“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 7909 CARR ERECTORS, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0June 4, 1976\u00a0BEFORE BARNAKO,Chairman; MORAN and CLEARY, Commissioners.MORAN,Commissioner:Adecision of Review Commission Judge Charles K. Chaplin, dated February 24,1975, is before this Commission for review pursuant to 29 U.S.C. ? 661(i). Bythat decision, attached hereto as Appendix A,[1]respondent was found not to be in violation of 29 U.S.C. ? 654(a)(2) forfailure to comply with occupational safety and health standards codified at 29C.F.R. ??\u00a01926.105(a) and 1926.500(d)(1). We affirm that disposition.Reviewof this case was directed on March 17, 1975, on the following issue:?Whether theAdministrative Law Judge erred in finding that respondent complied with theprovisions of the standard at 29 C.F.R. ? 1926.105(a)??\u00a0Inaddition, respondent argues that the direction for review was untimely under 29U.S.C. ? 661(i) and should therefore be dismissed.Wehave previously considered the latter issue under similar circumstances in Secretaryv. Rob?t. W. Setterlin and Sons Company, OSAHRC Docket No. 7377, May 11,1976. We adhere to our holding in that case. Consequently, we find that thedirection for review in this case was timely because it was executed beforeMarch 26, 1975, the date on which the Judge?s decision would otherwise havebecome a final order of the Commission. 29 U.S.C. ? 661(i).Furthermore,we hold that the Judge correctly vacated the citation for noncompliance with ?1926.105(a), which provides as follows:Safety nets shall beprovided when workplaces are more than 25 feet above the ground or watersurface, or other surfaces where the use of ladders, scaffolds, catchplatforms, temporary floors, safety lines or safety belts is impractical.?Althougha safety net was not provided, the two employees involved were working from a?pic,? described by complainant as an ?aluminum, ladder-type platformapproximately 20 feet long and 20 to 25 inches wide.? Inasmuch as the employeeswere provided with and used an alternative safety device contemplated by thestandard, a violation of ? 1926.105(a) for failure to provide safety nets hasnot been established. Brennan v. OSAHRC and Ron M. Fiegen, Inc., 513F.2d 713 (8th Cir. 1975); Brennan v. OSAHRC and J. W. Bounds (Pearl SteelErection Co.), 488 F.2d 337 (5th Cir. 1973); Secretary v. Rob?t W.Setterlin and Sons Company, supra.Accordingly,the Judge?s decision is affirmed.?FOR THE COMMISSION:?William S. McLaughlinExecutive SecretaryDATED: JUN 4, 1976?CLEARY,Commissioner, DISSENTING:Irespectfully dissent.Therelevant citation issued to the employer described the alleged violation ofsection 1926.105(a) as follows:1926.105(a):?Failure to provide safety nets when workplaces are more than 25 feet above theground or water surface, or other surfaces where the use of ladders, scaffolds,catch platforms, temporary floors, safety lines or safety belts is impractical.e.g. During the inspection, one employee was observed walking across an I beam10 to 12 inches wide, 62 feet long and 42 feet in height from the groundwithout any type of protection being provided to prevent his falling nor was asafety net installed. e.g. During the inspection, four other employees wereobserved walking horizontal I beams at different areas 42 feet from the groundwithout any type of safety equipment being installed to prevent their falling.??Theevidence shows that two employees were walking on I-beams while unprotected bysafety nets, ladders, scaffolds, catch platforms, temporary floors, and safetylines or belts. The majority, however, focuses only on the fact that the twoemployees were working from a ?pic,? a portable, aluminum, ladder type device,20 inches wide, which was placed horizontally upon and between two roof beams.The majority holds that the ?pic? is an alternative safety device contemplatedby the cited standard. They do so even though the ?pic? had no guardrail ortoeboard. The Administrative Law Judge held that the use of a guardrail andtoeboard would render the performance of the work impossible and therefore werenot required.[2]Themajority loosely describes the ?pic? as a ?ladder-type standard. The ?pic?bears only a superficial standard. The ?pic? bears only a superficialresemblance to a ladder. I would hold that it is not a ?ladder? under thestandard,[3]and that it does not come within any of the other regulatory terms. I readsection 1926.105(a) as requiring the protection of employees by at least one ofthe devices specified in the standard. Brennan v. Southern ContractorsService, 492 F.2d 498 (5th Cir. 1974).Evenif the ?pic? could be fairly characterized as a ?ladder? or compassed by anyother term in section 1926.105(a). I would consider it to be ?impractical?.Without the use of guardrails and toeboards it provides no protectionwhatsoever to employees from the hazard of falling. If the word ?impractical?has any meaning at all under the standard, it would seem to bar a device havinglittle or no safety value. Contra. Brennan v. O.S.H.R.C. and Ron Fiegen, Inc.,513 2d 713 (8th Cir. 1974).Finally,the employer argues that it is complying with section 1926.105(a) by requiringthe use of safety belts. The briefs of both parties suggest that the crucialissue that should be decided in this case is whether the employer has done allthat was possible to require the use of safety belts. The majority ignores theissue.