacent to the edge of the surface where the wire rope had beenstrung.??????????? Onreview, Respondent charges that Judge Blythe erroneously determined that theelevated flat surface at issue was a ?floor? within the meaning of the citedstandard. As in its post-hearing arguments, Respondent cites an unreviewedjudge?s decision regarding a standard pertaining to steel erection as soleauthority for its contention that there is a difference in the degree ofemployee protection required for temporary flooring as opposed to that requiredfor permanent flooring and that section 1926.500(d)(1) applies only to thelatter.[2] Because the surface inquestion was not a permanent floor, it continues, the judge erred in concludingthat the cited standard was applicable. Instead, the judge should have acceptedRespondent?s contentions that the conditions were governed by 29 C.F.R. ?1926.28(a)[3] and that it was not inviolation of that standard because the deceased employee?s failure to usepersonal protective equipment was the result of his own unpreventablemisconduct. Respondent summarizes its position as follows: it evaluated thehazard presented and selected a ?mode of compliance??safety belts andlifelines. The Secretary, in hindsight, determined that another means ofcompliance was better, while admitting that Respondent?s chosen means wouldhave eliminated the hazard. Accordingly, in Respondent?s view, the citationshould be vacated.II??????????? It iswell settled that the burden of proving that a particular standard applies tothe cited working conditions is on the Secretary. Howard Barthelmass Painting Company, Inc., 81 OSAHRC 84\/E1, 9 BNAOSHC 2160, 1981 CCH OSHD ? 25,637 (No. 78?5450, 1981). Here, the cited standardis applicable to every open-sided floor or platform 6 feet above adjacent flooror ground level. It is not disputed that this elevated flat surface was morethan 6 feet above adjacent floor or ground level; thus the sole remainingquestion is whether it was a ?floor? or ?platform? within the meaning of thestandard.??????????? Inhis decision, Judge Blythe noted the absence of a definition of ?floor? in theSecretary?s standards or in Commission decisions. Consequently, the judgeresorted to the dictionary. He noted that Webster?sThird New International Dictionary contains numerous definitions of?floor,? including: ?the bottom or lower part of any room: the part of a roomupon 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 ortravel . . ..? The judge determined that it would be unrealistic to apply arestrictive definition of ?floor? to a structure such as the generating planthere. Therefore, he opted for a broad definition compatible with the remedialpurpose of the Act. He concluded that, because work had been and remained to bedone 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 standardguarding be installed on its open sides.??????????? Therecord clearly establishes that the surface at issue was a working-walkingsurface. The evidence indicates that, weeks before the fatal accident,Respondent had used the surface during the process of assembling the air ductand had erected the line in the duct in anticipation of its employees?performing clean-up activities, such as removing the remains of the scaffold erectedon the surface. Respondent?s supervisors entered the duct on the morning of theaccident to inspect the defective weld. They then directed the deceased topatch the hole and he, too, tread upon the surface in order to perform thatassignment. We conclude, therefore, that Respondent?s employees used thesurface at issue in the performance of their work and were entitled to the fallprotection which the cited standard is intended to provide. Commissioner Clearyagrees with the judge?s conclusion that the working surface was a floor.[4] Commissioner Cottine findsthat 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.[5]??????????? Respondentalso asserts in effect that the Secretary acted arbitrarily in concluding thatthe working conditions were governed by the cited standard rather than 29C.F.R. ? 1926.28(a). However, the standard at section 1926.500(d)(1) is morespecific 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 withsection 1926.500(d)(1). Respondent further asserts that its mode ofcompliance?safety belts and lifelines?would have eliminated the hazard, but forthe isolated incident of employee misconduct by the deceased, who failed to usehis safety belt. We also reject this contention. The Commission has held thatsafety belts are not ?equivalent protection? to guardrails within the meaningof 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 hissafety belt was unpreventable employee misconduct does not establish a defenseto a citation where, as here, the violation alleged is the lack of a standardguardrail around an open-sided floor. SeeWander 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 insection 17(j) of the Act, 29 U.S.C. ? 666(i), and the parties? stipulation, weassess a penalty of $300.?SO ORDERED.?FOR THE COMMISSION:?Ray H. Darling, Jr.Executive SecretaryDATED: JUL 27, 1982\u00a0\u00a0ROWLAND, Chairman, Dissenting:??????????? Idissent from the majority?s conclusion that the standard cited in this case, 29C.F.R. ?\u00a01926.500(d)(1), was shown to be applicable to the workingconditions in question. Since I would also find that Respondent did not knownor reasonably could have known that the deceased employee would fail to usethe required safety belt, I would conclude that Respondent did not violate thepersonal protective equipment standard at 29 C.F.R. ? 