“SECRETARY OF LABOR,Complainant,v.DUN-PAR ENGINEERED FORM COMPANY,Respondent.OSHRC Docket No. 82-0928_DECISION_Before: BUCKLEY, Chairman; RADER and WALL, Commissioners.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(j), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”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).Dun-Par Engineered Form Company builds and erects the forms into whichother contractors pour concrete in buildings under construction. Itstrips the forms after the other companies have finished pouring theconcrete. On August 20, 1982, one of Dun-Par’s employees, Valadez, fellto his death off the unguarded edge of the eleventh floor of a thirteenstory building under construction in Houston, Texas. The Secretary ofLabor investigated the accident and then issued a one-item citationalleging it violated 29 C.F.R. ? 1926.500 (d)(1) by not guarding anopen-sided floor with a standard railing. The Secretary later amendedthe citation to add the alternative allegations that Dun-Par hadviolated 29 C.F.R. ? 1926.28(a) by not requiring its employees to wearpersonal protective equipment, or 29 C.F.R. ? 1926.105(a) by notproviding a safety net to protect its employees. In short, the Secretaryalleged that Dun-Par had violated either section 1926.500(d)(1) or1926.28(a) or 1926.105(a). Section 1926.500(d)(1), the standard that isof principal concern here, states:? 1926.500 _Guardrails, handrails, and covers._(d) Guarding of open-sided floors, platforms, and runways. (1) Everyopen-sided floor or platform 6 feet or more above adjacent floor orground level shall be guarded by a standard railing, or the equivalent,as specified in paragraph (f)(1)(i) of this section, on all open sides,except where there is entrance to a ramp, stairway, or fixed ladder. Therailing shall be provided with a standard toeboard wherever, beneath theopen sides, persons can pass, or there is moving machinery, or there isequipment with which falling materials could create a hazard.The building from which Valadez fell was rectangular in shape, but itseleventh, twelfth and thirteenth floors did not extend to the outer edgeof the lower floors, thus giving the top floors a stairstep profile.Valadez and Dun-Par foreman Garrett were working on a setback area ofthe eleventh floor at the building’s northeast corner. Because of thebuilding’s stairstep design, the setback area had no floors above it.Garrett had assigned Valadez the job of fastening strips of 3\/4-inchwide steel banding around two stacks of lumber called shores.[[1]] Eachstack of shores required two bands, one at each end. To perform thebanding process, it was necessary to unroll a length of banding, loop itaround the stack to be banded, ratchet it tight with a banding machineand then clip the banding. The employee doing the banding stoodalongside the stack of material being banded. Banding was not astrenuous job and required only a minimum of physical exertion. Theprocess took 2-1\/2 to 3 minutes per band. Banded stacks of shores werelater moved off the floor by crane.The two stacks of shores that Valadez was to band were located on a ninefoot wide portion of the setback area, parallel to each other butperpendicular to the eastern perimeter of the floor. One end of eachstack was 12 to 18 inches from the perimeter, which was unguarded.Dun-Par had stacked the shores in that area because there was no floorabove them and because the crane therefore could lift the banded shoresstraight up and off the floor.When Valadez began banding the first stack of shores he was working 2 to3-1\/2 feet from the unguarded-perimeter. He was not wearing a safetybelt. He fell 131 feet to the ground after banding the first stack ofshores at the end closest to the perimeter. That band was variouslyestimated to be 2 to 3-1\/2 feet from the eastern perimeter.Garrett, the only eyewitness to the accident and the only other employeeworking on the eleventh floor on the morning of the accident, had safetyresponsibilities as part of his foreman’s duties and was the supervisorof Valadez. While Valadez was banding, Garrett was working about eightto ten feet from him, receiving and stacking plywood handed down fromthe twelfth floor. Garrett had experience with the job of banding andknew the details of Valadez’s banding job.Garrett testified that, while banding, Valadez was approximately 2 to 3-1\/2 feet from the perimeter. He also testified that in walking betweenthe outside edge of the shores and the floor’s unguarded perimeterValadez violated DunPar’s safety policy. Garrett testified thatDun-Par’s safety policy with respect to working near unguarded perimeteredges was:Don’t be out there unless you have to be and if you are out there andyou do need a safety line, get one. Be extra careful …. If you are outthere doing something strenuous where you have to use exertion, maybetowards the edge of the building or hanging nets where you are realclose to the edge, then you wear a safety belt.Garrett testified he gave Valadez instructions on how to work around theedge of the building. Garrett did not tell Valadez to use a safety beltfor the banding job because \”there is no danger. It is not a hard job.