“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-2332 FLEETWOOD HOMES OF TEXAS, INC.,?? \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0September30, 1980DECISIONBefore: CLEARY, Chairman; BARN KO and COTTINE,Commissioners.BY THE COMMISSION:??????????? Adecision of Administrative Law Judge Dee C. Blythe is before the Commissionpursuant to section 12(j)[1] of the Occupational Safetyand Health Act of 1970, 29 U.S.C. ?? 651?678 (?the Act?). Judge Blythe affirmeda citation alleging that Respondent, Fleetwood Homes of Texas, Inc.(?Fleetwood?), violated section 5(a)(2)[2] of the Act by failing toinstall guardrails on open-sided, elevated work planks (called ?spanners?) asrequired by the standard at 29 C.F.R. ?\u00a01910.23(c)(1).[3] At issue is whether thejudge erred in classifying the spanners, which were more than four feet?butless than ten feet?above ground level, as ?platforms? rather than ?scaffolds.?[4]??????????? Followingan inspection of Respondent?s manufacturing facility in Waco, Texas, theSecretary of Labor (?the Secretary?) issued a citation alleging failure tocomply with certain safety standards promulgated by the Secretary. Respondenttimely contested only the item now on review.[5] Thereafter, a complaintand an answer were filed with the Commission and a hearing was held beforeJudge Blythe. The judge affirmed the citation and assessed the $95 penaltywhich the parties had previously stipulated would be appropriate in the eventthat the violation were sustained. Commissioner Barnako granted Respondent?spetition for discretionary review. Our holding that the spanners here were?scaffolds? obviates the need to respond to the remaining issues raised inRespondent?s petition.[6]I.??????????? Fleetwoodmanufactures mobile homes. On the production line, the homes are aligned end toend at varying intervals and are advanced through successive assembly stations(e.g., electrical, sheet metal, doors and windows, molding, finishing). At eachstation, ?lateral work decks? are positioned along both sides of each mobilehome. Each of these lateral work decks is a single-level, raised work surfacesupported by a steel frame of horizontal, vertical and diagonal braces. Theoutward sides of the lateral work decks, facing away from the production line,are equipped with guardrails, while the inward sides are open to permit theemployees to work on the homes on the line.[7] The lateral work decks areseventy to eighty feet long, approximately two to three feet wide, and mountedon casters. When work has been completed at all of the assembly stations, thelateral work decks are manually rolled aside about three feet from the homes inorder to prevent them from scratching or doing other damage to the homes as the?lead? mobile home is pulled off the line and the remaining homes are pulledforward in turn to undergo the next assembly stage.??????????? Inorder for Fleetwood?s employees to work on the ends of the mobile homes,aluminum planks, called ?spanners?, are placed by hand across the gulf betweenthe lateral work decks, forming work bays. The planks are light enough so thata worker can lift them unaided. They are approximately fourteen feet long andtwenty-four to thirty inches wide. Fleetwood?s mobile home models come in threelengths: fifty-six feet, sixty-six feet, and seventy-six feet. Consequently,these spanners cannot be located at fixed and uniform intervals on the line;their placement depends upon the length of the mobile home being worked on atthe particular assembly stage. Every two hours, the spanners must be removedand then repositioned when the mobile homes on the production line areadvanced.??????????? Duringthe course of his inspection, compliance officer Moore observed two mobilehomes under construction, each with spanners at both ends. At the sheet metalstation, Moore measured the elevation of the spanner and found it to beapproximately seven feet above the concrete floor. At the trim station, thespanner was four feet two inches above the floor. At neither assembly stationdid the spanner have any guardrail. In Moore?s opinion, the absence of the guardrailpresented the hazard of a fall to the floor below, Moore observed a Fleetwoodemployee working on one of the spanners and ascertained that they were usedregularly during the manufacturing process.??????????? Atthe hearing, Respondent contended that scaffolds are portable, movable, andtemporary. Thus, it argued, the spanners are ?scaffolds?, as defined at 29C.F.R. ?