“Docket No. 82-0427 SECRETARY OF LABOR, Complainant,v.CARDINAL INDUSTRIES, INC., Respondent.OSHRC Docket No. 82-0427DECISION Before: BUCKLEY, Chairman, and AREY, Commissioner. BY THE COMMISSION:This case is before the Commission pursuant to an order ofremand from the United States Court of Appeals for the Sixth Circuit. Brock v. CardinalIndustries, Inc., 828 F.2d 373 (6th Cir. 1987), rev’g, 12 BNA OSHC 115-85,1984-85 CCH OSHD ? 27,446 (No. 82-0427, 1985). In its initial decision, the Commissionvacated citations alleging that Cardinal Industries violated OSHA general industrystandards published in Part 1910 of 29 CFR, finding that Cardinal’s assembly linemanufacture of modular housing units was construction work covered by the OSHAconstruction standards published in Part 1926 of 29 CFR. The Sixth Circuit determined thatCardinal’s employees were not engaged in construction work and that Cardinal’s workplacewas governed by the general industry standards. It reversed the Commission’s decision andremanded the case to the Commission for further proceedings. Accordingly, we must nowaddress whether Cardinal violated the cited general industry standards.At issue are three items alleging that Cardinal repeatedlyviolated the Act by failing to provide fall protection at two work stations on itsassembly line. The administrative law judge affirmed all three items as repeatedviolations and assessed a penalty of $1,350. We vacate two of the items, affirm theremaining one, and assess a penalty of $450.Item 2 (b): ?1910.23(c)(1), felt rack platformItem 3: ? 1910.132(a), roof of unit at felt rack platform A.The citations resulted from an OSHA inspection that wasconducted after a fatal accident in which a Cardinal employee fell from the roof of amodular unit. Two of the citation items allege that Cardinal violated the standards byfailing to provide adequate fall protection to employees working on the roofs of the units[item 3] and on an adjacent platform [item 2(b)]. Cardinal does not dispute that itsoperation failed to conform to the standards. It argues, however, that OSHA had previouslyapproved the safety practices it now alleges violate the standards, and that the companytherefore lacked notice of what the standards require. We agree with this argument as toitem 3 and therefore vacate that item. We conclude that the argument lacks merit as toitem 2(b) and that item.The units that Cardinal produces are rectangular rooms 24 feetlong by 12 feet wide. They have slanted roofs that slope from a height of 8 feet 10 inchesat the lower or platform end up to 12 feet 4 inches at the peak. The units move along anassembly line. At the stations on that line the various components that make up the unitare installed. At the felt rack station, Cardinal’s employees unroll 24-foot long sectionsof 12-foot wide felt onto the roof of the unit from a rack on the adjacent felt rackplatform, trim it to size, and fasten it to the roof. The platform is nearly flush withbut slightly wider than the lower end of the roof. The rack itself sits back approximately2 ?, feet from the platform’s edge. The sides of the platform between that rack and theedge of the unit were unguarded, exposing employees working approximately three feet fromthe edge of the platform to a fall of 8 feet 10 inches. The Secretary issued a citationalleging, in item 2(b), that Cardinal’s failure to provide guarding on the felt rackplatform was a repeated violation of 29 C.F.R. ? 1910.23(c)(l). [[1\/]]Compliance officer Perry also testified that, as each unit passed through the felt rackstation, employees were exposed to fall hazards along the sides of that unit’s roof asthey unrolled the felt along its 24-foot length. The potential fall distance from thesides ranged from 8 feet 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 to this fall hazardfrom the sides of each unit was a violation of section 1910.23(c)(1). However, inrecognition of the infeasibility of installing guardrails on the roofs of each modularhousing unit, the Secretary later amended the citation to allege that Cardinal violated 29C.F.R. ? 1910.132(a)[[2\/]] by not providing safety belts and lanyards and requiringemployees to wear them. The platform and peak ends of the roof did not pose fall hazardsand were not included in the citation’s description of the alleged violation. At theplatform, end, the felt rack itself formed a barrier; at the peak, a guardrail suspendedfrom the ceiling had been installed.B.Cardinal’s fall protection practices in the felt rack area hadbeen inspected by OSHA on two earlier occasions. As a result of a March 1981 inspectionconducted by compliance officer Edward Mershon, Cardinal was cited for failing to complywith section 1910.23(c)(1) at the felt rack area and two other locations. The citationalleged that on open-sided platforms:a) Located at the F-4 [felt rack] area; Employees installingfelt and roofing shingles were not protected from falls of up to 12 and one half feet ontothe 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 to protect employeesfrom a 7′ 2\” fall to the floor below. c) Located at the elevated roofing shingle storage platform;Standard railings were not provided on all open sides to prevent accidental falls byemployees to the concrete floor below.At the hearing in this case, Mershon testified that thisearlier citation alleging exposure to fall hazards at the felt rack area had been directedonly at the roof of the unit. Mershon did not consider the felt rack platform to beencompassed by the citation.[[3\/]] Mershon testified that during the March 1981 inspectionhe proposed that Cardinal 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 recalled discussing thepossibility of abutting the units together to provide fall protection on the sides of theroofs.Cardinal did not contest the citations. In April of 1981,Thomas Alexander, Cardinal’s plant engineer, sent a letter to OSHA’s area directordescribing the steps Cardinal had taken to address each part of the citation as follows:a) Safety railing suspended from plant ceiling to protect fromfalls in this area. b) Per conversation with Mr. Mershon, we have agreed to assurethat the ceiling finishing area be kept full at all times to preclude the possibility of afall.c) Standard railings with chain gates were installed on theshingle storage platform.This letter informed OSHA of Cardinal’s belief that it hadabated the violation in the felt rack area by suspending a safety railing from the plantceiling to protect against falls from the highest edge of each unit’s roof.In May of 1981, after receiving the letter, Mershon conducted afollow-up inspection of Cardinal’s plant. At the felt rack area, he observed a railing inplace behind the modular units, i.e., the railing described in Alexander’s letter. Mershondid not recall seeing any guarding on the sides of the roofs, but he testified that\”[i]t seems as though there was some discussion. . . of abatement there by abuttingthe units together.\” Mershon wrote \”OK railing installed,\” next to item a),the felt rack item, on his copy of the 1981 citation. He wrote nothing about the abutmentof units. At the hearing, Mershon testified that the unguarded sides constituted a fallhazard but, at the time of the reinspection, he did not express these views to Cardinaland he did not recommend to the area director that a failure- to-abate notification or anew citation be issued.Alexander testified that Cardinal had never abutted the unitsat the felt rack platform area because workers installed sheets of gypsum on the sides ofthe units there. He stated that the automation of the assembly line after Mershon’sfollow-up inspection had no effect on Cardinal’s continuing practice of not abutting theunits.C. The Secretary now alleges, and Cardinal does not dispute, thatCardinal should use safety belts and lanyards to protect its employees from falling fromthe sides of the modular housing units.[[4\/]] Cardinal contends, however, that thecircumstances of the earlier OSHA inspections deprived it of fair notice of thisrequirement at the time of the alleged violation.As a general principle, an employer cannot be found inviolation of the Act 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). TheAct contemplates that employers will be attentive to the safety and health of theiremployees, and will read OSHA standards with their protective purpose in mind. But the Actdoes not require employers to read standards in a manner that strains the plain andnatural meaning of the words used, nor does it require employers to assume that standardsare drafted to create risk-free workplaces. See Industrial Union Department,AFL-CIO v. American Petroleum Institute, 484 U.S. 607, 641-42 (1980).In this case, Cardinal’s employees were exposed to falls fromthe sides of the roofs of the modular housing units. But at the time of the allegedviolation, it was far from clear that any OSHA standard addressed that particular fallhazard. The Secretary, who is intimately familiar with the requirements of the OSHAstandards, originally alleged that Cardinal violated section 1910.23(c)(1) by failing toinstall guardrails along the perimeter of the units. Shortly thereafter, however, theSecretary decided that guardrails were not the solution,[[5\/]] and amended the citation toallege that Cardinal should have used safety belts and lanyards under section 1910.132(a).However, at the time of the alleged violation, there was a substantial question as towhether the language of section 1910.132(a) could be read to require the use of safetybelts and lanyards for fall protection. A divided Commission has since held that it can beso read, but in the same case the Commission declined to hold the cited employer inviolation of the standard because the language of the standard, the practice in theindustry, and the weight of earlier decisions by Commission administrative law judges hadacted to deprive the employer of fair notice of the requirement.[[6\/]] Bethlehem SteelCorp., 82 OSHRC 9\/C8, 10 BNA OSHC 1470, 1982 CCH OSHD ? 