“Docket No. 84-0452 SECRETARY OF LABOR,Complainant,v.HEATON ERECTING, INC., Respondent.OSHRC DOCKET NO. 84-452ORDERThe Commission grants the Secretary’s motion to withdraw his citation and complaintalleging a violation of 29 C.F.R. ? 1926.451(e)(10). The Commission affirms the Judge’sdisposition of the remaining citation in this case alleging a violation of 29 C.F.R. ?1926.451(e)(4).FOR THE COMMISSIONRay H Darling, Jr.Executive SecretaryDated: March 5. 1987SECRETARY OF LABOR Complainant,v.HEATON ERECTING, INC. Respondent.OSHRC Docket No. 84- 452DECISIONBefore: BUCKLEY, Chairman; RADER and WALL, Commissioners. BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commission under 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 an adjudicatory agency, independent ofthe Department of Labor and the Occupational Safety and Health Administration. It wasestablished to resolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. See section 10(c) of theAct, 29 U.S.C. ? 659(c).The issue before the Commission is whether Administrative Law Judge Joe D. Sparks erred invacating a citation item alleging a violation of 29 C.F.R.? 1926.451(e)(10). The standardstates in part:? 1926.45I Scaffolding (e) Manually propelled mobile scaffolds.(10) Guardrails made of lumber, not less than 2×4 inches (or other material providingequivalent protection). approximately 42 inches high, with a midrail, of 1×6 inch lumber(or other material providing equivalent protection), and toeboards, shall be installed atall open sides and ends on all scaffolds more than 10 feet above the ground or floor.The Secretary maintained that the standard was violated because the distance from theunguarded scaffold to the ground was over 40 feet. Based on the Commission’s decision inSchwarz-Jordan, Inc., 11 OSAHRC 37\/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 the scaffoldstood only 50-70 inches above its base and that the standard requires guardrails only whenthe scaffold stands more than 10 feet above its base.Because the judge held the standard to have been inapplicable, he did not make findings ona dispute over the Infeasibility of guardrails that was litigated by the parties. Sincethe judge issued his decision, the Commission has substantially altered the requirementsof the former defense of impossibility. In Dun-Par Engineered Form Co., No. 79-2553 (July30, 1986), the Commission changed the primary element of the defense to\”Infeasibility\” and shifted the burden of persuasion to the Secretary on theissue of feasible alternative protective measures.We believe that the resolution of the factual dispute over the feasibility of guardrailswould substantially facilitate our review of this case. We note, however, that dispositionof this may require credibility determinations, which should be resolved by the judge.Moreover, because the parties were not aware of their respective burdens of proof at thetime of the hearing, they should have the opportunity to adduce additional evidence andargument on the infeasibility defense. We therefore remand this case to Judge Sparks forthe taking of evidence and argument on the infeasibility defense. The judge shall alsoenter findings of fact and conclusions of law consistent with our decision in Dun-Par onthe issue. The Commission shall retain jurisdiction of the case pending receipt of theseadditions to the record.Accordingly, the case is remanded to the judge for further proceedings consistent withthis decision. [[2\/]]FOR THE COMMISSIONRay H. Darling, Jr.Executive Secretary Dated: JUL 31 1986SECRETARY OF LABOR, Complainant. v.HEATON ERECTING, INC., Respondent.OSHRC Docket No. 84-452APPEARANCES: Daniel A. Caldwell, Esquire, Office of the Solicitor, U. S. Department of Labor, Atlanta,Georgia, on behalf of complainant.Carol Heaton, Safety Engineer, Heaten Erecting, Inc., Forest Park, Georgia, on behalf ofrespondent.DECISION AND ORDERSPARKS. Judge: An investigation of a fatal falling accident resulted in a serious citationbeing issued to Heaton Erecting, Inc., which charged it with violations of theOccupational Safety and Health Act (\”Act\”) in connection with the use of amanually- propelled mobile scaffold. Item 1(a) alleged respondent violated 29 C.F.R.?1926.451(e)(10) 1\/ by failing to equip the scaffold with standard guardrails and item1(b) charged that 29 C.F.R. ? 