\u00a01910.21(f)(27)[8] and 29 C.F.R. ?1910.21(g)(15),[9]not ?platforms?, as defined at 29 C.F.R. ?\u00a01910.21(a)(4).[10] Consequently, Respondentargued that guardrails are not required where, as here, the elevation of thespanner scaffolds does not exceed ten feet.[11]??????????? TheSecretary contended that the scaffolding standard applies only to temporarystructures. He further argued that the spanners are not temporary; they arenever dismantled, replaced or removed from the plant. Moreover, they are anintegral part of the production process, permanent parts of the assembly line.In his view, this use brings them within the meaning of the platformdefinition, section 1910.21(a)(4). Consequently, the Secretary maintained thatguardrails are required where, as here, the elevation of the spanner-platformsexceeds four feet.[12]??????????? Inaffirming the citation as an other than serious violation of the Act, JudgeBlythe rejected Fleetwood?s characterization of the spanners as temporary. Thejudge determined that the work performed on the spanners was of a continuingnature; even though the spanners were repositioned several times a day, therewas nothing temporary about them. Accordingly, the judge concluded that theywere platforms and that guardrails were required under the cited standard.II.??????????? Wedisagree with the judge?s conclusion.[13] At the outset, we notethat it is the nature of the spanners, not that of the lateral work decks,which is before us. The Commission confronted this same issue?and virtuallyidentical facts?in Prowler Travel Trailers of New York, Inc., 77 OSAHRC207\/A2, 6 BNA OSHC 1134, 1977?78 CCH OSHD ?22,397 (No. 15636, 1977). There,too, another subsidiary of Fleetwood?s parent company, Fleetwood Enterprises,contested a citation alleging noncompliance with section 1910.23(c)(1) forfailure to equip the open sides of two spanners, fifty-three inches above thefloor, with guardrails. Prowler?s plant was arranged in a similar configurationand followed production procedures similar to those used by Fleetwood. The onlysubstantial difference between the relevant conditions in the two plants isthat Prowler?s lateral work decks were permanently installed in fixedpositions, whereas Fleetwood?s are mounted on casters and must be adjusted eachtime the product is moved to the next assembly stage. In Prowler the twositting Commissioners divided an, thus, left the judge?s vacation of thecitation undisturbed.??????????? TheSecretary?s standards differentiate platforms and scaffolds based on whetherthey are permanent or temporary working surfaces, respectively. What must beresolved here is whether this ?permanent?temporary? distinction applies to thenature of the structure itself, as asserted by Fleetwood, or to the use of thestructure, as asserted by the Secretary.[14]??????????? Weconclude that the ?permanent?temporary? distinction relates to the constructionand placement of the device, not to the frequency or regularity of its use inthe employer?s operation. When and how a device is used does not change it froma ?scaffold? to a ?platform.? For example, a scaffold used to support a crew ofwindow-washers does not become a ?platform? if the employer chooses to wash thewindows every two hours (as the spanners were deployed here). The fact that thespanners might be characterized as an integral part of fabrication, processing,assembling or similar work functions is not significant. The structural?not thefunctional?attributes are determinative.[15]??????????? Thecited standard does not apply to these spanners. The record indicates that thestructures are continually repositioned on the production line. They are notinvariably set down in the same location. Their placement depends upon thelength of the mobile home. The size and weight of the spanners permits them tobe handled by a single employee. Indeed, the controlling fact here is theportability of the spanners; they are not fixed, permanent, immovable parts ofthe assembly line. Thus, the evidence showing that the spanners are portableand are moved to fit the needs of the job establishes that they are scaffoldswithin the meaning of the definition at 29 C.F.R. ? 1910.21(f)(27). See Ringland-Johnson,Inc., 76 OSAHRC 63\/A2, 4 BNA OSHC 1343, 1976?77 CCH OSHD ? 20,801 (No.3028, 1976), aff?d, 551 F.2d 111m (8th Cir. 1977).??????????? Ourfinding that the spanners are scaffolds and therefore that the cited standardis inapplicable disposes of the case.