“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 77?314 \u00a0 NATIONAL INDUSTRIAL CONSTRUCTORS, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0January 21, 1981DECISIONBefore: CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? Thisis a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. ??651?678 (?the Act?). A decision of Administrative Law Judge John J. Morris isbefore the Commission for review under section 12(j) of the Act, 29 U.S.C. ?661(i). In his decision, Judge Morris concluded that Respondent. NationalIndustrial Constructors, Inc., committed a serious violation of the Act byfailing to comply with the standard at 29 C.F.R. ? 1926.500(d)(1)[1] and assessed a penalty of$400. In response to a petition for discretionary review filed by Respondent,Commissioner Barnako directed review of the judge?s decision to determine ifthe judge erred in rejecting Respondent?s affirmative defenses that compliancewith the cited standard would have rendered performance of work impossible orcreated a hazard greater than the hazard created by non-compliance. We concludethat Respondent failed to establish either of those affirmative defenses. Wetherefore affirm the judge?s determination that Respondent committed a seriousviolation.I??????????? OnJanuary 12, 1977, compliance officer Donald Higley of the Occupational Safetyand Health Administration inspected Respondent?s worksite near Sutherland,Nebraska, where it was building a coal-fueled power plant. As a result of thatinspection, Respondent was issued a citation charging it with a seriousviolation of the Act for failing to comply with section 1926.500(d)(1).Specifically, the citation alleged that Respondent permitted its employees towork on a platform that did not have guardrails on its north and west sides toprevent employees from accidentally falling. The Secretary ordered immediateabatement and proposed a penalty of $400.??????????? Theplatform at issue measured approximately 4 feet by 16 feet. It was situatedtowards the southeast corner of the building?s fourth floor, 60 feet above thenext lowest level and 200 feet above the ground. The platform consisted ofbridging timbers with plywood decking, and it rested on steel I-beams runningfrom the north edge to the south edge of the fourth floor. The steel beams werespaced 8 to 10 feet apart. The north and west sides of the platform were notguarded and led directly onto the open steel grid upon which the platform rested.A guardrail had been installed on the south side of the platform. The east sideof the platform abutted a temporary walkway, which ran to the southeast cornerof the floor. This walkway was bordered on the side opposite the platform bythe eastern wall of the building, where siding and had already been installed.??????????? Onthe date of the alleged violation, a rigging crew consisting of four employeesof Respondent repeatedly crossed over the platform as they moved dismantledcomponents of A-frame rigging from the northwest corner of the fourth floor tothe southeast corner for reassembly. The rigging crew?s function was todisassemble, move, and then reassemble the A-frame rigging which was used tosupport the multi-stage scaffolding used by crews of ironworkers who wereputting sheet metal siding onto the outside walls of the building. Somecomponents of the A-frame rigging were I-beams which each measured 20 feet inlength and four inches in height, and weighed about 550?586 pounds.??????????? Afterdismantling A-frame rigging on the northwest corner of the floor, the riggingcrew slid some of the components of the rigging diagonally across the steelgirders to the wooden platform. These components were brought onto the platformfrom its west side. Other components were pulled east in the ?through? of thenorth girder and then pushed down to the platform. These components werebrought onto the platform from its north side. From the platform, the A-framerigging was moved by way of the walkway to the southeast corner of the floorfor reassembly. One of the rigging crew members testified that he came ?rightup to the outside edge? of the platform?s unguarded sides while crossing from abeam to the platform. Another rigging crew member testified that he had comewithin 12 inches of those unguarded sides while moving the rigging.??????????? Whenasked at the hearing whether