“SECRETARY OF LABOR,Complainant,v.HEATON ERECTING, INC.,Respondent.OSHRC DOCKET NO. 84-452_ORDER_The Commission grants the Secretary’s motion to withdraw his citationand complaint alleging a violation of 29 C.F.R. ? 1926.451(e)(10). TheCommission affirms the Judge’s disposition of the remaining citation inthis case alleging a violation of 29 C.F.R. ? 1926.451(e)(4).FOR THE COMMISSIONRay H Darling, Jr.Executive SecretaryDated: March 5. 1987————————————————————————SECRETARY OF LABORComplainant,v.HEATON ERECTING, INC.Respondent.OSHRC Docket No. 84- 452_DECISION_Before: BUCKLEY, Chairman; RADER and WALL, Commissioners.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(j), section 12(j) of the Occupational Safety &Health Act of 1970, 29 U.S.C. ?651-678 (\”the Act\”). The Commission is anadjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. Seesection 10(c) of the Act, 29 U.S.C. ? 659(c).The issue before the Commission is whether Administrative Law Judge JoeD. Sparks erred in vacating a citation item alleging a violation of 29C.F.R.? 1926.451(e)(10). The standard states in part:? 1926.45I Scaffolding(e) Manually propelled mobile scaffolds.(10) Guardrails made of lumber, not less than 2×4 inches (or othermaterial providing equivalent protection). approximately 42 inches high,with a midrail, of 1×6 inch lumber (or other material providingequivalent protection), and toeboards, shall be installed at all opensides and ends on all scaffolds more than 10 feet above the ground or floor.The Secretary maintained that the standard was violated because thedistance from the unguarded scaffold to the ground was over 40 feet.Based on the Commission’s decision in Schwarz-Jordan, Inc., 11 OSAHRC37\/A2, 11 BNA OSHC 2145, 1984 CCH OSHD (P) 26,989, rev’d, 777 F.2d 195(5th Cir. 1985),[[1]] the judge vacated the item, noting that thescaffold stood only 50-70 inches above its base and that the standardrequires guardrails only when the scaffold stands more than 10 feetabove its base.Because the judge held the standard to have been inapplicable, he didnot make findings on a dispute over the Infeasibility of guardrails thatwas litigated by the parties. Since the judge issued his decision, theCommission has substantially altered the requirements of the formerdefense of impossibility. In Dun-Par Engineered Form Co., No. 79-2553(July 30, 1986), the Commission changed the primary element of thedefense to \”Infeasibility\” and shifted the burden of persuasion to theSecretary on the issue of feasible alternative protective measures.We believe that the resolution of the factual dispute over thefeasibility of guardrails would substantially facilitate our review ofthis case. We note, however, that disposition of this may requirecredibility determinations, which should be resolved by the judge.Moreover, because the parties were not aware of their respective burdensof proof at the time of the hearing, they should have the opportunity toadduce additional evidence and argument on the infeasibility defense. Wetherefore remand this case to Judge Sparks for the taking of evidenceand argument on the infeasibility defense. The judge shall also enterfindings of fact and conclusions of law consistent with our decision inDun-Par on the issue. The Commission shall retain jurisdiction of thecase pending receipt of these additions to the record.Accordingly, the case is remanded to the judge for further proceedingsconsistent with this decision. [[2\/]]FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDated: JUL 31 1986————————————————————————SECRETARY OF LABOR,Complainant.v.HEATON ERECTING, INC.,Respondent.OSHRC Docket No. 84-452APPEARANCES:Daniel A. Caldwell, Esquire, Office of the Solicitor, U. S. Departmentof Labor, Atlanta, Georgia, on behalf of complainant.Carol Heaton, Safety Engineer, Heaten Erecting, Inc., Forest Park,Georgia, on behalf of respondent._DECISION AND ORDER_SPARKS. Judge: An investigation of a fatal falling accident resulted ina serious citation being issued to Heaton Erecting, Inc., which chargedit with violations of the Occupational Safety and Health Act (\”Act\”) inconnection with the use of a manually- propelled mobile scaffold. Item1(a) alleged respondent violated 29 C.F.R. ?1926.451(e)(10) 1\/ byfailing to equip the scaffold with standard guardrails and item 1(b)charged that 29 C.F.R. ? 