1926.28(a). Accordingly,I would vacate the citation.??????????? Atthe outset, I find it instructive that the majority in this case is divided onthe proper characterization of the surface at issue. Although both Commissionmembers rely on the use of the surface for the performance of work, each drawsa different conclusion from that fact. Commissioner Cottine finds the surfaceto be a ?platform? because that term is expressly defined as ?a working space forpersons.? Commissioner Cleary expresses agreement with the judge?s conclusionthat the surface is a ?floor? within the dictionary definition of a floor as asurface on which work is performed.[6] The fact that members ofthis Commission, who must interpret the Secretary?s standards, disagree on theproper terminology and definitions to be applied in determining Respondent?sobligation is a strong indication that the language of the standard in questionis imprecise.??????????? Indeed,the Commission has previously recognized that a similar guardrail standard,section 1910.23(c)(1),[7] must be interpreted in areasonable manner in order to afford an employer fair notice of its obligationsunder 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 Commissionconsidered whether under section 1910.23(c)(1) guardrails were required alongthe open sides of the tops of two conveyor belts. In concluding that thesesurfaces did not come within the definition of a platform as ?a working spacefor persons,? the Commission relied on the fact that the conveyor tops wereused as a work surface only during a maintenance operation, when the normalmanufacturing process was not in operation. It therefore held that to considerthe conveyor belts ?platforms? would exceed the plain meaning of that term andconflict with the common understanding of what constitutes a ?platform.? In soholding, the Commission expressly adopted the reasoning of the court in General Electric Co. v. OSHRC, 583 F.2d61, 64 (2d Cir. 1978):We do not read this definition [of ?platform?]to apply to every flat surface . . . upon which employees may someday standwhile performing some task related to their employment and the operations oftheir employer. An elevated flat surface does not automatically become a?working space? and a ?platform? merely because employees occasionally set footon it while working.???????????? Underthis precedent, applicability of these standards to surfaces on which employeeswork depends upon a number of factors, including the nature of the surface inquestion and the frequency and regularity with which employees go onto thesurface in the performance of their assigned duties. It is not sufficient tofind 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 inthe performance of their work without regard to the regularity orpredictability of such use.??????????? Therecord demonstrates that the surface in question, which formed an interiorportion of a large prefabricated section of ductwork, was neither designed norintended to function as a working surface for employees. Although employeesultimately did perform some work from the interior surface once the ductworkhad been elevated by crane into a vertical position,[8] it is quite clear thatsuch work was only for completion of the ductwork installation. Uponcompletion, the opening in the ductwork which permitted access to the interiorsurface was to have been sealed. As Commissioner Cottine correctly observes innote 5 of the majority opinion, the performance of work by Respondent?semployees from within the duct was neither recurrent nor predictable.[9] It is undisputed thatduring the one and one-half to two-month period which elapsed betweeninstallation of the ductwork and detection of the hole by Respondent?ssupervisors, no employee had entered the ductwork for any purpose. Indeed, thework operation which resulted in the employee?s death and eventually in thecitation at issue would not have been performed at all were it not for theincidental discovery of an improper weld.??????????? Onthese facts, a reasonable employer would not conclude that the interior surfaceof a large metal structure which forms part of a building?s ventilation systemis a ?working space? requiring the provision of guardrails simply becauseemployees worked from that surface while installing the ductwork. Thisconclusion is consistent with the design and configuration of the duct surfaceas well as the fact that its use as a work surface is neither regular norpredictable. Although the majority characterizes the surface as flat, its opensides are curved, thus forming a gradual roll or drop-off. The cited standardrequires that the employer provide ?a standard railing, or the equivalent,?which is defined at section 1926.502(k) as a ?vertical barrier erected alongexposed edges . . ..? The standards, however, give no guidance by which anemployer can determine where the ?edge? exists on a sloped or curved surface.The compliance officer himself testified that he had never seen similarductwork equipped with guardrails. Accordingly, in view of the infrequency andirregularity of use, the evident unsuitability of the curved surface for theinstallation of guardrails,[10] and the absence ofevidence to show that guardrails are customarily used by the industry in suchcircumstances, Respondent cannot be said to have fair notice that the citedstandard is applicable to it in this case. SeeFaultless 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, 583F.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 GlobeIndustries, supra, is equally appropriate here: ?In view of the totality of thefacts . . . acceptance of the Secretary?s position . . . would stretch thatterm [?platform?] beyond its plain meaning and lead to results that conflictwith the common understanding of what a ?platform? is.? 10 BNA OSHC at 1598?99,1982 CCH OSHD ?26,048 to 32,719.