it would have been possible to move the rigging ifguardrails had been set up on the west and north sides of the platform, BarryBane, Respondent?s Project Safety Engineer, testified: ?No, it would not. Itwould have been virtually impossible for any two individuals, I would think,standing on the phlange of a beam to virtually lift 500 pounds or better 42inches in the air and hand them over a handrail.? On cross-examination, Banewas asked whether the I-beams could have been moved onto the platform bysliding them between the rails of a guardrail. He responded:If you were coming from the west it isvery possible. If you were coming from the north it would be almost virtuallyimpossible because your structure members, which [were] on eight foot centers,were running north and south and you would have had to turn the beam inhorizontal position running it to north and south. And in all likelihood itwould have gotten away and gone down through the steel also.???????????? Accordingto Bane, ?it would definitely have been unsafe? to try to lift the I-beams overhandrails if they had been installed on the platform edges at issue.Furthermore, one of the rigging crew members testified that it would have been?difficult? to put the I-beams on the platform if railings had been installedall around the platform because of the necessity of lifting the beams up overthe railing.??????????? Complianceofficer Higley testified that, when he returned to the worksite the day afterthe inspection, he noticed that the platform at issue had been ?barricaded . .. off? by a toprail and midrail installed at the end of the walkway leading tothe platform.??????????? Inhis decision, Judge Morris affirmed the citation item alleging a seriousviolation due to noncompliance with section 1926.500(d)(1). While acknowledgingthe ?paucity of evidence from both parties? regarding this alleged violation,the judge concluded that the evidence of record proved that guardrails shouldhave been placed on all outside edges of the platform, but not so as to preventaccess to the bridge, or walkway. He dismissed as ?moot? Respondent?scontention that it would have been impossible or more hazardous to requireemployees to lift the I-beams over guardrails because ?the workers are notrequired to lift the beams over the guardrails.? The judge concluded thatRespondent?s installation of a guardrail after the inspection disposed of itsfeasibility argument. The judge assessed the $400 penalty proposed by theSecretary.II??????????? Respondentargues on review that the judge erred in rejecting its defenses ofimpossibility of performance and greater hazard. In particular, it asserts thatJudge Morris erred in rejecting Respondent?s impossibility of performancedefense solely because guardrails had been installed subsequent to theinspection. Respondent notes that those ?subsequent? guardrails were notinstalled at the northern or western edges of the platform, which were thesubject of the citation, but were instead placed at the end of the walkway,which was at the southeast side of the platform. Respondent contends thatblocking access to the walkway after all the A-frame rigging had been moved tothe southeast corner does not establish that, while the moving operation wasstill in progress, performance of work with guardrails on the northern andwestern sides of the platform would have been possible. According toRespondent, the Secretary offered no testimony that would refute Bane?sstatement that it would have been ?unsafe? to lift the I-beams over the allegedlynecessary guardrails.[2]??????????? TheSecretary contends on review that the evidence of record does not show that,with regard to the unguarded western edge of the platform, the installation ofa guardrail would have rendered performance of the work impossible or wouldhave posed a greater hazard than that resulting from the absence of aguardrail. The Secretary argues, on the basis of Bane?s uncontrovertedtestimony (quoted above), that compliance with the cited standard would nothave required Respondent?s employees to lift the beams over a guardrail on thewestern edge of the platform because, if the beams were coming from the west,the beams could have been moved by sliding them between the rails of theguardrail. The Secretary notes that, even if it would have been impossible orunsafe to install guardrails on the northern edge of the platform, Respondentwas still required to place guardrails along the western side, citing Constructora Maza, Inc., 77 OSAHRC213\/B9, 6 BNA OSHC 1208, 1977?78 CCH OSHD ? 