“SECRETARY OF LABOR,Complainant,v.CURT BULLOCK BUILDERS, INC.,Respondent.OSHRC Docket No. 82-0065_DECISION_Before: BUCKLEY, Chairman; and CLEARY, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\” the Act\”). The Commissionis an adjudicatory agency, independent of the Department of Labor andthe Occupational Safety and Health Administration (\”OSHA\”). It wasestablished to resolve disputes arising out of enforcement, actionsbrought 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).The Secretary has petitioned for review of a decision by CommissionJudge Edwin G. Salyers vacating two alleged serious violations andchanging the characterization of two others, one to _de_ _minimis_ andone to nonserious. The standards require guarding of platforms, saws,sprocket wheels and chains, and grounding of electrical equipment. Thetwo Commissioners are divided on the disposition of the four items.[[1]] As a result, they have agreed to vacate the direction for review,making the judge’s decision the final order of the Commission._Citation 1 , Item 1: unguarded storage area_Curt Bullock Builders, Inc. (\”Bullock\”), manufactures prefabricatedgarages at its plant in Springfield, Ohio. Inside the maintenancegarage there is a tool crib, approximately 13 feet long and 7 feet wide,with a flat roof about 8-1\/2 feet above the concrete floor of thegarage. The tool crib’s roof is used as a storage surface forlight-weight materials such as quick drying compound and automotivefilters. Automotive filters are stored on the edge of the crib roof,while the quick dry compound, which is removed infrequently, is storedat the rear of the roof. Employees reach the storage surface with a6-foot stepladder. The alleged violation involves the absence ofguardrails and toeboards around the open sides of the storage surface.[[2]]The compliance officer who inspected the plant on behalf of theSecretary did not see any employees on the roof of the tool crib.However, on the basis of conversations with two employees, he testifiedthat employees would climb up to the roof on the ladder once a week atthe most to remove automotive filters, or in special situations whenthey stocked the area with floor drying materials. He understood thatemployees had been on top of the tool crib the week of the inspection toobtain floor drying material. However, the compliance officer furthertestified that the plant manager told him during the inspection that theroof was not a work area and that employees went there only to place orremove material. Further explaining this during the hearing, the plantmanager testified that employees went on top of the tool crib once ayear to stock quick drying compound and occasionally to remove it. Because the automotive filters were stored at the edge of the roof, theemployees did not need to leave the ladder and go onto the roof to storeor remove the filters.The judge concluded that the tool crib roof was a \”platform\” underCommission precedent construing the cited standard and ?1910.21(a)(4).[[3]] He found noncompliance with the cited standard butfound it _de_ _minimis_ \”since employee exposure to the hazard was bothinfrequent and of short duration.\”Commissioner Cleary would agree with the Judge to the extent he foundthe roof was a platform and that ? 1910.23(c)(1) was violated. The topof the structure was 8 1\/2 feet above a concrete floor, and was astorage area. While it is arguably true that the amount of use may havesome bearing on whether or not the area should be considered a platformunder the definition in the standard, this was an area that wasaccessible for the placing and removal of materials used in theemployer’s business. The frequency of use is not established by thisevidence and must remain a matter of conjecture.The testimony of the employer seems to be that materials are stocked andremoved infrequently, but it is not reasonable to assume that materialswould be stored for up to a year without being utilized in the processof manufacturing the garage doors. The Commission has a \”responsibilityto be ‘reasonable’ in interpreting the standards cited in cases beforeit.\” _Globe Industries, Inc_., 82 OSAHRC 24\/D4, 10 BNA OSHC 1596, 1598,1982 CCH OSHD ? 