[16] Accordingly, we reversethe judge?s decision and vacate the citation and notification of proposedpenalty. SO ORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED:SEP 30, 1980CLEARY, Chairman, dissenting:??????????? Mycolleagues today license Fleetwood?s parent company, Fleetwood Enterprises, toexpose its employees to fall hazards in sixty-two plants throughout the UnitedStates and Canada.[17] I must dissent.??????????? Themajority emphasizes the physical attributes of the spanner, especially itsportability, in defining it as a scaffold. I maintain that the portabilityimplicit in the meaning of ?scaffold? contemplates mobility from one place toanother, over some distance. Here, though, the spanners are not borne from siteto site. They remain at a particular work station in the plant. They areinvariably repositioned within the same twenty-foot range (according to thelength of the mobile home) on the production line. They are more trulyadjustable, rather than portable. Thus, scaffolding standards need not control.??????????? Themajority considers only the construction of the spanner and ignores the contextof its use. I believe that the nature of a thing can be determined by referenceto its object. See Gil Haugan d\/b\/a Haugan Construction Co., 79 OSAHRC107\/A2, 7 BNA OSHC 2004, 1979 CCH OSHD ? 24,105 (Nos. 76?1512 and 76?1513,1979). Here, the object of the spanner is to enable production line workers tocomplete repetitive assembly tasks at a particular work station for theduration of the life of the manufacturing facility. The spanner does not servethe transitory purpose of a construction or maintenance scaffold, which isnever intended to remain at the same precise location for all of its usefullife. The spanner is a permanent?not a temporary?unit of the production line. Thus,the cited platform standard applies.??????????? Here,the reasonable employer would recognize and remedy the persistent fall hazardto workers engaged in the routine, continual production process. ToRespondent?s credit, although the lateral work decks are less than ten feetabove ground level, they are equipped with guardrails to mitigate such hazards.Lamentably, the spanners escaped Respondent?s attention?and my colleagues?. Iwould adhere to the position I stated in Prowler Travel Trailers of NewYork, Inc., 77 OSAHRC 207\/A2, 6 BNA OSHC 1134, 1977?78 CCH OSHD ? 22,397(No. 15636, 1977): the spanners are platforms within the meaning of section1910.21(a)(4) and the cited standard because Respondent?s employees regularlyuse the spanners as a working space to do work that is a constant part of theassembly process.[18]\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-2332 FLEETWOOD HOMES OF TEXAS, INC.,?? \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINAL ORDER DATE: August 2, 1978DECISION AND ORDERAppearances:Richard L. Collier, Esq., of Dallas,Texas, for the complainant.\u00a0Phillip E. McCleery, Esq., of Waco, Texas,for the respondent.?STATEMENT OF THE CASEBLYTHE, Judge:??????????? Thisis a proceeding brought before the Occupational Safety and Health ReviewCommission (?the Commission?) pursuant to ? 10 of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ? 651, et seq. (?the Act?), contesting onecitation issued by the complainant, the Secretary of Labor (?the Secretary?),to the respondent, Fleetwood Homes of Texas, Inc. (?Fleetwood?), underauthority vested in the Secretary by ? 9(a) of the Act.??????????? Asthe result of an inspection conducted on April 22, 1976, of a workplace at 2801Gholson Road, Waco, Texas, where Fleetwood manufactures mobile homes, onecitation was issued to Fleetwood on May 5, 1976, alleging that it violated ?5(a)(2) of the Act in that it failed to comply with certain safety standardspromulgated by the Secretary. Fleetwood on May 17, 1976, gave timely notice ofcontest of one item,[19] and thereafter acomplaint and an answer were filed with the Commission.??????????? Ahearing was convened at Waco, Texas, on April 5, 1978. No affected employee orrepresentative of affected employees participated in this proceeding. Both ofthe parties have submitted post-hearing briefs, and Fleetwood has submittedproposed findings of fact and conclusions of law.??????????? Fleetwoodadmitted the jurisdictional allegations of the complaint and stipulated (Tr. 6)that, if it should be found in violation, the proposed penalty of $95 isappropriate. The only issue remaining to be determined is whether Fleetwood wasin nonserious violation of 29 CFR 1910.23(c)(1)[20].DISCUSSION AND OPINION??????????? Thiscase is a sequel to Prowler Travel Trailers of New York, Inc., 77 OSAHRC207\/A2, 6 BNA OSHC 1134, 1977?78 CCH OSHD ? 