[11]??????????? Thesame conclusion applies even if we consider the issue before us, asCommissioner Cleary states, to be whether the surface in question constitutes a?floor.? Under the Commission precedent I have discussed, the application ofthe standard depends not on the incidental selection of terminology but on thereality of the nature of the surface in question and the extent to which it isused by the employer. Clearly, it no more reasonable to construe the interiorsurface of Respondent?s ductwork as a ?floor? based on irregular or infrequentuse by employees than it is to consider the surface a ?platform? on the samebasis.[12] 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 section1926.500(d)(1) necessarily imply that it is not a ?platform? as well).[13]??????????? Asthe judge properly observed, Respondent had a work rule requiring thatemployees use safety belts when working at heights. The judge, concluding thatRespondent had tried by consent the issue of a violation of the generalprotective equipment standard at 29 C.F.R. ?\u00a01926.28(a), held thatnevertheless Respondent?s safety program with respect to the use of safetybelts was inadequate. Because Respondent does not except to the judge?s rulingregarding trial by consent, the issue of whether Respondent violated section1926.28(a) is before us at this time. For the reason that follow, I do notagree with the judge?s conclusions on this issue.??????????? In acase such as this, where an employee commits an act contrary to a workruleestablished by the employer, the Secretary must establish that the employereither 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 OSHC1660 (No. 78?3491, 1982) (dissenting opinion).[14] The Secretary presentedno evidence to show that Respondent had actual knowledge that the deceasedemployee 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?semployees including the deceased customarily wore belts when required.??????????? Therecord, furthermore, demonstrates that Respondent?s employees were informedthat violation of Respondent?s work rule was cause for termination, thatsupervisors regularly inspected the job for compliance with safety rules, andthat employees have in fact been terminated for failure to follow safetyinstructions including the failure to tie off where required. The deceasedemployee was regarded as an experienced and competent worker, and he never hadhad to be reprimanded for a safety belt infraction. Finally, Respondentmaintained 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 toenforce as well as communicate safety instructions to employees, Respondentcould not have foreseen that the deceased employee would violate its safetyrule, and it cannot be held in violation of 29 C.F.R. ? 1926.28(a).[15]\u00a0\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 77?2553 \u00a0 POWER PLANT DIVISION, BROWN & ROOT, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 February 15, 1978DECISION AND ORDERAppearances:James F. Gruben, Esq., of Dallas, Texas,for the complainant.\u00a0William L. Bedman, Esq., of Houston,Texas, for the respondent.?STATEMENT OF THE CASEBLYTHE, Judge:??????????? Thisis a proceeding brought before the Occupational Safety and Health ReviewCommission (?the Commission?) pursuant to ? 10 of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ? 651, et seq. (?the Act?), contesting onecitation issued by the complainant, the Secretary of Labor (?the Secretary?),to the respondent, Power Plant Division, Brown & Root, Inc., underauthority vested in the Secretary by ? 9(a) of the Act.??????????? Asthe result of an inspection conducted on July 15, 1977, of a workplace at W. A.Parrish Generating Station, Thompsons, Texas, where respondent was constructinga steam power plant, one citation was issued to respondent on August 4, 1977,alleging that it violated ?\u00a05(a)(2) of the Act in that it failed to complywith a safety standard promulgated by the Secretary, codified at 29 CFR1926.500(d)(1). Respondent gave timely notice of contest August 8, 1977, andthereafter a complaint and an answer were filed with the Commission.??????????? Ahearing was convened at Houston, Texas, on November 15, 1977. No affectedemployee or representative of affected employees participated in thisproceeding. Both of the parties have submitted post-hearing briefs.??????????? Respondentadmitted the jurisdictional allegations of the complaint and stipulated (Tr. 5)that, if it should be found in violation, the proposed penalty of $300 isappropriate. The only issue remaining to be determined is whether respondentwas in violation of 29 CFR 1926.500(d)(1). This subsumes the issue of whether aflat surface inside a large air duct was a floor or platform within the meaningof the cited standard.[16]OPINION??????????? Theinspection which resulted in the citation here involved was triggered by afatal accident in which Billy Parrish, a welder employed by respondent, fell 43feet inside a large air duct which, at that point, was in the shape of aflattened, inverted U. Parrish apparently had gone inside the duct to inspect acrack which he and another welder had been instructed to repair. The crack waslocated on a bulkhead about 1 1\/2 feet above a 12 x 12 flat steel surface andabout the same distance from the rounded-off edge of this surface.[17]??????????? Adoubled wire rope[18] was strung between thebulkheads (Tr. 64) about 38 1\/2 inches above the edge of the flat surface (Tr.19).??????????? Therewas 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 throughnewly-installed pad eyes 17 1\/2 inches off the deck (Tr. 46).??????????? Thecitation and complaint allege only that the open side was guarded by a ?singlerail?. Paragraph (f)(1) of ? 