“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76?4627 \u00a0 FRANK SWIDZINSKI COMPANY, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0January 23, 1981DECISIONBefore: CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? Adecision of Administrative Law Judge David H. Harris is before the Commissionfor review under section 12(j)[1] of the Occupational Safetyand Health Act of 1970, 29 U.S.C. ??\u00a0651?678 (?the Act?). In thatdecision, Judge Harris concluded, among other things, that Respondent, Frank SwidzinskiCompany (?Swidzinski?), violated the Act by failing to comply with theguardrail standard at 29 C.F.R. ? 1926.500(d)(1).[2] The judge found theviolation to be serious under section 17(k) of the Act, 29 U.S.C. ? 666(j). Forthe serious violation, the Secretary proposed a penalty of $650, and the judgeassessed a penalty of $250. In its petition for discretionary review,Swidzinski raised the following issue:??????????? Whetherthe Administrative Law Judge erred in finding Respondent in violation of 29C.F.R. ? 1926.500(d)(1)???????????? CommissionerBarnako granted Swidzinski?s petition. We affirm the judge?s decision.I??????????? Thefacts pertaining to the alleged serious violation of the guardrail standard at29 C.F.R. ? 1926.500(d)(1) are not in dispute. The Siegfried Company, the primecontractor, built wooden platforms extending out from the three upper levels ofa five story building under construction. The purpose of the platforms was tofacilitate the delivery of building materials by all building trades, includingSwidzinski, a subcontractor. The platforms were constructed of wooden plankseight feet long; they projected outward six feet. Each platform was providedoriginally with standard railings and toeboards on the extended sides. While acompliance officer of the Occupational Safety and Health Administration wasconducting a post-inspection closing conference on Swidzinski?s worksite, heobserved one of Swidzinski?s employees on the extended platform for the fourthfloor. The employee, Robert Smith, was directing the crane operator, 41 feetbelow, in the delivery of pallets of concrete blocks. Smith stood inches fromthe front end of the platform while directing the crane operator. There was noguardrail across the front end of the platform, and Smith was not wearing asafety belt. After the two pallets of blocks were lowered onto the platform bythe crane, Smith would unhook the load from the crane, remove the pallets witha forklift and move the load into the building floor area. According to thecompliance officer?s testimony, Smith was exposed to a falling hazard from thetime he signaled the crane operator until the load of blocks was set downbetween him and the edge of the extended platform. The compliance officertestified that Smith was exposed to the falling hazard for about 20 to 30minutes. The compliance officer further testified that he brought thishazardous condition to the attention of Swidzinski?s foreman. The foremanimmediately ordered Smith away from the unguarded edge and ordered him to weara safety belt tied off with a lifeline. Smith then tied off.II??????????? JudgeHarris found a serious violation and affirmed the citation for a violation of29 C.F.R. ? 1926.500(d)(1). He found, however, that after the employee used theforklift to remove the load from the edge of the platform, he ?remained on theend of the extension, inches from the unprotected end of the platform.???????????? JudgeHarris also rejected Swidzinski?s defense that it would be impossible todeliver the concrete blocks without removing the railings. The judge reliedupon the compliance officer?s testimony (borne out by a photograph) that therewas no need to remove the guardrails from the platform because loads could be,and were, lowered vertically through the fifth floor platform after the removalof the floor planks in the fifth floor platform.??????????? Onreview, Swidzinski first challenges the judge?s factual finding that Smith?remained on the end of the extension, inches from the unprotected end of theplatform.? Swidzinski maintains that the employee, Smith, was only at the edgeof the platform while he directed the crane operator. Swidzinski further arguesthat Smith?s presence on the edge of the platform to direct the crane operatorwas unnecessary, not within the scope of his job, and caused by Smith?scarelessness.??????????? Swidzinskialso contends that it was impossible to load the pallets over the guardrailsbecause the pallets were too large to fit between the opening created by therailing and the floor above. Swidzinski also appears to argue that once thepallets