“Docket No. 82-0928 SECRETARY OF LABOR, Complainant, v. DUN-PAR ENGINEERED FORM COMPANY, Respondent.OSHRC Docket No. 82-0928DECISIONBefore: BUCKLEY, Chairman; RADER and WALL,Commissioners.BY THE COMMISSION:This case is before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(j), section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). TheCommission is an adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”). It was established toresolve disputes arising out of enforcement actions brought by the Secretary of Laborunder the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. ?659(c).Dun-Par Engineered Form Company builds and erects theforms into which other contractors pour concrete in buildings under construction. Itstrips the forms after the other companies have finished pouring the concrete. On August20, 1982, one of Dun-Par’s employees, Valadez, fell to his death off the unguarded edge ofthe eleventh floor of a thirteen story building under construction in Houston, Texas. TheSecretary of Labor investigated the accident and then issued a one-item citation allegingit violated 29 C.F.R. ? 1926.500 (d)(1) by not guarding an open-sided floor with astandard railing. The Secretary later amended the citation to add the alternativeallegations that Dun-Par had violated 29 C.F.R. ? 1926.28(a) by not requiring itsemployees to wear personal protective equipment, or 29 C.F.R. ? 1926.105(a) by notproviding a safety net to protect its employees. In short, the Secretary alleged thatDun-Par had violated either section 1926.500(d)(1) or 1926.28(a) or 1926.105(a). Section1926.500(d)(1), the standard that is of principal concern here, states:? 1926.500 Guardrails, handrails, and covers.(d) Guarding of open-sided floors, platforms, and runways. (1) Every open-sided flooror platform 6 feet or more above adjacent floor or ground level shall be guarded by astandard 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.The railing shall be provided with a standard toeboard wherever, beneath the open sides,persons can pass, or there is moving machinery, or there is equipment with which fallingmaterials could create a hazard.The building from which Valadez fell was rectangularin shape, but its eleventh, 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-Parforeman Garrett were working on a setback area of the eleventh floor at the building’snortheast corner. Because of the building’s stairstep design, the setback area had nofloors above it.Garrett had assigned Valadez the job of fastening strips of 3\/4-inch wide steel bandingaround two stacks of lumber called shores.[[1]] Each stack of shores required two bands,one at each end. To perform the banding process, it was necessary to unroll a length ofbanding, loop it around the stack to be banded, ratchet it tight with a banding machineand then clip the banding. The employee doing the banding stood alongside the stack ofmaterial being banded. Banding was not a strenuous job and required only a minimum ofphysical exertion. The process took 2-1\/2 to 3 minutes per band. Banded stacks of shoreswere later moved off the floor by crane.The two stacks of shores that Valadez was to bandwere located on a nine foot wide portion of the setback area, parallel to each other butperpendicular to the eastern perimeter of the floor. One end of each stack was 12 to 18inches from the perimeter, which was unguarded. Dun-Par had stacked the shores in thatarea because there was no floor above them and because the crane therefore could lift thebanded shores straight up and off the floor.When Valadez began banding the first stack of shoreshe was working 2 to 3-1\/2 feet from the unguarded-perimeter. He was not wearing a safetybelt. He fell 131 feet to the ground after banding the first stack of shores at the endclosest to the perimeter. That band was variously estimated to be 2 to 3-1\/2 feet from theeastern perimeter.Garrett, the only eyewitness to the accident and theonly other employee working on the eleventh floor on the morning of the accident, hadsafety responsibilities as part of his foreman’s duties and was the supervisor of Valadez.While Valadez was banding, Garrett was working about eight to ten feet from him, receivingand stacking plywood handed down from the twelfth floor. Garrett had experience with thejob of banding and knew the details of Valadez’s banding job.Garrett testified that, while banding, Valadez wasapproximately 2 to 3- 1\/2 feet from the perimeter. He also testified that in walkingbetween the outside edge of the shores and the floor’s unguarded perimeter Valadezviolated DunPar’s safety policy. Garrett testified that Dun-Par’s safety policy withrespect to working near unguarded perimeter edges was:Don’t be out there unless you have to be and if youare out there and you do need a safety line, get one. Be extra careful …. If you are outthere doing something strenuous where you have to use exertion, maybe towards the edge ofthe building or hanging nets where you are real close to the edge, then you wear a safetybelt.Garrett testified he gave Valadez instructions on howto work around the edge 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 theproject site with primary responsibility for safety, testified that Dun-Par’s safetypolicy stresses that employees were \”not to go on the outside perimeter of thebuilding unless there is a specific job to be done that close to the perimeter of thebuilding.