“Docket No. 82-0065 SECRETARY OF LABOR, Complainant, v.CURT BULLOCK BUILDERS, INC., Respondent.OSHRC Docket No. 82-0065DECISIONBefore:\u00a0 BUCKLEY, Chairman; and CLEARY,Commissioner. BY THE COMMISSION:This case is before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(i), section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\” the Act\”).\u00a0 TheCommission is an adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”).\u00a0 It was establishedto resolve disputes arising out of enforcement, actions brought by the Secretary of Laborunder the Act and has no regulatory functions.\u00a0 See section 10(c) of the Act,29 U.S.C. ? 659(c).The Secretary has petitioned for review of adecision by Commission Judge Edwin G. Salyers vacating two alleged serious violations andchanging the characterization of two others, one to de minimis and one tononserious.\u00a0 The standards require guarding of platforms, saws, sprocket wheels andchains, and grounding of electrical equipment.\u00a0 The two Commissioners are divided onthe disposition of the four items. [[1]]\u00a0 As a result, they have agreed to vacate thedirection for review, making the judge’s decision the final order of the Commission.Citation 1 , Item 1:\u00a0 unguarded storageareaCurt Bullock Builders, Inc. (\”Bullock\”), manufactures prefabricated garages atits plant in Springfield, Ohio.\u00a0 Inside the maintenance garage there is a tool crib,approximately 13 feet long and 7 feet wide, with a flat roof about 8-1\/2 feet above theconcrete floor of the garage.\u00a0 The tool crib’s roof is used as a storage surface forlight-weight materials such as quick drying compound and automotive filters.\u00a0Automotive filters are stored on the edge of the crib roof, while the quick drycompound, which is removed infrequently, is stored at the rear of the roof.\u00a0Employees reach the storage surface with a 6-foot stepladder.\u00a0 The allegedviolation involves the absence of guardrails and toeboards around the open sides of thestorage surface.[[2]]The compliance officer who inspected the planton behalf of the Secretary did not see any employees on the roof of the tool crib.However, on the basis of conversations with two employees, he testified that employeeswould climb up to the roof on the ladder once a week at the most to remove automotivefilters, or in special situations when they stocked the area with floor drying materials.He understood that employees had been on top of the tool crib the week of the inspectionto obtain floor drying material.\u00a0 However, the compliance officer further testifiedthat the plant manager told him during the inspection that the roof was not a work areaand that employees went there only to place or remove material.\u00a0 Further explainingthis during the hearing, the plant manager testified that employees went on top of thetool crib once a year to stock quick drying compound and occasionally to remove it.\u00a0Because the automotive filters were stored at the edge of the roof, the employeesdid not need to leave the ladder and go onto the roof to store or remove the filters.The judge concluded that the tool crib roof wasa \”platform\” under Commission precedent construing the cited standard and ?1910.21(a)(4).[[3]]\u00a0 He found noncompliance with the cited standard but found it deminimis \”since employee exposure to the hazard was both infrequent and ofshort duration.\”Commissioner Cleary would agree with the Judgeto the extent he found the roof was a platform and that ? 1910.23(c)(1) was violated.\u00a0The top of the structure was 8 1\/2 feet above a concrete floor, and was a storagearea.\u00a0 While it is arguably true that the amount of use may have some bearing onwhether or not the area should be considered a platform under the definition in thestandard, this was an area that was accessible for the placing and removal of materialsused in the employer’s business.\u00a0 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 and removedinfrequently, but it is not reasonable to assume that materials would be stored for up toa year without being utilized in the process of manufacturing the garage doors.\u00a0 TheCommission has a \”responsibility to be ‘reasonable’ in interpreting the standardscited in cases before it.\”\u00a0 Globe Industries, Inc., 82 OSAHRC 24\/D4, 10BNA OSHC 1596, 1598, 1982 CCH OSHD ? 