1926.500 requires that a standard railing, as usedin paragraph (d)(1), shall have a top rail approximately 42 inches above thefloor or platform and an intermediate rail halfway between the top rail and thefloor or platform. Paragraph (f)(1) also contains rather detailedspecifications which need not be repeated here except that the supports must beno more than 8 feet apart and where, as here, wire rope is used the top railmust be able to withstand a pressure of 200 pounds ?with a minimum ofdeflection.? Here the supports were 12 feet apart and there is some evidence(to be discussed later) that the top rail was not taut.??????????? Theduct was fabricated in sections on the ground, then the sections were hoistedinto position and welded together. This welding was accomplished from theoutside, but it was necessary for employees to go inside the duct to guide thesections into position (Tr. 105). This phase of the construction was completedabout 1 1\/2 or 2 months before the accident (Tr. 73). Thereafter there were fewoccasions for employees to enter that portion of the duct, though Foreman Minorsaid work had been done there before (Tr. 92) and that he had been thereseveral 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, allthat remained to be done on the 12 x 12 surface was ?clean-out?, includingremoval of steel scaffolding which was welded to it (Tr. 69, 81).??????????? Accessto 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 thescaffolding 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 throughthe access hole (Tr. 78). Compliance Officer Donovan S. Donnelly testified thatthe 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 tothe left when he stuck his head inside (Tr. 53, 63).[19]??????????? AfterForeman Minor located the crack (actually a gap in the welding of a seam), heand Foreman Godwin looked at it together from the inside of the duct and thentold Parrish and another welder, Dennis Kowalik, to weld it (Tr. 88). Theprocedure to be used was left up to the welders (Tr. 66). They could havewelded it from the inside (Tr. 66), but it was more logical that they would doit from the outside where the original welding was done (Tr. 75). Although thecrack could be seen from the outside, it was more visible from the inside sincethe inside was dark and the outside was light (Tr. 78). Parrish may havedecided to inspect the crack from the inside to see whether it ran under someflanges (Tr. 100). Kowalik did not go into the duct with him; nobody sawParrish fall to his death. When found at the bottom of the duct, his body hadon no safety belt (Tr. 79).??????????? Respondent?scontentions are: (1) That the surface from which Parrish fell was not a ?flooror platform? so as to make applicable the guardrail provisions of 29 CFR1926.500(d)(1); (2) that the applicable standard is 29 CFR 1926.28(a),[20] under which Parrishshould 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 ofemployee misconduct.??????????? Theapplicability of ? 1926.500(d)(1) depends upon whether the 12 x 12 surface fromwhich Parrish fell was an ?opensided floor or platform? within the meaning ofthat standard.??????????? ??Floor? is not defined by the standards, but?platform? is defined by ? 1926.502(e) asA working space for persons, elevatedabove the surrounding floor or ground, such as a balcony or platform for theoperation of machinery.?From the foregoing summary of the facts, it mightappear that the 12 x 12 surface was a ?working space for persons? and thereforea ?platform.? Certainly work had been and remained to be done therefrom.However, the Commission has construed the definition of ?platform? as beingrestricted to a structure that is erected for the purpose of performing worktherefrom. Otis Elevator Co., 77OSAHRC 80\/A2, 5 BNA OSHC 1429, 1977?78 CCH OSHD ?21,821. Thus it seems clearthat the surface here involved was not a ?platform,? since it was not erectedfor the purpose of performing work therefrom but was an integral part of thepower plant structure.??????????? Thereremains the question of whether this surface was a ?floor? within the meaningof ?\u00a01926.500(d)(1). It definitely was not in the sense that it was to bea permanent floor in the finished structure; in fact, the temporary hatchproviding access to it was to be closed permanently during construction.??????????? Nocase quite in point has been cited by the parties. Respondent cites theunreviewed decision of Judge Burchmore in SanJose Crane & Rigging, Inc., 3 OSAHRC 760, 1971?73 CCH OSHD ?15,791 (No.1740, 1973), Secretary?s appeal dismissedJanuary 3, 1974 (No. 73?2662, 9th Cir.); LangerRoofing & Sheet Metal, Inc., v. Secretary of Labor and OSHRC, 524 F. 2d1337 (7th Cir., 1975); and DiamondRoofing Co., Inc., v. OSHRC, 528 F. 2d 645 (5th Cir. 1976).??????????? InSan Jose, as respondent points out, Judge Burchmore held that ? 1926.500(d)(1)applied only to ?open sided, permanent floors.? However, the problem in thatcase was when a temporary floor installed under a steel erection standard, ?1926.700(b)(1)(iii)?which requires only a single wire rope safetyrailing?became permanent enough to come under the more stringent requirementsof ? 1926.500(d)(1), requiring top rail, intermediate rail and toeboards. The quotedlanguage 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 OSAHRC61\/A2, 4 BNA OSHC 1286, 1976?77 CCH OSHD ?20,761 (No. 8173, 1976), in holdingthat a flat roof is not a ?floor,? as the latter term is used in ?\u00a01926.500(d)(1),likewise are of little assistance, since their rationale was founded on theexistence of other standards dealing with safeguarding employees on roofs,leading to the conclusion that flat roofs were not intended to be covered bythe guardrail standards. There is no such parallel here. It is a non sequiturto say that since a flat roof is not a floor neither is a surface such as ishere involved.??????????? Inthe absence of a definition of ?floor? in the standards or in Commissiondecisions, resort may be had to the dictionary. Webster?s Third NewInternational Dictionary contains numerous definitions of ?floor,? including:??????????? 