26,048, pp. 32,718-19 (No. 77-4313, 1982). In thatcase, involving cleaning of rollers on conveyor belts which wereapproximately 5 feet high and 7 feet, 9 inches wide, the Commission heldit would not be reasonable to construe the belts as platforms. Thesewere simply conveyors, not platforms as the term is commonly understood,and in view of the totality of the facts, the Commission vacated.In the instant case, Commissioner Cleary concedes exposure to a hazardmay be brief, but it involves a possible fall of 8 1\/2 feet to aconcrete floor, and it would require a very minimum of effort andexpense to erect a guardrail. In _Globe Industries_, the ordinaryemployer would not visualize the belts as platforms, but here there isnothing to distinguish this structure from a working platform exceptpossibly a low frequency of use. Looking at the totality of thecircumstances he would regard it as a platform.Commissioner Cleary, unlike the Judge, would find a serious violation. The fact that exposure to the hazard was infrequent and of shortduration does not render a violation _de_ _minimis_ if serious injury ispossible. Brevity of exposure goes only to penalty assessment. Aviolation is serious if an accident is possible and death or seriousphysical harm would be the probable result of an accident. _E.g_., _H.H. Hall Construction Co_., 81 OSAHRC 91\/D12, 10 BNA OSHC 1042, 1047,1981 CCH OSHD ? 25,712 (No. 76-4765, 1981); _see_ _also_ _FrankSwidzinski Co._, 81 OSAHRC 4\/E14, 9 BNA OSHC 1230, 1981 CCH OSHD ?25,129 (No. 76-4627, 1981). The testimony establishes that a fallinghazard of 8 1\/2 feet to a concrete floor existed and that multiplefractures would be the probable result of a fall.[[4]] Thus,Commissioner Cleary would would affirm the violation as serious.Chairman Buckley would vacate this item because the storage surface wasnot a platform under the cited standard.[[5]] Section 1910.21(a)(4)defines a platform as an elevated working space, such as one for theoperation of machinery and equipment or analogous functions. The term\”working space\” and the examples given implicitly require employeepresence for a length of time.\”An elevated flat surface does not automatically become a ‘workingspace’ and a ‘platform’ merely because employees occasionally set footon it while working.\” _General Electrical Co. v. OSHRC_, 583 F.2d 61,64 (2d Cir. 1978) (surface on which infrequent maintenance functionswere done was not a \”platform\”). The Commission has noted that thisstandard must be interpreted in a reasonable manner, consistent withcommonsense understanding of the language of the standard, so thatemployers can understand and have fair notice of the required conduct. _Globe Industries_. The definition of \”platform\” as a \”working space\”cannot reasonably apply to the storage surface here. As the Commissionobserved in _Globe_, the defined term \”platform\” would be stretchedbeyond common understanding and the plain meaning of the definitioncontained in the standard if the performance of infrequent work on anysurface four feet above the ground were enough to require guarding. Thestorage surface atop the tool crib was not designed for employees tostand on for substantial lengths of time as they would when operatingmachinery and equipment. Nor was the surface used as a \”working space.\” The area was used only for storage, with very brief, infrequent employeetrips onto it.[[6]]_Citation 1, Item 8(b): unguarded sprocket wheels and chains [[7]]_The compliance officer testified that an unguarded chain and sprocketwheel were located about 6 feet above ground level on a scrap conveyoradjacent to a scrap bin. He testified that the driver who emptied thebin with a forklift truck possibly could be exposed to the unguardedparts if he were to get off the forklift for some reason. However,Bullock’s plant manager testified that the unguarded parts were 6 feet8-1\/4 inches above the ground, that employees do not use the entrancenear the conveyor under normal circumstances and that they would have nooccasion to go near the unguarded parts except during maintenance andrepairs, when the machine would not be operating. The judge found aviolation but termed it nonserious \”in view of the unlikely exposure ofemployees to this hazard.\”Commissioner Cleary agrees there was a violation but considers itserious. In his view, the issue directed for review was limited towhether the violation was serious or nonserious.