“SECRETARY OF LABOR,Complainant,v.CARDINAL INDUSTRIES, INC.,Respondent.OSHRC Docket No. 82-0427_DECISION _Before: BUCKLEY, Chairman, and AREY, Commissioner.BY THE COMMISSION:This case is before the Commission pursuant to an order of remand fromthe United States Court of Appeals for the Sixth Circuit. _Brock v.Cardinal Industries, Inc.,_ 828 F.2d 373 (6th Cir. 1987), _rev’g,_ 12BNA OSHC 115-85, 1984-85 CCH OSHD ? 27,446 (No. 82-0427, 1985). In itsinitial decision, the Commission vacated citations alleging thatCardinal Industries violated OSHA general industry standards publishedin Part 1910 of 29 CFR, finding that Cardinal’s assembly linemanufacture of modular housing units was construction work covered bythe OSHA construction standards published in Part 1926 of 29 CFR. TheSixth Circuit determined that Cardinal’s employees were not engaged inconstruction work and that Cardinal’s workplace was governed by thegeneral industry standards. It reversed the Commission’s decision andremanded the case to the Commission for further proceedings.Accordingly, we must now address whether Cardinal violated the citedgeneral industry standards.At issue are three items alleging that Cardinal repeatedly violated theAct by failing to provide fall protection at two work stations on itsassembly line. The administrative law judge affirmed all three items asrepeated violations and assessed a penalty of $1,350. We vacate two ofthe items, affirm the remaining one, and assess a penalty of $450._Item 2 (b): ?1910.23(c)(1), felt rack platform__Item 3: ? 1910.132(a), roof of unit at felt rack platform _A.The citations resulted from an OSHA inspection that was conducted aftera fatal accident in which a Cardinal employee fell from the roof of amodular unit. Two of the citation items allege that Cardinal violatedthe standards by failing to provide adequate fall protection toemployees working on the roofs of the units [item 3] and on an adjacentplatform [item 2(b)]. Cardinal does not dispute that its operationfailed to conform to the standards. It argues, however, that OSHA hadpreviously approved the safety practices it now alleges violate thestandards, and that the company therefore lacked notice of what thestandards require. We agree with this argument as to item 3 andtherefore vacate that item. We conclude that the argument lacks merit asto item 2(b) and that item.The units that Cardinal produces are rectangular rooms 24 feet long by12 feet wide. They have slanted roofs that slope from a height of 8 feet10 inches at the lower or platform end up to 12 feet 4 inches at thepeak. The units move along an assembly line. At the stations on thatline the various components that make up the unit are installed. At thefelt rack station, Cardinal’s employees unroll 24-foot long sections of12-foot wide felt onto the roof of the unit from a rack on the adjacentfelt rack platform, trim it to size, and fasten it to the roof. Theplatform is nearly flush with but slightly wider than the lower end ofthe roof. The rack itself sits back approximately 2 ?, feet from theplatform’s edge. The sides of the platform between that rack and theedge of the unit were unguarded, exposing employees workingapproximately three feet from the edge of the platform to a fall of 8feet 10 inches. The Secretary issued a citation alleging, in item 2(b),that Cardinal’s failure to provide guarding on the felt rack platformwas a repeated violation of 29 C.F.R. ? 1910.23(c)(l). [[1\/]]Compliance officer Perry also testified that, as each unit passedthrough the felt rack station, employees were exposed to fall hazardsalong the sides of that unit’s roof as they unrolled the felt along its24-foot length. The potential fall distance from the sides ranged from 8feet 10 inches at the platform end of the roof to 12 feet 4 inches atthe peak. The Secretary initially alleged, in item 3, that exposure tothis fall hazard from the sides of each unit was a violation of section1910.23(c)(1). However, in recognition of the infeasibility ofinstalling guardrails on the roofs of each modular housing unit, theSecretary later amended the citation to allege that Cardinal violated 29C.F.R. ? 1910.132(a)[[2\/]] by not providing safety belts and lanyardsand requiring employees to wear them. The platform and peak ends of theroof did not pose fall hazards and were not included in the citation’sdescription of the alleged violation. At the platform, end, the feltrack itself formed a barrier; at the peak, a guardrail suspended fromthe ceiling had been installed.B.Cardinal’s fall protection practices in the felt rack area had beeninspected by OSHA on two earlier occasions. As a result of a March 1981inspection conducted by compliance officer Edward Mershon, Cardinal wascited for failing to comply with section 1910.23(c)(1) at the felt rackarea and two other locations. The citation alleged that on open-sidedplatforms:a) Located at the F-4 [felt rack] area; Employees installing felt androofing shingles were not protected from falls of up to 12 and one halffeet onto the concrete floor below.b) Located on the ceiling department elevated catwalk; The 3′ and 1-1?\”wide elevated catwalks on either side of the ceiling roller conveyor wasnot provided with guard railings or the equivalent on the inner sides toprotect employees from a 7′ 2\” fall to the floor below.c) Located at the elevated roofing shingle storage platform; Standardrailings were not provided on all open sides to prevent accidental fallsby employees to the concrete floor below.At the hearing in this case, Mershon testified that this earliercitation alleging exposure to fall hazards at the felt rack area hadbeen directed only at the roof of the unit. Mershon did not consider thefelt rack platform to be encompassed by the citation.[[3\/]] Mershontestified that during the March 1981 inspection he proposed thatCardinal abate the fall hazards in the felt rack area by installing someform of guardrail to the rear of the peak of the roof. He also recalleddiscussing the possibility of abutting the units together to providefall protection on the sides of the roofs.Cardinal did not contest the citations. In April of 1981, ThomasAlexander, Cardinal’s plant engineer, sent a letter to OSHA’s areadirector describing the steps Cardinal had taken to address each part ofthe citation as follows:a) Safety railing suspended from plant ceiling to protect from falls inthis area.b) Per conversation with Mr. Mershon, we have agreed to assure that theceiling finishing area be kept full at all times to preclude thepossibility of a fall.c) Standard railings with chain gates were installed on the shinglestorage platform.This letter informed OSHA of Cardinal’s belief that it had abated theviolation in the felt rack area by suspending a safety railing from theplant ceiling to protect against falls from the highest edge of eachunit’s roof.In May of 1981, after receiving the letter, Mershon conducted afollow-up inspection of Cardinal’s plant. At the felt rack area, heobserved a railing in place behind the modular units, i.e., the railingdescribed in Alexander’s letter. Mershon did not recall seeing anyguarding on the sides of the roofs, but he testified that \”[i]t seems asthough there was some discussion. . . of abatement there by abutting theunits together.\” Mershon wrote \”OK railing installed,\” next to item a),the felt rack item, on his copy of the 1981 citation. He wrote nothingabout the abutment of units. At the hearing, Mershon testified that theunguarded sides constituted a fall hazard but, at the time of thereinspection, he did not express these views to Cardinal and he did notrecommend to the area director that a failure- to-abate notification ora new citation be issued.Alexander testified that Cardinal had never abutted the units at thefelt rack platform area because workers installed sheets of gypsum onthe sides of the units there. He stated that the automation of theassembly line after Mershon’s follow-up inspection had no effect onCardinal’s continuing practice of not abutting the units.C.The Secretary now alleges, and Cardinal does not dispute, that Cardinalshould use safety belts and lanyards to protect its employees fromfalling from the sides of the modular housing units.[[4\/]] Cardinalcontends, however, that the circumstances of the earlier OSHAinspections deprived it of fair notice of this requirement at the timeof the alleged violation.As a general principle, an employer cannot be found in violation of theAct for failing to comply with a requirement of which it lacked fairnotice. _Diebold, Inc. v. Marshall, _585 F.2d 1327, 1335-1339 (6th Cir.1978). The Act contemplates that employers will be attentive to thesafety and health of their employees, and will read OSHA standards withtheir protective purpose in mind. But the Act does not require employersto read standards in a manner that strains the plain and natural meaningof the words used, nor does it require employers to assume thatstandards are drafted to create risk-free workplaces. _See_ _IndustrialUnion Department, AFL-CIO v. American Petroleum Institute,_ 484 U.S.607, 641-42 (1980).In this case, Cardinal’s employees were exposed to falls from the sidesof the roofs of the modular housing units. But at the time of thealleged violation, it was far from clear that any OSHA standardaddressed that particular fall hazard. The Secretary, who is intimatelyfamiliar with the requirements of the OSHA standards, originally allegedthat Cardinal violated section 1910.23(c)(1) by failing to installguardrails along the perimeter of the units. Shortly thereafter,however, the Secretary decided that guardrails were not thesolution,[[5\/]] and amended the citation to allege that Cardinal shouldhave used safety belts and lanyards under section 1910.132(a). However,at the time of the alleged violation, there was a substantial questionas to whether the language of section 1910.132(a) could be read torequire the use of safety belts and lanyards for fall protection. Adivided Commission has since held that it can be so read, but in thesame case the Commission declined to hold the cited employer inviolation of the standard because the language of the standard, thepractice in the industry, and the weight of earlier decisions byCommission administrative law judges had acted to deprive the employerof fair notice of the requirement.[[6\/]] _Bethlehem Steel Corp.,_ 82OSHRC 9\/C8, 10 BNA OSHC 1470, 1982 CCH OSHD ? 