25,982 (No. 79-310, 1982).Similarly, the alleged violation in this case occurred before Bethlehem gave employersnotice that section 1910.132(a) can be read to require the use of safety belts andlanyards.Cardinal’s claim that the earlier OSHA inspections deprived itof fair notice that its ongoing practices violated the Act must be read against thisbackdrop. When Cardinal was first cited for fall hazards on the roofs of its modularunits, the standards themselves did not clearly delineate Cardinal’s duties. Cardinaltherefore relied on the representations of OSHA’s representatives to establish itsabatement duties upon receipt of the 1981 citation. When Mershon conducted the follow-upinspection, which he did for the sole purpose of determining whether Cardinal had abatedthe cited violations, it was reasonable for Cardinal to assume that Mershon would informit of any deficiencies in the abatement measures it had taken. Mershon was trained todetect safety violations and had closely examined the felt rack area in his follow-upinspection. Cardinal, however, did not receive any indication that OSHA considered thefall protection for its employees working on the roofs of the units at the felt rack areato be inadequate. The Secretary did not issue a citation or a failure to abatenotification. Mershon did not tell Cardinal of any reservations he had about the adequacyof fall protection at the felt rack area. Indeed, the notation \”O.K. railingsinstalled\” Mershon made next to item a) on his own copy of the 1981 citation and hisfailure to note any remaining problems on that copy strongly indicate that he wassatisfied with the steps taken by Cardinal. In addition, although neither the Act nor theCommission require the Secretary to reply to letters like the one that Cardinal sent tothe area director, the Secretary’s failure to respond to that letter certainly contributedto Cardinal’s decision to take no further action in response to the earlier citation.Thus, we conclude that Cardinal lacked fair notice of what the Act required on the sidesof the roofs 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 of citation 2 is reversedand the item is vacated.[[7\/]]We next address Cardinal’s claim that it lacked fair notice ofwhat the Act requires at the felt rack platform itself. Cardinal makes the same noticeargument that it made with regard to the roofs of the units, but the evidence suggeststhat neither of Mershon’s inspections of the felt rack area involved the platform. Mershontestified that part a) of the section 1910.23(c)(1) citation issued after the March 1981inspection of the felt rack area concerned only the roofs of the units. See note 3 supra.His abatement proposals during the March 1981 inspection never extended to the felt rackplatform itself. Nor was there any reference to the platform on Mershon’s copy of the 1981citation. Alexander’s testimony on this point is equivocal at best. He stated both thatthe conditions cited at the platform in 1982 were not encompassed by the 1981 citation andthat the same conditions would have to have been a part of the 1981 citation because theywere in the same physical area.The evidence also fails to establish that Cardinal took anyaction at the platform in reliance on Mershon’s actions or \”approval\” regardingthe platform. Alexander testified that his letter to the Secretary \”respond(ed) toabatement of [the platform] as well,\” but this assertion does not stand up well underscrutiny. If Cardinal had believed that the fall hazards at the sides of the felt rackplatform were covered by the 1981 citation, it is difficult to understand why it wouldhave done nothing to the felt rack platform to comply with section 1910.23(c)(1). There isno evidence that abating the violative condition on the platform was difficult orinfeasible like the measures proposed for the modular housing units, nor is there anysubstantial doubt that the standard applies to that platform. In fact, Cardinal installedstandard guard rails and chain gates on the shingle storage platform which was a similarstructure in close proximity to the felt rack platform; the shingle storage platform hadbeen specifically included in the 1981 citation.Having found that Mershon did not \”approve\”conditions on the felt rack platform, we also note that the mere fact of Mershon twiceinspecting this area and not detecting violations does not exculpate Cardinal. TheSecretary’s failure to issue a citation for a violation of a standard does not immunize anemployer from future enforcement of that standard. See Columbian Art Works. Inc.,81 OSHRC 96\/F5, 10 BNA OSHC 1132, 1981 CCH OSHD ? 25,737 (No. 78-29, 1981); LukensSteel 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 thatthe conditions at the edges of the felt rack platform violated the Act.We turn now to the merits of the alleged violation at the feltrack platform. Section 1910.23(c)(1) requires standard railings or the equivalent whenemployees are exposed to a fall hazard of 4 feet or more from an open-sided platform. Theevidence establishes that Cardinal’s employees worked near the unguarded edges of the feltrack platform 8 feet 10 inches above the plant floor and that Cardinal knew of thenoncomplying conditions. This is sufficient to establish that Cardinal violated section1910.23(c)(1).The Secretary alleged that this violation was repeated withinthe meaning of section 17(a) of the Act. Under Commission precedent, [a] violation isrepeated … if, at the time of the alleged repeated violation, there was a Commissionfinal order against the same employer for 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. That item, which alleged afailure to comply with section 1910.23(c)(1) at the shingle storage platform, was notcontested by Cardinal and has become a Commission final order. As we stated above, thefelt rack platform and the shingle storage platform are very similar structures located inclose proximity to each other. Since the evidence shows that the citations involved thesame standard applied to substantially similar conditions, the Secretary’s allegation thatthe violation was repeated has been established under Potlatch.[[8\/]]Cardinal argues that it cannot be found in repeated violationbecause it lacked knowledge of the presence of a violation. Cardinal claims that, in orderto establish a violation of the Act, the Secretary must show that the employer knew that acited condition violated the Act. This is a misstatement of the Secretary’s burden ofproof. The Secretary need only show that the cited employer knew or could have known ofthe condition with the exercise of reasonable diligence. Astra Pharmaceutical 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 in pertinent part, 681 F.2d 69 (1st Cir. 1982). She has noobligation to also show that the employer knew that the condition violated the Act. Theemployer has a duty to comply with the Act regardless of whether it was previouslyinformed that a condition violated the Act. Simplex Time Recorder Co., 85 OSHRC50\/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 acombined penalty of $1,350, which is equivalent to $450 per violation. Taking intoconsideration the penalty factors set out at 29 U.S.C. ? 666(j), we conclude that apenalty of $450 is appropriate for item 2(b).Item 2(c): ? 1910.23(c)(1), scissors liftAt another location on the assembly line at Cardinal’sfacility, employees stood on a hydraulically-powered scissors lift between the units andattached the roof to the unit. The lift, which is bolted to the floor, can be lowered toallow the units to pass over it or raised to a height of 6 feet 5 inches. Although oneside of the lift is flush against the side of the module, Perry, the compliance officer,testified that there was a space on the other side of the lift that was large enough for aperson to fall the 6 feet 5 inches to the concrete floor below. The Secretary issued arepeated citation alleging that Cardinal failed to equip the lift with standard guardrailsor the equivalent as required by section 1910.23(c)(1).The scissors lift had also been examined by Mershon during hisMarch 1981 inspection. He testified that he had recommended the issuance of a citationalleging a failure to comply with section 1910.23(c)(1). However, after a conference withhis supervisor and the area director, it had been determined that a different standard,the scaffolding standard at 29 C.F.R. ? 1910.28,[[9\/]] applied to the scissors lift.Mershon testified that he had told Alexander over the telephone that the scissors lift wasa scaffold and that it would not be cited because the scaffolding standard requiredguarding only at the 10-foot level and above.Cardinal argues that, having relied on the area office’sdecision that the scissors lift was a scaffold, it could not have known that the unguardedscissors lift violated the Act as the Secretary alleges.The Secretary contends that the scissors lift is not a scaffoldwithin the meaning of section 1910.28. The Secretary points to the definition of scaffoldpublished at 29 C.F.R. ? 1910.21(f)(27):Any temporary elevated platform and its supporting structureused for supporting workmen or materials or both.Relying on Fleetwood Homes of Texas. Inc., 80 OSHRC 97\/C4, 8 BNA OSHC 2125, 1980CCH OSHD ? 