1: the bottom or lower part of anyroom: the part of a room upon which one stands??????????? 2a: the lower inside surface of anyhollow structure . . .??????????? 4: the surface or the platform of astructure on which to walk, work or travel . . .???????????? Itshould be kept in mind that the structure here involved was not a conventionalbuilding but a large generating plant. To apply a restrictive definition of?floor? to such a structure would be unrealistic and defeat the remedialpurpose of the Act. The broader dictionary definition is more compatible withthis purpose. The surface involved was, at the time of the fatal accident andof the inspection, a working-walking surface. Work remained to be done from andon this surface. Respondent recognized the fall hazard by erecting a singlewire rope at the approximate height of a standard toprail (which it now insistswas a ?lifeline? for attaching safety belts and lanyards). I find that at thepertinent times the surface involved was a ?floor? and that its open sideshould have been guarded by a standard guardrail under ? 1926.500(d)(1).??????????? Respondentdoes 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 werefurther apart than required. The Compliance Officer, on the basis of aphotograph 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 itmet the requirement of ? 1926.500(f)(1)(iv) that it. . . be capable of withstanding a load ofat least 200 pounds applied in any direction at any point on the top rail, witha minimum of deflection.??????????? Inview of Foreman Godwin?s testimony (Tr. 74) that this rail was taut, it must beconcluded that the Secretary has not met his burden of proof on this point.??????????? If Ishould be held in error in holding that ? 1926.500(d)(1) is applicable to thefacts of this case, it will be necessary to determine whether, as respondentcontends, ? 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 aviolation of 28(a), would be proper under Rule 15(b), F.R.C.P. Warnel Corporation, 76 OSAHRC 41\/C5, 4BNA OSHD 1034, 1975?76 CCH OSHD ?20,576 (No. 4537, 1976).??????????? Incontending that ? 1926.28(a) is the applicable standard, respondent does notrely on the provision of ? 1926.500(d)(1) that the ?equivalent? of a standardrailing may be substituted therefor, and it is well established that safetybelts are not such an equivalent. WarnelCorporation, supra. Instead, respondent maintains that safety belts weresuperior to guardrails in the situation presented. This ignores the well-knowntendency 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 mightsustain in a 6-foot fall to the end of his lanyard, as the compliance officertestified (Tr. 34, 39). A standard guardrail, which does not depend on humanbehavior or employee compliance for its effectiveness, offers fall protectionsuperior to that afforded by safety belts in the open-sided floor situationhere presented[21].Incidentally, Welding Foreman Minor admitted that Parrish probably would nothave fallen if the open side had been guarded by a standard railing (Tr. 101).??????????? Assumingthat ? 1926.28(a) is applicable, there remains the question of whetherrespondent complied with it. As stated, the deceased employee, Parrish, did nothave on a safety belt when his body was found. Respondent claims this was anisolated act of employee misconduct in disobeying its work rule requiring theuse of safety belts by employees working at heights.??????????? Theessential elements of the isolated incident defense are set forth in Weatherhead Co., 76 OSAHRC 61\/E7, 4 BNAOSHC 1226, 1976?77 CCH OSHD ?20, 784 (No. 8862, 1976), where the Commissionmajority said at p. 24,922 of CCH:The existence of an ?isolated incident,?or perhaps more accurately an unpreventable occurrence, is an affirmativedefense wherein the employer bears the burden of proving that the actionsconstituting non-compliance with the standard were: (a) unknown to the employerand (b) contrary to both the employer?s instructions and a company work rulewhich the employer had uniformly enforced. [Citations omitted]???????????? ??Work rule? was further defined in J. K. Butler Builders, Inc., 77 OSAHRC26\/A2, 5 BNA OSHC 1075, 1977?78 CCH OSHD ?21,585 (No. 12354, 1977), as. . . an employer directive that requiresor proscribes certain conduct, and that is communicated to employees in such amanner that its mandatory nature is made explicit and its scope clearlyunderstood.???????????? Additionally,the work rule must be the equivalent of the standard the respondent is accusedof violating. Kansas Power & LightCo., 77 OSAHRC 39\/A2, 5 BNA OSHC 1202, 1977?78 CCH OSHD ?21,696 (No. 11015,1977). Rod T. Seals, respondent?s safety supervisor[22], testified that each newemployee was told to wear safety belts and to tie off ?any time he is off theground on a structure,? or face a penalty of immediate termination (Tr. 113,114). There is no direct evidence that this work rule was communicated toParrish, but Welding Foreman Godwin testified that it was ?customary? to wearsafety belts on the job and he never saw Parrish without one (Tr. 79). WeldingForeman Minor testified that Parrish was good about wearing his safety belt butcouldn?t say whether Parrish had one on when he directed him and another welderto weld the crack in the duct (Tr. 88, 90). Minor said welders usually woretheir safety belts under their loose-fitting shirts with the shirttails out toavoid 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).??????????? Sealstestified that 39 employees had been terminated for infractions of safety rulesin a one-year period (Tr. 114) but did not say whether any of theseterminations involved non-use of safety belts.??????????? It isapparent from the foregoing summary of the evidence that the requirements of Weatherhead, J. K. Butler and Kansas Power & Light have not beenmet. 