“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 11752 GENERAL SUPPLY COMPANY, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0January 25, 1977DECISIONBefore BARNAKO, Chairman;MORAN and CLEARY, Commissioners.BARNAKO, Chairman:??????????? A decision of Administrative Law Judge William J. Risteau is before us for review pursuant to section 12(j)of the Occupational Safety and Health Act of 1970 (29 U.S.C. ? 651 et seq.,hereinafter ?the Act?). Judge Risteau affirmedComplainant?s (Labor) citation, as amended, which alleges that Respondent(General) violated the Act by failing to comply with the standard published at29 C.F.R. ? 1926.451(a)(4)[1] in that it did not provideguardrails on open sides and ends of a scaffold more than four but less thanten feet high.[2]We reverse and vacate for the reason that the cited standard is not applicableto the type of scaffold used by General.??????????? General is a contractor for the installation ofacoustical building material and for steel fabrication. At the time of Labor?s inspection it was installing an acoustic ceiling in a storewhich was being rebuilt following a fire. It used a Baker mobile scaffoldmounted on casters for this purpose.??????????? The height at which the ceiling was to be installed wasmeasured by means of a laser. In order to check whether the laser was levelGeneral?s superintendent stepped onto a 2 by 10-inch or 2 by 12-inch boardwhich had been placed on top of guardrails located at the ends of the scaffoldsuch that the board extended along the length of the scaffold. The scaffoldplatform itself was about six feet above the floor and the guardrails and boardwhich they supported were approximately three feet higher such that the boardwas nine feet above the floor. The board was not equipped with guardrails, butthere was a ceiling joist at a height of about 12 feet above the floor. Thesuperintendent held onto this joist while checking the laser.??????????? General argues that the cited standard does not apply tothe scaffolding it used. Specifically, General says that the cited standard byits terms imposes guardrail requirements for scaffolds in general but itsscaffold is of a particular type which is governed by? 1926.451(e). This standard is entitled ?Manually propelled mobile scaffolds.?[3] Subparagraph (10) of ?\u00a01926.451(e)provides that ?[g]uardrails . . . and toeboards, shall be installed at all open sides and ends onall scaffolds more than 10 feet above the ground or floor . . ..? Thisprovision does not specify a guardrail requirement for manually propelledmobile scaffolds having heights of less than 10 feet. Thereforein General?s view the citation must be vacated and the complaint dismissedbecause its scaffold does not fail to comply with the applicable standard.??????????? Labor agrees that in the circumstances General?s scaffoldis not required to have a guardrail under the provisions of ? 1926.451(e)(10). However, Labor contends that the requirements of thisstandard are in addition to those of the cited general standard. Labortherefore would have us affirm the citation on the basis that the scaffold didnot comply with that portion of ? 1926.451(a)(4) requiring guardrails onscaffold platforms which are between four and ten feet in height.??????????? We resolved an analogous question of applicabilityarising under Labor?s standards governing excavations and trenches in LloydC. Lockrem, No. 4553, BNA 3 OSHC 2045, CCH OSHDpara. 20,444 (OSHRC, Feb. 24, 1976). We noted that pursuant to Labor?sdefinitions the term ?excavation? is the broader term and as such includes a?trench? as a specific type of excavation. Speaking through CommissionerCleary, we said:Where a particulartype of hazard is addressed by a standard applying to the broad class of?excavations? and no corollary standard addressing such hazard specificallyapplies to ?trenches,? the protective provisions of the former will be extendedto the latter. . . .???????????? The particular hazard that ?1926.651(s) is designed to eliminate is that of mobile equipment falling intoexcavations and causing injury not only to workers in and around theexcavation, but also to the operators of such equipment. There is no corollarystandard specifically applicable to trenches although it is patently clear thatthe same dangers exist. We therefore hold that ? 1926.651(s) is entirelyapplicable to those excavations otherwise classified as ?trenches.?[4]??????????? The hazard in this case is one of falling from ascaffold. As in Lockrem there is a generalprovision designed to protect against the hazard; it is the provision Laborcited. But unlike Lockrem there is a corollarystandard which addresses the same hazard and is specific to the type ofscaffold General used. In these circumstances it is of no significance that thegeneral standard may, as Labor argues, require fall protection on scaffolds ata lesser height than that to which the specific standard applies. The heightprovision of ? 