24,873 (No. 76-2332, 1980), she notes that the Commission has held thatwhether a working surface is temporary and covered by the scaffold standard or permanentand covered by the platform standard depends on the structural rather than the functionalattributes of the device. Because the scissors lift is permanently bolted to the floor,she contends that t is a platform within the meaning of section 1910.23(c)(1).The Secretary maintains that Cardinal’s reliance on theerroneous advice of the compliance officer that the lift was a scaffold does not negatethe violation. She claims that it is Cardinal’s knowledge that the scissors lift posed ahazard to its employees rather than its knowledge of the requirements that is critical.The judge found that the scissors lift was a platform andaffirmed a violation of section 1910.23(c)(1) because it was not equipped with guardrails.He concluded that the lift was not a scaffold because it was not \”temporary\”within the meaning of section 1910.21(f)(27) but rather was bolted to the floor. The judgerejected Cardinal’s argument that it lacked fair notice that section 1910.21(c)(1) appliedto the scissors lift; he also rejected Cardinal’s notice arguments. He did not discussMershon’s communication of the area director’s determination the area director’sdetermination to Cardinal.In determining that the scissors lift was a platform, the judge correctly focussed on thekey issue of whether the structure was temporary or permanent. However, we find that heerred in concluding that the lift was permanent and not temporary like scaffold within themeaning of section 1910.21(f)(27). Although the scissors lift does have some permanentaspects, focussing on the base that is attached to floor ignores the nature of the workingsurface itself. The working surface of the lift is raised and lowered again and again toallow the workers standing on it to attach the roofs to the units as they move downassembly line. The procedure on the mobile home assembly line in Fleetwood Homeswas nearly identical. In Fleetwood, fourteen-foot long planks called spanners werelaid between the lateral work decks that parallel the mobile homes. They allowedFleetwood’s employees to work on the ends of the mobile homes, but they had to be removedand repositioned every two hours when the mobile homes on the production line wereadvanced. In Fleetwood, the Commission found that the spanners were scaffoldsbecause they could be and were moved to fit the needs of the job. The working surface ofthe scissors lift in this case is 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). We therefore conclude,as the OSHA area director did in 1981, that scissors lift is a scaffold and that it is notcovered 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 theapplicable standard, we would vacate the item on the basis that Cardinal lacked fairnotice that the standard applied to its scissors lift. In 1981, the OSHA area directordetermined that the scissors lift was a scaffold rather than a platform, and thereforedecided not to cite Cardinal for failing to equip the lift with guardrails. Complianceofficer Mershon explained to Cardinal’s plant engineer, Alexander, why Cardinal would notbe cited for violating section 1910.23(c)(1). Cardinal was surely entitled to rely on thisinformation. It would be unfair to now find that Cardinal violated the standard when itreasonably relied on advice from OSHA that the standard did not apply. See Diebold;Hamilton Die Cast, Inc.The Secretary argues that the discussions that took placebefore Mershon told 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 twostandards under discussion do not require guarding because a hazard is present. Section1910.23(c)(1) requires guarding when employees work on \”open-sided floor[s] orplatforms 4 feet or more above adjacent floor or ground level.\” Section 1910.28(a)(3)required that \”[guardrails and toeboards shall be installed on all open sides andends of platforms [scaffolds] more than 10 feet above the ground or floor.\” Thus,where as here the working surface is between 4 feet and 10 feet above the ground,guardrails are only required if the surface is a platform and not a scaffold.Accordingly, that part of the judge’s decision affirming item 2of citation 2 is reversed, and the item is vacated.Thus, item 2 (b) of Citation 2 is affirmed as a repeatedviolation, and a 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, 1989SECRETARY OF LABOR Complainant, v. CARDINAL INDUSTRIES, INC., Respondent.OSHRC Docket No. 82-0427DECISION Before: BUCKLEY, Chairman; RADER and WALL, Comissioners.BY THE COMMISSION:This case is before the Occupational Safety and Health ReviewCommission under 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety and HealthAct of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission is anadjudicatory agency, independent of the Department of Labor and the Occupational Safetyand Health Administration. It was established to resolve disputes arising out ofenforcement actions brought by the Secretary of Labor under the Act and has no regulatoryfunctions. See section 10(c) of the Act, 29 U.S.C. ? 659(c).Administrative Law Judge Edwin G. Salyers affirmed two items ofa citation issued by the Secretary to Cardinal Industries, Inc. Items 2b and 2c ofcitation 2 alleged that, contrary to 29 C.F.R. ? 1910.23(c)(1), Cardinal had notinstalled guardrails on two platforms. Item 3 of that citation alleged that, contrary to29 C.F.R. ? 1910.132(a), Cardinals employees had not worn safety belts. Cardinal contendsthat these general industry standards do not apply to its workplace. Cardinal claim thatbemuse its employees are engaged in construction work, the construction standards apply.We agree with Cardinal that its employees are engaged in construction work. We alsoconclude that the general industry standards are preempted by specifically applicableconstruction standards. Inasmuch as the Secretary did not allege and the parties did nottry violations of those construction standards, we vacate the items.I Cardinal operates a facility in Columbus, Ohio at which modularhousing units are constructed. Completed units are removed from the facility and assembledelsewhere to form residences or other buildings. Judge Salyers described the operations atCardinal’s facility as follows:The production line moves through approximately 25 workstations. Each unit is mechanically propelled on a track from each station to the other.The first operation is the placing of the floor. Once this is accomplished, the unitbegins to move through the various work stations where front walls, side walls, rearwalls, ceiling, roof, gypsum, roofing felt, shingles, trim and other items aresubsequently applied…The entire operation is performed in an enclosed facility whichencompasses three city blocks.The various parts of a unit are joined by Cardinal’s employees,who are represented by the United Brotherhood of Carpenters and Joiners. The parts arejoined in the same manner as at a building site. For example, after the floor is set inplace, 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 andnail it to the roof. They then put down shingles and nail them to the roof. Cardinal’semployees also, install plumbing and electrical wiring.Cardinal contends that its operation involves \”construction work\” within themeaning of 29 C.F.R. ? 1910.12.[[1]] It argues that but for its \”uniqueoperation,\” the units it produces would be constructed an a building site. Cardinalpoints out that the units all have the roofs, sides, interior walls, flooring, andelectrical wiring typical of any house or building. It notes that the carpentry andplumbing skills required to build the units are those generally associated withconstruction.The Secretary claims that the indoor assembly line andpermanent work stations at Cardinal’s plant are hallmarks of a classic assembly-linemanufacturing operation to which the general industry standards in 29 C.F.R. Part 1910apply. He relies on Office of Management and Budget, Standard Industrial ClassificationManual 47, 94 (1972), which lists the production of \”Prefabricated Wood Buildingsand Components\” under manufacturing, but classifies the fabrication of buildings on aconstruction site as construction. He also cites Fleetwood Homes of Texas, Inc., 80OSHRC 97\/C4, 8 BNA OSHC 2125, 1980 CCH OSHD ? 24,937 (No. 76-2332, 1980), and ProwlerTravel Trailers of New York, Inc., 77 OSHRC 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 Secretary also argues,relying an Royal Logging Co., 79 OSHRC 84\/A2, 7 BNA OSHC 1744, 1979 CCH OSHD ?23,914 (No. 15169, 1979), aff’d, 645 F.2d 822 (9th Cir. 1981), that the nature ofthe overall operation rather than use of construction skills or equipment determineswhether an employer is involved in construction.The judge found that the construction industry standards do notapply. He found that although \”the end product of [Cardinal’s] operations is afinished housing unit, the nature of the operation was \”more akin to manufacturingthan . . . to construction.\” He reached this conclusion primarily because the units,which \”move along a line much like any other manufactured product,\” wereproduced an an assembly line entirely within Cardinal’s facility.IIThe applicability provisions in 29 C.F.R. Part 1910 control theresolution of this question. Section 1910.5(a) states that the occupational safety andhealth standards in Part 1910 \”apply with respect to employments performed in aworkplace in\” the United States. Section 1910.12, which adopts the constructionstandards in Part 1926 as occupational 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 for choosing betweenthese standards. Subsection (c)(1) states that \”[i]f a particular standard isspecifically applicable to a condition . . . [or] operation . . , it shall prevail overany different general standard which might otherwise be applicable to the same condition .. . [or] operation . . .\” \”On the other hand,\” states section 1910.5(c)(2)\”any standard shall apply . . . to any employment and place of employment in anyindustry, even though particular standards are also prescribed for the industry. . ..\” The question here, therefore, is whether there are specifically applicable Part1926 standards. To answer that question, it is first necessary to determine whether Part1926 is applicable at all, i.e., whether Cardinal’s employees are engaged in\”construction work\” within the meaning of section 1910.12. We find thatCardinal’s employees were engaged in construction work. We also find that there arespecifically applicable construction standards.Section 1910.12(b) defines \”construction work\” as\”work for construction, alteration, and\/or repair, including painting anddecorating.\” In determining whether an operation constitutes \”work forconstruction,\” the Commission has held that Part 1926 applies only to employers whoare actually engaged in construction work or who are engaged in operations that are anintegral and necessary part of construction work. United Geophysical Corp., 81OSHRC 77\/D6, 9 BNA OSHC 2117, 2121, 1981 CCH OSHD ? 