26,048, pp. 32,718-19 (No. 77-4313, 1982).\u00a0 Inthat case, involving cleaning of rollers on conveyor belts which were approximately 5 feethigh and 7 feet, 9 inches wide, the Commission held it would not be reasonable to construethe belts as platforms.\u00a0 These were simply conveyors, not platforms as the term iscommonly understood, and in view of the totality of the facts, the Commission vacated.In the instant case, Commissioner Clearyconcedes exposure to a hazard may be brief, but it involves a possible fall of 8 1\/2 feetto a concrete floor, and it would require a very minimum of effort and expense to erect aguardrail.\u00a0 In Globe Industries, the ordinary employer would not visualize thebelts as platforms, but here there is nothing to distinguish this structure from a workingplatform except possibly a low frequency of use.\u00a0 Looking at the totality of thecircumstances he would regard it as a platform.Commissioner Cleary, unlike the Judge, wouldfind a serious violation.\u00a0 The fact that exposure to the hazard was infrequent and ofshort duration does not render a violation de minimis if serious injury ispossible.\u00a0 Brevity of exposure goes only to penalty assessment.\u00a0 A violation isserious if an accident is possible and death or serious physical harm would be theprobable result of an accident.\u00a0 E.g., H. H. Hall Construction Co., 81OSAHRC 91\/D12, 10 BNA OSHC 1042, 1047, 1981 CCH OSHD ? 25,712 (No. 76-4765, 1981); seealso Frank Swidzinski Co., 81 OSAHRC 4\/E14, 9 BNA OSHC 1230, 1981 CCH OSHD? 25,129 (No. 76-4627, 1981).\u00a0 The testimony establishes that a falling hazard of 81\/2 feet to a concrete floor existed and that multiple fractures would be the probableresult of a fall.[[4]]\u00a0 Thus, Commissioner Cleary would would affirm the violation asserious.Chairman Buckley would vacate this item becausethe storage surface was not a platform under the cited standard.[[5]]\u00a0 Section1910.21(a)(4) defines a platform as an elevated working space, such as one for theoperation of machinery and equipment or analogous functions.\u00a0 The term \”workingspace\” and the examples given implicitly require employee presence for a length oftime.\”An elevated flat surface does notautomatically become a ‘working space’ and a ‘platform’ merely because employeesoccasionally set foot on it while working.\”\u00a0 General Electrical Co. v. OSHRC,583 F.2d 61, 64 (2d Cir. 1978) (surface on which infrequent maintenance functions weredone was not a \”platform\”).\u00a0 The Commission has noted that this standardmust be interpreted in a reasonable manner, consistent with commonsense understanding ofthe language of the standard, so that employers can understand and have fair notice of therequired conduct.\u00a0 Globe Industries.\u00a0 The definition of\”platform\” as a \”working space\” cannot reasonably apply to the storagesurface here.\u00a0 As the Commission observed in Globe, the defined term\”platform\” would be stretched beyond common understanding and the plain meaningof the definition contained in the standard if the performance of infrequent work on anysurface four feet above the ground were enough to require guarding.\u00a0 The storagesurface atop the tool crib was not designed for employees to stand on for substantiallengths of time as they would when operating machinery and equipment. Nor was the surfaceused as a \”working space.\”\u00a0 The area was used only for storage, with verybrief, infrequent employee trips onto it.[[6]]Citation 1, Item 8(b):\u00a0 unguardedsprocket wheels and chains [[7]]The compliance officer testified that an unguarded chain and sprocket wheel werelocated about 6 feet above ground level on a scrap conveyor adjacent to a scrap bin.\u00a0He testified that the driver who emptied the bin with a forklift truck possiblycould be exposed to the unguarded parts if he were to get off the forklift for somereason.\u00a0 However, Bullock’s plant manager testified that the unguarded parts were 6feet 8-1\/4 inches above the ground, that employees do not use the entrance near theconveyor under normal circumstances and that they would have no occasion to go near theunguarded parts except during maintenance and repairs, when the machine would not beoperating.