\”Carpenter foreman Winzer, the Dun-Par employee on the project site withprimary responsibility for safety, testified that Dun-Par’s safetypolicy stresses that employees were \”not to go on the outside perimeterof the building unless there is a specific job to be done that close tothe perimeter of the building.\” Randolph Bordner, the Dun-Par officialwho had overall control of its safety program, testified that Dun-Par’ssafety policy was that the foreman told employees \”to stay away from theedge if it is not necessary to be there.\” If it was feasible, lifelinescould be used when employees were \”hanging nets on the outside.\” Bordneralso testified that it was possible to string a wire cable between twocolumns on the eleventh floor and hook a safety belt lanyard onto it foruse by employees working on the setback area.Dun-Par’s general superintendent, Klewein, testified that it waspossible to erect guardrails around the unguarded perimeter. Guardrailswould normally have been up while the stacking and banding of shores wasdone. Wire rope guardrails were installed after the accident. ForemanGarrett testified that he did not believe guardrails should have beenerected to protect Valadez because it would have taken longer to putthem up than it would have taken for Valadez to do his banding job.Garrett also testified that the guardrails would have to be taken downto crane the shores off the floor. Klewein testified that it would havetaken three employees about 1-1\/2 hours to erect guardrails along the56-foot edge of the floor and about 1 to 1-1\/2 hours to dismantle them.Winzer, the carpenter foreman, testified that it would have taken twoemployees 1-1\/2 to 2 hours to erect guardrails and 3\/4 hour to take themdown. Winzer also testified that a section of guardrail could have beenremoved or laid down when the shores were being craned off the floor.Also, the compliance officer testified that the shores could have beencraned off a wider portion of the setback area if the crane operatorneeded more room to maneuver.Administrative Law Judge Dee C. Blythe found that Dun-Par had committeda serious violation of section 1926.500(d)(1) and assessed the $420penalty agreed to by the parties if a violation were found. The judgealso found that Dun-Par had violated section 1926.28(a) but vacated thesection 1926.105(a) allegation. Judge Blythe found that through theknowledge of its supervisory employee Garrett, Dun-Par had \”actual orconstructive knowledge\” of the violative condition to which Valadez wasexposed. The judge found that Garrett assigned Valadez the banding joband that the job required Valadez to work within 2 to 3-1\/2 feet of theeleventh floor’s unguarded perimeter. Assigning Valadez to work so closeto the edge, the judge reasoned, exposed Valadez to a fall hazardregardless of whether he went closer to the edge.The judge also stated that the work rule Dun-Par depended on to preventValadez’s exposure only prohibited employees from going to the very edgeof the unprotected perimeter. Yet the gravamen of the violation, thejudge found, was not in going to the very edge of the unguardedperimeter, but in being \”within body length thereof\” without fallprotection. Working two to three feet from the unguarded edge did notviolate any work rule.The judge found that, \”at most,\” Dun-Par established only theinconvenience of erecting guardrails, not the impossibility ofinstalling them as Commission precedent then required. He noted thatemployees erecting guardrails could have been protected by safety belts.The judge also concluded that the guardrails would not have interferedwith the operation of the crane. Either a section of guardrail couldhave been removed or laid down to allow the removal of the shores bycrane or the shores could have been craned off a wider part of thesetback area to allow more room to maneuver crane loads away fromstanding guardrails.To prove a violation of a standard, the Secretary must establish (1) theapplicability of the standard, (2) the existence of noncomplyingconditions, (3) employee exposure or access, and (4) that the employerknew or with the exercise of reasonable diligence could have known ofthe violative condition. See Belger Cartage Service, Inc., 79 OSAHRC16\/B4, 7 BNA OSHC 1233, 1235, 1979 CCH OSHD ? 