22,397 (No. 15636, 1977), in whicha two-member Commission was unable to agree[21] on whether ?spanners?resting on two permanently-installed, parallel catwalks were ?platforms?requiring or ?scaffolds? not requiring guardrails, due to their heights.[22]??????????? Prowler,like Fleetwood, is a wholly-owned subsidiary of Fleetwood Enterprises, Inc.,which operates 62 similar manufacturing plants throughout the United States andCanada (Tr. 50, 58). Since its assembly lines are essentially identical in allthese plants, the issue here involved is of considerable importance to theparent company. At Fleetwood?s request, the Commission stayed proceedings inthe present case until after Prowler was decided and did not assign it to aJudge until February 7, 1978.??????????? AlthoughProwler involved travel trailers instead of mobile homes, the two cases areindistinguishable factually, with one possible exception: In the present casethe catwalks supporting the spanners were caster-mounted whereas both theCommission?s and the Judge?s decisions in Prowler indicate that the catwalkswere in fixed positions, the Commission describing them as ?permanentlyinstalled? and ?a permanent supporting structure? and the Judge finding them tobe ?two fixed runways?.[23]??????????? Ifthe caster-mounted catwalks here involved could be classified as mobile scaffolds,Fleetwood?s case would be strengthened because the Secretary?s contention thatthe spanners were platforms depends to some extent upon the degree ofpermanence of the installation. However, as previously noted, the guardrailrequirements are the same for scaffolds generally [? 1910.28(a)(3)] and mobilescaffolds [? 1910.29(a)(3)(vii)]; that is, no guardrails would be required inthe present case since the spanners were less than 10 feet above floor level.??????????? ?Platforms,?as used in ? 1910.23, is defined by ? 1910.21(a)(4) asA working space for persons, elevatedabove the surrounding floor or ground; such as a balcony or platform for theoperation of machinery and equipment.??Scaffold,? as used in ? 1910.28, isdefined in ? 1910.21(f)(27) asAny temporary elevated platform andits supporting structure used for supporting workmen or materials or both.[Emphasis supplied.]???????????? Thedefinition of ?[m]anually propelled mobile scaffold,? though misplaced in ?\u00a01910.21(f)(17)(pertaining to scaffolds generally), is as follows:A portable rolling scaffold supported bycasters.?This definition is consistent with two definitionsfound in ? 1910.21(g) and applicable to ?\u00a01910.29:(11) MobileScaffold (tower). A light, medium, or heavy duty scaffold mounted oncasters or wheels.?(12) Mobile.?Manually propelled.????????????? ?Scaffold?is again defined in 1910.21(g)(15), as used in ? 1910.29, asAny temporary elevated platform andits necessary vertical diagonal, and horizontal members used for supportingworkmen and materials. (Also known as a scaffold tower.) [Emphasis supplied.]???????????? Since?temporary? appears in both definitions of ?scaffold,? including the oneapplicable to mobile scaffolds, it must be concluded that a mobile scaffold,too, is temporary. It thus becomes necessary to determine the degree ofpermanence of the structure here involved. The fact that they werecaster-mounted is not controlling.??????????? Theplant area involved is Fleetwood?s final assembly line, at two stations ofwhich sheet metal, doors, windows, molding, and finish items are installed onmobile homes of varying lengths (56, 66 and 76 feet) and a uniform width (13feet 8 inches). Work on the sides of the mobile homes is accomplished frommovable caster-mounted catwalks 80 feet long with working surfacesapproximately 4 feet or 7 feet above floor level. Every 11\/2 to 3 hours, whenthe mobile homes to 3 hours, when the mobile homes catwalks are pulled back tokeep them from scratching the sides of the mobile homes, then rolled back intoposition adjacent to the next mobile home in the line. These catwalks haveguardrails on the open sides away from the mobile homes but not on the othersides due to the work being performed and fall protection provided by themobile homes themselves.??????????? Toenable three employees to work on the ends of the mobile homes at thesestations, aluminum spanners 24 or 30 inches wide are placed across the spacebetween the catwalks. These