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 theexercise of reasonable diligence, should have known that Parrish did not haveon his safety belt when they sent him aloft to weld the duct. Respondent hasnot sustained its burden of proving this affirmative defense.FINDINGS OF FACT??????????? Onthe basis of the stipulations and the credible evidence of record, thefollowing findings of fact are made:??????????? 1.The respondent, Power Plant Divison, Brown & Root, Inc., is an employerengaged in a business affecting commerce who has employees.??????????? 2. OnJuly 14, 1977, respondent was engaged in the construction of a large powerplant, known as W. A. Parrish Generating Station, at Thompsons, Texas. A largeair 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 withrounded 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 toprovide access. A doubled wire tope, fastened to pad eyes 12 feet apart at aheight of about 38 1\/2 inches, was on the left side as one entered the ductthrough the temporary hatch. There was no midrail or toeboard, but no toeboardwas necessary since no employees were working below. The next level was 43 feetbelow the 12 x 12 surface where the duct made a 90 degree bend. The duct?sinterior was not artificially lighted, and the only illumination was dim lightcoming from the open hatch.??????????? 3.The duct had been fabricated in sections on the ground, and the sections hadbeen hoisted into position and welded together. During this process it wasnecessary for employees to work on and from the 12 x 12 surface to align thesections for welding. At the time of the inspection, the only work remaining tobe done on the 12 x 12 surface was clean-up work, including removal of steelscaffolding welded thereto.??????????? 4. OnJuly 14, 1977, Welding Foreman Minor, inspecting the interior of the duct forleaks, found a gap in a welded seam and showed it to his superior, WeldingForeman Godwin. Minor instructed two welders, Parrish and Kowalik, to repairsame. The gap in the weld was in the side of the duct about 15 inches above the12 x 12 surface and about the same distance from the rounded edge. About 38 1\/2inches above this edge was a doubled wire rope strung between pad eyes weldedto the bulkheads, which were 12 feet apart.??????????? 5.The welding procedures were left to the discretion of Parrish and Kowalik. Itwas logical that the welding be done from the outside, since the original seamwas welded in that manner. However, it was also logical, and not contrary toinstructions, for Parrish to enter the duct to inspect the gap from the insidepreparatory to the welding. Parrish entered the duct alone through thetemporary hatch opening onto the 12 x 12 surface. He was not wearing a safetybelt. He fell from the rounded edge above which the wire rope was strung andwas fatally injured.??????????? 6.The 12 x 12 surface in the duct, while not destined to become a permanent floorin the power plant structure, was on July 14, 1977, a floor on and from whichrespondent?s employees were required to perform various tasks, includinginspection, 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?semployees were exposed to or had access to this hazard.CONCLUSIONS OF LAW??????????? Onthe basis of the foregoing findings of fact, as amplified in the opinion, it isconcluded that:??????????? 1.The Commission has jurisdiction of the parties and of the subject matter ofthis proceeding.??????????? 2. OnJuly 14, 1977, respondent was in serious violation of ? 5(a)(2) of the Act and29 CFR 1926.500(d)(1).ORDER??????????? Onthe basis of the foregoing findings of fact and conclusions of law, it isORDERED that:??????????? 1.Item 1 of citation 1 for serious violation of 29 CFR 1926.500(d)(1) be and ithereby is affirmed and that a penalty of $300 be and it hereby is assessed.??????????? 2.This proceeding be and it hereby is terminated.\u00a0DEE C. BLYTHEAdministrative Law JudgeDate: February 15, 1978\u00a0[1] 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 orground level shall be guarded by a standard railing, or the equivalent, asspecified in paragraph (f)(1)(i) of this section, on all open sides, exceptwhere there is entrance to a ramp, stairway, or fixed ladder. The railing shallbe provided with a standard toeboard wherever, beneath the open sides, personscan pass, or there is moving machinery, or there is equipment with whichfalling materials could create a hazard.[2] In San Jose Crane & Rigging, Inc., 73OSAHRC 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 relatingto steel erection work specifying the time or stage of construction when astandard railing, pursuant to 29 C.F.R. ? 1926.500(d)(1), is required ratherthan 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 respectto temporary-planked floors than the broad provision in ? 1926.500(d)(1),specifically approves a single wire rope ?around the periphery of alltemporary-planked floors? such as that in the case before him. Therefore, heconcluded that ? 1926.500(d)(1) only applies to open-sided, permanent floors.In the case before us, the evidence clearly indicates that the surface inquestion was a permanent, and not a temporary, surface within the meaning of San Jose Crane. Moreover, there is nocontention that Respondent was engaged in steel erection here. Accordingly, thecases are distinguishable.[3] 29 C.F.R. ?1926.28(a) provides:?1926.28 Personal protective equipment.