23,440, p. 28,373 (No.76-1480, 1979); Harvey Workover, Inc., 79 OSAHRC 72\/D5, 7 BNA OSHC 1687,1688-90, 1979 CCH OSHD ? 23,830, pp. 28,908-10 (No. 76-1408, 1979).Here, there is no dispute about either the applicability of theguardrail standard or the lack of guardrails in the pertinent area.Neither is there any doubt about employee exposure. Dun-Par employeeValadez was clearly exposed to the cited condition, for he fell to hisdeath off the unguarded floor perimeter. Other Dun-Par employees,particularly those who stacked the shoring that Valadez was banding, hadaccess to the unguarded perimeter. The last element of the Secretary’sproof–whether Dun-Par knew or should have known that Valadez wasexposed to a hazard–is the major issue in the case.Dun-Par argues that the judge’s decision should be reversed because itdid not have knowledge that Valadez was exposed to a fall hazard.According to Dun-Par, if Valadez had done his job properly, he wouldhave been no closer than 3 to 3-1\/2 feet from the unguarded perimeteredge and would not have been exposed to a fall hazard. By \”meandering tothe perimeter edge,\” as Dun-Par puts it, Valadez violated its safetyrule and exposed himself to a fall hazard. Dun-Par also contends thatGarrett did not watch Valadez perform his job and saw him near the edgeonly when Valadez fell.The Secretary argues that a violation was established by Valadez’sauthorized presence three feet from the unguarded edge, regardless ofwhether he attempted, as Dun-Par asserts, to go closer to the edge.Because Dun-Par’s own policy contemplated that employees would workthree feet from the edge, the Secretary asserts Dun-Par had at leastconstructive knowledge of the violation. The Secretary also argues thatthrough its foreman Garrett, Dun-Par had actual knowledge of theguardrail violation.The Commission agrees with the judge’s conclusion that Dun-Par violatedsection 1926.500(d)(1) and upholds his affirmance of the citation onthat basis. We agree with the findings of the judge that in approaching2 to 3-1\/2 feet from the unguarded floor edge, Valadez was exposed to afall hazard and not violating any Dun-Par safety rule. The evidenceestablishes that through foreman Garrett, Dun-Par knew or withreasonable diligence could have known that Valadez was exposed to thefall hazard caused by the lack of guardrails. Garrett worked only eightto ten feet from where Valadez was banding. He knew there was noguardrail around the perimeter edge. Garrett also knew where the shoreswere positioned in relation to the unguarded edge. Because Garrett hadexperience with banding, he should have known that to do the assignedbanding job, Valadez had to work about 2 to 3-1\/2 feet from theunguarded perimeter, a position that endangered him.[[2]] See DanielConstruction Co., 82 OSAHRC 23\/A2, 10 BNA OSHC 1549, 1551, 1982 CCH OSHD? 26,027, p. 32,672 (No. 16265, 1982). See also Brennan v. OSHRC(Underhill Construction Co.), 513 F.2d 1032, 1039 (2d Cir. 1975)(employee need not be teetering on edge of floor before requiringprotection).Dun-Par also contends that installation of guardrails was impracticaland that it would have taken much longer to erect guardrails than itwould have taken to do the banding. It asserts that more employees wouldhave been exposed to the unguarded perimeter if guardrails had beenerected than the one employee who was assigned to do the banding.Dun-Par impliedly contends that if guardrails were erected they wouldhave interfered with material being craned off the eleventh floor; italso asserts that if a crane load were to hit a guardrail, it couldspill onto employees working below.The Secretary argues that difficulty and impracticality are not defensesto a citation. He contends that the judge properly found that animpossibility defense was not established because guardrails could havebeen erected in this area and normally were utilized by Dun-Par when itsemployees banded shores. The Secretary also contends that the judgeproperly found that employees erecting guardrails could have beenprotected by safety belts.An employer may defend against a cited violation of a standard bydemonstrating that compliance