spanners are light enough to be removed andreplaced by one employee, who simply slides them far enough to clear thecatwalk on one end, then lowers or raises them (depending on whether they arebeing removed or replaced) and moves them in the opposite direction. Thismaneuver must be made every time the mobile homes are advanced on the line.??????????? Thespanners are not fastened in place. They have no guardrails, but at the ends ofthe catwalks there are hooks from which horizontal chains are hung if thespanners are in those locations. These chains are only about 24 inches abovethe spanner (as compared to 42 inches for a standard guardrail) and areintended only to serve as a warning to employees that they are too close to theedge (Tr. 59).??????????? In aperiod of 8 years, 2 employees fell off these spanners, but apparently sufferedno injuries (Tr. 67).??????????? Fleetwoodcontends that the spanners are scaffolds because they are portable, are laidbetween mobile scaffolds, and are moved frequently. The Secretary contends thatthe scaffold standards apply only to structures regularly used in theproduction process. These positions are essentially those of CommissionerBarnako and Chairman Cleary, respectively, in Prowler.??????????? CommissionerBarnako cited Ringland-Johnson, Inc., 76 OSAHRC 63\/A2, 4 BNA OSHC 1343,1976?77 CCH OSHD ?20,801 (No. 3028, 1976), aff?d, 551 F. 2d 1117 (8thCir. 1977), while Chairman Cleary cited General Electric Co., 75 OSAHRC50\/A2, 3 BNA OSHC 1031, 1974?75 CCH OSHD ?19,567 (No. 2739, 1975), rev?d inpart on other grounds, 540 F. 2d 67 (2nd Cir. 1976), and Whirlpool Corp.,77 OSAHRC 36\/C11, 5 BNA OSHC 1173, 1977?78 CCH OSHD ?21, 659 (No. 9224, 1977).These were ?see? citations, however, and are not directly in point.??????????? Ringland-Johnson(though a ? 5(a)(1) ?general duty clause? case) involved the definition of?scaffold? in a construction standard, ? 1926.452(b)(27), which is identical to?\u00a01910.21(f)(27), supra, and the Commission majority held that a temporaryelevated platform on a structure all of which ?was portable and moved accordingto the need of the job? was a ?scaffold? and not a platform having the degreeof permanency suggested by the words ?operation of machinery and equipment? byparagraph [1926.] 502(e)? (which, in turn, is identical to ? 1910.21(a)(4),supra).??????????? GeneralElectric and Whirlpool, on the other hand, involved manufacturingoperations. General Electric held that large, wheeled stator frames, componentparts of turbine generators, were ?platforms? under ? 1910.253(e)(1)(i) and asdefined in ? 1910.21(a)(4), supra, pointing out that any other reading of thestandard would detract from the Act?s purpose to protect the health and safetyof workers and that ?this purpose is best served by a broad construction of theword ?platform? in the standard.? Here, also, unless there is such a broadconstruction, the workers will go unprotected against a fall hazard.??????????? In Whirlpool,where the Judge had vacated a ? 5(a)(1) ?general duty clause? citation on theground that screens under a system of overhead conveyors were ?scaffolds? under? 1910.28(a)(1), supra, the Commission majority said,We do not agree that ? 1910.28(a)(1)applies here. A scaffold is defined at 29 CFR ? 1910.21(f)(27) [footnoteomitted] as a temporary working surface. The facts indicate that respondent?sneed to have work performed on and above the screens is permanent. Thus, anymeans of providing safety protection to employees must also be permanent. Astandard contemplating only temporary structures is therefore not applicable.???????????? Herethe work performed on the spanners was of a continuing nature, even though thespanners were removed and the catwalks were rolled back several times a day.There was nothing ?temporary? about this structure or operation. Additionally,the catwalks were moved only slightly, and once they were in working positionstheir wheels were locked and they were linked together in pairs by thespanners.??????????? Asituation essentially identical to the present one was decided early on (and inthe same way) in Sandler-Bilt Homes, 72 OSAHRC 11\/A2, 1 BNA OSHC 3136,1971?73 CCH OSHD ?15,227 (No. 367, 1972), where Judge Harris wrote,The definition of ?platform? conveys themeaning that a degree of permanence exists either in the method of constructionthereof or the use to which it is put. This is contrasted with the specificreference to temporary erection which appears in the definition