25,579, p. 31,906 (No. 78-6265,1981), aff’d without published opinion, 683 F.2d 415 (5th Cir. 1982). AlthoughCardinal’s employees construct homing units in a factory setting, the carpentry, plumbing,roofing and electrical work they perform is identical to that performed at a constructionsite, and identical to the kind of work that OSHA specifically intended Part 1926 tocover. See sections 1910.17(b)(2) and 1926.1051(b)(2) (applying Part 1926 to\”light residential construction\”).[[2]] That Cardinal’s employees work in abuilding rather than outdoors at the site of final assembly cannot be controlling, forunder sect 1910.12, it is the nature of the work rather than its location that controls.Indeed, section 1910.12’s references to alteration and repair make this clear, for suchwork frequently takes place within pre-existing structures. Finally, the constructionactivities performed by Cardinal’s employees are not ancillary to or in aid of anonconstruction purpose. See Royal Logging, 7 BNA OSHC at 1750, 1979 CCH OSHD at p.28,996. They are directed at Cardinal’s primary function–construction.[[3]]We now add whether there are construction standardsspecifically applicable 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 that guardrails were not providedto prevent falls from platform. As the Secretary’s brief implicitly concedes, however,there is a construction industry standard, section 1926.500(d)(1), that requiresguardrails on \”open-sided floors, platforms, and runways.\” The third itemalleges a failure to require the use of safety belts an an unguarded roof edge. Theconstruction industry standard on personal protective equipment, section 1926.28(a),\”requir[es] the ring of appropriate personal protective equipment andcross-references 29 C.F.R. Part 1926, Subpart E, which contains a standard, section1926.104, on safety belts.[[4]] Those standards govern the cited conditions.Under Rule 15(b) of the Federal Rules of Civil Procedure,pleadings my be 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 Wallwould not amend, sua sponte, in the absence of an opportunity for Cardinal to arguewhether amendment is appropriate, and whether it would be prejudiced. Chairman Buckleywould not amend here because there was no express consent to try whether the applicableconstruction standards had been violated. He would not find implied consent because hedoes not find that Cardinal squarely recognized that violations of the constructionstandards were in issue,much less that it consented to try these issues. See McWilliamsForge 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 to allegeviolations 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, 1985RADER, Commissioner, dissenting:I respectfully dissent from the majority’s decision to vacatethe citation items on the ground that, Cardinal is not subject to the general industrystandards set forth at Part 1910 of Title 29. In my view, the judge properly determinedthat Cardinal is engaged in a manufacturing process rather than a construction operation.In finding the construction standards applicable to Cardinal,the majority relies primarily on the type of work activities performed by Cardinal’semployees, concluding that such activities as carpentry, plumbing, roofing and electricalwork are characteristic of the work normally performed at construction sites. The majorityalso reasons that these work duties are integrally related to Cardinal’s primary\”function,\” which the majority regards as construction work because Cardinalmanufactures parts of housing and motel units. Thus, the majority’s decision is based ontwo related but distinct concepts–the employees’ specific work duties or the skills theyrepresent on the one hand and the overall purpose or objective of their employment on theother. Neither concept, however, supports the majority’s conclusion that Cardinal isengaged in construction work as that term is defined and used in the Secretary’sstandards.The Commission has previously recognized that under theSecretary’s standards the differentiation between general industry and construction cannotbe based solely on the nature of the specific work duties or types of work activities inwhich 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’sargument that cementing the casing of an oil well during drilling constitutes constructionwork because the employees worked with pumps, derricks, concrete pouring equipment, andmaterial handling equipment of the sort normally used in construction work. The Commissionreasoned that equipment of this type is frequently used in nonconstruction work as well,and noted that many of the construction standards regulating particular types of equipmenthave counterparts in the general industry standards governing the same equipment. In thepresent case, the specific types of Cardinal’s work activities that the majoritycharacterize as \”construction\” are in fact addressed by general industry as wellas construction standards. Thus, 29 C.F.R. ? 1910.213, a general industry standardentitled \”Woodworking machinery requirements,\” imposes requirements for varioustypes of saws and other woodworking machinery, and is applicable generally to all types ofwoodworking operations. Noblecraft Industries, Inc.v. Secretary of Labor, 614 F.2d199 (9th Cir. 1980). Similarly, section 1910.241, \”Hand and Portable Powered Toolsand Other Hand-Held Equipment,\” governs many types of portable tools, both poweredand non-powered. Section 1910.252 applies to \”Welding, cutting, and brazing,\”mid extensive regulations for working with electrical conductors and related apparatusappear in section 1910.137, \”Electrical protective devices,\” and Subpart S,\”Electrical,\” 29 C.F.R. ?? 1910.301-308, 1910.399.[[1]] These are all generalindustry standards that apply to the techniques, tools, and equipment used in Cardinal’soperation.[[2]] Thus, the fact that Cardinal’s employees perform carpentry, plumbing, andelectrical work does not in itself mean that Cardinal’s operation is controlled by theconstruction standards in Part 1926.[[3]]Since the specific work duties conducted by Cardinal’semployees are not dispositive of the question whether Cardinal is engaged in constructionwork under Part 1926, it is appropriate to consider, as does the majority, whether theconstruction standards govern the type of business in which Cardinal is engaged. SeeB.J. Hughes, supra, 10 BNA OSHC at 1547, 1982 CCH OSHD at p. 32,579. As themajority indicates, Cardinal fabricates housing units in a factory setting away from, andhaving no direct connection with, the actual site where the component units will be placedand finally assembled into a complete dwelling and then occupied. The majority concludesthat such work constitutes construction because the type of work performed is thedispositive factor.[[4]] However, in my view the physical conditions under whichCardinal’s employees perform this work are controlling.The stated purpose of the Act is to assure \”safe andhealthful working conditions\” by, among other things, \”authorizing the Secretaryof Labor to set mandatory occupational safety and health standards.\” Section 2(b), 29U.S.C. ? 651(b). Since standards are a basic mechanism by which the purpose of the Act isto be achieved, it is appropriate in determining the scope of a particular set ofstandards to consider the nature of the working conditions sought to be regulated.The physical configuration of Cardinal’s facility is very muchdifferent from that normally encountered on the site or location of a building orstructure. The use of an assembly line comprised of fixed work stations, the overallfactory setting, and the generally controlled environment thereby provided, are obviouscharacteristics of a manufacturing rather than an on-site construction operation.[[5]] Thebasic environment in which Cardinal’s employees perform their work is indeed exemplifiedby the citation item at issue dealing with unguarded platforms. Both the \”felt rackplatform\” (an elevated work surface attached to the structure of Cardinal’s buildingand containing a roller used to dispense roofing felt to the modules as they pass by) andthe \”scissors lift\” (a hoisting device bolted to the floor and used to raise andlower employees to and from the roof areas) are devices typical of the machinery orequipment normally encountered in a manufacturing plant. They reflect working conditionsof a manufacturing rather than construction nature, regardless of the fact that theconstruction standards as well as the general industry standards contain provisionsgenerally regulating the hazard of a fall from elevated work surfaces. See SouthernPacific Transportation 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 an employer’s workingconditions depends not only on the particular hazard presented at a certain work locationbut also on the overall \”surroundings\” in which the employees customarilyperform their assigned tasks).The fact that the modules or units Cardinal produces aremanufactured in a factory setting is more significant than the fact that they willeventually be occupied as dwellings or residences. The construction standards as a wholeindicate that regardless of the type of building or structure involved the performance ofconstruction work necessarily implies some direct and tangible connection or relationshipwith the physical site or location of the structure. Thus, the construction standardscontain a number of provisions, which have no counterpart of building sites and theassembly or completion of structures or structural components on site.[[6]] In addition,section 1926.13(c), a regulation promulgated under and interpreting section 107 of theContract Work Hours and Safety Standards Act (\”Construction Safety Act\”), 40U.S.C. ? 