25,982 (No. 79-310, 1982).Similarly, the alleged violation in this case occurred before Bethlehemgave employers notice that section 1910.132(a) can be read to requirethe use of safety belts and lanyards.Cardinal’s claim that the earlier OSHA inspections deprived it of fairnotice that its ongoing practices violated the Act must be read againstthis backdrop. When Cardinal was first cited for fall hazards on theroofs of its modular units, the standards themselves did not clearlydelineate Cardinal’s duties. Cardinal therefore relied on therepresentations of OSHA’s representatives to establish its abatementduties upon receipt of the 1981 citation. When Mershon conducted thefollow-up inspection, which he did for the sole purpose of determiningwhether Cardinal had abated the cited violations, it was reasonable forCardinal to assume that Mershon would inform it of any deficiencies inthe abatement measures it had taken. Mershon was trained to detectsafety violations and had closely examined the felt rack area in hisfollow-up inspection. Cardinal, however, did not receive any indicationthat OSHA considered the fall protection for its employees working onthe roofs of the units at the felt rack area to be inadequate. TheSecretary did not issue a citation or a failure to abate notification.Mershon did not tell Cardinal of any reservations he had about theadequacy of fall protection at the felt rack area. Indeed, the notation\”O.K. railings installed\” Mershon made next to item a) on his own copyof the 1981 citation and his failure to note any remaining problems onthat copy strongly indicate that he was satisfied with the steps takenby Cardinal. In addition, although neither the Act nor the Commissionrequire the Secretary to reply to letters like the one that Cardinalsent to the area director, the Secretary’s failure to respond to thatletter certainly contributed to Cardinal’s decision to take no furtheraction in response to the earlier citation. Thus, we conclude thatCardinal lacked fair notice of what the Act required on the sides of theroofs of the units at the felt rack platform. _See Hamilton Die Cast,Inc.,_ 84 OSHRC 35\/A2, 11 BNA OSHC 2169, 1983 CCH OSHD ? 26,983 (No.79-1686, 1984).Accordingly, that part of the judge’s decision affirming item 3 ofcitation 2 is reversed and the item is vacated.[[7\/]]We next address Cardinal’s claim that it lacked fair notice of what theAct requires at the felt rack platform itself. Cardinal makes the samenotice argument that it made with regard to the roofs of the units, butthe evidence suggests that neither of Mershon’s inspections of the feltrack area involved the platform. Mershon testified that part a) of thesection 1910.23(c)(1) citation issued after the March 1981 inspection ofthe felt rack area concerned _only_ the roofs of the units. See note 3_supra._ His abatement proposals during the March 1981 inspection neverextended to the felt rack platform itself. Nor was there any referenceto the platform on Mershon’s copy of the 1981 citation. Alexander’stestimony on this point is equivocal at best. He stated both that theconditions cited at the platform in 1982 were not encompassed by the1981 citation and that the same conditions would have to have been apart of the 1981 citation because they were in the same physical area.The evidence also fails to establish that Cardinal took any action atthe platform in reliance on Mershon’s actions or \”approval\” regardingthe platform. Alexander testified that his letter to the Secretary\”respond(ed) to abatement of [the platform] as well,\” but this assertiondoes not stand up well under scrutiny. If Cardinal had believed that thefall hazards at the sides of the felt rack platform were covered by the1981 citation, it is difficult to understand why it would have donenothing to the felt rack platform to comply with section 1910.23(c)(1).There is no evidence that abating the violative condition on theplatform was difficult or infeasible like the measures proposed for themodular housing units, nor is there any substantial doubt that thestandard applies to that platform. In fact, Cardinal installed standardguard rails and chain gates on the shingle storage platform which was asimilar structure in close proximity to the felt rack platform; theshingle storage platform had been specifically included in the 1981citation.Having found that Mershon did not \”approve\” conditions on the felt rackplatform, we also note that the mere fact of Mershon twice inspectingthis area and not detecting violations does not exculpate Cardinal. TheSecretary’s failure to issue a citation for a violation of a standarddoes not immunize an employer from future enforcement of that standard._See Columbian Art Works. Inc.,_ 81 OSHRC 96\/F5, 10 BNA OSHC 1132, 1981CCH OSHD ? 25,737 (No. 78-29, 1981); _Lukens Steel Co.,_ 81 OSHRC 96\/A2,10 BNA OSHC 1115, 1981 CCH OSHD ? 25,742 (No. 76-1053, 1981).We conclude that Cardinal was not deprived of fair notice that theconditions at the edges of the felt rack platform violated the Act.We turn now to the merits of the alleged violation at the felt rackplatform. Section 1910.23(c)(1) requires standard railings or theequivalent when employees are exposed to a fall hazard of 4 feet or morefrom an open-sided platform. The evidence establishes that Cardinal’semployees worked near the unguarded edges of the felt rack platform 8feet 10 inches above the plant floor and that Cardinal knew of thenoncomplying conditions. This is sufficient to establish that Cardinalviolated section 1910.23(c)(1).The Secretary alleged that this violation was repeated within themeaning of section 17(a) of the Act. Under Commission precedent, [a]violation is repeated … if, at the time of the alleged repeatedviolation, there was a Commission final order against the same employerfor a substantially similar violation._Potlatch Corp.,_ 79 OSHRC 6\/A2, 7 BNA OSHC 1061, 1063, 1979 CCH OSHD ?23,294, p. 28,171 (No. 16183, 1979). To establish that the violation wasrepeated, the Secretary relies on item c) of the 1981 citation. Thatitem, which alleged a failure to comply with section 1910.23(c)(1) atthe shingle storage platform, was not contested by Cardinal and hasbecome a Commission final order. As we stated above, the felt rackplatform and the shingle storage platform are very similar structureslocated in close proximity to each other. Since the evidence shows thatthe citations involved the same standard applied to substantiallysimilar conditions, the Secretary’s allegation that the violation wasrepeated has been established under _Potlatch._[[8\/]]Cardinal argues that it cannot be found in repeated violation because itlacked knowledge of the presence of a violation. Cardinal claims that,in order to establish a violation of the Act, the Secretary must showthat the employer knew that a cited condition violated the Act. This isa misstatement of the Secretary’s burden of proof. The Secretary needonly show that the cited employer knew or could have known of thecondition with the exercise of reasonable diligence. _AstraPharmaceutical Products, Inc., _81 OSHRC 79\/D9, 9 BNA OSHC 2126, 2129,1981 CCH OSHD ? 25,578, p. 31,900 (No. 78-6247, 1981), _aff’d inpertinent part,_ 681 F.2d 69 (1st Cir. 1982). She has no obligation toalso show that the employer knew that the condition violated the Act.The employer has a duty to comply with the Act regardless of whether itwas previously informed that a condition violated the Act. _Simplex TimeRecorder Co.,_ 85 OSHRC 50\/A3, 12 BNA OSHC 1591, 1596, 1985 CCH OSHD ?27,546, p. 35,572 (No. 82-12, 1985).In affirming three items as repeated, the judge assessed a combinedpenalty of $1,350, which is equivalent to $450 per violation. Takinginto consideration the penalty factors set out at 29 U.S.C. ? 666(j), weconclude that a penalty of $450 is appropriate for item 2(b)._Item 2(c): ? 1910.23(c)(1), scissors lift_At another location on the assembly line at Cardinal’s facility,employees stood on a hydraulically-powered scissors lift between theunits and attached the roof to the unit. The lift, which is bolted tothe floor, can be lowered to allow the units to pass over it or raisedto a height of 6 feet 5 inches. Although one side of the lift is flushagainst the side of the module, Perry, the compliance officer, testifiedthat there was a space on the other side of the lift that was largeenough for a person to fall the 6 feet 5 inches to the concrete floorbelow. The Secretary issued a repeated citation alleging that Cardinalfailed to equip the lift with standard guardrails or the equivalent asrequired by section 1910.23(c)(1).The scissors lift had also been examined by Mershon during his March1981 inspection. He testified that he had recommended the issuance of acitation alleging a failure to comply with section 1910.23(c)(1).However, after a conference with his supervisor and the area director,it had been determined that a different standard, the scaffoldingstandard at 29 C.F.R. ? 1910.28,[[9\/]] applied to the scissors lift.Mershon testified that he had told Alexander over the telephone that thescissors lift was a scaffold and that it would not be cited because thescaffolding standard required guarding only at the 10-foot level and above.Cardinal argues that, having relied on the area office’s decision thatthe scissors lift was a scaffold, it could not have known that theunguarded scissors lift violated the Act as the Secretary alleges.The Secretary contends that the scissors lift is not a scaffold withinthe meaning of section 1910.28. The Secretary points to the definitionof scaffold published at 29 C.F.R. ? 1910.21(f)(27):Any temporary elevated platform and its supporting structure used forsupporting workmen or materials or both.Relying on _Fleetwood Homes of Texas. Inc.,_ 80 OSHRC 97\/C4, 8 BNA OSHC2125, 1980 CCH OSHD ? 