\” Randolph Bordner, the Dun-Par official who had overall control of itssafety program, testified that Dun-Par’s safety policy was that the foreman told employees\”to stay away from the edge if it is not necessary to be there.\” If it wasfeasible, lifelines could be used when employees were \”hanging nets on theoutside.\” Bordner also testified that it was possible to string a wire cable betweentwo columns on the eleventh floor and hook a safety belt lanyard onto it for use byemployees working on the setback area.Dun-Par’s general superintendent, Klewein, testifiedthat it was possible to erect guardrails around the unguarded perimeter. Guardrails wouldnormally have been up while the stacking and banding of shores was done. Wire ropeguardrails were installed after the accident. Foreman Garrett testified that he did notbelieve guardrails should have been erected to protect Valadez because it would have takenlonger to put them up than it would have taken for Valadez to do his banding job. Garrettalso testified that the guardrails would have to be taken down to crane the shores off thefloor. Klewein testified that it would have taken three employees about 1-1\/2 hours toerect guardrails along the 56-foot edge of the floor and about 1 to 1-1\/2 hours todismantle 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 them down. Winzer alsotestified that a section of guardrail could have been removed or laid down when the shoreswere being craned off the floor. Also, the compliance officer testified that the shorescould have been craned off a wider portion of the setback area if the crane operatorneeded more room to maneuver.Administrative Law Judge Dee C. Blythe found thatDun-Par had committed a serious violation of section 1926.500(d)(1) and assessed the $420penalty agreed to by the parties if a violation were found. The judge also found thatDun-Par had violated section 1926.28(a) but vacated the section 1926.105(a) allegation.Judge Blythe found that through the knowledge of its supervisory employee Garrett, Dun-Parhad \”actual or constructive knowledge\” of the violative condition to whichValadez was exposed. The judge found that Garrett assigned Valadez the banding job andthat the job required Valadez to work within 2 to 3-1\/2 feet of the eleventh floor’sunguarded perimeter. Assigning Valadez to work so close to the edge, the judge reasoned,exposed Valadez to a fall hazard regardless of whether he went closer to the edge.The judge also stated that the work rule Dun-Pardepended on to prevent Valadez’s exposure only prohibited employees from going to the veryedge of the unprotected perimeter. Yet the gravamen of the violation, the judge found, wasnot in going to the very edge of the unguarded perimeter, but in being \”within bodylength thereof\” without fall protection. Working two to three feet from the unguardededge did not violate any work rule.The judge found that, \”at most,\” Dun-Parestablished only the inconvenience of erecting guardrails, not the impossibility ofinstalling them as Commission precedent then required. He noted that employees erectingguardrails could have been protected by safety belts. The judge also concluded that theguardrails would not have interfered with the operation of the crane. Either a section ofguardrail could have been removed or laid down to allow the removal of the shores by craneor the shores could have been craned off a wider part of the setback area to allow moreroom to maneuver crane loads away from standing guardrails.To prove a violation of a standard, the Secretarymust establish (1) the applicability of the standard, (2) the existence of noncomplyingconditions, (3) employee exposure or access, and (4) that the employer knew or with theexercise of reasonable diligence could have known of the violative condition. See BelgerCartage Service, Inc., 79 OSAHRC 16\/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 nodispute about either the applicability of the guardrail standard or the lack of guardrailsin the pertinent area. Neither is there any doubt about employee exposure. Dun-Paremployee Valadez was clearly exposed to the cited condition, for he fell to his death offthe unguarded floor perimeter. Other Dun-Par employees, particularly those who stacked theshoring that Valadez was banding, had access to the unguarded perimeter. The last elementof the Secretary’s proof–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 bereversed because it did not have knowledge that Valadez was exposed to a fall hazard.According to Dun-Par, if Valadez had done his job properly, he would have been no closerthan 3 to 3-1\/2 feet from the unguarded perimeter edge and would not have been exposed toa fall hazard. By \”meandering to the perimeter edge,\” as Dun-Par puts it,Valadez violated its safety rule and exposed himself to a fall hazard. Dun-Par alsocontends that Garrett did not watch Valadez perform his job and saw him near the edge onlywhen Valadez fell.The Secretary argues that a violation was establishedby Valadez’s authorized presence three feet from the unguarded edge, regardless of whetherhe attempted, as Dun-Par asserts, to go closer to the edge. Because Dun-Par’s own policycontemplated that employees would work three feet from the edge, the Secretary assertsDun-Par had at least constructive knowledge of the violation. The Secretary also arguesthat through its foreman Garrett, Dun-Par had actual knowledge of the guardrail violation.The Commission agrees with the judge’s conclusionthat Dun-Par violated section 1926.500(d)(1) and upholds his affirmance of the citation onthat basis. We agree with the findings of the judge that in approaching 2 to 3-1\/2 feetfrom the unguarded floor edge, Valadez was exposed to a fall hazard and not violating anyDun-Par safety rule. The evidence establishes that through foreman Garrett, Dun-Par knewor with reasonable diligence could have known that Valadez was exposed to the fall hazardcaused by the lack of guardrails. Garrett worked only eight to ten feet from where Valadezwas banding. He knew there was no guardrail around the perimeter edge. Garrett also knewwhere the shores were positioned in relation to the unguarded edge. Because Garrett hadexperience with banding, he should have known that to do the assigned banding job, Valadezhad to work about 2 to 3-1\/2 feet from the unguarded perimeter, a position that endangeredhim.