1926.451(e)(10) reflects the judgmentof its drafters as to the kind of fall protection appropriate for a manuallypropelled mobile scaffold. General therefore is entitled to rely on theprovisions of the standard which is specific on its face apart from andindependent of any general provision which may also speak to the same hazard.[5] Compare Irvington Moore,16 OSAHRC 608 09, BNA 3 OSHC 1018, 1019, CCH OSHD para. 19,523 at 23,294(1975), petition for review docketed, No. 75 2159 (9th Cir., May 27, 1975),with Diebold, Inc., Nos. 6767, 7721, and 9496, BNA 3 OSHC 1897, 1901,CCH OSHD para. 20,333 at 24,251 (OSHRC, Jan. 22, 1976), petition for reviewdocketed, No. 76 1278 (6th Cir., Mar. 8, 1976).??????????? In this regard we note that the provisions of section1926.451 specify particular guardrail requirements fortwelve other specific kinds of scaffolds. Without exception, allof these specific requirements explicitly require guardrails only atheights in excess of 10 feet. Prior to November 29, 1972, these paragraphsuniformly required guardrails and toeboards atheights of over six feet, and the general standard, paragraph (a), requiredguardrails at heights between four and six feet. On that date, Labor amendedthe standards to their present form. The stated purpose of the amendment was?to bring about a greater uniformity between the Construction Safety Standards[part 1926] and the general industry standards contained in 29 CFR Part 1910.?[6]??????????? The pertinent general industry standards, 29 C.F.R. ??1910.28 and 1910.29, did then and now include specific provisions regulatingguardrail and toeboard protection on named kinds ofscaffolds. The former also includes a general provision. None of the specificprovisions require guardrails or toeboards at heightsless than 10 feet. The general industry standards were themselves adoptedrespectively from the American National Standards Institute (ANSI) standardsA10.8 1969, Safety Requirements for Scaffolding, and A92.1 1971, Standard forManually Propelled Mobile Ladder Stands and Scaffolds (Towers).[7] The former is comprised ofprovisions addressed specifically to particular typesof scaffolds, and it includes a general provision. The latter ?is intended toprescribe rules and requirements for the design, construction, and use ofmobile work platforms . . . and rolling (mobile) scaffolds (towers). . . .?[8]??????????? We therefore conclude that by its amendment of theconstruction safety standards at issue in this case Labor confirmed itsintention that particular types of scaffolds would besubject to specific standards. Had Labor desired the result for which it arguesin this case, it could have so provided. Instead, it purposely brought theconstruction safety standards pertaining to scaffolding into conformity withindustry consensus standards (the ANSI standards) by which the affectedindustries have plainly determined to designate separately the requirementsappropriate for each individual type of scaffold.??????????? For the reasons given above we conclude that in thecircumstances the cited general scaffold standard is inapplicable to General?sscaffold. The facts are, and there is no dispute, that General has not failedto comply with the applicable standard. Accordingly, we reverse the Judge?sdecision and vacate the citation.?SoORDERED.?FOR THE COMMISSION:?William S. McLaughlinExecutive SecretaryBY: Gloria W. White, ActingExecutive SecretaryDATE: JAN 25, 1977?MORAN, Commissioner,Concurring:??????????? I agree with the vacation of the citation because thecited standard does not apply to respondent?s scaffold and respondent did notviolate the applicable standard. However, since I dissented in Secretary v.Lloyd C. Lockrem, Inc., OSAHRC Docket No. 4553,February 24, 1976, it is unnecessary for me to join in my colleague?sdiscussion which distinguishes the majority decision in Lockremfrom the instant case, and I do not do so.?CLEARY, Commissioner,DISSENTING:??????????? In my opinion the majority errs in applying the law tothe facts. An employer is entitled to rely upon the provisions of a specificstandard when a general standard also addresses the same hazard. This is therule of construction published in 29 CFR ? 1910.5(c)(1). But that is not thiscase.??????????? The specific provision relied upon by the majority,section 1926.451(e), prescribes safety conditions for ?manually propelledmobile scaffolds? that are more than 10 feet above the ground or floor. Thatprovision prescribes no safety conditions for mobile scaffolds that are lessthan 10 feet above the ground or floor. In this case, the only protection fromthe hazard of falling from the six-foot scaffold was to have the employee hangonto the ceiling joist. The provision therefore is not an ?occupational safetyand health standard? for the smaller mobile scaffolds because it does notprescribe a safety requirement. See section 3 (8) of the Act. Because of theabsence of a specific requirement, the general requirement of section1926.451(a)(4), second sentence, applies. See Melody Home & InsulationCo, BNA 4 OSHC 1852, 1976 77 OSHD para. 21,290 (No. 6908, 1976).