\u00a0 The judge found a violation but termed it nonserious \”in view of theunlikely exposure of employees to this hazard.\”Commissioner Cleary agrees there was a violationbut considers it serious.\u00a0 In his view, the issue directed for review was limited towhether the violation was serious or nonserious.[[8]]\u00a0 He would find it seriousbecause the compliance officer testified without rebuttal that serious injury (amputationof fingers) would be the likely result if an employee’s hand were caught in the unguardedparts while they were in motion.\u00a0 The judge’s finding of a nonserious violation wasinconsistent with Commission precedent, under which the degree of likelihood of anaccident is irrelevant.\u00a0 A violation is serious if an accident could occur and theprobable result would be death or serious physical harm.\u00a0 E.g., FrankSwidzinski.Commissioner Cleary also finds that employeeshad sufficient access to the hazards to warrant finding a violation.\u00a0 It isinappropriate to base decisions on machine guarding issues on speculation as to what mightmotivate an employee to approach an unguarded area.\u00a0 The fact that employees workedin the vicinity of the unguarded parts is enough to require compliance with the citedstandard.\u00a0 See, e.g., Carpenter Contracting Corp., 84 OSAHRC____, 11 BNA OSHC 2027, 2030 n. 3, 1984 CCH 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 item because he findsthat the Secretary failed to prove that employees would ever be in the zone of danger.\u00a0 Carpenter Contracting (the Secretary must establish that it is reasonable topredict or anticipate that employees will be, are, or have been at risk as a result of theviolation); Todd Shipyards Corp., 84 OSAHRC ____, 11 BNA OSHC 2177, 2181, 1984 CCHOSHD ? 27,001, p. 34,744 (No. 77-1598, 1984)(Chairman Buckley, concurring)(an employermay comply with Act’s requirements by correcting violative conditions or by limitingemployee access to such conditions.)\u00a0 The only substantial testimony of potentialemployee exposure to the unguarded parts was during maintenance and repairs, but at thattime the machine would not be operating.\u00a0 Thus, the alleged hazards would not existat that time.\u00a0 The remaining testimony is pure speculation.\u00a0 The complianceofficer stated that the driver who emptied the large scrap bin adjacent to the unguardedparts might possibly approach them but did not indicate any factual basis for thatconclusion.\u00a0 Also, although employees occasionally entered the building near theother side of the wide scrap conveyor, those employees’ paths would not take them past theside with the unguarded parts.\u00a0 It was not a work area or passageway for them.Citation 1, Item 9:\u00a0 unguarded circular saws[[10]]The compliance officer observed two portable electric circular wood saws with theirlower blade guards wired to prevent the guards from returning and covering the bladesafter a cut.\u00a0 The saws were used for trimming and notching the gables of the garages.Bullock argued that employees had wired the guards back without its knowledge.\u00a0 Thejudge agreed, noting that the compliance officer found them on the second day of hisinspection after Bullock’s plant manager had the entire building inspected to be certainthat no more violations would be found.\u00a0 The judge vacated the item accordingly.Chairman Buckley would affirm the judge’sdecision that the Secretary did not prove employer knowledge.\u00a0 The Secretary mustprove by a preponderance of the evidence that Bullock knew or reasonably could have knownof the existence of the violative conditions.\u00a0 Scheel Construction Co., 76OSAHRC 138\/D6, 4 BNA OSHC 1824, 1826-27, 1976-77 CCH OSHD ? 21,263, p. 25,560 (No. 8687,1976).\u00a0 Because there is no allegation or proof that Bullock actually knew that theguards were tied back, the Secretary must demonstrate that a reasonable diligent employerin Bullock’s position would have discovered the violation.\u00a0 Here the Secretary simplyasserted, without support, that Bullock could have discovered the violative condition.\u00a0 The record supports the opposite conclusion.\u00a0 The plant manager testified thatan intensive inspection had been done under his direction the night before the complianceofficer found the guards wired back, and that the conditions had not been found. \u00a0Such an intensive inspection certainly qualifies Bullock as reasonably diligent under anydefinition of those terms.