of ?scaffold.?The former applies to work platforms in a plant which are an integral part offabrication, processing, assembling and similar work functions while the latterrefers to any temporary structure made necessary in repair, alteration,construction and similar work operations, the need for which ends when therepair, construction or alteration is completed. The mere fact that a platformwhich is used as an integral part of production may be easily dismantled andre-assembled does not operate to render it ?temporary? within the meaning of 29CFR 1910.21(f)(27). The platforms in Respondent?s main assembly plant wereregularly used as an integral part of its production of modular homes . . ..The use to which these elevated structures were put, renders them platformswithin the meaning of 29 CFR 1910.28(a)(3) and Respondent?s failure to providethem with guardrails and toeboards was in violation of the standard at 29 CFR1910.23(c)(1).???????????? Unfortunately,Judge Harris? decision was not reviewed by the Commission or appealed to theCourts, but in the absence of clear Commission precedent to the contrary it isentitled to some precedential weight. It is consistent with General Electricand Whirlpool and can be reconciled with Ringland-Johnson on thebasis that a repetitive manufacturing process, unlike construction, is not?temporary? in nature. I find that the work structures here involved were?platforms? as cited and that they were required by ? 1910.23(c)(1) to haveguardrails.??????????? Fleetwoodalso contends, in accordance with Commissioner Barnako?s views in Prowler,that the scaffold standards are more specific than the ?platform? standard andthat the former are applicable. It seems to me that once the ?platform v.Scaffold? question is solved the problem of general v. specific standardbecomes moot. A scaffold is certainly a type of platform, by definition, butthe scaffold standards are really no more specific than ? 1910.23(c)(1), as faras guardrails are concerned.??????????? Finally,Fleetwood contends that, due to the ?platform v. scaffold? definitioncontroversy the standards are unenforceably vague. It does not specificallyclaim that any one of these standards is invalid for this reason. The questionis, or should be, whether the cited standard, ? 1910.23(c)(1) is unenforceablevague. I hold that it is not.??????????? Therewas some testimony at the hearing that Fleetwood had experimented with variousmethods of guarding the spanners with rails and chains but found them all to beinfeasible (Tr. 52?57, 60?65). It has not pleaded the affirmative defense ofimpossibility of compliance and has not argued it in its brief except to state(Br. pp. 11?12) that to require such guardrails would necessitate ?a completeplant re-design.? This is hardly sufficient to raise the ?impossibility?defense, but in any event Fleetwood has at most proved impracticability ofcompliance, which is not a defense. General Steel Fabricators, 77 OSAHRC165\/E14, 5 BNA OSHC 1768, 1977?78 CCH OSHD ?22,164 (No. 13646, 1977). In fact,the compliance officer suggested one means of compliance which Fleetwood hadnot tried: A metal guardrail assembly which could be clamped to the edges ofthe catwalks adjacent to the spanners (Tr. 65, 71). I find this means ofcompliance feasible.CONCLUSIONS OF LAW??????????? 1.The Commission has jurisdiction of the parties and of the subject matter ofthis proceeding.??????????? 2. OnApril 22, 1976, Fleetwood was in nonserious violation of ? 5(a)(2) of the Actand 29 CFR 1910.23(c)(1).ORDER??????????? Onthe basis of the foregoing findings of fact and conclusions of law, it isORDERED that:??????????? 1.Item 1 of citation 1, for nonserious violation of 29 CFR 1910.23(c)(1), be andit hereby is AFFIRMED ant that a penalty of $95 be and it hereby is ASSESSED.??????????? 2.Respondent?s requested findings of fact and conclusions of law, to the extentthat they are inconsistent with this decision, be and they hereby are DENIED.??????????? 3.This proceeding be and it hereby is terminated.?DEE C. BLYTHEAdministrative Law JudgeDate: July 3, 1978[1] 29 U.S.C. ?661(i).[2] 29 U.S.C. ?654(a)(2).[3] Section1910.23(c)(1) provides:(c)Protection of open-sided floors, platforms, and runways. (1) Every open-sidedfloor or platform 4 feet or more above adjacent floor or ground level shall beguarded by a standard railing (or the equivalent as specified in paragraph(e)(3) of this section) on all open sides except where there is entrance to aramp, stairway, or fixed ladder. The railing shall be provided with a toeboardwherever, 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.