[[8]] He would find itserious because the compliance officer testified without rebuttal thatserious injury (amputation of fingers) would be the likely result if anemployee’s hand were caught in the unguarded parts while they were inmotion. The judge’s finding of a nonserious violation was inconsistentwith Commission precedent, under which the degree of likelihood of anaccident is irrelevant. A violation is serious if an accident couldoccur and the probable result would be death or serious physical harm. _E.g_., _Frank Swidzinski_.Commissioner Cleary also finds that employees had sufficient access tothe hazards to warrant finding a violation. It is inappropriate to basedecisions on machine guarding issues on speculation as to what mightmotivate an employee to approach an unguarded area. The fact thatemployees worked in the vicinity of the unguarded parts is enough torequire compliance with the cited standard. _See_, _e.g_., _CarpenterContracting Corp_., 84 OSAHRC ____, 11 BNA OSHC 2027, 2030 n. 3, 1984CCH OSHD ? 26,950, p. 34,564 n. 3 (No. 81-838, 1984)(Cleary,Commissioner, dissenting).[[9]]Chairman Buckley would reverse the judge’s decision and vacate this itembecause he finds that the Secretary failed to prove that employees wouldever be in the zone of danger. _Carpenter Contracting_ (the Secretarymust establish that it is reasonable to predict or anticipate thatemployees will be, are, or have been at risk as a result of theviolation); _Todd Shipyards Corp_., 84 OSAHRC ____, 11 BNA OSHC 2177,2181, 1984 CCH OSHD ? 27,001, p. 34,744 (No. 77-1598, 1984)(ChairmanBuckley, concurring)(an employer may comply with Act’s requirements bycorrecting violative conditions or by limiting employee access to suchconditions.) The only substantial testimony of potential employeeexposure to the unguarded parts was during maintenance and repairs, butat that time the machine would not be operating. Thus, the allegedhazards would not exist at that time. The remaining testimony is purespeculation. The compliance officer stated that the driver who emptiedthe large scrap bin adjacent to the unguarded parts might possiblyapproach them but did not indicate any factual basis for thatconclusion. Also, although employees occasionally entered the buildingnear the other side of the wide scrap conveyor, those employees’ pathswould not take them past the side with the unguarded parts. It was nota work area or passageway for them._Citation 1, Item 9: unguarded circular saws[[10]]_The compliance officer observed two portable electric circular woodsaws with their lower blade guards wired to prevent the guards fromreturning and covering the blades after a cut. The saws were used fortrimming and notching the gables of the garages. Bullock argued thatemployees had wired the guards back without its knowledge. The judgeagreed, noting that the compliance officer found them on the second dayof his inspection after Bullock’s plant manager had the entire buildinginspected to be certain that no more violations would be found. Thejudge vacated the item accordingly.Chairman Buckley would affirm the judge’s decision that the Secretarydid not prove employer knowledge. The Secretary must prove by apreponderance of the evidence that Bullock knew or reasonably could haveknown of the existence of the violative conditions. _ScheelConstruction Co_., 76 OSAHRC 138\/D6, 4 BNA OSHC 1824, 1826-27, 1976-77CCH OSHD ? 21,263, p. 25,560 (No. 8687, 1976). Because there is noallegation or proof that Bullock actually knew that the guards were tiedback, the Secretary must demonstrate that a reasonable diligent employerin Bullock’s position would have discovered the violation. Here theSecretary simply asserted, without support, that Bullock could havediscovered the violative condition. The record supports the oppositeconclusion. The plant manager testified that an intensive inspectionhad been done under his direction the night before the complianceofficer found the guards wired back, and that the conditions had notbeen found. Such an intensive inspection certainly qualifies Bullockas reasonably diligent under any definition of those terms. TheSecretary offered no evidence as to what more Bullock could have done,or why the inspection conducted was not reasonable or diligent. Becausethe condition was not discovered, it can only be concluded that areasonably diligent employer, Bullock, could not