with the standard was not feasible.Dun-Par Engineered Form Co., 86 OSAHRC __\/__, __ BNA OSHC __, 1986 CCHOSHD ? (No. 79-2553, 1986). To demonstrate infeasibility, an employermay present evidence that compliance would not be practical orreasonable in the circumstances. As we have said, considerations ofreasonableness, common sense, and practicality are implicit in the Actand in a great many of the Secretary’s standards. Dun-Par EngineeredForm, ___ BNA OSHC at ___, 1986 CCH OSHD at p.In this case, Dun-Par has raised the infeasibility defense by contendingthat it was impractical to erect guardrails. It contends that it wouldhave taken two or three employees working between 2 1\/2 to 3 hours toerect and then dismantle the guardrail, while it should have takenValadez only 12 to 15 minutes to band the shores. However, we concludethat Dun- Par has not established the defense. If Dun-Par’s argument ofimpracticality–referring to the additional employees and longer timeneeded to erect guardrails–is taken as an argument that theinstallation of guardrails was not economically feasible, we find thatDun-Par has not presented sufficient evidence in support of theargument.[[3]] Dun-Par has not presented evidence of the actual addedcosts for the labor. Also, Dun-Par has not demonstrated that the costswere unreasonable in light of the protection afforded and has not shownwhat effect, if any, these added costs would have on the contract orbusiness as a whole. If Dun-Par’s argument is that a requirement forguardrails here would be contrary to reasonableness and common sense,see H.S. Holtze Construction Co. v. Marshall, 627 F.2d 149, 151-52 (8thCir. 1980), we believe that the argument must fail because of a lack ofnecessary evidence that it was unreasonable or senseless to erectguardrails at the edge of a floor 131 feet above the ground. It is clearthat the installation of guardrails on the open perimeter here wouldhave provided protection not only for the one employee doing thebanding, but also for other employees required to perform tasks in thearea. Another Dun-Par employee, Garrett, was in the near vicinity of theopen perimeter. We would also infer, in the absence of any contraryevidence from Dun-Par, that there were other employees who would beprotected. For example, Dun-Par employees had stripped the formsincluding the shores after other companies had finished pouring theconcrete. These Dun-Par employees must have placed the shores where theywere later, when Valadez was attempting to band them for the crane. Wealso think that Dun-Par implicitly appreciated the reasonableness ofinstalling guardrails, for Dun-Par’s general superintendent Kleweinadmitted that the stacking and banding of shores normally was done withguardrails up.Dun-Par also argues that guardrails were infeasible because if the loadscollided with the guardrails the guardrails or crane loads could fallonto employees below. We disagree. Dun-Par could have both erectedguardrails and avoided exposing the employees below to the hazard offalling objects. Carpenter foreman Winzer testified that a section ofguardrail could have been removed when Dun-Par was ready to begincraning the shores off the floor. The compliance officer testified thatthe shores could have been craned off the wider portion of the setbackarea to provide the crane operator with more room to maneuver the crane.Thus, Dun-Par has failed to establish that the erection of guardrailswas infeasible.If Dun-Par’s argument is that the installation of the guardrails wouldpresent a greater hazard, we still must reject the defense. As we havediscussed, on this record we cannot say that more employees would beexposed to the hazard of falling from the open edge while installing theguardrails than would be protected by them. We also note that Dun-Parhas not proven that guardrails would have to be erected in a location ormanner that would expose employees to a fall hazard in order to protectemployees working several feet in from the perimeter. Further, theSecretary established that employees erecting guardrails could beprotected by safety belts. Dun-Par thus has not demonstrated that therisk to the employees who install the guardrails must necessarily begreater than the risk to Valadez and any other employees performingtasks in the vicinity of the open perimeter.Dun-Par also raises as a defense the matter of its status as asubcontractor on a worksite on which the general contractor wasresponsible for the installation of guardrails. Dun-Par contends that itshould not be found in violation for the lack of guardrails because thegeneral contractor was supposed to install them. We have permitted adefense on the basis that a subcontractor on a multiple employerworksite neither created nor controlled a hazardous condition. SeeAnning-Johnson Co., 76 OSAHRC 54\/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD ?20,690 (No. 3694, 1976); Grossman Steel & Aluminum Corp., 76 OSAHRC54\/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD ? 