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 7909 CARR ERECTORS, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINAL ORDERDATE: March 26, 1975APPEARANCES:WilliamCurphey, III, Esq. For ComplainantR.Larry Schneider, Esq. For RespondentDECISIONAND ORDERCharles K.Chaplin, Judge:Thisis a proceeding pursuant to section 659 of the Occupational Safety and HealthAct of 1970 (29 U.S.C. 651 et seq., hereafter the Act) wherein the respondentcontested both the fact of violations as well as the total proposed penalty of$650 for alleged serious violations of section 5(a)(2) of the Act by failing tocomply with the standards codified at 29 CFR 1926.105(a) and 1926.500(d)(1).Thestandard at 1926.105(a) provides:Safety nets shall beprovided when workplaces are more than 25 feet above the ground or watersurface, or other surfaces where the use of ladders, scaffolds, catchplatforms, temporary floors, safety lines, or safety belts is impractical.\u00a0Thestandard at 1926.500(d)(1) provides:?Every opensidedfloor or platform 6 feet or more above adjacent floor or ground level shallbe guarded by a standard railing, or the equivalent . . . The railing shall beprovided with a standard toeboard . . .? (Emphasis added)\u00a0Thecitation, issued May 6, 1974, after a May 1, 1974, inspection, described thealleged violations as follows:1926.105(a):?Failure to provide safety nets when workplaces are more than 25 feet above theground or water surface, or other surfaces where the use of ladders, scaffolds,catch platforms, temporary floors, safety lines or safety belts is impractical.e.g. During the inspection, one employee was observed walking across an I beam10 to 12 inches wide, 62 feet long and 42 feet in height from the groundwithout any type of protection being provided to prevent his falling nor was asafety net installed. e.g. During the inspection, four other employees wereobserved walking horizontal I beams at different areas 42 feet from the groundwithout any type of safety equipment being installed to prevent their falling.??1926.500(d)(1):?Failure to guard every opensided floor or platform 6 feet or more aboveadjacent floor or ground level by a standard railing, or equivalent. Therailing shall be provided with a standard toeboard wherever, beneath the opensides persons can pass, or there is moving machinery, or there is equipmentwith which falling materials could create a hazard. e.g. Two employees wereobserved working on an unsecured ladder-type platform approximately 18 to 20inches wide, with a drop of 42 feet laying across two steel I beams without anyguardrails and toeboards installed on all opensides and ends.?THE ABOVE TWO ITEMSTOGETHER CONSTITUTE AN ALLEGED SERIOUS VIOLATION?\u00a0Duringthe hearing respondent made motions to dismiss both alleged violations. Thesemotions are denied.Complainant?smotion, also made during the hearing, to amend the pleadings in the alternativeto a charge under 1926.750(b)(ii) is denied because the untimeliness thereofwould clearly prejudice respondent, and this subpart is inapplicable under thecircumstances here.THEEVIDENCETheparties have stipulated that respondent is an employer within the meaning ofsection 652 of the Act and employs approximately 14 employees in and about itsaforesaid worksite; in addition, that respondent?s construction businessaffects commerce within the meaning of section 3(3) of the Act. Furthermore,relation to the charge under 1926.105(a), respondent stipulated that there wasno safety net at the worksite during the time of the inspection.Theunrebutted evidence developed upon the record shows that on May 1, 1974,respondent?s employees were working on a one-story cement bulk plant located at2930 Crescentville Road, Sharonville, Ohio (Tr. 31, also see the complaint andanswer hereunder). Five employees were working on the roof which was 41?42 feetabove ground level (Tr. 33, 44, 70?71). Of these five, three employees were?tied off,? while the remaining two used no apparent safety devices (Tr. 44)even though they had been provided with and instructed to use safety belts andlines (Tr. 59?61, 67, 73, 83). The inspector testified that some type of safetyline would have been acceptable in lieu of the use of safety nets (Tr. 96). Healso testified that at various times he saw two men not wearing any safety beltor line, walking on the ?I? beams and working from an aluminum ladder typeplatform having no handrail or toeboard (Tr. 34, 36?39, Exhibits C?2 throughC?8, and C?10). However, respondent?s employee ironworker, Paul M. Kates,testified that no work could have been accomplished had a handrail or toeboardbeen attached thereto (Tr. 74?75).ISSUESTheissue is whether there is a preponderance of the evidence[4]showing respondent is in violation of the charged standards.DISCUSSIONRespondenthas been charged with a violation of 1926.105(a). That standard makes itmandatory that safety nets be provided upon two findings: (1) the workplace ismore than 25 feet above the ground, and (2) the use of listed alternativesafety measures is impractical. Clearly, the failure to so do, i.e., to not usethe alternative listed safety devices when practical and no safety net is provided,under said conditions demands finding a violation thereunder. Brennan v.Southern Contractors Service, 492 F2d 498, 501 (5th Cir. 1974). However,when a listed alternative is practical and used, no violation can be found. Brennanv. Occupational