22,421 (No. 12434, 1977).Affirmance of the citation item alleging noncompliance with section 1926.500(d)(1) and the $400 penalty assessed is thus urged by the Secretary.III??????????? Weconclude that Judge Morris erred in basing his rejection of Respondent?simpossibility of performance and greater hazard defenses on the complianceofficer?s testimony that Respondent ?had barricaded the work platform off? someone or two days after the alleged violation by installing a toprail and midrailacross the end of the walkway. We agree with Respondent?s contention that theinstallation of guardrails at the end of the walkway to render the walkwayinaccessible has no bearing on the issue of how possible or safe performance ofrequired work would have been if guardrails had been placed at the northern andwestern edges of the platform on the day of the alleged violation when themoving operation was underway. Accordingly, Respondent?s affirmative defensesare not ?moot.???????????? Inorder to establish the affirmative defense of impossibility of performance, thecited employer must prove that: (1) compliance with the requirements of thecited standard would preclude performance of required work, and (2) alternativemeans of employee protection are unavailable. M. J. Lee Constr. Co., 79 OSAHRC 12\/A2, 7 BNA OSHC 1140, 1979 CCHOSHD ?23,330 (No. 15094, 1979). To prove the affirmative defense of greaterhazard, the employer must show that (1) the hazards created by compliance withthe requirements of the cited standard are greater than those resulting fromnoncompliance, (2) alternative means of protecting employees are unavailable,and (3) a variance application under section 6(d) of the Act would beinappropriate. M. J. Lee Constr. Co.,supra.??????????? Asnoted by the Secretary on review, Respondent?s Project Safety Engineer Banetestified, without contradiction, that a guardrail on the west edge of theplatform would not have prevented employees from moving an I-beam onto theplatform through its west side because sliding it between the rails could havebeen accomplished. Although Bane stated that moving an I-beam onto the platformthrough the north side would have been ?almost virtually impossible? if aguardrail had been in place, he did not testify, nor does any evidence ofrecord establish, that the rigging components moved onto the platform throughthe north side could not have been moved instead through the west side.??????????? Moreover,the record contains no indication that guardrails on the north side of theplatform would have interfered with Respondent?s work if all of the riggingcomponents had been moved onto the platform from the west side. Under the Act,an employer may be required to change its operation methods in order to achievecompliance with a standard. See F. H.Lawson Co., 80 OSAHRC 19\/A13, 8 BNA OSHC 1063, 1980 CCH OSHD ?24,277 (No.12883, 1980), appeal docketed, No.80?3277 (6th Cir. April 21, 1980). Because Respondent has not proven that itcould not have changed its operating procedure so as to transport all of thecomponent I-beams through a guarded west side of the platform, Respondent hasfailed to establish that installation of guardrails on the platform?s northernand western edges would have precluded performance of the required work.Moreover, Respondent has not proven that those guardrails would have created ahazard greater than the falling hazard resulting from the failure to guard theedges of the platform. Under the operating procedure described above, it wouldnot have been necessary to lift the I-beams over the guardrails. The ?greaterhazard? suggested in Bane?s testimony therefore would not have been created.