were lowered onto the platform, it was in compliance with 29 C.F.R. ?1926.500(d)(1) because the pallets then served as the ?equivalent? of aguardrail within the meaning of the standard.??????????? TheSecretary states in his letter on review that a violation was establishedbecause Smith was uncontrovertibly exposed to a fall while he stood at the edgeof the platform directing the crane operator, regardless of whether the judgeerred in finding that Smith was exposed after the blocks were unhooked from thecrane. The Secretary claims that Swidzinski failed to meet the elements of an?isolated? or ?unpreventable? occurrence defense. He also contends thatSwidzinski?s claim that it was impossible to deliver the blocks withoutremoving the guardrail is unfounded because the blocks could have beendelivered by lowering the pallets to the fourth floor after removing the floorplanks of the extended platform on the fifth floor.III??????????? Swidzinskiargues that the judge erred in finding that Smith was exposed to the fallhazard even after the pallets had been delivered to the platform. Nevertheless,it is still clear that Smith was exposed to the 41 foot fall hazard each timehe went to the edge of the unguarded platform to signal to the crane operator,and that a violation has been established based on that evidence alone.However, the brevity of Smith?s exposure is relevant for the purpose of penaltyassessment though it does not negate the finding of a violation. See Stahr & Gregory Roofing Co., 79OSAHRC 2\/B12, 7 BNA OSHC 1010, 1979 CCH OSHD ?23,261 (No. 76?88, 1979).??????????? Weinterpret Swidzinski?s second argument?that Smith?s presence on the edge of theplatform was unnecessary, not within the scope of his job, and caused bySmith?s carelessness?as raising the defense of unpreventable employeemisconduct. In H.B. Zachry, Co., 80OSAHRC 9\/D8, 7 BNA OSHC 2202, 1980 CCH OSHD ? 24,196 (No. 76?1393, 1980), appeal filed, No. 80?1357 (5th Cir.March 28, 1980), and cases cited therein, we set out the elements of theaffirmative defense of unpreventable employee misconduct. To establish such adefense, an employer must show that the employee?s action constitutingnoncompliance with a standard was a departure from a workrule that the employerhad uniformly and effectively communicated and enforced. Swidzinski has failedto establish the first element of this defense?the existence of a workrulegoverning the cited condition. There is no evidence in the record of a workruleforbidding employees from going out to the unguarded edge of the platform.Accordingly, the defense is not established.??????????? Wealso conclude that Swidzinski has failed to establish the defense ofimpossibility. To establish that defense, the employer must prove that (1)compliance with the requirements of the cited standard either would befunctionally impossible or would preclude performance of required work, and (2)alternative means of employee protection are unavailable. M.J. Lee Construction Co., 79 OSAHRC 12\/A2, 7 BNA OSHC 1140, 1979CCH OSHD ? 23, 330 (No. 15094, 1979), and cases cited therein. Swidzinskiargues that it was necessary to remove the guardrails on the extended platformbecause there was no other way to facilitate the delivery of masonry blocks.The compliance officer testified, however, that he observed an alternativemethod of delivery where the blocks were lowered to the fourth floor afterremoval of the floor planks on the fifth floor extended platform. Judge Harrisrelied upon the compliance officer?s testimony and found that there was no needto remove the protective rails from the front of the fourth floor extendedplatform. Swidzinski has offered no convincing reason why Judge Harris? findingconcerning the first element of the impossibility defense is erroneous.Moreover, inasmuch as Smith could have, but had not, tied off, the secondelement of the defense also is not established.??????????? Wealso find that the violation was serious within the meaning of section 17(k) ofthe Act, 29 U.S.C. ? 666(j).[3] The Commission has heldthat in order to prove a serious violation it need not be likely that anincident occur. It is only necessary to prove that if such an incident occurs,the probable result will be serious injury or death. See, e.g., Andy Anderson, 78 OSAHRC 34\/A2, 6 BNAOSHC 1595 (No. 76?4082, 1978). The evidence in this case establishes that afall from the 41 foot high extended platform is likely to cause death orserious harm. Swidzinski also could have known of the violation had it exercisedreasonable diligence. An employer has an obligation to inspect the work area,to anticipate hazards to which employees may be exposed, and to take measuresto prevent the occurrence. AutomaticSprinkler Corp. of America, ?? OSAHRC ??, 8 BNA OSHC 1385, 1980 CCH OSHD ? 