[[2]] See Daniel Construction Co., 82 OSAHRC 23\/A2, 10 BNA OSHC 1549, 1551, 1982 CCHOSHD ? 26,027, p. 32,672 (No. 16265, 1982). See also Brennan v. OSHRC (UnderhillConstruction Co.), 513 F.2d 1032, 1039 (2d Cir. 1975) (employee need not be teetering onedge of floor before requiring protection).Dun-Par also contends that installation of guardrailswas impractical and that it would have taken much longer to erect guardrails than it wouldhave taken to do the banding. It asserts that more employees would have been exposed tothe unguarded perimeter if guardrails had been erected than the one employee who wasassigned to do the banding. Dun-Par impliedly contends that if guardrails were erectedthey would have interfered with material being craned off the eleventh floor; it alsoasserts that if a crane load were to hit a guardrail, it could spill onto employeesworking below.The Secretary argues that difficulty andimpracticality are not defenses to a citation. He contends that the judge properly foundthat an impossibility defense was not established because guardrails could have beenerected in this area and normally were utilized by Dun-Par when its employees bandedshores. The Secretary also contends that the judge properly found that employees erectingguardrails could have been protected by safety belts.An employer may defend against a cited violation of astandard by demonstrating that compliance with the standard was not feasible. Dun-ParEngineered Form Co., 86 OSAHRC __\/__, __ BNA OSHC __, 1986 CCH OSHD ? (No. 79-2553,1986). To demonstrate infeasibility, an employer may present evidence that compliancewould not be practical or reasonable in the circumstances. As we have said, considerationsof reasonableness, common sense, and practicality are implicit in the Act and in a greatmany of the Secretary’s standards. Dun-Par Engineered Form, ___ BNA OSHC at ___, 1986 CCHOSHD at p.In this case, Dun-Par has raised the infeasibilitydefense by contending that it was impractical to erect guardrails. It contends that itwould have taken two or three employees working between 2 1\/2 to 3 hours to erect and thendismantle the guardrail, while it should have taken Valadez only 12 to 15 minutes to bandthe shores. However, we conclude that Dun- Par has not established the defense. IfDun-Par’s argument of impracticality–referring to the additional employees and longertime needed to erect guardrails–is taken as an argument that the installation ofguardrails was not economically feasible, we find that Dun-Par has not presentedsufficient evidence in support of the argument.[[3]] Dun-Par has not presented evidence ofthe actual added costs for the labor. Also, Dun-Par has not demonstrated that the costswere unreasonable in light of the protection afforded and has not shown what effect, ifany, these added costs would have on the contract or business as a whole. If Dun-Par’sargument is that a requirement for guardrails here would be contrary to reasonableness andcommon sense, see H.S. Holtze Construction Co. v. Marshall, 627 F.2d 149, 151-52 (8th Cir.1980), we believe that the argument must fail because of a lack of necessary evidence thatit was unreasonable or senseless to erect guardrails at the edge of a floor 131 feet abovethe ground. It is clear that the installation of guardrails on the open perimeter herewould have provided protection not only for the one employee doing the banding, but alsofor other employees required to perform tasks in the area. Another Dun-Par employee,Garrett, was in the near vicinity of the open perimeter. We would also infer, in theabsence of any contrary evidence from Dun-Par, that there were other employees who wouldbe protected. For example, Dun-Par employees had stripped the forms including the shoresafter other companies had finished pouring the concrete. These Dun-Par employees must haveplaced the shores where they were later, when Valadez was attempting to band them for thecrane. We also think that Dun-Par implicitly appreciated the reasonableness of installingguardrails, for Dun-Par’s general superintendent Klewein admitted that the stacking andbanding of shores normally was done with guardrails up.Dun-Par also argues that guardrails were infeasiblebecause if the loads collided with the guardrails the guardrails or crane loads could fallonto employees below. We disagree. Dun-Par could have both erected guardrails and avoidedexposing the employees below to the hazard of falling objects. Carpenter foreman Winzertestified that a section of guardrail could have been removed when Dun-Par was ready tobegin craning the shores off the floor. The compliance officer testified that the shorescould have been craned off the wider portion of the setback area to provide the craneoperator with more room to maneuver the