[3]??????????? Forthe reasons given above, we affirm the judge?s conclusion that Respondentcommitted a serious violation of the Act by failing to comply with the standardat section 1926.500(d)(1), as well as the judge?s assessment of a $400 penaltyfor the violation.?IT IS SO ORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.,EXECUTIVE SECRETARYDATED: JAN 21 1981\u00a0\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 77?314 \u00a0 NATIONAL INDUSTRIAL CONSTRUCTORS, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0January 9, 1978APPEARANCES:Thomas E. Korson, Esq., Office of Henry C.Mahlman, Associate Regional Solicitor, U. S. Department of Labor, Denver,Colorado, and Jamison Ann Poindexter, Esq., Office of T. A. Housh, Jr.,Regional Solicitor, U. S. Department of Labor, Kansas City, Missouri, for theComplainant,\u00a0H. Lane Dennard, Jr., Esq., Greenville,South Carolina, and J. Taylor Greer, Esq., Lincoln, Nebraska, for theRespondent.?DECISION AND ORDERJohn J. Morris, Judge:??????????? Respondentwas charged with using a lanyard to tow an I-beam and with failing to guard anopen-sided platform thereby violating regulations promulgated under Section654(a)(2), the specific duty clause, of the Occupational Safety and Health Actof 1970 (29 U.S.C. 651 et seq.)??????????? Respondentcontends the Act is unconstitutional and the construction standards[4] invalidly promulgated.Further NIC argues the safety belt standard is vague. On the evidence adducedat trial respondent asserts the safety belt standard is not applicable. Inaddition, respondent urges the use of the safety lanyard by its employee was conductperformed without respondent?s knowledge, in conflict with company rules, andan isolated incident. Respondent further states it took all reasonable steps toprotect its workers.??????????? Inconnection with item 2 respondent asserts the installation of a guardrail, ascomplainant suggests, would be impractical and create a greater hazard.??????????? Respondent?sfirst contentions, threshold constitutional issues, assert the Act authorizesan unlawful search and also authorizes criminal proceedings conducted by an administrativeprocess. These issues are not matters for adjudication by the Commission. Georgia Electric Company, OSHRC DocketNo. 9339. However, this is the proper forum to raise such matters.??????????? Neverthelessit is noted, concerning unlawful search, that respondent did not denypermission to the inspector to enter the worksite (Tr. 59?61). Generally, aparty must interject the search issue at the time of the inspection. Lake Butler Apparel Company v. Secretary ofLabor, 519 F.2d 85 (C.A. 7, 1975).??????????? Theappellate courts also consider the civil penalty portions of the Act to becivil, rather than criminal, in nature. AtlasRoofing Company, Inc. v. OSHRC et al., 518 F.2d 900 (C.A. 5, 1975) cert. granted on jury issue; affirmed 97 S.Ct. 1261; Beall Construction Company v. OSHRC, 507F.2d 1041 (C.A. 8, 1974).??????????? Concerningthe promulgation of the construction standards, the Commission considered anddenied the same exact arguments respondent now raises in Daniel Construction Company, OSHRC Docket No. 7734, 7662 (February,1977). Respondent?s motions are denied.??????????? Respondent?sremaining contentions require a review of the evidence.CITATION 1, ITEM 1[5]??????????? Thiscitation alleges the use of a lanyard to tow an I-beam thereby violating 29 CFR1926.104(a).??????????? Ifind from the evidence, which is essentially uncontroverted, that a four-manNIC team dismantles and sets up, as needed, rigging for siding crews. Therigging gear consists mainly of A-frames, picks, and I-beams.??????????? Cobb,an acting leadman, fell to his death on January 11, 1977. He and Luddington, anapprentice, had already positioned four A-frames. They would complete theirtask upon setting the last 20-foot I-beam across the top of the A-frames (Tr.13?21, 45, Exhibit C?1).??????????? A20-foot I-beam weighs between 550 and 586 pounds. Cobb told Luddington where tostand, and the two men proceeded to slide the beam to the corner of thestructure. Cobb directed Luddington to guide the beam while he pulled. Duringthe sliding effort, Cobb removed his lanyard from his belt and hooked it in asmall hole in the end of the I-beam. The beam came to rest across the 10-footstructural span and on top of a 10-inch I-beam or in a 10-inch deep C-trough.