24,495(No. 76?5089, 1980). Swidzinski knew that the guardrails would be removed, thatSmith would be on the platform to handle the pallets, and should haveanticipated that Smith would have gone to the unguarded edge to direct thecrane operator in the loading of the pallets.??????????? Accordingly,the decision of the Administrative Law Judge is affirmed.?SO ORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.,EXECUTIVE SECRETARYDATED: JAN 23 1981\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76?4627 \u00a0 FRANK SWIDZINSKI COMPANY, \u00a0 \u00a0 \u00a0November 7, 1977DECISIONAPPEARANCES:David E. Street, Esq. Marshall H. Harris,Regional Solicitor United States Department of Labor3535 Market StreetPhiladelphia, Pennsylvania 19104Attorneys for Complainant\u00a0Leonard E. Price, Esq.1821 Grant BuildingPittsburgh, Pennsylvania 15219Attorney for Respondent\u00a0Harris, Judge OSHRC??????????? FrankSwidzinski Co. (respondent) is a relatively small Pennsylvania corporationengaged in the business of masonry contractor.[4] On September 24, 1976respondent was performing masonry work as a subcontractor on a 5 story buildingunder construction in Oil City, Pennsylvania for the prime contractor, theSiegfried Company (Siegfried), a Buffalo, New York concern.??????????? Siegfriedhad erected extended platforms on the three upper levels for the purpose offacilitating the delivery of building materials to each level by all buildingtrades involved. These platforms were constructed of planks, were 51 incheswide and projected outward 9 feet 4 inches. Each of these platforms wasprovided with standard railings and toe boards on the two extended sides (Tr.21; 42).??????????? Whileconducting a closing conference attended by employee representatives, includingrespondent?s foreman, complainant?s compliance officer (CO) observed that thefloor planking of the platform on the 5th level had been removed and a loadconsisting of 2 pallets of cement blocks was being lowered to the 4th level.One, Robert Smith, admittedly, an employee of respondent, stood inches from theopen end of the platform at the 4th level giving directions to the crane operator.There was no rail across the open end of the platform which was 41 feet aboveground level and Smith did not wear a safety belt nor was he tied off. When thepallets had been lowered to the platform, the man unhooked the load after whicha forklift removed the load to the interior of the building while he remainedon the extension, inches from the unprotected end of the platform (Tr. 21 23).[5]??????????? TheCO complained of this condition to the respondent?s foreman and the man on theplatform was secured with a line tied off to a column in the building (Tr. 39).??????????? Anamended citation was issued to the respondent on October 7, 1976 alleging aviolation of the standard at 29 CFR 1926.500(d)(1) in that:(a) The unguarded north end of six feet byeight feet extended platform, on the north side of Building fourth floor,level.[6]?That standard provides:(1) Every opensided floor or platform 6feet or more above adjacent floor or ground level shall be guarded by astandard railing, or the equivalent, as specified in paragraph (f)(i) of thissection, on all open sides, stairway, or fixed ladder. The railing shall beprovided with a standard toeboard wherever, beneath the open sides, persons canpass, or there is moving machinery or there is equipment with which fallingmaterials could create a hazard.???????????? ?Complaint has proposed a penalty of $650.Respondent filed a timely Notice of Contest and the issues raised thereby havecome on for hearing pursuant to Sections 659(a) and (c) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. 651 et seq. (the Act).??????????? Complainantseeks to amend the citation to allege that:Open sided platforms, more that 6 feetabove the sub-adjacent floor or ground level, were not guarded by a standardrailing or the equivalent on all open sides. In the alternative the employerfailed to insure that an employee or employees working on one or more of theabove platforms was\/were protected by safety belts, used in conjunction withlifelines and\/or lanyards, from the hazard of falling. Further, in thealternative, the employer failed to protect its employees working on one ormore of said platforms by installing safety nets.?and to also charge a violation of the standards at 29CFR 1926.28(a) and 1926.105(a), in the alternative.29 CFR 1926.28(a) provides:\u00a0(a) The employer is responsible forrequiring the wearing of appropriate personal protective equipment in alloperations where there is an exposure to hazardous conditions or where thispart indicates the need for using such equipment to reduce the hazards.