24,873 (No. 76-2332, 1980), she notes that theCommission has held that whether a working surface is temporary andcovered by the scaffold standard or permanent and covered by theplatform standard depends on the structural rather than the functionalattributes of the device. Because the scissors lift is permanentlybolted to the floor, she contends that t is a platform within themeaning of section 1910.23(c)(1).The Secretary maintains that Cardinal’s reliance on the erroneous adviceof the compliance officer that the lift was a scaffold does not negatethe violation. She claims that it is Cardinal’s knowledge that thescissors lift posed a hazard to its employees rather than its knowledgeof the requirements that is critical.The judge found that the scissors lift was a platform and affirmed aviolation of section 1910.23(c)(1) because it was not equipped withguardrails. He concluded that the lift was not a scaffold because it wasnot \”temporary\” within the meaning of section 1910.21(f)(27) but ratherwas bolted to the floor. The judge rejected Cardinal’s argument that itlacked fair notice that section 1910.21(c)(1) applied to the scissorslift; he also rejected Cardinal’s notice arguments. He did not discussMershon’s communication of the area director’s determination the areadirector’s determination to Cardinal.In determining that the scissors lift was a platform, the judgecorrectly focussed on the key issue of whether the structure wastemporary or permanent. However, we find that he erred in concludingthat the lift was permanent and not temporary like scaffold within themeaning of section 1910.21(f)(27). Although the scissors lift does havesome permanent aspects, focussing on the base that is attached to floorignores the nature of the working surface itself. The working surface ofthe lift is raised and lowered again and again to allow the workersstanding on it to attach the roofs to the units as they move downassembly line. The procedure on the mobile home assembly line in_Fleetwood Homes_ was nearly identical. In _Fleetwood,_ fourteen-footlong planks called spanners were laid between the lateral work decksthat parallel the mobile homes. They allowed Fleetwood’s employees towork on the ends of the mobile homes, but they had to be removed andrepositioned every two hours when the mobile homes on the productionline were advanced. In _Fleetwood,_ the Commission found that thespanners were scaffolds because they could be and were moved to fit theneeds of the job. The working surface of the scissors lift in this caseis continually repositioned just like the spanners in _Fleetwood._Accordingly, in both situations the existence of an \”elevated platform\”is only \”temporary\” within the meaning of section 1910.21(f)(27). Wetherefore conclude, as the OSHA area director did in 1981, that scissorslift is a scaffold and that it is not covered by section 1910.23(c)(1).We vacate the citation on this basis.Even if we were to conclude that section 1910.23(c)(1) is the applicablestandard, we would vacate the item on the basis that Cardinal lackedfair notice that the standard applied to its scissors lift. In 1981, theOSHA area director determined that the scissors lift was a scaffoldrather than a platform, and therefore decided not to cite Cardinal forfailing to equip the lift with guardrails. Compliance officer Mershonexplained to Cardinal’s plant engineer, Alexander, why Cardinal wouldnot be cited for violating section 1910.23(c)(1). Cardinal was surelyentitled to rely on this information. It would be unfair to now findthat Cardinal violated the standard when it reasonably relied on advicefrom OSHA that the standard did not apply. _See Diebold; Hamilton DieCast, Inc._The Secretary argues that the discussions that took place before Mershontold Alexander that section 1910.23(c)(1) did not apply to the lift gaveCardinal notice that the unguarded edges of the lift posed a hazard.However, the two standards under discussion do not require guardingbecause a hazard is present. Section 1910.23(c)(1) requires guardingwhen employees work on \”open-sided floor[s] or platforms 4 feet or moreabove adjacent floor or ground level.\” Section 1910.28(a)(3) requiredthat \”[guardrails and toeboards shall be installed on all open sides andends of platforms [scaffolds] more than 10 feet above the ground orfloor.\” Thus, where as here the working surface is between 4 feet and 10feet above the ground, guardrails are only required if the surface is aplatform and not a scaffold.Accordingly, that part of the judge’s decision affirming item 2 ofcitation 2 is reversed, and the item is vacated.Thus, item 2 (b) of Citation 2 is affirmed as a repeated violation, anda penalty of $450 is assessed. Items 2(c) and 3 of Citation 2 are vacated.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: _April 20, 1989_————————————————————————SECRETARY OF LABORComplainant,v.CARDINAL INDUSTRIES, INC.,Respondent.OSHRC Docket No. 82-0427_DECISION _Before: BUCKLEY, Chairman; RADER and WALL, Comissioners.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. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. Seesection 10(c) of the Act, 29 U.S.C. ? 659(c).Administrative Law Judge Edwin G. Salyers affirmed two items of acitation issued by the Secretary to Cardinal Industries, Inc. Items 2band 2c of citation 2 alleged that, contrary to 29 C.F.R. ?1910.23(c)(1), Cardinal had not installed guardrails on two platforms.Item 3 of that citation alleged that, contrary to 29 C.F.R. ?1910.132(a), Cardinals employees had not worn safety belts. Cardinalcontends that these general industry standards do not apply to itsworkplace. Cardinal claim that bemuse its employees are engaged inconstruction work, the construction standards apply. We agree withCardinal that its employees are engaged in construction work. We alsoconclude that the general industry standards are preempted byspecifically applicable construction standards. Inasmuch as theSecretary did not allege and the parties did not try violations of thoseconstruction standards, we vacate the items.ICardinal operates a facility in Columbus, Ohio at which modular housingunits are constructed. Completed units are removed from the facility andassembled elsewhere to form residences or other buildings. Judge Salyersdescribed the operations at Cardinal’s facility as follows:The production line moves through approximately 25 work stations. Eachunit is mechanically propelled on a track from each station to theother. The first operation is the placing of the floor. Once this isaccomplished, the unit begins to move through the various work stationswhere front walls, side walls, rear walls, ceiling, roof, gypsum,roofing felt, shingles, trim and other items are subsequentlyapplied…The entire operation is performed in an enclosed facilitywhich encompasses three city blocks.The various parts of a unit are joined by Cardinal’s employees, who arerepresented by the United Brotherhood of Carpenters and Joiners. Theparts are joined in the same manner as at a building site. For example,after the floor is set in place, Cardinal’s employees erect the walls,attach insulation, gypsum board and siding. When the roof is in place,the employees unroll felt, cut it to the size of the roof and nail it tothe roof. They then put down shingles and nail them to the roof.Cardinal’s employees also, install plumbing and electrical wiring.Cardinal contends that its operation involves \”construction work\” withinthe meaning of 29 C.F.R. ? 1910.12.[[1]] It argues that but for its\”unique operation,\” the units it produces would be constructed an abuilding site. Cardinal points out that the units all have the roofs,sides, interior walls, flooring, and electrical wiring typical of anyhouse or building. It notes that the carpentry and plumbing skillsrequired to build the units are those generally associated withconstruction.The Secretary claims that the indoor assembly line and permanent workstations at Cardinal’s plant are hallmarks of a classic assembly-linemanufacturing operation to which the general industry standards in 29C.F.R. Part 1910 apply. He relies on Office of Management and Budget,_Standard Industrial Classification Manual _47, 94 (1972), which liststhe production of \”Prefabricated Wood Buildings and Components\” undermanufacturing, but classifies the fabrication of buildings on aconstruction site as construction. He also cites _Fleetwood Homes ofTexas, Inc.,_ 80 OSHRC 97\/C4, 8 BNA OSHC 2125, 1980 CCH OSHD ? 24,937(No. 76-2332, 1980), and_Prowler Travel Trailers of New York, Inc.,_ 77OSHRC 207\/A2, 6 BNA OSHC 1134, 1977-78 CCH OSHD ? 22,397 (No. 15636,1977), decisions in which the Commission applied general industrystandards to the assembly line production of mobile homes. The Secretaryalso argues, relying an _Royal Logging Co., _79 OSHRC 84\/A2, 7 BNA OSHC1744, 1979 CCH OSHD ? 23,914 (No. 15169, 1979), _aff’d,_ 645 F.2d 822(9th Cir. 1981), that the nature of the overall operation rather thanuse of construction skills or equipment determines whether an employeris involved in construction.The judge found that the construction industry standards do not apply.He found that although \”the end product of [Cardinal’s] operations is afinished housing unit, the nature of the operation was \”more akin tomanufacturing than . . . to construction.\” He reached this conclusionprimarily because the units, which \”move along a line much like anyother manufactured product,\” were produced an an assembly line entirelywithin Cardinal’s facility.IIThe applicability provisions in 29 C.F.R. Part 1910 control theresolution of this question. Section 1910.5(a) states that theoccupational safety and health standards in Part 1910 \”apply withrespect to employments performed in a workplace in\” the United States.Section 1910.12, which adopts the construction standards in Part 1926 asoccupational safety and health standards, states that they \”shall apply. . . to every employment and place of employment of every employeeengaged in construction work.\” Section 1910.5(c) provides a rule forchoosing between these standards. Subsection (c)(1) states that \”[i]f aparticular standard is specifically applicable to a condition . . . [or]operation . . , it shall prevail over any different general standardwhich might otherwise be applicable to the same condition . . . [or]operation . . .\” \”On the other hand,\” states section 1910.5(c)(2) \”anystandard shall apply . . . to any employment and place of employment inany industry, even though particular standards are also prescribed forthe industry. . . .\” The question here, therefore, is whether there arespecifically applicable Part 1926 standards. To answer that question, itis first necessary to determine whether Part 1926 is applicable at all,i.e., whether Cardinal’s employees are engaged in \”construction work\”within the meaning of section 1910.12. We find that Cardinal’s employeeswere engaged in construction work. We also find that there arespecifically applicable construction standards.Section 1910.12(b) defines \”construction work\” as \”work forconstruction, alteration, and\/or repair, including painting anddecorating.\” In determining whether an operation constitutes \”work forconstruction,\” the Commission has held that Part 1926 applies only toemployers who are actually engaged in construction work or who areengaged in operations that are an integral and necessary part ofconstruction work._United Geophysical Corp., _81 OSHRC 77\/D6, 9 BNA OSHC2117, 2121, 1981 CCH OSHD ? 25,579, p. 31,906 (No. 78-6265, 1981),_aff’dwithout published opinion,_ 683 F.2d 415 (5th Cir. 1982). AlthoughCardinal’s employees construct homing units in a factory setting, thecarpentry, plumbing, roofing and electrical work they perform isidentical to that performed at a construction site, and identical to thekind of work that OSHA specifically intended Part 1926 to cover. _See_sections 1910.17(b)(2) and 1926.1051(b)(2) (applying Part 1926 to\”light residential construction\”).[[2]] That Cardinal’s employees workin a building rather than outdoors at the site of final assembly cannotbe controlling, for under sect 1910.12, it is the nature of the workrather than its location that controls. Indeed, section 1910.12’sreferences to alteration and repair make this clear, for such workfrequently takes place within pre-existing structures. Finally, theconstruction activities performed by Cardinal’s employees are notancillary to or in aid of a nonconstruction purpose. _See RoyalLogging,_ 7 BNA OSHC at 1750, 1979 CCH OSHD at p. 28,996. They aredirected at Cardinal’s primary function–construction.