[6] Cobb was going to turn hisend and slide the I-beam. Luddington was in the process of undoing his belt andcrossing over the I-beam to retie his lifeline, when the beam slipped off thestructural beam at Luddington?s end. The beam, with lanyard attached, pulledCobb 60 feet to his death (Tr. 11?13, 21, 31, 45, Exhibits C?2, C?3, C?4).??????????? Luddingtonconsidered Cobb to be his supervisor. Cobb received the foreman?s orders anddaily work schedules. Luddington and co-worker Searle had never seen Cobb, noranyone else in this crew, use a lanyard as Cobb did on this occasion. Everyonewould recognize such use as improper.??????????? Cobb?simmediate foreman had never observed anyone use a lanyard for a tow rope. Theforeman had seen counterweights slid across a solid deck, but he thought suchweights were pulled with ropes.??????????? Cobb,a competent worker, and acting leadman, or pusher, was not a part of managementnor did he have supervisory authority. He could not hire, fire, or discipline.He gave no instructions on his own but relied on the foreman?s orders. Cobbwould tell the crew to go to certain locations, and the crew would then planwhat to do. A leadman is paid more than other crew members, but an actingleadman does not receive any additional pay. The siding crew foreman alsoserved as foreman for the four riggers. He would see Cobb two or three times aday (Tr. 110?118, 122?127).??????????? NICsafety meetings, including those every Monday morning, encompass the proper useof safety belts. Company policy requires the tying off of lanyards. The wearingof safety belts is mandatory for workers outside of the permanent decking. InJanuary, 1976 company policy required the discharge of workers not tied off. InJune, 1976 the company policy was altered, and it permitted workers to bewithout belts if they were in the confines of the building. Suspension forfirst instance violations and termination for second instance violations werepenalties for not complying with NIC safety belt regulations.??????????? Eachnewly hired employee receives specialized safety orientation and a safetyhandbook. The orientation includes instructions not to use personal protectiveequipment as a tagline or towline. A safety inspector continually inspects allphases of the work (Tr. 43?45, 49, 54?56, 67, 74?76, 79?81, 95, 108?118,Exhibits A, C?12).??????????? Respondent?sinitial contention asserts ? 1926.104(a) is too vague to provide adequatenotice to an employer.??????????? Respondent?sargument is not persuasive. The first case relied on by respondent, Connally v. General Construction Company,269 U.S. 385 (1926), held a penal statute vague because it failed to defineessential terms of ?current rate? and ?locality?. The regulation here is clear,simple, and concise. Respondent?s second cited case, G.E. Drywall, Inc., OSHRC Docket 2825 involves an issue of whether? 1926.104(a) or ? 1926.451(i)(8) applied to the facts in that case. Judge JohnJ. Larkin ruled the more specific regulation applicable. The thrust ofcomplainant?s case here involves the use of a lifeline other than for employeesafeguarding.??????????? Respondent?ssecond contention urges ? 1926.104(a) does not specify when the safetyequipment is to be used. Respondent argues complainant logically should havecited it in conjunction with a standard requiring a more detailed specific useof safety belt equipment such as ? 1926.28(a), ? 1926.451(i)(8), or ?1926.105(a).??????????? Respondent?sbrief[7] answers its own argument.It states: ?[i]t is obvious from merely reading the standard that .104(a) wasdrafted to insure that safety devices such as lanyards and safety belts wouldbe used for no other purpose other than fall protection because of thelikelihood that they might be damaged or weakened if used for any otherpurposes.???????????? Thisis a correct evaluation of the intent of the standard. It follows that use ofthe safety devices such as complainant asserts here would constitute aviolation of the regulation. The standards respondent suggests illustratesituations requiring proper use of personal protective equipment.??????????? Respondent?sreliance on Underhill Construction Corp.,OSHRC Docket No. 8096 and G. E. Drywall, supra, is misplaced. In Underhill the Commission clearlyobserved there was no evidence that respondent used the equipment for otherthan employee safeguarding. G.E. Drywall,as noted above, does not support respondent.??????????? Respondent?sfinal contention is that Cobb?s actions were without the company?s knowledge;an isolated incident, and further, NIC argues it took all reasonableprecautionary steps to protect its employees from reasonably foreseeabledangers.??????????? Complainantcounters contending Cobb?s actions are imputable to NIC. Complainant