1926.451(e)(4) 2\/ was violated in that thescaffold was not tightly planked the full width of the scaffold.Respondent contends that the standards did not apply under thecircumstances of this case, the scaffold was not a serious fall hazardand the work could not have been performed from a tightly plankedscaffold and would have created a greater hazard.I._GUARDRAILS_Respondent concedes that the mobile scaffold did not have guardrails butcontends that the devices were not required as the height of thescaffold was less than ten feet from the floor. The scaffold was on thefourth floor near the outer perimeter of the building. Mr. John Ferrellstood on a plank of the scaffold while welding steel angles or braces tothe outside edge of the building to which precast concrete panels wouldbe attached. While working Mr. Ferrell wore a safety belt which he tiedto an overhead beam although he was not tied-off while mounting ordismounting the scaffold.The essential facts are not disputed. The distance from the scaffold tothe ground below was more than 40 feet. The scaffold itself was 50 to 70inches high.The standard at 29 C.F.R. ? 1926.451(e)(10) requires guardrails on \”allopen sides and ends on all scaffolds more than 10 feet above the groundor floor. . . \” The Secretary contends the phrase refers to thepotential fall distance. The Review Commission recently addressed thequestion; however, and held that the phrase \”above the ground or floor\”means the distance between the scaffold platform and the base of thescaffold. Schwarz-Jordan, Inc., OSAHRC , 11 BNA OSHC 2145, 1984 CCH OSHD(p) 26,989 (No. 81-2738, July 20, 1984).In this case, the height of the scaffold was 70 inches and the distancebetween the scaffold platform and the base of the scaffold was 50 inches(Tr. 43. 64). Commission Judges are bound by decisions of the ReviewCommission. Item 1(a) must be vacated.II._PLATFORM PLANKING_It is not disputed that the scaffold platform was not \”tightly plankedfor the full width of the scaffold except for necessary entranceopening\” 29 C.F.R. ? 1926.451(e)(4). The compliance officer testifiedthat the tight planking of the platform was necessary to prevent falls(Tr. 40-41). The compliance officer explained that the solid plankingshould have been at the \”topmost\” part of the scaffold supported by thethird horizontal rail (Tr. 42). As used by respondent on the day of theaccident, the scaffold had one plank on the second rail and one plank onthe third level (Ex. C-1(c)). The employee apparently stood on the lowerplank and used the higher plank to rest his tools and equipment (Tr. 86).Respondent contends that a tightly planked scaffold would create agreater hazard and would make work almost impossible. The welding wasperformed at a height of about six to eight feet (Tr. 13). Art Copeland,an ironworker, explained the problems of working from such a platform asfollows (Tr. 85-86):For one thing, if you deck it over all the way across on the top floor,wells every time I get up on it, I have to approximately bend over. I’dhave to bend over approximately down to this range right here[indicating] which is involved tremendous back ache after eight hours.That’s stress. Could cause me to topple over the side.Like in this case here. John Ferrell was a pretty tall man, and I’m atall man — if you deck this scaffold here all the way across, Icouldn’t work on it because my head hits the ceiling. The head hitseverything up there and I was too high above the connections. Structuralconnection like that you have to apply a vertical weld, which means youneed to be level with it, or under it so you can go up with it. And Ifyou’re over it it’s hard to do.Copeland’s testimony was candid and logical, One can easily seeconsiderable difficulty standing on a platform nearly 70 inches (5feet,10 inches) high and attempting to weld items only six to eight feethigh or about at ankle to knee height.Heaton raises several affirmative defenses Including the \”impossibilityof performance\” and \”greater hazard\” defenses. The Review Commissionstated the necessary elements of those defenses in Consolidated AluminumCorp., 80 OSAHRC 125\/A2. 9 BNA OSHC 1144,. 1981 CCH OSHD (P) 25,069 (No.77-1091, 1980), as follows (1981 CCH OSHD p. 30,976):In order to establish one of the impossibility defenses, the employermust prove that (1) compliance with the requirements of the citedstandard either could be functionally impossible or would precludeperformance of required work, and (2) alternative means of employeeprotection are unavailable. M. J. Lee Construction Co., 79 OSAHRC 12\/A2.7 BNA OSHC 1140, 1979 CCH OSHD (p) 23.330 (No. 15094, 1979). In order tosustain a greater hazard defenses, the employer must show that (1)compliance with the cited standard would diminish rather than enhanceemployee safety. (2) alternative means of protecting the employees areunavailable, and (3) a variance application under section 6(d) of theAct, 29 U. S. C. ? 