\u00a0 The Secretary offered no evidence as to what more Bullockcould have done, or why the inspection conducted was not reasonable or diligent.\u00a0Because the condition was not discovered, it can only be concluded that a reasonablydiligent employer, Bullock, could not have discovered the violation.\u00a0 Thus, ChairmanBuckley concludes that the Secretary has not proven that Bullock knew or reasonably couldhave known about the wiring back of the guards.Commissioner Cleary would affirm a seriousviolation.\u00a0 It is appropriate generally to presume that violative conditions observedby a compliance officer have existed for a sufficient period that the employer could havediscovered them before the inspection with the exercise of reasonable diligence. \u00a0Unless the conditions by their nature change rapidly, this is the most reasonableassumption.\u00a0 Also, the employer generally is in a better position than the Secretaryto present evidence on whether the conditions previously existed.\u00a0 In the usual caseCommissioner Cleary would presume that violative conditions could have been discoveredwith the exercise of reasonable diligence, absent evidence overcoming the presumption.\u00a0 See Hermitage Concrete Pipe Co., 82 OSAHRC 14\/A2, 10 BNA OSHC 1517,1520, 1982 CCH OSHD ? 25,975, pp. 32,574-75 (No. 4678, 1982); Lewis v. Baker, 526F.2d 470, 474-75 (2d Cir. 1975); Girardi v. Gates Rubber Co. Sales Div., Inc., 325F.2d 196, 203-04 (9th Cir. 1963); cf. McFarland v. Gregory, 425 F.2d 443 (2dCir. 1970).Bullock’s inspection the night before thecompliance officer saw the guards wired back does not rebut the presumption.\u00a0 Theplant manager testified that he never checked the lower blade guards on his periodic shopsafety tours and that he had \”no idea\” how long they had been wired back. \u00a0Moreover, Bullock was on notice from employee complaints that they had long considered theguards to be a hindrance, if not; a hazard, when in place.\u00a0 To find for the employerhere, one would have to assume that someone wired back the guards between the time of theemployer’s inspection the night before and the compliance officer’s inspection the nextday–an unlikely circumstance.[[11]]\u00a0 The testimony established that the wired-backguards were in plain view.\u00a0 Based on the preponderance of the evidence, CommissionerCleary concludes that the Secretary has shown that Bullock could have discovered theviolative conditions with the exercise of reasonable diligence.\u00a0 AstraPharmaceutical Products Inc., 81 OSAHRC 79\/D9, 9 BNA OSHC 2126, 1981 CCH OSHD ?25,578 (No. 78-6247, 1981), aff’d, 681 F.2d 69 (1st Cir. 1982).\u00a0 Consideringthe hazards of serious lacerations or amputation of fingers that existed, CommissionerCleary would find a serious violation.Citation 1, Item 10:\u00a0 ungroundedelectrical equipment [[12]]The compliance officer found two ungrounded refrigerators as well as a portable drill thatwas not properly grounded, by using what he called a \”field bi-medicalprobe.\”[[13]]\u00a0 The refrigerators had been brought to the plant by employees fortheir personal use and the portable drill was also the property of an employee.\u00a0 Thejudge vacated the item for lack of knowledge because the conditions were not apparentwithout the use of a sophisticated device.Chairman Buckley would affirm the judge’sdecision.\u00a0 Bullock’s plant manager testified that he had never seen an instrumentlike the \”field bi-medical probe\” which the compliance officer had used todetect each alleged violation.\u00a0 The plant manager further testified that he did notknow of the ungrounded condition of the portable drill or the refrigerators. \u00a0Concerning the portable drill, he stated that he was not aware that the employee hadbrought it into the workplace and that only the employees working on construction crewserecting the prefabricated garages on sites owned or chosen by customers — not theemployees in this plant — supplied their own tools.\u00a0 The compliance officer learnedfrom conversations with employees during the inspection that the portable tool had beenused, but there was no evidence showing how long the tool had been present in theworkplace or how often it was used.