arguesCobb was essentially a foreman and the company representative for the otherthree workers of the rigging crew.??????????? TheCommission generally looks to the substance of the delegation of authority overother employees. Iowa Southern UtilitiesCompany, OSHRC Docket No. 9295 (March, 1977). I find from the evidence thatCobb, an acting leadman or pusher, gave working instructions and relayed theforeman?s orders to the crew for dismantling and rigging the gear. The crewwould plan what they would do after receiving the foreman?s orders. Luddingtonconsidered Cobb a superior. The person designed by NIC as foreman for the crewwould only see Cobb two or three times a day. The distance the crew moved therigging gear is not reflected in the record, but it was apparently substantialsince four or five hours a day were spent in physically moving the gear (Tr.23, 118, 123?125). I find the foregoing facts establish Cobb was in charge ofactivities involving some discretion. In view of this work he necessarilyserved in a supervisory capacity. His actions are imputed to NICnotwithstanding that he had no authority to hire, fire, or discipline otherworkers.??????????? TheCommission, however, does not impose strict liability on an employer if it didnot know of the violation, constructively or otherwise, and took all necessaryprecautions to prevent the occurrence. HornePlumbing and Heating Company v. OSHRC, 528 F.2d 564 (C.A. 5, 1976); and Ocean Electric Corp., OSHRC Docket No.5811 (1975).??????????? Onthe facts I find NIC did not have actual knowledge of Cobb?s bizarre use of hislanyard as a tow rope. No member of the crew nor any supervisory personnelpreviously observed such action by Cobb, or by anyone else.??????????? Concerningconstructive knowledge??????????? Concerningconstructive knowledge value in the testimony of witness Searle to the effectthat workers used their lanyards to pull counterweights over solid decking (Tr.55?57). His testimony on this issue is contradictory. It also unrelated in timeto Cobb?s use. Further, it is not shown to have been known to NIC supervisorypersonnel. The record shows NIC discharged a worker in May, 1976 for using asafety belt as a towline, but no credible evidence supports the propositionthat NIC had constructive knowledge of this violation (Exhibit R-F).??????????? Theultimate question here is whether respondent took reasonable precautions toprevent this occurrence. I find when NIC hires a worker its safety directorconducts a personal safety indoctrination with him. Included are instructionsnot to use lanyards as a tagline or tow rope. He also receives personalprotective equipment, a safety handbook, and, as Cobb, he participates atweekly safety meetings. Proper methods of tying off are discussed at everyMonday morning meeting between supervisors and workers. Management andsupervisory safety meetings occur regularly.??????????? Aweekly punch list of infractions develops from daily safety inspections. If asafety hazard is deemed dangerous, immediate corrective measures are taken.??????????? Disciplinaryaction, including termination, results for infraction of company safety rules(Tr. 43, 76, 77, 79, 80, 82, 108, 109?112, Exhibit B).??????????? Complainantargues that no written policy prohibits the use of lanyards in the manner usedby Cobb (Tr. 48).??????????? Thisargument is not persuasive. There may well be a millennium of ways in which alanyard can be improperly used. To require an employer to anticipate every suchuse with written instructions would be tantamount to the imposition of strictliability, an element not contemplated by the Commission, the Courts, or theCongress. Horne Plumbing and Heating Co.,supra; Brennan v. Butler Lime andCement Company, 520 F.2d 1001 (C.A. 7, 1975). The oral instruction to a newworker not to use a lanyard as a towline or tagline is sufficient, although anemployer should also strive for written as well as oral directives.??????????? Complainanturges respondent?s disciplinary policy was inconsistently applied and lackscredibility. He bases this argument on the fact that in January, 1976respondent?s written directive requiring safety belts provided for ?immediatedischarge?, but in June, 1976 NIC mollified its rule without repeating the?immediate discharge? feature. Further, in July, 1976 respondent changed