[[3]]We now add whether there are construction standards specificallyapplicable to the cited conditions. _See Daniel Construction Co., _82OSHARC 23\/A2, 10 BNA OSHC 1549 1554-5, 1982 CCH OSHD ? 26,027, p. 32,675(No. 16265, 1982). We find that there are. Two of the items allege thatguardrails were not provided to prevent falls from platform. As theSecretary’s brief implicitly concedes, however, there is a constructionindustry standard, section 1926.500(d)(1), that requires guardrails on\”open-sided floors, platforms, and runways.\” The third item alleges afailure to require the use of safety belts an an unguarded roof edge.The construction industry standard on personal protective equipment,section 1926.28(a), \”requir[es] the ring of appropriate personalprotective equipment and cross-references 29 C.F.R. Part 1926, SubpartE, which contains a standard, section 1926.104, on safety belts.[[4]]Those standards govern the cited conditions.Under Rule 15(b) of the Federal Rules of Civil Procedure, pleadings mybe amended to conform to the evidence when an issue not raised by thepleadings has been tried by express or implied consent of the parties.Commissioner Wall would not amend, sua sponte, in the absence of anopportunity for Cardinal to argue whether amendment is appropriate, andwhether it would be prejudiced. Chairman Buckley would not amend herebecause there was no express consent to try whether the applicableconstruction standards had been violated. He would not find impliedconsent because he does not find that Cardinal squarely recognized thatviolations of the construction standards were in issue,much less that itconsented to try these issues. _See McWilliams Forge Co.,_ 84 OSARC________, 11 BNA OSHC 2128, 2129-30, 1984 CCH OSHD ? 26,979, p. 34,669(No. 80-5868, 1984). We will not therefore, amend the pleadings toallege violations of the construction standards in Part 1926.Accordingly, item 2b, 2c, and 3 of citation 2 are vacated.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: _December 6, 1985_————————————————————————RADER, Commissioner, dissenting:I respectfully dissent from the majority’s decision to vacate thecitation items on the ground that, Cardinal is not subject to thegeneral industry standards set forth at Part 1910 of Title 29. In myview, the judge properly determined that Cardinal is engaged in amanufacturing process rather than a construction operation.In finding the construction standards applicable to Cardinal, themajority relies primarily on the type of work activities performed byCardinal’s employees, concluding that such activities as carpentry,plumbing, roofing and electrical work are characteristic of the worknormally performed at construction sites. The majority also reasons thatthese work duties are integrally related to Cardinal’s primary\”function,\” which the majority regards as construction work becauseCardinal manufactures parts of housing and motel units. Thus, themajority’s decision is based on two related but distinct concepts–theemployees’ specific work duties or the skills they represent on the onehand and the overall purpose or objective of their employment on theother. Neither concept, however, supports the majority’s conclusion thatCardinal is engaged in construction work as that term is defined andused in the Secretary’s standards.The Commission has previously recognized that under the Secretary’sstandards the differentiation between general industry and constructioncannot be based solely on the nature of the specific work duties ortypes of work activities in which employees are engaged. _In B.J.Hughes, Inc.,_ 82 OSHRC 17\/D5, 10 BNA OSHC, 1545, 1982 CCH OSHD ? 25,977(No. 76-2165, 1982), the Commission rejected the Secretary’s argumentthat cementing the casing of an oil well during drilling constitutesconstruction work because the employees worked with pumps, derricks,concrete pouring equipment, and material handling equipment of the sortnormally used in construction work. The Commission reasoned thatequipment of this type is frequently used in nonconstruction work aswell, and noted that many of the construction standards regulatingparticular types of equipment have counterparts in the general industrystandards governing the same equipment. In the present case, thespecific types of Cardinal’s work activities that the majoritycharacterize as \”construction\” are in fact addressed by general industryas well as construction standards. Thus, 29 C.F.R. ? 1910.213, a generalindustry standard entitled \”Woodworking machinery requirements,\” imposesrequirements for various types of saws and other woodworking machinery,and is applicable generally to all types of woodworking operations._Noblecraft Industries, Inc.v. Secretary of Labor,_ 614 F.2d 199 (9thCir. 1980). Similarly, section 1910.241, \”Hand and Portable PoweredTools and Other Hand-Held Equipment,\” governs many types of portabletools, both powered and non-powered. Section 1910.252 applies to\”Welding, cutting, and brazing,\” mid extensive regulations for workingwith electrical conductors and related apparatus appear in section1910.137, \”Electrical protective devices,\” and Subpart S, \”Electrical,\”29 C.F.R. ?? 1910.301-308, 1910.399.[[1]] These are all general industrystandards that apply to the techniques, tools, and equipment used inCardinal’s operation.[[2]] Thus, the fact that Cardinal’s employeesperform carpentry, plumbing, and electrical work does not in itself meanthat Cardinal’s operation is controlled by the construction standards inPart 1926.[[3]]Since the specific work duties conducted by Cardinal’s employees are notdispositive of the question whether Cardinal is engaged in constructionwork under Part 1926, it is appropriate to consider, as does themajority, whether the construction standards govern the type of businessin which Cardinal is engaged. _See B.J. Hughes,_ _supra,_ 10 BNA OSHC at1547, 1982 CCH OSHD at p. 32,579. As the majority indicates, Cardinalfabricates housing units in a factory setting away from, and having nodirect connection with, the actual site where the component units willbe placed and finally assembled into a complete dwelling and thenoccupied. The majority concludes that such work constitutes constructionbecause the type of work performed is the dispositive factor.[[4]]However, in my view the physical conditions under which Cardinal’semployees perform this work are controlling.The stated purpose of the Act is to assure \”safe and healthful workingconditions\” by, among other things, \”authorizing the Secretary of Laborto set mandatory occupational safety and health standards.\” Section2(b), 29 U.S.C. ? 651(b). Since standards are a basic mechanism by whichthe purpose of the Act is to be achieved, it is appropriate indetermining the scope of a particular set of standards to consider thenature of the working conditions sought to be regulated.The physical configuration of Cardinal’s facility is very much differentfrom that normally encountered on the site or location of a building orstructure. The use of an assembly line comprised of fixed work stations,the overall factory setting, and the generally controlled environmentthereby provided, are obvious characteristics of a manufacturing ratherthan an on-site construction operation.[[5]] The basic environment inwhich Cardinal’s employees perform their work is indeed exemplified bythe citation item at issue dealing with unguarded platforms. Both the\”felt rack platform\” (an elevated work surface attached to the structureof Cardinal’s building and containing a roller used to dispense roofingfelt to the modules as they pass by) and the \”scissors lift\” (a hoistingdevice bolted to the floor and used to raise and lower employees to andfrom the roof areas) are devices typical of the machinery or equipmentnormally encountered in a manufacturing plant. They reflect workingconditions of a manufacturing rather than construction nature,regardless of the fact that the construction standards as well as thegeneral industry standards contain provisions generally regulating thehazard of a fall from elevated work surfaces. _See Southern PacificTransportation Co. v. Usery,_ 539 F.2d 386 (5th Cir. 1976), _cert.__denied, _434 U.S. 874 (1977); _Southern Railway v. OSHRC,_ 539 F.2d 335(4th Cir.),_cert._ _denied, _429 U.S. 999 (1976) (the nature of anemployer’s working conditions depends not only on the particular hazardpresented at a certain work location but also on the overall\”surroundings\” in which the employees customarily perform their assignedtasks).The fact that the modules or units Cardinal produces are manufactured ina factory setting is more significant than the fact that they willeventually be occupied as dwellings or residences. The constructionstandards as a whole indicate that regardless of the type of building orstructure involved the performance of construction work necessarilyimplies some direct and tangible connection or relationship with thephysical site or location of the structure. Thus, the constructionstandards contain a number of provisions, which have no counterpart ofbuilding sites and the assembly or completion of structures orstructural components on site.[[6]] In addition, section 1926.13(c), aregulation promulgated under and interpreting section 107 of theContract Work Hours and Safety Standards Act (\”Construction SafetyAct\”), 40 U.S.C. ? 333, which authorizes the Secretary to establishsafety and health standards applicable to federal constructioncontracts, recognizes a clear differentiation between the fabrication orassembly of construction materials and the performance of constructionwork at the site. In pertinent part this regulation provides:A person who undertakes to perform a portion of a contract involvingfurnishing of supplies or materials will be considered a\”subcontractor\”…if the work in question…is to be performed: (1)Directly on or near the construction site, or (2) by the employer forthe specific project on a customized basis. Thus, a supplier ofmaterials which will become an integral part of the construction is a\”subcontractor\” if the supplier fabricates or assembles the goods ormaterials in question specifically for the construction project…If thegoods or materials in question are ordinarily sold to other customersfrom regular inventory, the supplier is not a \”subcontractor.\”Generally, the furnishing of prestressed concrete beams and prestressedstructural steel would be considered manufacturing; therefore a supplierof such materials would not be considered a \”subcontractor.