have discovered theviolation. Thus, Chairman Buckley concludes that the Secretary has notproven that Bullock knew or reasonably could have known about the wiringback of the guards.Commissioner Cleary would affirm a serious violation. It is appropriategenerally to presume that violative conditions observed by a complianceofficer have existed for a sufficient period that the employer couldhave discovered them before the inspection with the exercise ofreasonable diligence. Unless the conditions by their nature changerapidly, this is the most reasonable assumption. Also, the employergenerally is in a better position than the Secretary to present evidenceon whether the conditions previously existed. In the usual caseCommissioner Cleary would presume that violative conditions could havebeen discovered with the exercise of reasonable diligence, absentevidence overcoming the presumption. _See_ _Hermitage Concrete PipeCo_., 82 OSAHRC 14\/A2, 10 BNA OSHC 1517, 1520, 1982 CCH OSHD ? 25,975,pp. 32,574-75 (No. 4678, 1982); _Lewis v. Baker_, 526 F.2d 470, 474-75(2d Cir. 1975); _Girardi v. Gates Rubber Co. Sales Div., Inc_., 325 F.2d196, 203-04 (9th Cir. 1963); _cf_. _McFarland v. Gregory_, 425 F.2d 443(2d Cir. 1970).Bullock’s inspection the night before the compliance officer saw theguards wired back does not rebut the presumption. The plant managertestified that he never checked the lower blade guards on his periodicshop safety tours and that he had \”no idea\” how long they had been wiredback. Moreover, Bullock was on notice from employee complaints thatthey had long considered the guards to be a hindrance, if not; a hazard,when in place. To find for the employer here, one would have to assumethat someone wired back the guards between the time of the employer’sinspection the night before and the compliance officer’s inspection thenext day–an unlikely circumstance.[[11]] The testimony establishedthat the wired-back guards were in plain view. Based on thepreponderance of the evidence, Commissioner Cleary concludes that theSecretary has shown that Bullock could have discovered the violativeconditions with the exercise of reasonable diligence. _AstraPharmaceutical Products Inc_., 81 OSAHRC 79\/D9, 9 BNA OSHC 2126, 1981CCH OSHD ? 25,578 (No. 78-6247, 1981), _aff’d_, 681 F.2d 69 (1st Cir.1982). Considering the hazards of serious lacerations or amputation offingers that existed, Commissioner Cleary would find a serious violation._Citation 1, Item 10: ungrounded electrical equipment [[12]]_The compliance officer found two ungrounded refrigerators as well as aportable drill that was not properly grounded, by using what he called a\”field bi-medical probe.\”[[13]] The refrigerators had been brought tothe plant by employees for their personal use and the portable drill wasalso the property of an employee. The judge vacated the item for lackof knowledge because the conditions were not apparent without the use ofa sophisticated device.Chairman Buckley would affirm the judge’s decision. Bullock’s plantmanager testified that he had never seen an instrument like the \”fieldbi-medical probe\” which the compliance officer had used to detect eachalleged violation. The plant manager further testified that he did notknow of the ungrounded condition of the portable drill or therefrigerators. Concerning the portable drill, he stated that he wasnot aware that the employee had brought it into the workplace and thatonly the employees working on construction crews erecting theprefabricated garages on sites owned or chosen by customers — not theemployees in this plant — supplied their own tools. The complianceofficer learned from conversations with employees during the inspectionthat the portable tool had been used, but there was no evidence showinghow long the tool had been present in the workplace or how often it wasused. Without such evidence indicating how Bullock could reasonably beexpected to have discovered the ungrounded tool, the Secretary has notestablished knowledge.The record is similarly sparse regarding the refrigerators. For theirown use in their break area and in the maintenance area, employeesbrought in the two refrigerators which were equipped with two-prongplugs rather than three-prong plugs. The receptacle in the maintenancearea was for three-pronged plugs, however, and the compliance officerdid not describe the receptacle in the break area. There was noevidence regarding how long the refrigerators had been in use and,considering that the compliance officer detected the grounding problemwith an electrical device, it is evident that the two-prong plugs werenot in sight. More evidence is needed than this to establish thatBullock reasonably could have known of the violative conditions._Chapman Construction Co_., 80 OSAHRC 122\/D9, 9 BNA OSHC 1175, 1981 CCHOSHD ? 