itsrules by mandating a 7-day suspension for first instance violation andtermination for a second offense.??????????? Contraryto complainant?s views, I interpret the NIC directives as genuine effortsseeking cooperation and compliance by its employees with the safety regulations(Exhibits C?12, D?1, D?2).??????????? Theultimate question is whether the NIC safety policy was, in fact, effectivelyenforced. The uncontroverted evidence shows some disciplining of employees fornot using safety belts. Worker terminations in 1976 for safety belt violationsincluded six in February (Exhibits E?11, E?12, E?13, E?24); three in May (E?3,E?5, R-F); one in July (Exhibit E?6); three in August (Exhibits E?2, E?4,E?22); two in September (Exhibits E?7, E?25); and one in October (Exhibit E?9).In August, September and October, in addition to the above terminations, therewere six suspensions for as long as seven days for violating safety beltregulations (Exhibits E?8, E?10, E?17 thru E?20). The records seem to reflectan employee is terminated even after the suspension directive if he refuses tocomply with the regulations. NIC records reflect additional terminations forreasons not related to the use of safety belts and some of the records fail toindicate the specific reasons involved for the disciplinary action (ExhibitE?1, E?14, E?27).??????????? Iconclude respondent effectively enforced its safety policy and thereforeestablished a defense under Commission precedent. Cf. Packerland Packing Co. of Texas, OSHRC No. 13315, November 17,1977. Having reached this result, it is not necessary to consider the isolatedincident doctrine. I vacate item 1 of citation 1 and any proposed penaltytherefor.CITATION 1, ITEM 2??????????? Thiscitation alleges respondent failed to guard an open-sided platform therebyviolating 29 CFR 1926.500(d)(1).[8]Respondent argues it would be virtually impossible aswell as hazardous to require employees to lift a 550 pound I-beam 42 inches andhand them over a railing. Respondent further contends complainant failed toprove what respondent should have done to avoid the citation, and it argues itprovided alternative protection to its workers.The evidence is uncontroverted: Workers moving beamsand A-frames come within twelve inches of the one unguarded side of the 4 by 16foot crossover platform. A worker could fall sixty feet from the bridgingtimbers (Tr. 33?40, 51, 52, 62?63, Complainant?s Exhibits 5, 7, 8).??????????? Thereis a paucity of evidence from both parties concerning this citation. NIC arguescomplainant requires a guardrail on all four sides of the crossover platform,but this view misconstrues the evidence. Guardrails on four sides wouldpreclude the use of the passageway bridge.??????????? Ifind the evidence here that guardrails should be placed on the outside edges ofthe bridging platform. No guardrails are to be placed in such a manner as toprevent worker access to the bridge.??????????? Respondent?sinitial contention is moot: the workers are not required to lift the beams overthe guardrails. The action of respondent in installing a guardrail after thecitation was issued disposes of the feasibility argument. The final argumentthat NIC provided alternative forms of protection lacks merit. Respondent didnot show its workers used personal protective equipment on the bridge. In anyevent the use of one does not necessarily exclude the other. Item 2 of thecitation must be affirmed.??????????? Consideringthe criteria in 29 U.S.C. 666(i), the proposed civil penalty of $400 isappropriate and it must be affirmed.EVIDENTIARY RULING??????????? Complainant?spost-trial brief renews his objection to the admission of respondent?s ExhibitC. Complainant?s general objection (Tr. 94) carries little weight. McCormick on Evidence, 2nd Editionsuccinctly states the rule at Section 52 (page 115): ?If the Judge overrules ageneral objection, the objecting party may not ordinarily complain of theruling on appeal by urging a valid ground not mentioned when the objection wasmade.? This case does not fall within any of the three exceptions to that rule.The exhibit was generally admissible. For example, Exhibit C contains properlyidentified diagrams and photographs showing the work area including where Cobbwas standing and the point to which he fell. Also it includes safety reportskept in the course of business (Tr. 87?91, Exhibits C?6, C?7, C?8, C?9, C?10).Complainant?s objection is again overruled.JURISDICTION??????????? Respondent?sanswer concedes jurisdiction and for the above stated reasons I enter thefollowing:ORDER??????????? 