\” An exampleof materials supplied \”for the specific project on a customized basis\”as that phrase is used in this section would be ventilating ducts,fabricated in a shop away from the construction job site andspecifically cut for the project according to design specifications. Onthe other hand, if a contractor buys standardsize nails from a foundry,the foundry would not be a covered \”subcontractor.\”Since the Construction Safety Act has a similar purpose in providingsafe and healthful working conditions for employees engaged inconstruction work, the scope of its coverage is relevant in resolving ananalogous question of coverage under the Occupational Safety and HealthAct. _See Rutherford Food Corp. v. McComb,_ 331 U.S. 722 (1947);_Griffin & Brand of McAllen, Inc.,_ 78 OSHRC 48\/C13, 6 BNA OSHC 1702,1978 CCH OSHD ? 22,829 No. 14801, 1978). Indeed, the scope of theConstruction Safety Act is particularly persuasive here because thesubstantive safety and health standards promulgated under that statuteand set forth in 29 C.F.R. Part 1926 are the source for the occupationalsafety and health standards applicable to all employers engaged inconstruction work under the Occupational. Safety and Health Act. 29C.F.R. ? 1910.12(a). See 29 U.S.C. ? 653(b)(2) (standards issuedpursuant to 40 U.S.C. ? 333 are deemed occupational safety and healthstandards under the Act.) When he adopted and extended the ConstructionSafety Act standards as OSHA standards applicable to all constructionwork, the Secretary defined \”work for construction\” by explicitlyreferring to the \”discussion of these terms in ? 1926.13 of this title.\”[[7]] Section 1926.13 is therefore pertinent to the extent that itdifferentiates between manufacturing and construction and explains theparticular circumstances under which a manufacturing or fabricationoperation could be considered construction work.[[8]]The record indicates that no single modular unit can by itselfconstitute a habitable dwelling. It may require as many as 20 units toform a complete structure at the building site, where the Units aretaken by truck and placed on a pre-existing foundation. The record doesnot snow, nor does Cardinal contend, that its employees either transportmodules to the site where they are to be installed or perform any finalassembly or installation on the site. Cardinal’s plant manager testifiedthat Cardinal produces units for three basic types ofoccupancy–apartments, houses, and motels–in a fixed and prescribedproduction sequence as summarized in Judge Salyers’ decision. It doesnot appear, nor is there any contention, that Cardinal produces units ona customized basis for particular projects. Applying the criteria setforth in section 1926.13(c), I conclude that the type of work in whichCardinal is engaged does not constitute construction within the meaningof section 1910.12(b)._Cf._ _Dravo Corp.,_ 82 OSHRC 30\/A2, 10 BNA OSHC1651, 1657, 1982 CCH OSHD ? 26,076, p. 32,814 (No. 14818, 1982) (a pipeshop associated with a shipyard which fabricates components such asladders, nozzles, and sewage holding tanks is a manufacturing operationnot subject to the Secretary’s shipbuilding standards).Finally, while I would not necessarily regard the _Standard IndustrialClassification Manual_ as controlling, I believe that the majority errsin dismissing the manual as having no relevance whatever. The manualassigns industry codes on the basis of \”primary activity,\” determined bythe \”principal product or group of products produced or distributed, orservices rendered.\” _Id_. at 12. It therefore directly addresses thequestion presented in this case, namely, the proper characterization ofan employer engaged in the production of prefabricated housing units.Furthermore, the Secretary relies on the codes assigned in the manual todistinguish construction from manufacturing employers for the purpose ofdetermining inspection priorities.[[9]] See OSHA Instruction CPL 2.25F,_Scheduling System for Programmed Inspections. Appendix B, _2 BNA Ref.File 21:9295, :9305-07, 3 CCH ESHG ? 8671, pp. 8301-02. The manual isalso widely used by other government agencies and by private industryfor classification, compilation of statistics and insurance purposes. Itherefore believe it is relevant and does provide guidance inclassifying Cardinal’s business activities.For these reasons, I respectfully dissent from the majority’s decision.————————————————————————SECRETARY OF LABOR,Complainant,v.CARDINAL INDUSTRIES, INC.,Respondent.OSHRC Docket No. 82-0427APPEARANCES:Andrew W. Hoffmann, Esquire,Office of the Solicitor,U. S. Department of Labor, Cleveland, Ohio,on behalf ofcomplainantRobert D. Weisman, Esquire,Columbus, Ohio,on behalf ofrespondent_DECISION AND ORDER_SALYERS, Judge: Respondent is engaged in Columbus, Ohio, in themanufacturing of modular housing units. The production line movesthrough approximately 25 work stations (Tr. 220). Each unit ismechanically propelled on a track from each station to the other. Thefirst operation is the placing of the floor. Once this is accomplished,the unit begins to move through the various work stations where frontwalls, side walls, rear walls, ceiling, roof, gypsum, roofing felt,shingles, trim and other items are subsequently applied. The units haveslanted roots. On the high side of the unit, the distance from the roofto the ground is 12 feet 4 inches. On the low side the height is 8 feet10 inches. That unit is 24 feet long and 12 feet wide. The entireoperation is performed in an enclosed facility which encompasses threecity blocks.In March 1981 Compliance Officer Edward L. Mershon conducted aninspection of respondents facilities to determine compliance with theprovisions of the Occupational Safety and Health Act (29 U.S.C. ? 651,et seq.). During the course of this inspection, Compliance OfficerMershon observed, among other things, employees installing felt on theroof of a unit in the area designated in the record as the F-4 area andworking on the shingle storage platform who were unprotected from afalling hazard. He concluded this constituted a violation of theguardrail standard found at 29 C.F.R. ? 1910.23(c)(1)[[1\/]] and soadvised respondent’s officials. A citation was thereafter issued whichwent uncontested by respondent. By letter dated April 23, 1981 (Ex.R-2), respondent advised these conditions had been abated by theinstallation of proper guardrails. In a follow-up inspection conductedin May 1981, Compliance Officer Mershon verified that proper guardinghad been installed in the felt installation area (F-4 area) and on theshingle storage platform (Ex. R-1).The record is unclear as to just how Compliance Officer Mershondetermined respondent had abated the condition with regard to employeesworking on unit roofs in the F-4 area. Apparently, respondent hadsuspended guardrails from the plant roof to protect employees from fallsoff the ends of the units. At that time the units were moved manuallydown the line, and the sides of the units while in the production linewere flush, leaving no opening through which employees could fall. Thus,no fall hazard existed along the sides of the units as long as they wereflushed tight together.As a result of a fatal accident occurring in the F-4 area, ComplianceOfficer Charles B. Perry inspected respondent’s facility in March 1982.At that time respondent’s method of moving the units along the line hadchanged from manual to mechanical, and it was no longer possible toflush-up the sides of the units. Since the units were separated byspacer bars, openings existed between the sides of the units movingalong the line. These openings were of sufficient size to create afalling hazard to employees working on the sides of the unit roofs.Among other things, Compliance Officer Perry noted employees installingfelt on the units in the F-4 area and employees working on the felt rackplatform without fall protection. No guardrails were in place along thesides of the units nor were employees wearing safety belts withlanyards. He further noted an unguarded scissor lift platform in theroof setting area and an unguarded staging platform in the siding area.Following his inspection, a citation was issued characterizing thesealleged violations as repeated.[[2\/]]The repeated citation, as originally drafted, charged respondent with afailure to use guardrails as follows:29 CFR 1910.23(c)(1): Open sided floor(s) or platform(s) 4 feet or moreabove the adjacent floor or ground level were not guarded by standardrailings (or the equivalent as specified in 29 CFR 1910.23(e)(3)(i)through (v), on all open sides, as follows:a) The Felt Rack Area, there was no guard railing or its equivalent(safety belts rind lanyards) provided to protect employees from fallswhile rolling out and cutting the felt paper, on the roof of the cubes.b) The Felt Rack Area, there was no guard railing provided on the feltrack platform to prevent employees from falling to a lower level.c) The Roof Setting Area, there were no guard rails provided on theScissor lift platform to prevent employees from falling to a lower levelwhen platform is elevated above the four (4) foot level.d) The Siding Area, there was no guard railing provided on the metalstaging platform suspended between two cubes.By written motion filed shortly before the hearing, the Secretary movedto delete item 2(a) of repeat Citation No. 2 and substitute therefore acharge offailure to use protective equipment as required by 29 C.F.R. ?1910.132(a).[[3\/]] It being represented to the Court that this amendmentwould in no way change the operative facts which gave rise to thealleged violation (Tr. 8). the motion was granted [[4\/]] with theunderstanding that motions would be entertained from counsel forrespondent for appropriate relief upon a showing of surprise orprejudice to respondent’s case. [[5\/]]The facts are undisputed that at the time of Compliance Officer Perry’sinspection, employees working in the F-4 area applying felt to the unitroofs were not wearing safety belts with lanyards. This fact isgraphically illustrated by photographs taken by the compliance officeron the date of inspection. (See Ex. C-3, C-4, C-5, C-6, C-74.) Thesephotos also show employees working at the very edge of the roof clearlyexposing them to a failing hazard. The serious consequences of a fallfrom a height of 8 to 12 feet onto a concrete floor cannot be questionedand is, unfortunately, confirmed by the resulting fatality of anemployee who was engaged in this same operation at the time of hisdeath. It is concluded that failure to provide any kind of fallprotection (in this case safety belts and lanyards) to employees engagedin this operation constituted a violation of the cited standard.The only real question for determination is whether or not thisviolation is properly characterized as repeated. In the 1981investigation and ensuing citation, respondent was charged with afailure to install and utilize guardrails in the F-4 area contrary to 29C.F.R. ? 