crane. Thus, Dun-Par has failed to establish thatthe erection of guardrails was infeasible. If Dun-Par’s argument is that the installation of theguardrails would present a greater hazard, we still must reject the defense. As we havediscussed, on this record we cannot say that more employees would be exposed to the hazardof falling from the open edge while installing the guardrails than would be protected bythem. We also note that Dun-Par has not proven that guardrails would have to be erected ina location or manner that would expose employees to a fall hazard in order to protectemployees working several feet in from the perimeter. Further, the Secretary establishedthat employees erecting guardrails could be protected by safety belts. Dun-Par thus hasnot demonstrated that the risk to the employees who install the guardrails mustnecessarily be greater than the risk to Valadez and any other employees performing tasksin the vicinity of the open perimeter.Dun-Par also raises as a defense the matter of itsstatus as a subcontractor on a worksite on which the general contractor was responsiblefor the installation of guardrails. Dun-Par contends that it should not be found inviolation for the lack of guardrails because the general contractor was supposed toinstall them. We have permitted a defense on the basis that a subcontractor on a multipleemployer worksite neither created nor controlled a hazardous condition. See Anning-JohnsonCo., 76 OSAHRC 54\/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD ? 20,690 (No. 3694, 1976);Grossman Steel & Aluminum Corp., 76 OSAHRC 54\/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD ?20,691 (No. 12775, 1976). But a subcontractor asserting this defense must make asufficient showing that it neither created nor controlled the hazardous condition, andthis includes showing that the subcontractor possessed neither the expertise, personnel,nor the means to correct the hazardous condition. Union Boiler Co., 83 OSAHRC 11\/C7, 11BNA OSHC 1241, 1246, 1983-84 CCH OSHD ? 26,453, at p. 33,607 (No. 79-232, 1983), citingTunnel Electric Construction 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 would appear from therecord here. This record shows that Dun-Par was required and actually had the capabilityto replace any existing guardrails removed while performing its work. The record alsoreveals that Dun-Par employed carpenters and laborers capable of erecting guardrails andno evidence of union jurisdictional problems was presented. If Dun-Par lacked thematerials to construct new guardrails, or lacked access to any ready-made guardrailsintended for use on the worksite, Dun- Par did not establish this on this record.Therefore, we conclude that Dun-Par has not established the defense.Accordingly, the Commission affirms the citationinsofar as it alleges a serious violation of section 1926.500(d)(1),[[4]] and assesses a$420 penalty.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 order to facilitate ourholding in Dun-Par Engineered Form Co., No. 79-2553, supra.Our decision to uphold the violation of ?1926.500(d)(1) is based on the fall exposure of a number of Dun-Par employees. If the onlyexposure to a fall was the 2 1\/2-3 minutes that Valadez spent banding the shores, thenDun-Par would have established the infeasibility of erecting guardrails on the entireeleventh floor, under our test in Dun-Par Engineered Form Co., No. 79-2553, supra. Theburden would not be on Dun-Par, at that point, to prove the unavailability of alternativemeans of protection. Rather, the Secretary would be required to allege and prove whatalternative means of protection Dun-Par should have used. Here the Secretary properlypleaded an alternative violation of ? 1926.28(a) for failure to require Valadez to wear asafety belt. Thus, had Dun-Par established the infeasibility of guardrails under ?1926.500(d)(1), the Secretary would have the burden of going forward with evidence tosupport his alternative safety belt allegation under ? 1926.28(a). Judge Blythe foundthat a safety belt was \”the most practical form of fall protection\” for Valadez,and indeed it may have been. However, we need not reach that issue here, or theconcomitant issue of whether the Secretary met his burden of proof under ? 1926.28(a),because we believe other Dun-Par employees were also exposed to the fall hazard and thatthe company should have erected guardrails.The Administrative Law Judge decision in this matter is unavailable in this format. Toobtain a copy of this document, please request one from our Public Information Office bye-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 lumber clamped together so asto be able to slide side-by-side to a desired length. Each stack of shores was 8 feetlong, 40-42 inches wide and 30 inches high.[[2]] Garrett’s testimony and a signed statement hegave to the compliance officer conflict as to whether he saw Valadez in the 12 to 18 inchdistance between the stack and the edge before the fall. The judge found that Garrett’stestimony was \”suspect\” for this reason. Because we conclude that Garrett eitherknew or with the exercise of reasonable diligence could have known that Valadez workedwithin 2 to 3-1\/2 feet of the edge, we need not resolve whether Garrett saw Valadez evencloser.[[3]] In view of this finding we need not determine whether feasibility in the context ofthe earlier Dun-Par case encompasses economic feasibility.[[4]] We do not reach the merits of the ? 1926.28(a) allegation, because we find Dun-Parviolated ? 1926.500(d)(1).”