25,024 (No. 76-2677, 1980), relied on by the Secretary, does notestablish that Bullock should have known about and used a continuitylight to detect the violations. Chapman was a carpentry contractor andthe compliance officer in that case specifically testified that mostcarpenters carry and use the continuity lights to detect lack ofgrounding of their tools. Bullock manufactures prefabricated garagesand there was no testimony showing that employers or employees inBullock’s industry customarily use instruments to detect groundingfaults. Thus, Chairman Buckley would vacate this item.Commissioner Cleary would affirm the item. In order to determinewhether it is in compliance with the cited standard the employer mustcheck the equipment in a manner calculated to discover whether it isgrounded. The compliance officer testified that the portable drill hadbeen used previously and the drill’s grounding prong had been removed,so that defect would be visible at times and certainly could be detectedby a reasonable inspection. An employer is generally responsible forhazards existing in the workplace. It is not enough for him to simplysay he did not see a hazard when he could have detected the violationwith the use of reasonable diligence. Thus, a violation is established. As Bullock’s plant manager acknowledged, Bullock is responsible for thesafety of employee-owned equipment brought to the job and used only bythat employee. _Chicago and North Western Trans. Co_., 77 OSAHRC 30\/E4,5 BNA OSHC 1121, 1977-78 CCH OSHD ? 21,608 (No. 13071, 1977).The two refrigerators had two-prong electrical plugs. It is commonindustrial knowledge that two-prong plugs do not provide grounding, andthus further investigation is required to determine whether groundingexists. There was no testimony that Bullock had investigated thegrounding of the refrigerators. One method would be to look for analternative form of grounding on the equipment. Another method would beto use a common, inexpensive continuity light, as the Commission notedin _Chapman_ _Construction Co_., _supra_. Commissioner Cleary wouldaffirm the violation as serious, noting that the hazard was possiblyfatal electrical shock.To resolve their impasse on the disposition of the four citation itemson review and to permit the parties to conclude this litigation,Chairman Buckley and Commissioner Cleary agree to vacate the directionfor review. _E.g_., _Texaco, Inc_., 80 OSAHRC 74\/B1, 8 BNA OSHC 1758,1980 CCH OSHD ? 24,634 (Nos. 77-3040 & 77-3542, 1980). The judge’sdecision in this case therefore becomes the final order of theCommission but is accorded the precedential value of an unreviewedjudge’s decision.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: APR 17 1985————————————————————————FOOTNOTES:[[1]] As established by the Act, the Commission is composed of threemembers.Section 12(a), 29 U.S.C. ? 661(a). Presently, the Commission has twomembers as the result of a vacancy.[[2]] The cited standard, 29 C.F.R. ? 1910.23(c)(1), states in pertinentpart:Every open-sided floor or platform 4 feet or more above adjacent flooror ground level shall be guarded by a standard railing (or theequivalent . . . ) on all open sides except where there is entrance to aramp, stairway, or fixed ladder. The railing shall be provided with atoeboard wherever, beneath the open sides,(i) Persons can pass,(ii) There is moving machinery, or(iii) There is equipment with which falling materials could create a hazard.[[3]] Section 1910.21(a)(4) provides:_Platform_. A working space for persons, elevated above the surroundingfloor or ground; such as a balcony or platform for the operation ofmachinery and equipment.[[4]] Moreover, the only issue raised by the Secretary’s petition, inCommissioner Cleary’s view, was whether the lack of guarding was _de__minimis_ or a serious violation. The direction for review is granted,review shall be limited to the issues specified in the petition, unlessthe order for review expressly provides differently.