1910.23(c)(1). Since respondent now stands charged withviolations of a different (but related) standard found at 29 C.F.R. ?1910.132(a), respondent argues the violation cannot be characterized asrepeated. The controlling case in point is Potlatch Corporation, 79OSHRC 6\/A2 7 BNA OSHC 1061, 1979 CCH OSHD ? 23,294 (No. 16183), whereinthe Review Commission set forth its definition of a repeated violationas follows:A violation is repeated under section 17(a) of the Act if, at the timeof the alleged repeated violation, there was a Commission final orderagainst the same employer for a substantially similar violation.The Secretary may establish substantial similarity in several ways. Incases arising under section 5(a)(2) of the Act, which states that eachemployer shall comply with occupational safety and health standards, theSecretary may establish a prima facie case of similarity by showing thatthe prior and present violations are for failure to comply with the samestandard.* * *In the absence of evidence that the antecedent and present violationsconcern noncompliance with the same standard, the Secretary must presentother evidence that the violations are substantially similar in nature.In this regard, we think that evidence that the violations involvesimilar hazards would be relevant ….Under the circumstances of this case, it is clear that the Secretary hassatisfied the requirement for showing a \”substantially similarviolation.\” Respondent was put on notice that employees working on unitroofs in the F-4 area were exposed to a serious fall hazard. Respondentabated the condition by installing guardrails at each end of the unitsand keeping the sides of the units flush to negate a falling hazard. Atthe time of the 1982 inspection, respondent’s operation had changed frommanual to mechanical movement of the units and the unit sides could nolonger be flushed together. Under these circumstances, it should havebeen obvious to respondent that employees working on the sides of theunits were exposed to a falling hazard and should be affordedprotection. [[6\/]] The Secretary has shown not only that the hazard was\”substantially similar\” but, indeed, was the very same hazard.Respondent has also been charged with a repeated violation of 29 C.F.R.? 1910.23(c)(1) for its failure to provide guardrails around the feltrack platform located at an elevation of 8 feet 10 inches above theconcrete floor. This platform is regularly used by employees working inthe F-4 area (Ex. C-8, C-9). This particular platform was not addressedin the 1981 inspection or ensuing citation. However, a similar platform,the roofing shingle storage platform, had been cited and abated in thatinspection. This hazard is \”substantially similar\” to the hazardpreviously cited and involves the same standard.The Secretary also charges respondent with repeated violation of theguardrail standards for failure to guard a scissor lift platform in theroof setting area and a metal staging platform in the siding area. Thescissor lift (as depicted in Ex. C-10) is a platform which can be raisedor lowered as needed in performing the roof attachment operation. Whenlowered, it is flush with the floor to allow the units to move over it.When elevated, it is 6 feet 5 inches above the floor. It is permanentlybolted to the floor (Tr. 71). The metal staging platform (as depicted inEx. C-11) rests on a tubular shaped bracket and is suspended from eitherthe top of the unit or the ceiling of the plant. The elevation abovefloor level is 6 feet 3 inches (Tr. 92). Neither of these platforms wasfitted with guardrails.Respondent strongly urges that the Secretary cited these allegedviolations under the wrong standard. Credence is given to this positionsince it appears disagreements existed within the OSHA area office onthe point (Tr. 209-210). It is asserted that these are not platforms butscaffolds and, if so considered, do not require guardrails since theyare elevated less than 10 feet above the floor.[[7\/]]The record provides little assistance in resolving this problem sincethe nature and use of these items were not fully explored. The term\”scaffold\” is defined at 29 C.F.R. ? 1910.21(f)(27) and 29 C.F.R.?1926.452 as follows:Any temporary elevated platform and its supporting structure used forsupporting workmen or materials or both.The key word in this definition is \”temporary.\” The scissor lift quiteobviously does not fit this definition since the lift is permanentlybolted to the floor and is used each and every time a roof is affixed tothe units. The metal staging platform presents a more difficult problem.Respondent’s foreman indicates in his testimony that the platform is\”temporary\” (Tr. 222) and explains:Q. And why do you say that the scaffolding there between the two unitswhich has been described in Serious Citation Two, Item 2(d) is temporary?A. Well, it needs to be taken in and placed in position only on thoseunits where they do siding operations. It’s taken in and installed byone or two people for each particular time they need to apply siding toa unit.Q. And when those units reach the end of the line, what happens to thatscaffolding?A. The scaffold’s taken out before the unit passes beyond the sidingstation, let alone before it gets to the end of the line.This statement, taken alone, would not establish the platform istemporary. However, it appears Compliance Officer Perry, after furtherdeliberation following the issuance of the citation, agrees that thescaffolding standard is the proper standard to apply in this case (Tr.168-169). Under them circumstances and on a record that leaves thisquestion up to speculation, it is concluded that the metal stagingplatform is more properly classified as a scaffold and respondent didnot violate the requirements under this standard.Respondent argues as a collateral defense that the Secretary has chargedit under the wrong set of standards. Since the units are built from thefloor up in much the same fashion as would be used in an outdoorconstruction project, respondent urges that the construction standardshould be applied rather than the general industry standards, as wasdone in this case. Even though the end product of respondent’soperations is a finished housing unit, the nature of respondent’soperations is more akin to manufacturing than it is to construction. Theunits are produced entirely within respondent’s enclosed facility andmove along a line much like any other manufactured product. It isconcluded that the Secretary has properly used the general industrystandards and that respondent’s argument is without merit.Equally without merit is respondent’s argument that it lacked knowledgeof the hazard. The hazard was specifically called to the attention ofcompany officials in the previous inspection. When the line wasmechanized and the unit sides were separated by spacer bars, anyreasonably prudent employer would realize this change in circumstancesrequired a re-evaluation of safety procedures. It is difficult tounderstand how respondent would recognize the hazard at the ends of theunit and install fall protection at these locations but fail torecognize a hazard when a change in production method created the samecircumstance along the unit sides.Finally, respondent argues Compliance Officer Mershon’s approval ofabatement following the 1981 inspection and his failure to citeconditions existing at that time, which became the basis for citationsin the subsequent investigation, estops the Secretary from assertingviolations. As noted above, the change in plant procedures created a newhazard not considered previously and nullified the abatement approvedfollowing the 1981 inspection. It is also clear that the Secretary’sfailure to issue a citation following an inspection does not grant anemployer immunity from enforcement of applicable occupational safety andhealth standards in subsequent inspections. Columbian Art Works, Inc.,81 OSHRC 96\/F5, 10 BNA OSHC 1132. 1981 CCH OSHD ? 25,737 (No. 78-29).The Secretary proposes a penalty in this case in the amount of$1,800.00. Since it now appears that the Secretary has established onlythree of the four repeated violations originally cited, the proposedpenalty will be reduced by one-fourth of the original amount.The Secretary charges respondent with an \”other\” than serious violationof the recordkeeping provisions found at 29 C.F.R. ? 1904.4 [[8\/]] forits failure to provide upon request a supplementary record (OSHA No.101). The record is not clear whether such forms were maintained byrespondent. At the opening conference, Compliance Officer Perryrequested the supplementary record (Tr. 118) but was given an accidentreport (Tr. 122; Ex. C-12).Respondent’s plant engineer testified the company maintains recordswhich contain all of the information required by the regulations (Tr.236) and would have provided these records if the compliance officer hadmade it clear what he was seeking. At the hearing respondent producedcertain records received as Exhibit R-3 which appear to contain all theinformation required by the standard. It is concluded respondent hasmaintained the required records, and failure to produce them was aresult of a breakdown in communication between company officials and thecompliance officer._FINDINGS OF FACT_1. The respondent, Cardinal Industries, Inc., is a corporation engagedin the manufacturing of modular housing units. These units move along aproduction line in an enclosed facility encompassing some three cityblocks. Respondent has employees who handle or otherwise work on goodsthat are produced for commerce.2. Respondent was investigated in March 1981 by a compliance officerfrom the Occupational Safety and Health Administration. The complianceofficer noted employees working on unit roofs in the F-4 area and on ashingle storage platform in the same area who were exposed to a fallinghazard without appropriate protection.3. These conditions were the subject of a citation charging violationsof 29 C.F.R. ? 