333, which authorizes the Secretary to establish safety and health standardsapplicable to federal construction contracts, recognizes a clear differentiation betweenthe fabrication or assembly 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 contractinvolving furnishing of supplies or materials will be considered a\”subcontractor\”…if the work in question…is to be performed: (1) Directly onor near the construction site, or (2) by the employer for the specific project on acustomized basis. Thus, a supplier of materials which will become an integral part of theconstruction is a \”subcontractor\” if the supplier fabricates or assembles thegoods or materials in question specifically for the construction project…If the goods ormaterials in question are ordinarily sold to other customers from regular inventory, thesupplier is not a \”subcontractor.\” Generally, the furnishing of prestressedconcrete beams and prestressed structural steel would be considered manufacturing;therefore a supplier of such materials would not be considered a\”subcontractor.\” An example of materials supplied \”for the specific projecton a customized basis\” as that phrase is used in this section would be ventilatingducts, fabricated in a shop away from the construction job site and specifically cut forthe project according to design specifications. On the other hand, if a contractor buysstandardsize nails from a foundry, the foundry would not be a covered\”subcontractor.\”Since the Construction Safety Act has a similar purpose in providing safe and healthfulworking conditions for employees engaged in construction work, the scope of its coverageis relevant in resolving an analogous question of coverage under the Occupational Safetyand Health Act. 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 the Construction Safety Act is particularlypersuasive here because the substantive safety and health standards promulgated under thatstatute and set forth in 29 C.F.R. Part 1926 are the source for the occupational safetyand health standards applicable to all employers engaged in construction work under theOccupational. Safety and Health Act. 29 C.F.R. ? 1910.12(a). See 29 U.S.C. ? 653(b)(2)(standards issued pursuant to 40 U.S.C. ? 333 are deemed occupational safety and healthstandards under the Act.) When he adopted and extended the Construction Safety Actstandards as OSHA standards applicable to all construction work, the Secretary defined\”work for construction\” by explicitly referring to the \”discussion of theseterms in ? 1926.13 of this title.\” [[7]] Section 1926.13 is therefore pertinent tothe extent that it differentiates between manufacturing and construction and explains theparticular circumstances under which a manufacturing or fabrication operation could beconsidered 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 to form a completestructure at the building site, where the Units are taken by truck and placed on apre-existing foundation. The record does not snow, nor does Cardinal contend, that itsemployees either transport modules to the site where they are to be installed or performany final assembly or installation on the site. Cardinal’s plant manager testified thatCardinal produces units for three basic types of occupancy–apartments, houses, andmotels–in a fixed and prescribed production sequence as summarized in Judge Salyers’decision. It does not appear, nor is there any contention, that Cardinal produces units ona customized basis for particular projects. Applying the criteria set forth in section1926.13(c), I conclude that the type of work in which Cardinal is engaged does notconstitute construction within the meaning of section 1910.12(b). Cf. DravoCorp., 82 OSHRC 30\/A2, 10 BNA OSHC 1651, 1657, 1982 CCH OSHD ? 26,076, p. 32,814 (No.14818, 1982) (a pipe shop associated with a shipyard which fabricates components such asladders, nozzles, and sewage holding tanks is a manufacturing operation not subject to theSecretary’s shipbuilding standards).Finally, while I would not necessarily regard the StandardIndustrial Classification Manual as controlling, I believe that the majority errs indismissing the manual as having no relevance whatever. The manual assigns industry codeson the basis of \”primary activity,\” determined by the \”principal product orgroup of products produced or distributed, or services rendered.\” Id. at 12.It therefore directly addresses the question presented in this case, namely, the propercharacterization of an employer engaged in the production of prefabricated housing units.Furthermore, the Secretary relies on the codes assigned in the manual to distinguishconstruction from manufacturing employers for the purpose of determining inspectionpriorities.[[9]] See OSHA Instruction CPL 2.25F, Scheduling System for ProgrammedInspections. Appendix B, 2 BNA Ref. File 21:9295, :9305-07, 3 CCH ESHG ? 8671, pp.8301-02. The manual is also widely used by other government agencies and by privateindustry for classification, compilation of statistics and insurance purposes. I thereforebelieve it is relevant and does provide guidance in classifying Cardinal’s businessactivities.For these reasons, I respectfully dissent from the majority’sdecision.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 of respondentDECISION AND ORDERSALYERS, Judge:\u00a0\u00a0\u00a0\u00a0 Respondent is engagedin Columbus, Ohio, in the manufacturing of modular housing units. The production linemoves through approximately 25 work stations (Tr. 220). Each unit is mechanicallypropelled on a track from each station to the other. The first operation is the placing ofthe floor. Once this is accomplished, the unit begins to move through the various workstations where front walls, side walls, rear walls, ceiling, roof, gypsum, roofing felt,shingles, trim and other items are subsequently applied. The units have slanted roots. Onthe high side of the unit, the distance from the roof to the ground is 12 feet 4 inches.On the low side the height is 8 feet 10 inches. That unit is 24 feet long and 12 feetwide. The entire operation is performed in an enclosed facility which encompasses threecity blocks.In March 1981 Compliance Officer Edward L. Mershon conducted an inspection of respondentsfacilities to determine compliance with the provisions of the Occupational Safety andHealth Act (29 U.S.C. ? 651, et seq.). During the course of this inspection, ComplianceOfficer Mershon observed, among other things, employees installing felt on the roof of aunit in the area designated in the record as the F-4 area and working on the shinglestorage platform who were unprotected from a falling hazard. He concluded this constituteda violation of the guardrail standard found at 29 C.F.R. ? 1910.23(c)(1)[[1\/]] and soadvised respondent’s officials. A citation was thereafter issued which went uncontested byrespondent. By letter dated April 23, 1981 (Ex. R-2), respondent advised these conditionshad been abated by the installation of proper guardrails. In a follow-up inspectionconducted in May 1981, Compliance Officer Mershon verified that proper guarding had beeninstalled in the felt installation area (F-4 area) and on the shingle storage platform(Ex. R-1).The record is unclear as to just how Compliance Officer Mershondetermined respondent had abated the condition with regard to employees working on unitroofs in the F-4 area. Apparently, respondent had suspended guardrails from the plant roofto protect employees from falls off the ends of the units. At that time the units weremoved manually down the line, and the sides of the units while in the production line wereflush, leaving no opening through which employees could fall. Thus, no fall hazard existedalong the sides of the units as long as they were flushed tight together.As a result of a fatal accident occurring in the F-4 area, Compliance Officer Charles B.Perry inspected respondent’s facility in March 1982. At that time respondent’s method ofmoving the units along the line had changed from manual to mechanical, and it was nolonger possible to flush-up the sides of the units. Since the units were separated byspacer bars, openings existed between the sides of the units moving along the line. Theseopenings were of sufficient size to create a falling hazard to employees working on thesides of the unit roofs. Among other things, Compliance Officer Perry noted employeesinstalling felt on the units in the F-4 area and employees working on the felt rackplatform without fall protection. No guardrails were in place along the sides of the unitsnor were employees wearing safety belts with lanyards. He further noted an unguardedscissor lift platform in the roof setting area and an unguarded staging platform in thesiding area. Following his inspection, a citation was issued characterizing these allegedviolations as repeated.[[2\/]]The repeated citation, as originally drafted, chargedrespondent with a failure to use guardrails as follows:29 CFR 1910.23(c)(1): Open sided floor(s) or platform(s) 4 feetor more above the adjacent floor or ground level were not guarded by standard railings (orthe equivalent as specified in 29 CFR 1910.23(e)(3)(i) through (v), on all open sides, asfollows:a) The Felt Rack Area, there was no guard railing or itsequivalent (safety belts rind lanyards) provided to protect employees from falls whilerolling 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 felt rack platform toprevent employees from falling to a lower level.c) The Roof Setting Area, there were no guard rails provided onthe Scissor lift platform to prevent employees from falling to a lower level when platformis elevated above the four (4) foot level.d) The Siding Area, there was no guard railing provided on themetal staging platform suspended between two cubes.By written motion filed shortly before the hearing, theSecretary moved to delete item 2(a) of repeat Citation No. 2 and substitute therefore acharge of failure to use protective equipment as required by 29 C.F.R. ? 1910.132(a).