(a)The employer is responsible for requiring the wearing of appropriate personalprotective equipment in all operations where there is an exposure to hazardousconditions or where this part indicates the need for using such equipment toreduce the hazards to the employees.[4] CommissionerCleary does not agree with the dissenting opinion that his position in thiscase is inconsistent with the positions he took in Globe Industries, Inc., 82 OSAHRC ??, 10 BNA OSHC 1596, 1982 CCHOSHD ?26, 048 (No. 77?4313, 1982), and in ArkansasRice Growers Cooperative Association, 82 OSAHRC ??, 10 BNA OSHC 1616, 1982CCH OSHD ?26,049 (No. 77?3974, 1982) (dissenting opinion). In his opinion, hehad followed a consistent policy of broadly construing the Secretary?sstandards on falling hazards so as to effectuate their clear remedial purpose,so long as the application of the standards would not deprive employers oftheir right to adequate notice of the proscribed conduct. The ultimate questionin each case is whether, in light of these two factors, the Secretary?senforcement action is reasonable. See GlobeIndustries, Inc., supra.In the case now before theCommission, the public interest in applying the standard is strong, while anyproblems of adequate notice are minimal. This was equally true in Arkansas RiceGrowers. Accordingly, in both cases Commissioner Cleary concluded that thecitation should be affirmed. In both cases, the Secretary?s enforcement actioneffectuated the intent of the cited standard and the purposes of the Act. Hereemployees were exposed to a 43-foot fall from a surface that can only bedescribed as hazardous. In Arkansas Rice Growers, employees were exposed to thehazard of falling 83 feet 9 inches through an opening in a surface that wasused by employees as a walking and working surface. Moreover, in neither casedid the application of the standard create a significant notice problem. Here aconstruction standard is being applied to an employer engaged in constructionwork. In this context, Commissioner Cleary sees no notice problem incharacterizing a surface as a floor because it was in fact used and it wasintended to be used as a floor during the construction process. In Arkansas Rice Growers, a generalindustry standard was applied to an employer engaged in a production operation.It was therefore appropriate to look to the function the surface was designedand intended to serve on a permanent basis. Because the record established thatthe surface was designed and intended to be used for two purposes on apermanent basis, and one of those uses was as a floor, Commissioner Cleary sawno notice problem in classifying the surface as a floor.On the other hand CommissionerCleary joined in vacating the citation in GlobeIndustries. It is distinguishable from ArkansasRice Growers and the case on review. In GlobeIndustries, the Secretary?s enforcement action contributed little to theobjective of improving employee safety. The surface was a broad, flat surfaceonly 5 feet 3 inches off the ground. A safe means of access was provided, andthe single employee who went onto the surface for brief periods of time performedhis functions from the center of the surface. Application of the standard wouldhave created significant notice problems because it would have stretched theterms of the standard beyond their plain meaning and the common understandingof 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 classifiedas a ?platform? because incidental maintenance work was performed on it on aninfrequent basis to enable its continuing operation as a conveyor.[5] In Globe Industries, Inc., 82 OSAHRC ??, 10BNA OSHC 1596, 1599, 1982 CCH OSHD ?26,048, p. 32,719 (No. 77?4313, 1982)(dissenting opinion), Commissioner Cottine noted the long-standing Commissionprecedent defining a ?platform? to generally include surfaces on whichemployees actually work that are raised above the surrounding floor or ground.The definition of ?platform? applicable to this citation is ?a working spacefor persons, elevated above the surrounding floor or ground, such as a balconyor platform for the operation of machinery and equipment.? 29 C.F.R. ?1926.502(e). The same definition applies under the general industry standard at29 C.F.R. ? 1910.21(a)(4), which was involved in Globe Industries, Inc., supra.Here, the open-sided workingsurface was raised above the surrounding ground approximately 43 feet. Inaddition to its use as a working surface by the deceased employee, a weldingforeman testified that it had been used by Brown & Root?s employees previouslyand had a partial guard in the form of a wire rope strung along one side. Thegeneral welding foreman testified that he used the surface to determine whatwelding needed to be performed and that the welding could have been performedfrom this surface. Thus, the surface was actually used on several occasions asa 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 surfaceon a regular and predictable basis, in Commissioner Cottine?s view the surfacemeets the definition of a platform under the construction standard at ?1926.502(e).Commissioner Cottine also notesthat Judge Blythe incorrectly concluded that the Commission has limited thedefinition of ?platform? to structures erected for the purpose of performingwork. The judge relied on the lead opinion in Otis Elevator Co., 77 OSAHRC 80\/A2, 5 BNA OSHC 1429, 1977?78 CCHOSHD ?21, 821 (No. 13140, 1977). However, that opinion reflected the views ofonly one Commissioner. The controlling Commission precedent is discussed in Globe Industries, Inc., supra.[6] See note 12 infra.[7] 29 C.F.R. ?1910.23(c)(1), which applies to employers in general industry, is virtuallyidentical to the standard at issue in this case, which imposes guardingrequirements for employers engaged in construction work. See note 5 of the leadopinion.