\u00a029 CFR 1926.105(a) provides:\u00a0(a) Safety nets shall be provided whenwork-places are more than 25 feet above the ground or water surface, or othersurfaces where the use of ladders, scaffolds, catch platforms, temporaryfloors, safety lines, or safety belts is impractical.???????????? Respondentresists this application. I have determined to and do hereby grantcomplainant?s motion to amend. The application has been pending since January1977 and in view of that fact it seems to me that the respondent has had amplenotice thereof and will not be prejudiced in his defense. See, Secretary of Labor v. Marguette Cement Manufacturing Company, etal, (2 Cir.) August 29, 1977, Docket No. 76 4083.??????????? Respondent?spresident, who was not present on the job at the time of the inspection,testified that the open end of each platform (the north side) was equipped with2 rails which were removable to allow loads of material to be swung in and thatsuch rails were replaced after the load had been deposited on the platform (Tr.54A 55). He stated that safety belts were not supplied to any of respondent?semployees on this job (Tr. 76). He maintained that it was impossible to load 2pallets of building blocks on these platforms without removing the protectiverails on the open or north end of the platform (Tr. 76 78).??????????? TheCO testified that the load in question was actually lowered to the 4th level afterthe floor planking on the 5th level had been removed to allow a verticaldescent of the load and there was no need to remove the rails on the open endof the platform. That this is so is borne out by the photograph taken by the COimmediately following the happening and just after the rail had been placedacross the north end of the 4th level platform (Exhibit C 1A).??????????? Ifind therefore that there was no need to remove the protective rails across thenorth end of the 4th level platform to permit loading the pallets of blockthereon and that respondent was in violation of the standard at 29 CFR19.26.500(d)(1) as alleged in the amended citation.??????????? Inview of the foregoing there is no need to determine the allegations lodged inthe alternative.??????????? Complainant?smotion to strike respondent?s ?post-trial? affidavit is denied.??????????? Ialso find that the Occupational Safety and Health Review Commission hasjurisdiction over the subject matter and of the parties herein.??????????? Havingduly considered the size, good faith and previous history of the respondent andunder the circumstances of this case, I find that a civil penalty of $250 isreasonable.??????????? Goodcause therefore appearing, it is??????????? ORDEREDthat the citation herein, as amended, insofar as it charges a violation by therespondent of the standard at 29 CFR 1926.500(d)(1) be and the same is herebyaffirmed and that said respondent be and it is hereby assessed and required topay a civil penalty in the sum of $250 as and for the said violation.?DAVID H. HARRISJudge, OSHRCDated: November 7, 1977[1] 29 U.S.C. ?661(i).[2] 29 C.F.R. ?1926.500(d)(1) provides:Everyopen-sided floor or platform 6 feet or more above adjacent floor or groundlevel shall be guarded by a standard railing, or the equivalent, as specifiedin paragraph (f)(1)(i) of this section, on all open sides, except where thereis entrance to a ramp, stairway, or fixed ladder. The railing shall be providedwith a standard toeboard wherever, beneath the open sides, persons can pass, orthere is moving machinery, or there is equipment with which falling materialscould create a hazard.[3] That sectionprovides:Forpurposes of this section, a serious violation shall be deemed to exist in aplace of employment if there is a substantial probability that death or seriousphysical harm could result from a condition which exists, or from one or morepractices, means, methods, operations, or processes which have been adopted orare in use, in such place of employment unless the employer did not, and couldnot, with the exercise of reasonable diligence, know of the presence of theviolation.[4] It employs about15 persons on an average and in 1975 its total sales were under $350,000.[5] The CO testifiedthat the rail across the open end of the 4th floor platform was placed therebefore he took the photograph Exhibit C 1A.[6] The originalcitation issued on October 5, 1976 did not specify the fourth floor level.”