[[3\/]] Itbeing represented to the Court that this amendment would in no way change the operativefacts which gave rise to the alleged violation (Tr. 8). the motion was granted [[4\/]] withthe understanding that motions would be entertained from counsel for respondent forappropriate relief upon a showing of surprise or prejudice to respondent’s case. [[5\/]]The facts are undisputed that at the time of Compliance OfficerPerry’s inspection, employees working in the F-4 area applying felt to the unit roofs werenot wearing safety belts with lanyards. This fact is graphically illustrated byphotographs taken by the compliance officer on the date of inspection. (See Ex. C-3, C-4,C-5, C-6, C-74.) These photos also show employees working at the very edge of the roofclearly exposing them to a failing hazard. The serious consequences of a fall from aheight of 8 to 12 feet onto a concrete floor cannot be questioned and is, unfortunately,confirmed by the resulting fatality of an employee who was engaged in this same operationat the time of his death. It is concluded that failure to provide any kind of fallprotection (in this case safety belts and lanyards) to employees engaged in this operationconstituted a violation of the cited standard.The only real question for determination is whether or not thisviolation is properly characterized as repeated. In the 1981 investigation and ensuingcitation, respondent was charged with a failure to install and utilize guardrails in theF-4 area contrary to 29 C.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 as repeated. The controlling casein point is Potlatch Corporation, 79 OSHRC 6\/A2 7 BNA OSHC 1061, 1979 CCH OSHD ? 23,294(No. 16183), wherein the Review Commission set forth its definition of a repeatedviolation as follows:A violation is repeated under section 17(a) of the Act if, atthe time of the alleged repeated violation, there was a Commission final order against thesame employer for a substantially similar violation.The Secretary may establish substantial similarity in severalways. In cases arising under section 5(a)(2) of the Act, which states that each employershall comply with occupational safety and health standards, the Secretary may establish aprima facie case of similarity by showing that the prior and present violations are forfailure to comply with the same standard.* * *In the absence of evidence that the antecedent and present violations concernnoncompliance with the same standard, the Secretary must present other evidence that theviolations are substantially similar in nature. In this regard, we think that evidencethat the violations involve similar hazards would be relevant ….Under the circumstances of this case, it is clear that the Secretary has satisfied therequirement for showing a \”substantially similar violation.\” Respondent was puton notice that employees working on unit roofs in the F-4 area were exposed to a seriousfall hazard. Respondent abated the condition by installing guardrails at each end of theunits and keeping the sides of the units flush to negate a falling hazard. At the time ofthe 1982 inspection, respondent’s operation had changed from manual to mechanical movementof the units and the unit sides could no longer be flushed together. Under thesecircumstances, it should have been obvious to respondent that employees working on thesides of the units were exposed to a falling hazard and should be afforded protection.[[6\/]] The Secretary has shown not only that the hazard was \”substantiallysimilar\” but, indeed, was the very same hazard.Respondent has also been charged with a repeated violation of29 C.F.R. ? 1910.23(c)(1) for its failure to provide guardrails around the felt rackplatform located at an elevation of 8 feet 10 inches above the concrete floor. Thisplatform is regularly used by employees working in the F-4 area (Ex. C-8, C-9). Thisparticular platform was not addressed in the 1981 inspection or ensuing citation. However,a similar platform, the roofing shingle storage platform, had been cited and abated inthat inspection. This hazard is \”substantially similar\” to the hazard previouslycited and involves the same standard.The Secretary also charges respondent with repeated violationof the guardrail standards for failure to guard a scissor lift platform in the roofsetting area and a metal staging platform in the siding area. The scissor lift (asdepicted in Ex. C-10) is a platform which can be raised or lowered as needed in performingthe roof attachment operation. When lowered, it is flush with the floor to allow the unitsto 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 in Ex. C-11) restson a tubular shaped bracket and is suspended from either the top of the unit or theceiling of the plant. The elevation above floor level is 6 feet 3 inches (Tr. 92). Neitherof these platforms was fitted with guardrails.Respondent strongly urges that the Secretary cited thesealleged violations under the wrong standard. Credence is given to this position since itappears disagreements existed within the OSHA area office on the point (Tr. 209-210). Itis asserted that these are not platforms but scaffolds and, if so considered, do notrequire guardrails since they are elevated less than 10 feet above the floor.[[7\/]]The record provides little assistance in resolving this problemsince the 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 asfollows:Any temporary elevated platform and its supporting structureused for supporting workmen or materials or both.The key word in this definition is \”temporary.\” Thescissor lift quite obviously does not fit this definition since the lift is permanentlybolted to the floor and is used each and every time a roof is affixed to the units. Themetal staging platform presents a more difficult problem. Respondent’s foreman indicatesin his testimony that the platform is \”temporary\” (Tr. 222) and explains:Q. And why do you say that the scaffolding there between the two units which has beendescribed in Serious Citation Two, Item 2(d) is temporary?A. Well, it needs to be taken in and placed in position only onthose units where they do siding operations. It’s taken in and installed by one or twopeople for each particular time they need to apply siding to a unit.Q. And when those units reach the end of the line, what happensto that scaffolding?A. The scaffold’s taken out before the unit passes beyond thesiding station, let alone before it gets to the end of the line.This statement, taken alone, would not establish the platformis temporary. However, it appears Compliance Officer Perry, after further deliberationfollowing the issuance of the citation, agrees that the scaffolding standard is the properstandard to apply in this case (Tr. 168-169). Under them circumstances and on a recordthat leaves this question up to speculation, it is concluded that the metal stagingplatform is more properly classified as a scaffold and respondent did not violate therequirements under this standard.Respondent argues as a collateral defense that the Secretaryhas charged it under the wrong set of standards. Since the units are built from the floorup in much the same fashion as would be used in an outdoor construction project,respondent urges that the construction standard should be applied rather than the generalindustry standards, as was done in this case. Even though the end product of respondent’soperations is a finished housing unit, the nature of respondent’s operations is more akinto manufacturing than it is to construction. The units are produced entirely withinrespondent’s enclosed facility and move along a line much like any other manufacturedproduct. It is concluded 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 lackedknowledge of the hazard. The hazard was specifically called to the attention of companyofficials in the previous inspection. When the line was mechanized and the unit sides wereseparated by spacer bars, any reasonably prudent employer would realize this change incircumstances required a re-evaluation of safety procedures. It is difficult to understandhow respondent would recognize the hazard at the ends of the unit and install fallprotection at these locations but fail to recognize a hazard when a change in productionmethod created the same circumstance along the unit sides.Finally, respondent argues Compliance Officer Mershon’sapproval of abatement following the 1981 inspection and his failure to cite conditionsexisting at that time, which became the basis for citations in the subsequentinvestigation, estops the Secretary from asserting violations. As noted above, the changein plant procedures created a new hazard not considered previously and nullified theabatement approved following the 1981 inspection. It is also clear that the Secretary’sfailure to issue a citation following an inspection does not grant an employer immunityfrom enforcement of applicable occupational safety and health standards in subsequentinspections. 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 only three of the fourrepeated violations originally cited, the proposed penalty will be reduced by one-fourthof the original amount.The Secretary charges respondent with an \”other\” thanserious violation of 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 isnot clear whether such forms were maintained by respondent. At the opening conference,Compliance Officer Perry requested the supplementary record (Tr. 118) but was given anaccident report (Tr. 122; Ex. C-12).Respondent’s plant engineer testified the company maintainsrecords which contain all of the information required by the regulations (Tr. 236) andwould have provided these records if the compliance officer had made it clear what he wasseeking. At the hearing respondent produced certain records received as Exhibit R-3 whichappear to contain all the information required by the standard. It is concluded respondenthas maintained the required records, and failure to produce them was a result of abreakdown in communication between company officials and the compliance officer.FINDINGS OF FACT1. The respondent, Cardinal Industries, Inc., is a corporationengaged in the manufacturing of modular housing units. These units move along a productionline in an enclosed facility encompassing some three city blocks. Respondent has employeeswho handle or otherwise work on goods that are produced for commerce.2. Respondent was investigated in March 1981 by a complianceofficer from the Occupational Safety and Health Administration. The compliance officernoted employees working on unit roofs in the F-4 area and on a shingle storage platform inthe same area who were exposed to a falling hazard without appropriate protection.3. These conditions were the subject of a citation chargingviolations of 29 C.F.R. ? 