1926.451(e)(4) 2\/ was violated in that the scaffold was nottightly planked the full width of the scaffold.Respondent contends that the standards did not apply under the circumstances of this case,the scaffold was not a serious fall hazard and the work could not have been performed froma tightly planked scaffold and would have created a greater hazard.I. GUARDRAILS Respondent concedes that the mobile scaffold did not have guardrails but contends that thedevices were not required as the height of the scaffold was less than ten feet from thefloor. The scaffold was on the fourth floor near the outer perimeter of the building. Mr.John Ferrell stood on a plank of the scaffold while welding steel angles or braces to theoutside edge of the building to which precast concrete panels would be attached. Whileworking Mr. Ferrell wore a safety belt which he tied to an overhead beam although he wasnot tied-off while mounting or dismounting the scaffold.The essential facts are not disputed. The distance from the scaffold to the ground belowwas more than 40 feet. The scaffold itself was 50 to 70 inches high.The standard at 29 C.F.R. ? 1926.451(e)(10) requires guardrails on \”all open sidesand ends on all scaffolds more than 10 feet above the ground or floor. . . \” TheSecretary contends the phrase refers to the potential fall distance. The Review Commissionrecently addressed the question; however, and held that the phrase \”above the groundor 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 distance between thescaffold platform and the base of the scaffold was 50 inches (Tr. 43. 64). CommissionJudges are bound by decisions of the Review Commission. Item 1(a) must be vacated.II.PLATFORM PLANKINGIt is not disputed that the scaffold platform was not \”tightly planked for the fullwidth of the scaffold except for necessary entrance opening\” 29 C.F.R. ?1926.451(e)(4). The compliance officer testified that the tight planking of the platformwas necessary to prevent falls (Tr. 40-41). The compliance officer explained that thesolid planking should have been at the \”topmost\” part of the scaffold supportedby the third horizontal rail (Tr. 42). As used by respondent on the day of the accident,the scaffold had one plank on the second rail and one plank on the third level (Ex.C-1(c)). The employee apparently stood on the lower plank and used the higher plank torest his tools and equipment (Tr. 86).Respondent contends that a tightly planked scaffold would create a greater hazard andwould make work almost impossible. The welding was performed at a height of about six toeight feet (Tr. 13). Art Copeland, an ironworker, explained the problems of working fromsuch a platform as follows (Tr. 85-86):For one thing, if you deck it over all the way across on the top floor, wells every time Iget up on it, I have to approximately bend over. I’d have to bend over approximately downto this range right here [indicating] which is involved tremendous back ache after eighthours. 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 a tall man — if youdeck this scaffold here all the way across, I couldn’t work on it because my head hits theceiling. The head hits everything up there and I was too high above the connections.Structural connection like that you have to apply a vertical weld, which means you need tobe level with it, or under it so you can go up with it. And If you’re over it it’s hard todo.Copeland’s testimony was candid and logical, One can easily see considerable difficultystanding on a platform nearly 70 inches (5 feet,10 inches) high and attempting to welditems only six to eight feet high or about at ankle to knee height.Heaton raises several affirmative defenses Including the \”impossibility ofperformance\” and \”greater hazard\” defenses. The Review Commission statedthe necessary elements of those defenses in Consolidated Aluminum Corp., 80 OSAHRC 125\/A2.9 BNA OSHC 1144,. 1981 CCH OSHD (P) 25,069 (No. 77-1091, 1980), as follows (1981 CCH OSHDp. 30,976): In order to establish one of the impossibility defenses, the employer must prove that (1)compliance with the requirements of the cited standard either could be functionallyimpossible or would preclude performance of required work, and (2) alternative means ofemployee protection are unavailable. M. J. Lee Construction Co., 79 OSAHRC 12\/A2. 7 BNAOSHC 1140, 1979 CCH OSHD (p) 23.330 (No. 15094, 1979). In order to sustain a greaterhazard defenses, the employer must show that (1) compliance with the cited standard woulddiminish rather than enhance employee safety. (2) alternative means of protecting theemployees are unavailable, and (3) a variance application under section 6(d) of the Act,29 U. S. C. ? 