\u00a0 Without such evidence indicating how Bullockcould reasonably be expected to have discovered the ungrounded tool, the Secretary has notestablished knowledge.The record is similarly sparse regarding therefrigerators.\u00a0 For their own use in their break area and in the maintenance area,employees brought in the two refrigerators which were equipped with two-prong plugs ratherthan three-prong plugs.\u00a0 The receptacle in the maintenance area was for three-prongedplugs, however, and the compliance officer did not describe the receptacle in the breakarea.\u00a0 There was no evidence regarding how long the refrigerators had been in useand, considering that the compliance officer detected the grounding problem with anelectrical device, it is evident that the two-prong plugs were not in sight.\u00a0 Moreevidence is needed than this to establish that Bullock reasonably could have known of theviolative conditions.Chapman Construction Co., 80 OSAHRC122\/D9, 9 BNA OSHC 1175, 1981 CCH OSHD ? 25,024 (No. 76-2677, 1980), relied on by theSecretary, does not establish that Bullock should have known about and used a continuitylight to detect the violations. Chapman was a carpentry contractor and the complianceofficer in that case specifically testified that most carpenters carry and use thecontinuity lights to detect lack of grounding of their tools.\u00a0 Bullock manufacturesprefabricated garages and there was no testimony showing that employers or employees inBullock’s industry customarily use instruments to detect grounding faults.\u00a0 Thus,Chairman Buckley would vacate this item.Commissioner Cleary would affirm the item.\u00a0 In order to determine whether it is in compliance with the cited standard theemployer must check the equipment in a manner calculated to discover whether it isgrounded.\u00a0 The compliance officer testified that the portable drill had been usedpreviously and the drill’s grounding prong had been removed, so that defect would bevisible at times and certainly could be detected by a reasonable inspection.\u00a0 Anemployer is generally responsible for hazards existing in the workplace.\u00a0 It is notenough for him to simply say he did not see a hazard when he could have detected theviolation with the use of reasonable diligence.\u00a0 Thus, a violation is established.\u00a0As Bullock’s plant manager acknowledged, Bullock is responsible for the safety ofemployee-owned equipment brought to the job and used only by that employee.\u00a0 Chicagoand 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 electricalplugs.\u00a0 It is common industrial knowledge that two-prong plugs do not providegrounding, and thus further investigation is required to determine whether groundingexists.\u00a0 There was no testimony that Bullock had investigated the grounding of therefrigerators.\u00a0 One method would be to look for an alternative form of grounding onthe equipment.\u00a0 Another method would be to use a common, inexpensive continuitylight, as the Commission noted in Chapman Construction Co., supra.\u00a0Commissioner Cleary would affirm the violation as serious, noting that the hazardwas possibly fatal electrical shock.To resolve their impasse on the disposition ofthe four citation items on review and to permit the parties to conclude this litigation,Chairman Buckley and Commissioner Cleary agree to vacate the direction for review.\u00a0 E.g.,Texaco, Inc., 80 OSAHRC 74\/B1, 8 BNA OSHC 1758, 1980 CCH OSHD ? 24,634 (Nos.77-3040 & 77-3542, 1980).\u00a0 The judge’s decision in this case therefore becomesthe final order of the Commission but is accorded the precedential value of an unreviewedjudge’s decision.FOR THE COMMISSION RAY H. DARLING, JR.EXECUTIVE SECRETARY DATED:\u00a0 APR 17 1985 FOOTNOTES: [[1]] As established by the Act, the Commissionis composed of three members.Section 12(a), 29 U.S.C. ? 661(a).\u00a0 Presently, the Commission has two members as theresult of a vacancy.[[2]] The cited standard, 29 C.F.R. ?1910.23(c)(1), states in pertinent part: Every open-sided floor or platform 4 feet ormore above adjacent floor or ground level shall be guarded by a standard railing (or theequivalent . . . ) on all open sides except where there is entrance to a ramp, stairway,or fixed ladder.\u00a0 The railing shall be provided with a toeboard wherever, beneath theopen 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.