[4] Had thesestructures been deemed to be ?scaffolds?, they would have been governed by thestandard at 29 C.F.R. ? 1910.28(a)(3) and guardrails would not have beenrequired under the circumstances. Section 1910.28(a)(3) provides:(a)General requirements for all scaffolds.(3)Guardrails and toeboards shall be installed on all open sides and ends ofplatforms more than 10 feet above the ground or floor except: (i) Scaffoldingwholly with in the interior of a building and covering the entire floor area ofany room therein and not having any side exposed to a hoistway, elevator shaftstairwell, or other floor openings, and (ii) Needle-beam scaffolds and floatsin use by structural iron workers. Guardrails should all be 2 x 4 inches or theequivalent, installed no less than 36 inches or not more than 42 inches high,with a midrail, when required, of 1- x 4- inch lumber or equivalent. Supportsshould be at intervals not to exceed ten feet. Toeboards shall be a minimum of4 inches in height.[5] Other itemsalleging other than serious violations of the Act due to failure to comply with29 C.F.R. ? 1903.2(a) and 29 C.F.R. ? 1910.22(a)(1), .26(c)(2)(vii),.107(e)(4), .157(a)(5), .157(c)(3)(i), .212(a)(2), .212(a)(5), .213(c)(3),.219(d)(1) and .219(e)(3)(i) and a serious violation of the Act based onnoncompliance with 29 C.F.R. ? 1910.213(h)(1) were not contested and havebecome final orders of the Commission by operation of section 10(a) of the Act,29 U.S.C. ? 659(a).[6] Fleetwood raisedthe following additional issues on review:1.Whether, taken as a whole, the standards and accompanying definitions relatingto scaffolds and platforms are unenforceably vague;2.Whether Respondent was erroneously cited under a general standard regardingplatforms when the more specific standard regarding scaffolds should havecontrolled here [based on assumption that both standards are applicable];3.Whether it is significant for purposes of classifying the spanners that thework structures which supported the spanners were caster-mounted and,therefore, portable, mobile and moved to fit the needs of the job?allcharacteristic of scaffolds; and4.Whether the judge?s finding that the means of compliance suggested by thecompliance officer was feasible is so against the great weight andpreponderance of the evidence as to be clearly wrong.[7] Judge Blythenoted in his decision that the presence of the mobile home itself provides fallprotection on the unguarded, inward side of the lateral work deck.[8] Section1910.21(f)(27) provides:Scaffold.Any temporary elevated platform and its supporting structure used forsupporting workmen or materials or both.[9] Section1910.21(g)(15) provides:Scaffold.Any temporary elevated platform and its necessary vertical, diagonal, andhorizontal members used for supporting workmen and materials. (Also known as ascaffold tower.)[10] Section1910.21(a)(4) provides:Platform. A working space for persons,elevated above the surrounding floor or ground; such as a balcony or platformfor the operation of machinery and equipment.[11] See note 4 supra.[12] See note 3 supra.[13] On review, theparties renewed the arguments which they made before the judge. Respondent alsocontended that the judge?s finding as to the feasibility of compliance wasclearly wrong. See note 6 supra. The Secretary did not file a brief on review,relying instead upon his brief filed in Prowler, infra, Judge Blythe?s decisionand order, and the record of the hearing below.[14] Morespecifically, the Secretary argued in his brief in Prowler, see note 13supra, that ?[t]o be properly classified as a scaffold a platform must betemporary both in construction and its use.? (emphasis added). However,he then stressed the use of the structures at issue.