\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 11752 GENERAL SUPPLY COMPANY, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 July 8, 1975DECISIONAND ORDERAPPEARANCES:Jane Matheson,Esq., of Dallas, Texas, for the Secretary of Labor\u00a0H. Peter Herff, II, Esq., of San Antonio, Texas, for the Respondent\u00a0Risteau,Judge:??????????? This is a proceeding under section 10(c) of theOccupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinaftercalled the Act), in which the respondent contests a citation issued by thecomplainant pursuant to section 9(a) of the Act. The citation, which was issuedon January 3, 1975, alleges that as the result of an inspection on December 31,1974, of a workplace under the ownership, operation or control of therespondent, located at 803 S. W. Military Dr., San Antonio, Texas, anddescribed as: ?Acoustic ceiling,? respondent violated section 5(a)(2) of theAct in the following manner:NONSERIOUSVIOLATION Item No. Standard Description of Alleged Violation 1 29 CFR 1926.451(a)(4) Failure to provide standard guardrails and toeboards on all open sides and ends of platforms more than ten (10) feet in height on the following equipment: a. One employee working on a scaffold 12 feet above floor level on the northeast end of the building. \u00a0 ?The cited standard provides:1926.451(a)(4)Guardrails and toeboards shall be installed on allopen sides and ends of platforms more than 10 feet above the ground or floor,except needle beam scaffolds and floats . . .. Scaffolds 4 feet to 10 feet inheight, having a minimum horizontal dimension in either direction of less than45 inches, shall have standard guardrails installed on all open sides and endsof the platform.???????????? Pursuant to the enforcement procedure set forth insection 10(a) of the Act, respondent was notified by letter dated January 3,1975 from Herbert M. Kurtz, Director of Area 6090, Occupational Safety andHealth Administration (OSHA), United States Department of Labor, proposing thefollowing penalty for the alleged violations:NONSERIOUSVIOLATION: Item No. 1 $30??????????? After the filing of a Notice of Contest, Complaint, andAnswer, the case came on for hearing at San Antonio, Texas, on March 28, 1975.DISCUSSION??????????? At the hearing and prior to the taking of testimony,complainant moved to amend the ?Description of Alleged Violation? in thecitation to charge that respondent had failed to provide standard guard railson all open sides and ends of a scaffold platform which was more than four feetbut less than ten feet above ground (Tr. 4). Respondent objected strenuously tothis motion, upon which runing was reserved.??????????? The leading case on amendment of pleadings in proceedingsunder the Act is National Realty and Construction Co., Inc. v. OccupationalSafety and Health Review Commission, 489 F. 2d 1257, 1264 (D.C. Cir. 1973)where the Court said:. . . anyambiguities surrounding the Secretary?s allegations could have been cured atthe hearing itself. So long as fair notice is afforded, an issue litigated atan administrative hearing may be decided by the hearing agency even though theformal pleadings did not squarely raise the issue. This follows from thefamiliar rule that administrative pleadings are very liberally construed andvery easily amended. The rule has particular pertinencehere; for citations under the 1970 Act are drafted by non-legal personnel,acting with necessary dispatch. Enforcement of the Act would be crippled if theSecretary were inflexibly held to a narrow construction of citations issued byhis inspectors.?As this holdingindicates, a pleading need only give fair notice of the issues in order to beadequate, and it is the opinion of the undersigned that such notice was givenin the present case.??????????? In the first place, when the unamended citation is considered as a whole, including the cited regulation, it isapparent that reference to the exact height of the platform is surplusage. Thegist of the alleged violation, as described in the regulation, is the failureof a platform to conform to safety requirements if it exceeds certain minimumheights.1 Litigation of these issues requires the presentation of evidence asto the height of the platform and scaffold under consideration. Far from beingdeceived by the citation as to the need for evidence on this point, respondentcame to the hearing fully prepared to show the height with as much exactitudeas possible (Ex. R 1?R 6).??????????? Under these circumstances, it is simply not enough forrespondent to claim surprise because its ?whole defense rests on a factquestion as to the allegations in the Complainant?s complaint of twelve feet?