665(d). would be inappropriate. H. S. Holtze Construction Co.. 79 OSAHRC82\/A2v 7 BNA OSHC l753, 1979 CCH OSHD (P) 23,925 (No. 16059, 1979)9 rev’d in part on othergrounds. No. 79-1957 (8th Cir. Aug. 8, 1980).Here the evidence is convincing that respondent’s welders would not be able to performtheir work from a tightly planked platform on the \”topmost\” tier of the scaffoldas described by the compliance officer because of the severe bending necessary to work atthe required level. Ironworker Copeland’s testimony that the danger of losing one’sbalance and falling is greater while working in that position is also convincing (Tr.85,86, 95, 110-111). The Secretary did not offer evidence In rebuttal. As an alternate meansof protection, welders used safety belts while working from the scaffold. There is nosuggestion that such protection was inadequate. There is no indication that Heatonrequested a variance so its defense of greater hazard must fall. Respondent, however,established its affirmative defense of impossibility of performance of required work. Item1(b) must also be vacated.FINDINGS OF FACT1. Respondent, Heaton Erecting, Inc., primarily engages in steel erection but alsoperforms precast concrete erection (Tr. 10).2. Respondent is subject to the Act and the regulations issued thereunder (Tr. 5, 10).3. In April 1984, respondent, was engaged in the erection of precast concrete panels as asubcontractor at the construction site of an office building located at 1265 PeachtreeStreet, Atlanta, Georgia (Tr. 11).4. On April 2, 1984, Mr. John Ferrell fell approximately 40 feet to his death (Tr. 15, 81,88, 99, 104).5. On the day of the accident, John Ferrell was welding angles or braces to the outsideedge of the building to which precast panels were attached (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 feet above the floor levelat the outside of the building. He used a manually-propelled mobile scaffold to reach theheight necessary to perform 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 the scaffold, was able totie-off securely; but, while mounting and dismounting 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 welding work whilestanding on tightly planked topmost level of the scaffold because of the severe bendingwhich would have been required. Such work position would also present an increased dangerof falling.10. The employee worked from the scaffold consisting of one plank approximately 18 incheswide (Ex. C-1(c); Tr. 40-42, 46).11. The top of the scaffold was approximately 70 inches from floor. The working deck tothe floor was approximately 50 inches (Tr. 43, 64, 68).12. A fall from the scaffold to the floor would not result In death or serious Injury (Tr.64).CONCLUSIONS OF LAW1. The Review Commission has jurisdiction over the parties and subject matter.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. 84-452ORDER APPROVING SETTLEMENTThe applicant, Heaton Erecting. Inc., petitioned for an award of attorney’s fees andrelated costs pursuant to the Equal Access to Justice Act (EAJA), 5 U.S.C. ? 504.After negotiations, the parties have filed a stipulation and joint motion. It is ORDERED:1. The agreement is approved and the stipulations and representations of the agreement areincorporated into this order.2. The Secretary shall pay to respondent the sum of $7,203.68 in full and finalsatisfaction of all fees and costs under the EAJA.3. This proceeding is dismissed with prejudice. Dated this 31st day of July, 1987JOE D. SPARKS Judge\u00a0FOOTNOTES: [[1]]The Commission’s decision in Schwarz-Jordan was subsequently overruled by the FifthCircuit in Brock v. Schwarz-Jordan, Inc., 777 F.2d 195 (5th Cir. 1985).[[2]] Commissioner Rader agrees with the majority that this case should be remanded for adermination whether guardrails were infeasible. If the Secretary seeks to allege and provethat Heaton should have used alternative protection measures in accorance with theCommission decision in Dun-Par Engineered Form Co., No. 82-929, the Commissioner Raderwould limit the alternative measures sought to be imposed consistent with his accurateopinion 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 material providingequivalent protection), approximately 42 inches high, with a midrail of I x 6 inch lumber(or other material providing equivalent protection), and toeboards, shall be installed atall open sides and ends 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 be installed inaccordance 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 scaffold except for necessaryentrance opening. Platforms shall be secured in place.”