1.Citation 1, item 1 and all penalties therefor are vacated.??????????? 2.Citation 1, item 2 and the proposed civil penalty of $400 are affirmed.?SO ORDERED:?John J. MorrisJudge, OSHRCDated: January 9, 1978[1] The standardprovides:SubpartM?Floor and Wall Openings, and Stairways?1926.500 Guardrails, handrails, and covers.(d)Guarding of open-sided floors, platforms, and runways.(1)Every open-sided floor or platform 6 feet or more above adjacent floor orground level shall be guarded by a standard railing, or the equivalent, asspecified in paragraph (f)(1)(i) of this section, on all open sides, exceptwhere there is entrance to a ramp, stairway, or fixed ladder. The railing shallbe provided with a standard toeboard wherever, beneath the open sides, personscan pass, or there is moving machinery, or there is equipment with whichfalling materials could create a hazard.[2] Respondent alsopresents on review several arguments concerning issues that are not before uspursuant to the limited direction for review. We note the following withrespect to those arguments. Respondent contends that section 8(a) of the Act,29 U.S.C. ? 657(a), is unconstitutional. Although the United States SupremeCourt?s decision in Marshall v. Barlow?s,Inc., 436 U.S. 307 (1978), held that section 8(a) violated the fourthamendment insofar as that provision of the Act authorizes warrantlessinspections without employer consent, we concluded in Meadows Industries, Inc., 79 OSAHRC 74\/F2, 7 BNA OSHC 1709, 1979CCH OSHD ?\u00a023,847 (No. 76?1463, 1979), that noncompliance with theprinciples announced in Barlow?s is without retroactive remedy. Respondent alsoargues that the proceedings and penalties assessed under the Act areunconstitutional because they are criminal rather than civil in nature. In Atlas Roofing Co. v. OSHRC, 518 F.2d 990(5th Cir. 1975), cert. denied on thisissue, 424 U.S. 964 (1976), and BeallConstr. Co. v. OSHRC, 507 F.2d 1041 (8th Cir. 1974), the courts held thatthe proceedings and penalties under the Act are civil rather than criminal.Respondent further asserts that the standards comprising 29 C.F.R. Part 1926,including the specific standard cited here, were invalidly promulgated underthe Construction Safety Act, 40 U.S.C. ? 333, and were therefore not validlypromulgated under section 6(a) of the Act, 29 U.S.C. ? 655(a). The Commissionrejected that argument in Daniel Constr.Co., 77 OSAHRC 21\/A2, 5 BNA OSHC 1005, 1976?77 CCH OSHD ? 21,521 (Nos. 7672and 7734, 1977).[3] Respondent alsofailed to prove that alternative forms of employee protection were unavailable.We note that at trial, Respondent established that it had a well-enforced workrule which required that employees use safety lines while on the steel grid.But Respondent did not prove that it enforced its safety line rule foremployees working on the adjacent platform. Also, as Judge Morris concluded,the evidence discloses that the employees did not actually use safety lines orother forms of fall protection while on the platform. Accordingly, Respondentdid not establish the second element of both of its affirmative defenses, i.e.,the unavailability of alternative protection.[4] 29 CFR Part 1926.[5] ? 1926.104 Safetybelts, lifelines, and lanyards.(a)Lifelines, safety belts, and lanyards shall be used only for employeesafeguarding. Any lifeline, safety belt, or lanyard actually subjected toin-service loading, as distinguished from static load testing, shall beimmediately removed from service and shall not be used again for employeesafeguarding.[6] I find fromExhibit C?2 and the supporting testimony that the I-beam necessarily came torest on a structural beam before it fell.[7] NIC post-trialbrief, page 11.[8] ? 1926.500Guardrail, handrails, and covers.(d)Guarding of open-sided floors, platforms, and runways.(1)Every open-sided floor or platform 6 feet or more above adjacent floor orground level shall be guarded by a standard railing, or the equivalent, asspecified in paragraph (f)(1) of this section, on all open sides, except wherethere is entrance to a ramp, 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.”