[15] CommissionerCottine notes that in Gil Hugan, d\/b\/a Haugan Construction Co., 79OSAHRC 107\/A2, 7 BNA OSHC 2004, 1979 CCH OSHD ?24,105 (Nos. 76?1512 &76?1513, 1979) a functional analysis was applied to determine whether a tractorperforming lifting functions must be in compliance with a safety standardapplicable to cranes or derricks. The Commission held that the cited standardapplies to machines used to perform lifting functions usually performed bycranes or derricks, regardless of whether the cited machines were designed forthat purpose. The Commission was interpreting a standard that did not includespecific definitions of its terms. It was also confronted with determiningwhether a hazardous condition that would otherwise be unregulated was coveredby the cited standard. The Commission stated that in making its determinations,?we look to the purposes of the Act and of the standard.? Pursuant to thestatutory purpose of assuring a safe and healthful workplace, the Commissionmajority determined that ?any ambiguity in the standard should be resolved infavor of eliminating the hazard.?Commissioner Cottine observes that,in contrast to the standards considered in Haugan and the casesfollowing it, the relevant terms in the standards involved in this case arespecifically defined. Therefore, the Commission must determine which of the twostandards is applicable to the cited structure in this case. In CommissionerCottine?s view, there is no lack of definition or ambiguity of these terms thatnecessitates an interpretation based on the similarity of hazards, the intentof the drafters, or the remedial purposes of the Act as there was in Haugan.Although Commissioner Barnako joinsin the remainder of the lead decision, he continues to adhere to the positionhe stated in Gil Haugan, d\/b\/a Haugan Constr. Co., supra (concurring anddissenting opinion) and thus does not join in Commissioner Cottine?s analysisof that case here. In Gil Haugan, Commissioner Barnako stated hisinterpretation of the standard at 29 C.R.R. ?\u00a01926.550 and concluded thatthe performance of a lifting function was not a sufficient basis on which toapply the standards governing cranes to equipment that did not possess thestructural attributes of cranes. He interprets the standard at issue in thiscase in the same manner. Thus, Commissioner Barnako concludes that the spannersare structurally scaffolds and must be governed by the scaffold standards. Inhis view, even if the spanners could be characterized as performing the samefunctions as a platform, this would not be a sufficient basis for bringingthese scaffolds within the ambit of the platform standard.[16] See note 4 supra.[17] FleetwoodEnterprises? Corporate Safety Manager testified that its plants share similarmanufacturing configurations.[18] Judge Blytheidentified this case as a ?sequel? to Prowler Travel Trailers, and deemed thetwo cases indistinguishable factually, with one possible exception: here, thestructures supporting the spanners are caster-mounted, whereas those in Prowlerwere in fixed positions. Nevertheless, the judge concluded that this fact wasnot controlling. I agree. The presence of the locking casters may ease theperiodic, three-foot movement and repositioning of these work platforms on theproduction line, but it does not render them transportable away from the lineto another location, any more than caster-mounted office chairs are therebytransportable.[19] Other itemsalleging nonserious violations of 29 CFR 1903.2 and 29 CFR part 1910 ??22(a)(1), 26(c)(2)(vii), 107(e)(4), 157(a)(5), 157(c)(3)(i), and 212(a)(2),were not contested and have become final orders of the Commission by operationof ? 10(a) of the Act.[20] 29 CFR1910.23(c)(1):Everyopen-sided floor or platform 4 feet or more above adjacent floor or groundlevel shall be guarded by a standard railing (or the equivalent as specified inparagraph (e)(3) of this section) on all open sides, except where there isentrance to a ramp, stairway, or fixed ladder. The railing shall be providedwith a toeboard 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.[21] The Commission,though equally divided, affirmed the Judge?s decision vacating the citationunder 29 CFR 1910.23(c)(1).[22] Two of thespanners here involved were 50 inches above the floor and two more were 7 feetabove the floor, and they had no fall protection. If they were ?platforms,? ?1910.23(c)(1), supra, n. 2, requires them to be guarded on all open sides bystandard railings. If, as Fleetwood contends, they were ?scaffolds? or ?mobilescaffolds,? the applicable standard would be ? 1910.28(a)(3) or ?1910.29(a)(3)(vii), which do not require guardrails unless the work level is 10feet or more above the ground or floor.[23] ?Runways? theywere not; ? 1910.21(a)(5) defines ?runway? as ?A passageway for persons,elevated above the surrounding floor or ground level, such as a footwalk alongshafting or a walkway between buildings.? They really aren?t catwalks, either,but since the Commission used that term in Prowler it will be used here inorder to avoid the ?platform? and ?scaffold? terminology in dispute.”