Safety and Health Review Commission, 488 F2d 337 (5th Cir.1973).Here,the evidence establishes that five of respondent?s employees were working morethan 25 feet above the ground. Though no safety net had been provided, all ofthe employees had been given safety lines and belts together with instructionsrequiring the use thereof. This use was a practical alternative to providing Asafety net. On the day of the inspection, three of them were wearing thesesafety devices.Basedon this evidence, I can not conclude respondent is in violation of thestandard. As required, respondent has provided practical safety devices whichwere used. Section 5 of the Act requires both employers and employees to complywith standards promulgated thereunder. The record here establishes that therespondent has done what 1926.105(a) demands of it. The two employees actingcontrary to their fellow workers and instructions must also acceptresponsibility for adhering to these requirements. Furthermore, to find aviolation in the face of this evidence would, in essence, make the respondentan absolute guarantor or insurer that its employees will observe all theSecretary?s standards at all times. This would be contrary to the holdings ofthis Commission. See Secretary v. Standard Glass Co., 1 OSAHRC 594(Docket No. 259, July 27, 1972).Therefore,because practical alternative safety devices were provided and used, I concludeno violation can be found under the charged standard.Respondentwas also charged with a violation of 1926.500(d)(1). That standard requires aguardrail and toeboard on platforms that are six feet or more in height abovethe working surface. Considering the definition of ?platform? in 1926.502(e),[5]I am of the opinion that the aluminum ladder type platform in question soqualifies. However, such a finding does not inevitably mean a violation must befound therefrom. Only when the use of protective measures, such as thosedescribed in the standard, does not severely disrupt or make impossible theperformance of work can there be such a finding. Secretary v. MohawkManufacturing Co., 1 OSAHRC 520 (Docket No. 608, July 7, 1972); Secretaryv. Deluca Construction Co., 2 OSAHRC 435 (Docket No. 1225, February 9,1973); Secretary v. LaSala Contracting Co., 2 OSAHRC 976 (Docket No. 1207,March 28, 1973); See Secretary v. Tilo Co., 2 OSAHRC 1391 (Docket No.211, April 27, 1973); Secretary v. Masonry, Inc., 5 OSAHRC 524 (DocketNo. 2693, December 6, 1973; Secretary v. W.B. Meredith II, Inc., 9OSAHRC 245 (Docket No. 810 June 7, 1974).Nosuch finding can be made here. In fact, the unrebutted evidence clearlyestablishes that the performance of the work would not have been possible fromthe aluminum ladder type platform if it was equipped with a handrail ortoeboard. Upon so concluding, no violation can be found.FINDINGSOF FACT1.On May 1, 1974, respondent was in the process of constructing a cement bulkplant located at 2930 Crescentville Road, Sharonville, Ohio.2.Five of its employees were working on the roof thereof with no safety net beingprovided or used.3.This roof was 41?42 feet above the ground.4.All of these employees were provided with and instructed to use safety beltsand lines.5.Three of them were using safety belts and lines on the day in question; however,two were not using any of the provided safety equipment.6.Under these circumstances, the provided and used safety devices were practicalwithin the meaning of 1926.105(a).7.On the roof of subject building some of the employees were working from analuminum ladder type platform.8.This platform is of such a type as to be subject to the requirements under1926.500(d)(1).9.The platform had no guardrail or toeboard.10.Because of the physical characteristics thereof, no work could have been performedif it was so equipped.CONCLUSIONSOF LAW1.Respondent is, and was at all times, relevant to the issues herein, engaged ina business affecting commerce within the meaning of section 652 of the Act.2.Respondent is, and was at all times herein mentioned, an employer within themeaning of section 652 of the Act and subject to the provisions of sections 653and 654 thereof and standards authorized by section 655.3.Respondent was not in violation of section 654 of the Act for failure to complywith occupational safety and health standards codified at 29 CFR 1926.105(a)and 1926.500(d)(1).Itis hereby ORDERED:Thatthe citation for two serious violations herein and civil penalty proposedtherefor, dated May 6, 1974, and directed to the respondent, are vacated.?CHARLES K. CHAPLINJudge, OSAHRCDated: February 24, 1975Washington, D.C.[1] Chairman Barnako does not agree to this attachment.[2] This holding of the Judgeis not before us.\u00a0[3] A ladder has been aptlydefined as an appliance which rises at an angle and is used for ascending ordescending to and from a desired height. See Streetman v. Andress Motor Co.,189 So. 321, 324 (La. App. 1939); Cole v. List & Weatherly Constr. Co.,156 So. 88, 90 (La. App. 1934); Washburn v. Skogg, 204 Wis. 29, 233 N.W.764, 766 (1930); Montgomery Ward & Co. v. Snuggins, 103 F.2d 458,462 n.3 (8th Cir. 1939); Davis v. Duss Machine Works, 169 Mich. 498, 135N.W. 303, 304 (1912).[4] See Secretary v. ArmorElevator Co., 5 OSAHRC 260 (Docket No. 425\/426, November 20, 1973).[5]1926.502(e) definesplatform as ?[a] working space for persons, elevated above the surroundingfloor or ground . . . for the operation of machinery and equipment.”