\u00a0 A working space forpersons, elevated above the surrounding floor or ground; such as a balcony or platform forthe operation of machinery and equipment.[[4]] Moreover, the only issue raised by theSecretary’s petition, in Commissioner Cleary’s view, was whether the lack of guarding was deminimis or a serious violation.\u00a0 The direction for review is granted, reviewshall be limited to the issues specified in the petition, unless the order for reviewexpressly provides differently.\”\u00a0 Commission Rule 92(c), 29 C.F.R. ?2200.92(c).[[5]] Chairman Buckley concludes that he is notprecluded by the direction for review in this case from considering whether the tool cribroof was a platform.\u00a0 The Commission may consider any issue addressed by the judge inhis report or raised by the parties in their trial or argument of the case.\u00a0 Thespecification of issues in a direction for review is not a jurisdiction bar.\u00a0 SchiavoneConstruction Co., 84 OSAHRC ____, 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).\u00a0 Cf.John T. Brady & Co., 82 OSAHRC 9\/D10, 10 BNA OSHC 1385, 1982 CCH OSHD ? 25,941(No. 76-2894, 1982) (Commission may consider issues not raised in direction for review incertain circumstances), vac’d on other grounds, No. 82-4082 (2d Cir. Oct. 14,1982).[[6]] Indeed, the compliance officer did nottestify that employees actually stepped onto the roof except to stock or remove floordrying compound, and the record does not establish how often that was done.\u00a0 There isno conflict in testimony between the compliance officer and the plant manager.\u00a0Although the compliance officer understood that employees went up to the crib roofwith some frequency to remove auto filters, this was accomplished without employees goingonto the roof.\u00a0 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 enclosedunless they are more than seven (7) feet above the floor or platform.\u00a0 Where thedrive extends over other machine or working areas, protection against falling shall beprovided.\u00a0 This subparagraph does not apply to manually operated sprockets.[[8]] The only issue raised by the Secretary’s petition, in Commissioner Cleary’s view,was whether the lack of guarding was a serious violation or nonserious.\u00a0 Heinterprets the direction for review as limited to that issue.\u00a0 See n. 4 supra.[[9]] Commissioner Cleary notes, however, thatthe evidence indicates that employees at times would be in the zone of danger. Though theconveyor would not normally be operating when maintenance and repair work was being donenear the unguarded sprocket wheel and chain, experience teaches that machineryoccasionally is turned on when it should not be and accidents result. E.g., GeneralElectric Co., 82 OSAHRC 56\/A2, 10 BNA OSHC 1034, 1982 CCH OSHD ? 26,259 (No. 79-504,1982).\u00a0 There was no testimony that Bullock had a lockout system or similar system toprevent possible inadvertent operation of the conveyor during maintenance and repairs.[[10]] The cited standard, ? 1910.243(a)(1)(i), states:All portable, power-driven circular saws havinga blade diameter greater than 2 in. shall be equipped with guards above and below the baseplate or shoe. . . . The lower guard shall cover the saw to the depth of the teeth, exceptfor the minimum are required to allow proper retraction and contact with the work.\u00a0When the tool is withdrawn from the work, the lower guard shall automatically andinstantly return to covering position.[[11]] Commissioner Cleary also notes thatalthough the plant manager testified to certain hazards allegedly caused by the guards,Bullock has not attempted to make out the elements of a greater hazard defense, includingthe lack of available alternatives to literal compliance and the inappropriateness of avariance application.\u00a0 E.g., M.J. Lee Construction Co., 79 OSAHRC12\/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.\u00a0Under any of the conditions described in paragraphs (f)(5)(v)(A) through(f)(5)(v)(C) of this section, 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 airconditioners;. . . . (3) Hand-held motor-operated tools; . . . .(7) Tools likely to be used in wet and conductive locations; . . .[[13]] The Secretary has withdrawn his chargeregarding an ungrounded arc welder.”