(Tr. 10). It must show further that it was unable to defend because it wasunaware that the height of the scaffold would be in issue. As pointed outabove, this is clearly not the case, and complainant?s motion to amend istherefore granted.??????????? With respect to the facts, there is little real dispute.On December 31, 1974 respondent?s employees were engaged in the installation ofan acoustic ceiling at the workplace. In the course of the work it becamenecessary to check readings on a laser device used to measure ceiling height.The device was well above ground level and it was necessary to use a platformto reach it. The platform chosen was that illustrated in Exhibits C 1 and R 1through R 6. As shown in those Exhibits, the scaffold used was a standard oneused in the construction industry; it had a platform at the sixfoot level and was equipped with guardrails along the sides and endsapproximately three feet above this platform. A 2? x12? plank had been placed across the end rails and it was on this plank that anemployee stood to check the laser. There were no guardrails around the plank,which was, without question, more than 4 feet above ground. The employee whoexamined the laser and who is shown in Exhibit C 1 was in that position forapproximately two minutes (Tr. 95).??????????? On these facts, it must be held that respondent was inviolation of the cited regulation. The exposure to falling hazard was limited,however, and the violation was of low gravity. Considering these circumstances,the relatively low proposed penalty of $30 is appropriate.FINDINGSOF FACT??????????? 1. On December 31, 1974, employees of respondent were atwork in a building located at 803 S.W. Military Drive, San Antonio, Texas.??????????? 2. In the course of this work, one employee stood on awork platform consisting of a board approximately 2 inches thick by 12 incheswide which was positioned more than 4 feet above ground level; standardrailings were not installed at the sides and ends of this board.??????????? 3. The employee referred to in Finding 2 above wasengaged in the observation of a laser device used in establishing the height ofa ceiling preparatory to the installation of acoustic tile. Observations madeby the employee while on the platform required about two minutes to perform.??????????? 4. The laser device referred to above was manufactured inthe State of California (Tr. 24).CONCLUSIONSOF LAW??????????? 1. Respondent is an ?employer? engaged in ?commerce? asthose terms are defined in sections 3(3) and 3 (5) of the Act.??????????? 2. This Commission has jurisdiction over the parties andissues raised by the citation.3. On December 31, 1974,respondent was in violation of Section 1926.451(a)(4) of Title 29, Code ofFederal Regulations, a regulation promulgated by the Secretary pursuant toSection 6 of the Act.??????????? 4. The violation referred to in Conclusion No. 3 aboveconstituted a nonserious violation of Section 5(a)(2) of the Act; a penalty of$30 should be assessed for such violation.ORDER??????????? On the basis of the aboveFindings of Fact, Conclusions of Law, and the entire record, it is herebyORDERED that the citation issued on January 3, 1975 be affirmed and that apenalty of $30 be assessed.?WILLIAM J. RISTEAUADMINISTRATIVE LAW JUDGEJuly 8, 1975[1] This standard inpertinent part requires that [g]uardrails andtoeboards shall be installed on all open sides and ends of platforms more than10 feet above the ground or floor . . . . Scaffolds 4 to 10 feet in height . .. shall have standard guardrails installed on all open sides and ends of theplatform.\u00a0[2] The citationoriginally alleged that General failed to provide guardrails and toeboards onopen sides and ends of a platform on a scaffold 12 feet above floor level.Labor moved to amend at the outset of the hearing, and General objected. TheJudge granted the motion. General excepts to his ruling and argues before usamong other things that in the circumstances the motion is untimely. Generalsays it has been denied fair notice of the charge against it since the amendmentchanges the basis for the charge.\u00a0In view of ourdisposition it is not necessary to consider whether the Judge erred by grantingthe motion to amend, nor need we consider other defenses which General raisesin addition to the question whether the cited standard applies to General?sscaffold.\u00a0[3] ? 1926.452(b)(17)defines a ?manually propelled mobile scaffold? as ?[a] portable rollingscaffold supported by casters.?[4]BNA 3 OSHCat 2047, CCH OSHD para. 20,444 at 24,411 12.\u00a0[5] Labor itselfagrees with this principle for in its regulations it states ?[i]f a particularstandard is specifically applicable to a condition, practice, means, method,operation, or process, it shall prevail over any different general standardwhich might otherwise be applicable to the same condition, practice, means,method, operation, or process. . . .? 29 C.F.R. 1910.5(c)(1).[6] 37 Fed. Reg. 25712 (1972).[7] 29 C.F.R. ? 1910.31.[8] ANSI Standard A92.1 1971, section1.1; 29 C.F.R. ? 1910.29(a)(1).”