1910.23(c)(1) which went uncontested by respondent. At the timeof this inspection, the modular units were moved manually down the line with the sides ofeach unit flush to the next unit. Thus, employees working on the sides of the roofs werenot exposed to a falling hazard. A follow-up inspection disclosed respondent had abatedthe conditions in the F-4 area by installing guardrails at the ends of the units andguardrails 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 time of thisinspection, the units were no longer moved manually but rather were moved mechanically.This change in production method required the use of spacer bars between the sides of theunits which created openings between the units and caused a falling hazard to employeesworking on the sides in the F-4 area. Employees working in this area were not providedwith safety belts and lanyards.5. Employees were also noted to be working on a felt rackplatform at an elevation of 8 feet 10 inches above the floor who were not protected fromfalls by guardrails. The same condition existed with respect to employees working on ascissor lift platform at an elevation of 6 feet 5 inches above the floor.6. The Secretary has charged respondent with a violation of 29 C.F.R. ? 1910.23(c)(1) forfailure to guard a metal staging platform in the roof setting area. Since this platform istemporary, it is properly characterized as a scaffold. The Secretary has not shown aviolation of the scaffolding standard since the scaffold is only 6 feet 3 inches above thefloor.7. The Secretary charges respondent with an \”other\”than serious violation of the recordkeeping provisions found at 29 C.F.R. ? 1904.4 forits failure to provide a supplementary record. The record establishes that respondent didmaintain all the information required by this standard and failed to provide thisinformation due to a breakdown in communication between the compliance officer andrespondent’s officials.CONCLUSIONS OF LAW1. Respondent is an employer who has employees engaged in workaffecting commerce, and the Review Commission has jurisdiction in this cause.2. Respondent has violated the provisions of 29 C.F.R. ?1910.132(a) for its failure to provide employees working on the sides of roof units in theF-4 area with safety belts and lanyards. This violation is substantially similar to theviolations charged in the previous investigation and, therefore, constitutes a repeatedviolation.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 scissor lift platform toprevent falling hazards. These violations are substantially similar to those violationscited in the previous investigation and are, therefore, repeated.4. The Secretary has not established a violation with respect to the unguarded metalstaging platform since this is a temporary platform properly characterized as a scaffoldand is in compliance with that standard.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 as repeated violations and apenalty 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 penaltyof $450.00 is hereby assessed.4. \”Other\” than serious Citation No. 3, item 1 isvacated.EDWIN.SALYERS JudgeDate: March 21 1983FOOTNOTES: [[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) Every open-sided floor or platform 4 feet or more above adjacent floor or groundlevel shall be guarded by a standard railing (or the equivalent as specified in paragraph(e)(3) of this section) on all open sides except where there is entrance to a ramp,stairway, or fixed ladder. The railing shall be provided with a toeboard wherever, beneaththe 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, includingpersonal protective equipment for eyes, face, head, and extremities, protective clothing,respiratory devices, and protective shields and barriers, shall be provided, used, andmaintained in a sanitary and reliable condition wherever it is necessary by reason ofhazards of processes or environment, chemical hazards, radiological hazards, or mechanicalirritants encountered in a manner capable of causing injury or impairment in the functionof any part of the body through absorption, inhalation or physical contact.[[3\/]] Mershon testified consistently and repeatedly that hisconcern was directed to the lack of fall protection for employees working on the roofsof the units. There is no evidence that he was even aware of a fall hazard while employeesworked on the adjacent felt rack platform.[[4\/]] Indeed, shortly after the fatality that led to thisproceeding, Cardinal abated the hazard by requiring its employees to use safety belts andlanyards attached to cables in the ceiling of the plant.[[5\/]] Previous cases have held that the platform guardingstandard at section 1910.23(c)(1) does not apply to a product being manufactured. GeneralElectric 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 now before us illustrates the impracticality of placingguardrails on a manufactured 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 his view, section1910.132(a) was not intended to protect against falls. Nor can be read to require the useof safety belts and lanyards. See Bethlehem Steel (concurring opinion).[[7\/]] In Diebold, Inc. v. Marshall, supra, theU.S. Court of Appeals for the Sixth Circuit found that the employer was in violation of anOSHA standard that required point of operation guarding on its press brakes. However, thecourt also found that a combination of factors had deprived the employer \”of aconstitutionally sufficient warning\” of the conduct that was required of it under thestandard. 585 F.2d at 1336. Under these circumstances, the court concluded, it would beinappropriate to penalize the employer for its past noncompliance with the standard, butproper to require compliance with the standard in the future. As a general rule,Commissioner Arey agrees with the Sixth Circuit’s \”prospective enforcement\”approach. Here, however, as indicated in note 4, supra, the violation had already beenabated by the time of the hearing. There is therefore no need to enter an abatement orderin this case. Accordingly, Commissioner Arey joins Chairman Buckley in vacating item 3 ofcitation 2.[[8\/]] Chairman Buckley agrees to apply Potlatch hereand find that Cardinal \”repeatedly\” violated the Act. However, it is his viewthat the Potlatch test’s interpretation of \”repeatedly\” to mean more thanonce appears 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 Container Co., 84 OSHRC 55\/A2, 12 BNAOSHC 1368, 1984-95 CCH OSHD ? 27,148 (No. 78-1539). He believes that Congress cannot haveintended to give \”repeatedly\” an interpretation so different from its commonmeaning of often repeated or occurring again and again. Jurgensen, 12 BNA OSHC at1896. Nevertheless, he will not reexamine Potlatch in this case because Cardinal has notasked for such a reexamination and because the Sixth Circuit, to which this case isappealable, has followed Potlatch. J.L. Foti Construction Co. v. OSHRC, 687F.2d[[9\/]] At the time of the 1982 inspection, section 1910.28provided, in pertinent part:? 1910.29 Safety requirements for scaffolding.(a) General requirements for all scaffolds.* * * (3) Guardrails and toeboards shall be installed on all open sides and ends of platformsmore 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 ofthis chapter are adopted as occupational safety and health standards under section 6 ofthe Act and shall apply, according to the provisions thereof, to every employment andplace of employment of every employee engaged in construction work.(b) Definition. For purposes of this section,\”construction work\” means work for construction, alteration, and\/or repair,including painting and decorating. See discussion of these terms in ? 1926.13 of thistitle.[[2]] Paragraphs (b) of both regulations are nearly identical.Section 1926.1051(b) states:? 1926.1051 Effective dates (specific).(b)(1) To the extent that the standards in this part [1926]apply to light residential construction, their application is delayed until September 27,1971, whereupon the standards shall apply to contracts subject to the Contract Work Hoursand Safety Standards Act which are advertised on or after that date and to such contractswhich may be negotiated when the negotiations commence on or after that date.(2) For the purpose of this paragraph, the term \”lightresidential construction\” is limited to the construction\” of homes andapartments which do not exceed three stories in height, and which do not have an elevator.[[3]] We are unconvinced by the Secretary’s other arguments.OMB’s Standard Industrial Classification Manual was never intended to interpretsect 1910.12 \”but was developed for use . . . for purposes of facilitating thecollection, tabulation, presentation and analysis of data.\” Id. at p. 9. Although theCommission discussed whether violations of the general industry standards occurred in FleetwoodHomes 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 whenit examined the question of what standards in Part 1910 are preempted by those in Part1926. OSHA has published an \”Identification of General Industry Safety and HealthStandards (29 C.F.R. Part 1910) Applicable to Construction Work,\” 44 Fed. Reg. 8577(1979), listing the standards in Part 1910 that apply to construction work. Although OSHAidentified sections 1910.23(b)(5) and 1910.132(b) and (c) as applicable, it did not listsections 1910.23(c)(1) or 1910.132(a), the standards cited here. We intimate no opinion,of course, on whether OSHA’s statements on the applicability of other general industrystandards are correct.