1910.23(c)(1) which went uncontested by respondent. Atthe time of this inspection, the modular units were moved manually downthe line with the sides of each unit flush to the next unit. Thus,employees working on the sides of the roofs were not exposed to afalling hazard. A follow-up inspection disclosed respondent had abatedthe conditions in the F-4 area by installing guardrails at the ends ofthe units and guardrails around the shingle storage platform.4. As a result of a fatal accident occurring in the F-4 area,respondent’s facilities were again inspected in March 1982. At the timeof this inspection, the units were no longer moved manually but ratherwere moved mechanically. This change in production method required theuse of spacer bars between the sides of the units which created openingsbetween the units and caused a falling hazard to employees working onthe sides in the F-4 area. Employees working in this area were notprovided with safety belts and lanyards.5. Employees were also noted to be working on a felt rack platform at anelevation of 8 feet 10 inches above the floor who were not protectedfrom falls by guardrails. The same condition existed with respect toemployees working on a scissor lift platform at an elevation of 6 feet 5inches above the floor.6. The Secretary has charged respondent with a violation of 29 C.F.R. ?1910.23(c)(1) for failure to guard a metal staging platform in the roofsetting area. Since this platform is temporary, it is properlycharacterized as a scaffold. The Secretary has not shown a violation ofthe scaffolding standard since the scaffold is only 6 feet 3 inchesabove the floor.7. The Secretary charges respondent with an \”other\” than seriousviolation of the recordkeeping provisions found at 29 C.F.R. ? 1904.4for its failure to provide a supplementary record. The recordestablishes that respondent did maintain all the information required bythis standard and failed to provide this information due to a breakdownin communication between the compliance officer and respondent’s officials._CONCLUSIONS OF LAW_1. Respondent is an employer who has employees engaged in work affectingcommerce, and the Review Commission has jurisdiction in this cause.2. Respondent has violated the provisions of 29 C.F.R. ? 1910.132(a) forits failure to provide employees working on the sides of roof units inthe F-4 area with safety belts and lanyards. This violation issubstantially similar to the violations charged in the previousinvestigation and, therefore, constitutes a repeated violation.3. The respondent has violated the provisions of 29 C.F.R. ?1910.23(c)(1) by failing to guard the felt rack platform and the scissorlift platform to prevent falling hazards. These violations aresubstantially similar to those violations cited in the previousinvestigation and are, therefore, repeated.4. The Secretary has not established a violation with respect to theunguarded metal staging platform since this is a temporary platformproperly characterized as a scaffold and is in compliance with thatstandard.5. The respondent has not violated 29 C.F.R. ? 1904.4._ORDER _1. Repeated Citation No. 2, items 2(b) and 2(c), are affirmed asrepeated violations and a penalty of $900.00 is hereby assessed.2. Repeated Citation No. 2, item 2(d), is vacated.3. Repeated Citation No. 2, item 3, is affirmed and a penalty of $450.00is hereby assessed.4. \”Other\” than serious Citation No. 3, item 1 is vacated.EDWIN.SALYERSJudgeDate: _March 21 1983_————————————————————————FOOTNOTES:[[1\/]] Section 1910.23(C)(1) states:? 1910.23 Guarding floor and wall openings and holes.(c) _Protection of open-sided floors. platforms, and runways. _(1) Everyopen-sided floor or platform 4 feet or more above adjacent floor orground level shall be guarded by a standard railing (or the equivalentas specified in paragraph (e)(3) of this section) on all open sidesexcept where there is entrance to a ramp, stairway, or fixed ladder. Therailing shall be provided with a toeboard wherever, beneath the open sides,(i) Persons can pass,(ii) There is moving machinery, or(iii) There, is equipment with which falling create a hazard[[2\/]] Section 1910.132(a) states that:? 1910.132 General requirements.(a)_Application._ Protective equipment, including personal protectiveequipment for eyes, face, head, and extremities, protective clothing,respiratory devices, and protective shields and barriers, shall beprovided, used, and maintained in a sanitary and reliable conditionwherever it is necessary by reason of hazards of processes orenvironment, chemical hazards, radiological hazards, or mechanicalirritants encountered in a manner capable of causing injury orimpairment in the function of any part of the body through absorption,inhalation or physical contact.[[3\/]] Mershon testified consistently and repeatedly that his concernwas directed to the lack of fall protection for employees working _onthe roofs_ of the units. There is no evidence that he was even aware ofa fall hazard while employees worked on the adjacent felt rack platform.[[4\/]] Indeed, shortly after the fatality that led to this proceeding,Cardinal abated the hazard by requiring its employees to use safetybelts and lanyards attached to cables in the ceiling of the plant.[[5\/]] Previous cases have held that the platform guarding standard atsection 1910.23(c)(1) does not apply to a product being manufactured._General Electric Co.,_ 81 OSHRC 97\/D6, 10 BNA OSHC 1144, 1981 CCH OSHD? 25,736 (No. 76-2879, 1981); _Rexco Industries, Inc.,_ 80 OSHRC 32\/A2,8 BNA OSHC 1227, 1980 CCH OSHD ? 24,376 (No. 15350, 1980) The case nowbefore us illustrates the impracticality of placing guardrails on amanufactured unit during the production process.[[6\/]] Chairman Buckley notes that he is not convinced of thecorrectness of the Commission’s decision in _Bethlehem Steel. _In hisview, section 1910.132(a) was not intended to protect against falls. Norcan be read to require the use of safety belts and lanyards._SeeBethlehem Steel_ (concurring opinion).[[7\/]] In _Diebold, Inc. v. Marshall,_ _supra,_ the U.S. Court ofAppeals for the Sixth Circuit found that the employer was in violationof an OSHA standard that required point of operation guarding on itspress brakes. However, the court also found that a combination offactors had deprived the employer \”of a constitutionally sufficientwarning\” of the conduct that was required of it under the standard. 585F.2d at 1336. Under these circumstances, the court concluded, it wouldbe inappropriate to penalize the employer for its past noncompliancewith the standard, but proper to require compliance with the standard inthe future. As a general rule, Commissioner Arey agrees with the SixthCircuit’s \”prospective enforcement\” approach. Here, however, asindicated in note 4, supra, the violation had already been abated by thetime of the hearing. There is therefore no need to enter an abatementorder in this case. Accordingly, Commissioner Arey joins ChairmanBuckley in vacating item 3 of citation 2.[[8\/]] Chairman Buckley agrees to apply _Potlatch _here and find thatCardinal \”repeatedly\” violated the Act. However, it is his view that the_Potlatch_ test’s interpretation of \”repeatedly\” to mean more than onceappears to ignore the plain meaning of \”repeatedly\” and should bereexamined. _John R. Jurgensen Co.,_ 86 OSHRC 33\/A3, 12 BNA OSHC 1889(No. 83-1224, 1986) (concurring opinion);_see New England ContainerCo.,_ 84 OSHRC 55\/A2, 12 BNA OSHC 1368, 1984-95 CCH OSHD ? 27,148 (No.78-1539). He believes that Congress cannot have intended to give\”repeatedly\” an interpretation so different from its common meaning ofoften repeated or occurring again and again. _Jurgensen, _12 BNA OSHC at1896. Nevertheless, he will not reexamine Potlatch in this case becauseCardinal has not asked for such a reexamination and because the SixthCircuit, to which this case is appealable, has followed _Potlatch.__J.L. Foti Construction Co. v. OSHRC,_ 687 F.2d[[9\/]] At the time of the 1982 inspection, section 1910.28 provided, inpertinent part:? 1910.29 Safety requirements for scaffolding.(a) _General requirements for all scaffolds._* * *(3) Guardrails and toeboards shall be installed on all open sides andends of platforms more than 10 feet above the ground ….[[1]] Section 1910.12 provides in Part:? 1910.12 _Construction work._(a) _Standards_. The standards prescribed in part 1926 of this chapterare adopted as occupational safety and health standards under section 6of the Act and shall apply, according to the provisions thereof, toevery employment and place of employment of every employee engaged inconstruction work.(b) _Definition. _For purposes of this section, \”construction work\”means work for construction, alteration, and\/or repair, includingpainting and decorating. See discussion of these terms in ? 1926.13 ofthis title.[[2]] Paragraphs (b) of both regulations are nearly identical. Section1926.1051(b) states:? 1926.1051 _Effective dates (specific)._(b)(1) To the extent that the standards in this part [1926] apply tolight residential construction, their application is delayed untilSeptember 27, 1971, whereupon the standards shall apply to contractssubject to the Contract Work Hours and Safety Standards Act which areadvertised on or after that date and to such contracts which may benegotiated when the negotiations commence on or after that date.(2) For the purpose of this paragraph, the term \”light residentialconstruction\” is limited to the construction\” of homes and apartmentswhich do not exceed three stories in height, and which do not have anelevator.[[3]] We are unconvinced by the Secretary’s other arguments. OMB’s_Standard Industrial Classification Manual _was never intended tointerpret sect 1910.12 \”but was developed for use . . . for purposes offacilitating the collection, tabulation, presentation and analysis ofdata.\” Id. at p. 9. Although the Commission discussed whether violationsof the general industry standards occurred in _Fleetwood Homes_ and_Prowler Travel Trailers,_ preemption by the construction industrystandards was not raised in those cases.[[4]]Our conclusion in consistent with those drawn by OSHA when itexamined the question of what standards in Part 1910 are preempted bythose in Part 1926. OSHA has published an \”Identification of GeneralIndustry Safety and Health Standards (29 C.F.R. Part 1910) Applicable toConstruction Work,\” 44 Fed. Reg. 8577 (1979), listing the standards inPart 1910 that apply to construction work. Although OSHA identifiedsections 1910.23(b)(5) and 1910.132(b) and (c) as applicable, it did notlist sections 1910.23(c)(1) or 1910.132(a), the standards cited here. Weintimate no opinion, of course, on whether OSHA’s statements on theapplicability of other general industry standards are correct.[[1]]The Part 1926 counterparts of these standards are Subpart I,\”Tools–Hand and Power,\” 29 C.F.R. ?? 1926.300-05, including section1926.304, \”Woodworking tools\”; Subpart J, \”Welding and Cutting\”; andSubpart K, \”Electrical,\” specifically sections 1926.400, \”Generalrequirements,\” 1926.401, \”Grounding and bonding,\” and 1926.402,\”Equipment installation and maintenance.