665(d). would be inappropriate. H. S. HoltzeConstruction Co.. 79 OSAHRC 82\/A2v 7 BNA OSHC l753, 1979 CCH OSHD (P)23,925 (No. 16059, 1979)9 rev’d in part on other grounds. No. 79-1957(8th Cir. Aug. 8, 1980).Here the evidence is convincing that respondent’s welders would not beable to perform their work from a tightly planked platform on the\”topmost\” tier of the scaffold as described by the compliance officerbecause of the severe bending necessary to work at the required level.Ironworker Copeland’s testimony that the danger of losing one’s balanceand falling is greater while working in that position is also convincing(Tr.85, 86, 95, 110-111). The Secretary did not offer evidence Inrebuttal. As an alternate means of protection, welders used safety beltswhile working from the scaffold. There is no suggestion that suchprotection was inadequate. There is no indication that Heaton requesteda variance so its defense of greater hazard must fall. Respondent,however, established its affirmative defense of impossibility ofperformance of required work. Item 1(b) must also be vacated._FINDINGS OF FACT_1. Respondent, Heaton Erecting, Inc., primarily engages in steelerection but also performs precast concrete erection (Tr. 10).2. Respondent is subject to the Act and the regulations issuedthereunder (Tr. 5, 10).3. In April 1984, respondent, was engaged in the erection of precastconcrete panels as a subcontractor at the construction site of an officebuilding located at 1265 Peachtree Street, Atlanta, Georgia (Tr. 11).4. On April 2, 1984, Mr. John Ferrell fell approximately 40 feet to hisdeath (Tr. 15, 81, 88, 99, 104).5. On the day of the accident, John Ferrell was welding angles or bracesto the outside edge of the building to which precast panels wereattached (Ex. C-1(c); Tr. 12-13, 15, 25, 80, 94, 105-106, 114).6. The angles were attached to the building about six to eight feetabove the floor level at the outside of the building. He used amanually-propelled mobile scaffold to reach the height necessary toperform his work (Tr. 13-14, 29, 31).7. The scaffold did not have guardrails on the sides (Ex. C-1; Tr. 29,30, 34, 79-80, 98, 117-118).8. Ferrell was wearing a safety belt and, while working from thescaffold, was able to tie-off securely; but, while mounting anddismounting the scaffold, he was not tied off (Tr. 26, 30, 32, 58-59,30, 62, 93, 109, 112).9. It would have been impossible to have performed the required weldingwork while standing on tightly planked topmost level of the scaffoldbecause of the severe bending which would have been required. Such workposition would also present an increased danger of falling.10. The employee worked from the scaffold consisting of one plankapproximately 18 inches wide (Ex. C-1(c); Tr. 40-42, 46).11. The top of the scaffold was approximately 70 inches from floor. Theworking deck to the floor was approximately 50 inches (Tr. 43, 64, 68).12. A fall from the scaffold to the floor would not result In death orserious Injury (Tr. 64)._CONCLUSIONS OF LAW_1. The Review Commission has jurisdiction over the parties and subjectmatter.2. Respondent did not violate the standards at 29 C.F.R.?1926.451(e)(10) and 29 C.F.R. ? 1926.451(e)(4) as alleged._ORDER_Items 1(a) and 1(b) of the citation are vacated and the complaint dismissed.Dated this 10th day of December, 1984.JOE D. SPARKSJudgeHEATON ERECTING, INC.,Applicant,v.SECRETARY OF LABOR,Respondent.OSHRC Docket No. 84-452_ORDER APPROVING SETTLEMENT_The applicant, Heaton Erecting. Inc., petitioned for an award ofattorney’s fees and related costs pursuant to the Equal Access toJustice Act (EAJA), 5 U.S.C. ? 504.After negotiations, the parties have filed a stipulation and jointmotion. It is ORDERED:1. The agreement is approved and the stipulations and representations ofthe agreement are incorporated into this order.2. The Secretary shall pay to respondent the sum of $7,203.68 in fulland final satisfaction of all fees and costs under the EAJA.3. This proceeding is dismissed with prejudice.Dated this 31st day of July, 1987JOE D. SPARKSJudge FOOTNOTES:[[1]]The Commission’s decision in Schwarz-Jordan was subsequentlyoverruled by the Fifth Circuit in Brock v. Schwarz-Jordan, Inc., 777F.2d 195 (5th Cir. 1985).[[2]] Commissioner Rader agrees with the majority that this case shouldbe remanded for a dermination whether guardrails were infeasible. If theSecretary seeks to allege and prove that Heaton should have usedalternative protection measures in accorance with the Commissiondecision in Dun-Par Engineered Form Co., No. 82-929, the CommissionerRader would limit the alternative measures sought to be imposedconsistent with his accurate opinion in Dun-Par.[[1\/]] Section 1926.451(e)(10) of 29 C.F.R. provides:Guardrails made of lumber, not less than 2 x 4 inches (or other materialproviding equivalent protection), approximately 42 inches high, with amidrail of I x 6 inch lumber (or other material providing equivalentprotection), and toeboards, shall be installed at all open sides andends on all scaffolds more than 10 feet above the ground or floor.Toeboards shall be a minimum of 4 inches in height. Wire mesh shall beinstalled in accordance with paragraph (a)(6) of this section.[[2\/]] Section 1926.451(e)(4) of 29 C.F.R. states:Platforms shall be tighly planked for the full width of the scaffoldexcept for necessary entrance opening. Platforms shall be secured in place.”