\” Commission Rule92(c), 29 C.F.R. ? 2200.92(c).[[5]] Chairman Buckley concludes that he is not precluded by thedirection for review in this case from considering whether the tool cribroof was a platform. The Commission may consider any issue addressed bythe judge in his report or raised by the parties in their trial orargument of the case. The specification of issues in a direction forreview is not a jurisdiction bar. _Schiavone_ _Construction Co_., 84OSAHRC ____, 12 BNA OSHC 1105, 1110 n. 8, 1984 CCH OSHD ? 27,145, p.35,041 n. 8 (No. 80-914, 1984) (Buckley, Chairman, separate views). _Cf_. _John T. Brady & Co_., 82 OSAHRC 9\/D10, 10 BNA OSHC 1385, 1982 CCHOSHD ? 25,941 (No. 76-2894, 1982) (Commission may consider issues notraised in direction for review in certain circumstances), _vac’d onother grounds,_ No. 82-4082 (2d Cir. Oct. 14, 1982).[[6]] Indeed, the compliance officer did not testify that employeesactually stepped onto the roof except to stock or remove floor dryingcompound, and the record does not establish how often that was done. There is no conflict in testimony between the compliance officer and theplant manager. Although the compliance officer understood thatemployees went up to the crib roof with some frequency to remove autofilters, this was accomplished without employees going onto the roof. The plant manager’s testimony is uncontradicted and fully consistentwith the compliance officer’s testimony about what he was told.[[7]] The cited standard, ? 1910.219(f)(3), states:All sprocket wheels and chains shall be enclosed unless they are morethan seven (7) feet above the floor or platform. Where the driveextends over other machine or working areas, protection against fallingshall be provided. This subparagraph does not apply to manuallyoperated sprockets.[[8]] The only issue raised by the Secretary’s petition, in CommissionerCleary’s view, was whether the lack of guarding was a serious violationor nonserious. He interprets the direction for review as limited tothat issue. See n. 4 _supra_.[[9]] Commissioner Cleary notes, however, that the evidence indicatesthat employees at times would be in the zone of danger. Though theconveyor would not normally be operating when maintenance and repairwork was being done near the unguarded sprocket wheel and chain,experience teaches that machinery occasionally is turned on when itshould not be and accidents result. _E.g_., _General Electric Co_., 82OSAHRC 56\/A2, 10 BNA OSHC 1034, 1982 CCH OSHD ? 26,259 (No. 79-504,1982). There was no testimony that Bullock had a lockout system orsimilar system to prevent possible inadvertent operation of the conveyorduring maintenance and repairs.[[10]] The cited standard, ? 1910.243(a)(1)(i), states:All portable, power-driven circular saws having a blade diameter greaterthan 2 in. shall be equipped with guards above and below the base plateor shoe. . . . The lower guard shall cover the saw to the depth of theteeth, except for the minimum are required to allow proper retractionand contact with the work. When the tool is withdrawn from the work,the lower guard shall automatically and instantly return to coveringposition.[[11]] Commissioner Cleary also notes that although the plant managertestified to certain hazards allegedly caused by the guards, Bullock hasnot attempted to make out the elements of a greater hazard defense,including the lack of available alternatives to literal compliance andthe inappropriateness of a variance application. _E.g._, _M.J. LeeConstruction Co_., 79 OSAHRC 12\/A2, 7 BNA OSHC 1140, 1979 CCH OSHD ?23,330 (No. 15094, 1979).[[12]] The cited standard, ? 1910.304(f)(5)(v), states in pertinent part:_Equipment connected by cord and plug_. Under any of the conditionsdescribed in paragraphs (f)(5)(v)(A) through (f)(5)(v)(C) of thissection, exposed non-current-carrying metal parts of cord- andplug-connected equipment which may become energized shall be grounded. . . .(C) If the equipment is of the following types:_(1)_ Refrigerators, freezers, and air conditioners;. . . ._(3_) Hand-held motor-operated tools; . . . ._(7)_ Tools likely to be used in wet and conductive locations; . . .[[13]] The Secretary has withdrawn his charge regarding an ungroundedarc welder.”