\”[[2]]The performance of carpentry work demonstrated by the fact thatCardinal’s employees cut lumber and other materials, which they use inassembling floors, walls, and roofs; the employees also install doorsand windows. The only testimony pertaining to plumbing work is thecompliance officer’s mention of bathroom facilities and kitchens and theonly actual reference to electrical wiring appears in a statement byCardinal’s counsel at the hearing that Cardinal installs electricalcircuits in each modular unit. Since the units are intended for finalassembly at the site where they will be used, it would appear that theunits leave Cardinal’s facility with all interior wiring and plumbingcompleted.Part 1910 contains no standards expressly governing work on roofs.Compare section 1926.451(u)(3) (sloped roofs), section 1926.500(b) (roofopenings) and section 1926.500(g) (low-pitched roofs). However, it isapparent on the record here that the assembly of the roof portion of themodules involves nothing more than basic carpentry and labor skills and,with the possible exception of felt and shingles, materials similar tothose used in fabricating other portions of the module structure.Therefore, the fact that the modules include a finished roof surface isnot in itself a distinction sufficient to justify applying theconstruction standards rather than general industry standards toCardinal’s operation.[[3]]The majority correctly notes that jobs which in themselves do notconstitute construction work may nevertheless justify application of theconstruction standards if they are directly and integrally related tothe performance of construction work._See United Geophysical Corp.,_ 81OSHRC 77\/D6, 9 BNA OSHC 2117, 2121, 1981 CCH OSHD ? 25,579, p. 31,905(No. 78-6255, 1981), _aff’d without published opinion,_ 683 F.2d 415(5th. Cir. 1982). However, the converse is also true. Jobs that could beregarded as construction type work are not controlled by theconstruction standards when they are performed solely as part of anon-construction operation._Royal Logging Co.,_ 79 OSHRC 84\/A2, 7 BNAOSHC 1744, 1979 CCH OSHD ? 23,914 (No. 15169, 1979). _aff’d_, 645 F.2d822 (9th Cir. 1981).[[4]] The majority concludes that the type of work performed by Cardinalfalls within the definition of \”light residential construction\” setforth in sections 1910.17(b) and 1926.1051(b). However, the twoprovisions pertaining to \”light residential construction\” on which themajority relies simply refer to \”construction\” without defining thatterm or otherwise giving an indication of its meaning in the context inwhich it is used. It is even questionable whether the modular unitsCardinal produces can appropriately be characterized as \”lightresidential\” as the majority implies. Cardinal’s plant engineertestified that the units it builds are primarily used in apartments andmotels and occasionally houses. _See _the discussion in the text_infra._Motels would not appear to constitute a \”light residential\” form ofhousing as that phrase is defined at sections 1910.17(b)(2) and1926.1051(b)(2).[[5]]The majority’s reference to construction work performed withinpre-existing structures is inapposite. The question in this case is notwhether certain construction work may be performed indoors or inside acompleted structure but rather whether a facility that merely assemblescomponents of a housing unit without any connection to the site of theireventual erection and use is a construction workplace. Arguably,Cardinal would be engaged in construction work if it were to make somealteration or repair of its plant facility. _See Rochester Prod. Div.,General Motors Corp.,_ 85 OSHRC ______, 12 BNA OSHC 1324, 1985 CCH OSHD? 27,257 (No. 80-5439, 1985) (construction standards cited for trenchdug in the floor of a manufacturing plant for the installation of atrough to collect oil from machinery). That, however, is not the issuebefore us here.[[6]] For example, Subpart 0 (sections 1926.600-.606), entitled \”MotorVehicles, Mechanized Equipment, and Marine Operations,\” imposesrequirements for vehicles and other equipment used in site preparation,such as dump trucks (section 1926.601), earthmoving and other excavationequipment (section 1926.602), and pile driving equipment (section1926.603). Other standards involving site preparation include theprovisions at section 1926-602(a)(3) pertaining to access roadways andgrades; section 1926.604 governing site clearing; and Subpart P,entitled \”Excavations, Trenching, and Shoring,\” which imposesrequirements for sloping and shoring and protecting employees from otherhazards present at trenches and excavations. The erection of structureson site is governed by such standards as those in Subpart Q, \”Concrete,Concrete Forms, and Shoring\”; Subpart R, \”Steel Erection\”; and SubpartS. \”Tunnels and Shafts, Caissons, Cofferdams, and Compressed Air.\”[[7]]_See_ note 1 of the majority opinion. Although the Secretary didnot adopt section 1926.13 under the OSH Act, he expressly referred tosection 1926.13 for the definition of the term \”construction,\” andplainly considered that regulation relevant for the purpose ofdetermining what constitutes construction work under the OSH Act. TheSecretary declined to adopt section 1926.13 and other rules interpretingthe Construction Safety Act because they included a restriction on theclass of employers subject to the Construction Safety Act. Since the OSHAct applies to all employees engaged in a business affecting interstatecommerce, the Secretary concluded that the limitation of theConstruction Safety Act to \”contractors and subcontractors\” would beinappropriate under the OSH Act. Thus, the Secretary stated that \”theincorporation by reference of Part 1926 in ? 1910.12 is not intended toinclude references to interpretative rules having relevance to theapplication of the Construction Safety Act but having no relevance tothe application of the Occupational Safety and Health Act.\” _See NewEngland Telephone & Telegraph Co.,_4 BNA OSHC 1838, 1976-77 CCH OSHD ?21,267 (No. 9627, 1976), _rev’d on other grounds,_ 589 F.2d 81 (1st Cir.1978); _Bechtel Power Corp.,_ 76 OSHRC 38\/E2, 4 BNA OSHC 1005, 1975-76CCH OSHD ? 20,503 (No. 5063, 1976), aff’d, 548 F.2d 249 (8th Cir. 1977).[[8]] Other statutes relating to federally financed or assistedconstruction are also relevant to the issue before the Commission here.Section 1926.13(a) notes that the term \”construction…used in section107 of the [Construction Safety] Act [is] also used in section 1 of theDavis-Bacon Act (40 U.S.C. 276a), providing minimum wage protection onFederal construction contracts, and section 1 of the Miller Act (40U.S.C 270a), providing performance and payment bond protection onFederal construction contracts.\” That section goes on to express theSecretary’s determination that \”[t]he use of the same or identical termsin these statutes which apply concurrently with section 107 of the[Construction Safety] Act have considerable precedential value inascertaining the coverage of section 107.\”Regulations for the implementation of labor standards under theDavis-Bacon Act and related statutes recognizes the same distinctionbetween construction and manufacturing expressed in section1926.13(c).Thus, 29 C.F.R. ? 5.2(i) defines the terms \”building\” and\”work\” to include \”construction activity as distinguished frommanufacturing, furnishing of materials, or servicing and maintenancework.\” Section 5.2(j) defines \”construction\” as work performed \”on aparticular building\” or \”at the site thereof, including \”installation .. . _on the site_ of the work of items fabricated off-site\” and the\”manufacturing or furnishing of materials,.articles, supplies orequipment _on the site _of the building or work. . . .\” (emphasisadded). Under section 5.2(1)(i) \”site of the work\” is expressly limitedto \”the physical place or places where the Construction called for inthe contract will remain when work on it has been completed\” and to\”other adjacent or nearby property . . . which can reasonably be said tobe included in the ‘site.’\” \”Fabrication plants\” in particular \”are partof the ‘site of the work’ provided they are dedicated exclusively, ornearly so, to the performance of the contract or project, and are solocated in proximity to the actual construction location that it wouldbe reasonable to include them.\”[[9]] Thus, employers in manufacturing industries as designated by theirSIC codes are scheduled for inspection according to the injury rate foreach industry having an injury rate greater than the national average._See Phoenix Forging Co.,_ 85 OSHRC ________,12 BNA OSHC 1317, 1985 CCHOSHD ? 27,256 (No. 82-398, 1985). Employers in construction industriesare distinguished from those in manufacturing because all constructionindustries have an injury rate in excess of the national average andthus qualify for inspection under the Secretary’s program to concentrateinspections in the most hazardous industries.[[1\/]] The standard at 29 C.F.R. ? 1910.23(c)(1) states as follows:(c) Protection of open-sided floors, platforms, and runways(1) Every open-sided floor or platform 4 feet or more above adjacentfloor or ground level shall be guarded by a standard railing (or theequivalent as specified in paragraph (e)(3) of this section) on all opensides, except where there is entrance to a ramp, stairway, or fixedladder. The railing shall be provided with a toeboard ….[[2\/]] Respondent was also issued one serious, one repeated and several\”other\” than serious citations which were not contested and have,therefore, became final orders of the Commission.[[3\/]] The reason for the Secretary’s motion to change standards is notmade clear in the record except for counsel’s statement that theoriginally cited standard may not be \”appropriate for the factsituation\” (Tr. 7).[[4\/]] Hereafter, this item will be referred to as repeat Citation No.2, item 3, as was used during the course of the hearing and in thebriefs of the parties.[[5\/]] No motions were made in this regard during the hearing or thereafter.[[6\/]] Respondent took no steps to provide protection until after thefatal accident when safety cables, belts and lanyards were obtained andutilized (Tr. 226-227).[[7\/]] The scaffolding standard is found at 29 C.F.R. ? 1910.28(3) andprovides as follows:Guardrails and toeboards shall be installed on all open sides and endsof platforms more than 10 feet above the ground or floor….[[8\/]] The standard at 29 C.F.R. ? 1904.4 provides:In addition to the log and summary of occupational injuries andillnesses provided for under ? 1904.2, each employer shall haveavailable for inspection at each establishment within 6 working daysafter receiving information that a recordable case has occurred, asupplementary record for each occupational injury or illness for thatestablishment. The record shall be completed in the detail prescribed inthe instructions accompanying Occupational Safety and HealthAdministration form OSHA No. 101. Workmen’s compensation, insurance, orother reports are acceptable alternative records if they contain theinformation required by Form OSHA No. 101. If no acceptable alternativerecord is maintained for other purposes. Form OSHA No. 101 shall be usedor the necessary information shall be otherwise maintained. “