20,691 (No. 12775, 1976). Buta subcontractor asserting this defense must make a sufficient showingthat it neither created nor controlled the hazardous condition, and thisincludes showing that the subcontractor possessed neither the expertise,personnel, nor the means to correct the hazardous condition. UnionBoiler Co., 83 OSAHRC 11\/C7, 11 BNA OSHC 1241, 1246, 1983-84 CCH OSHD ?26,453, at p. 33,607 (No. 79-232, 1983), citing Tunnel ElectricConstruction Co., 80 OSAHRC 80\/B7, 8 BNA OSHC 1961, 1980 CCH OSHD ?24,706 (No. 76-1803, 1980). This is not the case with Dun-Par, it wouldappear from the record here. This record shows that Dun-Par was requiredand actually had the capability to replace any existing guardrailsremoved while performing its work. The record also reveals that Dun-Paremployed carpenters and laborers capable of erecting guardrails and noevidence of union jurisdictional problems was presented. If Dun-Parlacked the materials to construct new guardrails, or lacked access toany ready-made guardrails intended for use on the worksite, Dun- Par didnot establish this on this record. Therefore, we conclude that Dun-Parhas not established the defense.Accordingly, the Commission affirms the citation insofar as it alleges aserious violation of section 1926.500(d)(1),[[4]] and assesses a $420penalty.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: July 30, 1986RADER, Commissioner, concurring:I join with my colleagues in affirming a violation of ? 1926.500(d)(1).However, I believe that further clarification of the infeasibilitydefense as it relates to the facts in this case is desirable, in orderto facilitate our holding in Dun-Par Engineered Form Co., No. 79-2553,supra.Our decision to uphold the violation of ? 1926.500(d)(1) is based on thefall exposure of a number of Dun-Par employees. If the only exposure toa fall was the 2 1\/2-3 minutes that Valadez spent banding the shores,then Dun-Par would have established the infeasibility of erectingguardrails on the entire eleventh floor, under our test in Dun-ParEngineered Form Co., No. 79-2553, supra. The burden would not be onDun-Par, at that point, to prove the unavailability of alternative meansof protection. Rather, the Secretary would be required to allege andprove what alternative means of protection Dun-Par should have used.Here the Secretary properly pleaded an alternative violation of ?1926.28(a) for failure to require Valadez to wear a safety belt. Thus,had Dun-Par established the infeasibility of guardrails under ?1926.500(d)(1), the Secretary would have the burden of going forwardwith evidence to support his alternative safety belt allegation under ?1926.28(a). Judge Blythe found that a safety belt was \”the mostpractical form of fall protection\” for Valadez, and indeed it may havebeen. However, we need not reach that issue here, or the concomitantissue of whether the Secretary met his burden of proof under ?1926.28(a), because we believe other Dun-Par employees were also exposedto the fall hazard and that the company should have erected guardrails.————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] Each shore consisted of two 4-inch by 4-inch pieces of lumberclamped together so as to be able to slide side-by-side to a desiredlength. Each stack of shores was 8 feet long, 40-42 inches wide and 30inches high.[[2]] Garrett’s testimony and a signed statement he gave to thecompliance officer conflict as to whether he saw Valadez in the 12 to 18inch distance between the stack and the edge before the fall. The judgefound that Garrett’s testimony was \”suspect\” for this reason. Because weconclude that Garrett either knew or with the exercise of reasonablediligence could have known that Valadez worked within 2 to 3-1\/2 feet ofthe edge, we need not resolve whether Garrett saw Valadez even closer.[[3]] In view of this finding we need not determine whether feasibilityin the context of the earlier Dun-Par case encompasses economic feasibility.[[4]] We do not reach the merits of the ? 1926.28(a) allegation, becausewe find Dun-Par violated ? 1926.500(d)(1).”