[8] The ductwork wasoriginally assembled on the ground in a horizontal configuration. At that time,the surface now claimed to be a working surface was vertical, so that inrelation to Respondent?s employees it formed a side or wall of the duct.[9] The surface wasto be used primarily for inspection and final clean-up. Although some tackwelding had also been performed from the surface, the record does not indicatethat this welding was conducted either frequently or regularly.[10] The Secretary?sstandard which expressly provides for fall protection for employees on slopedsurfaces, section 1926.451(u)(3), requires that employees use safety beltsattached to a lifeline if they are not otherwise protected by a parapet orcatch platform. This requirement is predicated on the Secretary?s conclusionthat a sloping surface itself presents a fall hazard. Hamilton Roofing Co., 78 OSAHRC 57\/C1, 6 BNA OSHC 1771, 1978 CCHOSHD ?22,856 (No. 14968, 1978). As discussed infra, Respondent required its employees to use tied-off safetybelts in the circumstances presented here.[11] Because the factsindicate that the duct surface was not erected and designed for use byemployees while operating machinery or equipment, I would also conclude that itcannot be considered a ?platform? for the reasons stated by former CommissionerMoran in Allis?Chalmers Corp., 76OSAHRC 50\/F8, 4 BNA OSHC 1227, 1975?76 CCH OSHD ?20,666 (No. 5210, 1976). See Globe Indus., supra, 10 BNA OSHC at1599 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). [12] I do not mean tosuggest that the terms ?platform? and ?floor? are synonymous. However, in thecircumstances of this case it is unnecessary to consider whether these termsare intended to refer to different components of a building or structure, orwhether they may be differentiated in any other way. In this regard, I notethat the definitions on which the judge relied, which are quoted in the leadopinion, offer no guidance for distinguishing a ?floor? from a platform as thelatter term appears in the Secretary?s standards. Indeed, one of threedefinitions of ?floor? quoted by the judge itself uses the term ?platform.?[13] In his dissentingopinion in Arkansas Rice Growers, supra,Commissioner Cleary concluded that the roof in question was a ?floor? under thestandard because it was used by employees for the performance of work on aregular, recurring, and frequent basis. In this case, however, he concludesthat a floor existed because some work was performed on the duct surfacewithout regard to the infrequency and irregularity of that work.[14] Although thejudge concluded that Respondent?s foremen with the exercise of reasonablediligence should have known that the deceased employee was not wearing a safetybelt at the time in question, his decision otherwise refers to the ?affirmativedefense? of ?employee misconduct.? As explained in my dissenting opinion in Marson, supra, this ?affirmativedefense? impermissibly avoids placing the burden on the Secretary to establishwhat is in reality an essential element of his case. Therefore, while arguablyconsistent with Commission precedent, the judge?s characterization of the issuebefore him under section 1926.28(a) is in my view erroneous.[15] In findingRespondent?s safety program inadequate, the judge reasoned that Respondent?ssafety rule was not sufficiently specific, and he further found that in anyevent whether to comply with the rule was left to the discretion of individualemployees. As Respondent correctly points out in its brief before us, itssafety rule is at least as specific as section 1926.28(a), which is a generalprotective equipment standard. The judge?s additional finding is premised on anevident misreading of the testimony of Respondent?s foreman, who stated thatwhether to discipline employees for infractions of safety rules is left to thediscretion of the foreman. The foreman, however, also stated that his superiorswould ?make it hard on me? if he consistently failed to terminate employees forviolation of safety rules. In any event, even assuming the judge had correctlyread the testimony, the fact that compliance with a safety rule is left to thejudgment of an experienced employee is not necessarily indicative of a poorsafety program. See Capital Electric,supra, slip op. at 8.[16] 29 CFR1926.500(d)(1):Everyopensided floor or platform 6 feet or more above adjacent floor or ground levelshall be guarded by a standard railing, or the equivalent, as specified inparagraph (f)(i) of this section, on all open sides, except where there isentrance to a ramp, stairway, or fixed ladder . . .[17] The evidence issomewhat conflicting regarding the latter distance. Gary Godwin, respondent?schief structural steel welding foreman, said it was about 3 feet (Tr. 63), whileCecil B. Minor, Jr., a foreman under him who actually found the crack, said itwas 12 to 15 inches (Tr. 101). This distance is not critical, but I findMinor?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.[18] Respondent refersto this wire rope as a ?lifeline? and contends it was there for the purpose ofpermitting employees to attach their safety belts and lanyards.[19] Respondent wasnot alleged to have violated the illumination standard, 29 CFR 1926.56(a).[20] 29 CFR 1926.28(a)provides:Theemployer is responsible for requiring the wearing of appropriate personalprotective equipment in all operations where there is an exposure to hazardousconditions or were this part indicates the need for using such equipment toreduce the hazards to the employees.[21] Cf., B. C. Crocker dba Crocker CedarProducts, 76 OSAHRC 132\/B6, 4 BNA OSHC 1775, 1976?77 CCH OSHD ?21,179 (No.4387, 1976).[22] He was one of 3field inspectors on the job at the time of the inspection but had neverinspected the duct here involved.”