[[1]]The Part 1926 counterparts of these standards are SubpartI, \”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 factthat Cardinal’s employees cut lumber and other materials, which they use in assemblingfloors, walls, and roofs; the employees also install doors and windows. The only testimonypertaining to plumbing work is the compliance officer’s mention of bathroom facilities andkitchens and the only actual reference to electrical wiring appears in a statement byCardinal’s counsel at the hearing that Cardinal installs electrical circuits in eachmodular unit. Since the units are intended for final assembly at the site where they willbe used, it would appear that the units leave Cardinal’s facility with all interior wiringand plumbing completed. Part 1910 contains no standards expressly governing work on roofs. Compare section1926.451(u)(3) (sloped roofs), section 1926.500(b) (roof openings) and section 1926.500(g)(low-pitched roofs). However, it is apparent on the record here that the assembly of theroof portion of the modules involves nothing more than basic carpentry and labor skillsand, with the possible exception of felt and shingles, materials similar to those used infabricating other portions of the module structure. Therefore, the fact that the modulesinclude a finished roof surface is not in itself a distinction sufficient to justifyapplying the construction standards rather than general industry standards to Cardinal’soperation.[[3]]The majority correctly notes that jobs which in themselvesdo not constitute construction work may nevertheless justify application of theconstruction standards if they are directly and integrally related to the performance ofconstruction work. See United Geophysical Corp., 81 OSHRC 77\/D6, 9 BNA OSHC 2117,2121, 1981 CCH OSHD ? 25,579, p. 31,905 (No. 78-6255, 1981), aff’d without publishedopinion, 683 F.2d 415 (5th. Cir. 1982). However, the converse is also true. Jobs thatcould be regarded as construction type work are not controlled by the constructionstandards when they are performed solely as part of a non-construction operation. RoyalLogging Co., 79 OSHRC 84\/A2, 7 BNA OSHC 1744, 1979 CCH OSHD ? 23,914 (No. 15169,1979). aff’d, 645 F.2d 822 (9th Cir. 1981).[[4]] The majority concludes that the type of work performed byCardinal falls within the definition of \”light residential construction\” setforth in sections 1910.17(b) and 1926.1051(b). However, the two provisions pertaining to\”light residential construction\” on which the majority relies simply refer to\”construction\” without defining that term or otherwise giving an indication ofits meaning in the context in which it is used. It is even questionable whether themodular units Cardinal produces can appropriately be characterized as \”lightresidential\” as the majority implies. Cardinal’s plant engineer testified that theunits it builds are primarily used in apartments and motels and occasionally houses. Seethe discussion in the text infra. Motels would not appear to constitute a\”light residential\” form of housing as that phrase is defined at sections1910.17(b)(2) and 1926.1051(b)(2).[[5]]The majority’s reference to construction work performedwithin pre-existing structures is inapposite. The question in this case is not whethercertain construction work may be performed indoors or inside a completed structure butrather whether a facility that merely assembles components of a housing unit without anyconnection to the site of their eventual 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 MotorsCorp., 85 OSHRC ______, 12 BNA OSHC 1324, 1985 CCH OSHD ? 27,257 (No. 80-5439, 1985)(construction standards cited for trench dug in the floor of a manufacturing plant for theinstallation of a trough to collect oil from machinery). That, however, is not the issuebefore us here.[[6]] For example, Subpart 0 (sections 1926.600-.606), entitled\”Motor Vehicles, Mechanized Equipment, and Marine Operations,\” imposesrequirements for vehicles and other equipment used in site preparation, such as dumptrucks (section 1926.601), earthmoving and other excavation equipment (section 1926.602),and pile driving equipment (section 1926.603). Other standards involving site preparationinclude the provisions at section 1926-602(a)(3) pertaining to access roadways and grades;section 1926.604 governing site clearing; and Subpart P, entitled \”Excavations,Trenching, and Shoring,\” which imposes requirements for sloping and shoring andprotecting employees from other hazards present at trenches and excavations. The erectionof structures on site is governed by such standards as those in Subpart Q, \”Concrete,Concrete Forms, and Shoring\”; Subpart R, \”Steel Erection\”; and Subpart S.\”Tunnels and Shafts, Caissons, Cofferdams, and Compressed Air.\” [[7]] See note 1 of the majority opinion. Although the Secretary did not adoptsection 1926.13 under the OSH Act, he expressly referred to section 1926.13 for thedefinition of the term \”construction,\” and plainly considered that regulationrelevant for the purpose of determining what constitutes construction work under the OSHAct. The Secretary declined to adopt section 1926.13 and other rules interpreting theConstruction Safety Act because they included a restriction on the class of employerssubject to the Construction Safety Act. Since the OSH Act applies to all employees engagedin a business affecting interstate commerce, the Secretary concluded that the limitationof the Construction Safety Act to \”contractors and subcontractors\” would beinappropriate under the OSH Act. Thus, the Secretary stated that \”the incorporationby reference of Part 1926 in ? 1910.12 is not intended to include references tointerpretative rules having relevance to the application of the Construction Safety Actbut having no relevance to the application of the Occupational Safety and HealthAct.\” See New England Telephone & Telegraph Co.,4 BNA OSHC 1838, 1976-77CCH 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, 1975-76 CCH 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 section 107 of the [Construction Safety]Act [is] also used in section 1 of the Davis-Bacon Act (40 U.S.C. 276a), providing minimumwage protection on Federal construction contracts, and section 1 of the Miller Act (40U.S.C 270a), providing performance and payment bond protection on Federal constructioncontracts.\” That section goes on to express the Secretary’s determination that\”[t]he use of the same or identical terms in these statutes which apply concurrentlywith 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 distinction between constructionand manufacturing expressed in section 1926.13(c).Thus, 29 C.F.R. ? 5.2(i) defines theterms \”building\” and \”work\” to include \”construction activity asdistinguished from manufacturing, 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 or equipment on thesite of the building or work. . . .\” (emphasis added). Under section 5.2(1)(i)\”site of the work\” is expressly limited to \”the physical place or placeswhere the Construction called for in the contract will remain when work on it has beencompleted\” and to \”other adjacent or nearby property . . . which can reasonablybe said to be included in the ‘site.’\” \”Fabrication plants\” in particular\”are part of the ‘site of the work’ provided they are dedicated exclusively, ornearly so, to the performance of the contract or project, and are so located in proximityto the actual construction location that it would be reasonable to include them.\”[[9]] Thus, employers in manufacturing industries as designatedby their SIC codes are scheduled for inspection according to the injury rate for eachindustry having an injury rate greater than the national average. See Phoenix ForgingCo., 85 OSHRC ________,12 BNA OSHC 1317, 1985 CCH OSHD ? 27,256 (No. 82-398, 1985).Employers in construction industries are distinguished from those in manufacturing becauseall construction industries have an injury rate in excess of the national average and thusqualify for inspection under the Secretary’s program to concentrate inspections in themost hazardous industries.[[1\/]] The standard at 29 C.F.R. ? 1910.23(c)(1) states asfollows:(c) Protection of open-sided floors, platforms, and runways (1) Every open-sided floor or platform 4 feet or more above adjacent floor or ground levelshall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3)of this section) on all open sides, except where there is entrance to a ramp, stairway, orfixed ladder. The railing shall be provided with a toeboard ….[[2\/]] Respondent was also issued one serious, one repeated andseveral \”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 changestandards is not made clear in the record except for counsel’s statement that theoriginally cited standard may not be \”appropriate for the fact situation\” (Tr.7).[[4\/]] Hereafter, this item will be referred to as repeatCitation No. 2, item 3, as was used during the course of the hearing and in the briefs ofthe parties.[[5\/]] No motions were made in this regard during the hearingor thereafter.[[6\/]] Respondent took no steps to provide protection untilafter the fatal accident when safety cables, belts and lanyards were obtained and utilized(Tr. 226-227).[[7\/]] The scaffolding standard is found at 29 C.F.R. ?1910.28(3) and provides as follows:Guardrails and toeboards shall be installed on all open sides and ends of platforms morethan 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 and illnesses provided forunder ? 1904.2, each employer shall have available for inspection at each establishmentwithin 6 working days after receiving information that a recordable case has occurred, asupplementary record for each occupational injury or illness for that establishment. Therecord shall be completed in the detail prescribed in the instructions accompanyingOccupational Safety and Health Administration form OSHA No. 101. Workmen’s compensation,insurance, or other reports are acceptable alternative records if they contain theinformation required by Form OSHA No. 101. If no acceptable alternative record ismaintained for other purposes. Form OSHA No. 101 shall be used or the necessaryinformation shall be otherwise maintained. \u00a0″